Reasons were published today by the BC Supreme Court, Vancouver Registry, striking a jury notice so a trial could proceed without the need for a lengthy adjournment.
In today’s case (Vacchiano v. Chen) the Plaintiff was injured in a 2015 collision. Both liability and damages were contested. ICBC elected trial by jury which was scheduled in July, 2020. Due to Covid-19 all civil jury selections were suspended and jury trials cancelled up to and including September 7, 2020 everywhere in the province. As a result the trial would face a lengthy adjournment, about 2 years, if the matter was to proceed with a jury.
The Plaintiff brought an application for the jury notice to be struck. The Court agreed that doing so would be fair as a 2 year adjournment would be more prejudicial to the parties than the Defendant losing their prefered mode of trial. In reaching this decision Master Muir provided the following reasons:
Interesting reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, granting a defence adjournment request where defence failed to obtain needed defense medical opinion evidence in part due to a misunderstanding of the waiver of service deadlines due to Covid-19.
In the recent case (Sidhu v. Sidhu) the parties agreed that the plaintiff would be examined by a defence physiatrist. When defence counsel selected a date the Plaintiff was of the view that it was beyond the date of the service of reports noting
“We write regarding your letter requesting the plaintiff’s attendance at an IME with a physiatrist.
We do not agree that the Rule 11-6 deadline for service of originating reports 84 days before trial has been suspended. You are now in receipt of the plaintiff’s expert reports. You are entitled to respond to those reports but the time for fresh opinion based on a physical assessment has passed. This is unrelated to the COVID‑19 epidemic.“
The Plaintiff did not attend. Defence counsel did not bring an application to compel attendance in part relying on the assertion of plaintiff;s counsel. In granting an adjournment the Court noted the above premise was incorrect as Covid-19 Notice #8 suspended the deadlines for the service of reports.
The court found that the IME process was ‘frustrated‘ by this misunderstanding and found a trial adjournment was an appropriate remedy. In reaching this conclusion Master Cameron provided the following reasons:
Late last year reasons for judgment were released by the BC Supreme Court finding that Trial Management Conferences and Case Planning Conferences “are not generally the forum to determine contested applications.” . Reasons for judgement were released this week by Mr. Justice Smith taking a less restrictive view of this issue.
In today’s case (Jurczak v. Mauro) the Plaintiff was injured in a motor vehicle collision. As trial neared the Plaintiff brought an application for an adjournment and this was granted in order to give the Plaintiff time to gather appropriate medico-legal evidence. The Court was specifically asked whether it was permissible for contested applications to be heard at TMC’s. Mr. Justice Smith held that such practice was permitted under the Rules. The Court provided the following reasons:
At a Trial Management Conference (TMC) on March 31, 2011, I made an order adjourning the trial in this matter, which had been set for May, 2, 2010. I indicated that I would provide written reasons because the application raised a procedural question about the circumstances under which a judge at a TMC may hear and rule upon a contested adjournment application.
The TMC was created by the new Supreme Court Civil Rules, B.C. Reg. 168/2009 that came into effect on July 1, 2010. Rule 12-2 (9) sets out a broad range of orders that can be made by the presiding judge at a TMC “whether or not on the application of a party.” These include, at subparagraph (l), an order adjourning the trial. However, Rule 12-2 (11) prohibits a TMC judge from hearing an application for which affidavit evidence is required…
I do not understand Vernon to be suggesting that a judge at a TMC can never order an adjournment if one party objects. No such restriction appears in Rule 12-2. The Rule prohibits hearing applications that require affidavit evidence. It is for the judge to decide whether a particular application requires affidavit evidence and whether any affidavits that have been tendered are relevant.
The orders permitted by Rule 12-2 (9) are, broadly speaking, procedural in that they deal with the conduct of the trial, including how certain evidence is to be presented, the length of the trial and, in subparagraph (q), “any other matter that may assist in making the trial more efficient.”
 Rule 12-2 (3) requires the parties to file trial briefs in Form 41 identifying the issues in dispute (which, by that stage, may not be all of the issues raised in the pleadings), listing the witnesses, including experts, to be called and estimating the time necessary for the evidence of each witness. The trial brief is an unsworn statement of counsel or the self-represented party. The Rule clearly contemplates that the judge will make orders based on the information contained in the trial briefs, as supplemented by what is said at the TMC. That is the only basis on which the orders permitted by the Rule could be made.
In some cases where an adjournment, or any other order is sought, a judge may decide that supporting information is not adequate. That was the situation in Vernon, where Goepel J. was presented with an affidavit of the plaintiff setting out the prejudice that would flow from an adjournment. That evidence had to be weighed against any evidence of prejudice to the defendant if the adjournment was not granted. Once the plaintiff’s affidavit was found to be relevant, evidence in proper form was required from the defendant and counsel’s statements, standing alone, were not acceptable.
