Category: Trial Date : Restoring

Court Relies On Rule 12-1(9)(b) In Restoring Trial Date After Trial Certificate Not Filed In Time

Before an ICBC injury claim proceeds to trial, a Trial Certificate must be filed within 14 days of the trial date, certifying that counsel is ready to proceed on the given trial date, that Examinations for Discovery have been completed, and that a Trial Management Conference has been conducted.


What happens, however, when counsel fails to file the Trial Certificate in time, causing the trial date to be removed from the trial list ?


This issue was discussed in the case of Knowles v. Lan. The Plaintiff had been injured in a motor vehicle collision, and subsequently brought an ICBC claim for pain and suffering, as well as other types of damages. Prior to trial, ICBC’S lawyer made an application to adjourn the trial, however the application was denied. Later on, counsel for the Plaintiff forgot to file the Trial Certificate in time, causing the matter to be removed from the trial list. The Court, relying on Rule 12-1(9)(b), restored the trial date.


[25]         In my opinion, a party who seeks to have a trial restored to the trial list must first obtain leave to file a trial certificate “late,” under Rule 22-4 (2). If such leave is granted, and a trial certificate is filed in accordance with the order, that filing would not have the effect of restoring the trial to the trial list from which it had been removed. Could the court make such a restoration order, under Rule 12-4 (5)?

[26]         In my opinion, Rule 12-4 (5) should be read so as to include the additional underlined words, as follows:

(5)  Unless the court otherwise orders, if no party of record files a trial certificate in accordance with sub-rule (2), the trial must be removed from the trial list.

[27]         In my view, Rule 12-4 (5) is designed to prevent an action being removed from the trial list for failure to file a trial certificate as required by subrule (2). It does not state that, if a trial has been removed from the trial list, the court may restore that trial to the trial list. Nor do I think that such a power is implicit in that subrule. In order to preserve a trial date by invoking this Rule, I think the application and the order would have to be made before the 14 day deadline. That was not done here, and so this rule cannot be relied upon.

What Rule or Rules give the court authority to restore an action to the trial list?


[28]         The defence suggests that the court’s authority to restore a trial to the trial list can only be found in Rule 1-3, which states:

(1)  The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

[29]         It may be that Rule 1-3 provides inherent jurisdiction to make an order restoring this action to the trial list for March 4, 2013. But it seems to me that Rule 12-1 (9) provides specific authority to do this. Subrule (9)(b) states:

(9)  The court may

. . .

(b) fix the date of trial of a proceeding,

. . .