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 December, 2013

Double Costs Ordered After Baseball Brawl Lawsuit Dismissed

December 30th, 2013

Earlier this year the BC Supreme Court dismissed a lawsuit following a fight between two adults at a Pee Wee baseball game.  Prior to trial the Defendant made several fairly modest settlement offers, one of which was a formal offer giving the Court the discretion to award double costs.  In finding it was unreasonable for the Plaintiff to reject the offer and proceed to trial Madam Justice Watchuk (Charland v. Cloverdale Minor Baseball Association) provided the following reasons ordering the Defendant to pay double costs:

[17]         Mr. Wheeler submits that the offers were offers which ought reasonably to have been accepted.  There is now general agreement on the law that, “in determining whether the offer to settle ought reasonably have been accepted the court does not consider the final result…  The reasonableness of a decision not to accept an offer must be assessed … [by] the circumstances existing when the offer was open to acceptance:” [Ward at para. 36]. 

[18]         The first offer of $3000, although not a formal offer under the Rules, was made on March 13, 2012.  It canvassed the minor injuries set out in Mr. Charland’s records, and noted that there was not the required supporting letter to substantiate the amount of an offer which had been made by Mr. Charland.

[19]         On June 8, 2012, a formal offer to settle in the amount of $5000 was served on counsel for Mr. Charland.  It was open until five minutes after the commencement of the trial.

[20]         Discoveries of Mr. Charland were held in late July 2012.  On August 2, 2012, counsel for Mr. Wheeler wrote to plaintiff’s counsel expressing reasons why Mr. Charland’s case was problematic.  Those reasons, the credibility of Mr. Charland and the nature and extent of his injuries, were later the subject of findings made at the trial which supported the position of Mr. Wheeler.

[21]         At that time, previous offers were retracted and a “nuisance offer” of $250 was formally made.

[22]         Mr. Wheeler submits that the fact that the final offer was reduced significantly following discoveries should have no effect on the determination of whether double costs are appropriate in this case.  I agree.

[23]         It was incumbent on Mr. Charland to “make a careful assessment of the strength or lack thereof of [his] case at the commencement and throughout the course of the litigation” [Hartshorne at para. 25].  Mr. Charland had knowledge, particularly after his Discovery, of the evidentiary problems in his case.  He chose to proceed to trial despite knowledge of those problems.  In light of that knowledge at the time the $5000 offer was made, and in light of the heightened knowledge at the time the nominal offer of $250 was made, his decision not to accept the offers was not reasonable.

[24]         As in Riley, Mr. Charland ought reasonably to have anticipated that his claim would be dismissed at trial.

[25]         With regard to the other factors listed in Rule 9-1(6), the relationship between the terms of settlement offered and the final judgment of the court may be considered by the court.  The second and final offers were more favourable to Mr. Charland than the decision of the court since his claim was dismissed with costs.

[26]         The court may also consider the relative financial circumstances of the parties.  Little is known regarding this factor.  It appears from the evidence that both parties have similar financial circumstances.  Both have legal costs arising from the litigation.

[27]         There are no other factors raised by Mr. Wheeler and, in the absence of submissions from Mr. Charland, no other factors that the court considers appropriate to take into account.

[28]         On consideration of the factors set out in Rule 9-1(6), I conclude that Mr. Wheeler is entitled to double costs from the date of the first formal offer, June 8, 2012. 


Court Orders Part 7 Action Discovery Transcripts Disclosable in Tort Action

December 27th, 2013

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, allowing a Defendant in a tort action to gain access to a Plaintiff’s examination for discovery transcript from a related Part 7 action.

