How Do You Restore A Trial Date if You Failed to File a Trial Certificate?
The BC Supreme Court Rules require a trial certificate to be filed at least 14 days before a scheduled trial date. ¬†Failure to do so requires the matter to be removed from the trial list ‘unless the court otherwise orders‘. ¬†Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, addressing the framework which permits the Court to restore a trial date after if it has been removed from the trial list. ¬†In short the Court relied on its power under Rule 12-1(9)(b) to “fix the date of a trial proceeding” to remedy the problem.
In this weeks case (Knowles v. Lan) the Plaintiff was injured in a collision. ¬†Prior to trial ICBC sought to have the matter adjourned but the application was dismissed. ¬†The Plaintiff’s lawyer then forgot to file a¬†trial¬†certificate and the matter was removed from the trial list. ¬†Mr. Justice Halfyard restored the trial date and in doing so provided the following reasons addressing the proper framework for such a remedy:
¬†¬†¬†¬†¬†¬†¬†¬†¬†The first question is whether Rule 12-4 (5) gives the court power to restore a proceeding to the trial list, after it has been removed for non-compliance with Rule 12-4 (2). I would say firstly that, because of the mandatory wording in Rule 12-4, the filing of at least one trial certificate is a necessary condition for a trial to proceed. As a consequence, I do not think the court could dispense with the filing of any trial certificate, but could only grant leave to file it less than 14 days before trial.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In my opinion, a party who seeks to have a trial restored to the trial list must first obtain leave to file a trial certificate ‚Äúlate,‚ÄĚ under Rule 22-4 (2). If such leave is granted, and a trial certificate is filed in accordance with the order, that filing would not have the effect of restoring the trial to the trial list from which it had been removed. Could the court make such a restoration order, under Rule 12-4 (5)?
¬†¬†¬†¬†¬†¬†¬†¬†¬†In my opinion, Rule 12-4 (5) should be read so as to include the additional underlined words, as follows:
(5)¬† Unless the court otherwise orders, if no party of record files a trial certificate¬†in accordance with sub-rule (2),¬†the trial must be removed from the trial list.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In my view, Rule 12-4 (5) is designed to prevent an action being removed from the trial list for failure to file a trial certificate as required by subrule (2). It does not state that, if a trial has been removed from the trial list, the court may restore that trial to the trial list. Nor do I think that such a power is implicit in that subrule. In order to preserve a trial date by invoking this Rule, I think the application and the order would have to be made before the 14 day deadline. That was not done here, and so this rule cannot be relied upon…
¬†¬†¬†¬†¬†¬†¬†¬†¬†It may be that Rule 1-3 provides inherent jurisdiction to make an order restoring this action to the trial list for March 4, 2013. But it seems to me that Rule 12-1 (9) provides specific authority to do this. Subrule (9)(b) states:
(9)¬† The court may
. . .
(b)¬†fix the date of trial of a proceeding,
. . .
¬†¬†¬†¬†¬†¬†¬†¬†¬†When this action was struck off the trial list, there was no longer any date scheduled for the trial. The subrule I have just referred to does, in my opinion, empower the court to fix a date for the trial of this proceeding which coincides with the previously – scheduled trial date of March 4, 2013. I would rely on that subrule in making the order to reinstate this action for trial on March 4, 2013.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Authority might also be found in Rule 22-7(2)(e), which states in relevant part as follows:
(2)¬† . . . ¬†if there has been a failure to comply with these . . . Rules, the court may
. . .
(e)¬†make any other order it considers will further the object of these . . . ¬†Rules.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In my opinion, the reasons I have outlined support the orders that I made on February 27, 2013.
Tags: bc injury law, Knowles v. Lan, Mr. Justice Halfyard, Rule 1, Rule 1-3, Rule 12, Rule 12-1, Rule 12-1(9), Rule 12-1(9)(b), Rule 12-4, Rule 12-4(2), Rule 12-4(5), Rule 22, Rule 22-4, Rule 22-4(2), Trial Certificate