ICBC Law

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, applying Rule 3-2(1) of the New BC Supreme Court Civil Rules.  This rule permits the Court to renew a Notice of Civil Claim before or after it expires.  Today’s case is the first I’m aware of applying this new rule.

In today’s case (Stuart v. Patterson) the Plaintiff was injured in two consecutive instances while engaging in exercises known as “dead-lifts”.  These exercises were apparently being supervised by the Defendant.  The Plaintiff started two separate lawsuits against the Defendant alleging that he was at fault for her injuries.  The Plaintiff’s lawyer failed to serve the Writ of Summons within the first year after filing.  The Plaintiff brought an application to renew the lawsuit relying on Rule 3-2(1) of the New Rules of Court.

Madam Justice Fitzpatrick found that the Plaintiff’s lawyer acted reasonably in taking steps to renew  the lawsuit after learning it expired and that there was little prejudice to the Defendant and accordingly renewed the filed documents for a further two months permitting them to be properly served on the Defendants.  In doing so the Court seemed to accept that Rule 3-2(1) reads almost identically to the old Rule 9(1) and that the precedents developed under the old rule remain in force.   Madam Justice Fitzpatrick summarized the applicable law as follows:

[10]         The leading case on the test to be applied on this application is Bearhead v. Moorhouse, [1977] B.C.J. No. 1324, (1977), 3 B.C.L.R. 81 (S.C.), upheld on appeal (1978), 5 B.C.L.R. 380. The test adopted by the Court of Appeal at that time requires the court to ask itself the basic question of “what is necessary to see that justice is done?”  In considering that question, the following factors are to be considered:

1.               Was the application to renew brought promptly?

2.               Did the defendants have notice of the claim before the writ expired?

3.               Did the defendant suffer prejudice?

4.               Was the failure to serve the writ attributable to the actions of the defendants?

5.               Was the failure to serve the writ attributable to the actions of the plaintiff?

[11]         Recent considerations of these factors are found in our Court of Appeal decisions of Seeliger v. Eagle Ridge Hospital, 2007 BCCA 582, and Fast Fuel Services Ltd. v. Michelin North America (Canada) Inc., 2008 BCCA 216.

[12]         It is clear from the authorities cited to me by both counsel that each case is to be decided on its particular facts.

[13]         Further, counsel for Ms. Stuart refers me to the statements from the Saskatchewan Court of Appeal in Simpson v. Saskatchewan Government Insurance Office (1967), 61 W.W.R. 741, at p. 750, 65 D.L.R. (2d) 324, to the effect that failure to renew a writ is an “irregularity” and that “if the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to permit it is not going to work any substantial injustice to the defendant or prejudice the defendant’s defence, then the writ should be renewed”: see Bearhead, BCCA at para. 8; Lowe v. Christensen (1984), 54 B.C.L.R. 88 (C.A.) at para. 13; Sutherland v. McLeod, 2004 BCCA 653, at paras. 28-29.

[14]         I accordingly consider the Bearhead factors:

A common theme when ICBC or other personal injury claims go to trial is that of dueling expert witnesses.  Often times the Plaintiff’s treating physicians provide an opinion to the Court that is contradicted by experts hired by defendants or insurance companies.  In deciding how much the claim is worth a Court must navigate through these competing opinions and decide who to believe.

Treating doctors, due in part to their long term relationship with their patients, sometimes provide their opinion in an argumentative way.  While well intentioned such opinions can do more harm than good.  The reason being is that the Rules of Court require expert witnesses to be neutral when presenting their opinion to the Court.  When experts advocate for one side or another they risk having their opinion discounted or even being excluded from evidence altogether.  The potential harm caused by expert advocacy was demonstrated in reasons for judgement released today by the BC Supreme Court, Vernon Registry.

In today’s case (Gendron v. Moffat) the Plaintiff was involved in a motor vehicle collision in 2008.  Fault for the crash was admitted by the opposing motorist focusing the trial on the value of the Plaintiff’s ICBC claim.  The Plaintiff sustained various injuries.  The Court heard different opinions as to the extent of these from the Plaintiff’s treating doctor and from the expert hired by ICBC.

