IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110421

Docket: M085184

Registry:
Vancouver

Between:

Paula Cheri
Jurczak

Plaintiff

And

Victor Mauro,
Kathleen J. Rysiew and

Roadway Towing
Ltd.

Defendants

Before:
The Honourable Mr. Justice N. Smith

Reasons for Judgment

[1]            
At a Trial Management Conference (TMC) on March 31, 2011, I made an
order adjourning the trial in this matter, which had been set for May, 2,
2010.  I indicated that I would provide written reasons because the application
raised a procedural question about the circumstances under which a judge at a TMC
may hear and rule upon a contested adjournment application.

[2]            
The TMC was created by the new Supreme Court Civil Rules, B.C.
Reg. 168/2009 that came into effect on July 1, 2010.  Rule 12-2 (9) sets out a
broad range of orders that can be made by the presiding judge at a TMC “whether
or not on the application of a party.”  These include, at subparagraph (l), an
order adjourning the trial.  However, Rule 12-2 (11) prohibits a TMC judge from
hearing an application for which affidavit evidence is required.

[3]            
Counsel for the plaintiff in this personal injury action sought an
adjournment because a medical specialist who had treated the plaintiff had
refused to provide a medical report when requested.  This doctor has apparently
adopted a practice under which he provides medical-legal reports only when he
has been retained for that purpose and not when he is involved as a treating
doctor.  Counsel said he hoped to persuade the doctor to provide a report,
perhaps by appealing to the governing professional body.  If that fails, the
plaintiff may need to involve another expert in that specialty.  Counsel for
the defendant opposed the adjournment.

[4]            
Both counsel were concerned that the adjournment application could not
be heard at the TMC and consented to the TMC being immediately converted into a
chambers application so that I could deal with the matter.  Neither wished to
set down and appear on a separate application in chambers.  In my view, the
adjournment application could properly have been dealt with as part of the TMC without
the need to pretend the proceedings were something different.

[5]            
In Vernon v. British Columbia (Liquor Distribution Branch), 2010
BCSC 1688 [Vernon], Goepel J. held that an application for adjournment
of the trial could not be heard at a TMC.  In that case, the defendant sought
an adjournment and relied upon counsel’s oral statements that he had been
unable to obtain certain expert reports in the limited time available.  The
plaintiff filed an affidavit detailing the prejudice she would suffer if the
trial was delayed.

[6]            
Goepel J. held that statements of counsel could not be accepted as
evidence and the matter was one requiring affidavits.  The Court was being
asked to exercise judicial discretion in order to balance competing interests. 
Statements of counsel could not provide a proper evidentiary foundation for the
exercise of that discretion.  Referring to both TMCs and Case Planning Conferences,
Goepel J. continued at paras. 23 and 24:

While CPCs and TMCs have a role to play in the orderly
progress of litigation, they are not generally the forum to determine contested
applications. Such applications will usually require affidavit evidence and
pursuant to the provisions of Rule 12-2(11) and 5-3(2) applications requiring
affidavit evidence cannot to be heard at such conferences. In this case
affidavit evidence is necessary to determine the defendant’s applications for
an adjournment and a publication ban. Those applications cannot be heard at a
TMC.

This is not to say that a judge
cannot make orders at a CPC or a TMC. Clearly, a judge can. Many of the orders
contemplated at such a conference will not require applications or affidavit
evidence. The Rules allow a judge to make an order absent an application. Many
of the orders suggested in the respective rules are procedural in nature and
more in the nature of directions. Such orders can be based on the
representations of counsel. An example is the present application concerning
the order of proceedings at trial.

[7]            
I do not understand Vernon to be suggesting that a judge at a TMC
can never order an adjournment if one party objects.  No such restriction
appears in Rule 12-2.  The Rule prohibits hearing applications that require
affidavit evidence.  It is for the judge to decide whether a particular
application requires affidavit evidence and whether any affidavits that have
been tendered are relevant.

[8]            
The orders permitted by Rule 12-2 (9) are, broadly speaking, procedural
in that they deal with the conduct of the trial, including how certain evidence
is to be presented, the length of the trial and, in subparagraph (q), “any
other matter that may assist in making the trial more efficient.”

[9]            
 Rule 12-2 (3) requires the parties to file trial briefs in Form 41
identifying the issues in dispute (which, by that stage, may not be all of the
issues raised in the pleadings), listing the witnesses, including experts, to
be called and estimating the time necessary for the evidence of each witness.  The
trial brief is an unsworn statement of counsel or the self-represented party. 
The Rule clearly contemplates that the judge will make orders based on the
information contained in the trial briefs, as supplemented by what is said at
the TMC.  That is the only basis on which the orders permitted by the Rule
could be made.

