2005 BCSC 135 Gebru v. Gill et al

Before: Master Barber

Oral Reasons for Judgment

In Chambers

January 13, 2005

Counsel for Plaintiff	M.G. Galambos
Agent for Counsel for Defendants	I. Lee
Place of Hearing:	Vancouver, B.C.

[1] THE COURT: This is an application to adjourn a five-day jury trial presently set for January 31, 2005.

[2] The action arises out of a motor vehicle accident which occurred on July the 15th, 2001. Liability is hotly contested in this matter.

[3] The application is opposed by the defendants on several bases. One is that a new trial would be perhaps a year or more away, which would mean that it would be over five years from the date of the accident to the date of trial, and as liability is an issue the memories of witnesses could be further degraded in time.

[4] In addition to that, the defence points out that the basis on which this application is made is a referral note from Dr. Klein (phonetic), which is dated October 1, 2004.

[5] The first time that it is suggested in the material that a neurologist could see the plaintiff is February the 15th, 2005, namely, after the trial. There is no explanation as to why an earlier date could not be received. There is no explanation as to why this application was not made earlier.

[6] It is, though, said by the defendants, and acknowledged quite candidly, which was appreciated, that they did have some indication in October that the plaintiff did want an adjournment. However, they told them that they would not consent and nothing was done until this notice of motion was delivered. The notice of motion is dated January 4, 2005.

[7] In support of the application is the affidavit of Mr. Ganapathi, and he does not advise us as to when this referral note was received by his office or when they had knowledge of its contents. Therefore, I have to conclude that it was received some long time ago. I also come to that conclusion by the fact that the plaintiff asked for an adjournment some long time ago, but did not proceed with that application. It was not that they were in any way deluded into thinking that it would be consented to; in fact, quite the opposite, as I have already indicated.

[8] The doctor in his referral note says in the last part:

The problem here is obviously what to suggest to him --

Namely, the plaintiff.

-- and is he a surgical candidate. Another issue is whether the primary cause of his back problems was his MVA in 2001, or the WCB injury, or a combination. He has been in good health otherwise in the past, and I do not detect any tendency towards malingering, drug seeking, or other. Please see, assess, and recommend.

[9] The suggestion now is that the trial be adjourned so that there may be an assessment by the neurologist to see whether or not surgery is necessary and also to see whether or not there is any linkage between these two (i.e. the WCB injury and the motor vehicle accident in 2001). In my opinion, the application comes way too late.

[10] It is clear that if there was to be some investigation; it has been known since the 1st of October, certainly by the plaintiff, and I suspect, although I cannot conclude, by the plaintiff’s solicitor. I come to that for the reasons earlier stated, because of the application request for an adjournment in last October.

[11] At any rate, there is no explanation as to why an earlier appointment could not be obtained. There is no explanation as to what has been done in the meantime.

[12] In my view, this matter should go ahead. It is simply too late and there is insufficient information on which to file the application to grant the adjournment. Therefore, denied.

(DISCUSSION BETWEEN THE COURT AND COUNSEL RE COSTS)

[13] THE COURT: I would in many cases say costs in the cause. I think costs to the defendants, in any event of the cause in this case --

[14] MR. LEE: Thank you.

[15] THE COURT: -- and the reason being that it is late, it could have been done earlier, and I think that the defence is entitled to that.

“Master R. Barber”