IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110304

Docket: M074939

Registry:
Vancouver

Between:

JASDEEP JESSIE
KAILAY

Plaintiff

And

INSURANCE
CORPORATION OF BRITISH COLUMBIA

Defendant

IN THE SUPREME COURT OF BRITISH COLUMBIA

Docket: S077731

Registry:
Vancouver

Between:

JASDEEP JESSIE
KAILAY

Plaintiff

And

DOROTHY LIM and
DCFS CANADA CORP.

Defendants

Before:
Master Baker

Reasons for Judgment

ISSUE

[1]            
Ms. Kailay seeks damages for two separate motor vehicle accidents. The
trial of these claims had been set for April 4, 2011for 15 days before a jury. On
the defendants’ application I adjourned that trial for reasons given briefly
below. This decision concerns what conditions, if any, should attach to the
adjournment.

BACKGROUND

[2]            
Ms. Kailay is a 29 year old teacher, employed full time, and, by all
reports, good at what she does. She was involved in two motor vehicle
accidents; the first was with an unknown driver and occurred November 20, 2005.
The second happened May 7, 2010.

[3]            
The trial of Ms. Kailay’s first accident had been set for 8 days
starting January 25, 2010, but was adjourned on the defendant’s (ICBC) application
in December 2009 owing to the relatively recent development (in the claim, at
least) of emotional, psychological, or psychiatric injuries, all evidenced and
discussed in reports received in the fall of 2009. That application, it must be
said, was vigorously opposed by Ms. Kailay. In allowing the adjournment
Master Scarth imposed conditions, including an advance of $10,000.00 and a
requirement that the defendant fund a maximum of 20 counselling sessions for
Ms. Kailay at a cost of $170.00 each. In fact Ms. Kailay has had more than 20
sessions and, at the time of this application, ICBC had reimbursed her for only
16 of them.

[4]            
The trial was re-set, but then Ms. Kailay was involved in a second
accident. This in itself did not seem to have affected the April date. In both
cases liability is in issue: in the first ICBC says Ms. Kailay did not meet the
statutory or regulatory requirements for a claim involving an unknown driver. In
the second it is safe to describe the defence as ‘boilerplate’, alleging all
the usual sins of omission and commission against Ms. Kailay.

[5]            
The matter proceeded in the usual course until Ms. Kailay became
pregnant in November of 2010. This, I understand, was a happy surprise for her,
as she had, since August 2008, been trying to become pregnant; her intentions
and frustrations in that regard were even noted by Dr. Schultz, a clinical
psychologist and neuropsychologist consulted by plaintiff’s counsel[1].
Her November pregnancy is her first child.

[6]            
This event, however, is seemingly attendant with further stress and
psychological effects. These, and the potential for further and significant
exacerbation of the emotional and psychological effects of the accidents, were
noted in detail by Dr. Schultz in her subsequent report[2].
In this application to adjourn the defendants stressed this new development
i.e. the very recent and intervening pregnancy and in particular the complicating
psychological overlay arising from it. Are Dr. Schultz’s concerns and suggested
implications included:

1.       Greater risk of
post-partum depression and its consequences,

2.       The possibility of
traumatic stress and depression from the delivery itself,

3.       More complications from
her diagnosed obsessive compulsive disorder,

4.       Exacerbation of her
chronic pain, fatigue and decreased stamina, and

5.       Heightened insecurity.

Are these likely to be borne out as the pregnancy and
delivery progress? Will there be greater difficulties for Ms. Kailay with the
normal childcare and child rearing tasks as a consequence of (in the
plaintiff’s view) psychological problems caused by the accident(s)?

[7]            
I judged the question significant enough, and the possible consequences
of Dr. Schultz’s second report of sufficient import, that the defence was
permitted a second adjournment. Again, this adjournment was emphatically
opposed by Ms. Kailay. Her counsel is very busy and, unfortunately, his
schedule does not allow for another 15-day trial date for two years. This is
unfortunate, as the Court, doubtless, could accommodate the parties well in
advance of that. Still, Ms. Kailay is obviously entitled to the counsel of her
choice and nothing in my decision should be taken as suggesting otherwise.

