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.

Posts Tagged ‘Madam Justice Adair’

$55,000 Non-Pecuniary Assessment for Chronic But Not Disabling Neck and Shoulder Injury

November 19th, 2018

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained in a collision.

In today’s case (Young v. Shao) the Plaintiff was involved in a 2013 rear-end collision.  The Defendant admitted fault.  The crash resulted in chronic but non-disabling soft tissue injuries with a poor prognosis for full recovery.  In assessing non-pecuniary damages at $55,000 Madam Justice Adair provided the following reasons:

[81]        Based on my findings above, Ms. Young will continue to have chronic pain symptoms, particularly in her neck and shoulder. As a result of the injuries she sustained, her ability to participate in her most favourite past-time – dancing – was curtailed altogether for several months. When Ms. Young’s injuries had sufficiently healed to allow her to resume dancing, she could not engage in the activity to the same extent as before the accident. Dancing has always been a very important part of Ms. Young’s lifestyle. The effects of her injuries have also made Ms. Young’s ability to work – something else that is important to her and gives meaning to her life – more difficult. Although she has never missed work, she has had to work with pain, and will have to do so indefinitely.

[82]        On the other hand, I had no evidence that, as a result of the injuries, there was any impairment in Ms. Young’s family or social relationships. Indeed, only Ms. Young testified about how her life was affected. I did not hear from any friends, family members or co-workers. This was a significant feature of at least two of the cases cited by Mr. Vondette, which is not present here.

[83]        In view of my findings above, and taking into account the factors mentioned in Stapley (including Ms. Young’s age and stage of life) and the cases cited to me in argument, I conclude that a fair and reasonable award of non-pecuniary damages is $55,000.

Negligent Ski Resort Saved From Liability Based on Waiver

September 27th, 2017

Big White Waiver

Reasons for judgement were released today by the BC Supreme Court dismissing a lawsuit against a negligent ski resort based on a waiver patrons must agree to when using their facilities.

In today’s case (Fillingham v. Big White Ski Resort Limited) the Plaintiff was skiing on a short cut at the end of a ski run named ‘highway 33′  to a parking lot which was, at the time, open for use for skiers.  Shortly prior to this a snowplow came through exposing users of the path to a 10 foot drop to the parking lot.  The Plaintiff fell, was injured and sued for damages.

The Court found that the ski resort was negligent with Madam Justice Adair noting as follows

…as of Noon on March 4, 2013, when Mr. Fillingham was coming down Highway 33 , the rope line at the short cut was still open.  However, the path had been removed, thereby creating a hazard if the short cut was used, and the open rope line failed to mark or warn of that hazard.

[39]        I find further that, in not taking steps after clearing snow in the Solana Ridge parking lot to ensure the rope line at the short cut from Highway 33 was closed, BW Limited failed to take reasonable care and was negligent.

Despite the finding of negligence the Court went on to dismiss the lawsyuit noting a broad worded waiver covered this situation.  In reaching this conclusion the court provided the following reasons:

[51]        On the other hand, when I apply the analytical framework described by Binnie J. to the Exclusion, in my view, the intention is clear:  it is to exclude liability on the part of the Ski Area Operator to the Ticket Holder for “all risk of personal injury . . . resulting from any cause whatsoever” [underlining added].  “Any cause whatsoever” specifically includes, but is not limited to, negligence on the part of the Ski Area Operator.  Mr. Fillingham, as I have found, was very familiar with this language.  He had seen it many times, and carried on his activities on the basis that he was assuming “all risk of personal injury,” including, without limitation, risk of personal injury caused by the negligence of BW Limited.  That is what Mr. Fillingham did at Big White on March 4, 2013.

[52]        Mr. Fillingham, based on his evidence, knew that some of the time, the short cut was roped off, and some of the time it was not.  The essence of his complaint in this action is that, as of about Noon on March 4, BW Limited failed to adequately mark – by closing the rope line – a hazard it had created, and was negligent in doing so.  I have found that BW Limited was negligent.  However, in my view, what occurred is not so extraordinary or unique that it could be said the parties did not intend for it to be covered by the Exclusion.

