Court Grants Trial Adjournment So Plaintiff Can Provide Further Medical Evidence

Rule 12-1(9) of the Supreme Court Civil Rules gives the Court the authority to adjourn a trial date. There can be many different reasons why one party may request an adjournment of the originally scheduled trial date.

 

In Jurczak v. Mauro , the Plaintiff sought a trial adjournment at a trial management conference in order to be able to provide further medical evidence, as the original doctor that the Plaintiff sought a report from would not produce the needed report. The Court, balancing the interests of the parties by considering the prejudice that would be suffered by either side, granted the adjournment, ruling that the Plaintiff would suffer more prejudice by not having the further medical evidence presented at trial, as opposed to any prejudice to the Defendant occasioned by any delay.

 

 

 

[4]             Both counsel were concerned that the adjournment application could not be heard at the TMC and consented to the TMC being immediately converted into a chambers application so that I could deal with the matter.  Neither wished to set down and appear on a separate application in chambers.  In my view, the adjournment application could properly have been dealt with as part of the TMC without the need to pretend the proceedings were something different.

 

 

 

[5]             In Vernon v. British Columbia (Liquor Distribution Branch), 2010 BCSC 1688 [Vernon], Goepel J. held that an application for adjournment of the trial could not be heard at a TMC.  In that case, the defendant sought an adjournment and relied upon counsel’s oral statements that he had been unable to obtain certain expert reports in the limited time available.  The plaintiff filed an affidavit detailing the prejudice she would suffer if the trial was delayed.

 

 

 

[6]             Goepel J. held that statements of counsel could not be accepted as evidence and the matter was one requiring affidavits.  The Court was being asked to exercise judicial discretion in order to balance competing interests.  Statements of counsel could not provide a proper evidentiary foundation for the exercise of that discretion.  Referring to both TMCs and Case Planning Conferences, Goepel J. continued at paras. 23 and 24:

 

 

 

[7]             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.

 

 

 

[ approval 11]       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.

 

 

 

[ approval 12]       In this case, because counsel consented to treat the matter as a chambers application, I had affidavit evidence before me.  I concluded that if there was no adjournment, the plaintiff would be forced, through no fault of her own, to proceed to trial without evidence that may be critical to her case.  I found that prejudice to the plaintiff outweighed any prejudice to the defendant arising from delay.  However, none of the affidavit evidence before me was particularly helpful on that point and I did not find it to be necessary.

 

 

 

[17]          Counsel for the defendant referred in her submissions to prejudice that may always be presumed to arise from delay and said that, had she known the plaintiff was seeking further medical evidence, she might have taken different or additional steps or taken a different approach to various pre-trial proceedings. I considered that submission and weighed the stated prejudice against the prejudice to the plaintiff if the adjournment was denied.  The point, however, is that this was a submission by counsel.  There was no affidavit that expressly deposed to that prejudice, nor was one necessary.

 

 

 

[18]         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.

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