Court Allows Trial Adjournment For Plaintiff To Produce Medical Report

In Barlow v. Smoch , one of the experts retained by counsel for the Plaintiff failed to produce a medical report on time. The lawyer for the Plaintiff sought a trial adjournment, however ICBC’S lawyer opposed, arguing that it would be prejudicial to his client. The Court allowed the adjournment, ruling that it would be prejudicial to the Plaintiff if the trial proceeded.


[ approval 15]           So is there a rationale for the application for adjournment?  If one is addressing trial tactics, I would say there is.  There may also be, although it is not deposed to specifically, that further investigation of the medical condition of the plaintiff might be required, if it pans out that there is some indication about the plaintiff’s balance problems that may come to light with Dr. Stewart’s report. 


[ approval 16]           Essentially, the defendants have said there are three points in issue here: liability is in issue, and there is a concern about the waning memory of Mr. Hilborn, the truck driver defendant, because he is currently 73 years of age.  There is also the issue that the defendants say the medical evidence has been fully and completely developed, and that really there is no need at this juncture for any further medical evidence, and lastly, that it is a premature application.  In any event, there is a trial management conference scheduled for 11 days from now and the application for adjournment would be more aptly brought at that time, although applications at trial management conferences generally do not have any affidavit material, because there is a prohibition against affidavit material being brought before the judge at the trial management conference currently in the rules.


[17]         I have to make a determination, I think, based upon the cases that define the discretion that a master or judge must utilize in an application such as this, which is to balance the prejudices that may or do exist for each of the parties in relation to the application for adjournment.


[18]         The defendants ask me to consider the age of the defendant Hilborn in relation to that and his possible waning memory.  The plaintiff’s counsel says if that should or continues to be an issue, then the parties could easily schedule a video deposition of Mr. Hilborn and have his evidence preserved for posterity in the event that, if this matter is adjourned, Mr. Hilborn is not available due to illness or death, and that his evidence could be put forth before the court by video.


[19]         The other side, the plaintiff, whilst maybe not saying it specifically, impliedly says the prejudice to the plaintiff is so, because he has not been able to put all of the information before the court to assist the court in reaching a determination with respect to calculations of future care costs and future loss of income, that the plaintiff would be significantly prejudiced by that. 


[20]         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.


[21]         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.


[22]         When I say unexplained, I do not say that meaning plaintiff’s counsel has not explained it; I mean Dr. Nairn Stewart 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.


[23]         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, Dr. Stewart’s lack of production of the document requested that has ultimately resulted in the adjournment of the trial.

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