If ICBC is not ready for trial, it can apply to the court for an order adjourning (rescheduling) it to a later date.  The court will not automatically adjourn a trial.  There is a heavy burden on ICBC to prove why an adjournment is necessary before the order is granted.  If the order is denied, then the matter will proceed to trial as scheduled.

Rule 12-1(9) gives the court discretion to order a trial adjournment. The well established test on an adjournment application is that justice requires a balancing of interests of the injured claimant and ICBC. The potential prejudice to the parties if the trial is adjourned is the most important consideration.  For example, a trial adjournment may cause a significant prejudice to the injured claimant in the following ways:

  • adjournment will be very stressful for and may in fact exacerbate already vulnerable psychological conditions;
  • significant increases costs for expert cancellation fees;
  • fading memories of witnesses and the claimant;
  • duplication of the injured claimant’s testimony;
  • changes in the Expert Evidence Regulations which may reduce entitlement to disbursements;
  • additional court attendances; and
  • financial hardship.

On the other hand, there is often no prejudice to ICBC in proceeding with this trial for the following reasons:

  • all parties experts are often ready to proceed and ICBC has the benefit of a team of lawyers;
  • ICBC has had the benefit of independent medical assessments; and
  • ICBC knows what the claimant will say on all issues based on pre trial depositions.

In Henry v. Fontaine 2022 BCSC 733, ICBC asked for a last minute order adjourning an ICBC trial.  ICBC delayed scheduling the application without a sufficient reason why.  IAs a result of this delay, the application took place a mere 6 days before the start of the trial.  The injured claimant argued that this is just a third attempt by ICBC to try to get what they have not been able to get (the adjournment of the trial).  It was further argued that it was inappropriate, particularly this late in the day.  The injured claimant would be severely prejudiced, aside from the usual prejudice from a delay in a trial date.  In fact, the injured claimant and his medical team had spent time and effort getting ready for the trial only to be faced with this urgent short leave application for an adjournment.

The trial judge dismissed the application and ordered the trial to proceed as scheduled:

[11]         It is now 4:20 p.m., well after the court regular time.  It has taken, as I said, eight days to bring this short leave application for a trial that is scheduled to commence in six business days.  The defendant is seeking to adjourn the trial, meaning that in order for this to be heard with any efficiency and to prevent unnecessary trial preparation, it would have to be heard relatively early next week. Although I do note that some of that could be addressed by an order for trial prep costs thrown away. 

[12]         To put it in a way that I framed it to the defence counsel, there is some irony in the fact that they are seeking to bring forth an application with the plaintiff having only one or two business days to respond, despite being unable themselves to prepare the materials in seven or eight days.  Quite simply, Defence counsel has not been exhibiting the sense of urgency that they ask this court to find exists in order to grant short leave. 

[13]         I note that this court, in particular Justice Kent, has commented in Forstved v. Kokabi, 2018 BCSC 111, which I commented upon recently in Kaur v. Bual, 2021 BCSC 998, as to the last‑minute applications for production of documents, and while it is not entirely on point, the comments there do address some of this last‑minute scrambling that affects the ability of a party to prepare for trial.

[14]         At para. 17 of Forstved, Justice Kent specifically noted:

…Trial time is a precious commodity and efficiency is required for the system to work effectively and in a manner that is fair to all participants.  Parties should approach preparation for trial and any related applications to compel additional production much earlier than was evidently done in this particular case.

[15]         I say that sentiment is equally applicable to bringing an application for an adjournment of a trial, and for those reasons, specifically that any urgency is not because of the urgency in the matter itself which was, or ought to have been known, for many weeks, but as a result of the defendant not bringing the application in an urgent way.  As such, I am denying short leave for the application. 

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