IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100811

Docket: 43723

Registry:
Vernon

Between:

Paul
Kalashnikoff

Plaintiff

And

Kahlan
James Martens and Amanda Dawn Ray

Defendants

Before:
Master Shaw

Reasons for Judgment

[1]            
This is an application brought by the plaintiff for an order that the
trial in this action proceed beginning October 4, 2010 for eight days, and
costs.

Background

[2]            
The action was commenced on February 5, 2009 and is a claim for damages
for personal injuries arising out of a motor vehicle accident occurring on
February 20, 2008, in the City of Vernon, Province of British Columbia.

[3]            
A statement of defence was filed pursuant to Rule 66 of the Rules of
Court on July 20, 2009. On September 30, 2009, it was agreed by the parties
that the matter would proceed in the ordinary course and not be subject to Rule
66.

[4]            
An amended writ of summons and amended statement of claim was filed
February 22, 2010.

[5]            
Pleadings have been closed and liability has been admitted.

[6]            
Examinations for discovery have not yet been done.

[7]            
The plaintiff was employed in a plywood plant at the time of the
accident. He has worked at the same employment for the last 20 years. The
plaintiff was 42 years of age at the time of the accident.

[8]            
The plaintiff alleges injuries which include:

·      
soft tissue injuries to the neck;

·      
Sciatica;

·      
radiating pain down the right leg;

·      
severe headaches; and

·      
chronic pain.

[9]            
The plaintiff alleges he is suffering from a psychological reaction to
the accident which includes major depressive episodes related to a chronic pain
syndrome and post-traumatic stress disorder.

[10]        
Following the motor vehicle accident, the plaintiff attempted to return
to work at the plywood plant through a gradual return-to-work program. The
plaintiff’s evidence is that his return-to-work program has been unsuccessful.

[11]        
The plaintiff has been unemployed since early 2009.  He is not receiving
employment income, but is in receipt of some long-term disability benefits
through his union membership (“LTD Insurance”). The plaintiff states that he is
in dire financial circumstances, and he is having difficulty making payments to
his bills. He has had to re-negotiate loans as well as borrow funds from
friends and family in order to pay his debts and ongoing expenses.

[12]        
The plaintiff is married and his wife is employed, but his wife has been
involved in a separate motor vehicle accident, and as a consequence her
employment is limited. The plaintiff has four children.

[13]        
The application by the plaintiff is for an order to set a trial of his
claim for the assize of October 4, 2010.

[14]        
Counsel for the plaintiff submits he has made numerous attempts to
schedule the trial of this matter; however, the parties have been unable to
come to an agreement on trial dates.

[15]        
Considerable correspondence has been exchanged between the plaintiff and
defendants where the plaintiff seeks the defendants’ agreement to schedule a
date for a trial. From the material provided, it appears the plaintiff’s
requests for scheduling a trial date started around July of 2009, and continued
on at least a monthly basis until late November 2009.

[16]        
The Kelowna registry schedules trials through the assize system.

[17]        
On November 27, 2009, the plaintiff contacted the Kelowna trial division
and was advised there was an eight-day trial judge scheduled for the October 4,
2010 assize. The plaintiff contacted the defendants’ office in December 2009,
requesting that the trial be set for eight days commencing October 4, 2010.

[18]        
The defendants responded by letter dated December 2, 2009, advising the
defendants have scheduled an independent medical examination (“IME”) for the
plaintiff with Dr. Solomons, psychiatrist, for June 2, 2011, one and a half
years into the future. Although the letter was not sent until December, the
Solomons’ IME was apparently booked in September of 2009, in response to the report
of the plaintiff’s expert, Dr. Maddess, psychologist, received on August 12,
2009.

[19]        
On January 5, 2010, counsel for the plaintiff sent a letter to the
defendants objecting to the Solomons’ IME, not on the basis of an opposition to
the choice of expert or specialty, but on the basis of the timing of the
appointment. The plaintiff sought to proceed to trial as soon as possible, and advised
the defendants there was trial time in October 2010. On January 6, 2010, the
defendants advised the plaintiff they would agree to a trial being set, but not
before the fall of 2011.

