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 the ‘Civil Procedure’ Category

BC Supreme Court Discusses When Short Leave Applications Should Be Granted

December 4th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, providing a general overview of when a short-leave applications should be granted and criticizing the frequency with which such applications are brought by defence lawyers in personal injury lawsuits.

In today’s case (O’Callaghan v. Hengsbach) the plaintiff claimed physical and psychiatric injuries from a collision and sued for damages.  The Defendant had the plaintiff assessed by a neurologist.  After the time limit for delivery of expert reports the Defendant brought sought to have the Plaintiff examined by a psychiatrist and requested short leave to bring the application.  The Court dismissed the request and in doing so Master Baker provided the following reasons of the protocol that should be followed when seeking short leave –

[16]         The Masters in chambers, almost daily, are asked to give short leave under Rule 8-5(1). I have heard three of these applications in 1 ½ days of chambers; in one application, plaintiff’s counsel told the court that it was the third short leave application by the defence in that case since October 17. Interestingly, on a quick search I found no authorities to guide the court in granting or refusing applications for short leave. The rule itself offers little guidance, other than an application may be made in circumstances of “urgency”.

[17]         Such applications should be restricted to emergent circumstances and should not reward inefficiency, inattention to a particular case, or a lack of oversight. To abridge the time limits imposed by the Supreme Court Civil Rules is, presumably, to prejudice the other party who is, naturally, entitled to rely on timelines imposed by the Rules and to expect the opposing party to do likewise.

[18]         In the absence of guiding authorities, I suggest the following considerations, non-exclusive, should guide the parties and the court in considering short leave applications:

  1. a)       The application, of course, is to be made by Requisition, usually without affidavits, and may be made before a Registrar, Master, or Judge.
  2. b)       While undue formality in the application is discouraged, the application should be made in court, on the record (even if by video or telephone) and not online as an e-filed application.
  3. c)       Applicant’s counsel should notify the opposing counsel or party of an intention to apply for short leave so that counsel can appear. At the very least applicant’s counsel should canvass with his or her friend their availability on the proposed chambers date and whether he or she is opposed to the short leave.
  4. d)       The applicant should be prepared to give a full accounting of the facts, circumstances, context, and chronology leading to the application for short leave, all of which should establish that the applicant has been affected or surprised by events or developments not reasonably foreseeable.
  5. e)       If opposing counsel is not present should, as in the case of without notice applications, be prepared to give both favourable and unfavourable details.
  6. f)        If any important or pivotal fact or element is disputed by opposing counsel the applicant should be prepared to offer affidavit evidence on the point and, as always, counsel should not speak to his or her own affidavit if the matter is contested.
  7. g)       Busy schedules for the applicant counsel will usually not be sufficient reason for short leave; in that case counsel should arrange for a colleague or agent to speak to the chambers application on the usual notice required by the rules.

[19]         Ultimately, taking these points into consideration, the court will balance the prejudice both to the other party by potentially disrupting their schedules and trial preparations as well as service to other clients and to the applicant by virtue of reasonably unforeseen facts, circumstances, or developments that have inhibited the applicant’s preparation in the normal chronology that the rules contemplate and mandate.

[20]         Some areas of the law tend to offer more emergencies or crises than others; family law would likely fall in this category. Despite this, however, of late more applications for short leave seem to arise from personal injury/motor vehicle accident cases than in any other. And most of those applications for short leave seem to be on behalf of the defence, seeking short leave to bring an application for an IME close to trial. In that respect, this case is completely typical of that growing practise.

[21]         In many cases, the applicant can point to genuine circumstances giving rise to surprise or the advent of claims or circumstances the applicant could not have reasonably anticipated. This, and many similar applications, is not in that category. In too many cases, in my view, the defence, either assuming that settlement is likely or simply by applying triage or prioritizing in busy offices with large caseloads, have not given due attention and focus in a timely way to the possible claims and damages of the plaintiff. Lawyers are extremely busy professionals. They have many cases other than the one specifically before the court. Every master and judge knows that. Still, that cannot be permitted to affect the other party’s right to due process and adherence to the rules unless clearly justified; it is the court’s function to prevent that.

