ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for June, 2011

What's Sex Got to do With It? Gender and Damages for Diminished Earning Capacity

June 30th, 2011

Imagine two individuals catastrophically injured due to the negligence of others.  The injuries will be totally disabling over the course of their lifetime.  The individuals are identical in every way except for their gender.  Statistics tell us that the man’s lifetime earnings absent injury would likely exceed those of the woman.  In these circumstances is it fair to award the woman less damages in a personal injury lawsuit for diminished earning capacity (future wage loss)?

The BC Court of Appeal addressed this issue in reasons for judgement released this week (Steinebach v. O’Brien).  In short the BC Court of Appeal held that while it is improper to reduce a female’s diminished earning capacity award based on “simply discriminatory” components, statistics as to the difference of lifetime earnings cannot wholly be ignored.  However, the Court went further and stated that it would be proper to offset this difference in part by adding an economic value to females statistically greater participation in child-rearing and housekeeping activities and addressing this in damages for pecuniary loss.   Mr. Justice Groberbam provided the following useful reasons for judgement:

[60] There are, in fact, a number of different components that account for the difference between women’s average earnings and those of men. Some are simply discriminatory – they reflect historical patterns of undervaluing the work that women do, and paying them less than men for similar work. The defendants appear to concede that such factors should not be used to reduce damage awards for infant female plaintiffs.

[61] It seems to me that such a concession is appropriate. It is no longer seen as acceptable that women should earn less than men simply by virtue of their sex. It would appear that such blatant discrimination is vanishing; in any event, the courts should not countenance such discrimination by incorporating it into damages awards.

[62] Others components of the difference between men’s and women’s average earnings may, indeed, reflect lifestyle choices. Of particular importance are patterns of earning related to childbearing and child-rearing. Women, to a much greater extent than men, leave the workforce or engage in part-time work so that they are able to bear and raise children.

[63] In MacCabe v. Westlock Roman Catholic Separate School District No. 110, 2001 ABCA 257, 96 Alta. L.R. (3d) 217, it was held that it was an error in principle for the trial judge not to have taken into account negative contingencies associated with childbirth and child-rearing in assessing future income loss for a female plaintiff who had indicated, before she suffered her injury, that she wished to have several children and would consider staying home with them…

[65] To some extent, I agree with the reasoning of the Alberta Court of Appeal. The fundamental purpose of tort damages is compensation of victims. It would be highly artificial to impose on that system of compensation a regime designed to deal with inequalities that are inherent in the lifestyle choices that people actually make.

[66] The difficulty I have with the approach in MacCabe, however, is that it treats child-rearing as an activity having no economic value. I do not believe that this reflects the reality for most parents who choose to withdraw from the paid workforce to raise children, or choose to take part-time work in preference to full-time work. Nor am I of the view that the law requires child-rearing to be treated as a non-economic activity.

[67] The value of child-rearing has long been recognized in the domain of family law. Spouses are treated as economic partners. Where one takes over child-rearing responsibilities that would otherwise have to be paid for or shared by a spouse, he or she is still seen as contributing to the family’s economic well-being, and this may have an effect on family asset division in the case of marital breakdown.

[68] This is not a mere quirk of family law, but the reality of most family units where one spouse withdraws from the workforce (or reduces his or her working hours) in order to raise children. Such a decision is rarely taken lightly, and is typically accompanied by a re-allocation of family resources rather than being a hardship suffered by the non-income-earning spouse alone.

[69] The burden of economic costs being a shared one, it can be misleading to represent it as simply being borne by the spouse who does not earn an income. Yet, for the purposes of earnings tables, this is exactly how the burden is reflected. For certain purposes, it would be more accurate to account for the shared burden by notionally transferring earnings from the income-earning partner to the partner who decreases his or her income in order to devote time and effort to child-rearing.

[70] Women are much more likely than men to leave the workforce temporarily or reduce their paid work in order to take on homemaking or child-rearing roles. The result is that earnings tables reflect the economic costs associated with such decisions as falling disproportionately on women. Earnings for men are thereby overstated, while those for women are understated.

[71] Even if it were to reject the idea of treating the costs associated with such decisions as shared ones, the Court would still have to adjust earnings table amounts to reflect the economic value of child-rearing. At one time, it may have been debatable whether a spouse who took on child-rearing or housekeeping responsibilities could claim compensation if, as a result of a tort, s/he became unable to continue to perform them (see Regina Graycar, “Hoovering as a Hobby and other Stories: Gendered Assessments of Personal Injury Damages” (1997) 31 U.B.C. L. Rev. 17). It is now established, however, that a person who undertakes housekeeping activities and is disabled from doing so can make a claim to pecuniary damages: Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d) 178 (B.C. C.A.).