However, there are situations where the need for an adjournment can be clearly assessed on the basis of information provided at the TMC and affidavit evidence would be of no assistance. For example, a judge may be able to determine simply from the trial briefs that the trial cannot possibly be completed in anything close to the estimated time, or that the number of pre-trial matters still to be dealt with shows that the case is not ready for trial. If the judge could not order an adjournment in those circumstances, a large part of Rule 12-2’s purpose would be defeated….
In summary, the fact that the adjournment application was contested would not, in itself, have prevented me from hearing and deciding it at the TMC. In the circumstances, affidavit evidence was not necessary. I had jurisdiction to consider the adjournment application on the basis of information in the trial briefs and the statements of counsel at the TMC and I would have made the same decision had the matter proceeded on that basis.
Rule 12-1(9) gives the BC Supreme Court the discretion to adjourn trials. When asked for an adjournment the Court must balance the interests of the parties. When adjourning a trial the Court can attach a variety of conditions which can even include damage advancements in personal injury lawsuits. Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing this area of law.
In today’s case (Kailay v. ICBC) the Plaintiff was injured in two separate motor vehicle collisions. The matter was set for trial previously but was adjourned following an application by ICBC.
The Plaintiff became pregnant shortly before the rescheduled trial and this apparently aggravated some of her accident related stress and psychological symptoms. ICBC argued a further adjournment was necessary as a result of this development. Master Baker agreed and granted ICBC a second adjournment, however, the Court attached several conditions to this order. In doing so Master Baker discussed the Court’s ability to attach terms to adjournments and provided the following reasons:  Taking these various positions, I am satisfied of the following. First, the court’s jurisdiction to make an order for conditions of an adjournment that include advances, whether to meet specific costs and expenses, or as simple advances on likely general damages cannot be seriously disputed. .. 13] I do not accept that liability must be absolutely established before an advance can be ordered. The real issue, in such a case, is: in the event the plaintiff is unsuccessful, can the advance be recovered? I see no reason why that would not be the case here, particularly assuming that any advance would be accompanied by an undertaking from Ms. Kailay in that respect…
 As a consequence of the above, I direct that the conditions of the adjournment will be:
1. The defence will fund up to 30 further counselling sessions at up to $200.00 per session;
2. Ms. Kailay will receive $20,000.00 toward her general damages claim;
3. The defence will advance $10,000.00 toward Ms. Kailay’s costs incurred to date, including, of course, her experts’ fees;
4. Ms. Kailay will give her undertaking that, in the event her claim fails at trial or that advances to date (including the above) exceed the damages awarded by the court, she will repay the advances as required.
These are the conditions of the adjournment. If, for any reason, the defence does not acknowledge and accept them by March 7 the trial will continue on April 4 as currently scheduled.
 Costs of this application will be costs in the cause.
Reasons for judgement were recently published by the BC Supreme Court addressing the adjournment of a personal injury trial where the Plaintiff’s independently retained physician failed to author a medico-legal report in a timely fashion.
In the recent case (Barlow v. Smoch) the Plaintiff was injured in a 2006 collision. He was the passenger in a vehicle which collided with a dump truck-trailer. He apparently suffered serious injuries including a “severe traumatic brain injury with left sided hemiparesis“.
In the course of the lawsuit the Plaintiff hired a variety of independent experts to provide medico-legal opinion evidence at trial. One of the experts was a physiatrist who assessed the Plaintiff. The Plaintiff requested a report however no report was provided within the timelines required by the Rules of Court. The Plaintiff’s other experts required the physiatrist’s report in order to finalize their opinions. Because the physiatrist did not author the report in a timely fashion the Plaintiff was unable to adequately prepare his case for trial.
The Plaintiff brought an adjournment application. The Defendant opposed, arguing an adjournment would be prejudicial. Master Caldwell ultimately granted the adjournment finding that neither party were to blame for the need of the adjournment and that keeping the current trial date would result in prejudice to the Plaintiff. In granting the adjournment the Court had the following critical comments for the Plaintiff’s expert:
 The determination I have to make now is whether the plaintiff would be so prejudiced by having this matter proceed to trial, in light of all of the circumstances, or whether the defendant would be prejudiced to the extent that there would be some waning of the memory of the defendant Hilborn.
 Remembering of course that the plaintiff is a severely brain?injured individual with hemiparesis, it would behoove me ultimately to weigh the prejudice in favour of the plaintiff and make a determination that the trial ought to be adjourned, not through any fault of counsel or the parties, but more I think because there is an unexplained failure to provide a report following a medical assessment by a medical professional.
 When I say unexplained, I do not say that meaning plaintiff’s counsel has not explained it; I mean (the physiatrist) has not explained her lack of attention to requests for the report following her assessment of the plaintiff on the 31st of May last, which I think is unacceptable.