The Plaintiff’s GP provided the opinion that the Plaintiff suffered from chronic injuries as a result of the Crash.  The doctor hired by ICBC disagreed and gave evidence that the accident related injuries largely ran their course and the Plaintiff’s symptoms were better explained by unrelated arthritis.  Ultimately Mr. Justice Cole preferred the evidence of ICBC’s doctor.  In coming to this conclusion the Court found that the Plaintiff’s doctor acted as an advocate and excluded portions of her evidence and discounted other parts.  Mr. Justice Cole provided the following useful comments:

[15] The doctor summarized her condition as follows:

Ms. Gendron sustained grade 2 strains to her cervical, thoracic and lumbar spines and a grade 2 strain to her right shoulder when she was T-boned in an intersection by a vehicle that had run through a red light. The impact imparted both forward and rotational acceleration forces through Ms. Gendron, and the subsequent symptom pattern and chronology of injury were consistent with the mechanism and severity of injury. Ms. Gendron has consistently demonstrated a high level of motivation to recover from her injuries, and has remained at work since her MVA , albeit in a reduced capacity. [Emphasis added.]

[16] The last two sentences of that summary I had removed, as in my view, the first sentence dealing with the impact of the accident and acceleration forces were not within the expertise of the doctor and the comment about her high level of motivation demonstrated that the doctor was acting more as an advocate than as an independent professional.

[17] The doctor was also critical of Dr. T. O’Farell, an orthopaedic surgeon who filed a report and gave evidence at trial. He was of the view that Dr. O’Farell’s report was “below the currently accepted standard for a specialist’s medical legal report.”  Again, that sentence was removed on the basis that the family doctor was more of an advocate than an independent professional and lacked the expertise to make such a statement…

[22] I am of the view that the plaintiff’s family physician, while a highly qualified doctor, is more of an advocate than an independent medical specialist and that it is almost impossible to be objective and an advocate at the same time. I therefore prefer the evidence of Dr. O’Farell that her neck pain is due to arthritis in her spine…

[27] In conclusion, I find that the injuries sustained by the plaintiff in the motor vehicle accident for which the defendant is liable, have substantially resolved.

While the doctor’s advocacy was not the sole reason for the Plaintiff’s lack of success at trial (The Court also found that the Plaintiff was not a credible witness) it goes to show that an overzealous treating physician can do more harm than good when providing an opinion to the Court.  It is important for treating doctors to give their evidence in a fair and balanced manner to maximize the chance of having their opinions accepted at trial.

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, interpreting two topics under the New BC Supreme Court Civil Rules, the test of “proportionality” and the circumstances permitting a Court to sever liability (the issue of fault) from quantum (the value of a personal injury claim).

In today’s case (Cayou v. Cayou) the Plaintiff was injured in an intersection collision in 2006.  The Plaintiff was the front seat passenger in a vehicle being driven by her daughter.  The Plaintiff sued the drivers of both vehicles.  ICBC alleged that the Plaintiff was in breach of her policy of insurance and intervened as a statutory Third Party.  The Plaintiff’s claim was set for trial in November to be heard by Judge and Jury.  The Plaintiff applied for an order seperating quantum from liability seeking to have the issue of fault determined by Judge alone.

Mr. Justice Wilson dismissed the application and in doing so found that the New Rules of Court dealing with severance of issues are identical to the old rules therefore old precedents should retain their value as guiding authorities.  Specifically Mr. Justice Wilson held as follows:

[22]         The plaintiff’s application is said to be made pursuant to Rule 1-3 and 12-1(9), of the Rules of Court.

[23]         Rule 1-3 directs the court on the object of the rules, including the notion of “proportionality”.

[24]         Rule 12-1(9) confers upon the court a power to adjourn a trial.

[25]         Although not stated, the plaintiff also, presumably, finds authority for her application in Rule 12-5(67) and (68).