[20]        
The plaintiff continued to contact the defendants to try and set a 2010
trial date. On April 7, 2010, the plaintiff sent a letter to the defendants
suggesting there were alternate choices for a psychiatric IME at much earlier
dates. On April 12, 2010, the plaintiff again requested a trial of this matter
be scheduled in 2010. The defendants declined to schedule a trial until after
the June 2, 2011 IME with Dr. Solomons. Plaintiff’s counsel had a trial settle
and an appointment with Dr. Solomons opened up in May 2010.  The plaintiff
notified the defendants that he would agree to the plaintiff attending that
appointment and wanted the defendants to agree to the October 4, 2010 trial
date. Needless to say, the parties did not come to an arrangement and the early
appointment with Dr. Solomons was not utilized in this matter.

[21]        
At some point, the plaintiff booked the trial for eight days on the
October 4, 2010 assize in Kelowna, and he brings this application to confirm
that date. The defendants oppose the trial proceeding on that date. The notice
of motion was signed on April 15, 2010.

[22]        
On April 16, 2010, the defendants advised the plaintiff a further IME with
another specialist, Dr. Vallentyne, physiatrist, was scheduled for May 4, 2011.
The defendants say they booked this IME in October of 2009, but did not advise
the plaintiff until April 16, 2010. The plaintiff objects to the Vallentyne IME
on two grounds:

·      
the choice of specialty of expert, that being a physiatrist; and

·      
the timing of the appointment, that being May of 2011.

[23]        
The defendants say they were not aware of the plaintiff’s objections to
an IME by a physiatrist until this hearing.

[24]        
The plaintiff says an IME by a physiatrist would be essentially a
duplication of the expert assessment and opinion that Dr. O’Farrell, orthopaedic
surgeon, provided in a defence IME report of April 30, 2009.

[25]        
Although I do not have before me any application by the defendants
pursuant to the former Rule 30 of the Rules for an order that the
plaintiff attend for an IME with Dr. Vallentyne on May 4, 2011, the timing of
the two IMEs scheduled by the defence are circumstances which are appropriate
to take into consideration when determining whether the trial of this matter
should proceed on October 4, 2010.

[26]        
As further background, the plaintiff advises he has a report from a
vocational expert, Mr. Trainor.  As of the hearing of this application, a copy
of the report has not been provided to the defendants. Counsel for the
defendants advised he has scheduled a vocational expert assessment of the
plaintiff for two days in December 2010. The plaintiff takes no issue with the
defence needing a vocational expert report, but again takes issue on the timing
of the assessment and submits the trial should proceed in October of 2010.

Issue

[27]        
The issue before me, then, is the plaintiff’s application for an order
that the trial in this action proceed beginning October 4, 2010, for eight
days, pursuant to Rule 39(9) of the Rules.

Law and Authorities

[28]        
Rule 39(9) of the former Rules provides the court with the
discretion to adjourn a trial or fix the date of a trial.

[29]        
Rule 39(9) states that:

(9)  The court may order the
adjournment of a trial or fix the date of trial of an action or issue, or order
that a trial shall take precedence over another trial.

[30]        
Counsel submitted there was very little law in relation to the court
fixing the date of a trial and referred to authority that dealt with the
adjournment of a trial.

[31]        
The application before me to order a trial set unilaterally by the
plaintiff for the October 4, 2010 assize to proceed, is the mirror of an
application to adjourn. If the plaintiff’s application is successful, the
result is the same as if it was an application to adjourn that was refused. If
the plaintiff is not successful, then the result is the scheduled trial date is
adjourned.  Specifically in the within circumstances, given there is a trial
date which has been unilaterally set by the plaintiff, with the result of this
application being either adjourning the trial or not, the factors to be
considered on an application to adjourn a trial under the former Rule 39(9) are
appropriate to consider for this application.

[32]        
The plaintiff relies on 617449 B.C. Ltd. v. Munster, 2005 BCSC
1623, where the defendant applied to adjourn the trial pursuant to Rule 39(9).

