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

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 13, Civil Procedure. 43 Comments on Advance Payment Order Used to Remedy "Harsh" Reality of Trial Adjournment

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.

Advance Payment Orders and Adjournment Applications

Written by admin on . Posted in BCSC Civil Rule 13, Uncategorized. 52 Comments on Advance Payment Orders and Adjournment Applications

In 2009 the BC Court of Appeal made it clear that the BC Supreme Court has no authority to make a stand-alone order for an advance payment of damages and any advance payment order must piggy-back another order relying on Rule 13-1(19).
When faced with an order adjourning an injury trial where liability is admitted that is a good time to seek an advance payment order.  If, for whatever reason such an order cannot be spoken to at the time of adjournment, it is a good practice to seek leave that as part of the adjournment a plaintiff has permission to bring an advance payment application at a later time.  Such a practice was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Estey v. Bateson) the Plaintiff was injured in a 2008 collision.  The matter was set down for trial but was ultimately adjourned.  At the time the Plaintiff had the foresight to seek an order granting leave to apply for an advance as a term of the adjournment     Ultimately a $15,000 advance was ordered and the Court provided the following summary of the legal principles to be considered:
1]             The plaintiff applies for an advance of $35,000 on his claim for damages relating to a motor vehicle accident which occurred on August 16, 2008 and for costs thrown away as a result of the adjournment.
[2]             Liability has been admitted and the trial, which was set to commence on February 13, 2012 for 10 days, was adjourned on that date by Fitzpatrick J.; at the time of the adjournment leave was granted to the plaintiff to apply for an advance and for costs thrown away…
[5]             Master Keighley considered the issue of the jurisdiction to order an advance other than as a term of an adjournment in the case of Cikojevic v. Timm, 2007 BCSC 1689 and found that such jurisdiction does exist. In addition, I rely upon the order of Fitzpatrick J. which expressly granted the plaintiff liberty to make such application in this particular case.
[6]             The court has a discretionary authority to order that an advance be paid but such order should only be made in special circumstances and only if the judge or master is satisfied that there is no possibility that the ultimate award of damages will be less than the amount of the advance: see Serban v. Casselman, [1995] B.C.J. No. 254 (B.C.C.A.) and Cikojevic v. Timm, 2008 BCSC 74. Two of the considerations which the court must address are the length of time which will pass until trial and whether the delay will cause the plaintiff financial hardship: see O’Ruairc v. Pelletier, 2002 BCSC 1107 and Cikojevic.

From Trial To Judgement: How Long Does It Take in an ICBC Claim?

Written by admin on . Posted in BCSC Civil Rule 13, Jury Trials, Tort Reform, Uncategorized. 53 Comments on From Trial To Judgement: How Long Does It Take in an ICBC Claim?


Unless you work in the civil justice system or have recently accessed the Courts to resolve a civil dispute it may come as a surprise to learn that usually a verdict is not rendered by a trial judge until some time after the close of the case.  So how long does it take?  Other than giving the unsatisfactory answer of “it varies” I’ve never had any concrete data to point to in addressing this question until now.
The latest issue of the Trial Lawyer’s Association of BC’s magazine “the Verdict” (Issue # 130) sheds some light on this topic with hard data.
Two BC lawyers (Thomas Harding and Derek Miura) spent some time analyzing information obtained from ICBC through Freedom of Information requests.  With this information in hand they authored an article addressing the commonly held belief that judge alone trials are less costly and time consuming than trial by jury.  Interestingly their study concludes that the opposite of this appears to be true when factoring in the time and cost associated with reserved reasons for judgement.
Their statistical analysis shows how long it takes judgement to be delivered after the average Judge alone ICBC trial in BC Supreme Court.  The answer is a ratio of 29 days for every day of hearing.  In other words, on average a one day trial would have judgement pronounced 29 days after trial.  A 5 day trial would take 5 times longer (145 days) and the average 10 day trial would take 290 days for judgement.
In addition to shedding light on this topic, the recent installment of the Verdict is worth reviewing in full for its in-depth analysis of the current state of the law relating to civil jury trials in BC.  It is available free on-line for TLABC members and can be subscribed to by the public at large for a fee.