In the recent case (Gill v. Gill) the Plaintiff was injured in a 2009 collision and sued for damages.  She also sued ICBC for allegedly denying benefits owing under her own policy of insurance.  ICBC defended both actions but appointed separate lawyers to do so.  The Plaintiff was examined for discovery in both lawsuits.  Subsequent to this the Defendant in the tort action applied for a copy of the transcript from the Part 7 action discovery.  Madam Justice Adair held it was appropriate to lift the implied undertaking of confidentiality and ordered disclosure.  In doing so the Court provided the following reasons:

[20]         Ms. Simon is correct that the underlying causes of action in the Tort Action and the Part 7 Action are different.  In that sense, the issues are different.  She also points out, correctly, that the two actions cannot be consolidated for trial or heard together by virtue of s. 83(4) of the Insurance (Vehicle) Act, and Part 7 benefits are not to be referred to at the trial of the Tort Action.  Moreover, a determination with respect to entitlement to Part 7 benefits does not bind the court in the Tort Action.

[21]         However, there are, without any doubt, overlapping factual issues in the two actions, including:

(a)      was Ms. Gill injured in the accident and, if so, what injuries did she sustain as a result;

(b)      was Ms. Gill unable to work as a result of the injuries sustained in the accident; and

(c)      has Ms. Gill incurred expenses in relation to medical and rehabilitative treatment as a result of injuries sustained in the accident.

[22]         Although the causes of action are different, key factual issues will be the same in both actions.  Ms. Gill must establish injury, causation and loss arising out of the same event, namely, the accident on April 5, 2009.  If, in stating that “the issues are sufficiently different and discrete,” the Master was referring to factual issues in each action, then, in my opinion, the Master was clearly wrong, because many factual issues in the two actions are obviously very closely related, if not identical.

[23]         Ms. Gill, as the plaintiff in both actions, can be compelled to testify in both the Tort Action and the Part 7 Action about the same factual issues, so there is no privacy issue that needs to be protected.

[24]         On the other hand, there is a compelling public interest in getting at the truth.  As Mr. Justice Hood observed in Scuzzy Creek Hydro & Power Inc. v. Tercon Contractors Ltd. (1998), 62 B.C.L.R. (3d) 366 (S.C.), 1998 CanLII 5684, at paragraph 22:

[I]t is the possibility of there being inconsistent statements which triggers the special reason for the production of the discovery transcript.  The test over the years . . . has never been higher than “lets see what the witness had to say under oath before with regard to these or related matters”.  What [the witness] has said may be relevant to the evidence [the witness] gives in the second action.

[25]         Accordingly, here, the defendant has demonstrated the existence of a public interest of greater weight than the values (privacy, and the efficient conduct of litigation) the implied undertaking is designed to protect…

[31]         In summary, the defendant’s appeal is allowed and the defendant’s application to use the discovery transcript from the Part 7 Action in this action is granted.

Witness Name and Statement Ordered Disclosed

December 24th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, ordering that the name and statement of a witness be disclosed in the course of litigation.

In this week’s case (Derksen v. Canada Safeway Limited) the Plaintiff alleged injury following an incident on the Defendant’s premises.  She sued for damages.  In the course of the claim a liability claims examiner retained by the Defendant obtained a statement from a witness who “claimed to have information regarding the plaintiff and her claim“.  The Defendant did not share this document claiming litigation privilege.  Master Caldwell disagreed finding the statement, along with the name of the witness, needs to be disclosed.  In reaching this conclusion the Court provided the following brief reasons:

[14]         The remaining issue involves a statement provided to Ms. Freestone by an unnamed individual on April 11, 2012. According to Ms. Freestone, she was contacted by this person who claimed to have information regarding the plaintiff and her claim. An interview was arranged and a transcript created. The defence now claims that the interview was done and the statement created solely for the purpose of litigation.

[15]         There is no property in a witness, particularly a lay witness. Based upon the material before me, the individual has potentially relevant, potentially controversial information, about the plaintiff and her claim. The statement provided by this lay witness may well form an important part of cross examination. Failure to disclose such a statement denies plaintiff the opportunity to investigate the allegations contained therein and to challenge the veracity and motives of the informant.

[16]         No authority was cited to me to support the defence position of privilege as regards the statement and the identity of the witness.

