The BC Supreme Court recently considered whether a lawyer who failed to prepare his client’s case for trial should be granted an adjournment of the trial.
In Raniga v. Poirier 2020 BCSC 780 the plaintiff was injured in a motor vehicle accident and sued Mr. Poirier, who had admitted liability for the accident, which occurred in 2015. The plaintiff filed the claim in 2017 within the limitation period, and had retained counsel shortly after the accident.
In 2018 examinations for discovery were conducted and plaintiff’s counsel scheduled a five-day trial to commence in June of 2020. In late 2019 the defendant arranged for an independent medical examination for the plaintiff which was completed in February 2020, and a report, unfavourable to the plaintiff, was delivered to plaintiff’s counsel in March of 2020.
So far, so good, but then the file started going sideways….it happens and covid-19 did not assist the matter.
In contemplation of an early June 2020 trial date, counsel for the plaintiff began his trial preparation in the first week of May 2020, not an unreasonable time to dive back into the file. However, to counsel’s shock he quickly realized that the only expert evidence with regards to the plaintiff’s injuries was the ICBC report that did not support the plaintiff’s case.
Counsel for the plaintiff explained to the court that in February 2020 his paralegal asked him whether he wanted to commission an expert medical report. Unfortunately, he mixed up this plaintiff’s case with another he was working on and told her “no”. His law office closed and he began working remotely in mid-March 2020. The pre-trial conference scheduled for April 7, 2020 was adjourned due to the court closure. Because he only realized his error in early May 2020 he was not able to arrange an independent medical examination, and hence his application for an adjournment.
Again unfortunately, counsel for Mr. Poirier decided to take advantage of the plaintiff’s misfortune and opposed the adjournment application.
Mr. Justice Kent reviewed the law with respect to the court’s discretion with respect to adjournments, citing Navarro v. Doig River First Nation 2015 BCSC 2173 where the court said:
“There are numerous factors to be considered on an adjournment application. However, the paramount consideration is the interest of justice in ensuring that there will remain a fair trial on the merits of the action… Because the overall interests of justice must prevail at the end of the day, courts are generous rather than overly strict in granting adjournments, particularly where granting the request will promote a decision on the merits… The natural frustration of judicial officials and opposing parties over delays in processing civil cases must give way to the interests of justice, which favours a claimant having his day in court and a fair chance to make out his case…”
Judge Kent had just criticism for both counsel. For plaintiff’s counsel he said he was not impressed with the material that accompanied the adjournment application and did not condone his conduct, which caused the need for an adjournment…but he granted the adjournment, without awarding costs. He also said he expected that counsel’s firm would absorb all fees and expenses incurred in relation to the application and would not bill his client.
As for the defendant, Judge Kent stated that the defendant sought to visit the “sins of his lawyer” upon a blameless plaintiff to whom liability had been admitted and that “it should have been obvious from the outset that an adjournment would be granted.”
I do believe in the golden rule, that is,”Do unto others as you would have them do unto you”. No lawyer is perfect and mistakes are made, but they are magnified when counsel do not subscribe to the ethics of reciprocity.
Lawdiva aka Georgialee Lang
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