[22]         I have opined often, from the bench, about the template nature of pleadings in personal injury cases[3]. Often, it seems, the only change to pleadings are the names of the parties and the date and location of the accident. The damages claimed and particulars of alleged negligence are almost rote. Still, when a party specifies concussion, cognitive impairment, nightmares, sleep disruption, and driving related anxiety (which, to be fair, not all plaintiffs claim), it should be an obvious announcement to the defence that psychiatric enquiry is justified.

[23]         With the advent of standardized pleadings, an obvious problem for the defence arises: what really are the damages (if any) to this particular plaintiff?  It is my conclusion that very often the true issues in the claim are not established until expert medical (and sometimes economic) reports are delivered. And, yes, very often these reports are delivered at or very near the 84-day deadline. I do understand the defence dilemma in that, but even when faced with standardized pleadings, nothing prevents the defence from, as here, conducting the usual steps for disclosure and discovery. The chronology or timing of that is very much for the defence to decide and control.

[24]         In this particular case, Ms. Stewart is right; there were multiple indications to the defence that Ms. O’Callaghan was not only making a claim for psychiatric injuries, but that she was firm in her allegation and that in her view the damages were significant and long-lasting. Both the clinical records and her discovery evidence should have reinforced that assertion. Her denial of the facts contained in the defence notice to admit was a further obvious sign. But preceding all of those indicators was the NOCC which, despite my complaints of template pleadings in general, was clear in alleging specific psychiatric or psychological injuries and consequences of the accident.


BC Court of Appeal Confirms Limited Small Claims Appeal Rights

October 18th, 2017

Reasons for judgement were released today by the BC Court of Appeal confirming the limited appeal rights from small claims lawsuits.

In the recent case (Jacques v. Muir) the Plaintiff brought a medical negligence claim in small claims court that was dismissed based on a previous release that was signed.  The Plaintiff appealed to the BC Supreme Court where the claim dismissal was upheld.

The Plaintiff then further appealed to the BC Court of Appeal who confirmed that the Supreme Court order was final and no further right of appeal exists in the circumstances.  In upholding the claim dismissal the Court provided the following reasons:

[15]       Section 13 of the Small Claims Act sets out the powers of the Supreme Court on an appeal in a small claims action. Section 13(2) states “there is no appeal from an order made by the Supreme Court under this section.”

[16]       The chambers judge properly held that s. 13(2) precludes an appeal to this Court of the order dismissing Ms. Jacques’s application. As this Court said in Pour, “no order of the Supreme Court made in appeal proceedings in a small claims action can be appealed to this Court” (at para. 7).

[17]        Moreover, s. 5 of the Small Claims Act sets out the avenues for appeal from an order made by a Provincial Court judge:

Right of appeal

5  (1) Any party to a proceeding under this Act may appeal to the Supreme Court an order to allow or dismiss a claim if that order was made by a Provincial Court judge after a trial.

(2) No appeal lies from any order of the Provincial Court made in a proceeding under this Act other than an order referred to in subsection (1).

[18]       As the order of Judge Low was not made “after a trial”, arguably pursuant to s. 5(2) of the Small Claims Act the order was not appealable at all, but I need not decide this issue in the circumstances.

[19]       For these reasons I would dismiss the application to vary. 


Mistrial Declared After Late Record Production and Late Report in ICBC Injury Claim

August 29th, 2017

Reasons for judgement were recently published by the BC Supreme Court, Vernon Registry,  declaring a mistrial in an ICBC injury claim proceeding before a jury.

In the recent case (Hilton v. Brink) the Plaintiff was involved in a collision and sued for damages.

The Plaintiff produced additional medical records close to trial resulting in an updated defense report addressing the Plaintiff’s injuries.  A trial was underway with a jury being selected and the Plaintiff objected to the late report being admitted.

The Court ruled that the report, with some corrections, would be admissible but doing so would prejudice the Plaintiff and a mistrial was the only sensible outcome.  In reaching this result, which nether party wanted, Mr. Justice Abrioux noted there was “blame to go around” and provided the following reasons:

[38]         I will now address the issue regarding the additional records which were provided to Dr. Pisesky well after his First Report.

