8.7: Confirmation of trial date

Case Summary

In this Application, the Plaintiffs sought an adjournment of Trial, and the Defendants resisted. Two Actions were scheduled to be tried together during an eight day Trial starting on May 20, 2014. The Plaintiffs in both actions sought an adjournment, despite the fact that a Confirmation of Trial Date Form had already been submitted pursuant to Rule 8.7. This Application was heard 12 days before the Trial was scheduled to commence. The reason that the Plaintiffs sought an adjournment was to prepare an expert rebuttal report.

Several months earlier, the parties had submitted a Form 39 Confirmation of Trial Date, notwithstanding the fact that the requirements of Part 5 Division 2 had yet not been completed. The form stated:

… we are ready to proceed with the trial on the scheduled date of May 20, 2014 save for the requirements set out in Part 5, Division 2 of the Alberta Rules of Court. However, counsels (sic) for the Plaintiffs and Defendants, in both actions above, agree to proceed with the scheduled trial date and permit the procedure set out in Part 5, Division 2 of the Alberta Rules of Court to be conducted in the interim period prior to the scheduled trial date…

Approximately 3 weeks before Trial, the Plaintiffs received the Defendant’s expert’s report.

The Plaintiffs claimed that the report had been expected months earlier, and that it was clear from the report that a rebuttal report would be needed, and the Plaintiffs would not have enough time to prepare one.

Counsel for the Defendants stated that the Plaintiffs knew that an expert’s report was coming, and did nothing until after the report was received to suggest that the delay was a problem. The Defendants submitted that the Plaintiffs should be forced to go ahead with the Trial.

After reviewing the circumstances, Burrows J. determined that justice required the Plaintiffs have the chance to marshal evidence to respond to the expert’s report they had received, and that the time remaining before the scheduled Trial date was not sufficient for that purpose. He noted that the Defendants would suffer little prejudice as a result of the delay.

Borrows J. reprimanded counsel for both parties for failing to be ready for Trial despite submitting a Confirmation of Trial Date Form. He stated that normally “it is reasonable for court officers to schedule scarce judicial resources in reliance on lawyers’ representations” and normally “lawyers do not make such commitments unless they are sure they can meet them”. Borrows J. further noted that the situation was a frustrating one, since “[o]ther litigants who might have secured a slot on the crowded court schedule will continue to wait”.

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