[54]        Mr. Berezowskyj submitted that, if the Exclusion were found to be valid and broad enough to encompass Mr. Fillingham’s claim, then there are strong public policy reasons for preventing a recreational operator from relying on a ticket waiver to avoid liability in circumstances where it actively creates the hazard from which its guests were not properly protected, and were in fact invited to court.  However, in my opinion, this is not a case where an overriding public policy (evidence of which was thin at best) outweighs the case in favour of enforcement of the Exclusion.

$50,000 Non-Pecuniary Assessment for “Lingering” Soft Tissue Injury

July 19th, 2016

Adding to this site’s soft tissue injury non-pecuniary database, reasons for judgement were released today by the BC Supreme Court,  Vancouver Registry, valuing a claim dealing with a ‘lingering‘ neck and shoulder soft tissue injury.

In today’s case (Lal v. Le) the Plaintiff was involved in a 2011 rear-end collision that the Defendant accepted blame for.  The Plaintiff suffered various soft tissue injuries the most serious of which involved his neck and shoulder and symptoms lingered to the time of trial.  Some long term symptoms were anticipated.  In assessing non-pecuniary damages at $50,000 Madam Justice Adair provided the following reasons:

[102]     Accordingly, I find that, as a result of the accident, Mr. Lal sustained soft tissue injuries to his neck, back, chest, elbow, leg and shin areas.  He also sustained ulnar nerve irritation symptoms, and experienced headaches as a result of his injuries.  Most of these injuries resolved over a few months.  However, the most serious injuries, a moderate soft tissue injury to his neck, and a moderate muscular strain in his right middle and lower back, did not.  As of April 2014, there continued to be objective signs of injury.  I find that, by April 2014, Mr. Lal had improved to the point that he was pain-free at times, although, with heavier and awkward work, he experienced symptoms in his neck and back, and also occasional headaches.  I find that these symptoms resulted from the injuries he suffered in the accident.  By October 2015, Mr. Lal’s mid-back injury had resolved.  However, I find that, as of trial, Mr. Lal continued to experience symptoms as a result of the injuries suffered in the accident, particularly symptoms in his neck.  He is likely to have some lingering neck and shoulder pain long-term, although the prognosis is more favourable that his back pain will fully resolve over the next year.

[103]     I find further that, as a result of the injuries Mr. Lal suffered in the accident, there is a risk that he will be unable long-term to work as a boilermaker, although he should be able to work full-time as an armored car driver.  In addition, I find that, as a result of the injuries suffered in the accident, Mr. Lal will be at increased risk of a work-related neck or back injury.  Given the physical nature of his employment, this is a real risk…

[110]     Considering Mr. Lal’s age and the other factors described above, and the cases cited to me, I conclude that an appropriate award for non-pecuniary damages is $50,000.

Court Orders Part 7 Action Discovery Transcripts Disclosable in Tort Action

December 27th, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

Inadequate Notice of Application Criticized By the BC Supreme Court

September 3rd, 2013

Reasons for judgement were released last week serving as a reminder that the new Rules of Court require fulsome arguments to be set out in applications filed with the Court.

In last week’s case (Dupre v. Patterson) the Defendant brought a summary trial application seeking to dismiss the Plaintiff’s lawsuit.  Not only was the application unsuccessful with the Court finding the Defendant at fault for the collision underlying the litigation, the Court went on to give the following criticism of applications that fail to set out adequate factual or legal arguments in their support:

[44]         Before concluding, I wish to say a few words about the material filed. 