$50,000 Damage Advance Ordered As Term of Adjournment of Personal Injury Claim

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 13, ICBC Wrist Injury Cases, Uncategorized.


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the Court’s power to order a damage advance to a Plaintiff as a term of an adjournment order.
In last week’s case (Wood Atkinson v. Murphy) the Plaintiff suffered bilateral wrist fractures in a 2006 collision.  The Defendant admitted full fault for the crash.  The matter was set for trial but ultimately had to be adjourned due to difficulties in obtaining the Plaintiff’s employment records.  As a term of adjournment the Court ordered that the Defendant pay the Plaintiff a $50,000 advance.  In doing so Associate Chief Justice MacKenzie provided the following reasons:

[42] Serban v. Casselman (1995), 2 B.C.L.R. (3d) 316 (C.A.) confirmed the jurisdiction of this Court to order advance payments on damages under former Rule 1(12) (now Rule 13-1(19)) as a term of an adjournment of a trial. The advance must be just in all of the circumstances, and the judge making the order must be completely satisfied that there is no possibility the final assessment of damages would be less than the amount of the advance payments. There is no requirement that the cause of the adjournment be the fault of one party, see Serban, at paras. 9-11.

[43] Further guidance is found in the following excerpt from Master Barber’s decision in Tieu v. Jaeger et al., 2003 BCSC 906, at para. 17:

With liability not being in issue, the plaintiff should be put in funds at the earliest possible time. That is a reasonable thing for the plaintiff to ask for. The only thing that is stopping her from getting this money is not a determination of whether she is entitled to it, but as to how much. When it has been conceded that the sum of $20,000 is probably going to be less than or at least one-half of what the future amount she will obtain of $40,000 plus is, I can see no reason not to give her at least $20,000 at this time. To keep her out of pocket means that, especially when need is shown, as it has been in her affidavit, would be a refusal of justice.

[44] In this case, liability has been admitted, and it will be almost seven years from the date of the accident to the conclusion of the trial. The plaintiff is employed, but has problems with chronic pain in her wrists. Counsel are in agreement that an advance is justified in these circumstances.  The remaining issue is the amount that would be just in the circumstances, ensuring that it not be in excess of the potential award for damages at trial.

[45] In my view, an advance of $50,000 is appropriate in all the circumstances.

Advance Payment Orders and Your ICBC Injury Claim

Written by admin on . Posted in BCSC Civil Rule 13. 82 Comments on Advance Payment Orders and Your ICBC Injury Claim


While Defendants in lawsuits are generally not obliged to make any advance payments to a Plaintiff, in unique circumstances the BC Supreme Court can compel a Defendant to pay an advance.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this judicial power and the circumstances when it should be exercised.
In last week’s case (Gill v. West) the Plaintiff was involved in 10 motor vehicle accidents for which he was suing for damages.  Liability was admitted in some of the actions.  The Plaintiff alleged that the various crashes caused indivisible injuries and he was disabled as a result.  He applied for various orders including an order that he be advanced “$150,000 forthwith on account of damages“.   Madam Justice Wedge dismissed the Plaintiff’s request and in doing so provided the following comments on this area of the law:

[8] The plaintiff is frank to admit that it seeks the order concerning liability in the one action, and the order to have the fourth action heard with the other three, for the express purpose of obtaining the advance payment order. The plaintiff acknowledged he cannot obtain an order for advance payment of damages unless it is granted in conjunction with another order.

[9] In the case of Lines v. Gordon (2009), 90 B.C.L.R. (4th) 52 (C.A.), our Court of Appeal made it clear that the Rules of Court do not give this Court jurisdiction to make a stand alone order for an advance payment of damages, nor does this Court have inherent jurisdiction to do so.