[72] It seems to me that, in line with Kroeker, the courts must not presume that the absence of monetary recompense for an activity necessarily means that pecuniary damages will be unavailable to a plaintiff who is disabled from engaging in it. Because earnings tables fail to account for the value of such unpaid activities as child-rearing and housekeeping, they will tend to represent under-estimates of a plaintiff’s loss of future earnings.


Counselling Record Production Request Denied as Irrelevant and Privileged

June 30th, 2011

Concise reasons for judgement were recently released discussing the scope of document production limits under the New Rules of Court.  In today’s case (RCL v. SCF) the Plaintiff was seeking damages following a motor vehicle collision.  He had a history of emotional difficulties stemming in part from childhood abuse.  He received counselling regarding this from the Elizabeth Fry Society.  The Defendant requested a Court Order for production of these records.

Master Young refused the application as going beyond the narrower document production test under the New Rules of Court and further held that even if the documents were relevant they were privileged under the Wigmore criteria.  The Court provided the following reasons:

[1] The application is being brought under our new Rule 7-1(1). The relevancy test in the Supreme Court Rules has now narrowed to one of direct relevance, to use the words of the section, “to prove or disprove a material fact”, and it is no longer a chain of inquiry test related to any matter in question. I am not satisfied that these records will assist in proving any material fact.

[2] The defendant already knows that the plaintiff was abused as a child; that this event caused him emotional pain; that he attempted suicide; that he sought help from the Elizabeth Fry Society; that he missed work prior to the motor vehicle accident; and that he suffers from borderline personality disorder and depression. I also note a record that his brother passed away shortly before this accident. The defendant has obtained volumes of clinical records. I do not see how the detail of the counselling at Elizabeth Fry or the details of the abuse are going to add anything to the information they already have. It is clearly a request based on a chain of inquiry that there might be something relevant in those records.

[3] Everyone agrees that the Wigmore criteria that is set out in the Slavutych v. Baker decision is the relevant test to determine if the records are privileged, and I am not going to repeat those four criteria, but criteria 1 to 3 were conceded to exist, and there was some debate in submissions about whether criteria 4 has been met, and that says that (as read in):

The injury that would inure to the relationship by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation.

[4] I agree with Mr. Williams that the case of M. v. Martinson is directly on point. Paragraph 4 of the Wigmore criteria has been interpreted in the broad sense as one of a public policy issue. Would the public interest and the proper administration of justice outweigh in importance any public interest that may be protected by upholding the claim for privilege? As Master Joyce (as he then was) said at para. 18 (as read in):

I find there is great public interest in encouraging victims of abuse to seek counselling and to be assured of the confidentiality of that communication. The public interest is served if that confidentiality is fostered to the greatest possible degree.

[5] What of the interests of justice? Is the central issue in this case before me today in this lawsuit the same as might be contained in those records? I think not. There have already been several other sources outlining this plaintiff’s prior psychological problems. These records are at best peripherally related to the material issue. I am not convinced that in the interests of justice, I should breach that confidential relationship at all, not even to review those records myself and certainly not under this new narrow test for document production in our Rules of Court.

[6] So on that basis, I am denying the application.


A Tale of Two Accidents: More on the Importance of Independent Witnesses

June 29th, 2011

As previously discussed, where motorists have different versions of events following a collision the evidence of independent witnesses can be crucial in addressing the issue of fault.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.

In this week’s case (Chang v. Alcuaz) the Plaintiff was involved in a two vehicle collision in 2008.  As she was travelling Eastbound on 33rd Avenue her vehicle was struck as she crossed Main Street.  The Defendant was travelling Southbound on Main Street at the time the vehicles collided.

The impact was severe with the plaintiff testifying that as she approached the intersection “she recalled that the colour of the traffic light was green” and that “she has no other recollection of the accident.  Her next memory is of waking up two days later in the hospital.

The Defendant disputed this version and gave evidence that he had the green light.  Mr. Justice McEwan ultimately preferred the Defendant’s evidence and dismissed the Plaintiff’s claim.  In reaching this conclusion the Court placed significant weight on the evidence of two independent witnesses who saw the collision.  Mr. Justice McEwan provided the following reasons for judgement:

[28] The evidence in this case is contradictory and unreliable in many of its details.  It is often difficult, in cases of this kind, to put much reliance on estimates of time and distance given by witnesses in connection with a surprising and traumatic event…

[29] Liability comes down to two questions:

(1)  who had the benefit of the light, and

(2)  was the operator of the vehicle with the benefit of the light, nonetheless responsible to some degree, in the circumstances.