[17]         The defendants are ordered to produce to counsel for the plaintiff an unredacted copy of the statement dated April 11, 2012 which has been listed as privileged item 4.3 of the defendants’ List of Documents.

More on the Recovery of Disbursement Interest

December 23rd, 2013

Adding to this site’s archived posts addressing the recoverability of interest on disbursements, reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, canvassing the evidence necessary to recover these expenses.

In last week’s case (Bodeux v. Tom) the Plaintiff was injured in a collision and the claim settled however the parties could not agree on various disbursements.  The Court concluded that the majority of claimed disbursements were reasonable along with interest charged on these.  In reaching this decision Master McDiarmid provided the following reasons addressing disbursement interest:

[68]         The defendants say that the plaintiff has not provided sufficient evidence for me to determine that interest was either necessary or proper. They submit that detailed financial information, such as was provided to me in a review of the plaintiff’s bill of costs in Franzman v. Munro, 2013 BCSC 1758, is required before I can conclude that interest is a disbursement which has been necessarily or properly incurred in the conduct of the proceeding. They point to the evidence presented to Registrar Cameron in Chandi v. Atwell, 2013 BCSC 830, where, in an appeal from the decision of Registrar Cameron, Mr. Justice Savage, at para. 14, summarizes a relevant fact as follows:

…In preparing for litigation, the plaintiff incurred disbursements in order to obtain necessary evidence on liability, the extent of injuries, and the quantification of damages. As the plaintiff and his family were of limited means, they required assistance in order to fund the disbursements.

[69]         Similarly, in the appeal from the decision of Registrar Sainty in MacKenzie v. Rogalasky, 2012 BCSC 156, Savage J. summarized the relevant facts in paras. 22-23 as follows:

[22]      However, due to his income loss, Mr. MacKenzie could not afford to pay for the expert reports and other trial expenses. He did not qualify for a loan from a bank or a similar institution, and his credit cards were maxed out. He had already borrowed from his family. The only source of funding available to him was a loan from Lexfund Management Inc. (“Lexfund”), a specialized disbursement lender.

[23]      Mr. MacKenzie obtained the loan from Lexfund on November 26, 2009, only two months before trial. The loan was for $25,000, plus a $1,250 underwriting fee, for a total of $26,250. Under the terms of the loan, Mr. MacKenzie could only use the funds to pay disbursements incurred in the course of litigation. The interest on the loan was 2% compounded monthly, representing an effective annual rate of 26.82%. The loan was secured by any proceeds of the litigation.

[70]         As is apparent from the materials I have reviewed, including the various medical/legal reports and the description of the accident contained in many of those reports and also contained in the affidavit of Mr. Yawney, this was a claim which, in order to be properly presented, required plaintiff’s counsel to obtain many expert reports. Those expert reports cost money. As I wrote in my decision in Franzman:

[28]      We are constantly hearing how difficult it is for ordinary people to afford access to our courts. The fee agreement entered into between the plaintiff and her lawyer facilitated her having access to the courts. …

[71]         Entering into a fee agreement in which the plaintiff’s lawyer agreed to incur the expense of necessary disbursements for the plaintiff and to finance them and charge the plaintiff for that result in the incurring by the plaintiff of a disbursement for interest which I find, on the uncontradicted evidence before me, to be both necessary and proper.

[72]         In Franzman, at para. 28, the balance of the paragraph is as follows:

The interest rate charged by the law firm, that being essentially the interest it was paying on its operating line of credit (a way in which many law firms finance their operations) is reasonable.

[73]         In Franzman, interest on disbursements was calculated at six percent simple interest.

[74]         The mere fact that the plaintiff entered into a fee agreement which provided for charging disbursements at a rate appropriate to be charged between the client and her lawyer, does not mean that that amount of the disbursement should be automatically passed on to an unsuccessful litigant.

[75]         For example, retainer agreements often provide that the law firm will charge its client photocopies at an agreed upon rate. A photocopy rate allowed by registrars is usually less than the rate agreed to as between the law firm and its client.

