IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130306

Docket: M62341

Registry:
Nanaimo

Between:

Tanya Knowles

Plaintiff

And

Hiaxia Lan and
Timmy Lan

Defendants

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice D.A. Halfyard

Reasons for Orders made on February 27, 2013

Introduction

[1]            
On February 27, 2013, the plaintiff applied for orders which, if
granted, would have the effect of reinstating the trial of this action to the
trial list for March 4, 2013. The trial was removed from the trial list for March
4, 2013, by operation of Civil Rule 12-4 (5), after no party of record had
filed a trial certificate “at least 14 days before . . . the scheduled trial
date”, as required by Rule 12-4 (2).

[2]            
At the end of argument on the application, I made orders to the
following effect:

a)    An order that
the time period for filing a trial certificate be extended to February 27, 2013
at 4:00 p.m.;

b)    An order that
this action be reinstated to the trial list for March 4, 2013; and

c)     An order that
no costs would be recovered by either party, in respect of this application.

[3]            
After making the said orders, I informed counsel that I would file
written reasons to explain why I made these orders. The reasons for my
decisions are the following:

Facts

[4]            
This is an action by the plaintiff claiming damages for personal
injuries allegedly received in a motor vehicle accident which occurred on March
23, 2009. On March 9, 2012, a notice of trial was filed by the defendant Timmy
Lan and the third party I.C.B.C. By this notice, the trial was scheduled to be
heard commencing on March 4, 2013, with an estimate of five days.

[5]            
On December 5, 2012, the plaintiff served seven expert reports on counsel
for the defendant Timmy Lan and the third party. On February 18, 2013, the
defence applied for an adjournment of the trial. That application was opposed
by the plaintiff and it was dismissed by Mr. Justice Thompson.

[6]            
On February 20, 2013, the trial scheduling manager informed defence
counsel that the trial either had been or would be struck off the trial list,
because no party had filed a trial certificate within the time period required
by Civil Rule 12-4 (2). Defence counsel immediately communicated this
information to counsel for the plaintiff.

[7]            
Counsel for the plaintiff promptly notified defence counsel and the
trial scheduling manager that this application would be made. Counsel then
sought and obtained leave to make this application, on short notice.

[8]            
The deadline for filing a trial certificate in this case was either
Friday, February 15, 2013, or Monday, February 18, 2013. No party had filed a
trial certificate. On or about February 20, 2013, the trial scheduling manager
removed the trial of this action from the trial list for March 4, 2013. It is
common ground that the trial scheduling manager acted properly and in
accordance with sub-Rules 12-4 (2) and 12-4 (5). Those sub-Rules state:

(2) A trial certificate must be filed at least 14 days before
but not more than 28 days before the scheduled trial date.

. . .

(5) Unless the court otherwise
orders, if no party of record files a trial certificate, the trial must be
removed from the trial list.

[9]            
In her affidavit sworn February 25, 2013, counsel for the plaintiff (who
was not counsel on this application) has deposed that she failed to file a
trial certificate by the deadline date, because she forgot to do so.

[10]        
Plaintiff’s counsel has also given evidence to the effect that Mr.
Justice Thompson, in denying the defence application for an adjournment (on
February 18^th) found that more prejudice would be caused to the
plaintiff by an adjournment, than the prejudice that would be caused to the
defence if the case proceeds to trial on March 4, 2013. I infer that Mr. Justice
Thompson was of the opinion that there was no appreciable risk that a fair
trial on the merits would not occur, if the trial went ahead as originally
scheduled. It also seems likely that the two months delay by the defence in
bringing the application for an adjournment was a factor taken into account in
the decision to refuse the adjournment application.

[11]        
Finally, counsel for the plaintiff has deposed that, if the trial does
not proceed on March 4, 2013, it will take about another year to get to trial.

[12]        
The defence takes no issue with the facts that I have just outlined. It
is also my understanding that this action is the only action scheduled to be
tried during the week of March 4^th.

Positions of the Parties

[13]        
The plaintiff relied on Rule 22-4 (2) which states, in relevant part as
follows:

(2)  The court may extend or
shorten any period of time provided for in these … Rules … even though the
application for the extension … is made after the period of time has expired.

[14]        
Counsel for the plaintiff at first seemed to take the position that Rule
12-4 (5), by implication, gave the court authority to make an order restoring
an action to the trial list. She also appeared to rely on the implied authority
conferred by Rule 1-3.

