A short leave application brought by the defence in O’Callaghan v. Hengsback, 2017 BCSC 2182 to compel the Plaintiff to attend a defence psychiatric IME is dismissed by Master Baker.
The basis for the denial is that the matter was not deemed urgent and furthermore, the Court agreed with the Plaintiff who took the position that sufficient notice was provided to the defence that a psychiatric injury was being claimed. Notice was provided by notations in the GP records, prayer for relief in the NOCC, testimony provided at the discovery by the Plaintiff and denial of facts in the Notice to Admit. This was deemed sufficient notice and there was no surprise element to this specific claim. The Defendant should have been alerted of the psychiatric injury and an IME could have been scheduled far sooner.
Short Leave Applications
The Court states that there are no real guidelines that assists the profession on what is deemed “urgent” and it appears that Short Leave Applications are being utilized too frequently.
Master Baker has outlined factors to consider before any Short Leave Application is scheduled and it is important that these considerations are noted:
The Court states:
Such applications should be restricted to emergent circumstances and should not reward inefficiency, inattention to a particular case, or a lack of oversight. To abridge the time limits imposed by the Supreme Court Civil Rules is, presumably, to prejudice the other party who is, naturally, entitled to rely on timelines imposed by the Rules and to expect the opposing party to do likewise.
 In the absence of guiding authorities, I suggest the following considerations, non-exclusive, should guide the parties and the court in considering short leave applications:
- The application, of course, is to be made by Requisition, usually without affidavits, and may be made before a Registrar, Master, or Judge.
- While undue formality in the application is discouraged, the application should be made in court, on the record (even if by video or telephone) and not online as an e-filed application.
- Applicant’s counsel should notify the opposing counsel or party of an intention to apply for short leave so that counsel can appear. At the very least applicant’s counsel should canvass with his or her friend their availability on the proposed chambers date and whether he or she is opposed to the short leave.
- The applicant should be prepared to give a full accounting of the facts, circumstances, context, and chronology leading to the application for short leave, all of which should establish that the applicant has been affected or surprised by events or developments not reasonably foreseeable.
- If opposing counsel is not present should, as in the case of without notice applications, be prepared to give both favourable and unfavourable details.
- If any important or pivotal fact or element is disputed by opposing counsel the applicant should be prepared to offer affidavit evidence on the point and, as always, counsel should not speak to his or her own affidavit if the matter is contested.
- Busy schedules for the applicant counsel will usually not be sufficient reason for short leave; in that case counsel should arrange for a colleague or agent to speak to the chambers application on the usual notice required by the rules.
 Ultimately, taking these points into consideration, the court will balance the prejudice both to the other party by potentially disrupting their schedules and trial preparations as well as service to other clients and to the applicant by virtue of reasonably unforeseen facts, circumstances, or developments that have inhibited the applicant’s preparation in the normal chronology that the rules contemplate and mandate.
 Some areas of the law tend to offer more emergencies or crises than others; family law would likely fall in this category. Despite this, however, of late more applications for short leave seem to arise from personal injury/motor vehicle accident cases than in any other. And most of those applications for short leave seem to be on behalf of the defence, seeking short leave to bring an application for an IME close to trial. In that respect, this case is completely typical of that growing practise.
 In many cases, the applicant can point to genuine circumstances giving rise to surprise or the advent of claims or circumstances the applicant could not have reasonably anticipated. This, and many similar applications, is not in that category. In too many cases, in my view, the defence, either assuming that settlement is likely or simply by applying triage or prioritizing in busy offices with large caseloads, have not given due attention and focus in a timely way to the possible claims and damages of the plaintiff. Lawyers are extremely busy professionals. They have many cases other than the one specifically before the court. Every master and judge knows that. Still, that cannot be permitted to affect the other party’s right to due process and adherence to the rules unless clearly justified; it is the court’s function to prevent that.
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