This ICBC injury claimant, without a lawyer, failed to appear at his trial. The Judge dismissed the claim. In this court application the claimant sought leave to appeal the order dismissing his lawsuit for damages. The case arose out of a car accident that occurred in March 2015. He claimed that the defendants’ car rear‑ended his car, resulting in injuries to his head, spinal cord, shoulder, neck, back and leg, and emotional distress.
The claimant filed his notice of civil claim in March 2017, acting on his own behalf. ICBC responded through a lawyer. The claimant did retained a lawyer but 4 months before trial the lawyer withdrew. Shortly thereafter, the claimant filed a notice of intention to act in person.
ICBC argued that the claimant was solely at fault for the accident because he had made an “unsafe U‑turn directly in front of the Defendant”. The claimant had been given a violation ticket after the accident for making an unsafe U‑turn. According to the defendants, the police file also indicated that the claimant had said at the scene that he had made such a turn with the intention of travelling in the opposite direction.
On the date set for trial, he told the Court he had muscle pain, a headache, fatigue, anxiety and was depressed and needed an adjournment for six months. The judge told him that he seemed “very able to represent yourself right now, you are doing a good job, so what is the problem?” The judge noted that the medical evidence did not suggest that he was unable to conduct his case and that it would not be in the interests of justice to delay the trial further. In the result, the Judge said the case would be dismissed if he did not appear in person the next day ready to proceed. When the claimant did not appear the next day, the case was dismissed as abandoned.
In dismissed the appeal the Court of Appeal stated:
[14] The criteria for granting leave are well known: I must consider whether the issue(s) on the appeal has some merit; whether it is of significance to the practice; whether it is of significance to the action; and whether it would hinder the progress of the action itself. Obviously, the viability of the action is in jeopardy in this instance. The issue of adjournment is a fact‑intensive question that is unlikely to be of interest to the practice generally. More importantly, the merits of the proposed appeal are in my opinion very low, given the fact that Mr. N had already delayed the trial of his own claim by years. In all the time that has passed, he has not retained new counsel. If more time were given now to Mr. N , I consider that he still would not have counsel; nor would his condition have improved significantly. The accident occurred more than seven years ago and memories fade.
[15] In all the circumstances, I am not persuaded this court should, or would, second‑guess the ruling of the trial judge in the exercise of a discretion that engages the ability of the Supreme Court to control its own process. The judge concluded that it would not be in the interests of justice to adjourn yet again. I would dismiss the application for leave. (Niloufari v. Sheena,2022 BCCA 329)
This case is an example of why one should always seek legal advice before attending court or continuing a personal injury claim.