In Gee v. Basra, the Plaintiff was injured in a motor vehicle accident, and subsequently sued for damages. Liability was admitted on behalf of the Defendant by ICBC’S lawyer.

 

Within a week of the start of trial, counsel for the Plaintiff brought an application to adjourn the trial, based on the uncertain prognosis of the Plaintiff. The Plaintiff alleged to have been suffering from chronic pain and headaches, which affected her ability to work. Counsel for the Plaintiff sought an adjournment so that the Plaintiff could undergo a series of Botox injections in an effort to alleviate her headaches symptoms, with such treatment being recommended by the Plaintiff’s neurologist. The Plaintiff would not be in a position to do this before the commencement of trial.

 

The Court took note of the fact that the application was brought very late in the proceedings, considering that trial was set to start in less than a week.

 

The Court was left with having to balance the interests of justice in determining whether to allow the adjournment or not. Although the Court noted that there was prejudice to the Defendant’s in not having the matter proceed, this prejudice was outweighed by the prejudice that would be caused to the Plaintiff if she did not have the opportunity to undergo the recommended treatment, and thus be able to assess its results.

 

The Court granted the adjournment, but on the conditions that the Defendant was entitled to some throw away costs, a further independent medical examination, and a further half day of Discovery.

 

[17] In plaintiff’s counsel’s affidavit, she deposes at paras. 5 and 6:

 

The plaintiff took time over the Christmas holidays to consider treatment options and in January of 2016 began making efforts to receive Botox injections. The earliest appointment date she was able to obtain was March 10, 2016. The current trial date does not allow the plaintiff to pursue treatment recommendations of her doctors.

 

[20] I conclude that this is not a situation similar to Sidoroff. All questions affecting the justice of the case will not be before the trial judge. He will not know whether Botox is effective to ameliorate the headaches. The judge will not even be able to have estimates of the chance of the Botox working. No such evidence is in the materials, and in fact in the passage I previously cited from Dr. Spacey, she cannot fully comment on prognosis until the plaintiff has undergone a trial.

 

[21] That prejudice caused to the plaintiff if she cannot undergo the treatment and assess its results significantly outweighs prejudice to the defendants, who, as noted, have admitted liability. The prejudice to the defendants can be ameliorated largely in costs.

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 Wall v. Kexiong, the Plaintiff was injured in three motor vehicle accidents, and brought ICBC claims for each. A trial date was set, to hear all three matters at the same time. Prior to the trial, the Plaintiff was injured in a fourth accident, but as the original trial date neared, formal legal proceedings had not yet been commenced with respect to the fourth accident. ICBC’S lawyer sought an adjournment on the basis that the Plaintiff may commence an action in regards to the fourth accident. The Court did not grant the adjournment request, commenting that :

 

[3] On June 24, 2014, the plaintiff was involved in a fourth accident. She has not commenced an action for the fourth accident. The fourth accident is apparently one in which liability is likely to be contested. The defendant in the current action argues that the fourth accident is unlikely to be resolved via settlement and that the plaintiff will undoubtedly be required to bring an action with respect to that accident.

 

[4] The defendant also points out that the expert reports provided in this matter already opine based on all four accidents. For example, the past and future income losses are calculated using all four accidents. The general practitioner discusses the fourth accident as resulting in injuries to the neck, back and shoulders of the plaintiff. The defendant argues that these injuries are indivisible in that they were an aggravation of prior injuries.

 

[5] The defendant relies on the Court of Appeal decision in Garcia v. Drinnan, 2013 BCCA 53, which discusses the problems of separate trials in cases of indivisible injuries and the potential for overlapping or inconsistent treatments of the same facts, overlapping forms of proof, and the court quotes from the judge below:

 

[15] The issue of the extent of the indivisible injuries, as well as the assessment of the damages suffered as a result of them are issues that must be answered in both actions, as will be the issue of whether the plaintiff has appropriately mitigated his damages. On the face of it, it is possible for the finder of fact in each case to come to a different conclusion on those issues. That may well be embarrassing to the administration of justice.