[45]         The defendant’s notice of application filed July 3, 2013, did not comply with the Supreme Court Civil Rules.  The complete “Factual Basis” for the summary trial was set out on about three pages, double spaced.  The “Legal Basis” section said in its entirety:

1.         Rule 9-7

2.         Rule 14-1(12) – costs

3.         Motor Vehicle Act, RSBC1996, c. 318, Part 3, section 183(2)(c).

[46]         There was not even a brief statement to the effect of “The court should dismiss the action because” and then setting out the reason or reasons why, in the defendant’s submission, that should be the result.

[47]         In Zecher v. Josh, 2011 BCSC 311, Master Bouck was faced with a similar situation, where the Legal Basis section in particular of the notice of application was wholly inadequate.  Master Bouck described what was required in order to comply with the Rules and said:

[29]      The defendants’ application for production of wage loss particulars and a calculation of any wage loss claim was dismissed due to the inadequacy of the material and argument presented. Both the factual and legal basis for the application are wanting.

[30]      Form 32 of the SCCR [Supreme Court Civil Rules] lends itself to providing both the opposing party and the court with full disclosure of the argument to be made in chambers. Parties should put in as much thought to the necessary content of that Form as is done when preparing the supporting affidavits. When a party is represented, responsibility for that content lies with counsel.

[31]      No doubt the Lieutenant Governor-in-Council intended Part 3 of Form 32 to contain more than a cursory listing of the Rules that might support the particular application. For example, common law authorities can and should be included as well as a brief legal analysis. Such an analysis is particularly helpful given that parties are not able to present a separate written argument in civil chambers unless the application is scheduled to take two hours or more of court time.

[32]      In my experience and observation, a comprehensive legal analysis can easily be included in a 10-page notice of application. As well, Rule 8-1(4) allows the parties to include a list of authorities in the application record.

[33]      By providing an effective analysis of the legal basis for (or against) making the order, the parties may well be able to resolve the application without attending court.

[34]      As an aside, I should note that the sparse content of this particular notice of application is unfortunately not unique; many such inadequate notices have been presented in chambers.

[48]         I agree with and adopt Master Bouck’s comments concerning what a notice of application must contain.  The same will apply with respect to an application response (Form 33), and the notice of application and application response under the Supreme Court Family Rules (Forms F31 and F32).

[49]         In Fraser, Horn and Griffin, The Conduct of Civil Litigation in British Columbia, 2nd ed. loose-leaf (Markham:  LexisNexis, 2007) one of the leading texts on practice and procedure, the authors say this concerning the “Legal Basis” section of a notice of application, at p. 32-3 [notes omitted]:

            The notice must set out the rule, enactment or other jurisdictional authority relied on for the orders sought and any other legal arguments on which the order sought should be granted (Rule 8-1(4)(c)).  If appropriate, applicable cases may be cited.  The argument to be made in chambers should be fully disclosed and should contain more than a cursory listing of the rules that might support the particular application.

[50]         The requirements under the current Rules represent a fundamental change from the practice under the former Rules of Court.  Under the former Rules, Rule 44(3) and Form 55 (the form of notice of motion) only required a bare statement of the Rule or enactment relied upon.  An outline (see Form 125 and former Rule 51A(12)), outlining the legal arguments to be made, was then delivered later in the exchange of motion materials and prior to the hearing.  That is not the practice under the current Rules.

[51]         If a notice of application does not contain the information now required under the Rules, the party filing it has failed to give proper notice – to the opposing party and to the court – of the nature of the application.  However, all too frequently, counsel in both civil and family cases are signing and filing inadequate notices of application and application responses.  The notice of application filed in this case was not at all unique.  However, such documents do not comply with the Rules.

[52]         In contrast to the bare-bones notice of application filed on behalf of Ms. Patterson, the application response was comprehensive and, in the page limit allowed under the Rules, set out both a detailed summary of the facts and an analysis of the legal basis on which the plaintiff said the court should find the defendant liable.  It represents the standard expected by the court.

[53]         In this case, the inadequacy of the notice of application was compounded by defendant’s counsel tendering a 14-page written submission at the hearing.  Since the hearing was estimated and set for 90 minutes, this was in breach of Rule 8-1(16). 