[76]         I am charged with assessing and allowing a reasonable amount for disbursements. The six percent allowed in Franzman was a reasonable amount; economic times have not changed since that decision was rendered in September 2013. I, therefore, allow the disbursement at six percent of the amount claimed, reducing the $2,730.81 claimed to $1,638.49.

Liability Findings in Tort Action Binding in Subsequent HCCRA Prosecution

December 20th, 2013

Reasons for judgment were published this week by the BC Supreme Court concluding that a trial court’s findings of liability are binding in subsequent Health Care Costs recovery prosecutions undertaken by the Province.

In the recent case (British Columbia v. Tekavec) the Defendant owned an apartment building.  A guest fell from the balcony and sued for damages.  The Defendant was found liable and ordered to pay damages.  Prior to trial the Province initiated collateral proceedings under the HCCRA.  They did not participate in the tort trial.  After trial they continue the HCCRA prosecution against the Defendant. The Defendant brought an application to strike the Claim.  Mr. Justice Bracken held that the action can continue and further that Defendant cannot re litigate the issue of liability as it was fully canvassed in the tort trial.  In reaching this conclusion the Court provided the following reasons:

[42]         While the Province could have joined in the original action to fully advance its claim, it chose not to.  Perhaps that decision resulted from the conclusion in Gosselin that the Act did not apply to the injuries Mr. Jack suffered before the Act came into force so the Province concluded it could not take an active role in the original action and had to proceed with an independent action.

[43]         Whatever the reason, it seems clear that the court in the original action thoroughly canvassed the issues the defendant has raised in its Response to Civil Claim filed in this action.  I accept that the Province was sufficiently privy to the original action to engage the doctrine of issue estoppel.  The Province had a right to participate with the plaintiff and had a participatory interest in the outcome.  If the court had determined that the defendant was not negligent that outcome would have bound the Province for the purposes of this proceeding.

[44]         The defendant referred to MacIver v. The Queen, 2005 TCC 250, as support for its submission; however, that case is distinguishable on its facts and was not a case where conclusions were reached after a full trial on the very issues the defendant wishes to raise again in this action.  It is not appropriate to allow the same issues to be canvassed again in this action.

[45]         The issues of liability and contributory negligence were fully dealt with and the defendant has exhausted any rights of appeal.  I am satisfied that the defendant is prevented from raising any defence related to his liability or the plaintiff’s contributory negligence in this action.

$120,000 Non-Pecuniary Assessment for Chronic Rotator Cuff Injury

December 18th, 2013

Adding to this site’s database of cases dealing with ICBC shoulder injury cases, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing such an injury.

In this week’s case (Hanson v. Yu) the Plaintiff was involved in a 2010 intersection collision which the Defendant was found 100% responsible for.  The Plaintiff was 43 years old and worked as a contract sales representative.  The collision caused a chronic rotator cuff injury which required two surgeries at the time of trial and was expected to have long term and deteriorating function in the future.  In assessing non-pecuniary damages at $120,000 Mr. Justice G.P. Weatherill provided the following reasons:

[4]             The plaintiff’s neck, upper back and headache symptoms settled in approximately four months. The most significant and far more serious injury was to his right shoulder, his dominant arm.

[5]             The plaintiff underwent two surgeries to correct the shoulder injury. Neither surgery was effective. He also had approximately six cortisone injections that provided some temporary relief, and he underwent nearly two years of physiotherapy treatments.

[6]             He has permanent pain and restricted function in his right shoulder. His ability to do physical tasks at work and at home is limited, and he relies on prescription pain medication to manage…

[170]     In this case, the plaintiff has a permanent and progressively deteriorating injury to the shoulder of his dominant arm. He is likely to face surgeries in the future that will have an uncertain outcome. Has chronic pain and is managing to function through the use of pain medication that he is now addicted to. Having considered the cases, counsel have referred to, the evidence , the permanent nature of the plaintiff right shoulder injury and the possibility that it will deteriorate in the future and require shoulder replacement and considering the principles that must be considered in awarding of general damages, I award $120,000 under this head.