 

[6] I do not disagree with the defendant’s view of the issues where there are indivisible injuries. It is common that sequential accidents that result in indivisible injuries are tried together for precisely the reasons advanced by the defendant.

 

[7] The concern that I have here is that, with respect to the fourth accident, there has been no action commenced, and although the defendant urges on me that it is almost a certitude that the fourth accident will result in an action, that remains still, in my view, a matter of some speculation.

In Gillespie v. Pompeo, the Plaintiff was shot and injured by a police officer. The police officer was convicted at trial on a charge of aggravated assault. The police officer then appealed the conviction. Before the appeal was disposed of, the Plaintiff‘s injury claim was set for trial. Counsel for the police officer made an application to adjourn the trial until the appeal of the criminal conviction was disposed of. The Court granted the application, commenting that :

 

[11] Section 71 of the Evidence Act, R.S.B.C. 1996, c.124, provides that a conviction that is not subject to appeal, or from which no appeal is taken, may be admitted as evidence on a civil trial as proof that the convicted person committed the offence.

 

[15] Defendant’s counsel submitted that the presently scheduled civil trial in June will involve a second full trial on precisely the same evidence and issues as those already given a comprehensive airing on the criminal trial in Provincial Court. The same witnesses will be called on the issue of liability and the same defence of justification under section 25 of the Criminal Code will be advanced.

[16] Defendant’s counsel has conceded, quite properly, that there can be no civil trial on the question of liability if the conviction stands and all appeals are abandoned or exhausted.

[19] As things stand, the defendant has been criminally convicted of aggravated assault. There can be no assumption at this stage that a civil trial will yield a different or more accurate result. If the conviction is upheld it will be the end of the matter for the purposes of liability, and a civil trial conducted in the interval will have been a colossal waste of judicial resources and the time, money and effort of the parties and witnesses alike. Finally, dual proceedings on the same issues and facts give rise to the spectre of inconsistent verdicts, an eventuality to be avoided in the interests of maintaining the credibility of the judicial process.

[20] For these reasons I conclude that an adjournment of the civil trial is in the best interests of justice.

 

In Van Gils v. Grandmaison, the Plaintiff was injured in a motor vehicle accident, and subsequently brought an ICBC claim for pain and suffering, as well as other forms of damages, such as loss of housekeeping capacity, diminished earning capacity, and cost of future care. At a Trial Management Conference before the originally scheduled trial date, it became apparent that an adjournment was necessary, mainly in order to accommodate additional time required by the Defendant to call more witnesses. Due to financial difficulties of the Plaintiff, counsel for the Plaintiff made an application for an order requiring the Defendant to advance funds to the Plaintiff. The Court granted such an Order.

 

[5]             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 [1995] S.C.C.A. No. 120.

 

[6]             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.

[7]              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.

[12]         In addition, the material shows that Mr. Van Gils is in financial difficulty and will now have to wait until sometime in September of 2014 (the earliest date that a new trial can be set in accordance with counsel’s calendars and court availability) to find out what damages he will be entitled to.

[13]          I must also be “completely satisfied” that there is “no possibility” that damages could be awarded in a lower amount than any advance. This is not in any way a prediction of the possible outcome of the trial, which is an impossible task in any event at this stage and on this material. Rather, it is a negative assessment — identifying the point below which it is certain that the damage awards will not fall.

 

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.

In Cochrane v. Heir , the Plaintiff required surgery shortly before the trial was to begin. Uncertain as to her prognosis, the lawyer for the Plaintiff sought an adjournment, which ICBC’S lawyer opposed, claiming that the surgery was not related to injuries arising from the motor vehicle accident in question, and that consequently the adjournment was not necessary.

 

[3]             There is some medical evidence before the court to the effect that the plaintiff’s condition, prognosis and ability to return to work cannot fairly be assessed until after the surgery and after sufficient time has been allowed for rehabilitation.

