ICBC injury claimants need to be prepared during the Pandemic to have their trial canceled or rebooked due to Covid-19 related issues. If this happens, a money advance can be requested from the judge. As a personal injury lawyer I have had an ICBC injury trial adjourn because the ICBC lawyer fell ill during Covid-19. We were successful in obtaining a money advance payment order for our client as part of the adjournment.
In this recent injury case, even though the lawyer tested negative for Covid-19 the trial was adjourned for five months. The lawyer was barred from the courthouse due to covid like symptoms and conducted cross examination from home, by video feed. The lawyer had difficult attending to her doctor due to the covid-19 protocol requiring her to self isolate. This situation is unique to the pandemic, in light of the Covid-19 guidelines and safety protocols that the Ministry of Health have put into place.
In the last year our Supreme Court has gone from complete lockdown due to the Covid-19 Pandemic back to conducting civil personal injury trial without juries. The Court has proven to be resilient. Judges, lawyers and legal support have had to shorten timelines and make decisions with less documentation. We have had to rely on the integrity and honesty of the lawyers to keep the system running. Here is what you need to know if trying to adjourn a trial due to a illness or a covid-19 related issue:
During the COVID-19 pandemic, video evidence is commonplace. It is not confined to witnesses testifying to routine or inconsequential matters. It is almost always tendered by consent. Judges have become accustomed to assessing the credibility and reliability of evidence given by a witness seen only on a video screen. Early concerns have been allayed, at least to some extent, by experience. (Kasatani v. Matsubara, 2020 BCSC 1960).
ADJOURNMENT: GENERAL PRINCIPLES
Rule 12-1(9) gives the court discretion to order the adjournment of a trial. The well established test on an adjournment application is that justice requires a balancing of interests of the plaintiff and the defendant. If a witness or lawyer has a medical condition that could impair the ability to conduct a cross examination, this does not mandate that there be an adjournment. It is one serious consideration which must be based on the evidence.( see Court of Appeal in Sangha v. Azvedo, 2005 BCCA 184 para 13)
If the lawyer is ill, there must be some evidence that the lawyer cannot be replaced by another competent lawyer and that the lawyer in fact cannot medically continue. Granting the adjournment would also have to be able to resolve the underlying issue. ( Dhillon v. Virk, 2014 BCSC 745 para 10, 34 and 35)
In the Sangha case the ICBC injury claimant was admitted to the hospital for four days with chest pain and a stent was implanted into his heart. He produced a letter from a cardiologist and his family doctor advising him to rest and not to work for two weeks. In the Dhillon case, the plaintiff produced medical notes and underwent a scan at Peace Arch Hospital during the trial. In both of those cases adjournment was refused.
The requirement for documentation has been lightened on account of the pandemic. it is however still prudent that the medical note or letter supporting the illness confirm the diagnosis and duration of the illness. If there there is no certainty that granting an adjournment will resolve the underlying concern the adjournment will not be granted. As Covid-19 restrictions continue with no current end date, this issue may arise again when trying to re-set a trial or presenting your injury case to the court.
If a medical condition is not established, it is not sufficient for counsel to say that she cannot be ready for trial. She must give a more substantial reason than that ( see W. Thomson & Co. v. British American Assurance Co. (1930), 43 B.C.R. 194, 1930 CarswellBC 158 (B.C. C.A.) Followed by Navarro v. Doig River First Nation, 2015 BCSC 2173.
COVID-19 AND PREJUDICE
If a trial is adjourned an injury claimant will often suffer the following prejudice:
a. Adjournment will be very stressful for and may in fact exacerbate already vulnerable psychological conditions;
b. Significant increases costs for expert cancellation fees;
c. Fading memories of witnesses and the claimant;
d. Duplication of the Plaintiff testimony;
e. Changes in the Expert Evidence Regulations which may reduce entitlement to disbursements;
f. Additional court attendances;
g. The Financial hardship.
There is often no prejudice to ICBC in proceeding with this trial for the following reasons:
a. All parties experts are often ready to proceed and ICBC has the benefit of a team of lawyers;
b. ICBC has had the benefit of independent medical assessments; and
c. The ICBC knows what the claimant will say on all issues based on pre trial depositions.
MONEY ADVANCES FROM ICBC ON ADJOURNMENT
The authority for a money advance payment order requiring ICBC (technically the defendant) to pay a claimant if an adjournment is granted is Serban v. Casselman (1995), 2 B.C.L.R.(3d) 316 (C.A.) In the event adjournment is ordered it should be a term that there be an advance payment to the injury claimant. This is especially true if liability is admitted and the only issue is quantum of damages.
If adjournment is ordered generally there is no certainty as to when this case will be heard and it could be another two years. In Velji v. Sangha, 2015 BCSC 2459 Ms. Small from our law firm was successful in obtaining an advance of $125,000.00 on an adjournment application in a personal injury case. The law has changed for car accidents occurring after April 1, 2019 and advances may not be treated in the same way for ICBC Minor injury Claims.