Costs Following Unsuccessful “Considerable Gamble To Achieve A Significant Award”

December 17th, 2013

Update – July 13, 2015 – the below decision was overturned today by the BC Court of Appeal for several reasons and a new trial was ordered.  In reaching this conclusion the court noted it was improper for the Court to make a present value calculation when considering a formal offer to settle.  The Court provided the following reasons:

[53]         I agree with the appellant that the judge erred in adjusting the initial offer to reflect its 2013 value. This approach is not supported in law. As a result, the amount that the appellant was awarded ($51,300) exceeded the formal offer ($50,000) and the judge had no basis to award costs to the defendants pursuant to Rule 9-1(5)(d).

[54]         The trial judge also erred in applying the incorrect standard to determine which party was successful. The appellant was clearly the successful party in the action, as that standard is described in Loft. Though the appellant was not awarded the entire amount in damages that she sought, she established liability under a cause of action – as in Loft, by way of the defendants’ admitting liability and conceding some damages – and she obtained a remedy. The defendants did not obtain a dismissal of her case, either with respect to liability or damages.

[55]         Thus the order for costs could not have been sustained in any event of the appeal.


Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing costs consequences following a jury trial.

In this week’s case (Han v. Park) the Plaintiff was injured in a 1999 collision that the Defendant admitted fault for.  The litigation had a “somewhat tortured history” finally coming to trial in October 2013.    The Plaintiff sought damages of over $2 million.  Following a 14 day trial a jury assessed damages at $51,300.

In 2002 ICBC tendered a formal settlement offer of $50,000.  When coupled with advances paid the offer slightly exceeded the ultimate jury award.  Given the duration of time that passed the Court was also presented with economic evidence adjusting the offer for inflation indicating it was worth about $61,100 in 2013 dollar terms.  In any event the Court was asked to assess costs consequences flowing from this formal offer.  In finding that costs should be used as a remedy where a litigant takes “a considerable gamble to achieve a significant award” the Court ordered the Plaintiff pay the Defendant’s costs from 2004 onward.  In reaching this conclusion Madam Justice Fitzpatrick provided the following reasons:

[69]         Like the plaintiff in Bailey v. Jang, 2008 BCSC 1372, aff’d 2011 BCCA 146, Ms. Han took a considerable “gamble to achieve a significant award” and lost: paras. 22, 38. Given that the majority of the time at trial was spent on her unsuccessful attempt to persuade the jury of her disability, one can only describe her as being substantially unsuccessful at trial. Accordingly, even without the application of Rule 9-1, Ms. Han would have faced meritorious arguments by the defence that a costs award should reflect that result and my conclusions below are also consistent with an analysis in this context.

[70]         She conducted herself in this litigation so as to ignore the considerable efforts of the defendants to gather evidence regarding the extent of her injuries, all at considerable cost to them. The early efforts of the defendants were geared to either provide a proper basis for a negotiated settlement or to provide the necessary evidence for a trial. All the while Ms. Han entirely failed to muster any medical opinion evidence that she either knew or should have known would be needed to support her claims at the end of the day. She refused to respond to any settlement offer until the eve of the trial.

[71]         Ms. Han’s intractable position must nevertheless be considered in the face of the July 2002 offer to settle. By this time, over three years had gone by and one would have thought that she would be in a position to critically consider her position. The offer fully addressed the position of the defendants that no brain injury had occurred. The premise of the offer was not contradicted by any medical opinion evidence obtained by Ms. Han. Even if she had chosen, strangely, to rely on the medical evidence of the defendants, by no later than May 2004, Dr. O’Shaughnessy had emphatically concluded that no disability or brain injury had resulted from the accident.

[72]         In the above circumstances, Ms. Han’s position was not an “honest but … mistaken view” per Fan, nor did she have a “meritorious, albeit uncertain claim” per A.E.