[26]         Rule 12-5(67) confers a power on the court in these words:

(67)      The court may order that one or more questions of fact or law arising in an action be tried and determined before the others.

[27]         Rule 12-5(68) confers a power on the court in these words:

(68)      The court may order that different questions of fact arising in an action be tried by different modes of trial.

[28]         There is a change in the wording between Rule 12-5(67) and the former rule, Rule 39(29).

[29]         I conclude that the power to sever issues is the same in substance between the former rule and the current rule.

[30]         The governing principles established for the exercise of the power conferred under the previous rules have been established. Since I find that the power conferred under the new rule is the same as the old rule, I conclude that the principles defined under the former rule must be considered.

The Court went on to note that while the law of severance of issues remains the same the Court now must consider the overarching purpose of ‘proportionality’ when applying the Rules of Court.  This is the first case I’m aware of addressing this principle.  Mr. Justice Wilson provided the following comments:

[48]         To the framework of analysis under the pre-existing rule, must be added a consideration of the objective of “proportionality” mandated by Rule 1-3(2):

(2)        Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a)        the amount involved in the proceeding,

(b)        the importance of the issues in dispute, and

(c)        the complexity of the proceeding.

[49]         Expense was the sole factor urged by the plaintiff in support of severance. In the event of a review, however, I will set out my findings on the factors prescribed in the rule.

[50]         First, I take the “amount involved” to mean the quantum of monetary damages awarded to the plaintiff as the result of a successful prosecution of her lawsuit.

[51]         This factor was not argued. But, seemingly, the method of trial currently extant is proportionate to, that is to say, “duly related” to, the amount involved. I find this factor to be neutral.

[52]         Second, the issue of credibility is important to the issue of fault, and, I am told, to the issue of quantum.

[53]         For the reasons given above, for deciding against severance on the ground of interconnected issues, I find that one trial of all issues is proportionate to the expense to be incurred, to conduct one trial.

[54]         Severance, for the economic reasons advanced in this case, by denying the trier of fact all of the evidence on the issue of credibility, would be disproportionate to the twin objectives of a just and speedy determination of the action, on its merits.

[55]         Third, I would not characterize this action as one of complexity.

[56]         Mr. Shumka is probably right. This action arises out of a routine intersection collision, involving a vehicle turning left in the path of an oncoming vehicle, with its attendant personal injuries. In the event, there is nothing on the record to suggest that complexity was a factor contributing to the notion of proportionality.

[57]         No other factors (other than economical) were identified.

[58]         In result, the plaintiff’s application is dismissed. Costs of the application will be in the cause, pursuant to Rule 14-1(12).

When suing for compensation in an ICBC claim the BC Supreme Court Rules contain various ways to force disclosure of information.  From requiring the exchange of relevant documents, permitting the parties to attend an examination for discovery and even forcing an ‘independent medical exam’ in certain circumstances there are many tools which can be used to learn about your opponents case.

One further tool is the request for “particulars“.  If a party to a lawsuit is not clear what the other side is formally putting in issue they can ask for clarification by making a demand for particulars under Rule 3-7(23) of the Rules of Court.  There are, however, limits to the use of this Rule and this was demonstrated in reasons for judgement released this week by the BC Supreme Court.

In this week’s case (Yousofi v. Phillips) the Plaintiff was injured in a motor vehicle collision.  He sued for damages seeking compensation for, amongst other things, past and future wage loss, past and future medical expenses, past and future disability and out of pocket expenses.  ICBC’s lawyer demanded that the Plaintiff provide particulars of these claims.  The Plaintiff refused arguing that this was an inappropriate request.  Mr. Justice Hinkson agreed with the Plaintiff and in dismissing the Defence motion made the following useful comments about the limited use requests for particulars should have in ICBC injury claims:

The entitlement of a party to particulars…is discussed by Mr. Justice Joyce in Delaney & Friends Cartoon Productions Ltd. v. Radical Entertainment Inc. et al, 2005 BCSC 371, beginning at paragraph 9.