[15]        
The plaintiff submitted that the court has authority under the Rules to
extend the time for filing a trial certificate and to restore an action to the
trial list. It was further submitted that, in the circumstances existing here,
the court should grant the extension and re-instatement of the trial sought by
the plaintiff, in the interests of justice. Among the factors relied on to
support the exercise of discretion in favour of the plaintiff was the fact that
the failure to file a trial certificate before the deadline was the fault of counsel
for the plaintiff, and not the fault of the plaintiff. Case authorities were
cited in support of the principle that a plaintiff should not be penalized for
the sins of his or her counsel.

[16]        
Defence counsel concedes that the court has the authority to grant the
relief sought by the plaintiff. He also agrees that the circumstances support
an exercise of discretion in favour of the plaintiff. But Mr. Dreyer suggested
that the Rules were unclear as to which Rule or Rules would justify granting
the relief sought by the plaintiff. Counsel contended that the court would have
no power under Rule 12-4 (5) to prevent removal of an action from the trial
list where no trial certificate had been filed by the deadline, unless the
application to extend the time for filing was made in advance of the deadline
date. He also took the position that the consent of the parties would not
permit the trial scheduling manager to accept a trial certificate for filing
after the deadline had passed, or to restore the action to the trial list,
after it had been removed. It was said that only an order of the court could
achieve that.

[17]        
Defence counsel conceded that the court had power under Rule 22-4 (2) to
shorten the 14 day time period before trial, (set by Rule 12-4 (2)), for filing
a trial certificate. But again, counsel seemed to suggest that the change to
this time period being sought by the plaintiff, could not be made by consent of
the parties.

[18]        
In her reply position, Ms. Simmons seemed to agree with the defence
submission that, after an action had been removed from the trial list for
non-compliance with Rule 12-4 (2), the trial scheduling manager could not accept
a trial certificate and could not restore the action to the trial list, even if
all parties were consenting to this being done. But as I understood her,
counsel did not agree that the parties could not consent to a shortening of the
time period set by Rule 12-4 (2). On that point, Ms. Simmons relied on Rule
22-4 (3), which states:

(3)  The period fixed by
these . . .  Rules . . .  for . . . filing . . .  a pleading or other document
may be extended by consent.

[19]        
Counsel for the plaintiff did not agree that the court should embark on
any interpretation of the Rules of Court that were not necessary to the
decision in the present case.

Issues

[20]        
As I see it, there are really only two points at issue. The
all-important factual context is that the time within which a trial certificate
could be filed had expired without any party having filed a trial certificate;
and that the trial scheduling manager had removed the action from the trial
list, as a consequence of that omission. In addition, it was agreed that the
circumstances of this case provided ample justification for the court to
exercise its discretion in favour of the plaintiff. No issue arises relating to
the court’s discretion.

[21]        
I would describe the issues in this way:

a)    Does Rule 12-4
(5) authorize the court to restore an action to the trial list, in the
circumstances that existed here?

b)    If not, then
what Rule or Rules give the court authority to restore an action to the trial
list?

[22]        
Defence counsel sought to raise another issue, which I would paraphrase
in this way:

Could the parties have authorized
the trial scheduling manager to accept a “late” trail certificate for filing
and to restore the action to the trial list, by consent?

However, no attempt was made to rectify the situation by way
of consent, and moreover, the defence had deliberately not filed a trial
certificate on the ground that they were not ready for trial. That makes this
issue hypothetical, and unnecessary to decide. I will make some general
comments about this matter, after dealing with the two identified issues.

Does Rule 12-4 (5) authorize the court to restore an action to the trial
list, in the circumstances that existed here?

[23]        
As I have said, counsel agreed that Rule 22-4 (2) empowers the court to
extend the time for filing a trial certificate, even after the time set by the
Rules for filing, has expired. Such an “extension” could also be described as a
“shortening” of the required 14 day period between the filing of the trial
certificate and the commencement of the trial. In either case, Rule 22-4 (2) empowers
the court to permit late filing of a trial certificate.

[24]        
The first question is whether Rule 12-4 (5) gives the court power to
restore a proceeding to the trial list, after it has been removed for
non-compliance with Rule 12-4 (2). I would say firstly that, because of the
mandatory wording in Rule 12-4, the filing of at least one trial certificate is
a necessary condition for a trial to proceed. As a consequence, I do not think
the court could dispense with the filing of any trial certificate, but could
only grant leave to file it less than 14 days before trial.