[73]         The defence calls Ms. Han “delusional” and while the remark is uncharitable, it is not far from the mark. Ms. Han has purposely conducted this protracted litigation where there was no basis in the evidence upon which to conclude other than that she had suffered a relatively straightforward soft tissue injury. Despite that, 14 years of litigation has gone by, no doubt at great cost to the defendants and to those who have financially supported this litigation on behalf of Ms. Han.

[74]         I conclude that Ms. Han is entitled to her taxable costs, including disbursements, of the action to May 2004. The defendants are entitled to their taxable costs, including disbursements, from June 2004 which will include this application to determine costs. Both costs awards will be on Scale B.

Revocation of a Formal Settlement Offer “Can Be Oral or Written”

December 16th, 2013

Reasons for judgement were published last week by the BC Supreme Court, Vancouver Registry, confirming a formal offer to settlement made under the BC Supreme Court Rules can be revoked verbally or in writing.

In last week’s case (Ladret v. Stephens) the Plaintiff was injured in a collision and sued for damages. Prior to trial the Plaintiff made a formal offer to settle for $75,000.  A series of informal offers were then made by the parties before the trial commenced which was ultimately adjourned as no judge was available.   Following the passage of some time defence counsel gave notice that they were accepting the $75,000 formal offer.  The Plaintiff opposed this acceptance arguing the offer was revoked.  Mr. Justice Greyell agreed and provided the following reasons:

[29]         It is my view that that offer was not open for acceptance. It is my view, based on the facts that have been placed before me, that the offer of $75,000 had been withdrawn expressly during the telephone conversation and that the defendants in accepting that offer proceeded to do so on the mistaken belief that the withdrawal of the offer had to be in writing to be effective.

[30]         I am supported in that finding by the following paragraph in an e-mail sent by the defendants to Mr. Gourlay, a portion of which reads:

The crux is your formal did not stipulate an expiration and you did not revoke it. As such, it was open for acceptance by the defendants. As it was drafted, it was open for acceptance up until judgment. Although not required by Rule 9-1, if you intended to revoke your formal you would have to do so in writing.

[31]         The case law is clear that a revocation can be oral or written. The question is whether such revocation is clearly and unequivocally given, citing Janzen v. Janzen, 2011 BCSC 1146, 2011 B.C.J. No. 1605.

[32]         In my view, given the contents of the April 22nd discussion between Ms. Owen-Blas and Mr. Gourlay, it was clear the offer of $72,500 had been revoked, that offer in itself revoking the $75,000 prior offer.

Follow Up Medical Reports After the Passage of Time Are Not “Extravagant” Disbursements

December 13th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the reasonableness of multiple physician reports ordered in the course of a personal injury prosecution.

In this week’s case (Zhang v. Heikkila) the Plaintiff was injured in a motor vehicle incident.  In the course of her lawsuit she obtained multiple medical reports.  The first from her GP in 2009.  This report opined on prognosis.   Following this the Plaintiff obtained a report from a physical medicine specialist and as trial neared the Plaintiff obtained an updated report from her GP.  ICBC challenged the reasonableness of these disbursements arguing they were excessive.  District Registrar Cameron disagreed finding these disbursements were properly recoverable.  In reaching this decision the Court provided the following reasons:

15]         In my view, in evaluating whether or not it was necessary or proper to incur these disbursements for the medical legal reports, one must consider more broadly what should be done in the preparation of the Plaintiff’s case.

[16]         To be properly equipped to advise a client on the merits of settlement in circumstances such as existed in this case competent counsel not only has to investigate and assess the liability issue but also consider the likely range of damages.  It would be expected that competent counsel would obtain medical opinions in a timely fashion and that is what occurred in this case.

[17]         Plaintiff’s counsel obtained the first report from the general practitioner approximately two years after the accident and in my view that report was properly obtained at that time.

[18]         The report documented concerns respecting the Plaintiff’s future in terms of her employability and continuing physical limitations resulting from the injuries sustained in the accident.