 I say parenthetically that this may be a matter that counsel and the parties should be taking up with the College of Physicians and Surgeons, because in this case it is, without a doubt, in my view, (the physiatrist’s) lack of production of the document requested that has ultimately resulted in the adjournment of the trial.
 As for costs, there is not a lot of blameworthy conduct here over which costs could be assessed. I think every party has had a legitimate rationale for having the positions they have taken with respect to the particular application, which I find to be somewhat unique in the circumstances. So I will say that I think each party should bear its own costs of this application.
As previously discussed, it is risky to settle an ICBC claim prior to knowing the long-term prognosis of your injuries. Without a prognosis it is difficult to value a case and therfore difficult to gauge a fair settlement amount.
The same caution holds true for taking a case to trial. Absent recovery or a meaningful prognosis it will be difficult for a judge or jury to properly value the claim. If a case is set for trial but the prognosis is unknown an adjournment can often be obtained pursuant to Rule 12-1(9). This was demonstrated in short but useful reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Cochrane v. Heir) the Plaintiff was involved in a 2006 collision. She was scheduled to undergo surgery in February, 2011 and her lawsuit was set for trial shortly thereafter. The Plaintiff was concerned that her prognosis would not be known at the time of trial and applied to adjourn. The Defendant opposed arguing that the upcoming surgery was not related to the collision and the adjournment was not necessary.
Mr. Justice Harris concluded that ultimately it would be for the jury to decide whether the surgery was related to the crash, however, since it may be related an adjournment was in the interests of justice. The Court provided the following reasons:
 There is some medical evidence before the court to the effect that the plaintiff’s condition, prognosis and ability to return to work cannot fairly be assessed until after the surgery and after sufficient time has been allowed for rehabilitation.
 Counsel for the defendant opposes the adjournment because this is, he submits, a unique case. In a nutshell, he says that the delays and behaviour of the plaintiff in presenting the case are characteristic of her conduct in other matters she has been involved in. In effect, he submits that I should discount the evidence in support of the adjournment. In particular, I should be sceptical of the suggestion of any causal link between the accident and the condition that has led to the proposed surgery, as well as the need or the surgery itself. All an adjournment will do is expand the trial and encourage further delay and obstruction in bringing this matter to trial.
 Since I have decided that the interests of justice require an adjournment and since I am the trial judge, albeit with a jury, I have concluded that it would be unwise to comment directly on the evidence referred to by the parties in support of their positions. The issue of the causal connection between the accident, the plaintiff’s current condition and her alleged inability to work, are the primary matters that will be before the court for adjudication. Not to grant an adjournment would work relatively greater prejudice to the plaintiff than to the defendants by constraining her opportunity fully to present her case whatever its merits at trial.
I’ve previously written about adjournment applications in the BC Supreme Court and that Judges hearing such applications must consider a “balancing (of) the interests of the parties” . Reasons for judgement were released this week by the BC Supreme Court indicating that, at least with lengthy trials, a third factor is in play; specifically the “public interest” must be considered.
In this week’s case (Jones v. Donaghey) the Plaintiff sued for damages claiming he was seriously brain damaged when one of the Defendant’s assaulted him. The Plaintiff was a newborn at the time of the alleged assault and would be four years old at the time of the proposed trial.
The defendants sought an adjournment of the trial arguing that further time was needed in order to obtain proper medical evidence. Ultimately Mr. Justice Macaulay disagreed and refused the adjournment application. Prior to doing so, however, the Court indicated that the interests of not only the parties must be considered in adjournment applications of lengthy trials, but also the public interest. Mr. Justice Macaulay provided the following useful reasons:
 Although I address the balancing of the interests of the parties separately below, the public interest is also impacted by the scheduling, and any potential rescheduling of lengthy trials. Considerable public and judicial resources are tied up in the intensive pre-trial management and conduct of trials under what is colloquially known as the “20-plus” program. The court instituted the program some time ago to assist in the management and scheduling of complex civil cases.
 Generally, in my view, every effort should be made to avoid the adjournment of trials once set under the program, as litigants in other cases have had to forgo the opportunity to set down their applications or trials for hearing, because either or both the trial management judge’s rota time and court time have been reserved for a 20?plus case.
 In more general terms, perhaps, Levine J., as she then was, referred to the need to consider such broader interests of justice when deciding an adjournment application respecting a long trial in Strata Plan VR No. 2000 v. Shaw, at para. 26. Justice Dorgan referred to the above with apparent approval in denying a defence application for an adjournment in J.S. (Guardian ad litem of) v. D.S., at para 17.
