DAVID GEORGE McPHEE PLAINTIFF AND: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA as represented by the MINISTRY OF TRANSPORTATION v. HIGHWAYS, 2003 BCSC 989

Citation: McPhee v. HMTQ and Mainroad Contracting Ltd. Date: 20030331 2003 BCSC 989 Docket: M000191 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA Oral Reasons for Judgment The Honourable Madam Justice Stromberg-Stein March 31, 2003 BETWEEN: DAVID GEORGE McPHEE PLAINTIFF AND: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA as represented by the MINISTRY OF TRANSPORTATION AND HIGHWAYS and MAINROAD CONTRACTING LTD. DEFENDANTS Counsel for the Plaintiff: John N. Laxton, Q.C. Robert D.

Gibbens and Edward Lyszkiewicz Counsel for the Defendant, Her Majesty the Queen in Right of the Province of British Columbia: Keith L. Johnston Counsel for the Defendant, Mainroad Contracting Ltd.: Alan A. Hobkirk and Karey M. Brooks Counsel for Miller Thomson on Application: Richard R. Sugden, Q.C. [ 1 ] THE COURT: The defendant Mainroad’s application to adjourn this trial is at issue. Counsel on behalf of the defendant Mainroad’s application has cast the issue as one of confidence in trial counsel’s ability to continue to act being compromised.

A problem in this case has arisen because it was not until the eve of trial that it was discovered that Mainroad has both a primary and excess insurer. How something like this was undiscovered until the last minute is unknown to me. [ 2 ] There is a dispute as between insurers with respect to who will pay if Mainroad is found liable in damages. The excess insurer apparently has indicated that it may deny coverage because it was not provided timely notification of the claim. It may reconsider if further expert reports are obtained relating to the issue of quantum of damages.

There is no evidence with respect to what agreement there may be between these two insurers. The defendant apparently has expert reports dealing with quantum of damages but these are apparently insufficient to satisfy the excess insurer. [ 3 ] The Province supports Mainroad’s adjournment application since the Province will most likely be on the hook in the event of liability if Mainroad’s insurance coverage is insufficient. [ 4 ] I accept the plaintiff’s submission that the issue is appropriately cast not as a confidence issue but as an internal matter between

Mainroad’s insurers. The plaintiff should not be prejudiced by an adjournment at this late date so that the defendant can obtain more expert reports in an attempt to settle a dispute between insurers which has nothing to do with the plaintiff. An 18-day trial cannot be rescheduled in the three-month period suggested by Mr. Sugden on behalf of this adjournment application without prejudicing and inconveniencing other litigants. The trial date in this case has been on the books for a year and a half. [ 5 ] Considering all of the circumstances, in my view it is appropriate that this trial proceed.

The defendant Mainroad’s application to adjourn the trial is dismissed. “S.S. Stromberg-Stein, J.” The Honourable Madam Justice S.S. Stromberg-Stein