Tag: Rule 12-1(9)

The BC Supreme Court and Adjournments of Lengthy Trials: The "20-Plus" Program

Written by admin on November 22, 2010. Posted in BCSC Civil Rule 12, Civil Procedure, Uncategorized.

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:

[3] 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.

[4] 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.

[5] 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.

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“.

"Proportionality" Given First Judicial Interpretation, Severance of Liability and Quantum Considered

Written by admin on August 31, 2010. Posted in BCSC Civil Rule 1, BCSC Civil Rule 12, Civil Procedure, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, interpreting two topics under the New BC Supreme Court Civil Rules, the test of “proportionality” and the circumstances permitting a Court to sever liability (the issue of fault) from quantum (the value of a personal injury claim).
In today’s case (Cayou v. Cayou) the Plaintiff was injured in an intersection collision in 2006. The Plaintiff was the front seat passenger in a vehicle being driven by her daughter. The Plaintiff sued the drivers of both vehicles. ICBC alleged that the Plaintiff was in breach of her policy of insurance and intervened as a statutory Third Party. The Plaintiff’s claim was set for trial in November to be heard by Judge and Jury. The Plaintiff applied for an order seperating quantum from liability seeking to have the issue of fault determined by Judge alone.
Mr. Justice Wilson dismissed the application and in doing so found that the New Rules of Court dealing with severance of issues are identical to the old rules therefore old precedents should retain their value as guiding authorities. Specifically Mr. Justice Wilson held as follows:

[22] The plaintiff’s application is said to be made pursuant to Rule 1-3 and 12-1(9), of the Rules of Court.

[23] Rule 1-3 directs the court on the object of the rules, including the notion of “proportionality”.

[24] Rule 12-1(9) confers upon the court a power to adjourn a trial.

[25] Although not stated, the plaintiff also, presumably, finds authority for her application in Rule 12-5(67) and (68).

[26] Rule 12-5(67) confers a power on the court in these words:

(67) The court may order that one or more questions of fact or law arising in an action be tried and determined before the others.

[27] Rule 12-5(68) confers a power on the court in these words:

(68) The court may order that different questions of fact arising in an action be tried by different modes of trial.

[28] There is a change in the wording between Rule 12-5(67) and the former rule, Rule 39(29).

[29] I conclude that the power to sever issues is the same in substance between the former rule and the current rule.

[30] The governing principles established for the exercise of the power conferred under the previous rules have been established. Since I find that the power conferred under the new rule is the same as the old rule, I conclude that the principles defined under the former rule must be considered.

The Court went on to note that while the law of severance of issues remains the same the Court now must consider the overarching purpose of ‘proportionality’ when applying the Rules of Court. This is the first case I’m aware of addressing this principle. Mr. Justice Wilson provided the following comments:

[48] To the framework of analysis under the pre-existing rule, must be added a consideration of the objective of “proportionality” mandated by Rule 1-3(2):

(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.

[49] Expense was the sole factor urged by the plaintiff in support of severance. In the event of a review, however, I will set out my findings on the factors prescribed in the rule.

[50] First, I take the “amount involved” to mean the quantum of monetary damages awarded to the plaintiff as the result of a successful prosecution of her lawsuit.

[51] This factor was not argued. But, seemingly, the method of trial currently extant is proportionate to, that is to say, “duly related” to, the amount involved. I find this factor to be neutral.

[52] Second, the issue of credibility is important to the issue of fault, and, I am told, to the issue of quantum.

[53] For the reasons given above, for deciding against severance on the ground of interconnected issues, I find that one trial of all issues is proportionate to the expense to be incurred, to conduct one trial.

[54] Severance, for the economic reasons advanced in this case, by denying the trier of fact all of the evidence on the issue of credibility, would be disproportionate to the twin objectives of a just and speedy determination of the action, on its merits.

[55] Third, I would not characterize this action as one of complexity.

[56] Mr. Shumka is probably right. This action arises out of a routine intersection collision, involving a vehicle turning left in the path of an oncoming vehicle, with its attendant personal injuries. In the event, there is nothing on the record to suggest that complexity was a factor contributing to the notion of proportionality.

[57] No other factors (other than economical) were identified.

[58] In result, the plaintiff’s application is dismissed. Costs of the application will be in the cause, pursuant to Rule 14-1(12).

ICBC Injury Claims, Trials and Adjournments – Let's Be Reasonable

Written by admin on February 26, 2010. Posted in Civil Procedure, Uncategorized. 105 Comments on ICBC Injury Claims, Trials and Adjournments – Let's Be Reasonable

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).