[30] Respecting the first question, there is reason to doubt the plaintiff’s assertion that she had the benefit of a green light as she now asserts.  She was unconscious following the accident and her original statement is at odds with what she presently says.  It would be difficult to accept her version of the event without corroboration.

[31] The assistance offered by the witness, Ms. Currimbhoy, is highly debatable.  She, alone, among the witnesses, suggests that the event happened in daylight.  On a common sense basis, as I have indicated, she could not be right about her proximity to the plaintiff at the time of the collision.  There is also the difficulty that none of the other witnesses saw any other vehicle proximate to the collision.  There is a further difficulty posed by Mr. Humphrey’s flatly stated observation that he saw the woman who identified herself as a co-worker pull up after the collision.  It is not conclusively established that that was the same person, but it is telling that neither Mr. Jantzen, nor Mr. Humphrey, who observed the entire incident, noted any other vehicle near the scene.

[32] The defendant, Mr. Jantzen and Mr. Humphrey all say firmly that the defendant had the benefit of the green light when he entered the intersection.  Mr. Jantzen’s impression that the defendant may have been “timing” the light is borne out in the defendant’s description of what occurred, in that he says he slowed and then accelerated when he saw the light turn green.

[33] The evidence from the City of Vancouver respecting the timing of the lights that day at that intersection is also useful.  If the light was turning, an eastbound driver had 3.5 seconds of an amber light before the change.  For 1.5 seconds traffic in all directions is governed by a red light.  This means that by the time the light turns to green, eastbound traffic, at any reasonable speed, has had a warning and ample time to stop.

[34] The scenario posted by the plaintiff that the light was green or green turning amber as she hit the intersection would imply a red light north and southbound that continued for five seconds after the defendant entered the intersection.  This would preclude any impression of the defendant “timing” the light because he would have entered fully on red.  That is not in accordance with the observation of Mr. Jantzen or of his passenger, Mr. Humphrey.  Both were credible and balanced witnesses who were not caught up in the event themselves except to witness it.  Mr. Jantzen, in particular, was paying specific attention to the light because he had been waiting for it to change.  His view was unobstructed.

[35] I am satisfied, on the basis of a consideration of all the evidence, that at the time the collision occurred the defendant had the benefit of the green light and that the plaintiff should not have been in the intersection when the collision occurred.

This case is also worth reviewing for the Court’s discussion of fault for motorists who “time a green light“.  The Plaintiff argued that if she did run a red light the Defendant was partially to blame because he timed his green light.  Mr. Justice McEwan dismissed this argument but in doing so provided a useful overview of the law at paragraphs 36-46 of the reasons for judgement.


Deposition Applications Under the New Rules of Court

June 29th, 2011

Earlier this year Mr. Justice Harris provided reasons in obiter setting out some concerns as to why parties should limit the use of deposition evidence at trial.  This week, reasons for judgement were released considering a contested application for a witness to testify by way pre trial deposition.  This is the first reported case I’m aware of dealing with such an application under the new Rules of Court.

In this week’s case (Seder v. ICBC) the Plaintiff was injured in a motor vehicle collision.  ICBC spoke with the Plaintiff’s employer and wished to call her as a witness at trial.  The employer lived in Alberta so ICBC asked for permission to conduct a pre-trial deposition and introduce that evidence at trial.  The Plaintiff opposed this but was willing to accommodate the witness by allowing her to testify via video-link.  ICBC did not agree to this compromise and brought an application for an order requiring the witness to attend a deposition.

Master Young dismissed ICBC’s application but did give the witness permission to testify via video-conferencing.  In doing so the Court provided the following reasons:

[3] In determining whether to exercise its discretion to order an examination under subrule (1), the court must take into account:

(a)         the convenience of the person sought to be examined,

(b)        the possibility that the person may be unavailable to testify at the trial by reason of death, infirmity, sickness or absence,

(c)        the possibility that the person will be beyond the jurisdiction of the court at the time of the trial,

(d)        the possibility and desirability of having the person testify at trial by video conferencing or other electronic means, and

(e)        the expense of bringing the person to the trial.

