Skip to main content

Tag: Advance Payment Orders

Advance Payment Order Used to Remedy "Harsh" Reality of Trial Adjournment

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 13, Civil Procedure. 43 Comments on Advance Payment Order Used to Remedy "Harsh" Reality of Trial Adjournment

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:
[5]             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 [1995] S.C.C.A. No. 120.
[6]             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.
[7]              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.
[8]             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.
[9]             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.
[10]         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.
[11]         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.

Advance Payment Orders and Adjournment Applications

Written by admin on . Posted in BCSC Civil Rule 13, Uncategorized. 52 Comments on Advance Payment Orders and Adjournment Applications

In 2009 the BC Court of Appeal made it clear that the BC Supreme Court has no authority to make a stand-alone order for an advance payment of damages and any advance payment order must piggy-back another order relying on Rule 13-1(19).
When faced with an order adjourning an injury trial where liability is admitted that is a good time to seek an advance payment order.  If, for whatever reason such an order cannot be spoken to at the time of adjournment, it is a good practice to seek leave that as part of the adjournment a plaintiff has permission to bring an advance payment application at a later time.  Such a practice was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Estey v. Bateson) the Plaintiff was injured in a 2008 collision.  The matter was set down for trial but was ultimately adjourned.  At the time the Plaintiff had the foresight to seek an order granting leave to apply for an advance as a term of the adjournment     Ultimately a $15,000 advance was ordered and the Court provided the following summary of the legal principles to be considered:
1]             The plaintiff applies for an advance of $35,000 on his claim for damages relating to a motor vehicle accident which occurred on August 16, 2008 and for costs thrown away as a result of the adjournment.
[2]             Liability has been admitted and the trial, which was set to commence on February 13, 2012 for 10 days, was adjourned on that date by Fitzpatrick J.; at the time of the adjournment leave was granted to the plaintiff to apply for an advance and for costs thrown away…
[5]             Master Keighley considered the issue of the jurisdiction to order an advance other than as a term of an adjournment in the case of Cikojevic v. Timm, 2007 BCSC 1689 and found that such jurisdiction does exist. In addition, I rely upon the order of Fitzpatrick J. which expressly granted the plaintiff liberty to make such application in this particular case.
[6]             The court has a discretionary authority to order that an advance be paid but such order should only be made in special circumstances and only if the judge or master is satisfied that there is no possibility that the ultimate award of damages will be less than the amount of the advance: see Serban v. Casselman, [1995] B.C.J. No. 254 (B.C.C.A.) and Cikojevic v. Timm, 2008 BCSC 74. Two of the considerations which the court must address are the length of time which will pass until trial and whether the delay will cause the plaintiff financial hardship: see O’Ruairc v. Pelletier, 2002 BCSC 1107 and Cikojevic.

$50,000 Damage Advance Ordered As Term of Adjournment of Personal Injury Claim

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 13, ICBC Wrist Injury Cases, Uncategorized.


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:

[42] 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.

[43] 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.

[44] 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.

[45] In my view, an advance of $50,000 is appropriate in all the circumstances.

Formal Settlement Offers and Costs: A Matter of Discretion

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized. 53 Comments on Formal Settlement Offers and Costs: A Matter of Discretion


