Late Examinations for Discovery and the New BC Supreme Court Rules

Reasons for judgement were recently released by the BC Supreme Court, New Westminster Registry, discussing the right to conduct an examination for discovery in the two weeks proceeding trial under the New Civil Rules.
In today’s case (Lewis v. Lewis) the Plaintiff sued for damages as a result of injuries sustained in a motor vehicle collision.  ICBC was a statutory third party in the lawsuit and failed to exercise their right to examine the Plaintiff for discovery in a timely fashion.  ICBC served the Plaintiff with an appointment to attend a discovery 10 days before trial.  The Plaintiff objected arguing, amongst other things, that discoveries are not permitted within the two weeks prior to trial.  ICBC applied for an order compelling the Plaintiff to attend.
In support of their application ICBC argued that the prohibition preventing discoveries in the two weeks preceding trial no longer exists in the new BC Supreme Court Civil Rules.   Mr. Justice Harvey, while not directly addressing this issue, dismissed ICBC’s motion and in doing so made it clear that the rules of Court operate so as to make it difficult for a party to be permitted to conduct a late discovery.  Mr. Justice Harvey provided the following reasons:
[7]  In response to (ICBC’s argument) Mr. Parsons, on behalf of the plaintiff, says that a clear reading of Rule 12-4(3) makes clear that the new rules still contemplate a prohibition against any step, including an examination for discovery, within the period prescribed in Rule 12-4(2).
[8] Rule 12-4(2) reads
A trial certificate must be filed at least 14 days before but not more than 28 days before the scheduled trial date.
[9] I am not persuaded in these circumstances I need to decide that very interesting issue, because I have also been referred to Rule 12-4(6) which says that:
A party who fails to file a trial certificate under subrule (1) is not, without leave of the court, entitled to make further applications.
[10]  The third party has not filed a trial certificate nor could they have given the requirement to have conpleted examinations for discovery as part of the requirement of “readiness”.  Now, 10 days before trial, it is too late to do so.
[11]  Counsel for the third party see this as an excuse allowing them to, at this late date, seek the Court’s leave for the application to compel the plaintiff’s attendance at the proposed discovery.
[12]  That, with respect, is disingenuous.  It has been open to the third party to conduct its discovery since the time it became a party.  That was in October of 2008.
[13]  Instead, the third party has chosen to rely on the defendant to take the lead in this litigation…
[14]  The third party has, at the last moment, unilaterally set down an examination for discovery over the objections of counsel for the plaintiff as to timing.  Counsel is busy with trial preparation for a 15 day jury trial.
[15]  The third party failed to provide conduct money and failed to file a trial certificate in accordance with the rules…
[16]  Contrary to the Rules, leave was not sought to bring the application when short leave was sought before the Master who heard the application.  The application for short leave was brought without notice and counsel for the plaintiff was unable to draw to the Court’s attention the failure of the third party to (1) require leave for their application and (2) failure to provide conduct money to the plaintiff.
[17]  In those circumstances, I am not prepared to gran the third party the leave required to bring this motion.