[4] The former Rule 38 is essentially the same rule as the new Rule 7-8, with the exception that a new ground has been included at 7-8(3)(d) regarding the possibility of testifying at trial by video conferencing…

[5] In Abermin Corp. v. Granges Exploration Ltd., [1990] B.C.J. No. 1830, Mr. Justice McColl discussed the purpose and intent of Rule 38 shortly after it was incorporated into the Rules. The Rule, he said, is attempting to strike a balance between the fundamental principle that witnesses should testify live before the court and the preservation of evidence which might not be available at trial because it is not always possible to get witnesses, willingly or otherwise, before the courts. His Lordship said that Rule 38 intended to provide the parties with the opportunity to preserve and present evidence when there is a possibility that a witness would not otherwise be heard and thus adversely affect one of the litigants at trial. The emphasis was on the availability of the evidence, not the convenience of counsel.

[6] The mischief to avoid in interpreting the Rule, is that trial would become a “hodge-podge of deposition evidence along with viva voce evidence in the conduct of a trial merely to convenience counsel or indeed potential witnesses” (Abermin at p. 3)…

[33] Ms. Jacob is not a central witness. She is being called to give brief evidence relating to loss of earnings. It is not proportionate to pay three days’ travel expenses to have her testify for an hour and fly home the same day. This travel expense could be avoided by permitting her to attend at the trial by video conference. She is a cooperative witness, but out of an abundance of caution the third party still intends to subpoena her. The cost of the applications cannot be avoided if the third party wants to ensure her attendance. That cost would be incurred whether she attended for a deposition or for a trial.

[34] I have to keep in mind the problems with preparing defence evidence prior to the trial without a judge presiding, as articulated by Justice Harris in Byer. It strikes me that these problems which interfere with the effectiveness and usefulness of the evidence at trial should only be ordered in exceptional circumstances where the evidence will be lost if not recorded prior to trial.

[35] In cases such as this case before me with the most unexceptional facts, the proportionate procedure would be video conferencing.

[36] I dismiss the third party’s application.


What Do ICBC's 2010 Annual Report and Hot Coffee Have in Common?

June 28th, 2011

ICBC’s 2010 Annual Report was recently released to little media attention.   Perhaps little attention accompanied the release because there were few exciting facts in the report.  At $361 million of Net Income last year alone ICBC continues to be very financially sound and stable.

This stability, however, is newsworthy on its own.  British Columbia has Canada’s fullest tort system for motor vehicle collision victims.  That means if you are injured through the fault of another you will have access to more meaningful compensation here than anywhere else in Canada.  The important underlying story here is that victim rights don’t need to be stripped (as other Provinces have done or proposed) to have a viable auto insurance system.

This story dovetails nicely into another newsworthy matter.  HBO’s much anticipated documentary Hot Coffee has now aired.  This movie documents, amongst other things, the infamous story of the 1990’s American lawsuit against McDonald’s after a patron burned herself with their coffee.  This is a classic example of frivolous lawsuits run a muck, right?  Watch the movie and decide for yourself.  You can click here to listen to my take on the Hot Coffee case as discussed with Charles Adler last year.

If you don’t have time to watch the documentary I’ll summarize one of the important points made.  Stories of a broken system and frivolous claims are often bandied about by the insurance industry.  These generate a lot more headlines than stories of financial insurance company stability.

The insurance industry often uses the momentum of these stories to argue that “reform” is necessary because the system is failing due to abuse.  As Hot Coffee illustrates, it is important to step back and scrutinize any claims that victim rights need to be stripped in order to have a functioning insurance system.  This usually is not the case.  When tort reformers ask for proof, point proudly to British Columbia’s full tort system and ICBC’s 2010 Annual Report.


Is an Unentered BC Supreme Court Order Effective?

June 27th, 2011

After a BC Supreme Court Judge or Master makes an Order, the parties to the lawsuit typically agree to the order’s terms, reduce it to writing, sign it and enter it with the Court Registry.  Can an order be effective if parties fail to take these usual steps?  The answer is yes and Reasons for Judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this area of the law.