As I’ve previously discussed, if you’re not prepared to proceed to trial and ICBC opposes an adjournment it’s necessary to apply for a Court order under Rule 12-1(9) of the BC Supreme Court Civil Rules. Reasons for judgment were released earlier this month by the BC Supreme Court, Kamloops Registry, dealing with such an application.
In today’s case (Allan v. Houston) the Plaintiff was involved in a 2007 motor vehicle collision. His injuries apparently included a fracture at the L4 level of his spine and a traumatic brain injury. His case was set for trial in December 2010. His treating specialists were apparently unable to “complete assessments of the plaintiff such that a court would be provided with an opinion with respect to the injuries sustained and the prognosis that the plaintiff faces“. In addition to this, the Plaintiff switched lawyers shortly before the scheduled trial. The new lawyer was unavailable for the previously scheduled trial. He sought an adjournment but ICBC refused. On application the BC Supreme Court ordered that the trial be adjourned. Mr. Justice Dley provided the following reasons:  The defendant resists the application for an adjournment on the basis that this matter has been set for trial for some time, that the incident occurred almost three years ago, and, as a result of the heavily contested liability issues, that memories may fade as time continues on.  Counsel for the plaintiff emphasizes two factors: that there has been a change of counsel, and that the plaintiff’s new counsel would be unavailable for trial; and that there is the practical aspect of securing further medical information to ensure that the court is in a position to properly assess the damages, if in fact liability has been proven.  There is also a third aspect that needs to be considered, and that is the issue of the second motor vehicle accident. The injuries sustained, it is alleged, in the second accident aggravated those in the first. In order to ensure that justice can be done for all parties it would be beneficial to have the same trier of fact dealing with both accidents at the same time, as it is anticipated and suggested by counsel for the plaintiff.  In order for there to be a fair trial, the only rational outcome of this application is to grant the adjournment: first, to ensure that plaintiff’s counsel is available; second, to ensure that the court has the benefit of the necessary medical information; and thirdly, to ensure that all efficiencies are taken into account to have both accidents dealt with at the same time.
The Court went on to award the Plaintiff costs. In doing so Mr. Justice Dley reminded defence counsel that “this was an application that should have been given far more serious consideration than what it was by the defence. There are certain courtesies that should be given during the course of any litigation: one is the availability of counsel and two is the practical aspect of proceeding to trial with all of the necessary information“.
Often times when a BC Supreme Court trial date approaches in an ICBC Injury Claim there are reasons why one party would like to adjourn the trial. Key witnesses can be unavailable, perhaps the case is not quantifiable due to ongoing medical investigations or maybe one side is simply not prepared.
Whatever the reason if the parties don’t consent an application can be brought to a Supreme Court Judge or Master requesting an adjournment pursuant to Rule 39(9) which holds that “The court may order the adjournment of a trial or fix the date of trial of an action or issue, or order that a trial shall take precedence over another trial“.
The legal test for adjournment applications has long been established and it is clear that courts have the discretion to adjourn a trial. In exercising this discretion the Court must take into account the “interests of justice”. The interests of justice are determined by ‘balancing the interests of the parties, which is a difficult and delicate matter requiring a careful consideration of all the elements of the case‘.
With this introduction out of the way that brings me to the topic of today’s post. What if a trial needs to be adjourned for very clear and obvious reasons but the opposing side does not consent? Unreported reasons for judgement came to my attention today dealing with such a scenario.
In this case (Davis v. Clark, BCSC Chilliwack Registry, June 8, 2009) the Plaintiff’s personal injury claim was set for trial. Fault was admitted leaving the court to only deal with the issue of damages (value of the personal injury claim). The trial date, unfortunately, was set on the same date that the Plaintiff’s lawyers daughter was being married. The Plaintiff was content to have the trial adjourned but the Defendant refused to consent. A motion was brought asking for an adjournment and it was granted. The Court went further, however, and ordered that the Defendants pay the Plaintiff $703 in costs ‘forthwith‘ for their unreasonable refusal to consent.
Master Baker had the following to say:
“Anyway, in the case before me, liability is not in issue. It is admitted. I just do not see there is any prejudice to the defence, but, with respect, it strikes me as just an eminently reasonable request on the part of the plaintiff to adjourn this. I wonder where litigation is going when someone says, “Look, my child is getting married and I want an adjournment,” and it is refused. I find that unacceptable. It frustrates and angers me, frankly. I just wonder where it is going…The order will go. Costs in any event payable forthwith.”
Sometimes there are legitimate reasons for an adjournment and sometimes there are not. This case, however, demonstrates that where there is a very reasonable request for an adjournment and it is unreasonably refused the Court can punish the unreasonable party with costs payable forthwith.
Note: Rule 39(9) will be kept intact when the New BC Supreme Court Rules come into force on July 1, 2010 and can be found at Rule 12-1(9).
If you would like further information or require assistance, please get in touch.
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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