[54]         Rarely will a judge or master refuse to receive a written argument from counsel, provided it is not being used to “sandbag” or take the opposition by surprise.  However, tendering a written argument at the hearing is neither an alternative to, nor a substitute for, setting out the “Legal Basis” in a notice of application or an application response in accordance with what the Rules and the case law require.

[55]         When counsel come to court with inadequate materials, which fail to comply with the Rules, judges and masters are placed in a very difficult position.  What often happens is that, to avoid the inconvenience and expense of an adjournment, matters proceed despite the inadequate materials, and judges and masters do the best they can in the circumstances.  But inadequate motion materials, which fail to comply with theRules, are incompatible with the efficient and timely disposition of applications.

[56]         If counsel are coming to court with inadequate material that clearly fails to comply with the Rules, and counting on being heard, they are misguided.  Judges and masters are entitled to expect that counsel will prepare application materials (including affidavits) that comply with the Rules, and do no less than this.  Counsel who come to court with application materials that do not comply risk having their applications at least adjourned, with potential cost consequences, until proper materials are filed.

[57]         That completes my ruling.

BC Apology Act Keeps Roadside Admission Out of Evidence

August 30th, 2013

Section 2 of BC’s Apology Act holds that an apology “does not constitute an express or implied admission of fault or liability by the person in connection with that matter,” and that it “must not be taken into account in any determination of fault or liability in connection with that matter.”  Although this law has existed for several years it has received little judicial attention.  In one of the first cases that I’m aware of addressing this section, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, relying on this statute.

In this week’s case (Dupre v. Patterson) the parties were involved in a bike/vehicle collision.  Fault was disputed.  After the collision the cyclist apparently apologized to the motorist.  Madam Justice Adair found the motorist solely at fault for the crash and before reaching this conclusion had the following brief comments about the application of the apology act to the cyclist’s roadside statements:

[40]         Defence counsel pointed to some statements made by Ms. Dupre to Ms. Patterson after the accident, when Ms. Dupre apologized.  In view of my conclusion that Ms. Patterson’s negligence caused the accident, I will address this point only very briefly.

[41]         First, it was unclear, based on the submissions, how I was being asked to use Ms. Dupre’s statements and whether they were admissible for the purpose for which they were being tendered.  Secondly, it is clear that an apology made by or on behalf of a person in connection with any matter does not constitute an express or implied admission or acknowledgment of fault or liability:  see the Apology Act, S.B.C. 2006, c. 19, s. 2.

[42]          Ms. Dupre explained that when she spoke to Ms. Patterson after the accident, she was upset and in considerable pain from falling and injuring her shoulder, and she felt embarrassed by the attention the accident had caused.  She did not remember saying anything about having over-extended or pushed herself too far on the bike ride.  Roadside admissions at accident scenes are unreliable, since people tend to be shaken and disorganized.  This describes Ms. Dupre’s situation.  Her statements do not affect my conclusion that Ms. Patterson’s negligence caused the accident.

Plaintiff’s “Strong and Stubborn” Evidence Undermines Traumatic Brain Injury Claim

July 19th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, addressing Plaintiff reliability in the context of an alleged traumatic brain injury claim.

In this week’s case (Harris v. Xu) the Plaintiff sustained various injured in a 2008 collision.  The Defendant admitted fault but disputed the nature and severity of the Plaintiff’s claimed injuries.  One of the injuries the Plaintiff allegedly sustained was a closed head injury.  Madam Justice Adair rejected this aspect of the Plaintiff’s claim noting some difficulties with the Plaintiff’s evidence regarding her injuries.  In dismissing the brain injury claim the Court provided the following reasons:

[83]         I do not doubt Ms. Harris’s honesty.  However, in giving her evidence, Ms. Harris demonstrated a strong and stubborn tendency to attribute almost every problem and every difficulty in her life to the accident.  In my view, this dictated caution before accepting Ms. Harris’s version of events, because her version is coloured by Ms. Harris’s firm belief that the accident – and the accident alone – is responsible for her current circumstances.  I have concluded that Ms. Harris is deeply frustrated by those circumstances and, in her own mind, is trying to impose some logic on past events.  This approach to her life is consistent with how her long-time friend Ms. Baird described Ms. Harris’s personality.  But what I needed from Ms. Harris were the facts, not Ms. Harris’s reconstruction of, and her conclusions about, what she believes happened, based on what, in hindsight, she now thinks makes sense.