[4] In that case, His Lordship makes the point that:

Particulars are provided to disclose what the pleader intends to prove. How that party intends to prove the material facts and particulars is a matter of evidence. The pleading party is not required to, and indeed, is not entitled to set out in the pleadings the evidence that he or she intends to adduce at trial to prove the facts that have been pleaded.

[5] In David et al v. Her Majesty the Queen in Right of Canada et al, 2004 BCSC 1306, Mr. Justice Cohen considered the distinction between the material facts and evidence and referred to an earlier decision of Mr. Justice Joyce when he was a master of this court, Firestone v. Smith, [1991] B.C.J. No. 2660 (S.C.)(QL), where Master Joyce said at paragraph 11:

In my view the concern raised by the plaintiff at this stage is that he does not know but would like to know now what precise evidence the defendant may lead in support of his allegations of fact. In my respectful opinion the plaintiff is not entitled to ascertain the evidentiary basis of the defendant’s case by way of this demand for particulars.

[6] Turning to the notice of motion for particulars, the particulars sought at a relatively late juncture following examinations for discovery include a request for further and better particulars with respect to:

(a)      The Plaintiff’s Past and Prospective Loss of Enjoyment of Life

In my view, that is an inappropriate request for particulars and is a matter that can and should be pursued by way of examination for discovery. In my view, it is not necessary to provide particulars with respect to that head of damage.

(b)      The Plaintiff’s Past and Prospective Physical Disability

The injuries alleged by the plaintiff have been set out in the statement of claim and the extent of his disability arising therefrom is not a matter that is required as an item of pleadings. It, too, should be pursued by examination for discovery.

(c)      The Plaintiff’s Past and Prospective Loss of Earnings

Insofar as the past loss of earnings is concerned, this is information that can be identified and quantified and should be provided by the plaintiff to the defendant. It is not, in my view, appropriate that it be provided as particulars, but I am satisfied it should be provided in some fashion to the defendant, and I am going to direct that the plaintiff quantify his claim for past loss of earnings and provide that information to the defendant.

Insofar as prospective loss of earnings is concerned, I am not satisfied that that is a matter that can be necessarily particularized, and I leave it to the defendant to pursue that through examinations for discovery.

(d)      The Plaintiff’s Past and Prospective Loss of Earning Capacity

Like the prospective loss of earnings, I do not consider this to be an appropriate subject matter for particulars, and it is a matter that can be pursued by way of examination for discovery.

(e)      The Plaintiff’s Past and Prospective Loss of Opportunity to Earn Income

This is a head that is hard to distinguish from past and prospective loss of earning capacity. To the extent there is any difference, in my view it should be treated the same as the request for particulars of past and prospective loss of earning capacity.

(f)       The Plaintiff’s Past and Prospective Loss of Housekeeping Capacity

This is another matter that in my view does not warrant particularization in the pleadings. It can be pursued through examinations for discovery.

(g)      The Trust Award on Behalf of the Plaintiff’s Friends and Family

This, too, is not a matter that, in my view, should be dealt with by way of particulars, with this exception:  The individual or individuals for whom a trust award is claimed should be identified in the statement of claim where the trust award is advanced.

(h)      The Plaintiff’s Special Damages

These are matters that should be identified by the plaintiff for the defendant, but not as particulars of the pleadings.

As I previously discussed in the below video, examination for discovery is a process where the opposing side in a BC Supreme Court lawsuit can bring you in front of a Court Reporter and get your sworn answers to questions about relevant topics. Discoveries are designed to learn about your case and to hurt your case.  It is one of the most important pre-trial steps in Injury litigation and a Plaintiff’s performance can play a key role in whether the case settles or proceeds to trial.

Most people have some anxiety and apprehension before discovery.  One reason for this is because the discovery process is unfamiliar and often Plaintiff’s don’t know what to expect.  The best way to ease this anxiety is to learn about the process ahead of time.  To that end I’ll let you in on a secret:  Most Defence lawyers in ICBC claims use a cheat sheet to guide their questions.  This cheat sheet is the Law Society of BC Practice Checklists Manual and the most up to date version was recently released by the BC Law Society.  You don’t need to be a lawyer to get a copy, it’s available free on-line and can be found here.