[39]         Perhaps not surprisingly, both the plaintiff and the defendant blame each other for the situation which has developed. In my view there is more than enough blame to go around.

[40]         Without reviewing all the correspondence and what occurred between the parties, the plaintiff shares significant responsibility in my view, in light of the allegations of chronic pain, for not having obtained in a timely way documents from prior health care professionals, particularly for the two years or so prior to the Accident. Had the plaintiff provided an MSP printout commencing two years prior to the Accident, as had been requested as early as the fall of 2015 and on several occasions thereafter, the records obtained after March 31, 2017 would have been produced to the defence much earlier than that. This would also apply to Dr. Newmarch’s records which contained Dr. Oyler’s 2011 Consultation Report.

[41]         But the defence shares a significant part of the blame as well. When I review the correspondence, the requests made for records, and the plaintiff’s transparent replies, this was a case which cried out for a chambers application well before early July 2017, that is a month before the scheduled trial date.

[42]         There is also the fact that the plaintiff did refer at her examination for discovery in January 2016 to the difficulties she was having pre accident. It will be up to the trier of fact to determine if she concealed the true nature of her pre accident condition but that is certainly not for me to do on this application.

[43]         The defence does appear to have moved in an appropriate manner regarding Swirski interviews and the like, but only in June and July 2017. In my view the defendant should have been much more proactive at an earlier stage.

[44]         The primary relief sought by both parties would have draconian consequences on the other were it to be granted.

[45]          If I were to rule the Supplementary Report inadmissible, then the defence would only be able to rely on Dr. Pisesky’s First Report and the trier of fact would be misled as to Dr. Pisesky’s actual opinions based on the additional documentation provided to him in July 2017. It is not in the interests of justice for the trier of fact to be deliberately mislead. The practical effect would be that the defence would have no expert medical evidence in a case where the plaintiff who, as I understand it , has continued to work essentially full time since the Accident served a report at the 84 day deadline which assesses her loss of earning capacity arising from the injuries sustained in the Accident at $300,000.

[46]         On the other hand, if I admit the report into evidence in whole or in part, the plaintiff would not have the opportunity to properly address the opinions in the Supplementary Report which was only received on July 26, 2017.

[47]         There is also the fact that the plaintiff should, in my view, have the opportunity to consider obtaining a report from an orthopaedic surgeon, which is Dr. Pisesky’s field of expertise to deal with the issues raised in the Supplementary Report, including his review of what appears to be a CT scan report. This may well not be an issue which can be addressed by a physiatrist or a general practitioner, albeit one with the qualifications of Dr. Etheridge.

[48]         The plaintiff’s submission was that if the Supplementary Report were admitted in whole or in part that the trial should be adjourned. That cannot occur. The jury has been selected.

[49]         I appreciate that both the plaintiff and the defendant would prefer this trial to proceed, but in light of the positions they have taken on this application, I see no other alternative to a mistrial. This, in my view, will provide fairness to both parties. They will now have the opportunity to put before the trier of fact the evidence they consider necessary based on the recently obtained records.

[50]         A new trial will also provide the defence to address some obvious deficiencies in the Supplementary Report, in particular Dr. Pisesky’s statements regarding the plaintiff’s credibility.

[51]         I declare a mistrial.


BC Court of Appeal Discusses the Unique Limitation Periods in Local Government Act

May 31st, 2017

Reasons for judgement were published today by the BC Court of Appeal discussing the unique nature of the notice limitation period for suing local governments.

