ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims 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 ICBC injury 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 ‘Mr. Justice Schultes’

$90,000 Non-Pecuniary Assessment for Chronic Wrist Injury

May 30th, 2017

Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, assessing damages for a chronic wrist injury.

In today’s case (Ackerman v. Pandher) the Plaintiff was involved in a 2011 collision.  The Defendants admitted fault.  The Plaintiff worked as a tile setter and the chronic injury disabled him from his profession.  In assessing non-pecuniary damages at $90,000 Mr. Justice Schultes provided the following reasons:

[29]         The medical evidence about Mr. Ackermann’s wrist injury and its effects was not disputed. It indicates that he suffered what is known as a “perilunate dislocation injury[1]” in the accident. This results in “significant soft tissue/ligamentous disruption within the wrist.[2]” Some degree of stiffness is usually seen in patients with this type of injury and his ongoing symptoms are considered to be “reasonable given the nature and extent of his injury.[3]” When he was examined in May of 2015 he had flexion (moving the hand downward from a horizontal position) of only 20%, although his abilities to pinch and grasp were good[4]. His prognosis is for increasing arthritis in the joint as a result of the injury, “with gradually worsening pain and limitation.[5]” A consulting orthopedic surgeon described his condition in 2015 as “chronic and static with a very high likelihood of deteriorating over time.[6]

[30]         If his pain worsens he may require a partial or total wrist fusion, which “typically improve[s] pain however at the cost of significant range of motion.” A total fusion would mean that he could no longer flex or extend the wrist.[7] For now his symptoms can be “slightly improved” by the intermittent use of a brace and by anti-inflammatory medication.[8]

[31]         With respect to work prospects, the orthopedic surgeon offered the opinion that “[b]etween the associated pain and the limited range of motion to his wrist, [he does] not believe that there is any chance of Mr. Ackermann returning to a physical job involving extensive use of his right wrist.” Nor did he believe that there were any “interventions” that would allow Mr. Ackermann to do so[9].

[32]         During his evidence, Mr. Ackermann demonstrated the restrictions in his range of motion of his right wrist and how moving the wrist forward and backward or from side to side causes him pain.

[33]         When he attempted to return to work after the accident he quickly found that the pain in his wrist made it impossible to perform the essential tasks of tile setting.

[34]         This injury has also undermined his ability to engage in the extensive range of physical activities that made up his life outside of work. These have included gardening, shovelling manure for his wife’s chickens, performing home maintenance tasks and minor renovations, playing sports as part of his Sunday social activities and playing with his grandchildren. He also cannot go hunting because of the effect on his wrist of firing a gun.

[35]         Using his wrist to do work of any kind causes a burning pain which is severe enough that it can also wake him up at night. He always feels pain to some extent but if he “takes it easy” it is lessened…

[132]     I think that in this case Mr. Ackermann’s circumstances demonstrate a meaningful requirement for solace, one that is greater than his physical injury might otherwise suggest. It was not contested that he was previously a person for whom the ability to interact physically with the world, and his identity as a “worker” in both his actual employment and his home life, were extremely important. The pain that is brought on by the use of his wrist is serious enough, but in my view a critical aggravating factor has been the comprehensive undermining of his sense of capability in the parts of his life that he otherwise found the most fulfilling. Even though he was rather stoic when giving his evidence, the overall sense he projected of someone who has been cut adrift from the previous fundamentals of his life was still palpable.

[133]     Taking care to distinguish these effects from the harm that has been caused to his earning capacity, which is of course to be dealt with separately, I conclude that an award of $90,000 under this heading is appropriate.


$4.5 Million Cost of Care Assessment in Paraplegia Injury Case

January 18th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing future care damages in the case of paraplegia.

In today’s case (Warick v. Diwell) the Plaintiff was involved in an “extremely serious” collision in 2009 where an oncoming semi truck/trailer crossed into their lane.  The Plaintiff’s husband and two friends were killed as a result of the impact.  The Plaintiff suffered profound injuries and was left paraplegic.

The parties settled all aspects of their claim except the future care costs.  The Court provided the following summary of applicable legal principles in future care assessments prior to assessing the Plaintiff’s significant damages.

[201]     The essential principles that determine an award for the cost of future care are not really in issue in this case, with each party simply emphasizing different aspects of the same overall body of authority in their submissions.

