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:
Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, granting a trial adjournment after a plaintiff failed to obtain needed medico-legal evidence.
In today’s case (Raniga v. Poirier) the Plaintiff was involved in a 2015 collision. The Defendant admitted fault. As the trial neared plaintiff’s counsel realizes they failed to obtain medico-legal evidence and could not in time for trial. The Defendant would not consent to adjournment but the court granted the requested despite the ‘comedy of errors‘ creating the situation. Despite the court being critical of the evidence and circumstances presented in favour of the request one of the key reasons in granting it was the failure of the Defendant to point to any real prejudice who simply relied on an affidavit of an administrative assistant at the defence firm who had “no personal knowledge of the matters set out in her affidavit“.
In declining to award the Defendant any costs the Court went so far as to say that despite the shortcomings of the circumstances leading to the request “It should have been obvious from the outset that an adjournment would be granted.”
In granting the adjournment Mr. Justice Kent provided the following reasons:
Reasons for judgement were published today by the BC Court of Appeal finding that ‘costs thrown away’ should ordinarily be ordered against a party obtaining a late trial adjournment.
In today’s case (Bolin v. Lylick) the Plaintiff sued for damages from personal injuries. 6 weeks prior to trial she successfully applied to adjourn it after having switched lawyers. The Court of Appeal noted there was nothing wrong with this however found that the adjournment was prejudicial to the Defendants and this should have been remedied with an order of costs thrown away. In discussing this norm the BC Court of Appeal provided the following reasons:  In these circumstances, there is no apparent reason to depart from the usual approach to costs in circumstances of a late adjournment; in other words, there is no apparent reason not to relieve the defendants from the prejudice of the late adjournment by an award of costs thrown away. It is to be remembered that even though the judge did not attribute fault to the plaintiff in the adjournment application, in asking for an adjournment the plaintiff was asking for an indulgence from the court that had adverse consequences for the defendants. I would add to the order made for the adjournment a term that the defendants are entitled to their costs of trial preparation thrown away. I would not define the degree of such wasted costs in the circumstances of this case as was done, for example in Dhillon v. Foster, 2004 BCSC 1782, to which we have been referred, and I note further, that what fits within the waste captured by the term “costs thrown away” is properly a matter for the trial court’s determination.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, granting an adjournment application in the face of uncertain medical evidence addressing prognosis.
In today’s case (Gee v. Basra) the Plaintiff was injured in a 2011 collision for whcih the Defendant accepted liability. The Plaintiff had chronic headaches and the Plaintiff’s physicain was uncertain as to her prognosis noting that a course of Botox injections may prove helpful with the following evidence –
Jodene [the plaintiff] is now four years post injury and has fully participated in the range of therapy offered to her. She continues to experience significant headache, which interferes with her ability to perform at work, at home with household duties, and fully participate in social activities. Headache which is resistant to therapy after such a prolonged period of time has a low probability of recovery, but I feel I could not fully comment on prognosis until she has had a trial of Botox injections. I would recommend Botox, 200 units, every three months for a minimum of three cycles following the pre-empt Chase The Pain [sic] protocol.
The Plaintiff sought an adjournment on the basis of this evidence with the Defendant opposing noting the trial was set to commence in one week. Master McDiarmid granted the adjournment noting that while the application was brought very late in the process an uncertain prognosis could lead to an unfair trial. In granting the application the Court provided the following reasons:
 I conclude that this is not a situation similar to Sidoroff. All questions affecting the justice of the case will not be before the trial judge. He will not know whether Botox is effective to ameliorate the headaches. The judge will not even be able to have estimates of the chance of the Botox working. No such evidence is in the materials, and in fact in the passage I previously cited from Dr. Spacey, she cannot fully comment on prognosis until the plaintiff has undergone a trial.
 That prejudice caused to the plaintiff if she cannot undergo the treatment and assess its results significantly outweighs prejudice to the defendants, who, as noted, have admitted liability. The prejudice to the defendants can be ameliorated largely in costs.