In today’s case (Anonson v. North Vancouver) the Plaintiff was injured when her bicycle was struck by a truck.  After starting a lawsuit she obtained an order allowing her to add the City of North Vancouver as a Defendant.  The City was never given notice under the 2 month provisions required by the Local Government Act.  The question was whether the City could rely on this defense after being added to the lawsuit because ” It is settled law that the addition of a party to an action pursuant to R. 6-2(7) of the SCCR on the basis that it is “just and convenient” to do so generally will engage s. 4(1) of the Limitation Act and eliminate a party’s accrued limitation defence

The Court of Appeal held that the notice limitation period is unique from the Limitation Act and a local government can indeed still take advantage of this defense even after being added as a party to an existing lawsuit.  In reaching this conclusion the Court of Appeal reasoned as follows:

[38]         In British Columbia, notice provisions for local government have been interpreted as substantially different from limitation period provisions. The Legislature chose to treat local government differently from other litigants by requiring that local government be given notice within a short period following an incident to allow the City to investigate the potential claim.

[39]         Unlike the Limitation Act, s. 736 of the LGA (and the former notice provisions in s. 286 of the LGA and s. 755 of the Municipal Act) are not akin to a lapse of time in which to bring an action. The notice provisions do not function in the same way as limitation period provisions for the following reasons: (1) non-compliance with s. 736 of the LGA or its predecessors does not prevent a plaintiff from commencing or maintaining an action; (2) unlike the more objective language of s. 4(1) of the Limitation Act, the discretionary saving provision of s. 736(3) may or may not act as a bar to an action; and (3) the trial or appeal court must determine whether the discretionary saving provision applies based on the evidentiary record.

[40]         The notice provisions of the current and former legislation have never been captured by s. 4(1) of the Limitation Act when a party is added to an action because the trial or appeal court must first determine whether the saving provision applies. Neither Bannon, which interprets differently worded legislation, nor Neilson, which assumes that s. 4(1) of the Limitation Act is engaged, are applicable to this issue.


Court Discusses “Aggregate Effects” Of Joining Multiple Fast Track Cases

April 28th, 2017

Update December 12, 2017 – Today the below decision was upheld on appeal with Madam Justice Russell providing the following reasons noting fast track cases can be aggregated –

[22]         Since the rule is clear that a fast track trial heard as a single action can exceed three days and remain under the Fast Track Rule, then it seems equally clear that where two fast track trials are heard together, the fact that they will consume seven days of trial would not exclude them from the Rule.

[23]         It appears to me that relatively simple cases that can be concluded within a short period of trial time and where the damages at least as calculated by plaintiff’s counsel, exclusive of costs, are $100,000 or less, must be conducted under the Fast Track Rule. I take this from the predecessor to Rule 15-1, Rules 66 and 68 of the former Supreme Court Rules, B.C. Reg. 221/90, as repealed by Supreme Court Civil Rules, B.C. Reg. 168/2009: Singleton v. O’Neil, 2010 BCSC 298.

[24]         The intention of the Rule is to provide for the quick and inexpensive resolution of comparatively simple actions with proportionality a specified and general objective of the Rules. The Rule is mandatory unless otherwise ordered by the court: Singleton, supra.

[25]         As a result, here the actions were at all times appropriate for being conducted under Rule 15-1, and therefore, the jury notices were, in effect, not applicable as soon as it became clear that the criteria under the Rule were met. Even before the Notice of Fast Track was filed, the two actions were fast track actions and Rule 15-1(10) dictates that the trial must be heard by the court without a jury.

[26]         There may well be situations where the action is so advanced as an ordinary action that the exercise of such discretion would not be appropriate and would result in serious prejudice to one party. I do not intend these reasons to remove that discretion where circumstances so dictate. But I do not find this situation to exist in the circumstances of this case.

[27]         The difference of two days in time between the defendants’ Notice of Trial and the plaintiff’s Notice of Fast Track is immaterial to the nature of the two actions.

[28]         Although the Master did not deal with the issue, counsel for the defendants raised the right to a jury trial and argued that it pre-empted Rule 15-1. Rule 12-6 deals with jury trials. However, Rule 15-1(5) states that in the event of a conflict between it and another rule, Rule 15-1 applies. This subsection appears to dispose of that argument.

[29]         I did not understand counsel for the defendants to argue that the common law right to a jury trial displaces the operation of the Rules of Court. In my view, and in these circumstances, that would not be a viable argument.

[30]         The decision of the Master to permit the two actions to continue to proceed under the Fast Track Rule is fact-based and discretionary and deserves deference.

