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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

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Archive for the ‘BCSC Civil Rule 7’ Category

Court Tells Lawyer to “Focus” Their Questioning Instead of Extending Discovery Time

May 28th, 2016

The BC Supreme Court Rules, which used to be open ended with respect to examinations for discovery, now have time limits in place with the Court retaining discretion to extend these limits in appropriate circumstances.

Unreported reasons for judgement were recently released considering and denying such an application with the Court suggesting counsel “focus” their remaining time appropriately.

In the recent case (Ross v. Casimong) the Plaintiff was injured in a 2009  collision and sued for damages.  The claim was prosecuted in the usual course (outside of fast track) with the present Rules allowing 7 hours of discovery.  The Plaintiff was examined twice with approximately 44 minutes of the allotted 7 hours remaining.  Defence counsel brought an application seeking a further discovery and allowing up to two hours to finish the job.  The Court dismissed the application noting a focused discovery could canvass what was needed in the remaining time.  In dismissing the application Master Dick provided the following reasons:

Master Dick Reasons for Judgement


Double Costs Ordered For Unreasonable Response to “Notice to Admit”

May 26th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry finding defendants at fault for a vehicle collision and further ordering double costs to be paid following an ‘unreasonable’ refusal to admit facts set out in a notice to admit.

In today’s case (Ceperkovic v. MacDonald) the Defendants were sued for a three vehicle collision that they were ultimately found liable for.  Prior to trial they were served with a Notice to Admit seeking admission of various facts regarding the circumstances of the crash.  The Defendants did not admit all of these facts requiring ultimate proof at trial.

In finding the refusal was unreasonable and ordering double costs Madam Justice Dillon set out the following test to be utilized in these circumstances along with the following reasons:

[38]         In summary, the failure to admit the truth of a fact may be unreasonable within the meaning of Rule 7-7(4) if:

(a)      the truth of the fact is subsequently proved;

(b)      the fact was relevant to a material issue in the case;

(c)      the fact was not subject to privilege;

(d)      the notice to admit was not otherwise improper;

(e)      the notice to admit was reasonably capable of evaluation within the time required for response; and

(f)       the refusing party had no reasonable grounds for believing that it would prevail on the matter.

[43]         While the cost consequences of an unreasonable failure to admit are usually confined to the costs of proving the truth of facts or the authenticity of documents, the power conferred by Rule 7-7(4) to penalize a party by awarding additional costs or depriving a party of costs “as the court considers appropriate” suggests that in an appropriate case the court could go further. At the least, it is not outside of contemplation that if the entire trial could have been avoided had reasonable admissions been made (for example, if the originating party could have applied for judgment on admissions under Rule 7-7(6)), the party who unreasonably failed to admit the facts could be penalized by an award of additional costs for all steps taken following delivery of the notice to admit.

[44]         Here, the plaintiff bus driver would not have had to lead any evidence and would not have had to cross-examine other parties or witnesses if the facts had not been unreasonably denied. Other than perhaps being called as a witness in the Ceperkovic action, Patriquin would not have had to appear. An award of double costs against the defendants, MacDonald and Janet MacDonald, for trial preparation, attendance at trial and written argument and an award of ordinary costs for time spent in preparing Patriquin for testimony is very reasonable. The plaintiff, Patriquin, is awarded those costs pursuant to Rule 7-7(4).


No Medical Report Thwarts Request for Second Defence Medical Exam

December 15th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, rejecting a defense application for a defense medical exam where they had not provided a report following an initial exam.

