Trial Adjourned After Plaintiff “Comedy of Errors” Leads to Lack of Medico-Legal Evidence

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:

[14]       The Court is not impressed by the contents of the lawyer’s affidavit filed in support of the adjournment application. It does not disclose the nature of the plaintiff’s injuries or the nature and extent of medical treatment received by the plaintiff since the accident. It does not disclose what sort of clinical records or other documents are available or have been obtained in relation to the plaintiff’s injuries and treatment. It does not explain why an “independent” medical examination of the plaintiff is necessary. It does not disclose the law firm’s usual practice and procedures for preparing cases for trial and why, knowing full well that the trial was scheduled for June 8, 2020, the plaintiff’s file was not reviewed by co-counsel (or others) before the first week of May 2020.

[15]        Having said the above, however, I accept the judgment of plaintiff’s counsel that an independent medical examination of the plaintiff is necessary in this case so that expert medical evidence can be tendered at trial to advance and substantiate the plaintiff’s personal injury claim before the Court. Counsel accepts responsibility for inadequate trial preparation and there is no suggestion (nor could they be) that the plaintiff in any way caused or contributed to the problem.

[16]        As noted above, the affidavit tendered on the behalf of the defendant in opposition to the adjournment application does not testify to any prejudice any adjournment would cause the defence. In his Application Response and his written submissions, defence counsel suggests an adjournment of the trial “will result in further time and expense for the preparation of trial” at a later date. He does not articulate what expenses have been incurred that will be “thrown away” nor, indeed, does he describe what has actually been done to prepare for trial.

[17]       Defence counsel also speculates that a trial adjournment will result in “increased expert witness costs” inasmuch as a further independent medical examination and report from the expert will have to be obtained closer to the subsequent trial date. I accept that this may be a possibility but at this point in time it is simply speculation.

[18]        In my view, the overall interests of justice strongly militate in favour of an adjournment of the trial in this case. The paramount consideration is to ensure there is a fair trial of the plaintiff’s claim on the merits. The plaintiff is not responsible for the failure of his lawyer to diligently prepare for trial in a timely way. Liability has been admitted and there is no irreparable evidentiary prejudice that the delay in the trial will cause the defendant.

[19]       In the result, I make the following order:

1. The trial of this action currently set for June 8, 2020 is adjourned;

2. The parties will immediately attend upon Supreme Court scheduling to secure the next available convenient date for the trial of this action;

3. A trial management conference will be held in this case no later than 90 days before the new trial date and all medical evidence, including any expert opinion evidence, intended to be relied upon by the plaintiff at trial will be notified to and, where necessary, served upon the defendant before the date of the trial management conference; and

4. The defendant is granted leave to conduct one further examination for discovery of the plaintiff if necessary before the date of the trial management conference or thereafter if permitted and as directed by the Judge or Master presiding at the trial management conference.

[20]       The plaintiff has succeeded in securing an adjournment and ordinarily would be entitled to the costs of this opposed application. However, the Court cannot condone the conduct of counsel which was the cause of the adjournment and will exercise its discretion by refusing to award costs. It is also the expectation of the Court that plaintiff’s counsel and his firm will absorb all fees and expenses incurred in relation to this adjournment application and will not bill the same to his client.

[21]       The defendant requests that if an adjournment is granted, he should be paid “costs of this application thrown away”. It is not clear to the Court what is meant by the phrase “thrown away” but if the intention is to seek costs of the application regardless of success, the request is declined. This is a situation where the defendant was seeking to visit the sins of the lawyer upon a blameless plaintiff client to whom liability has been admitted and in the absence of any meaningful evidentiary prejudice. It should have been obvious from the outset that an adjournment would be granted.