[33]        
In 617449 B.C. Ltd., the court set out considerations that apply
on an application for adjournment of a trial and reviewed various authorities
addressing the considerations:

[8 ] The considerations that apply on an application
for adjournment were surveyed by Dorgan J. in J.S. (Guardian ad litem of) v.
D.S., [2001] B.C.J. No. 2330, 2001 BCSC 1534 at paras. 16-17:

In Novak v. Bond, [1998] B.C.J. No. 2034 (B.C.S.C.),
on September 2, 1998 Martinson J. outlined the applicable test on an
application to adjourn. At paragraph 11, she states:

The question of granting an adjournment is a matter of
discretion, to be exercised in accordance with the interests of justice. This
requires a balancing of interests of the plaintiff and the defendant: Sideroff
v. Joe (1992), 76 B.C.L.R. (2d) 82 (C.A.). The paramount consideration that
must be maintained in the exercise of that discretion is to ensure that there
will remain a fair trial on the merits of the action: Cal-Wood Door v. Olma,
[1984] B.C.J. No. 1953 (C.A.).

Further, in Strata Plan VR No. 2000 v. Shaw, [1999]
B.C.J. No. 28 (B.C.S.C.), Levine J. (as she then was) amplified the need to
consider the interests of justice in these circumstances. At paragraph 26, she
states:

Further, an adjournment of any trial, but particularly a
long trial, is prejudicial to the judicial system. Other litigants have been
denied trial dates during the time that this trial has been scheduled for all
of the months of March through June 1999. This inherent prejudice that results
from an adjournment must be considered and weighed in balancing the interests
of the defendants and the prejudice they claim if the trial proceeds.

[9] In Sidoroff v. Joe
(1992), 76 B.C.L.R. (2d) 82 (C.A.), at paras. 9-10, the Court of Appeal
noted that the speedy and expeditious resolution of a matter is a proper
consideration for this court to factor on an adjournment application.

[34]        
Counsel for the defendants relied on Critchley v. McDiarmid, 2009
BCSC 134. Critchley involves the application of the former Rule 30 and
deals with an appeal of the decision of a Master on the application for
attendance of the plaintiff at an IME just before trial. That case does not
apply to the issues before me.

Analysis

[35]        
Applying the factors set out in 617449 BC Ltd., the decision
whether to adjourn a trial is a matter of discretion to be exercised
judicially. The interests of the plaintiff and the defendant must be balanced
as best as possible.  The paramount consideration is to ensure there will
remain a fair trial on the merits of the action.  A further consideration is
that the adjournment of a trial, particularly a long trial, is prejudicial to
the judicial system.  An additional factor to consider is the need for a speedy
and expeditious resolution of a matter.

[36]        
The defence argues that the discretion of the court should balance the
interests of the plaintiff and defendants so that there is a fair trial on the
merits of the action. The defence argues the IMEs are necessary and that
ordering a trial to proceed on October 4, 2010 would prejudice the defendants.

[37]        
The plaintiff argues that one of the important factors to consider is
that there needs to be a speedy and expeditious resolution of the plaintiff’s
claim, and that this factor is an appropriate consideration on an application
under the former Rule 39(9) for an order setting the trial date.

[38]        
The plaintiff argues the defendants’ action, by setting IME dates so far
in the future, thus creating a delay in the trial of the plaintiff’s claim for
another year and a half, is an unreasonable delay and creates hardship and
prejudice to the plaintiff.

[39]        
The plaintiff does not take any issue with the defendants seeking a response
IME to their expert report by Dr. Maddess, or a vocational expert report.  The
plaintiff does not object to the specific choice of expert for either the
psychiatric IME, or the vocational assessment expert. The plaintiff does oppose
the delay of the trial resulting from the IME and vocational report being scheduled
so far in the future.

[40]        
The plaintiff does object to the IME scheduled with Dr. Vallentyne. The
objection is not on the specific choice of expert, that being Dr. Vallentyne, but
is based on the argument that an IME by any physiatrist would be overlapping
and a duplication of the IME obtained by the defence in April of 2009 by Dr.
O’Farrell.  As noted above, that issue is not before me.