 Accordingly, I grant the adjournment with the following terms:
1) The defendant is entitled to costs thrown away, which I am going to assess summarily at $1,000. That is for trial preparation. They are also entitled to full reimbursement for the cost for arranging videoconferencing testimony of Dr. Richards. Those costs are to be set off from any amount recovered by the plaintiff; in other words, they are not payable forthwith;
2) The defendant is entitled to a further independent medical examination of the plaintiff by a specialist of its choosing; and
3) The defendant is entitled to a further half day discovery.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether an adjournment should be granted in the face of a recent collision.
In today’s case (Wall v. Kexiong) the Plaintiff was involved in three collisions and sued for damages with the claims being scheduled for trial at the same time. The Plaintiff was then involved in a fourth collision where liability was apparently in dispute. The Plaintiff did not start a lawsuit but the Defendant argued the scheduled trials should be adjourned in the event the Plaintiff commenced a further action. In declining to adjourn the trials based on this speculative development Master Muir provided the following reasons:
 The defendant relies on the Court of Appeal decision in Garcia v. Drinnan, 2013 BCCA 53, which discusses the problems of separate trials in cases of indivisible injuries and the potential for overlapping or inconsistent treatments of the same facts, overlapping forms of proof, and the court quotes from the judge below:
 The issue of the extent of the indivisible injuries, as well as the assessment of the damages suffered as a result of them are issues that must be answered in both actions, as will be the issue of whether the plaintiff has appropriately mitigated his damages. On the face of it, it is possible for the finder of fact in each case to come to a different conclusion on those issues. That may well be embarrassing to the administration of justice.
 I do not disagree with the defendant’s view of the issues where there are indivisible injuries. It is common that sequential accidents that result in indivisible injuries are tried together for precisely the reasons advanced by the defendant.
 The concern that I have here is that, with respect to the fourth accident, there has been no action commenced, and although the defendant urges on me that it is almost a certitude that the fourth accident will result in an action, that remains still, in my view, a matter of some speculation.
 The plaintiff advances significant prejudice if there is a delay in this matter. Hence, counsel says that if there is an adjournment, she should have a significant advance in the amount of approximately $80,000 to allow her to deal with the financial impact that these matters have had on her, and points out that the first accident occurred in May of 2010, five years ago.
 In all of the circumstances, as I said, although I would generally in circumstances of indivisible injury grant the order sought by the defendant, given the prejudice to the plaintiff and in the circumstances that the fourth action has not been commenced, I find that it would be inappropriate to grant the order sought, and I decline to do so.
Interesting reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing an adjournment of a personal injury trial when collateral criminal proceedings were ongoing.
In last week’s case (Gillespie v. Pompeo) the Defendant police officer shot and injured the Plaintiff. The police officer was charged and convicted of aggravated assault. He appealed the conviction. Before the appeal was disposed of the Plaintiff’s injury claim was scheduled for trial. The Defendant applied to adjourn the trial until the criminal matter was disposed of. In finding this appropriate Mr. Justice Baird provided the following reasons:  Section 71 of the Evidence Act, R.S.B.C. 1996, c.124, provides that a conviction that is not subject to appeal, or from which no appeal is taken, may be admitted as evidence on a civil trial as proof that the convicted person committed the offence…  Defendant’s counsel submitted that the presently scheduled civil trial in June will involve a second full trial on precisely the same evidence and issues as those already given a comprehensive airing on the criminal trial in Provincial Court. The same witnesses will be called on the issue of liability and the same defence of justification under section 25 of the Criminal Code will be advanced.  Defendant’s counsel has conceded, quite properly, that there can be no civil trial on the question of liability if the conviction stands and all appeals are abandoned or exhausted…  As things stand, the defendant has been criminally convicted of aggravated assault. There can be no assumption at this stage that a civil trial will yield a different or more accurate result. If the conviction is upheld it will be the end of the matter for the purposes of liability, and a civil trial conducted in the interval will have been a colossal waste of judicial resources and the time, money and effort of the parties and witnesses alike. Finally, dual proceedings on the same issues and facts give rise to the spectre of inconsistent verdicts, an eventuality to be avoided in the interests of maintaining the credibility of the judicial process.  For these reasons I conclude that an adjournment of the civil trial is in the best interests of justice.
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:  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  S.C.C.A. No. 120.  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.  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.  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.  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.  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.  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.
When medical developments unfold deep in the litigation process it is not uncommon for adjournment applications to be granted. Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, addressing such a situation urging parties to make reasonable compromises to accommodate these developments.