[84]         The question of whether Ms. Harris suffered a closed head injury in the accident illustrates the problem.  At trial, Ms. Harris insisted that she was “knocked out cold.”  She gave this evidence, using those words, several times.  She communicated this to Dr. McCloskey when she saw him for the first time on April 17, 2008.  She later reported to Dr. McCloskey that she had been unconscious for minutes.  This was then further particularized as five minutes.  She gave a similar history to Dr. Coghlan, and it is the basis for his opinion concerning a closed head injury.  

[85]         However, there is no independent evidence to corroborate what Ms. Harris firmly believes.  If Ms. Harris was in fact “knocked out cold,” I do not know how Ms. Harris could possibly know that it was for five minutes.  Her memory (based on what she told Dr. McCloskey) seems to become more exaggerated with the passage of time.

[86]         At trial, Ms. Harris very strongly and firmly rejected what appeared in the Royal Columbian Hospital emergency clinical record, that she had reported no loss of consciousness.  However, in my view, her detailed evidence concerning events at the accident scene and of her activities after leaving the hospital (collecting luggage, renting a car, and so on) on the day of the accident, are inconsistent with her having sustained any significant head injury or concussion in the accident.  Ms. Harris’s activities are consistent with her accepting what she says she was told at the hospital – that she was “good to go” – and (apart from her painful ribs) agreeing with it.  Ms. Harris did not tell Dr. McCloskey about what she did after the accident, or that she drove with her mother back to Kelowna the following day.  As a result, he did not have all of the facts when he made his assessment concerning this particular injury.  Dr. Coghlan’s opinion concerning a closed head injury is based on Ms. Harris’s history of “significant post-traumatic amnesia,” but he did not have all of the facts either.  I cannot place much weight on either opinion on this point.  There might be an explanation for why Ms. Harris was able to carry on the way she did after the accident and the following day, despite sustaining a closed head injury or concussion.  But, because neither Dr. McCloskey nor Dr. Coghlan had all the facts, neither of them was in a position to provide one to me…

[100]     I am not persuaded that Ms. Harris suffered a mild closed head injury in the accident.  In my view, the evidence in this respect is too equivocal for me to reach a conclusion that Ms. Harris has proved, on a balance of probabilities, she suffered such an injury in the accident.  Even if she did, I accept Dr. Coghlan’s opinion that whatever happened will not result in any long-term problems. 

Police Officer Not Negligent For Crash While Running Red Light in Course of Duties

June 7th, 2013

While operators of emergency don’t enjoy complete immunity when running a red light in the course of their duties, they do enjoy a statutory right of way to disobey traffic controls in appropriate circumstances.  Reasons for judgment were released recently by the BC Supreme Court, New Westminster Registry, clearing a police officer from fault following such a collision.

In the recent case (Singh v. British Columbia (Public Safety)) the Plaintiff entered an intersection on a green light.  At the same time the Defendant officer, who was responding to a call of a man with a knife threatening a child, ran a red light while responding to the call.  A crash occurred and the Plaintiff sued for damages.  The claim was ultimately dismissed with the Court finding that the Plaintiff was negligent and the officer properly entered the intersection within the scope of her duties.  In exculpating the officer of fault Madam Justice Adair provided the following reasons:

[68]         Constable Parrish testified that her siren was activated when she approached and was at the intersection of Scott Road and 96th Avenue.  She explained when and how she activated her siren.  She explained how the siren is activated by pressing a button, and that, once the siren button is pressed and the siren is turned on, it remains on until the button is pressed again.  She explained that she reactivated the siren after speaking with her dispatcher, and that she had it activated as she travelled down 96th Avenue towards the intersection with Scott Road.  Her explanations were logical, appropriately detailed and consistent with the circumstances in which Constable Parrish was operating.

