No Adjournment For Unilaterally Scheduled Trial During Defence Counsels Possible Vacation Time

Reasons for judgement were published today dismissing an adjournment application for a trial that was unilaterally set down during a time that opposing counsel kept free for a possible vacation.  In part the Court noted that the vacation plans may very well be off due to the Covid-19 pandemic.

In today’s case (Henderson v. Fisher) the Plaintiff claimed damages for injuries sustained in a collision.  The matter was set for trial on January, 2020 but this was adjourned because no judge was available.  The parties could not agree on a date to reset the trial for.  The Plaintiff unilaterally set the matter down for September, 2020, a month that the Defence lawyer booked off “for a personal vacation out of the country“.  An application to adjourn was dismissed with the Court noting the vacation plans may very well be thwarted due to Covid19.

In dismissing the application Mr. Justice Branch provided the following reasons:

[17]       I note that the defendant’s counsel acknowledges that his calendar has now changed because of the COVID-19 court closures. However, there were no particulars provided as to what additional windows may now have opened or closed as a result of the present crisis. Such particulars may have been helpful in assessing how long the further delay would be if the adjournment were granted.

[18]       In terms of the potential prejudice created by the defendant’s counsel’s earlier established holiday plans, I find that I can take judicial notice that the ability of Canadians to travel out of the country is now largely restricted as a result of the COVID-19 pandemic: Dias v. Gagnon, 2020 ONSC 1716 at para. 28. The defendant’s counsel does not disclose whether any deposits he paid at the time of his vacation booking have now become refundable as a result of COVID-19 or, more importantly, whether he is still able and planning to travel at the relevant time.

[19]       Even assuming the defendant’s counsel is still intent and able to travel, and accepting the relevance of counsel choice to the analysis, I note that this is a relatively simple motor vehicle matter. The defendant’s counsel works at a firm with a large insurance defence practice and multiple lawyers. These factors could ease the prejudice created by any potential need for a transfer of file responsibilities.

[20]       In terms of prejudice to the plaintiff, it must be acknowledged that the plaintiff has failed to provide direct evidence of financial hardship requiring an early trial, the type of evidence which was given weight in Thibodeau (see paras. 18 and 40). As to the importance of such evidence, see also Raniga v Poirier, 2020 BCSC 780 at para. 14. That said, I accept that the affidavit restrictions imposed under COVID-19 Notice #14 may have been a factor in the weaknesses in the evidentiary record provided by both sides. Further, some prejudice to the plaintiff from delay in having their matter heard is obvious, even in the absence of affidavit material: Strata Plan VR 2000 at para. 26.

[21]       In terms of the historical conduct of this proceeding, the defendant suggests that the present trial date was secured by the plaintiff for “paltry tactical advantage”. With respect, I see no evidence of such an improper motivation. The defendant suggests that evidence of such an intent can be derived from the triple-booking plaintiff’s counsel has engaged in. However, one could also view this as a simple and reasonable recognition of the pre-trial settlement rate of motor vehicle matters. Indeed, in email correspondence dated February 3, 2020, the defendant’s counsel himself acknowledged that “commencing April 2020 [he was] generally double or triple-booked until December 2020.”

[22]       Looking more broadly at the historical conduct of the action, while the level of cooperation between counsel in securing a prompt and convenient trial date did not reach the level that the Court would prefer to see, that failure cannot be laid solely at the feet of plaintiff’s counsel. Defence counsel’s long period of unavailability certainly contributed to plaintiff’s counsel’s frustration.

[23]       The Court is left in a position where the weight on both sides of the scales is quite light, given the absence of meaningful evidence of substantial prejudice to either side. To the extent that the defendant is relying on the threat to their right to retain counsel of their choice, the fact is that the threat is really to the need for the defendant’s counsel to potentially abandon now speculative September 2020 travel plans. This tilts the balance somewhat in the plaintiff’s favour, particularly when coupled with the necessary consideration of the broader interests of the judicial system. As the court stated in Strata Plan VR 2000 at para. 26: “[A]n adjournment of any trial, but particularly a long trial, is prejudicial to the judicial system.” This case was already set for trial once and the plaintiff should not have to wait more than a year for a second attempt at having her matter heard.

[24]       Based on the analysis above, I conclude that the trial should not be adjourned. If a change in counsel is required, the defendant will be at liberty to reapply based on any changed availability conditions. The plaintiff shall have their costs of this application in the cause.