In the recent case (Dhillon v. Bowering) the Plaintiff was injured in two collisions that the Defendants admitted fault for. In the course of the lawsuit the Plaintiff was assessed by an orthopaedic surgeon who felt some of the Plaintiff’s symptoms may be due to a possible labral tear. An MRI was suggested. The Plaintiff obtained an MRI which did indeed show bilateral labral tears. The Plaintiff served an updated medical report addressing this. This report, however, was authored and served outside the timelines required by the Rules of Court due to the timing of the MRI.
The Defendants requested a defence medical exam to address this issue. The Plaintiff consented to this late examination provided the Defendants did not object to the late report the Plaintiff served. The Defendant did not agree to these terms and instead brought an adjournment application. Master Taylor refused to adjourn the trial noting the Plaintiff bore some risk in proceeding as the Plaintiff’s late report may not be admitted. In suggesting compromise in such cases Master Taylor provided the following reasons:  So on one hand we do not have Dr. Shuckett’s report in evidence, and now we have defendants asking for an adjournment so that they can do what they need to do to buttress their case because of the report of Dr. Shuckett, which is not in evidence.  In my view, this problem could have been easily resolved by both parties agreeing to the late service of Dr. Shuckett’s report as well as the DME report from Dr. O’Brien and the matter would have proceeded. Now we are faced with an adjournment application of a trial that is 11 days away, the first accident which occurred more than five years ago…  Well, with the greatest of respect to counsel, I do not know if prejudice would be an operating theme here in this application. I think what is more to the point, and I pointed that out to counsel at the early stage of this application, is that, first of all, there is a hurdle that plaintiffs have to get over before a defendant should be even concerned about this fact. The fact that they have not had a DME with respect to a labral tear in the left hip is not so much their concern but rather the causal connection. I have not seen anything in any of the reports that would be suggestive in any way whatsoever that there is anything but the accident as a causal connection. Now, if that is the only reason, ultimately, that the defendants are relying upon for an application for adjournment in this matter, then I think the defendants do not succeed in their application.  Accordingly, I dismiss the application for adjournment, and I will award costs to the plaintiff in any event of the cause, not payable forthwith.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the fact that an unknown prognosis is a true barrier to a personal injury quantum claim proceeding to trial.
In this week’s case (Dazham v. Nachar) the Plaintiff sued the Defendant for injuries sustained in a 2009 collision. Fault was disputed. As the matter approached trial the Plaintiff sought an adjournment arguing that the matter was not yet ready as the Plaintiff’s physicians were unable to comment on his prognosis. The Court agreed but instead of adjourning the entire matter severed the issues of quantum and liability and ordered that the trial proceed solely on the issue of fault. In doing so Master Baker provided the following reasons:  Nevertheless, I have concluded that this is not one of those cases where the injuries can be said to have plateaued, that it is now just a matter of waiting. That is not the case to me at all. Both physicians have indicated further surgical intervention. They have also indicated that that is a contingency; in essence a) whether the cortisone injections work; and b) whatever the MRI says.  So by no means are we at a point where the extent of Mr. Dazham’s injuries and their expected recovery can be given with satisfactory accuracy. I just do not think we are there yet.  As I say, the liability is very much in issue, and why it is generally the situation or circumstance that the court prefers not to sever issues, when we have a lay witness, when we have such an active issue. I think it is in everyone’s interest that that matter be resolved first, and then as a consequence, rather than adjourn the matter, that the issues of liability and quantum be severed and that the matter of liability proceed.  With respect, I adopt Mr. Justice Finch’s comments in Radke v. M.S., 2006 BCCA 12 at paragraph 24, in which he comments that: If the plaintiff’s injuries have not resolved to the point where damages can fairly be tried, the parties may still try the liability issues while the events are fresh in the witnesses’ memories.  I understand Ms. Meade’s concerns about credibility being an important aspect, both as to liability and as to damages, but I can’t see that that is a sufficient concern or basis for not severing. I also think severing is the appropriate approach, rather than adjourning, as I have already said.  As a consequence, there will be an order directing that the issues be severed.
You can click here to read my archived posts addressing adjournment applications and severance applications in the BC Courts.
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:
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.
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.
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.
In my view, an advance of $50,000 is appropriate in all the circumstances.
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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