As recently discussed, costs consequences following trial where a formal settlement offer is not beat is a matter of judicial discretion.  While the principles behind the exercise of that discretion are reasonably well formulated the costs results can be a little trickier to predict.  Two sets of reasons for judgement were released this week by the BC Supreme Court demonstrating this discretion in action.
In the first case (Khunkhun v. Titus) the Plaintiff advanced a personal injury claim in excess of one million dollars.  She claimed she suffered from “a significant and disabling vestibular injury” as a result of a collision.  The jury largely rejected the Plaintiff’s sought damages and awarded $45,000.
ICBC made a more generous settlement offer prior to trial which the Plaintiff did not accept (about 30% higher than the jury award).   As a result, Mr. Justice Willcock stripped the Plaintiff of her costs from the time of the offer onward.  The Court did not go so far as to order that the Plaintiff pay the Defendant costs finding that it would be unjust.  Mr. Justice Willcock repeated the following reasoning from Madam Justice Humphries in Lumanlan v. Sadler:
Given the significant injury to the plaintiff, which was caused by the defendant’s foolish and reckless behaviour, and the effect on the award of a further reduction for costs, even if not doubled, and taking into account all of the above considerations, in my view it would not be fair or just to require the plaintiff to pay ICBC’s costs after the date of the offer.
In the second case released this week (Mazur v. Lucas) the Plaintiff was awarded $538,400 following a jury trial to compensate her for injuries sustained in a collision.  ICBC appealed and succeeded in having a new trial ordered.
Prior to the second trial ICBC made a formal settlement offer of $300,000.  The Plaintiff rejected this and proceeded to trial again.   This time the jury came in lower awarding $84,000 in damages.
ICBC brought an application seeking costs for both trial.  The result of this would have been financially significant.    Madam Justice Humphries declined to allow this and instead awarded the Plaintiff costs for both trials despite not besting ICBC’s offer.  In exercising its discretion the Court provided the following reasons:
[62] This court has stated many times that parties should be encouraged to settle, and if unreasonable in not doing so, may be punished in costs.  As well, the fact that an award of costs against a party may wipe out their award of damages is not determinative.  However, given all the circumstances that existed at the time the offer was made which did not change throughout the trial, I am not persuaded that the plaintiff ought to be denied her costs on the basis that she ought reasonably to have accepted the offer that was made twelve days before the trial began.  Having in mind the amount of the first award, the narrow issue upon which a new trial was ordered, the amount of the second offer, and the expected similarity of the evidence at the second trial, the plaintiff was reasonable in deciding not to accept the offer and to have the action adjudicated by a second jury.
In addition to this final result, this case is worth reviewing for the Court’s discussion of advance payment orders.  Prior to the second trial ICBC paid the Plaintiff $250,000 in exchange for a stay of execution so the Plaintiff would not collect the damages from the Defendants personally.  Madam Justice Humphries found that an advance payment after judgement should not be factored into a costs assessment.  The Corut provided the following reasons:

[14] The defendants argue that the plaintiff should be deprived of her costs of the second trial as of December 24, 2009, the date on which the negotiated agreement was signed.  They cite cases dealing with situations in which awards at trial are less than an advance, and in which plaintiffs have been deprived of costs as of the date of the advance (McElroy v. Embelton (1996), 19 B.C.L.R. (3d) 1 (B.C.C.A.); Baxter v. Brown (1997), 28 B.C.L.R. (3d) 351 (B.C.C.A.).

[15] However, those cases are all advances before trial.  The basis on which the Court of Appeal in those cases concluded that the date of the advance was relevant to costs was because the plaintiff “had in hand more at the start of the action than the amount of the jury’s verdict.” (see McElroy).  The plaintiff, upon receipt of an advance, must realistically assess his or her claim knowing that proceeding to trial carries a risk in costs (Carey v. McLean, 1999 BCCA 222).

[16] This advance was one paid to avoid execution on an existing judgment, pending an appeal that would proceed regardless of whether the plaintiff wished to accept the money in final settlement of the action or not.  That option was not open to her.  The agreement signed by the plaintiff required repayment if a new trial were ordered and the results were not favourable to her, but did not give her the option of accepting the money and ending the proceedings.  This advance payment, unlike those in the cases cited by the defendant, is not the equivalent of an offer to settle.

[17] The date of the advance is not appropriately considered in these circumstances.