[69]         I find that when Constable Parrish arrived at the intersection of Scott Road and 96th Avenue, both the emergency lights and the siren on her vehicle were activated, and they remained activated when she proceeded into the intersection.  I accept Constable Parrish’s evidence in this regard.  Her evidence is supported by and consistent with the evidence of Constable Lucic and also Mr. Barros (whose evidence was unchallenged).  The conclusion that both the emergency lights and siren were activated is not contradicted by the evidence of Mr. Deol or Mr. Chand, which I find to be equivocal.  Moreover, I conclude that, on this point, Mr. Singh does not accurately recall the events.

[70]         I conclude, therefore, that, at the intersection, Constable Parrish had the right of way, and Mr. Singh was obliged to yield to her.

[71]         I find further that Constable Parrish had reasonable grounds to believe that, at the relevant time, the risk of harm to members of the public from the exercise of the privileges under s. 122(1) of the Motor Vehicle Act was less than the risk of harm to members of the public (namely, the child threatened with harm) if those privileges were not exercised….

[78]         I find that Constable Parrish was proceeding cautiously across the intersection, with her emergency lights and siren activated, and her conduct was consistent with that of a reasonable officer acting reasonably and within the statutory powers (and duties) imposed on her in the circumstances on September 12, 2007.  In my view, she was entitled to assume that Mr. Singh would yield the right of way to her.

The Duty of Lawyers to "Investigate" Litigants Social Media Use

April 30th, 2013

It is well established that social media postings and other electronic ‘records’ can be relevant in injury litigation.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this and discussing litigant’s duties to canvass these documents in the course of litigation.

In  last week’s case (Ahadi v. Valdez) the Plaintiff was injured in a 2005 collision.  In the course of her trial an e-mail which was not previously disclosed was put to a witness. This led to a delay of the trial with further discovery taking place.   Madam Justice Adair provided the following comments addressing this development:

[154]     The defendants argue that Ms. Ahadi’s failure, prior to trial, to disclose all relevant electronic documents demonstrates a general lack of honesty on her part.  The problem relating to discovery of electronic documents was discovered on the third day of trial, when Mr. Marcoux showed e-mail communications to a witness (Ms. Betty Chow, Ms. Ahadi’s boss when she was working at Shoppers Drug Mart) that had not previously been disclosed to the defendants.  Mr. Marcoux acknowledged that he had received the e-mail communications from Ms. Ahadi shortly before the trial began.  An order was then made concerning production of electronic documents, and Ms. Ahadi was required to submit to further oral examination for discovery.  This turn of events was very unfortunate, and made an already stressful experience (the trial) even more so.  It was also completely avoidable, if only appropriate inquiries had been made by Ms. Ahadi’s solicitors prior to trial concerning the existence and location of relevant and producible electronic documents.  Court had to be adjourned early on the third day of trial, after the issues concerning Ms. Ahadi’s electronic documents had been uncovered and during Ms. Ahadi’s examination-in-chief, because Ms. Ahadi felt unable to continue in the circumstances.

[155]     The defendants argue that, because of the circumstances surrounding production by Ms. Ahadi of electronic documents and the conflicts in her evidence concerning the location of electronic documents in her home, I should give no weight to either Ms. Ahadi’s evidence at trial or her self-reports to the various experts.  The defendants say that anything less would be unjust to them.  They also argue that I should draw an adverse inference against Ms. Ahadi.

[156]     I do not agree. 

