Trial Adjourned Based on Lack of Report From Treating Expert

Trial Adjourned Based on Lack of Report From Treating Expert

In the case of JURCZAK V. MAURO, 2011 BCSC 512 (“JURCZAK”), the Court had to consider whether an adjournment application could be ruled on at the Trial Management Conference (“TMC”) stage. The Court ultimately found that it could, as long as affidavit evidence did not need to be considered to determine whether adjournment was appropriate.

JURCZAK dealt with a personal injury action where the Plaintiff was seeking an adjournment at the TMC because a specialist who had treated the Plaintiff refused to give a medical report as requested. The specialist had “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” (at para. 3). Counsel for the Plaintiff consequently requested more time to pursue another expert or appeal to the specialist’s governing professional body.

Given the complications to the Plaintiff’s case caused by the doctor’s refusal to provide a report, the Plaintiff naturally wanted to seek an adjournament. However, because both parties’ counsel had doubts about whether an adjournment application could be heard at the TMC stage, they consented to the TMC being converted into a chambers application where affidavit evidence would be permitted. However, the Court in JURCZAK held that although Rule 12-2 of the SUPREME COURT CIVIL RULES prohibits applications requiring affidavit evidence from being considered at a TMC, there is no prohibition on granting an adjournment in a TMC where affidavit evidence is not required to make such an order.

Paragraph 11 of the decision contains the Court’s reasoning as to why an adjournment at the TMC stage could have been made even without the affidavit evidence counsel thought necessary:

[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.

The Court also found that because some affidavits presented after the matter had been converted into a chambers application were based on information and belief, the source of which was the counsel present at the TMC, the affidavits were unnecessary. Similarly, a medical report attached to a physician’s affidavit would have been admissible at trial under Rule 11-7; the Court found that “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” (at para. 15).

Although the Court found that the fact that the adjournment application was contested did not in itself prevent its consideration at the TMC, it did note that if the Defendant had put forward an affidavit detailing the prejudice that would be suffered as a result of an adjournment then the adjournment could not have been dealt with at the TMC stage. However, such an affidavit was not present in this case.

The Court succinctly summarized its findings at paragraph 18:

[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.

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