Advance Payment Orders and Your ICBC Injury Claim

Written by admin on . Posted in BCSC Civil Rule 13. 82 Comments on Advance Payment Orders and Your ICBC Injury Claim


While Defendants in lawsuits are generally not obliged to make any advance payments to a Plaintiff, in unique circumstances the BC Supreme Court can compel a Defendant to pay an advance.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this judicial power and the circumstances when it should be exercised.
In last week’s case (Gill v. West) the Plaintiff was involved in 10 motor vehicle accidents for which he was suing for damages.  Liability was admitted in some of the actions.  The Plaintiff alleged that the various crashes caused indivisible injuries and he was disabled as a result.  He applied for various orders including an order that he be advanced “$150,000 forthwith on account of damages“.   Madam Justice Wedge dismissed the Plaintiff’s request and in doing so provided the following comments on this area of the law:

[8] The plaintiff is frank to admit that it seeks the order concerning liability in the one action, and the order to have the fourth action heard with the other three, for the express purpose of obtaining the advance payment order. The plaintiff acknowledged he cannot obtain an order for advance payment of damages unless it is granted in conjunction with another order.

[9] In the case of Lines v. Gordon (2009), 90 B.C.L.R. (4th) 52 (C.A.), our Court of Appeal made it clear that the Rules of Court do not give this Court jurisdiction to make a stand alone order for an advance payment of damages, nor does this Court have inherent jurisdiction to do so.

[10] In the Lines decision, the Court referred to the wording of then Rule 1(12), now Rule 13-1(19), which states as follows:  “When making an order under these Rules, the court may impose terms and conditions and give directions as it thinks just.”  Based on that wording — and specifically the words “when making an order under these Rules,” — the Court in Lines stated that there must be a temporal connection between an order for an advance payment and another order…

[17] I will now turn to the law governing this application. While Lines v. Gordon states that there must be a temporal connection between the order for advance payment of damages and the granting of another order, temporal proximity is only one factor. More broadly, the order for advance payment must be a just one in all of the circumstances:  Serban v. Casselman (1995), 2 B.C.L.R. (3d) 316 (C.A.).

[18] The question is always whether the circumstances of the primary order, in conjunction with which the advance payment order is sought, are sufficiently compelling to justify an advance payment of damages. The authorities make clear that a payment of damages in advance of trial is only to be made in exceptional circumstances arising from the making of the primary order. For example, where the defendant applies for an adjournment of a personal injury trial and the plaintiff’s circumstances are financially tenuous, it may be just in the circumstances to order an advance payment of damages in conjunction with the order for an adjournment. However, such an advance payment order will not be made unless the judge is completely satisfied there is no possibility the assessment of damages at trial will be less than the amount of the advance payment:  Serban v. Casselman. Further, the court will exercise its discretion to order an advance payment only where liability is not an issue:  Andruschak v. Helina (1993), 89 B.C.L.R. (2d) 320 (S.C.); Wilkinson v. Martin, 2010 BCSC 113.

[19] In the present case, there is no substantive connection between the orders sought and the order for advance payment. The trial was recently adjourned, but that was at the behest of the plaintiff, not the defendant. The application for an order that the fourth action be heard with the other three was not necessary, as the defendants consented to the order before the application was brought. I note as well that the adding of the fourth action did not necessitate the adjournment of the trial.

[20] Further, the application for the finding of liability in one action is not of itself a proper basis for an advance payment order. There is nothing in the circumstances of a formal finding of liability in the one action that would make an order for an advance payment just or necessary in the circumstances of this case. In short, there is simply no substantive trigger for an advance payment.

[21] In addition, with seven of the ten defendants denying liability, I am not persuaded it would be just in the circumstances to order that the defendants in all actions be jointly and severally liable for the advance payment of damages. Whether there ought to be joint and several liability on the part of the defendants is an issue that must be determined at trial and should not be determined on an application for advance payment.

[22] For all of these reasons, and despite the able and forceful submissions of plaintiff’s counsel, the plaintiff has not satisfied me that the orders sought ought to be granted, with the exception of the first order that all four actions be heard together, which will go by consent. The application for the remaining orders is dismissed.