[10] In the Lines decision, the Court referred to the wording of then Rule 1(12), now Rule 13-1(19), which states as follows:  “When making an order under these Rules, the court may impose terms and conditions and give directions as it thinks just.”  Based on that wording — and specifically the words “when making an order under these Rules,” — the Court in Lines stated that there must be a temporal connection between an order for an advance payment and another order…

[17] I will now turn to the law governing this application. While Lines v. Gordon states that there must be a temporal connection between the order for advance payment of damages and the granting of another order, temporal proximity is only one factor. More broadly, the order for advance payment must be a just one in all of the circumstances:  Serban v. Casselman (1995), 2 B.C.L.R. (3d) 316 (C.A.).

[18] The question is always whether the circumstances of the primary order, in conjunction with which the advance payment order is sought, are sufficiently compelling to justify an advance payment of damages. The authorities make clear that a payment of damages in advance of trial is only to be made in exceptional circumstances arising from the making of the primary order. For example, where the defendant applies for an adjournment of a personal injury trial and the plaintiff’s circumstances are financially tenuous, it may be just in the circumstances to order an advance payment of damages in conjunction with the order for an adjournment. However, such an advance payment order will not be made unless the judge is completely satisfied there is no possibility the assessment of damages at trial will be less than the amount of the advance payment:  Serban v. Casselman. Further, the court will exercise its discretion to order an advance payment only where liability is not an issue:  Andruschak v. Helina (1993), 89 B.C.L.R. (2d) 320 (S.C.); Wilkinson v. Martin, 2010 BCSC 113.

[19] In the present case, there is no substantive connection between the orders sought and the order for advance payment. The trial was recently adjourned, but that was at the behest of the plaintiff, not the defendant. The application for an order that the fourth action be heard with the other three was not necessary, as the defendants consented to the order before the application was brought. I note as well that the adding of the fourth action did not necessitate the adjournment of the trial.

[20] Further, the application for the finding of liability in one action is not of itself a proper basis for an advance payment order. There is nothing in the circumstances of a formal finding of liability in the one action that would make an order for an advance payment just or necessary in the circumstances of this case. In short, there is simply no substantive trigger for an advance payment.

[21] In addition, with seven of the ten defendants denying liability, I am not persuaded it would be just in the circumstances to order that the defendants in all actions be jointly and severally liable for the advance payment of damages. Whether there ought to be joint and several liability on the part of the defendants is an issue that must be determined at trial and should not be determined on an application for advance payment.

[22] For all of these reasons, and despite the able and forceful submissions of plaintiff’s counsel, the plaintiff has not satisfied me that the orders sought ought to be granted, with the exception of the first order that all four actions be heard together, which will go by consent. The application for the remaining orders is dismissed.

Compelled Independent Medical Exams and "Consent"

Written by admin on . Posted in BCSC Civil Rule 13, BCSC Civil Rule 7, independent medical exams, Uncategorized.


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing a much debated topic; can a Plaintiff be forced to sign a ‘consent‘ document when compelled to attend an independent medical exam under the Rules of Court.  In short the Court held that this was possible.
In this week’s case (Kalaora v. Gordon) the Plaintiff was injured in a motor vehicle collision and sued for damages.  In the course of the lawsuit the Plaintiff agreed to attend a defence medical exam.  At the appointment the physician asked the Plaintiff to sign a consent form authorizing the physician to proceed with the medical examination.  The Plaintiff refused to sign this.  The Defendant brought an application to compel this document to be signed.  In granting the application Madam Justice Hyslop provided the following reasons:

[79] Rule 13-1(19) of the Supreme Court Civil Rules provides assistance in this matter:

Orders on terms and conditions

(19) When making an order under these Supreme Court Civil Rules, the court may impose terms and conditions and give directions it considers will further the object of these Supreme Court Civil Rules.