 

[4]             Counsel for the defendant opposes the adjournment because this is, he submits, a unique case. In a nutshell, he says that the delays and behaviour of the plaintiff in presenting the case are characteristic of her conduct in other matters she has been involved in. In effect, he submits that I should discount the evidence in support of the adjournment. In particular, I should be sceptical of the suggestion of any causal link between the accident and the condition that has led to the proposed surgery, as well as the need or the surgery itself. All an adjournment will do is expand the trial and encourage further delay and obstruction in bringing this matter to trial.

 

[5]             Since I have decided that the interests of justice require an adjournment and since I am the trial judge, albeit with a jury, I have concluded that it would be unwise to comment directly on the evidence referred to by the parties in support of their positions. The issue of the causal connection between the accident, the plaintiff’s current condition and her alleged inability to work, are the primary matters that will be before the court for adjudication. Not to grant an adjournment would work relatively greater prejudice to the plaintiff than to the defendants by constraining her opportunity fully to present her case whatever its merits at trial.

 

[6]         Having concluded that an adjournment is necessary, I am of the view that it should be of the shortest reasonably possible duration. I request that the parties arrange a Case Planning Conference in April at which time deadlines will be imposed to bring this matter to trial and set a new trial date, if the parties have not agreed to one.

 

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.

In Jones v. Donaghey , the Plaintiff was injured as a newborn. The Defendant sought a trial adjournment in order to obtain additional medical evidence. The case was originally scheduled for a lengthy period of time. The Court dismissed the adjournment application, commenting that:

 

[3]             Although I address the balancing of the interests of the parties separately below, the public interest is also impacted by the scheduling, and any potential rescheduling of lengthy trials. Considerable public and judicial resources are tied up in the intensive pre-trial management and conduct of trials under what is colloquially known as the “20-plus” program. The court instituted the program some time ago to assist in the management and scheduling of complex civil cases.

 

[4]             Generally, in my view, every effort should be made to avoid the adjournment of trials once set under the program, as litigants in other cases have had to forgo the opportunity to set down their applications or trials for hearing, because either or both the trial management judge’s rota time and court time have been reserved for a 20‑plus case.

 

[5]             In more general terms, perhaps, Levine J., as she then was, referred to the need to consider such broader interests of justice when deciding an adjournment application respecting a long trial in Strata Plan VR No. 2000 v. Shaw, at para. 26. Justice Dorgan referred to the above with apparent approval in denying a defence application for an adjournment in J.S. (Guardian ad litem of) v. D.S., at para 17.

 

[6]             Here, the parties marshalled extensive affidavit evidence for the purpose of the adjournment application. I have also heard other applications in the course of case managing the litigation. I will not refer to all the evidence, but have considered it as it relates to the prejudice occasioned by the parties in granting or failing to grant the adjournment.

 

[11]           The plaintiffs anticipate calling up to 35 non-expert witnesses at trial and have, by my count, delivered 17 expert reports. Some of the experts are from outside the country. All experts are scheduled to testify.

 

[12]           Inevitably, an adjournment would add to the costs associated with the anticipated expert evidence, including some re-writing of reports to ensure the currency of the content. At least one significant lay witness is in her seventies and others appear potentially fragile, due to their life circumstances.

 

[13]          I have said on previous occasions that financial hardship associated with delay is prejudicial.

 

[14]           Apart from the foregoing, I also take into account here that CJ’s mother is now a single parent with limited means, living with CJ on a reserve. She has some access to transportation, but cannot afford a car. It is unclear whether the mother will be personally responsible for funding care, or rehabilitation expenses, for CJ, but the amount advanced in that regard by her, or on her behalf, totals more than $100,000.

 

[15]           I reviewed, and accept, the family’s limited financial circumstances, as outlined in the affidavit of Barbara Phillips who provides case management support for CJ. I also accept Ms. Phillips’ view that CJ would benefit now from additional private rehabilitation treatments and supportive care. Delaying the trial potentially further delays the availability of some of these services, in that liability remains in issue, and leaves the mother reliant on others in the meantime.

 

[16]           I listed these prejudices first simply because they appear obvious. The prejudice associated with denying the adjournment application, as claimed by the defendants is, with respect, not so obvious although I accept there is some potential.