BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia personal injury lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims.

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘Adjournment Applications’

More on ICBC Injury Claims, Trials and Adjournments

November 19th, 2010

As I’ve previously discussed, if you’re not prepared to proceed to trial and ICBC opposes an adjournment it’s necessary to apply for a Court order under Rule 12-1(9) of the BC Supreme Court Civil Rules. ¬†Reasons for judgment were released earlier this month by the BC Supreme Court, Kamloops Registry, dealing with such an application.

In today’s case (Allan v. Houston) the Plaintiff was involved in a 2007 motor vehicle collision. ¬†His injuries apparently included a fracture at the L4 level of his spine and a traumatic brain injury. ¬†His case was set for trial in December 2010. ¬†His treating specialists were apparently unable to “complete assessments of the plaintiff such that a court would be provided with an opinion with respect to the injuries sustained and the prognosis that the plaintiff faces“. ¬†In¬†addition¬†to this, the Plaintiff switched lawyers shortly before the¬†scheduled¬†trial. ¬†The new lawyer was unavailable for the previously scheduled trial. ¬†He sought an adjournment but ICBC refused. ¬†On application the BC Supreme Court ordered that the trial be adjourned. ¬†Mr. Justice Dley provided the following reasons:

[7]  The defendant resists the application for an adjournment on the basis that this matter has been set for trial for some time, that the incident occurred almost three years ago, and, as a result of the heavily contested liability issues, that memories may fade as time continues on.

[8]  Counsel for the plaintiff emphasizes two factors:

that there has been a change of counsel, and that the plaintiff’s new counsel would be unavailable for trial; and

that there is the practical aspect of securing further medical information to ensure that the court is in a position to properly assess the damages, if in fact liability has been proven.

[9]  There is also a third aspect that needs to be considered, and that is the issue of the second motor vehicle accident.  The injuries sustained, it is alleged, in the second accident aggravated those in the first.  In order to ensure that justice can be done for all parties it would be beneficial to have the same trier of fact dealing with both accidents at the same time, as it is anticipated and suggested by counsel for the plaintiff.

[10] ¬†In order for there to be a fair trial, the only rational outcome of this application is to grant the adjournment: ¬†first, to ensure that plaintiff’s counsel is available; second, to ensure that the court has the benefit of the necessary medical information; and thirdly, to ensure that all efficiencies are taken into account to have both accidents dealt with at the same time.

The Court went on to award the Plaintiff costs. ¬†In doing so Mr. Justice Dley reminded defence counsel that “this was an application that should have been given far more serious consideration than what it was by the defence. ¬†There are certain courtesies that should be given during the course of any litigation: one is the¬†availability¬†of counsel and two is the practical aspect of proceeding to trial with all of the necessary information“.


ICBC Injury Claims, Trials and Adjournments – Let's Be Reasonable

February 26th, 2010

Often times when a BC Supreme Court trial date approaches in an ICBC Injury Claim there are reasons why one party would like to adjourn the trial.  Key witnesses can be unavailable, perhaps the case is not quantifiable due to ongoing medical investigations or maybe one side is simply not prepared.

Whatever the reason if the parties don’t consent an application can be brought to a Supreme Court Judge or Master requesting an adjournment pursuant to Rule 39(9) which holds that “The court may order the adjournment of a trial or fix the date of trial of an action or issue, or order that a trial shall take precedence over another trial“.

The legal test for adjournment applications has long been established and it is clear that courts have the discretion to adjourn a trial. ¬†In exercising this discretion the Court must take into account the “interests of justice”. The¬†interests¬†of justice are determined by ‘balancing the interests of the parties, which is a difficult and delicate matter requiring a careful consideration of all the elements of the case‘.

With this introduction out of the way that brings me to the topic of today’s post. ¬†What if a trial needs to be adjourned for very clear and obvious reasons but the opposing side does not consent? ¬†Unreported reasons for judgement came to my attention today dealing with such a scenario.

In this case (Davis v. Clark, BCSC Chilliwack Registry, June 8, 2009) the Plaintiff’s personal injury claim was set for trial. ¬†Fault was admitted leaving the court to only deal with the issue of damages (value of the personal injury claim). ¬†The trial date, unfortunately, was set on the same date that the Plaintiff’s lawyers daughter was being married. ¬†The Plaintiff was content to have the trial adjourned but the Defendant refused to consent. ¬†A motion was brought asking for an adjournment and it was granted. ¬†The Court went further, however, and ordered that the Defendants pay the Plaintiff $703 in costs ‘forthwith‘ for their unreasonable refusal to consent.

Master Baker had the following to say:

Anyway, in the case before me, liability is not in issue. ¬†It is admitted. ¬†I just do not see there is any prejudice to the defence, but, with respect, it strikes me as just an eminently reasonable request on the part of the plaintiff to adjourn this. ¬†I wonder where litigation is going when someone says, “Look, my child is getting married and I want an adjournment,” and it is refused. ¬†I find that unacceptable. ¬†It frustrates and angers me, frankly. ¬†I just wonder where it is going…The order will go. ¬†Costs in any event payable forthwith.”

Sometimes there are legitimate reasons for an adjournment and sometimes there are not.  This case, however, demonstrates that where there is a very reasonable request for an adjournment and it is unreasonably refused the Court can punish the unreasonable party with costs payable forthwith.

Note:  Rule 39(9) will be kept intact when the New BC Supreme Court Rules come into force on July 1, 2010 and can be found at Rule 12-1(9).


 

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