Tag: Kailay v. ICBC

More on ICBC Claim Adjournments: Discretion and Court Ordered Conditions


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:
[12] 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…

[19]         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.

[20]         Costs of this application will be costs in the cause.

Contact

If you would like further information or require assistance, please get in touch.

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

    Disclaimer