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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 the ‘BCSC Civil Rule 23’ Category

What Happens if Your Judge Falls Ill After Trial But Before Judgement?

January 27th, 2012

It is not uncommon for judges to reserve their reasons for judgment after a trial concludes.  Sometimes this can take many months.  What happens if a judge becomes ill or dies during this period of time?  Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, dealing with such a scenario.

In this week’s case (Walsh v. GMAC Leasco Corporation) the Plaintiff was injured in a motor vehicle incident.  After trial concluded the presiding judge reserved his reasons.  He fell ill and he could not render judgement.  As required by the BC Supreme Court Rules the Associate Chief Justice appointed a new judge to conclude the matter.   Complicating matters further the Plaintiff’s lawyer died before the new judge was appointed.

The parties could not agree on how best to finalize the matter.  The Plaintiff argued the new judge could review the transcripts from the trial and render a decision.  The Defendant argued a new trial was necessary.  Mr. Justice Johnston decided that the best resolution would be to review the transcripts and address the recalling of witnesses on an individual basis.  The Court provided the following reasons:

[11] Present Rule 23-1(10) is almost identical to former Rule 64(10) and any difference between present Rule 23-1(11) and former Rule 64(11) appears to be mostly in layout rather than substance.

[12] My primary concern is how best to do justice between the parties to this action. In the unusual circumstances of this case, the plaintiff’s stated desire to have the matter retried on the transcripts of the evidence and argument already given should be given greater weight in light of the fact that the counsel chosen by her to carry her case through trial is no longer available to act for her.

[13] The controversy surrounding the written opinion I expect will have been fully argued, that argument will be reproduced in the transcript, and I will be in an equally good position to identify portions of the opinion that are either inadmissible or to which little weight should be attached.

[14] I am persuaded that the appropriate exercise of my discretion under Rule 23?1(11) is to direct that the re-trial be on the official transcript of the evidence heard at the original trial, together with the exhibits filed. That transcript will contain the submissions of counsel on any issues that arose during the trial, together with opening and closing arguments.

[15] I give leave to the parties to apply to have the evidence of any witness reheard orally, but no such application can be made until the transcripts have been received and a suitable time has lapsed to permit reading of those transcripts.


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.