[202]     With respect to the standard of proof to be met, “[a] plaintiff who seeks compensation for future pecuniary loss need not prove on a balance of probabilities … that she will require future care because of the wrong done to her. If the plaintiff establishes a real and substantial risk of future pecuniary loss, she is entitled to compensation…”:  Graham v. Rourke (1990), 74 D.L.R. (4th) 1 (Ont. C.A.).

[203]     Claims made for future care must be both medically justified and reasonable. An award “should reflect what the evidence establishes is reasonably necessary to preserve the plaintiff’s health”:  Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at paras. 199 and 201; aff’d (1987), 49 B.C.L.R (2d) 99 (C.A.).

[204]     This requirement of medical justification, as opposed to medical necessity “requires only some evidence that the expense claimed is directly related to the disability arising out of the accident, and is incurred with a view toward ameliorating its impact”:  Harrington v. Sangha, 2011 BCSC 1035, at para. 151.

[205]     The question has often been framed as being whether a reasonably-minded person of ample means would be ready to incur a particular expense:  Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at p. 245.

[206]     The evidence with respect to the specific care required does not need to be provided by a medical doctor:  Jacobsen v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63, (S.C.) at para. 182. However, there must be some evidentiary link drawn between the physician’s assessment of pain, disability, and recommended treatment and the care recommended by a qualified health care professional:  Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 39.

[207]     Damages for the cost of future care are assessed, not mathematically calculated:  Uhrovic v. Masjhuri, 2008 BCCA 462 at paras. 28-31. There is an inherent degree of uncertainty and discretion in making such awards. Because awards are made “once and for all” at the time of trial, judges must “peer into the future” and fix the damages “as best they can”. This includes allowing contingencies for the possibility that the future may differ from what the evidence at trial indicates:  Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9, at para. 21.

[208]     While no award should be made in relation to an expense that the plaintiff will not actually incur (Izony v. Weidlich, 2006 BCSC 1315 at para. 74), the focus of inquiry when a justified item or service was previously unused, is whether it is “likely to be incurred on a going forward basis”:  Gilbert v. Bottle, 2011 BCSC 1389 at para. 251.

[209]     A plaintiff is not entitled to an award for that portion of their costs of future care that will be publicly funded. However, the risk that access to public funds may be lost in future is a proper basis to provide a contingency in the award:  Boren v. Vancouver Resource Society for the Physically Disabled, 2003 BCCA 388 at para. 25[6].)

 


$87,500 Non-Pecuniary Assessment for Neurogenic Thoracic Outlet Syndrome

July 2nd, 2015

Adding to this site’s archives addressing non-pecuniary damages for traumatically induced thoracic outlet syndrome, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an injury.

In today’s case (Hsu v. Choquette) the Plaintiff was involved in a 2010 collision that the Defendant accepted fault for.  The collision caused compression of nerves resulting in Thoracic Outlet Syndrome.  In assessing non-pecuniary damages at $87,500 Mr. Justice Schultes provided the following reasons:

[40]         The type of TOS that Dr. Salvian diagnosed in Ms. Hsu’s case was neurogenic (nerve-based), caused by compression of nerves in an area known as the brachial plexus.

[41]         Through a series of standard physical tests, he was able to provoke the symptoms of tingling in the right arm and all of the fingers and severe pain in the right shoulder and neck. His review of her medical and therapeutic records revealed a post-accident history of pain and tenderness in the right neck and shoulder muscles, right shoulder pain and numbness travelling down that arm to the fingers. He did not find many symptoms on the left side.

[42]         His opinion was that Ms. Hsu’s headaches and neck pain were related to injury to the muscles and ligaments of the neck and upper back. He qualified this aspect of his opinion by emphasizing that he is not a specialist in these types of injuries.

[43]         More significantly, his opinion was that her numbness, tingling and pain radiating into all of her fingers but mainly the thumb, forefinger and middle finger of the right hand was “due to a combination of post traumatic TOS and likely a component of carpal tunnel syndrome.”…

[91]         Considering the unique circumstances of this case, but keeping in mind awards made for roughly comparable injuries and levels of pain and suffering, and adding an amount for the insufficiently documented yet legitimate claim for future loss of housekeeping capacity, I will award $87,500 under this heading.


Impact of Life Expectancy On Non-Pecuniary Damages?