In this week’s case (Hable v. Hable) the parties were involved in a family law dispute.  In the course of the lawsuit a Court Order was obtained.  The order was never entered and the lawsuit was eventually discontinued.  After this the parties could not agree as to whether the unentered order was effective and the Court was asked to address this issue.  The respondent argued that the order could not be entred because the underlying lawsuit was discontinued.  The Court disagreed and in finding that the order was valid and effective Mr. Justice Bowden provided the following helpful reasons:

[7] The law in British Columbia regarding the effect of an order that has not been entered, as found in Metro Trust Co. of Can. v. MacDonald, (1988) CanLII 3025 (B.C.S.C.), is that it is “provisionally effective and can be treated as a subsisting order in cases where the justice of the case requires it and the right of withdrawal would not be thereby prevented or prejudiced.” That view of the law reflects an earlier decision of the B.C. Court of Appeal in Allard v. Manahan, [1974] B.C.J. No. 933, where the Court of Appeal said at para 10:

What is meant by the statement that an unentered order is only “provisionally effective”? I think that it means that the Judge who made it may, in his discretion, alter it or set it aside.

[8] A superior court is not functus officio with respect to an unentered order. (Clayton v. British American Securities Ltd., [1935] 1 D.L.R. 432 (B.C.C.A.).  Unlike the dismissal of an action, which is a final order, a discontinuance leaves matters open and is not a bar to further proceedings. (Chrétien v. Canada (Attorney General), 2005 FC 925 (Federal Court) and Davis v. Campbell (1986), 54 O.R. (2d) 443 (H.C.)

[9] I have concluded that the discontinuance filed in this matter does not preclude me from signing and entering the Order without the signatures of counsel.  By doing so, I am simply confirming an order which was made prior to the filing of a discontinuance.  Either party is at liberty to apply to settle the order before me or the Registrar, provided that such application is made before July 16, 2011.  If no application is made by that date, the Order will be entered.


Google's Driverless Cars: Coming Soon To a Location Near You?

June 25th, 2011


After lobbying by Google regarding their Driverless Car Project the State of Nevada is reported to have passed Assembly Bill No. 511 into law which paves the way for Driverless vehicles to become lawfully sanctioned.   The law requires the Nevada Department of Transportaiton to “adopt regulations authorizing the operation of autonomous vehicles on highways within the State of Nevada“.

The following parameters were set out regarding these regulations:

The  regulations  required  to  be  adopted  by  subsection  1

must:

(a) Set forth requirements that an autonomous vehicle must meet before it may be operated on a highway within this State;

(b)  Set forth requirements for the insurance that is required to test or operate an autonomous vehicle on a highway within this State;

(c) Establish minimum safety standards for autonomous vehicles and their operation;

(d) Provide for the testing of autonomous vehicles;

(e) Restrict the testing of autonomous vehicles to specified geographic areas; and

(f)  Set  forth  such  other  requirements  as  the  Department determines to be necessary.

If anyone is aware of any lobbying efforts by Google to change Provincial laws to pave the way for Driverless Vehicles to come to Canada please feel free to contact me and let me know.


$50,000 Non-Pecuniary Damages for "Sustained and Prolonged" Exacerbation of Fibromyalgia

June 24th, 2011

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing an assessment of damages for an aggravation of pre-existing injuries.

In today’s case (Iwanik v. Hayes) the Plaintiff was involved in a 2008 intersection collision.  She was 61 years old at the time.   Fault for the crash was admitted by the opposing motorist.  The trial focused on the quantum of damages (value of the claim).

Prior to the collision the Plaintiff had various health concerns including fibromyalgia. The collision caused, among other injuries, a “sustained and prolonged” exacerbation of her pre-existing condition.  In valuing the non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Madam Justice Gray provided the following reasons:

[132] As a result of the accident, Ms. Iwanik suffered soft tissue injuries to her neck, thorax and lumbar spine, causing a prolonged and sustained exacerbation of her fibromyalgia, and causing intermittent headaches. If the accident had not occurred, her fibromyalgia would have flared up periodically, but not enough to have restricted her from her from work or her other activities.

[133] As a result of the accident, Ms. Iwanik also suffered an injury to her left knee, which caused patellofemoral pain syndrome. It may have caused other problems in her knee, but the evidence at trial did not establish anything further. Although there is no record of Ms. Iwanik reporting the knee pain to treatment providers until August, 2008, I accept her evidence that she was initially more focussed on her other pain, and thought that the knee pain would resolve.

[134] I accept Dr. Bridger’s opinion that Ms. Iwanik also suffered a probable minor compression fracture of her T12 vertebra, and that she suffered a minor head injury with a probable minor concussion which has resolved. However, both of those injuries resolved so quickly that they do not affect the assessment of damages in this case.

[135] As a result of the injuries she suffered in the accident, Ms. Iwanik is no longer able to work at a physically demanding job, and is not capable of working in a 7-Eleven store. Fortunately, Ms. Iwanik found work at a Husky gas station which can accommodate her abilities. However, the job is not as well-paid as her work as a manager at 7-Eleven, and does not offer opportunities for advancement.

