ICBC Trial Preparation Neglect “Deserves Sanction and Rebuke”
The latest in a recent line of cases critical of ICBC litigation tactics was published today by the BC Supreme Court, Vancouver Registry, finding that ICBC’s neglect of timely trial preparation was deserving “sanction and rebuke”.
In today’s case (Diaz v. Nowack) the Plaintiff was injured in a collision and sued for damages. Fault was admitted by the Defendants and the matter was set for a 10 day trial. The Defendants failed to list all of their proposed witnesses by the deadline imposed at a Trial Management Conference and did not provide certain “will say” statements for some witnesses by the deadline.
The Plaintiff sought to exclude the late evidence but the Court found a trial adjournment was a more appropriate remedy. The Court found this was still prejudicial to the Plaintiff and ordered that the ICBC insured Defendants pay the Plaintiff “costs thrown away payable forthwith”
The reason provided for the late evidence was because “instructing client did not authorize work to mobilize witnesses until close to the commencement of the trial and only after mediation was unsuccessful“. In finding this unacceptable and deserving of rebuke Madam Justice Choi provided the following critical comments:
I accept the plaintiff’s argument that she will be prejudiced if the witnesses are allowed to testify at this time because she will not have time to adequately prepare.
4) The plaintiff is prejudiced by an adjournment as well, however, due to the time wasted in preparing for a second trial and by being delayed in an adjudication of her case. For this reason, I am awarding her costs thrown away, payable forthwith.
5) The defendants chose only to commence witness preparation at the last minute, only days before the TMC order deadline. This is a practice that deserves sanction and rebuke. Trial management conferences, the orders made there, and the deadlines set out in the Supreme Court Civil Rules are all designed to provide parties with time to prepare and to consider the strengths and weaknesses of their case, so a trial can proceed in an efficient manner.