Tag: Rule 12-1

More on ICBC Injury Claims, Trials and Adjournments

Written by admin on November 19, 2010. Posted in BCSC Civil Rule 12, Civil Procedure, Uncategorized.

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:
[7] 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.
[8] 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.
[9] 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.
[10] 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“.

More Confusion Clarified: Trial Notices Under Former Rules Remain Valid Under New Rules

Written by admin on October 27, 2010. Posted in BCSC Civil Rule 12, BCSC Civil Rule 24, Uncategorized. 59 Comments on More Confusion Clarified: Trial Notices Under Former Rules Remain Valid Under New Rules

One of the changes under the New BC Supreme Court Civil Rules relates to setting a matter down for trial. Under the former rules a Notice of Trial was to be delivered “by a plaintiff after the time has expired for the delivery of a statement of defence or by any party after the close of pleadings“. Under the new Rule 12-1(2) any party may deliver a Notice of Trial at any time after the commencement of a proceeding.
There has been some debate whether Notices of Trial filed under the former rules remained valid under the new rules or whether parties need to file a new Notice of Trial in these circumstances. Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with this procedural issue ruling that a new Notice of Trial is not necessary in circumstances where one was filed under the former rules.
In this week’s case (Sim v. Learmouth) the Plaintiff was injured in a motor vehicle accident. The lawsuit was started under the former rules. ICBC, as statutory third party, filed a Notice of Trial and Jury Notice in May, 2009. The Plaintiff did not file their own jury notice in the time lines required under the former rules. When the New Rules came into force the Plaintiff served a new Notice of Trial and Jury Notice. The Plaintiff argued that Rule 12-1(6) requires party’s to file a new Notice of Trial. ICBC disagreed and argued that the Plaintiff’s jury notice was invalid.
Master Keighley agreed with ICBC and struck the Plaintiff’s Jury Notice. In doing so the Court explained that party’s do not need to file a Notice of Trial under the New Rules if one was filed under the former rules. The Court provided the following useful reasons:

[17] It only remains to be considered whether the transitional provision is effective to allow delivery of a further Notice of Trial and a re-setting of the clock with regards to the filing and serving of a Jury Notice.

[18] In my view, it is not, for the following reasons:

(a) The applicant’s delivery of their Notice of Trial and Jury Notice were “steps taken before July 1, 2010”;

(b) Any right or obligation arising out of delivery of the Notice of Trial had effect on the day of delivery, namely the trial date was secured, subject to an adjournment by agreement or order. It had no other effect thereafter;

(c) Delivery of the Jury Notice was effective to notify the parties of records as to the applicant’s intention to have a trial by judge and jury on the date of delivery. It had no other effect thereafter, although a jury trial would only be secured by a further step, the payment of jury fees prior to trial. The Notice itself, however, was fully effective on delivery.