[8]            
One of the principal reasons Mr. Leblanc opposed a further
adjournment is the likely ongoing emotional strain imposed on Ms. Kailay
by the further delay. I can understand that and fully credit her view on that
point. There are numerous reports indicating Ms. Kailay’s emotional or
psychological difficulties and this adjournment cannot improve on that; quite
the contrary, I accept that a further delay may well worsen that.

ANALYSIS

[9]            
Should there be terms imposed on the defendants as a condition of an
adjournment? I have decided that terms are, indeed, in order. Mr. Leblanc,
for Ms. Kailay, proposed the following terms:

1.       $70,000.00 representing
the cost of treatment/counselling until the new, prospective trial date;

2.       $24,000.00 for child care
and assistance, anticipated as a successful head of damages were the matter to
have been heard in April;

3.       An undertaking by the
defence to cease further surveillance;

4.       Costs thrown away, in
particular respecting updated experts’ reports obtained in anticipation of the
April trial date.

[10]        
Mr. Leblanc’s submission is that the psychological consequences of
the accidents and of a further adjournment require assistance and counselling
to Ms. Kailay will be ongoing and will be established at trial. He argues
that ongoing treatment is essential to her recovery and that an adjournment
should not impede that. He relies on calculations performed by an Occupational
Therapist, Ms. Rutherford, in her reports[3].

[11]        
Ms. Macaulay makes several arguments against an advance:

1.       Ms. Kailay may have insurance with Manulife through
employment and s. 24 of the Insurance (Vehicle) Act[4]
and s. 106 of the Act’s regulations prevent payments that are otherwise
insured;

2.       The proposed cost of treatment is exaggerated and
there is evidence the cost will be much less;

3.       The estimated adjournment time (2 years) is
excessive;

4.       The cause of the adjournment is Ms. Kailay’s
independent choice to become pregnant;

5.       Liability is disputed and very much in issue.

[12]        
Taking these various positions, I am satisfied of the following. First,
the court’s jurisdiction to make an order for conditions of an adjournment that
include advances, whether to meet specific costs and expenses, or as simple
advances on likely general damages cannot be seriously disputed. Mr. Leblanc
submitted five authorities to support his position[5],
but it has to be said that in each of these cases liability was either actually
or virtually admitted. This is not such a case; in the first accident, in
particular, ICBC disputes Ms. Kailay’s having met the statutory requirements
for an action involving an unknown driver. Mr. Leblanc insists the defence is
weak and that Ms. Kailay will prevail at trial. Obviously I cannot decide
liability at this stage, but that does not preclude some degree of assessment. I
think Ms. Kailay’s case strong enough at this stage that the defence should not
preclude an advance. Similarly I expect that the possibility of her being
insured through Manulife can be sorted out at trial.

[13]        
I do not accept that liability must be absolutely established before an
advance can be ordered. The real issue, in such a case, is: in the event the
plaintiff is unsuccessful, can the advance be recovered? I see no reason why
that would not be the case here, particularly assuming that any advance would
be accompanied by an undertaking from Ms. Kailay in that respect.

[14]        
During arguments respecting the adjournment Mr. Leblanc submitted that
Ms. Kailay’s pregnancy was “a life event”; something, I inferred,
inevitable (like the example he offered, the death of a parent). I do not
accept the inevitability or randomness of pregnancy. As I said during
submissions it is almost impossible for me to point to Ms. Kailay’s wish for
pregnancy and the consequent (in this case) adjournment of her trial without
leaving the inference of some kind of blameworthy conduct. Nothing could be
farther from the truth. While Ms. Kailay obviously wished for her pregnancy, it
is a natural, reasonable, and wonderful event in her life, something
that she and her partner are obviously entitled to. I cannot see that any
negative consequence, other than the adjournment itself, should attach to the
event. As a result I cannot place any weight on the defence submission that she
chose pregnancy and should thereby be refused advances.

