Short Leave Application Denied in Case of "Manufactured Urgency"


Rule 8-5 of the BC Supreme Court Rules allows an application to be brought on short notice in cases of “urgency”.
A transcript of proceedings from the BC Supreme Court, Nanaimo Registry, was recently shared with me denying a short leave application in a case of “manufactured urgency”.
In the recent case (Thuler v. Garcia) the Plaintiff was injured in a motor vehicle collision.  The Plaintiff exchanged various expert reports in compliance with the timelines set out in the Rules of Court.  The Defendant requested that the Plaintiff attend a Defence Medical Exam with an orthopaedic surgeon to obtain a responsive report.  The Plaintiff refused to attend unless compelled by the Court.
The Defendant brought a short leave application two days before the scheduled Defence Medical Exam seeking permission to bring the main application that same day.  The Plaintiff opposed short leave being granted arguing  “the reason that I say that this is manufactured urgency is that there is six weeks in order to have a response report prepared.  If it is the case that the plaintiff is eventually ordered to attend that independent medical exam, then there is no reason that this couldn’t be brought within the normal timelines
When pressed on the point of urgency the defendant countered that “It’s urgent in the sense that we would like to just get it done.”
Mr. Justice Silverman agreed no urgency existed and dismissed the short leave application.  In doing so the Court provided the following comments to the Defendant:
All right.  I’m against you on that…In my view, it’s not urgent.  You’ve got enough time to do it by giving appropriate notice.  The matter can be heard on that basis.  It may well be you’ll still be entitled to your order if the plaintiff is not willing to go, but in my view, it’s not urgent to require short leave so that I am denying that application“.
To my knowledge this Excerpt of Proceedings is not publicly available but as always I am happy to provide a copy to anyone who contacts me and requests one.

bc injury law, Mr. Justice Silverman, Rule 8, Rule 8-5, rule 8-5(1), Short Leave Applications, Thuler v. Garcia, Urgency

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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