In today’s case (Thandi v. Higuchi) the Plaintiff agreed to be assessed by an orthopedic surgeon selected by the Defendant.  No report was produced following this assessment and the Defendant requested a further a exam with a neurologist.  In dismissing the application the Court noted that the lack of a report left the court without a proper evidentiary foundation respecting the equality of the playing field.  Master Harper provided the following reasons:

[6]             The major impediment to the defendant’s application in this case is the absence of Dr. Loomer’s report. It might be the case that the defendant could establish the necessity for a third independent medical examination before a neurologist, but the Court does not have sufficient evidence to assess that issue. Here, I rely on Koulechov v. Dunstan, 2015 BCSC 393 at para. 6, which is on all fours with this application:

[6]        It is counsel’s prerogative, of course, to control the timing of disclosure in a civil case. However, an order for a second independent medical examination under Rule 7-6 is a discretionary remedy that will only go if it is required to put the parties on an equal footing with respect to medical evidence: Stainer v. Plaza, 2001 BCCA 133 at para. 8. In the present application, in the absence of Dr. Gittens’ report, it is impossible for me to evaluate if there is any inequality in evidence or if an orthopaedic IME could redress it. …

[7]             Applying the Koulechov decision to the present application, I am not in a position to assess whether the medical complaints that involve neurological complaints were addressed by Dr. Loomer, could have been addressed by Dr. Loomer, or whether Dr. Loomer declined to opine on any neurological complaints because it was outside his area of expertise.

[8]             So quite simply, the defendant has not met the evidentiary burden necessary to justify the order sought and, therefore, I dismiss the application.


Previous Discovery Transcripts, Expert Reports and Mediation Documents Ordered Produced in Indivisible Injury Case

December 8th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering broad document production from past litigation in a case of potential indivisible injuries.

In today’s case (Easton v. Chen) the Plaintiff was injured in a 2011 collision and sued for damages.  The Plaintiff was also involved in four prior collisions that resulted in injury claims, all of which settled prior to trial.

The Defendant requested production of past examination for discovery transcripts, expert reports and mediation documents on the basis that the injuries may be indivisible.  In ordering production Master Muir provided the following reasons:

[25]         I agree with the submissions of the defendant. I am satisfied that the prior documents, the discovery transcripts and the experts reports from the prior actions could be used to prove or disprove material facts in this action and on that basis alone I would order their production. I also conclude that in any event a sufficient foundation has been laid for their production under Rule 7-1(11). Further, I conclude that it is in the interests of justice to relieve against the implied undertaking of confidentiality. Thus, the documents are to be disclosed.

[26]         The mediation documents sought raise another issue and that is settlement privilege. The defendant relies on Dholliwar v. Yu, 2015 BCSC 670 and Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, for the proposition that the disclosure of these documents is necessary in order to prove what the plaintiff received in compensation in the prior accidents and to prevent injustice through potential double compensation.

[27]         In Dholliwar, Master Scarth held:

[26]      It has yet to be established here that the injuries arising from the third accident are indivisible from those in the first and second. However, on the basis that indivisibility is at issue, and that there is potential for over-compensation, it is appropriate to require disclosure of the settlement documents at this time. I accept the submission of the defendants that such disclosure is necessary, in that it may assist in the settlement of the plaintiff’s claims arising from the third accident. Disclosure at this time is consistent with the previous decisions of this Court in Pete and Murray. I am satisfied that the defendants here do not seek a purely tactical advantage, as the Court found in Phillips v. Stratton, 2007 BCSC 1298 (CanLII), but rather, they wish to have the information necessary to assess their exposure, both for purposes of settlement and in the preparation of their case for trial.

[27]      In Dos Santos at para. 34, the Court stated that “significant weight should be given to the just disposition of pending litigation in determining whether the documents sought come within an exception to settlement privilege.” In my view, to find that the documents should be disclosed at this time is consistent with this approach

[28]         Similarly in this case, indivisibility is an issue and the defendants argue there is a potential for double compensation. The only evidence available showing what the plaintiff was compensated for in the prior actions will be found in this documentation. As a result, I conclude that the mediation documents should be disclosed.


“There Is No (Discovery) Continuation As of Right Once a Matter is Removed From Fast Track”

November 30th, 2015

Unreported reasons by the BC Supreme Court, Vancouver Registry, were recently shared with me finding that there is no right for examination for discovery continuation once a matter is removed from fast track prosecution.