January 29th, 2015

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing whether a Plaintiff’s life expectancy should influence the non-pecuniary damages awarded in a personal injury claim.

In today’s case (Mathroo v. Edge-Partington) the Plaintiff pedestrian was injured when struck by the Defendant’s vehicle.  The Defendant was found wholly at fault.  The Plaintiff suffered “a fracture to his right elbow, which required surgery to insert a plate and screws into his arm.“.  He had ongoing issues at the time of trial.

The Plaintiff was 83 years old and argued that the ‘golden years’ doctrine should apply in assessing damages.  The Defendant argued the opposite noting “that the limited remaining life expectancy of a person in Mr. Mathroo’s situation justifies a lower award than would otherwise result.“.

The Court was not comfortable with the Defendant’s submission and noted the following:

[95]         The golden years doctrine has some limited applicability here, in that Mr. Mathroo has experienced a decrease in his willingness to walk because of the effect of his injuries on his perceptions of his physical condition and his feelings of safety when walking, but I take the point made by Mr. Edge-Partington’s counsel that he was not involved in that many activities beforehand, other than going to the temple and gardening, so the curtailment of them has been more limited than in other cases cited on his behalf.

[96]         I do not feel comfortable relying on Olesik to reduce the non-pecuniary damages on the basis of Mr. Mathroo’s limited remaining life expectancy, as urged by Mr. Edge-Partington’s counsel. Its applicability on that issue has been questioned by other decisions of this Court. In Giles v. Attorney General of Canada, [1994] B.C.J. No. 3212 (S.C.) varied on other grounds (1996) 71 B.C.A.C. 319, Mr. Justice Fraser held that the principle described in Olesik and the golden years doctrine essentially balanced each other out, so that advanced age should not be a factor either way in arriving at an appropriate award. This view was adopted more recently inDuifhuis v. Bloom, 2013 BCSC 1180.

[98]         In all the circumstances, before dealing with whether an amount should be added to reflect a loss of Mr. Mathroo’s housekeeping capacity, I would make an award of non-pecuniary damages of $60,000.

 


$100,000 Non-Pecuniary Assessment for “Serious Facial Scars” Following Vehicle Collision

August 14th, 2014

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for facial scars following a tragic motor vehicle collision.

In today’s case (Boparai v. Boparai Estate) the Plaintiff was involved in a serious collision when he was 8.  He was a passenger in a vehicle which crashed and killed his mother and twin brother.  The Plaintiff suffered relatively minor soft tissue injuries and serious facial scarring.  In addressing non-pecuniary damages for these physical injuries Mr. Justice Schultes provided the following reasons:

[71]         To summarize the physical injuries and their consequences, at a vulnerable age Mr. Boparai received several serious facial scars from this accident. He then had to endure numerous uncomfortable procedures to reduce their visibility, without complete success.

[72]         The scars have had a significant influence on his life to this point. Although I agree that Dr. Rai has been able to improve them markedly from their original state (and there was an additional surgery planned to try to improve them further), the reality is that some degree of visible scarring will be permanent.

[73]         As significant as the scars themselves were, the self-consciousness and embarrassment that they caused in Mr. Boparai as he was growing up were equally damaging, making his schooling and social development much more difficult. I accept that he has tried to avoid social interaction because of these feelings, which were directly caused by the physical injuries.

[74]         That said, and without minimizing the continuing visibility of some of Mr. Boparai’s scars or the way that they make him feel about himself, I should say that to an objective observer they are not shocking or disturbing, and a distinction should be drawn between his situation and that of very severely disfigured accident victims, whose every moment in public is a source of compassion or discomfort for observers.

[75]         The soft-tissue injuries that he suffered, mainly to his right leg, were much less serious than the scarring. While there is no reason to doubt his assertion that the leg injury kept him out of sports for several years and out of physical education class until Grade 10, I think it would be unsafe to conclude, in the absence of any evidence of ongoing treatment, that it was a source of major discomfort after the last visit to his doctor in relation to it in July 2003, about four years on from the accident…

84]         Taking into account the relevant aspects of the injuries that I have described, and receiving guidance from the cases without following them slavishly, I award Mr. Boparai $100,000 in non-pecuniary damages for his soft-tissue injuries and facial scarring.