[80] In Nikolic, Mr. Justice Williams stated that Rule 1(12) (the former Rule)

grants the court wide discretionary powers, in the making of orders, to impose terms and conditions and give directions as its thinks just. Read collectively [he is referring to the then document rules], a master or judge of this Court has the jurisdiction to create the mechanisms by which relevant non-privileged documents in a litigant’s “power” will be produced, including the jurisdiction to order him or her to execute the necessary documentation allowing a record-holder, whether residing in or outside British Columbia, to effect the release of those documents.

Rule 13-1(19) together with Rule 7-6(1), (the medical examination rule) read together, permit the court to order that the plaintiff to sign an authorization.

[81] By refusing to sign a consent or give a verbal agreement, Dr. Smith is open to charges of assault and battery. To insist that the defendant find another psychiatrist to pursue the medical examination without the consent of the plaintiff is unlikely.

[82] When plaintiff’s counsel consented to the medical examination of Mr. Kalaora by Dr. Smith, and Mr. Kalaora appeared at Dr. Smith’s office as scheduled, it certainly could be inferred that Mr. Kalaora agreed to the medical examination. However, when he refused to sign the consent or consent verbally, he withdrew that consent.

[83] Based on the case law, the Supreme Court Civil Rules and their purpose, the underlying need for full disclosure, the court can order a litigant to sign a consent or authorization.

[84] The plaintiff made it clear that they are agreeable to attending a medical examination with Dr. Smith. I order that the plaintiff attend a medical examination with Dr. Smith at a time and place as agreed. I order that the plaintiff sign an authorization or consent in the exact terms as sought by Dr. Smith for the original medical examination which did not proceed.

For two recent case summaries further discussing the Court’s ability to order a Plaintiff to sign authorizations/waivers you can click here and here.  From my perspective there appears to be some inconsistency in the authorities addressing the power of the BC Supreme Court to order a Plaintiff to sign an authorization and clarification from the BC Court of Appeal or by way of Rules Amendment would be helpful.

Can A Litigation Guardian Be Ordered to Attend an Independent Medical Exam?

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 13, BCSC Civil Rule 20, BCSC Civil Rule 7, independent medical exams, Uncategorized. 100 Comments on Can A Litigation Guardian Be Ordered to Attend an Independent Medical Exam?


(UPDATE:  Please note Leave to Appeal the Below Decision was granted by the BCCA on January 25, 2011)
When a mentally incompetent person brings a lawsuit in BC they must do so through a litigation guardian or a committee.  Generally, when personal injuries are the subject of a lawsuit, the Defendant is entitled to have the Plaintiff attend an ‘independent’ medical exam.  What about the litigation guardian?  Can they be ordered to attend an independent medical exam?  The BC Supreme Court Civil Rules are silent on this point however, reasons for judgement were released today considering this question using the Court’s ‘inherent jurisdiction’.
In today’s case (Bishop v. Minichiello) the Plaintiff was injured in a 2005 motor vehicle collision.  He was an infant at the time and brought the lawsuit by way of litigation guardian.  The Plaintiff became an adult prior to the lawsuit resolving.  Normally, when this occurs, the Plaintiff files an affidavit and overtakes the lawsuit without the litigation guardian.  In today’s case the Plaintiff did not do this apparently because his injuries may have rendered him “unable to appreciate the extent of his own injuries and unable to effectively conduct the litigation on his own behalf.”.
The Defendant brought a motion that both the Plaintiff and his litigation guardian attend a series of medical exams.  The Plaintiff opposed arguing that the Rule authorizing the Court to compel a Plaintiff to attend an Independent Medical Exam does not empower a Court to extend the order to a litigation guardian.  Mr. Justice McEwan noted that while this was true it could be remedied by resorting to the Court’s inherent jurisdiction.  In granting the application the Court noted as follows:
[12] The defendant submits that although Rule 7-6 (1)-(3) makes no specific provision for a person other than the party to be examined to attend and answer questions, Wong (guardian ad litem) v. Wong [2006] B.C.J. No. 3123 (C.A.) established that the court may, in the interests of justice make ancillary orders to give effect to the purpose of the Rules, found in Rule 1(5) [now Rule 1-3]. In Wong, the question was whether the court could order a plaintiff to video tape an examination…