In the recent case (Nordin v. Wong) the Plaintiff sued for damages for injuries and her claim was initially prosecuted under Rule 15.  She underwent examinations for discovery which was limited to the two hour cap under the fast track rule.

The case was removed from Rule 15 and the Defendant sought a further discovery under the greater timelines allowed.  In dismissing the application and finding there was “no continuation as of right” when a matter is removed from fast track Master Scarth provided the following reasons:

[4]  To the extent that this is an application for a continuation of the examination for discovery which took place in May of 2014, I am satisfied that it should be dismissed…

[5]  Counsel conducting the discovery stated it to be concluded.  Responses have been provided to the outstanding document requests, and the defendant here concedes that nothing arises fro the material which was so provided.   Further, there is no continuation as of right once a matter is removed from fast track…No conditions were placed on the removal of the action from fast track, apparently it not being in the contemplation of the defendant at the tine that they might require a further discovery.

[6] In my view, therefore, the fact that Rule 7-2(2) provides for seven hours of discovery does not assist the defendant here.  

 


No Pre Trial Examination Ordered For Witness Willing to Talk Through Counsel

March 25th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that a witness who is willing to communicate through counsel should not be compelled to attend a pre-trial examination under oath.

In today’s case (Cabezas v. HMTQ) the Plaintiff was involved in a single vehicle accident and sued the Defendants claiming negligent highway maintenance.  In the course of the lawsuit the Plaintiff attempted to speak with and the “Capilano defendants provided a summary of the evidence Mr. Colville was expected to give should the matter proceed to trial. She stated further: “to the extent that you still wish to speak to Mr. Colville, he has asked that this be arranged through us and that we be present.

The Plaintiff brought an application to compel pre trial examination under oath of this witness but this was dismissed with the Court noting that a witness willing to speak through counsel is indeed being responsive.  In reaching this conclusion Master Harper provided the following reasons:

[4]             Rule 7-5(1) provides as follows:

(1) If a person who is not a party of record to an action may have material evidence relating to a matter in question in the action, the court may:

(a) order that the person be examined on oath on the matters in question in the action, and

(b) either before or after the examination, order that the examining party pay reasonable lawyer’s costs of the person relating to the application and the examination…

[11]         Rule 7-5 sets out a protocol which must be followed before an application for an order for a pre-trial examination of a witness can be made. The applicant must establish that the proposed witness has refused or neglected on request by the applicant to give a responsive statement either orally or in writing relating to the witness’ knowledge of the matter in question or has given conflicting statements (Rule 7-5(3)(c)(i) and (ii)).

[12]         The fact that the witness has chosen to communicate through counsel does not amount to a refusal to give a responsive statement (Rintoul v. Granger, 2008 BCSC 1852 at para. 24).

[13]          Mr. Colville is agreeable to attending an interview in the presence of counsel.


8 Year Old Too Young To Be Examined for Discovery

March 13th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a defense application to examine an 8 year plaintiff.

In today’s case (Dann-Mills v. Tessier) the Plaintiff was involved in a ‘serious motor vehicle accident’ when he was 17 months old.  A lawsuit was brought on his behalf by his litigation guardian.  The Defendants sought to examine the Plaintiff for discovery.  The Court found that this would be inappropriate and dismissed the application.  In doing so Mr. Justice Voith provided the following reasons:

[38]        I question the possible utility or value of any examination for discovery of Jorin, particularly in light of some of the medical conclusions I have identified. It was this issue that I canvassed most fully with counsel for the applicant.

[39]        It is generally understood that the central objects of an examination for discovery are:

i)        to enable the examining party to know the case it must meet;

ii)        to enable a party to procure admissions which will dispense with other formal proof of its case; and

iii)       to procure admissions which will damage an adversary’s case.

See e.g. Frederick M. Irvine, ed., McLachlin & Taylor, British Columbia Practice, loose-leaf, 3rd ed. (Markham: LexisNexis, 2006) at 7-178.