[31]         The issue of whether the Rule permits aggregation follows from the nature of the actions that Rule 15-1 allows.

[32]         Particularly where two actions have been ordered to be heard together and both meet the criteria for the Fast Track Rule, it seems only sensible that they could both be dealt with under the Rule with the benefits of aggregating the time for trial and discovery and costs limits set out in the Rule.

[33]         This is consistent with the Object of the Rules and Proportionality.

__________________________________________

Helpful reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, discussing how matters such as trial length, the quantum cap and discovery timelines are aggregated when multiple fast track cases are joined.

In the recent case (De Jesus v. Doe) the Plaintiff was involved in two collisions and sued for damages.  The cases were scheduled for trial at the same time.  The Defendants brought an application to remove them from Rule 15 arguing that with a total of 7 days for trial these cases were no longer fast track appropriate.

The court disagreed and in doing so Master Baker provided the following helpful reasons about “aggregate effects” of joining fast track cases together:

De Jesus screenshot 1

 

De Jesus Screenshot 2

 

 


Court Finds Careless Driving Admission Not Binding in Subsequent Injury Lawsuit

April 25th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a motorist faultless for a collision even though that same motorist entered a guilty plea to a charge of driving a vehicle without due care and attention.  While this is not the first noted circumstance of this occurring the Court provided helpful reasons setting out the circumstances where the prior admission will not be an abuse of process to re-litigate.

In today’s case (Chand v. Martin) the Plaintiff was operating a vehicle struck by a train.  He was injured and a passenger in his vehicle was killed.  The Plaintiff was charged with “driving a vehicle without due care and attention” and plead guilty (meaning an admission that he did so beyond a reasonable doubt).

The Plaintiff then sued a host of parties including the train conductor alleging they were at fault for the incident.  The Court found that the train conductor was indeed negligent for the incident noting that he proceeded into the train crossing when the signal lights were not working and this created an unreasonable risk of harm.

The Defendants argued that the Plaintiff was also partly at fault and cannot escape this given the previous admission of careless driving.  Madam Justice Russell disagreed and in allowing the issue to be re-litigated despite the previous guilty plea noted as follows:

[86]        The key decision regarding the effect of a guilty plea in a subsequent proceeding involving the same facts is Toronto (City) v. CUPE Local 79, 2003 SCC 63. In that case, the Supreme Court of Canada was considering whether the grievance of a dismissal following a conviction for sexual assault amounted to an abuse of process. The Court provided the following comments at paras. 51-53:

[51] Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

[52] In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80.

[53] The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision (Danyluk, supra, at para. 51; Franco, supra, at para. 55).

[Emphasis added]

[87]        I find that the case at bar fits within the exception emphasized above in CUPE Local 79 at para. 53. Mr. Chand had no memory of the collision, and so he could not offer a full and robust defence. In addition, the fine was quite minor, with the stakes of this subsequent proceeding being much higher. In those circumstances, it is not surprising that Mr. Chand chose to enter a guilty plea.

[88]        Consequently, I find that in these circumstances, Mr. Chand’s guilty plea does not constitute proof in these proceedings that he was driving without due care or attention on the night in question. In keeping with the independent eyewitness testimony of Mr. Harkness and Mr. Angus, I find that Mr. Chand was not speeding or driving erratically.


Lost Trial Date Due To Lack of Trial Briefs Not Saved By Late Filing

February 3rd, 2017

Reasons for judgement were released today demonstrating that filing a late trial brief is no remedy once a trial date is lost due to lack of compliance with the Rules of Court.

In today’s case (Carleton v. North Island Brewing Corporation) the parties were scheduled for trial and apparently by consent agreed to file trial briefs “outside the times prescribed by the Rules.“.

The Court did not grant the request for lack of sufficient evidence supporting it and struck the trial date.  The parties hoped late briefs would salvage the trial date but the Court declined.  In doing so Mr. Justice Smith provided the following reasons:

[2]            Rule 12-2(1) requires a trial management conference to be held at least 28 days before trial. The plaintiff must file a trial brief at least 28 days before the date of the trial management conference (R. 12-2(2)) and other parties must file their trial briefs at least 21 days before the trial management conference (R. 12-2(3.1)). If no trial briefs are filed as required, the matter is removed from the trial list (Rule 12-2 (3.3).

