The Supreme Court Civil Rules with respect to Trial Management Conferences dictate, amongst other things, who must attend, the consequences of non-attendance, and what kind of Orders a judge can make.

 

ATTENDANCE REQUIREMENT

 

In Luis v. Haw, ICBC’S lawyer made a request that the Defendants need not personally attend at the trial management conference, that an adjuster for ICBC attend rather than the lawyer for ICBC, and that such adjuster could attend by telephone. Not surprisingly, the majority of the application was dismissed. The Court ruled that the adjuster could not attend in place of the Defendants without counsel, that the adjuster could attend in place of the personal defendants if he had authority, or immediate access to someone with authority, but could not do so by phone.

 

[5]               My reading of Rule 23‑5(3) is that telephone conference or the court conducting business by telephone is an option not based on the desires of parties requiring or wanting to attend, but has its basis in the word “urgency”, which appears in Rule 23‑5(3). I note the subheading of Rule 23-5(3) says “Urgency or convenience”, yet the rule itself only speaks to urgency. As such, the sub heading is likely an error.

 

[6]               Generally speaking, counsel seem to have skipped over the element of urgency noted in Rule 23‑5 in the numerous requests that the court receives for matters to be heard by phone. In my view, for anyone to attend by telephone conference at a required court hearing, urgency is required, and if not direct urgency, I would read into this section as including the option of extreme inconvenience.

 

[7]             As a general rule, court applications, trials or hearings of any sort, the default position is that persons required to attend are required to attend in person. The urgency exception I of course need not comment on further. Examples of extreme inconvenience may be that the matter will be quick, such as a trial management conference set for a half an hour or so, and that the travel costs or the costs of someone attending generally are in fact so prohibitive as to amount to extreme inconvenience. Example of this would be travel from a difference province or travel from out of the country. Examples which would not in my opinion qualify as extreme inconvenience would be travel from Chilliwack to Vancouver, or Kamloops to Kelowna, or Victoria to Nanaimo.

 

[8]          There is a good reason for this limit on telephone attendances in court. The most pressing of these is perhaps technological, but that is a reality of our courts today. We simply do not have good phones. Quite frankly, in most courtrooms in the province we do not even have phones which have the required speakerphone technology. Often it is a requirement to adjust the courtroom and scramble through a courthouse to find a phone to install in the courtroom that is then able to be used for the purposes of a telephone conference.

 

[20]         If this is a request for … an adjuster, to appear and that counsel not appear, that is completely inappropriate. Trial management conferences are significant and they are a significant change to the rules. They are mandatory and no trial certificate is issued without the parties attending. Though interlocutory, trial management conferences cannot be done by Masters, who do not hear trials. In my view, this suggests the drafters of the rules have placed significant emphasis on the requirement of trial management conferences.

 

[21]         Noting that, I also then note that there are a number of matters that can be discussed at trial management conferences, as set out in subrule 12‑2(9), that require legal analysis and are clearly not within the knowledge of an adjuster representing an insurance company. These include:  (a) a plan as to how the trial was to be conducted; (c) amendments to pleadings within a fixed time; (d) admissions of fact at trial; (e) admission of documents at trial; (i) respecting experts’ reports and issues dealing with experts’ reports; (l) an adjournment of trial; and (m) directing the number of days reserved for trial to be changed.

 

[22]         Without even considering the clear requirement that people are represented in court by counsel or by themselves, it is, from my reading of what is to transpire at a trial management conference, completely inappropriate to suggest that when a defendant has counsel, that someone else, in this case an adjuster, appear essentially as counsel at a trial management conference. It is impossible to imagine how the requirements of a trial management conference can be accomplished by an adjuster appearing on behalf of the defendants, as may be the request in this requisition.

 

[23]         If, however, this is a request that the adjuster attend in substitution of the mandatory requirement of the defendants’ attendance, that is governed by Rule 12‑2(5).

 

[24]         Rule 12‑2(5) clearly contemplates a circumstance, which may be present here, which is that an individual who has full authority to make decisions for a party in the action or an individual who has ready access to the person or group of persons who collectively have full authority to make decisions for a party to an action can attend in place of a party …… I will say, however, that it is not appropriate for an adjuster to attend on behalf of defendants, unless he or she has the real authority to make decisions for the defendants. It is not good enough to say, as has been said before me, “That exceeds my current authority”, “I have to go back to the committee and they won’t be meeting for another week”.

 

[26]         This lack of authority cannot be used as an excuse that prohibits the proper conduct of court actions at trial management conferences, when it is such a representation that allows the representative of the defendant to attend in the first place. Clearly the rule contemplates letting those who represent defendants, such as insurance adjusters, attend in the place of defendants. Insurers may wish to not require their defendants to personally attend. I do note however that there appears to be an increasingly internal requirement that defendants attend at trial, even when liability is not at issue. The adjuster who does attend must have the ability to deal with all matters or have ready, immediate access to those who can so instruct.