Most ICBC defence lawyers use this or a similar checklist to structure their questions.  More junior lawyers typically follow the script fairly closely while more experienced lawyers deviate frequently.  Whoever your opposing lawyer may be you can bet they will cover many of the topics highlighted on this checklist at your examination for discovery.

If you spend some time going over this form you will learn not only what types of areas will be covered at your discovery but also why these questions will be asked.  With this knowledge hopefully the discovery process will be a little less mysterious and less stressful.

As I’ve previously written, section 24 of the BC Insurance (Vehicle) Act gives the victims of Hit and Run accidents the right to sue ICBC directly in certain circumstances.  There are exceptions and limitations to this right and one such limitation is that a Plaintiff has to give proper notice to ICBC that they intend to claim under section 24 otherwise their right to sue ICBC can be taken away.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with this area of law.

In today’s case (Mudrie v. Grove) the Plaintiff was involved in a 2007 rear-end collision.  After the crash the Plaintiff and the driver of the other vehicle exchanged their respective information.  The other driver identified himself as “Donald Grove“.   About a year after the crash the Plaintiff conducted a “pre-court vehicle plate search“.  The search gave rise to information which suggested that “Grove” may have provided inaccurate information about his identity.

The Plaintiff started a lawsuit naming not only Donald Grove but also ICBC as a Defendant under section 24 of the Insurance (Vehicle) Act.  ICBC was named in the event that the identify of the true driver was unknown.  ICBC brought a motion to dismiss the lawsuit against them arguing that in order to sue under section 24 a Plaintiff must provide written notice to ICBC within 6 months after the accident and that the Plaintiff failed to comply with this requirement.  Mr. Justice Saunders agreed and dismissed the lawsyit against ICBC.  In doing so the Court noted as follows:

[43] I conclude on the evidence that the plaintiff’s obligation to provide written notice to ICBC under s. 24(2) did not arise at the time of the accident. However, as I have found, the negative vehicle plate search results reported on June 5, 2008 must have led – quite reasonably – to the plaintiff apprehending the potential for an unidentified driver claim; otherwise, there is no explanation for the writ having been issued with pseudonymous defendants. In the words of the Supreme Court of Canada in Peixeiro, at that point, or very shortly thereafter, the plaintiff could reasonably have discovered that he had a cause of action against ICBC. I therefore find the plaintiff did have that obligation to notify ICBC as soon as reasonably practicable, within days of June 5, 2008.

[44]         The plaintiff argues that constructive notice of the claim was given thereafter on September 4, 2008, when ICBC was contacted to determine if it had any information regarding Mr. Grove. In my view, even if I could overlook the statutory requirement that notice be in writing, this contact was nowhere close to being sufficient to discharge the plaintiff’s obligation. There is no evidence of any indication having been given to ICBC that an unidentified driver claim might be pursued.

[45]         The only notice, written or otherwise, given ICBC in this case was the writ and statement of claim. I see nothing in the statute which precludes the pleadings themselves serving as the required notice under ss. 24(2). The purpose of the notice provision is to provide ICBC with sufficient opportunity to make its own investigation of the other driver’s or owner’s identity:  Stelmock v. I.C.B.C. (1982), 42 B.C.L.R. 145 (S.C.) at para. 10; Goltzman v. McKenzie (1989), 36 B.C.L.R. (2d) 228 (C.A.). Successful identification of the driver or owner will lead to a tort claim, relieving ICBC from direct liability. If those persons are insured by ICBC, it may eventually have to make an indemnity payment on its assureds’ behalf, but may possibly then have the potential of recouping some of its loss through adjustments to those assureds’ future premiums. In the case of an out-of-province driver, ICBC may of course avoid liability altogether. Given the potential for fraud in cases of alleged hit-and-run accidents, notice to ICBC will also enable it to investigate the circumstances of the reported accident to determine if the plaintiff’s claim has merit:  Epp v. Harden Estate (1988), 24 B.C.L.R (2d) 89, 31 C.C.L.I. 229 (B.C.S.C.). These legislative purposes may be fulfilled through ICBC receiving details of an accident through a writ, as opposed to discrete advance notification that a claim will be made. And in my view the writ with its attached statement of claim, in the present case, disclosed sufficient detail that service on ICBC alone would have met the notice requirement, if it had been done in a timely manner.