[15]        
Ms. Macaulay has a good point regarding the two year delay following the
adjournment. Mr. Leblanc is an officer of the court, however, and has assured
the court that his practise, consisting largely of personal injury work,
precludes double-booking trial times as the institutional defendant he
typically faces can use that as a trial stratagem. I do not know whether that
is the case or not, or whether it goes any further than a suspicion in Mr.
Leblanc’s mind. But he has assured the court that he has no 15-day trial dates
for two years and I see no reason to doubt that. And, as I have said, Ms.
Kailay, having had Mr. Leblanc as her counsel since the outset, is entitled to
continue in her choice, together with Mr. Leblanc’s scheduling constraints. The
likelihood, then, that the matter will be delayed longer than otherwise
available dates does not significantly influence my decision.

[16]        
I agree with another of Ms. Macaulay’s submissions, though: of the
possible costs for treatment, Ms. Kailay has offered the very highest. Her
treating psychologist, Dr. Leader, estimated the cost of treatment (10 to 20
sessions at $160.00 per session) to be $1,600.00 to $3,200.00[6].
Dr. Schultz, on the other hand, estimated the various forms of counselling
would cost in excess of $15,000.00. I am inclined to follow in Dr. Leader’s
direction and order a cost substantially lower, at this stage, than that
envisioned by Dr. Schultz. I do this for two reasons. Firstly, any advances at
this stage must be seen as interlocutory in nature and, while helping with
recovery, are also intended to ‘stem the tide’ until trial. I would assume, as
such, that there might be triage necessary and that Ms. Kailay be given help in
the most demanding areas of her psychological recovery. The costs suggested by
Dr. Schultz, as I understand them, encompass all areas of possible need,
and do so in the very long term. Secondly, Dr. Leader is Ms. Kailay’s treating
psychologist and I assume therefore that he is more familiar with her more
immediate needs and prognosis.

[17]        
I cannot accede, however, to Ms. Kailay’s request for advances for child
care, nor will I limit surveillance by the defence. The costs of child care, if
any, are much too speculative at this time to warrant an advance. Moreover, I
doubt that, absent very clear, compelling, and established bases, that the
court’s jurisdiction, as a condition of an adjournment, goes so far as to
seriously limit a party’s choice of stratagems in conducting its case. Surveillance
is hardly unknown in cases such as this, and I conclude nothing as to its
admissibility at trial. Nor do I conclude at this stage whether Ms. Kailay is
correct or not in her telling of the surveillance that has taken place to date.
Suffice it to say that I am not at all persuaded that the defence’s latitude in
that respect is to be limited. Obviously if the tool of surveillance is abused
the issue may recur and the court may well see it otherwise.

[18]        
Finally, Ms. Kailay has had to incur very significant costs in retaining
and instructing experts. Those costs were increased, of course, when the matter
was adjourned (in both instances) as experts were asked for addenda to their
earlier reports. Those costs are real and must be recognized.

SUMMARY

[19]        
As a consequence of the above, I direct that the conditions of the
adjournment will be:

1.       The defence will fund up to 30 further counselling
sessions at up to $200.00 per session;

2.       Ms. Kailay will receive $20,000.00 toward her
general damages claim;

3.       The defence will advance $10,000.00 toward Ms.
Kailay’s costs incurred to date, including, of course, her experts’ fees;

4.       Ms. Kailay will give her undertaking that, in the
event her claim fails at trial or that advances to date (including the above)
exceed the damages awarded by the court, she will repay the advances as
required.

These are the conditions of the adjournment. If, for any
reason, the defence does not acknowledge and accept them by March 7 the trial
will continue on April 4 as currently scheduled.

[20]        
Costs of this application will be costs in the cause.

Master Baker