Tag: Short Leave Applications

ICBC Changing Counsel at “11th Hour” Not an “Emergent Circumstance” Justifying Short Leave

Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, dismissing short leave for three ‘last minute‘ applications.

In the recent case (Agelakis v. Xu) the Plaintiff was injured in a collision and sued for damages. One month before trial ICBC brought in a new defence lawyer.  Two weeks before trial that lawyer sought short leave for three applications, namely for document disclosure; a further examination for discovery of the plaintiff; and removal of the proceedings from fast track litigation.

The Court held that these applications may have been dismissed on the merits however short leave was simply not appropriate as these last minute request would unfairly cause ‘dramatic upheaval‘ to the Plaintiff’s trial preparation efforts.  In dismissing the request for short leave Master Muir provided the following reasons:

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Short Leave Application Denied in Case of "Manufactured Urgency"


Rule 8-5 of the BC Supreme Court Rules allows an application to be brought on short notice in cases of “urgency”.
A transcript of proceedings from the BC Supreme Court, Nanaimo Registry, was recently shared with me denying a short leave application in a case of “manufactured urgency”.
In the recent case (Thuler v. Garcia) the Plaintiff was injured in a motor vehicle collision.  The Plaintiff exchanged various expert reports in compliance with the timelines set out in the Rules of Court.  The Defendant requested that the Plaintiff attend a Defence Medical Exam with an orthopaedic surgeon to obtain a responsive report.  The Plaintiff refused to attend unless compelled by the Court.
The Defendant brought a short leave application two days before the scheduled Defence Medical Exam seeking permission to bring the main application that same day.  The Plaintiff opposed short leave being granted arguing  “the reason that I say that this is manufactured urgency is that there is six weeks in order to have a response report prepared.  If it is the case that the plaintiff is eventually ordered to attend that independent medical exam, then there is no reason that this couldn’t be brought within the normal timelines
When pressed on the point of urgency the defendant countered that “It’s urgent in the sense that we would like to just get it done.”
Mr. Justice Silverman agreed no urgency existed and dismissed the short leave application.  In doing so the Court provided the following comments to the Defendant:
All right.  I’m against you on that…In my view, it’s not urgent.  You’ve got enough time to do it by giving appropriate notice.  The matter can be heard on that basis.  It may well be you’ll still be entitled to your order if the plaintiff is not willing to go, but in my view, it’s not urgent to require short leave so that I am denying that application“.
To my knowledge this Excerpt of Proceedings is not publicly available but as always I am happy to provide a copy to anyone who contacts me and requests one.

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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.

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