IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100406

Docket:
70273

Registry: Kelowna

Between:

Eija-Riitta Pitcher

Plaintiff

And

Joseph Brown

Defendant

Before: Master B.M. Young

Reasons for Judgment

[1]            
On March 10, 2010 an application was brought to
adjourn the two‑week jury trial scheduled for March 15, 2010. This is a
personal injury matter, arising from a motor vehicle accident that occurred on
or about August 24, 2004 in Kelowna, B.C., where liability has been admitted
and the only issue to be tried is the assessment of damages. Counsel requested
the adjournment for these reasons:

 1.       Counsel for the plaintiff is not available for
trial on March 15, 2010. Plaintiff’s counsel says that the date was agreed to
by Ms. Pitcher on condition that her new counsel be available, and when he
filed an appearance plaintiff’s counsel advised defence counsel that he was not
available on this day. Defence counsel refused to adjourn the trial.

 2.       Plaintiff’s counsel also indicated that the
damages are connected to damages incurred in 2003, prior to the motor vehicle
accident, when the plaintiff fell at the Vancouver airport. She has commenced
an action (S68745) and that matter has recently been transferred to Vancouver
for trial.

 3.       The plaintiff says she is unable to attend the
trial on March 15, 2010 because her father‑in‑law passed away and
the funeral is being held on March 11, 2010. Not only is she not in a position
to conduct a trial, but her husband, who is her main support person, would not
be available either.

[2]            
This matter has come before me on a number of
occasions for pre‑trial conferences. Mrs. Pitcher was formerly
represented by Paul Mitchell. On October 31, 2008 Mr. Mitchell applied for an
adjournment of the trial which was scheduled for December 8, 2008 for eight
days. He advised the court that he was getting off the record. His paralegal,
Lynn Holmes, said in her affidavit filed October 31, 2008:

7.         The
Plaintiff and her counsel, Paul L. Mitchell, have been unable to agree on the
proper management of her file. As a result, Paul L. Mitchell advises that in
his opinion the solicitor/client relationship has broken down irretrievably.
Pushor Mitchell has, therefore, requested that the Plaintiff obtain new
counsel.

[3]            
Pushor Mitchell advised the defendant that they
would not be continuing to act on September 18, 2008, and then requested an
adjournment of the trial. I conducted a pre‑trial conference on November
5, 2008. At that time Mr. Mitchell attempted to adjourn the trial but the application
for the adjournment of the trial had to be rescheduled to November 17 for more
hearing time. Mr. Mitchell was advised that the adjournment application would
be stronger if the plaintiff did have new counsel and could provide the court
with available trial dates. On November 17, when the application for
adjournment was heard, I granted an adjournment and ordered that the trial be
rescheduled within 30 days from the date hereof failing which the defendant has
leave to reschedule a pre‑trial conference to fix a new date for trial. I
awarded costs to the defendant in any event of the cause including all costs
thrown away in preparation for the trial. The reason given for ordering that
the trial be rescheduled within 30 days was to give Mrs. Pitcher 30 more days
to obtain new counsel and determine counsel’s availability prior to
setting the matter down for trial. I did not anticipate that Ms. Pitcher would
agree to a trial date and then look for counsel and ascertain after the fact
that her new counsel was not available for trial. That is exactly what
happened. Mrs. Pitcher consented to the date of March 15, 2010 within the 30‑day
time limit but she did not have counsel. She continued to search for counsel
who would accept her case, without success. Finally in October 2009 she
retained Mr. Leblanc as her counsel. Mr. Leblanc advised her that he was not
available for that trial date. Mr. Leblanc attaches a copy of a letter that
Paul Mitchell sent to John Hemmerling on December 16, 2008 confirming the trial
date. The letter says:

Mrs. Pitcher has asked us to advise you that
she would like to reset the Trial of this matter to March 15, 2010. This
date would, of course, be subject to Mrs. Pitcher’s new Counsel being available
for a Trial on that date. This can be confirmed when she has been
successful in obtaining new Counsel.

(emphasis added).

The response
Mr. Hemmerling sent back was January 19, 2009 and it said:

Further to your
correspondence dated December 16, 2008 we confirm your agreement to reschedule the
trial of this matter for March 15, 2010. We will be filing the required
Requisition in due course.

[4]            
The words Mr. Mitchell included in his December
16, 2008 letter, “This date would, of course, be subject to Mrs. Pitcher’s new
Counsel being available for a Trial on that date”, flew in the face of the
intention of my order. Unfortunately, defence counsel did not pick up on this
qualification and did not challenge it. Had he done so, I am not certain that
the circumstances would have changed through.

[5]            
I have agreed to adjourn this trial one further
time for one reason only. It is not in the interests of justice to have an
unrepresented person present her case before a jury. That would be the outcome
if I penalized her for not complying with the intention of my order. She has
found counsel who has accepted her “Vancouver airport” personal injury case and
who has accepted this personal injury case. I have decided to adjourn this case
on the basis that the next date will be a peremptory date and will be a date in
Kelowna. That precludes Mr. Leblanc from attempting to transfer the file to Vancouver
and joining it with the “Vancouver airport” personal injury case. He has consented
to these terms and indicated on the record that he basically had no choice
because he is not available on March 15, 2010. I find myself in the same
position. Although Mrs. Pitcher’s actions did not comply with the intention of
my order, the end result is that justice would not be served by forcing this
unrepresented litigant to proceed on her own next week.

[6]            
The personal injury that pre‑dated this
motor vehicle accident occurred sometime in 2003. Mrs. Pitcher has been
represented by Paul Mitchell since 2004. Applications to join the two matters
could have taken place in the last six years and did not. Now counsel raises
this possibility of joinder and change of venue as a reason for adjourning the
trial. It was in fact a reason I almost did not adjourn this trial. If the
plaintiff is allowed to pursue this joinder six years after her injury, then
that will result in yet another adjournment of this trial. The 2003 matter is
not anywhere near ready to proceed to trial and that is certainly through no fault
of the defendant in this matter. It would prejudice the defendant if this
matter adjourns again. As it is, the adjournment date is quite far in the
future because that is the only common date counsel for the plaintiff and
counsel for the defendant had. I have adjourned the matter for a 15‑day
jury trial to commence on February 7, 2011. The date is peremptory.

[7]            
Submissions were made as to costs. I ordered
costs to the defendant in any event of the cause, including all costs thrown
away in preparation for the trial.

“Master B.M. Young”