[136] As a result of the injuries she suffered in the accident, Ms. Iwanik is no longer able to engage in hour-long walks, or to carry heavy items such as laundry and groceries, or to garden for more than 20 minutes at a time in an elevated garden bed. She is no longer able to contribute to her family and community to the extent she previously did….

[142] In all the circumstances, an appropriate award is $50,000.


Trial Management Conferences and the Attendance Requirement

June 23rd, 2011

The first published reasons for judgement addressing Trial Management Conference attendance requirements pursuant to Rule 12-2(4) were released this week on the BC Supreme Court website.

In this week’s case (Luis v. Haw) the Plaintiff was involved in 4 separate motor vehicle collisions.   A lawsuit was started following each collision and these were set for trial at the same time.  All the Defendants were apparently insured with ICBC.

As the Trial Management Conference neared ICBC made an application requesting that “(the personal) defendants are exempt from attending the trial management conference; secondly, that Mr. Kevin Munt, who appears to be an adjuster at the Insurance Corporation of British Columbia, “represent” the defendants at the trial management conference, and that Kevin Munt be allowed to attend the trial management conference by telephone“.

The Court largely dismissed the application and in doing so Mr. Justice Groves provided the following useful comments about the attendance requirement for Trial Management Conferences:

[19] The first concern raised by the letter and the requisition is the request that Kevin Munt “represent” the defendants at the trial management conference. That is the language in the requisition.

[20] If this is a request for Kevin Munt, who is 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. It appears from the evidence before me that Kevin Munt may fall into this category. 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”.

[25] That, in my view, defeats the whole purpose of Rule 12?2(5). Ready access, the words in the rule, means really that the adjuster has to have either authority to make decisions or the ability, while the court stands down, to make a phone call to get the instructions he requires to properly speak for the defendant at the trial management conference.

[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…

[33] In conclusion, if the suggestion in this requisition is that Kevin Munt attend on behalf of the defendants, he is not counsel, he cannot attend without counsel.

[34] If this is a request that Kevin Munt attend in the place of the defendants themselves, which is permissible under the trial management conference rule, then I am satisfied, if Kevin Munt has the real authority or has ready access, and by that, immediate access to those who have authority, then he can attend pursuant to Rule 12?2(5).

This decision is also worth reviewing for Mr. Justice Groves discussion of Rule 23-5 and the circumstances when the Court should allow a party to attend a Court Proceeding via telephone.


Credibility Cases Not Suitable for Severance of Issues and Summary Trial

June 22nd, 2011

Earlier this year Mr. Justice McEwan provided reasons for judgement finding that an order to sever issues under Rule 12-5(67) is a prerequisite to having only part of a case tried by way of summary trial.   Today, reasons for judgement were released confirming this point and finding that where credibility is an issue a case will likely not be suitable for severance or summary trial.

In today’s case (Erwin v. Helmer) the Plaintiff alleged injuries in a trip and fall incident.  She sued for damages under the Occupiers Liability Act.  The Defendants applied to dismiss the case via summary trial.  Mr. Justice McEwan dismissed the application finding that a a summary trial was not appropriate.  In doing so the Court provided the following reasons regarding credibility, severance and summary trials:

[9] This case inherently turns on credibility. While counsel for the plaintiff has not objected to severance, the court must still be concerned with the proper application of summary process and with the sufficiency of the evidence on which it is expected to rule that a party will be deprived of a full hearing.

[10] It appears from what is before the court that the precise nature of the “hole” into which the plaintiff alleges she stepped will not be established with any precision. There nevertheless appears to be a question to be tried on the balance between the risk assumed by the plaintiff and the duty imposed on the defendants to ensure that the premises were reasonably safe. There is simply not enough material presently before the court to reliably make that call. The defendant relies on the fact that the plaintiff had been drinking as if that essentially speaks for itself, but the presence of drinking invitees on the defendant’s premises was, on the material, foreseeable. There is little, if any evidence as to what efforts, if any, were made to render the premises reasonably safe for those who attended the wedding in those circumstances, including, for example, whether paths were designated or lighting was supplied.

[11] The application is accordingly dismissed and, the whole matter will be put on the trial list. The question of severance, if it arises again, should be the subject of an application. Where credibility is a significant issue it should generally be decided on the whole case, not on the fraction of it, unless the test for severance has specifically been met. Otherwise the trier of fact may be deprived of useful information relevant to the over-all assessment of credibility.