[25]        
In my opinion, a party who seeks to have a trial restored to the trial
list must first obtain leave to file a trial certificate “late,” under Rule
22-4 (2). If such leave is granted, and a trial certificate is filed in
accordance with the order, that filing would not have the effect of restoring
the trial to the trial list from which it had been removed. Could the court
make such a restoration order, under Rule 12-4 (5)?

[26]        
In my opinion, Rule 12-4 (5) should be read so as to include the
additional underlined words, as follows:

(5)  Unless the court
otherwise orders, if no party of record files a trial certificate in
accordance with sub-rule (2), the trial must be removed from the trial
list.

[27]        
In my view, Rule 12-4 (5) is designed to prevent an action being removed
from the trial list for failure to file a trial certificate as required by
subrule (2). It does not state that, if a trial has been removed from the trial
list, the court may restore that trial to the trial list. Nor do I think that
such a power is implicit in that subrule. In order to preserve a trial date by
invoking this Rule, I think the application and the order would have to be made
before the 14 day deadline. That was not done here, and so this rule cannot be
relied upon.

What Rule or Rules give the court authority to restore an action to the
trial list?

[28]        
The defence suggests that the court’s authority to restore a trial to
the trial list can only be found in Rule 1-3, which states:

(1)  The object of these
Supreme Court Civil Rules is to secure the just, speedy and inexpensive
determination of every proceeding on its merits.

[29]        
It may be that Rule 1-3 provides inherent jurisdiction to make an order
restoring this action to the trial list for March 4, 2013. But it seems to me
that Rule 12-1 (9) provides specific authority to do this. Subrule (9)(b)
states:

(9)  The court may

. . .

(b) fix the date of trial of a
proceeding,

. . .

[30]        
When this action was struck off the trial list, there was no longer any
date scheduled for the trial. The subrule I have just referred to does, in my
opinion, empower the court to fix a date for the trial of this proceeding which
coincides with the previously – scheduled trial date of March 4, 2013. I would
rely on that subrule in making the order to reinstate this action for trial on
March 4, 2013.

[31]        
Authority might also be found in Rule 22-7(2)(e), which states in
relevant part as follows:

(2)  . . .  if there has been a failure to comply with
these . . . Rules, the court may

. . .

(e) make any other order it
considers will further the object of these . . .  Rules.

[32]        
In my opinion, the reasons I have outlined support the orders that I
made on February 27, 2013.

[33]        
As to whether any of the relief being granted on this application could
have been obtained by the consent of the parties being communicated to the
trial scheduling manager, I offer these comments. The parties to a civil action
can do (or avoid doing) many things prescribed by the Rules of Court, by
consent. In this case, it is arguable that Rule 22-4 (3) would allow the
parties to extend the time for filing a trial certificate beyond the deadline
date by simply consenting to do so. However, this action had already been
removed from the trial list for non-compliance with Rule 12-4 (2), as directed
by Rule 12-4(5). And as I have said, the late filing of a trial certificate
would not automatically restore the trial to the trial list in any event. In
such a situation, I think an order of the court should be required for both
aspects of relief.

[34]        
In an assize system (which exists in Nanaimo), another trial might take
over the time slot that had previously been scheduled for the trial that had
been struck from the list.  The parties to that other action might insist that their
trial should proceed in priority to the trial that had been struck off the
list. But the parties who were seeking to file a “late” trial certificate by
consent, would likely be asking that their trial be restored to its former
place on the trial list. There might only be enough court time available for
one trial; or if sufficient court time was available for the two trials,
certain witnesses might not be able to attend unless the trial proceeded on the
initially – scheduled trial date.

[35]        
I do not think a trial scheduling manager should be required to
determine these potential issues. They should be resolved by a judge conducting
a review of the trial list and deciding which trial should have priority, after
hearing from counsel for all interested parties. A balancing of the potential
prejudices to the competing parties might have to be conducted.

[36]        
Although not mandated by the Rules, I think that the trial scheduling
manager should promptly inform the parties to a proceeding when the proceeding
has been removed from the trial list pursuant to Rule 12-4 (5). In a case where
the non-compliance was due to inadvertence, that would enable the parties (or
one of them) to take steps to have the proceeding restored to the trial list,
with minimal delay.

 “Mr.
Justice D.A. Halfyard”