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:
The BC Supreme Court Rules require a trial certificate to be filed at least 14 days before a scheduled trial date. Failure to do so requires the matter to be removed from the trial list ‘unless the court otherwise orders‘. Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, addressing the framework which permits the Court to restore a trial date after if it has been removed from the trial list. In short the Court relied on its power under Rule 12-1(9)(b) to “fix the date of a trial proceeding” to remedy the problem.
In this weeks case (Knowles v. Lan) the Plaintiff was injured in a collision. Prior to trial ICBC sought to have the matter adjourned but the application was dismissed. The Plaintiff’s lawyer then forgot to file a trial certificate and the matter was removed from the trial list. Mr. Justice Halfyard restored the trial date and in doing so provided the following reasons addressing the proper framework for such a remedy:  The first question is whether Rule 12-4 (5) gives the court power to restore a proceeding to the trial list, after it has been removed for non-compliance with Rule 12-4 (2). I would say firstly that, because of the mandatory wording in Rule 12-4, the filing of at least one trial certificate is a necessary condition for a trial to proceed. As a consequence, I do not think the court could dispense with the filing of any trial certificate, but could only grant leave to file it less than 14 days before trial.  In my opinion, a party who seeks to have a trial restored to the trial list must first obtain leave to file a trial certificate “late,” under Rule 22-4 (2). If such leave is granted, and a trial certificate is filed in accordance with the order, that filing would not have the effect of restoring the trial to the trial list from which it had been removed. Could the court make such a restoration order, under Rule 12-4 (5)?  In my opinion, Rule 12-4 (5) should be read so as to include the additional underlined words, as follows: (5) Unless the court otherwise orders, if no party of record files a trial certificate in accordance with sub-rule (2), the trial must be removed from the trial list.  In my view, Rule 12-4 (5) is designed to prevent an action being removed from the trial list for failure to file a trial certificate as required by subrule (2). It does not state that, if a trial has been removed from the trial list, the court may restore that trial to the trial list. Nor do I think that such a power is implicit in that subrule. In order to preserve a trial date by invoking this Rule, I think the application and the order would have to be made before the 14 day deadline. That was not done here, and so this rule cannot be relied upon…  It may be that Rule 1-3 provides inherent jurisdiction to make an order restoring this action to the trial list for March 4, 2013. But it seems to me that Rule 12-1 (9) provides specific authority to do this. Subrule (9)(b) states: (9) The court may . . . (b) fix the date of trial of a proceeding, . . .  When this action was struck off the trial list, there was no longer any date scheduled for the trial. The subrule I have just referred to does, in my opinion, empower the court to fix a date for the trial of this proceeding which coincides with the previously – scheduled trial date of March 4, 2013. I would rely on that subrule in making the order to reinstate this action for trial on March 4, 2013.  Authority might also be found in Rule 22-7(2)(e), which states in relevant part as follows: (2) . . . if there has been a failure to comply with these . . . Rules, the court may
. . .
(e) make any other order it considers will further the object of these . . . Rules.  In my opinion, the reasons I have outlined support the orders that I made on February 27, 2013.
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.
Further to my recent post on this topic, the law regarding the Affidavit Prohibition at Case Planning Conferences and Trial Management Conferences appears to be taking shape. Useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, taking a common sense approach to this prohibition.
In this week’s case (Enns v. Cahan) the Plaintiff sued for damages under the Family Compensation Act. A trial management conference was held and the Defendant brought an application to strike the Plaintiff’s Jury Notice. The Defendant did not provide any affidavits in support of his application relying only on the pleadings and an expert report which was intended to be introduced at trial. The Defendant argued the case was too complex for a jury.
The application was dismissed with Madam Justice Gray finding that the case could appropriately be heard by a Jury. Prior to making this finding the Court provided the following useful reasons about when it’s appropriate for a contested application to be heard at a TMC given the affidavit evidence prohibition:
Rule 12-2(11) provides that:
(11) A trial management conference judge must not, at a trial management conference,
(a) hear any application for which affidavit evidence is required, or
(b) make an order for final judgment, except by consent.
Mr. Brun, Q.C., argued on behalf of Mr. Cahan that his application could proceed without affidavit evidence and on the basis of submissions by counsel alone. Mr. Brun provided the Court with a copy of the Bruce-Aldridge report and seeks to rely on that and the statement of claim as the basis for his application. Mr. LeBlanc argued on behalf of Mr. Enns that Mr. Cahan’s application requires evidence and that it is therefore one of the prohibited orders set out in Rule 12-2(11).
The new Rules include Rule 1-3 as follows:
(1) The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.
(2) Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to
(a) the amount involved in the proceeding,
(b) the importance of the issues in dispute, and
(c) the complexity of the proceeding.
The new Rules have procedures which enable the court and the parties to design the procedure necessary to resolve a particular issue which is in question. The question of whether an application requires affidavit evidence will not always be determined by what remedy is sought. The question of what is in dispute will play a role, as well. In this case, Mr. Brun’s submissions are based on the Bruce-Aldridge report and the statement of claim. It is not necessary to require the parties to go to the trouble and expense of preparing affidavits when counsel can simply provide the court with a copy of the report in question and the pleadings.
In my view, requiring affidavit evidence would not be consistent with the object of securing the inexpensive determination of every proceeding on its merits. Here, counsel agree that the Bruce-Aldridge report was tendered by Mr. Enns as a report he intends to rely on at trial as an expert report. As I have said, that report, together with the statement of claim, form the basis of Mr. Brun’s submissions. As a result, Mr. Cahan’s application can proceed as an application before the trial management judge.
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.
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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