[46]         This brings us to the real question in this case: whether ICBC received notification of the claim, through the writ, within the time parameters given in the statute. The writ was not served until April 2009, ten months after the negative vehicle plate search. No explanation for this delay has been offered.

[47]         In respect of interpreting the notice requirement, the plaintiff argues that the legislative purpose behind the requirement is the same as that which lies behind the two-month notice requirement to municipalities under s. 286 of the Local Government Act, R.S.B.C. 1996 c. 323: the prevention of prejudice to the defence of a government body. It is argued that this court should direct its inquiry into whether ICBC has been prejudiced by the late notification; the logic of that argument is that ICBC cannot be presumed to have been prejudiced, when the trail left by “Mr. Grove” would already have gone cold by the time the plaintiff ought to have realized this was an unidentified driver case. The notice provisions of the two statutes are, however, entirely different. Under the Local Government Act, there is a blanket requirement that notice of claims falling within the ambit of s. 286 be delivered within two months, but subsection (3) specifically provides that the failure to give notice, or sufficient notice, is not a bar to maintaining an action if the court believes (a) there was reasonable excuse, and (b) the municipality has suffered no prejudice. In contrast, under the Insurance (Vehicle) Act’s s.24, the obligation is to give notice as soon as reasonably practicable, and in any event – meaning, whether reasonably practicable or not – within six months.

[48]         If the prevention of prejudice could be said to be the dominant purpose of the notice requirement, it would appear that the legislature has either deemed there to be prejudice after six months has elapsed, or has otherwise determined, as a matter of policy, that ICBC’s exposure to such claims ought to be capped at that point. To subject that provision to an overarching, implied test involving the finding of real prejudice would be tantamount to rewriting the statute. The most that could be said is that a consideration of prejudice might, in certain circumstances, be implied by the qualifier “reasonably”. But even so, that cannot assist the plaintiff in the present case, when notice was not given to ICBC until long after the six-month period had lapsed.

[49]         ICBC was not notified of this claim within six months of when the plaintiff could reasonably have discovered that he had a cause of action against ICBC. The claim against ICBC is therefore dismissed. The parties are at liberty to make written submissions as to costs.

Two decisions were released this week by the BC Supreme Court dealing with the issue of litigation privilege in BC personal injury lawsuits.  The first case stressed the importance of lawyers properly identifying and listing documents, the second dealt with evidence gathered by an insurance company during the “investigative stage” following a motor vehicle collision.

In the first case (Craig v. Smith) the Plaintiff was injured in a 2006 motor vehicle collision.   The Defendant claimed privilege over various documents and the Plaintiff brought a motion to produce these.   The parties worked out many of their respective differences before the Court gave judgment but prior to resolving the issues Master Caldwell gave the following guidance stressing the importance of lawyers properly disclosing relevant documents:

[5] It is counsel’s duty to determine relevance and claims of privilege; see G.W.L. Properties Ltd. v. W.R Grace & Co., [1992] B.C.J. No. 2387. There is an obligation to describe documents in sufficient detail to enable other parties to assess the validity of the claim of litigation privilege; see Hetherington v. Loo et al, 2007 BCSC 129 and Nanaimo Shipyard Ltd. v. Keith et al, 2007 BCSC 9. The dominant purpose test is still the appropriate test to be applied in determining litigation privilege but is “more compatible with the contemporary trend favouring increased …mutual and reciprocal disclosure which is the hallmark of the judicial process”; see Blank v. Canada (Minister of Justice), 2006 SCC 39.  This is all well settled law.