[13]         Rule 20-2 reads:

(3)        Unless a rule otherwise provides, anything that is required or authorized by these Supreme Court Civil Rules to be done by or invoked against a party under disability must:

(b)        be invoked against the party by invoking the same against the party’s litigation guardian.

[14]         Rule 13-1 reads:

(19)      When making an order under these Supreme Court Civil Rules, the court may impose terms and conditions and give directions it considers will further the object of these Supreme Court Civil Rules.

[15]         On the question of inherent jurisdiction I think the characterization found in R & J Siever Holdings Ltd. v. Moldenhauer 2008 BCCA 59, is most apt:

In addition to the powers conferred by the Rules of Court, the Supreme Court of British Columbia, as a superior court of record, has inherent jurisdiction to regulate its practice and procedures so as to prevent abuses of process and miscarriages of justice: see I.H. Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Leg. Prob. 23 at 23-25. As the author said, at 25,

The inherent jurisdiction of the court may be exercised in any given case, notwithstanding that there are Rules of Court governing the circumstances of such case. The powers conferred by the Rules of Court are, generally speaking, additional to, and not in substitution of, powers arising out of the inherent jurisdiction of the court. The two heads of powers are generally cumulative, and not mutually exclusive, so that in any given case, the court is able to proceed under either or both heads of jurisdiction.

[16]         The Rules do not, properly speaking, confer jurisdiction. To the extent that they reflect a consensus of the Judiciary (and the Bar) as to the presumptions, or expectations, or shifts in onus that will contribute to the just and expedient conduct of litigation, they are useful in bringing predictability and stability to civil procedure. To the extent that they do not reflect such a consensus, they cannot be regarded as mandatory impediments to doing the right thing in any particular case.

[17]         The silence of Rule 7-6 on the question of ordering the litigation guardian to attend an independent medical examination, does not, in and of itself, preclude the making of such an order, if it otherwise makes sense to do so in order to advance the speedy, just and inexpensive determination of the proceeding on its merits.

[18]         Whether such an order is appropriate requires the court to weigh the plaintiff’s objection against the defendant’s rationale for the request…

[20]         The plaintiff’s objection to the attendance of the litigation guardian is primarily that a conversation between the litigation guardian and the examining physician creates a form of statement that is not controlled within the process and that might well lead to conflict or confusion later, if the guardian and the Doctor do not agree as to what was said.

[21]         The defendant’s point is, primarily, that in a case where the defence is guessing as to the mental status of the plaintiff, it would be prudent to have the person who knows him best, and who is also the litigation guardian, available to answer questions about his condition, especially where it is suggested that, among the effects of the injuries suffered in the accident, is a lack of insight or appreciation on Brandon Bishop’s part of the harm that has occurred.

[22]         In Tsantilas (Litigation Guardian) v. Johnson, Cranbrook Registry #18128 (20100211) Melnick, J. made a similar order in a case involving both counsel who appear in this proceeding. In what I gather to be a case of an under-age person, the court ordered the attendance of the litigation guardian at an assessment…

[23]         I think that as long as the case continues to be conducted by Charlotte Bishop as litigation guardian, the implication that, for reasons related to his injuries Brandon Bishop is unable to conduct the litigation will remain, along with the implication that talking to him will not yield the whole story. The plaintiff’s concerns about possible confusion do not outweigh the defendant’s interest in the appointed examiners getting accurate and complete information. Accordingly, Charlotte Bishop, as litigation guardian, must attend and answer the questions posed by the examiners as they require.