[10]        
In some cases where an adjournment, or any other order is sought, a
judge may decide that supporting information is not adequate.  That was the
situation in Vernon, where Goepel J. was presented with an affidavit of
the plaintiff setting out the prejudice that would flow from an adjournment. 
That evidence had to be weighed against any evidence of prejudice to the
defendant if the adjournment was not granted.  Once the plaintiff’s affidavit
was found to be relevant, evidence in proper form was required from the
defendant and counsel’s statements, standing alone, were not acceptable.

[11]        
However, there are situations where the need for an adjournment can be
clearly assessed on the basis of information provided at the TMC and affidavit
evidence would be of no assistance.  For example, a judge may be able to
determine simply from the trial briefs that the trial cannot possibly be
completed in anything close to the estimated time, or that the number of
pre-trial matters still to be dealt with shows that the case is not ready for
trial.  If the judge could not order an adjournment in those circumstances, a
large part of Rule 12-2’s purpose would be defeated.

[12]        
In this case, because counsel consented to treat the matter as a
chambers application, I had affidavit evidence before me.  I concluded that if
there was no adjournment, the plaintiff would be forced, through no fault of
her own, to proceed to trial without evidence that may be critical to her case. 
I found that prejudice to the plaintiff outweighed any prejudice to the
defendant arising from delay.  However, none of the affidavit evidence before
me was particularly helpful on that point and I did not find it to be
necessary.

[13]        
Two of the three affidavits were sworn by paralegals employed in the
offices of counsel.  One attaches plaintiff counsel’s letter to the specialist
requesting a medical legal report and states that, in a subsequent conversation
with the doctor’s assistant, the paralegal was informed that no report would be
provided.  The affidavit of the paralegal employed by counsel for the defendant
sets out the history of the litigation, attaches copies of correspondence
between counsel and attaches copies of medical reports and clinical records
that have been produced.  On some points, facts are stated to be based on
information and belief, the source of that information being counsel who was
appearing at the TMC.

[14]        
All of that relates to matters of evidence that counsel expected or
wanted to put before the trial judge, the availability of that evidence, and
the readiness of the defendant to proceed to trial.  Those are matters of which
counsel are expected to advise the court at the TMC and the court is, of
course, entitled to assume counsel’s statements are true.  Affidavits in which their
legal assistants simply say the same thing about these procedural matters are
of no further assistance.

[15]        
The only other affidavit before me was from the plaintiff’s family
physician who says that, based on a recent examination of the plaintiff and the
reported persistence of symptoms, she has decided to refer the plaintiff back
to the specialist for further assessment.  The same information is contained in
an updated medical report to plaintiff’s counsel, which the doctor attaches to
her affidavit.  The medical report would be admissible at trial pursuant to Rule
11-7, subject to issues of notice and the right of defence counsel to demand
the doctor’s attendance for cross-examination.  There is no reason that a
document capable of constituting evidence at trial cannot be relied upon for
the more limited purposes of a TMC.  Appending it to an affidavit was an
unnecessary exercise.

[16]        
If there had been an affidavit from the defendant (or perhaps even an
employee of the insurer that I assume is involved on behalf of the defendant)
setting out facts that would give rise to prejudice if an adjournment was
granted, the matter would have been similar to what was before the court in Vernon
and would likely have been one that could not be dealt with as part of the TMC. 
There was no such affidavit.

[17]        
 Counsel for the defendant referred in her submissions to prejudice that
may always be presumed to arise from delay and said that, had she known the
plaintiff was seeking further medical evidence, she might have taken different
or additional steps or taken a different approach to various pre-trial
proceedings.  I considered that submission and weighed the stated prejudice
against the prejudice to the plaintiff if the adjournment was denied.  The
point, however, is that this was a submission by counsel.  There was no
affidavit that expressly deposed to that prejudice, nor was one necessary.

[18]        
In summary, the fact that the adjournment application was contested
would not, in itself, have prevented me from hearing and deciding it at the
TMC.  In the circumstances, affidavit evidence was not necessary. I had
jurisdiction to consider the adjournment application on the basis of
information in the trial briefs and the statements of counsel at the TMC and I
would have made the same decision had the matter proceeded on that basis.

“N. Smith J.”