Court of Appeal awards ICBC costs thrown away where impending trial adjourned

In reasons for judgment released today, the BC Court of Appeal overturned the order of a Master denying the defendant costs thrown away in circumstances where the plaintiff was successful in obtaining an adjournment of an impending  trial.  In Bolin v. Lylick, 2018 BCCA 127 the Court of Appeal confirmed that "the usual approach" following a late adjournment application is that the opposing party get their costs thrown away:

[2]          Counsel for the defendants opposed the application for an adjournment, and observed that the trial had already been adjourned once from the first date set, November 16, 2015, to allow for Ms. Bolin’s medical treatment. In opposing an adjournment, the defendants emphasized the trial preparation already completed, said they were ready for trial, and stated that a delay would entail further discoveries and a further independent medical examination so as to make available for trial evidence of the plaintiffs current situation.

...

[17]       In this case not only did the judge not hear out counsel for the defendants on the matter of costs, he then gave no reason for departing from the approach applied in those cases which I consider illustrate the approach usually brought to bear in such circumstances. While the judge had discretion to take a different path than is commonly taken, I consider that some explanation, however brief, then should have been given so as to allow this court to review the order.

...

[19]       In these circumstances, there is no apparent reason to depart from the usual approach to costs in circumstances of a late adjournment; in other words, there is no apparent reason not to relieve the defendants from the prejudice of the late adjournment by an award of costs thrown away. It is to be remembered that even though the judge did not attribute fault to the plaintiff in the adjournment application, in asking for an adjournment the plaintiff was asking for an indulgence from the court that had adverse consequences for the defendants. I would add to the order made for the adjournment a term that the defendants are entitled to their costs of trial preparation thrown away. I would not define the degree of such wasted costs in the circumstances of this case as was done, for example in Dhillon v. Foster, 2004 BCSC 1782, to which we have been referred, and I note further, that what fits within the waste captured by the term “costs thrown away” is properly a matter for the trial court’s determination.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/ca/18/01/2018BCCA0127.htm

 

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

Court denies defendant adjournment request based on unavailability of key witness

In reasons for judgment published this morning, the court in Hayer v. Qatar Airways, 2016 BCSC 2477 dismissed the defendant's application for an adjournment of upcoming trial dates based on the unavailability of a key defence witness.  In Hayer, the key defence witness lived in Qatar and the defence argued that she would not be available for the upcoming trial in BC.  Further, the defence argued that the trial should be adjourned as the plaintiff's injuries had "not yet fully healed".  In dismissing both of these arguments, Mr. Justice Macintosh wrote as follows:

[5]             There are two grounds raised for the adjournment application; first, that Ms. Kastanos is unavailable for the trial as it is scheduled, and second, that the Plaintiff's injuries are not settled sufficiently for there to be a proper adjudication...

[8]             ...the evidence as filed does not in my view establish that Ms. Kastanos is unavailable for the trial as scheduled, and oral advice from counsel today indicates that indeed she may be available at the time set for the trial, which, as I noted earlier, is to begin January 23, 2017.

...

[10]         ...I am not satisfied that Ms. Kastanos is unavailable for the trial as scheduled, or that she is likely to be more available, if I can put it that way, at some alternative time.

...

[12]         The second basis for seeking the adjournment is...that the Plaintiff's injuries will not be sufficiently settled by the date set for trial...

[13]         One could always wait for ever greater certainty of outcome associated with prognosis, but that desire is to be balanced against our Supreme Court Rules which endorse the concept of obtaining speedy justice.  That is a concept which sometimes we do not honour adequately.

...

[15]         The Defendants speak of needing an opportunity to settle.  I am not certain that is a factor to be taken into account...Furthermore, nothing induces settlement discussions as readily as does a looming trial date.

[16]         The costs of the application are to the Plaintiff in any event of the outcome...

The text of the full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/16/24/2016BCSC2477.htm