 


60/40 Liability Split After Pedestrian Steps in Front of Bus

July 29th, 2014

Corrected reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing fault between a pedestrian and a bus driver.

In today’s case (Whelan v. BC Transit) the Plaintiff pedestrian “was struck and had his foot run over by a BC Transit bus driven by the defendant Henry Kobbero, after Mr. Whelan had stepped onto the road to avoid some other pedestrians on the sidewalk.”

The bus was stopped shortly before the incident dropping off passengers and moved forward with the driver seeking to merge back with traffic.  Mr. Justice Schultes found both parties were to blame with the Plaintiff bearing the lion’s share of fault.  In reaching this decision the Court provided the following reasons:

[71]         On all the evidence I am satisfied that there was a period of time, of more than transitory length, during which the bus was travelling forward, still in the curb lane, but the focus of Mr. Kobbero’s attention was on his left mirror and the act of merging. It was during this period that Mr. Whelan stepped out on the road and, had Mr. Kobbero’s attention been prudently apportioned between merging and the curb lane in front of him, he could have seen and reacted to the pedestrian in time of avoid a collision. His focus on merging reflected an assumption, which I find was not reasonable in light of his overall awareness of the range of pedestrian hazards, that his forward check earlier in the process was sufficient. However briefly, I conclude that he did fall below his required standard of care.

[72]         As was obvious from my earlier comments in this discussion, Mr. Whelan was himself contributorily negligent in this accident. In addition to his disregard for the bus’s right of way and his needless decision to place himself onto the travelled portion of the roadway simply to avoid a moment’s pause in his progress, he made an assumption that was even less grounded in objective fact than Mr. Kobbero’s — that the driver checking his shoulder meant that the bus would have moved into the left lane before it reached the area where he stepped off the sidewalk…

75]         I would characterize Mr. Kobbero’s lapse of care in conduct as falling more towards the momentary or minor end of the spectrum than towards the extremely careless end. I have found that it was a decision to focus his attention fairly briefly on an admittedly more pressing task, based on the faulty assumption that there were no risks directly ahead of him. This was not the kind of lapse that was inevitably going to cause harm; it required a pedestrian to do one of the foolish things that Mr. Kobbero has been trained to expect in order for that to happen. I conclude that Mr. Kobbero should bear 40% of the liability for this accident.

[76]         Mr. Whelan’s actions conversely, demonstrate a higher degree of carelessness. As a pedestrian he was extremely vulnerable to the oncoming bus and there were no safe circumstances under which he could have stepped on the road with it still moving forward in that curb lane. It was in essence a gamble on things playing out as he assumed they would, with a large downside, fortunately only a small part of which materialized here, to being wrong. Accordingly I fix his liability at 60%.


$100,000 Non-Pecuniary Assessment for Lingering Post Concussive Symptoms

February 27th, 2014

Adding to this site’s archived caselaw addressing non pecuniary damages for collision related brain injuries, reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, addressing damages for lingering concussive issues.

In this week’s case (Fadai v. Cully) the Plaintiff was involved in a 2008 collision. He sustained soft tissue injuries along with a mild traumatic brain injury.  While many of his symptoms cleared prior to trial he continued to have issues with impulse control which was a consequence of his brain injury. In assessing non-pecuniary damages at $100,000 Mr. Justice Schultes provided the following reasons:

[202]     To summarize, I find that Mr. Fadai suffered soft tissue injuries to his head, neck, shoulder and left wrist as a result of the accident, including severe headaches, and that these injuries resolved by about a year after it.

[203]     I also find that he suffered a mild traumatic brain injury in the accident which led to difficulties with his short-term memory, which resolved by about two years after it. He also has some degree of impairment of his control over his impulses and anger as a result of the accident, which was ongoing at the time of trial. The extent of that impairment is captured by the incidents that were observed by his family and friends. Given the expert evidence that such problems resolve within two years if they are to resolve at all, I will proceed on the basis that the difficulty with self-regulation will be permanent…

209]     Obviously every case has its own unique factors that influence the amount awarded, but considering the helpful common themes of these authorities I would say that the physical injuries in the cases cited on behalf of Mr. Fadai were all more serious and enduring than his soft tissue injuries. This is also true of the cases cited on behalf of Mr. Cully, except for Gatzke, in which it appears that the duration and severity of the injuries were slightly lower. In making these comparisons, I have kept in mind that although his physical symptoms had largely resolved within a year or slightly more, Mr. Fadai’s headaches during at least the first six months were quite severe.