[40]        The applicant and other defence counsel accepted that they had no desire to obtain any “admissions” from Jorin on discovery. Instead, the applicant said that the “primary reason” for Jorin’s intended discovery related to the first consideration I identified; that being, to enable the defence to know the case that it must meet.

[41]        Respectfully, I struggle to see how this can be so. This is not a case where the defendants may be surprised by Jorin’s evidence at trial. Jorin will not be present at the trial. Instead, the whole of Jorin’s case will be established by expert evidence, of which the defendants will have ample notice, and through other witnesses. The defendants can examine Jorin’s father and his grandmother (Jorin’s litigation guardian). They can interview his teachers and his special-needs assistants. In earlier applications, it became clear that Jorin, who requires full-time supervision, has had a series of caregivers. These sources are likely to be far more fruitful and reliable than the examination for discovery of an infant who, there is reason to believe, without deciding that it is so, struggles with comprehension, attention and language difficulties.

[42]        The last basis for an examination of Jorin that was raised by counsel for the applicant was a desire, in a sense, to see Jorin and how he functions. There is significant disparity in the existing medical opinions on Jorin’s functionality. I have referred to some of these differences earlier in these reasons. Other differences are apparent in the letters of Drs. Purtzki and Joschko, respectively. Counsel considers that some opportunity to see and interact with Jorin would potentially be helpful for settlement and other purposes.

[43]        First, it would appear that a discovery of Jorin would only achieve this object for the single counsel who conducted the examination for discovery, and not for the teams of counsel who represent the various defendants in this action. I cannot imagine that the intention would be to conduct the examination in the presence of all counsel who are involved in these actions.

[44]        Second, though I do not question counsel’s expressed goal, I consider that this object can be otherwise achieved. I suggested to counsel that Jorin might be videotaped, or that counsel might possibly view Jorin, at a medical examination, through a glass mirror. Though counsel for Jorin indicated he would not be opposed to such endeavours, I was also told by counsel for the defendants that the examining independent medical practitioners might object. Nevertheless, I consider that with some ingenuity there are far better means available to get a sense of Jorin and his functionality than a brief examination for discovery would yield.

[45]        In all the circumstances, I do not consider that an examination for discovery of Jorin would be appropriate, and I am unprepared to allow that examination to take place.


Liability Admission Overturned Late in Litigation

December 23rd, 2014

When fault for a crash is admitted in a formal lawsuit the Court has discretion to allow withdrawal of the admission in appropriate circumstances.  Reasons for judgement were released today by the BC Court of Appeal documenting one such instance.

In today’s case (Sidhu v. Hothi) the Plaintiffs alleged they were involved in a collision caused by the Defendant.  They sued for damages and ICBC admitted fault on behalf of the defendant.  In the course of the lawsuit a witness was interviewed who provided a statement indicating the Plaintiffs may not have been in the vehicle at all.  ICBC sought to withdraw the admission of fault.  The plaintiffs opposed arguing it was too late to do so.  The BC Court of Appeal disagreed and in finding withdrawal was appropriate provided the following reasons:

[25]         Turning, then, to what I regard as the real issue in this case – whether the chambers judge erred in concluding that most of the Hamilton factors weighed in favour of the defendants – I would suggest it would be preferable to frame items 3‑8 of the Hamilton test not as conditions that must be met, but as factors that should be considered in determining what result is in the interests of justice. Thus I would reframe items 3‑8 as follows:

(a)      whether the admission was made inadvertently, hastily, or without knowledge of the facts;

(b)      whether the “fact” admitted was or was not within the knowledge of the party making the admission;

(c)      where the admission is one of fact, whether it is or may be untrue;

(d)      whether and to what extent the withdrawal of the admission would prejudice a party; and

(e)      whether there has been delay in the application to withdraw the admission and any reason offered for such delay.

I have omitted item 6 of the original list (that the fact admitted be one of mixed fact and law), since in most cases, including Hamilton itself, this has been held to be irrelevant provided a triable issue is raised (see alsoNesbitt (B.C.S.C.) at para. 56.)