[3]            These Rules are intended in part to assist the court in determining what cases are ready for trial, which in turn assists the court in the allocation of scarce judicial resources. They are not Rules that counsel and parties may opt out of at their convenience. At the very least, any application to extend the time for filing of a trial brief must be accompanied by a reasonable explanation as to why it was not filed in time as well as a proposed new date by which it will be filed.

[4]            In this case, neither party filed a trial brief and counsel simply submitted a draft consent order that “trial briefs of the plaintiff and defendant be filed outside the times prescribed” by the Rules. There was no explanation of why no one had filed a trial brief and no suggestion of when briefs would be filed. The absence of that material was in itself sufficient grounds to deny the application, but a subsequent review of the court record indicated that the matter had already been struck from the trial list.

[5]            The trial management conference had been set for February 16, 2017 and the requisition seeking a consent order for late filing was not submitted until January 30. In other words, the parties were seeking to file trial briefs after the date on which the Rules required the case to be struck from the trial list.

[6]            Rule 12-2 (3.3) reads

(3.3) Unless the court otherwise orders, a trial must be removed from the trial list if no trial brief has been filed under subrule (3) or (3.1).

[7]            Therefore, where a matter is struck from the trial list pursuant to that Rule, it cannot be restored simply by late filing of trial briefs, even if the court permits late filing. At least one party must make a proper application to restore the trial to the list. The question of late filing of trial briefs will only become relevant if that application is successful. Whether such an application is successful will depend on the circumstances, but I expect that in most cases applicants will be required to show both a reasonable excuse for the failure to file trial briefs and some serious prejudice if the trial does not go ahead.


Court Critical of “Uninformative” Trial Briefs

December 16th, 2016

Reasons for judgment were published today by the BC Supreme Court, Nanaimo Registry, with critical comments about “uninformative” trial briefs.

In today’s case (Kirk v. Nanaimo Literacy Association) the parties wishes to dispense with an otherwise mandatory trial management conference and asked the court to waive the hearing.  In refusing to do so the Court was critical of the trial briefs filed and provided the following comments:

[6]             Both parties state in their trial briefs that they expect the trial to be completed within the scheduled time. Yet I don’t know on what basis that assertion could be made because the total time estimates for witnesses and submissions in the two trial briefs exceeds the time set for trial by almost two days. Again, perhaps the trial was rescheduled for more days, but I have not been given any trial briefs reflecting that.

[7]             Further, the trial briefs do not indicate that counsel have fully considered all matters that might usefully be explored at a TMC. For example, the plaintiff’s trial brief, after listing the witnesses to be called, states:

The filing party may call further witnesses to address any outstanding documentary hearsay concerns which the parties are unable to resolve prior to trial.

[8]             If there are unresolved issues about admissibility of documents, particularly if it is going to affect the number of witnesses to be called, that is an issue to be explored at the TMC and the parties are not ready for trial within the meaning of R. 12-2(3.6).

[9]             Under the category of “Admissions”, the plaintiff’s brief says the plaintiff will admit that:

A document which conforms to the requirements set out in the Evidence Act, RSBC 1996, C. 124, s.42 is admissible as prima facie proof of any fact otherwise provable through direct oral evidence.

[11]         Thus, the purported “admission” by the plaintiff amounts to no more than a statement that the law of British Columbia applies to this case. That does not assist the Court in determining what facts will or will not be at issue in trial. I assume there are documents that qualify as business records under the Act, that certain facts stated in them are relevant to the issues in this case and the plaintiff is admitting or not disputing those facts. If that is the case, a party who wishes to be excused from attending a TMC must set out what those admitted facts are.

[12]         The defendant’s trial brief is equally uninformative on this issue. It simply says that the facts the defendant will admit will be “determined prior to trial date”.