[41]        
The parties are not in agreement on the estimated length of time needed
for the trial. The plaintiff seeks an order to confirm the trial currently set for
eight days. The defendant argues the trial will take 14 days and not eight
days.

[42]        
The plaintiff submits he is suffering financial duress and hardship and
needs an early trial date.  Although the particulars of the financial duress
were not provided, I accept the evidence of the plaintiff that his family is
experiencing financial hardship as a result of his reduced income.  Any delay to
proceeding to trial would cause the plaintiff and his family further financial
hardship.  The plaintiff has been taking steps since July 2009 to obtain the
defendants’ agreement on a trial date.  The defendants would not agree to a
trial date in 2010 on the basis of the timing of three further IME appointments
set up by the defendants.  Two of the IMEs were one and a half years from the
time of booking the appointment to the actual appointment.

[43]        
The defendant took steps in a timely fashion to set the IMEs and they
argue the availability of appointments is out of their hands as the specific experts
are not available for one and a half years from the time they booked the IMEs.

[44]        
The plaintiff opposes the IME appointment with the physiatrist. The IME
with the physiatrist is not in response to an expert report of the plaintiff. In
a report dated September 2009, the plaintiff’s family doctor states the
specialist he would refer the plaintiff to would be a physiatrist, and the
referral wait time for an appointment under the MSP referral system is about 18
months.  The family doctor was hopeful the plaintiff’s LTD Insurance carrier
could expedite an appointment.  The plaintiff apparently does not have a
physiatrist’s report or a comparable expert report.

[45]        
Whether the plaintiff is to attend for a physiatrist IME is not before
me and has not been decided.

[46]        
To maintain the balance to ensure there is a fair trial on the merits of
the action, the defendants need to have their opportunity to obtain response
reports to the plaintiff’s expert reports, at the very least, to respond to the
psychologist and the vocational expert.  These IMEs, other than the timing, are
not opposed by the plaintiff.

[47]        
There is always some inconvenience to the judicial system when a trial
is adjourned.  Whether the inconvenience amounts to prejudice is to be assessed
on the facts of each case. In the within circumstances, there is prejudice to
the judicial system by adjourning the trial scheduled for eight days on October
4, 2010, but I find the prejudice would be minimal. The trial is still two
months away, and the eight days scheduled may not be enough. This would then
cause prejudice to the judicial system by having to arrange further dates for a
continuation of the trial as well as all of the difficulties to the parties
when a trial is interrupted.

[48]        
A speedy and expeditious resolution of the claim of the plaintiff is particularly
important to the plaintiff given the financial duress the plaintiff is experiencing.
However, the plaintiff has stated in his evidence that he is seeking
retraining, and the defendants will need to have that evidence for trial.  The
defendants have not yet conducted examinations for discovery of the plaintiff.
No reason was given which explains why the defendants have not proceeded with
discoveries.

[49]        
The plaintiff’s position is that he opposes the delay dictated by the
defendants’ expert’s availability, or rather lack of availability.  I agree
with the plaintiff’s argument that the IME scheduled for June, 2011 causes
unreasonable delay. The doctor’s diary should not dictate the timing of the
trial.  The availability of an expert is only one factor to take into
consideration in the setting of a trial date.

[50]        
Considering all of the factors set out above, weighing the prejudice to
the parties and to the judicial system, and balancing the interests of the
plaintiff and the defendants to ensure there will remain a fair trial on the
merits of the action, the trial of the within matter cannot reasonably proceed
on the October 4, 2010 assize for an eight-day trial.

[51]        
I find that given the circumstances of this matter, it is necessary to
set a date for the trial of this matter. I exercise my discretion under Rule
39(9), and I order that the trial of the within matter is to be set for 14 days
on an assize as available through the Kelowna registry, such trial to proceed no
later than the end of May 2011.  This will allow sufficient time for both
parties to organize their experts and obtain the expert reports and/or response
reports to present their case at trial.

[52]        
If there is no such assize available, the parties may apply for clarification.

[53]        
Costs will be to the plaintiff in any event of the cause.

“M. Shaw”

MASTER SHAW