IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Yeterian v. Baker,

 

2008 BCSC 593

Date: 20080430
Docket: M050021 M054181
Registry: Vancouver

Between:

Vicken Yeterian

Plaintiff

And:

Carolyn Baker and Panne Rizo Enterprises Inc.

Defendants

Between:

Vicken Yeterian

Plaintiff

And:

Phoi-Linh Vuong

Defendant

Before: Master Taylor

Oral Reasons for Judgment

In Chambers
April 30, 2008

Counsel for Plaintiff:

D. McGivern

Counsel for Defendants:

K. Martin

Place of Hearing:

Vancouver, B.C.

 

[1]                THE COURT:  This is an application by the plaintiff to adjourn the trial on this matter currently set to commence June 9th, 2008.  There are two actions to be heard at the same time, both arising out of motor vehicle accidents.  The first accident occurred on April 4th, 2003.  The second occurred on August 2nd, 2005.  Liability for the first accident is in issue.  Both accidents involve the plaintiff riding a motorcycle and striking another vehicle in an intersection.

[2]                The plaintiff's major reasons for seeking an adjournment of the trial are twofold.  One, it is submitted he has not recovered from the accidents; and two, his current employment is less secure than it was three months ago.

[3]                In relation to the first ground for seeking the adjournment, counsel submits that due to the opinions of Dr. Vaisler and Dr. Fritz, it is likely the plaintiff will require arthroscopic surgery to repair the torn labrum in his left shoulder and to assess it thereafter.  Dr. Vaisler's opinion is that if Mr. Yeterian elects surgery to inspect for a tear of the glenoid labrum and if a tear were present, it could be debrided and possibly repaired.

[4]                Then he will most likely be off work for one to two months after surgery, followed by a graduated return to work over the following two to three months.  There is a 20 percent risk that he will continue to complain of left shoulder pain with heavy lifting above waist level for the foreseeable future even if he elects to undergo the surgery.  It is also to be noted that the plaintiff complained of left shoulder pain due to a fall in 2001 prior to his first motor vehicle accident.

[5]                Dr. Vaisler's diagnosis of Mr. Yeterian's left shoulder was that he suffered a subacromial impingement of his left shoulder in the 2003 motor vehicle accident and an aggravation of the subacromial impingement of his left shoulder as a result of the August 2nd, 2005 motor vehicle accident.

[6]                Dr. Anton, reporting to plaintiff's counsel on August 22nd, 2006, thought it possible that Mr. Yeterian suffered a partial thickness rotator cuff tear or a glenoid labrum tear.  He recommended a MRI scan of the left shoulder to assist in diagnosis and to provide guidance for further treatment and rehabilitation.

[7]                The plaintiff did not have a MRI scan of his left shoulder until January 28th, 2008.  There is no evidence to suggest that this is because of a backup in the system such that an MRI exam could not have occurred between August 2006 and January 2008, some 17 months.

[8]                It was only after the MRI exam that the plaintiff spoke to his family physician, Dr. Fritz, and asked for a referral to an orthopedic surgeon, and not until April 10th that he received a message from the referred orthopedic surgeon for a consultation.

[9]                In his affidavit, the plaintiff says that if surgery is recommended to him, he will give that careful consideration.  He goes on to say that he cannot state with certainty that he will have the surgery.  He says he would like to have surgery if he is satisfied that it will cure his shoulder problems without unacceptable risk or prolonged rehabilitation.

[10]            The second portion of the plaintiff's argument, re seeking the adjournment, is apparently due to the prospects of possibly having to look for new work whilst he is unsure of his capacity to work, due in part to his shoulder and in part to his leg, which was broken in the second motor vehicle accident.  It is suggested that the plaintiff is a salaried employee at his brother's company and that business is poor and that the company may be sold.  However, in many of the reports from investigating doctors and psychologists, the plaintiff refers to the company as "his company" or that of himself and his brother.

[11]            The settled test in applications such as these is set out in Sidoroff v. Joe [1992] B.C.J. No. 2776 21 BCCA 192 where the Court of Appeal said:

While recognizing that granting an adjournment is a matter of discretion, it is a discretion that is to be exercised in accordance with the settled principle.

[12]            The settled principle is that the interests of justice must govern whether to grant an adjournment.  The interests of justice always require a balancing of interests of the plaintiff and the defendant.

[13]            One trial date has already been adjourned at the request of the plaintiff.  As I have set out in my reasons, the plaintiff, in my view, has not been diligent in prosecuting his claims.  He brought the action, and the onus is on him to prosecute his claim efficiently and without delay.

[14]            When I weigh the respective prejudices, I determine that to allow the plaintiff to adjourn the trial in this matter once again not only prejudices the defendants in the two actions, but also the litigation process.  Accordingly the plaintiff's application is denied with costs to the defendants in any event of the cause.

“Master Taylor”