In the second case (Pshelensky v. Dion) the Plaintiff was involved in a 2006 collision.  Within a week of the crash the Plaintiff hired a personal injury lawyer to represent her.  Shortly after this the Defendant’s insurance company obtained a statement from the Defendant and witnesses to the crash.  After the lawsuit started the Defendant refused to produce a copy of the statement arguing that since the Plaintiff hired a lawyer a lawsuit was reasonably contemplated when the statements were taken and they were protected by ”litigation privilege“.

Master Taylor disagreed and ordered that the Defendant produce the statements. In doing so the Court provided the following reasons:

[18]         I take the view that the two statements taken from the driver and passenger of the defendant motor vehicle were essentially taken to determine the cause of the accident and, of course, to determine who might be at fault.

[19]         In my view the defendants rely upon the fact that the plaintiff retained counsel early on in these proceedings or shortly after the accident to suggest that litigation was contemplated.  I do not agree with this proposition for in my view it was far too early in the proceedings to make a final determination as to whether or not litigation would be inevitable.

[20]         I further take the view that the statements taken from Badr and Dion were so close to the time of the accident that they were very early in the continuum before the dominant purpose became one of furthering the course of litigation.  Accordingly I find that both statements are not privileged and should be released to the plaintiff applicant.

This is just one in a series of recent cases making it clear that when an insurance company is investigating why a crash happened it will be very difficult to keep statements from the Plaintiff in a subsequent lawsuit.  You can click here to read my archived posts further dealing with the issue of litigation privilege in the context of BC personal injury lawsuits.

I have volunteered to keep an eye on the New BC Supreme Court Rules and write about decisions interpreting and applying these.  Today the first judgement considering the New Rules has come to my attention.  Today’s case dealt with Rule 24, the transitional rule.

In today’s case (Easton v. Cooper) the Plaintiff was involved in 3 motor vehicle collisions.  The Plaintiff sued for damages for each crash.  The lawsuits were started under the old Rules of Court but were set to proceed to trial in November, 2010 (some 5 months after the New Rules came into force).  The lawsuits were all started under Rule 68 of the old rules which required parties to exchange summaries of the evidence they expect their witnesses to give at trial.  The Plaintiff did not produce statements in compliance with this requirement.

The Defendant brought a motion to force  the Plaintiff to provide this evidence.  The Plaintiff opposed arguing that she no longer needs to exchange these statements because the trial will proceed under the new rules.  Mr. Justice Voith sided with the Defendants and ordered that the Plaintiff provide summaries of evidence as required under the old rules.  In reaching this conclusion the Court had the first opportunity that I’m aware of to consider section 24 of the New Rules of Court (the section dealing with parties obligations in lawsuits started under the old rules but that are ongoing aftger the New Rules came into force).  Mr. Justice Voith provided the following interpretation of this section:

[4]             Rule 24-1(14) of the New Rules provides:

(14)      If a step in a proceeding is taken before July 1, 2010, the former Supreme Court Rules apply to any right or obligation arising out of or relating to that step if and to the extent that that right or obligation is to have effect before September 1, 2010.

[5]             The interpretation of Rule 24-1(14) turns on both the meaning of “step in a proceeding” as well as the time period that is book-ended by the two dates within the provision…

[13]         Based on the foregoing authorities, within the “Rules context”, a “step” means a formal step expressly permitted or required by the Rules.

[14]         Rule 24-1(14) specifically focuses on a narrow window of time. It addresses instances where a step undertaken prior to July 1, 2010 gives rise to an obligation that is required to be satisfied prior to September 1, 2010. By way of example, the “step” of delivering a demand for discovery of documents created a right on the part of the initiating party and a concomitant obligation on the part of the recipient of the demand to comply with the time frames and substantive requirements of the former Rules. So long as the time frame for that obligation ends before September 1, 2010 the response or action is governed under the former Rules.

[15]         In this case Rule 24-1(14) is not engaged.