[13]         Clearly, as of the date they wrote their trial briefs, counsel had not clearly turned their minds to or discussed the question of what facts could be admitted. Counsel who do not make that effort cannot expect to be excused from attending a TMC.

[14]         Under the heading of “Authorities”, both parties simply state they do not expect a joint brief of authorities at trial. That is not sufficient. The trial brief asks counsel to refer to authorities in order to identify the legal issues that will be argued at trial and in order to satisfy the Court that the parties and counsel have considered the law as it may affect their position at trial. That does not mean counsel need to cite every case they may wish to refer to at trial, but by the time they start preparing trial briefs, counsel should have identified the most important ones.

[15]         This is a wrongful dismissal case, so counsel should by now be familiar with the leading cases in that area as well as any others that are particularly relevant, such as by virtue of comparable facts. Those should have been referred to in the trial brief.

[16]         In short, the trial briefs submitted are largely pro-forma documents that do not give the Court confidence that all issues have been addressed or that all potentially useful discussions between counsel have taken place. The application to dispense with the TMC is therefore dismissed.


Responding Expert Reports Must Be Tendered in Party’s Case in Chief

October 4th, 2016

Interesting procedural reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing when a party must tender responding expert reports.

In today’s case (Cambie Surgeries Corporation v. British Columbia) the Plaintiffs sought to tender their responding expert reports after the Defendant tendered their expert reports. The Defendant objected noting the reports should properly be admitted as part of the Plaintiff’s case in chief.  In agreeing with the Defendant Mr. Justice Steeves provided the following reasons:

[9]             It seems to me that the Rules are intended to promote efficiency in a trial. Historically, expert opinion evidence was given simply by a notice, as described in Abell v. British Columbia (Greater Nanaimo Water District), 1979 CanLII 657 (BC SC), but now there are strict requirements. With respect to reply reports, they are intended to avoid parties putting in reply reports at trial for the first time. Here the plaintiffs’ position would not bring back that situation entirely; however, it would at least open up the risk of sur-reply expert reports, thus possibly lengthening these proceedings.

[10]         Overall I conclude that, while it is always open to a party to apply to apply to call rebuttal evidence, a responding expert under the Rules is quite a different part of a trial. In short, a responding expert report is not rebuttal evidence in the usual sense of being in response to unanticipated evidence. In my view, as with all anticipated evidence, the plaintiffs must call and exhaust their evidence. This is paraphrasing of the judgement in Commercial Electronics v. Savics, 2011 BCSC 162. The plaintiffs will examine their expert witnesses about their reports, including responding reports as part of their case.


BC Supreme Court – Articles Cited in Expert Reports Are Not Evidence

September 22nd, 2016

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, confirming that articles cited in expert reports are not evidence and outlining how these documents can be used at trial.

In today’s case (Cambie Surgeries Corporation v. British Columbia) the Plaintiffs, who are suing the government of BC arguing certain Provincial health-care laws are unconstitutional, sought to introduce articles and texts cited by their expert witnesses into evidence.

Mr. Justice Steeves provided the following concise and helpful statement addressing the limits and procedural use of such documents:

11]         It follows that I do not agree that the plaintiffs can go as far as they would like to go and put in articles through their experts on examination in chief. I adopt the approach in the Sopinka text and add the following procedural requirements:

1.     An article or text cited by an expert in his or her report may be identified by the expert and then entered as an exhibit for identification. I emphasize that the article or text has to be cited, but the expert report does not have to specifically state that the expert is adopting the article or text.

2.     As part of the examination in chief of the expert he or she may be taken to specific parts of the article or text. These will be read into the record.

3.     The expert can use the excerpts to clarify terminology or ambiguities in his or her report or use the excerpts to make the report more understandable, and the expert can adopt the excerpts as his or her own. I acknowledge that, to be more understandable, different reports may require different applications of this approach.

4.     The article or text itself will remain an exhibit for identification and is not evidence.

5.     Any hearsay issues will be decided as set out in the Mazur judgment.

6.     The expert is not permitted to give a new opinion or adopt an opinion other than the one in his or her report.

7.     If it is not clear, the expert may be cross-examined on any part of his or her evidence.