Rule 12-2(9) provides the Court with broad jurisdiction to make orders at a Trial Management Conference. Reasons for judgment were released last week by the BC Supreme Court, New Westminster Registry, confirming this power includes the ability to determine the admissibility of expert reports ahead of trial.
In the recent case (Tran v. Cordero ) the Defendant raised an admissibility concern regarding the Plaintiff’s expert report alleging bias. The Defendant argued that ultimately the trial judge will need to decide the admissibility issue. Mr. Justice Savage disagreed and found the Rules allow this to be dealt with by the presiding judge or master at a Trial Management Conference. The Court provided the following reasons:  The second matter concerns an objection to admissibility of the plaintiff’s treating physician’s expert report. The defendants say that one of their objections to admissibility of this report is the relation, which is described as a familial one, between counsel and the plaintiff’s treating physician. That relation it is said may give rise to the issue of bias which would prevent the admission of the report. Counsel for the plaintiff says this has been known and not until today, at the Trial Management Conference, raised as a factor regarding admissibility of the report. The defendants say this is not a matter I can deal with, but must be left to the trial judge.  I am advised that this is a ten day jury trial. In my view this objection is of such a fundamental nature to the ability of the trial proceeding fairly that it must be raised and determined prior to trial. In my view, the Court is clothed with the requisite jurisdiction under Rule 12-2(9). In the circumstances it would further the object of these rules, particularly the ability to justly, fairly, and efficiently determine the issues on the merits at trial, that if the defendants intend to rely on this objection, that the application must be made and set down for hearing prior to trial and within two weeks of today’s date. I so order.
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:  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  S.C.C.A. No. 120.  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.  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.  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.  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.  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.  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.
Last year I discussed the fact that the BC Supreme Court can deal with Jury Strike applications both under Rule 12-6(5) and also as part of the trial management process. Reasons for judgement were released last week by the BC Court of Appeal (Wallman v. Gill) addressing this reality but also providing comments on the limits of when the trial management process is an appropriate forum for such an application. The Court provided the following feedback: 23] By analogy, although the application to strike the jury in this case was heard by the judge who had been appointed to manage the action, he did not hear it in the course of a trial management conference under R. 12-2(9), but in regular chambers under R. 12-6(5). Indeed, he could not have heard it at a case management conference since it is evident the parties filed affidavits on the application, and this would not have been permitted under R. 12-2(11)(a). Thus, the order striking the jury is not a limited appeal order.  I would be sympathetic to the plaintiff’s argument that the Legislature did not intend to create a “two-tier” system for appealing orders directing the mode of trial if I were satisfied that was the practical effect of this ruling. However, I am not convinced that this is the case. This argument fails to recognize the unique role of the case management conference. It is held late in the proceeding, when the trial is sufficiently imminent that the parties have been able to prepare a comprehensive trial brief, and meet in person with the judge to make informed decisions about how the trial will proceed. In this limited context, R. 12-2(9)(b) permits a trial management judge to decide whether the trial should be heard with or without a jury, either on application by one of the parties or on his or her own initiative, and without affidavit evidence. I venture the view that this power will be exercised rarely. If the parties have been unable to agree on the mode of trial, it seems most unlikely they would leave this to be determined late in the day at a case management conference, without the benefit of affidavit evidence. It is reasonable to assume that, instead, there will have been an earlier application under R. 12-6(5) to determine this issue. Further, it seems unlikely a trial management judge would then consider revisiting an earlier order dealing with mode of trial or, if no earlier application had been brought, alter the mode of trial in a summary manner late in the day.
Rule 12-6(5) imposes a 7 day deadline in which to dispute a jury notice. As previously discussed, the former rules of Court permitted parties to get away from this time limit by applying to strike a jury at a pre-trial conference. With the overhaul of the civil rules does this exception still apply? Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, finding that it does.
In yesterday’s case (Cliff v. Dahl) the Plaintiff was ‘severely injured‘ in a 2007 collision. The Plaintiff’s claim was set for trial and the Plaintiff filed a jury notice. The Defendant brought an application to strike the jury notice but failed to do so within the timelines required by Rule 12-6(5).
The Defendant’s application was ultimately dismissed on the merits but prior to doing so Madam Justice Bruce provided the following reasons confirming the 7 day jury strike deadline is not strictly applied under the current rules: Under the old Rule 35(4)(a), a pre-trial conference judge, the trial judge or a master could make an order that a trial be heard without a jury. The court interpreted this provision broadly; it permitted the application to be made outside the seven day time limit imposed in old Rule 39(27), which is for the most part identical to the new Rule 12-6(5). While the old Rule 35(4)(a) does not appear to have found its way into the new rules, the rationale behind permitting applications outside the strict seven day time limit remains consistent with the intent and purpose of the new rules. The ability to apply to strike the jury notice outside the strict time limit was necessary to ensure a fair trial and the court’s ability to respond to a change in circumstances surrounding the conduct of a trial. Further, it is apparent that a trial management judge has authority to grant the relief claimed by Ms. Dahl without any reference to the seven day time limit: Rule 12-2(9)(b). Lastly, the court has a discretion to extend time limits in appropriate circumstances without the necessity of a separate application: Rule 22-4(2).
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.
(Note: this area of law is still developing, for a further case addressing this issue click here)
Two of the biggest changes under the New Supreme Court Rules are the introduction of Case Planning Conferences and mandatory Trial Management Conferences (CPC’s and TMC’s).
The New Rules give the Court significant powers to make various orders with respect to the conduct of lawsuits at these hearings. Interesting reasons were recently brought to my attention addressing the limit of the Court to address contested matters at CPC’s and TMC’s.
In the recent case (Vernon v. British Columbia (Liquor Distribution Branch)) the Plaintiff sued the Defendant for wrongful dismissal. As the lawsuit progressed the parties attended a Trial Management Conference. At the TMC the Defendant asked for various orders including an adjournment of the upcoming trial and a partial publication ban of the trial. These applicaitons were contested by the Plaintiff. Mr. Justice Goepel dismissed the applications finding that TMC’s and CPC’s were inappropriate forums for contested applications. The Court provided the following reasons:
 The issue in this case is whether counsel’s statements provide a sufficient evidentiary foundation for the orders that the defendant seeks. The applications for an adjournment and a publication ban both require the exercise of judicial discretion to consider competing interests. In the case of the adjournment, the contest is between the defendant’s need for additional time to prepare its case and the potential prejudice to the plaintiff if the case is adjourned. With regard to the publication ban, the court must weigh the salutary effect
 The adjournment and publication ban applications both require a proper evidentiary foundation. Statements of counsel alone are not sufficient. To paraphrase Lambert J.A. in Nichols, where statements of counsel stand alone, it will be a rare case that such statements will be sufficient to justify a finding of fact that would permit the exercise of judicial discretion. This is not such a case.
 While CPCs and TMCs have a role to play in the orderly progress of litigation, they are not generally the forum to determine contested applications. Such applications will usually require affidavit evidence and pursuant to the provisions of Rule 12-2(11) and 5-3(2) applications requiring affidavit evidence cannot to be heard at such conferences. In this case affidavit evidence is necessary to determine the defendant’s applications for an adjournment and a publication ban. Those applications cannot be heard at a TMC.
 This is not to say that a judge cannot make orders at a CPC or a TMC. Clearly, a judge can. Many of the orders contemplated at such a conference will not require applications or affidavit evidence. The Rules allow a judge to make an order absent an application. Many of the orders suggested in the respective rules are procedural in nature and more in the nature of directions. Such orders can be based on the representations of counsel. An example is the present application concerning the order of proceedings at trial.
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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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