[210]     I would characterize the effects of the mild traumatic brain injuries in Gougen, McKinnon and Scoates as being somewhat more serious than Mr. Fadai’s, because I have found that in his case the component of short-term memory loss and concentration problems have largely resolved, and that his difficulty is now mainly with self-regulation.

[211]     Taking all of this into account, I conclude that an appropriate award for non-pecuniary damages is $100,000.


Trial Re-Opened to Prove Prior Inconsistent Statement

February 7th, 2014

Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, discussing the discretion to reopen a case prior to judgement to call new evidence.

In the recent case (Kostecki v. Li) the Plaintiff was injured in a collision and sued for damages.  In the course of the trial she was cross examined about statements attributed to her in a consultation letter from a treating neurologist which “can be seen as inconsistent with Ms. Grace’s evidence of the seriousness of the accident and of the persistence and seriousness of her ongoing symptoms.”

The Plaintiff did not adopt the statements contained in the letter.  After the close of the case the trial judge noted the limitation of such cross examination absent proof the statement was made.  The Defendant brought an application to re-open the case and call the doctor to prove the statement.  In allowing this request Mr. Justice Schultes provided the following reasons:

[18]         No judgment has been pronounced and only the plaintiff has made submissions. The cases demonstrate that the discretion is exercised much more readily prior to judgment.

[19]         The failure to call this witness originally was due to a simple mistake by counsel in failing to grasp the evidentiary value of Dr. Beckman’s report standing alone, if the plaintiff failed to adopt its relevant portions. The purpose of reopening would only be to remedy that error and to put the defendant in the position that he would have been in if it had not been made. It confers no additional benefit beyond this corrective purpose. It represents proof of statements with which the plaintiff has been confronted, and the only potential additional evidence will be any explanation by Dr. Beckman of his process of recording patient histories and any aspects of that process that might allow him to vouch for the accuracy of the statements he has recorded in his letter.

[20]         In this regard, as in this case, when it is the defendant who applies to reopen and the plaintiff has not called reply evidence, the additional defence evidence can simply be considered as a continuation of the defence case and is even less prejudicial than when a plaintiff seeks to reopen:  Mitsubishi Heavy Industries Ltd. v. Canadian National Railway Company, 2011 BCSC 1536, at para. 34.

[21]         In my view, prejudice to the plaintiff here is minimal or non‑existent. What she loses is the purely tactical benefit of a slip-up by opposing counsel. We obviously work in an adversarial system and hard knocks are inevitable, but my having to decide the critical issue of credibility with a piece of evidence that may be highly relevant to that assessment sitting on the sidelines only because of counsel error is indeed the stuff of which miscarriages of justice are made.

[22]         Accordingly, the application is allowed with respect to the evidence of Dr. Beckman only. His evidence in the reopening will be restricted to proof of those portions of his letter that were put to Ms. Grace. That obviously includes evidence going to the accuracy of what he has recorded, including his note‑taking and report‑writing practices.


11 Year Old Successfully Sued Following School Ground Horseplay

April 12th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with fault for a school-ground injury.

In this week’s case (Gu v. Frisen) the 11 year old plaintiff was injured in 2008 when she was carrying a friend, piggyback-style, during recess.  At the same time the defendant pushed the girls, with no intetion of ill-will but rather “to make the girls laugh”.  Unfortunately the Plaintiff fell over and broke her arm.

The Plaintiff sued the Defendant, his parents and the School District.  The Claims were all dismissed except the claim against the 11 year old defendant.  In finding him legally responsible for the injury Mr. Justice Schultes provided the following reasons:

[23]         I am satisfied that Liam did not put his mind to the risk before he jogged up behind Elizabeth and pushed her. The question is whether, objectively viewed, he should have.

[24]         He was 11 years old at the time of this incident. There was no evidence that he was of less than normal intelligence for his age. As to his experience, making the assumption most favourable to his position, which is that comparing him to children of the same “experience” is broad enough to include his maturity and impulsivity, I think that a child with those similar attributes would still have foreseen that, if he were running at a fast jog, even the gentle pushing from behind of another child who was being carried piggyback risked both the top and bottom person falling over and being injured in some way in the fall. It is a matter of the physical reaction of human bodies to the application of force — a kind of knowledge that is acquired by all children on the playground at a very young age.