[19]         After reviewing this report, Plaintiff’s counsel then decided to obtain an opinion from a specialist in physical medicine being Dr. Kiaii, who provided her report dated April 20, 2012.  That report provided an evaluation of the Plaintiff’s level of function, her symptomatic complaints and some prognosis and recommendations to follow.  Again, obtaining that report at that time was, in my view, proper for the advancement of the Plaintiff’s case.

[20]         The last report in issue was an updated report from Dr. Sun dated February 18, 2013.  While that report was obtained about sixteen months following the first report, given the Plaintiff’s ongoing symptoms and the need to have a more current assessment of those symptoms for the purposes of preparing for trial or for settlement, I do not find that it was extravagant or a sign of excessive caution that Plaintiff’s counsel obtained that report when she did.

[21]         Fundamentally, I am keeping in mind that in a situation such as this, the assessing officer ought not to second guess competent counsel doing a competent job because other counsel might have handled the matter differently.

[22]         Having found that these three disbursements were necessarily or properly incurred and as the amount for each of them is not challenged, they will be allowed as presented.

“Only The First Notice of Trial Matters” When Excercising Right to a Jury Trial

December 12th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing whether parties to an action joining a matter already set for trial can elect the mode of trial.

In this week’s case (Catalano v. Ogloff) the Plaintiff was injured in two collisions.  The Plaintiff started an action for the first collision, set the matter for trial and filed a jury notice.  The Defendant did not.  A separate action was started for the second collision and all parties filed a consent order providing that the cases be head together on the date already scheduled.  The Defendants in the second action then filed a jury notice.  The Court found this was a nullity.  In striking the Defendant’s jury notice Master MacNaughton provided the following reasons:

[11]         For the following reasons, I have concluded that the defendant’s jury notice is a nullity.

[12]         First, under Rule 12-6(3) of the Supreme Court Civil Rules it is clear that the election of a jury trial is a two-step process. The right is preserved by serving a jury notice but the matter will not be heard by a jury unless and until the jury fees are paid.  A jury trial occurs only if both steps are completed. Thus, the defendant to the second action could not presume that the first action was proceeding to a jury trial.  It is for that reason that all parties to an action independently preserve their election of a jury trial by serving their own jury notice.

[13]         Second, the early cases which established the principal that it is only the first notice of trial which matters, with respect to the election of a jury, arose in the context of trial adjournments. However, that principal has been expanded. I agree with the conclusion of Master Groves (as he then was) in Bumen v. BC Transit, 2001 BCSC 443:

… when a notice of trial has previously been given in one action, without a jury notice being filed, a subsequent consent by the parties to having other actions tried at the same time ought to be treated as an election to have a trial by judge alone in all the actions. In other words, when parties consent to the consolidation of multiple actions they are bound by the mode of trial specified in the notice of trial filed with respect to the first action. …(para. 20)

Master Groves’ reasoning mirrors that of Master Barber in Wright v. Rose (1995), 32 C.P.C. (3d) 319 where he said:

…there is no valid jury notice issued in the first action…it could be argued that the jury notice is valid for the second and third action.  Of course, when actions are tried at the same time they should either be all heard with a jury, or herd by a judge alone.  In my opinion, when the defendants consented…to all three actions being tried at the same time, that was an election to have trial by judge alone. … (para 17)

[14]         In my view, the fact that the plaintiff had delivered a jury notice in the first action does not change the result.  The defendant in the second action could not rely on the plaintiff’s jury notice as that was merely the first stage of the election process and did not guarantee a jury trial (I note that it has since been withdrawn). The defendants to the first action had not delivered such a notice. To ensure his right to a jury trial, the defendant in the second action should have made it a term of his consent to having the matters tried together or, if no consent was forthcoming, he could have delivered a jury notice and then applied in chambers to have the matters heard together with a jury.

[15]         By proceeding the way he did, the defendant to the second action was not at liberty to deliver the jury notice. It is a nullity.