[26]         The decision as to what is in the interests of justice involves a considerable degree of discretion, and as noted in Goundar v. Nguyen 2013 BCCA 251, this court should generally not interfere with such a decision unless the judge erred in principle. In my view, the chambers judge correctly weighed the “delay” factor against the fact that the admission was made without knowledge of the evidence; that the insurer’s failure to appreciate the significance of Mr. Hothi’s witness statement was a simple oversight; that witnesses to the accident are still available; and most importantly, that if the application were dismissed, the plaintiffs might be perpetrating a fraud on the defendants and on the court. In my opinion, this possibility is one that would be very difficult to countenance. Further, allowing the application will ensure that the plaintiffs’ claim will be heard on the merits – an overarching objective referred to in Rule 1-3 of the new Supreme Court Civil Rules.

[27]         For these reasons, I would dismiss the appeal.


Parties of Record Have Standing To Address Pre Trial Witness Examination Orders

November 19th, 2014

Reasons for judgement were released this week (Brooks v. Abbey Adelaide Holdings Inc.) considering the procedural question of whether a party of record has standing to make submissions during an opposing party’s application for an order compelling the pre-trial examination of a witness.  In short the Court held that all parties of record have standing to make submissions during these applications although the standing is limited.  In reaching this decision Master Young provided the following reasons:

[1]             THE COURT:  I have been asked to decide whether a party to an action has standing in a hearing of an application by another party to examine a witness prior to trial under Rule 7-5 of our new Supreme Court Civil Rules.

[2]             Apparently there is no authority on this point under the new Civil Rules..

[12]         I find that the party has a right to make submissions on the scope and the duration of the examination as it relates to relevance and proportionality.

[13]         So I find that they have limited standing. They do not have standing to object to a witness being questioned, because I think that infringes the common law right of property to a witness. But I do find that they do have standing to address procedural issues, proportionality issues and issues of privilege.

[14]         Having said that then, I will allow the plaintiff to make submissions of the application.


Absent Agreement Discoveries To Take Place At Lawyers Office

October 1st, 2014

Reasons for judgement were released today (Schroeder v. Sweeney) by the BC Supreme Court, Kelowna Registry, addressing a practice point.  Where are examinations for discovery to take place if the parties can’t agree?  Master McDiarmid ruled that the default is the lawyer’s office of the party being examined.  The court provided the following reasons:

[4]             Subrule 7-2(11) needs a bit of analysis. It provides, firstly, that you are to find a Registry closest to where the party to be discovered resides in British Columbia and then you are to find a location within 30 kilometres of that registry. It does not say that the discovery is to take place at the registry, although in the past that is where discoveries did take place. All of the larger registries had rooms where examinations for discovery occurred. It is true that often the most convenient location is the place where the court reporters carry on their business.

[5]             However, I have always understood the default position (for parties resident in B.C.) to be that if the parties could not agree, the party would be discovered at that party’s counsel’s office.

[6]             There are reasons why that is convenient to the party. One reason is that the full documents in the possession of that party will be available. A second is that the party being examined is in a surrounding where that party’s counsel practises and so the party is presumably somewhat more comfortable there.

[7]             In responding to this particular application, I reviewed some comments — and not unreasonable comments by the plaintiff, where he deposes basically, that yes, he  could go to the court reporter’s office, but he does depose to some issues with parking. That does, to some extent, impact on his convenience. It seems to me though that the — what I am going to call the default provision which was certainly the provision I understood as counsel was that if parties could not agree, the discovery should take place at the office of the counsel representing the party to be discovered. The matter is somewhat of an important practice point.

[8]             I am dismissing the application and ordering that the discovery take place at the office of the plaintiff’s counsel. The part of the application that the plaintiff attend Okanagan Court Reporters is dismissed and instead of that, the order is that the plaintiff attend at examination for discovery at the offices of his counsel.