2013 ONSC 2717, 2013 ONSC 2717

CITATION : Phipps v. Kanagasabai, 2013 ONSC 2717 BARRIE COURT FILE NO.: 10-0103 DATE: 20130508 SUPERIOR COURT OF JUSTICE - ONTARIO RE: JAMES STEVEN PHIPPS by his Litigation Guardian BARBARA JOAN MCMURRAY, JORDAN PHIPPS, by his Litigation Guardian BARBARA JOAN MCMURRAY, BARBARA JOAN MCMURRAY, and PATTI SANDAU, Plaintiffs AND: THAYPARAN KANAGASABAI and NEW HAVEN CONTRACTING INC., Defendants BEFORE: THE HON. MADAM JUSTICE M.P. EBERHARD COUNSEL: R. Durante Counsel, for the Plaintiff D.

Rogers Counsel, for the Defendant HEARD: May 8, 2013 ENDORSEMENT [ 1 ] I heard the Defendant’s request for adjournment of this trial fixed for the May 13, 2013 civil sittings in my administrative capacity conducting Trial Scheduling Court. [ 2 ] Mr. Rogers now has carriage of the defence. His participation is not recent. He was predicted to take carriage since August 2012. With diligence since that time he has marshalled evidence to be trial ready from that perspective.

However, he is scheduled to begin a trial in Newmarket on May 13, 2013 in these same Central East Region sittings. [ 3 ] It is my consistent approach as trial scheduling judge to set trials subject to counsel availability conflicts arising from trials previously set down for hearing. I accept that Mr.

Rogers is scheduled to commence a previously set down trial and is currently unavailable though I have no knowledge or control over which trials will be called in for trial in Newmarket. [ 4 ] The Plaintiff cites prejudice of delay inasmuch as a tentative accident benefits settlement will not take effect until the tort action is resolved and benefits being paid of about $25,000 a month will be deducted from the tort action result. [ 5 ] There was one previous adjournment form the November 2012 sittings to give Mr.

Rogers time to marshal evidence. [ 6 ] The Plaintiff acknowledges that counsel for the Defendant cannot be in two places at one time but submits the adjournment request is premature as Mr. Rogers’ conflicting trial could settle. [ 7 ] Mr.

Rogers acknowledges that he could conduct this trial if suddenly available but expresses professional concern for his ability to do the best job for his client since his trial preparation time is being used for the other trial set to begin. [ 8 ] As this issue came before me only the Wednesday before the scheduled Tuesday jury selection day, I see my decision as being whether to adjourn now on terms, or require the Defendant’s counsel to appear for jury selection to see whether he has become available.

If he were available I find it would be unreasonable to call him to trial (other than jury selection) before five business days from his unexpected availability. [ 9 ] The Plaintiff was not prepared to engage in a discussion of terms. [ 10 ] I have determined that the trial should remain on the trial list for the sittings. The Defendant shall not be called to trial earlier than five business days after his conflicting trial is complete or settles. The jury selection currently set for Tuesday May 14 th , 2013 stands but by Monday May 13 th Mr.

Rogers will know whether his Newmarket trial is going forward in which case the Plaintiff has indicated the necessity to adjourn this trial will have manifested. In such case I expect both counsel to arrange to vacate the jury selection date.

They have leave to do so on consent through the trial co-ordinator without the necessity of appearing unless there is dispute as to terms. [ 11 ] I make this ruling without reference to the practical impediments common to all trials that the court’s resources to accommodate trials, particularly of significant length, are still a factor on whether the trial can proceed in these sittings. Eberhard J.

Date: May 8, 2013