[16]         Rule 68(31) of the former Rules provided:

Witnesses

(31)      Within 90 days after the close of pleadings or within 90 days after the action becomes an expedited action, whichever is later, each party to an expedited action must deliver to each other party

(a)        a list, in Form 141, of the witnesses that the party delivering the list proposes to call at the trial of the expedited action, which list must

(i)    include the party delivering the list, if that party intends to give evidence at trial, and

(ii)    exclude any expert witnesses referred to in subrule (33), and

(b)        for each of the witnesses included in the list, a written summary of the evidence that the party believes that witness will give at trial.

[17]         In each of the three actions commence by Ms. Easton, the 90 day period provided for by the former Rule 68(31), as well as the obligation or formal step created by that Rule, had expired well before July 1, 2010. The application of Rule 24-1(14) simply does not come into play. The fact that the ultimate trial of these various actions will post-date September 1, 2010, is of no moment and does not detract from the obligation to adhere to the formal requirements established by the earlier Rules…

[21] The plaintiff is directed to provide proper witness statements to counsel for the defendants within 21 days of the date that these Reasons for Judgment are issued.

In addition to the usual variety of topics I cover on this blog I will continue to post about the new Rules of Court.  If anyone is aware of any recent cases worth noting here please don’t hesitate to contact me.

As I’ve previously written, ICBC and other personal injury claims can take a long time prior to settlement or trial.  This is particularly true in cases involving serious injuries where the long term prognosis remains unknown for  a number of years.  As I explained in this video, it is difficult to value a claim until the prognosis is known and it could be risky to settle a claim before this.

Appreciating that injury claims can take a long time, how long is too long?  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing this issue.

In this week’s case (Hullenaar v. Wells) the Plaintiff was allegedly injured in an assault in 1997.  He claimed two cars being driven by the defendants boxed him in and then one of the defendants “struck him in the face with a stick causing damage” which led to a serious eye injury.

The Plaintiff sued the alleged assailants and ICBC within the time set out in the Limitation Act.  The personal injury lawsuit dragged on for years.  ICBC grew tired of the matter and brought a court application to dismiss the claim for want of prosecution.  Master Caldwell granted the application and dismissed the lawsuit.  In doing so the Court provided the following comments:

[16]         Once inordinate and inexcusable delay is found, a rebuttable presumption of prejudice to the defendants arises; see Tundra Helicopters. None of the evidence presented to me rebutted that presumption.

[17]         There is some evidence that the plaintiff and the defendant Flynn were examined for discovery in 2002 and 2003 respectively; minimal if any examination of the defendant Wells has occurred. None of the transcripts of the discovery were produced.

[18]         This is a case which will depend largely on the evidence of the parties who were present at the time of the event. The evidence at trial will be the13 – 15 year old recollection evidence of witnesses who had spent a significant part of the evening drinking alcohol at private parties and commercial bars.

[19]         In my view the delay of 13 years, which will be almost 15 years by the time of trial, has prejudiced and will continue to prejudice the defendants in their ability to present a full and proper defence.

[20]         This is an unfortunate case. The plaintiff appears to have suffered significant injury. It is hard to imagine why the matter was not moved forward with anything approaching reasonable speed, however the plaintiff alone is responsible for the delay. Based upon the evidence presented, the interests of justice do not mitigate in favour of allowing the plaintiff to continue his action, rather they favour the dismissal sought by the defendant/third party.

[21]         The action is dismissed for want of prosecution. The applicant ICBC is entitled to its costs of this application as sought; no other party sought or is entitled to its costs.

While patience is important in the settlement of personal injury claims this case demonstrates that even with very serious injuries there is such as thing as “too long”.

As readers of this blog know, the New BC Supreme Court Civil Rules are now in force.

Over the years a number of practice directions were released which addressed the BC Supreme Court rules.  These were abolished when the New Rules came into force and accordingly a new set of practice directions were needed.

The BC Government has now released new Administrative Notices and Practice Directions.  Substantively these are basically the same as the old Practice Directions and have simply been re-worded to recognize the new Rules of Court.

One improvement worth noting, however, is the numbering system.  Under the old Rules Practice Directions were referred to by date making them more cumbersome to access and refer to.  The new Practice Directions have been numbered chronologically (from PD-1 to PD-24) making them more user friendly.