[25]         The fact that the injury to Jacqueline turned out to be more serious than a child in Liam’s circumstances might have anticipated does not undermine liability. Madam Justice Bennett summarized the applicable law in Hussack v. Chilliwack School District No. 33, 2011 BCCA 258, at para. 71:

[71]      It is not necessary for the plaintiff to show that the precise injury or the full extent of the injury was reasonably foreseeable. What he must show is that the type or kind of injury was reasonably foreseeable:  Hughes v. Lord Advocate, [1963] UKHL 1; Jolley v. Sutton London Borough Council, [2000] UKHL 31; Ontario (Minister of Highways) v. Côté, [1976] 1 S.C.R. 595.

[26]         This mishap is unlike the rather freakish accidents in which the liability of older children and adolescents for negligence was denied, based on a lack of foreseeability, in McHale v. Watson (1966), 115 C.L.R. 199 (Aus. H.C.) (a thrown piece of welding rod ricocheting off a post) and Mullin v. Richards, [1998] 1 All E.R. 920 (C.A.) (a piece of a plastic ruler breaking off during play sword-fighting). In both cases, childish horseplay led to serious eye injuries, but the defendants’ original ill-advised actions set in motion further physical effects that the judges concluded could not have been anticipated.

[27]         This case, I have said, required only the rudimentary foresight that a person who is pushed from behind might fall over and in doing so get injured, something that was well within the capacities of a child in Liam’s situation.

[28]         As a result I find him liable for the accident


Advance Payment Order Used to Remedy "Harsh" Reality of Trial Adjournment

April 11th, 2013

A common occurrence at Trial Management Conferences is adjournment in circumstances where it is clear the time available for trial is insufficient.   Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, recognizing that this is a “serious penalty” and that in cases where the trial estimate when set was “not unreasonable” an advance payment order may be an appropriate remedy.

In this week’s case (Van Gils v. Grandmaison) the Plaintiff was involved in a 2008 collision. Liability was admitted.  The Plaintiff alleged he suffered from Thoracic Outlet Syndrome.  The Defendant disputed the severity of the claimed injuries.  The matter was set for an eight day trial but by the time of the Trial Management Conference it became clear this was insufficient.  Mr. Justice Schultes adjourned the trial and ordered an advance of damages. In finding this was an appropriate use of the Court’s discretion Mr. Justice Schultes provided the following comments:

[5]             It is common ground that the governing the authority is the decision of Mr. Justice Macfarlane in Serban v. Casselman (1995), 2 B.C.L.R. (3d) 316 (C.A.) leave to appeal ref’d [1995] S.C.C.A. No. 120.

[6]             The often-cited passage is at para. 11:

While such orders are often made when the adjournment was brought about through the fault of one party or where the conduct of the litigation demands such an order, the rule is not restricted to matters of that kind. It is obvious that an order for advance payments should only be made in special circumstances. Obviously such an order should not be made unless the judge who makes it is completely satisfied that there is no possibility that the assessment will be less than the amount of the advance payments.

[7]              I think that the current situation meets the requirement of “special circumstances”. This trial was adjourned at the direction of the Court, pursuant to the Supreme Court Civil Rules, because it would exceed the original estimate and the trial schedule could not absorb that excess.

[8]             Based on the material that I had at the trial management conference, I would not have been able to attribute any lack of care or diligence to either counsel for the increase in trial length since it was originally set. Mr. Van Gils’ counsel advised that he had set it for eight days in the specific anticipation that, if his estimate were to be exceeded slightly, the schedule can usually still accommodate a trial of up to ten days.

[9]             When the estimate grew to potentially exceed that upper limit, he was still engaged in pruning his witness list when the defendants concluded that it was appropriate to add further witnesses. Neither approach is unusual in the course of trial preparation and neither is deserving of criticism.

[10]         The penalty for an incorrect estimate is an extremely serious one: a court-compelled adjournment at the trial management conference if the schedule cannot accommodate the new time estimate.

[11]         While this might be an appropriate deterrent for counsel who give their original estimates carelessly or who grossly underestimate the time required, it falls harshly on litigants and counsel whose original estimate was not unreasonable and whose requirement for additional time is based on changing circumstances as the trial grows closer.