 

[27]         I now turn to the issue of the further request in the requisition, and that is a request that the adjuster not only appear, but that he appear by telephone.

 

[28]         The materials before me generally show no urgency or extreme inconvenience, which is the test …

 

[31]         Let me emphasize this as strongly as I can. The rule requires that the defendants attend. Rule 12‑2(5) allows authorized representatives, such as an adjuster in this case, to attend in the place of the defendant. Unless there is urgency, which is hard to imagine with a two-week pre-arranged matter, or extreme inconvenience, personal attendance is the default position. The fact that an adjuster, whose job I assume it is to deal with claims, believes that he is too busy to attend a mandatory court appearance, is simply not good enough.

 

[32]         As there is no urgency shown and no extreme inconvenience, this aspect of the application must simply be dismissed.

 

 

DECIDING on the ADMISSIBILITY of EXPERT REPORTS

 

In Tran v. Cordero, the Plaintiff was injured in a motor vehicle collision, and subsequently brought an ICBC claim for non-pecuniary damages, as well as various other forms of damages. An issue arose at the Trial Management Conference with respect to the issue of admissibility of expert reports, and whether or not the presiding judge has jurisdiction to rule on such an issue. ICBC’S lawyer had objected to the admissibility of one of the Plaintiff‘s expert reports, and also submitted that the matter should be properly dealt with by the trial justice. The presiding justice at the Trial Management Conference, however, ruled otherwise, ruling that the issue could be decided by a justice or master at a Trial Management Conference.

 

[2]             The second matter concerns an objection to admissibility of the plaintiff’s treating physician’s expert report.  The defendants say that one of their objections to admissibility of this report is the relation, which is described as a familial one, between counsel and the plaintiff’s treating physician.  That relation it is said may give rise to the issue of bias which would prevent the admission of the report.  Counsel for the plaintiff says this has been known and not until today, at the Trial Management Conference, raised as a factor regarding admissibility of the report.  The defendants say this is not a matter I can deal with, but must be left to the trial judge.

[3]             I am advised that this is a ten day jury trial.  In my view this objection is of such a fundamental nature to the ability of the trial proceeding fairly that it must be raised and determined prior to trial. In my view, the Court is clothed with the requisite jurisdiction under Rule 12-2(9).  In the circumstances it would further the object of these rules, particularly the ability to justly, fairly, and efficiently determine the issues on the merits at trial, that if the defendants intend to rely on this objection, that the application must be made and set down for hearing prior to trial and within two weeks of today’s date.  I so order.   

 

PROHIBITION on AFFIDAVIT EVIDENCE

 

In Enns v. Cahan, ICBC’S lawyer brought an application at a trial management conference to strike the Plaintiff’s jury notice, but did not introduce any affidavit evidence. The Court dismissed the application. The Court discussed the issue of affidavit evidence at trial management conferences.

 

[9] Rule 12-2(11) provides that:

(11)  A trial management conference judge must not, at a trial management conference,

(a) hear any application for which affidavit evidence is required, or

(b) make an order for final judgment, except by consent.

 

[10]           Mr. Brun, Q.C., argued on behalf of Mr. Cahan that his application could proceed without affidavit evidence and on the basis of submissions by counsel alone. Mr. Brun provided the Court with a copy of the Bruce-Aldridge report and seeks to rely on that and the statement of claim as the basis for his application. Mr. LeBlanc argued on behalf of Mr. Enns that Mr. Cahan’s application requires evidence and that it is therefore one of the prohibited orders set out in Rule 12-2(11).

 

[11]           The new Rules include Rule 1-3 as follows:

 

(1)  The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

(2)  Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a) the amount involved in the proceeding,

(b) the importance of the issues in dispute, and

(c) the complexity of the proceeding.

 

[12] The new Rules have procedures which enable the court and the parties to design the procedure necessary to resolve a particular issue which is in question. The question of whether an application requires affidavit evidence will not always be determined by what remedy is sought. The question of what is in dispute will play a role, as well. In this case, Mr. Brun’s submissions are based on the Bruce-Aldridge report and the statement of claim. It is not necessary to require the parties to go to the trouble and expense of preparing affidavits when counsel can simply provide the court with a copy of the report in question and the pleadings.

 

[13] In my view, requiring affidavit evidence would not be consistent with the object of securing the inexpensive determination of every proceeding on its merits. Here, counsel agree that the Bruce-Aldridge report was tendered by Mr. Enns as a report he intends to rely on at trial as an expert report. As I have said, that report, together with the statement of claim, form the basis of Mr. Brun’s submissions. As a result, Mr. Cahan’s application can proceed as an application before the trial management judge.