ICBC Changing Counsel at “11th Hour” Not an “Emergent Circumstance” Justifying Short Leave

Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, dismissing short leave for three ‘last minute‘ applications.

In the recent case (Agelakis v. Xu) the Plaintiff was injured in a collision and sued for damages. One month before trial ICBC brought in a new defence lawyer.  Two weeks before trial that lawyer sought short leave for three applications, namely for document disclosure; a further examination for discovery of the plaintiff; and removal of the proceedings from fast track litigation.

The Court held that these applications may have been dismissed on the merits however short leave was simply not appropriate as these last minute request would unfairly cause ‘dramatic upheaval‘ to the Plaintiff’s trial preparation efforts.  In dismissing the request for short leave Master Muir provided the following reasons:

[5]            The plaintiff submits that this is a classic case of inattention by the defendants, although not necessarily by this defence counsel, to a motor vehicle accident action.

[6]            The plaintiff submits that short leave applications have historically been overused and they are extraordinarily disruptive to plaintiff’s counsel, particularly with a trial being 11 days away.

[7]            Plaintiff’s counsel referred me to the decision of Master Baker in O’Callaghan v. Hengsbach, 2017 BCSC 2182:

[17]      Such applications should be restricted to emergent circumstances and should not reward inefficiency, inattention to a particular case, or a lack of oversight. To abridge the time limits imposed by the Supreme Court Civil Rules is, presumably, to prejudice the other party who is, naturally, entitled to rely on timelines imposed by the Rules and to expect the opposing party to do likewise.

…

[21]      … In too many cases, in my view, the defence, either assuming that settlement is likely or simply by applying triage or prioritizing in busy offices with large caseloads, have not given due attention and focus in a timely way to the possible claims and damages of the plaintiff. Lawyers are extremely busy professionals. They have many cases other than the one specifically before the court. Every master and judge knows that. Still, that cannot be permitted to affect the other party’s right to due process and adherence to the rules unless clearly justified; it is the court’s function to prevent that.

[8]            I will just refer to one other case and that is the decision of Justice Kent in Forstved v. Kokabi, 2018 BCSC 111. His Lordship held:

[10]      Many of the documents that are now being demanded were not the subject matter of requests for additional documentation at the examinations for discovery. What has happened here is what occurs all too frequently in these personal injury cases; that is, the defendants tend to wait until the eve of trial before conducting follow-up discoveries and undertaking trial preparation work that could have and should have been done many months before. Absent exceptional circumstances, I am not prepared to grant applications of this sort brought on the eve of trial. It is far too late.

…

[17]      I recognize this oral ruling at the conclusion of hurried submissions is inelegant and perhaps even inarticulate. The theme I am attempting to express is that last-minute scrambling and last-minute demands for extensive production of additional documents will not be endorsed by the court. Trial time is a precious commodity and efficiency is required for the system to work effectively and in a manner that is fair to all participants. Parties should approach preparation for trial and any related applications to compel additional production much earlier than was evidently done in this particular case.

[9]            I agree with the plaintiff that the failure to address this case properly by the defendants has resulted in these three last-minute applications for short leave when the plaintiff is obviously in the midst of trial preparation. The prejudice to the plaintiff would be significant. If the plaintiff was not successful in defeating these applications, it would have the result of being a dramatic upheaval to the trial preparation effort. Given the sentiments expressed by Kent J., there is some probability that the defendants would not be successful on these of applications this close to trial in any event.

[10]         I am satisfied that retainer of counsel at the “eleventh hour” is not an emergent circumstance and the applications for short leave, therefore, should be denied.

[11]         The plaintiff will have her costs in the cause of this application.