Plaintiff denied advance on tort claim, as court says it has “no jurisdiction to make the order”

In reasons released today, the court in Angrish v. Surrey (City), 2017 BCSC 374, dismissed the plaintiffs’ application for a $125,000 advance on their expected tort damages.  In Angrish, the plaintiffs brought an application for an order setting down trial dates, with a tort advance as a term of that order.  However, before the application was heard the defence agreed to the proposed trial dates.  As such, the defence argued the court lacked jurisdiction to make the order for the tort advance, as a tort advance could only be made as a term or condition of a separate, stand-alone, court order (such as an adjournment order).  In agreeing with the defence arguments, Madam Justice Duncan said as follows:

[28]         The plaintiffs’ position is that the Court has inherent jurisdiction, or jurisdiction under Rule 13-1(19), to grant an order for advance payments if the order is attached to another order (in this case, an order setting the trial date).

...

[38]         The jurisprudence from this Court has generally held that while advance payments are not restricted to adjournment applications, there must be an order for which the order for advance payments is attached as a term or condition, pursuant to the wording or Rule 1(12) or the new Rule 13-1(19). There must be a temporal connection to the order to which the order for advance payment is attached...

...

[41]         The authority from the Court of Appeal is clear: there is no inherent jurisdiction to make a stand-alone order for advance payment of tort damages. The authority to make such an order flows from Rule 13-1(19), and there must be another substantive order which is connected, temporally or otherwise, with the order for an advance.

[42]         The plaintiffs argue that because the Court has granted an order setting the trial date, the requirement for an additional order to which the advance payment can attach is satisfied. I disagree. The connection required between the order and the advance was very clearly delineated by Wedge J. in Gill at para. 18, reproduced earlier in these reasons, where she emphasized “The authorities make it clear that a payment of damages in advance of trial is only to be made in exceptional circumstances arising from the making of the primary order” [Emphasis added]

[43]         In the circumstances before me there is no adjournment or any change to the conduct of the trial triggered by the actions of any of the defendants. The order granted merely confirmed the date that had been set and agreed to by all parties except one until shortly before this application was argued. The plaintiffs are in no different a position than they would have been in without this order. The plaintiffs are essentially seeking a stand-alone order for advance payments, which binding authority prohibits.

[44]         The application for a tort advance is dismissed.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/03/2017BCSC0374.htm