[157]     In my opinion, it does not follow from what happened concerning discovery by Ms. Ahadi of electronic documents that I should give no weight to her evidence generally.  Ms. Ahadi’s solicitors need to accept at least some of the responsibility for what occurred.  Prior to trial, they should have investigated the existence of relevant electronic documents much more thoroughly than they did.  Had they made a proper and thorough investigation, Ms. Ahadi’s solicitors could have avoided placing their client in the uncomfortable position in which she found herself on the third day of trial.  Defendants’ counsel also had the opportunity to pursue the matter of electronic documents (such as Facebook postings and e-mail), when Ms. Ahadi was examined for discovery some nine months before the trial, but they did not.  In my view, Ms. Ahadi’s evidence should be assessed looking at all of the relevant factors.  The court can accept some, all or none of the evidence of a witness.

"Fat Bottomed Girls" and "Kangaroo Court" Comments Strip Successful litigant of Costs

December 21st, 2012

Update – July 22, 2013the below action was overturned on appeal with the Defendant being ordered to pay general damages, punitive damages and special costs due to his “misconduct during the trial


Earlier this year I highlighted a judgement addressing whether a litigant blogging about witnesses during the course of a trial, and referenceing ‘fat bottomed girls’ in the process, amounted to witness intimidation.

Reasons for judgement were released today (Mainstream Canada v. Staniford) by the BC Supreme Court, Vancouver Registry, dealing with the costs consequences following the underlying trial.

Ultimately the Plaintiff’s defamation claim against the Defendant was dismissed.  The Defendant would ordinarily be awarded his costs and disbursements under the BC Supreme Court’s ‘loser pays’ system.   Madam Justice Adair refused to follow this ordinary course, however, finding that the Defendant’s conduct during the trial was ‘deserving of rebuke‘ and ultimately stripped him of 75% of the costs he otherwise would be entitled to.  In doing so the Court provided the following reasons:

 [5]             The general rule is stated in Rule 14-1(9) of the Supreme Court Civil Rules:  “costs of a proceeding must be awarded to the successful party unless the court otherwise orders.”  Thus, Rule 14-1(9) continues to confirm the residual discretion of the court to deny, on a principled basis, a successful party the costs to which it would otherwise be entitled:  see LeClair v. Mibrella Inc., 2011 BCSC 533 (“LeClair”), at para. 9.  Where the successful party has engaged in misconduct, the outcome of the litigation is irrelevant, and the court has the power to deprive the successful party of costs…

8]             The discretion conveyed to a judge under Rule 14-1(9) is extremely broad:  see LeClair, at para. 30…

[12]         I described some of Mr. Staniford’s conduct in my Reasons for Judgment as follows, at paras. 88-92:

[88]      . . . During the trial, Mr. Staniford relaunched the GAAIA website, this time using a service provider outside of Canada.  During his cross-examination, Mr. Staniford proclaimed that he would not be stopped by an injunction pronounced in this action.

[89]      Shortly before the trial, and after the witness lists had been exchanged, Mr. Staniford accused the Ahousaht First Nation of accepting “blood money” from Cermaq in one of his Facebook postings. 

[90]      Mr. Staniford looked on the trial as an opportunity to get his message out, and he did not hold back.  For example, in Internet postings during the trial, Mr. Staniford demeaned and mocked the physical appearance of three of Mainstream’s witnesses, Mary Ellen Walling, Leanne Brunt and Dr. Gallo.  Mr. Wotherspoon brought the comments concerning Ms. Walling and Ms. Brunt to my attention when court was convened the morning of January 26, 2012.  The matter was discussed in court and was framed (appropriately) as an issue of Mr. Staniford victimizing Mainstream’s witnesses by his insulting comments.  Mr. Staniford was present during the discussion.  Despite that, Mr. Staniford then repeated his comments about Ms. Walling and Ms. Brunt outside court for an interview that was published on YouTube.

[91]      During his testimony, Mr. Staniford attempted to justify his comments about Ms. Walling and Ms. Brunt as being “very complimentary,” and said he thought Ms. Walling should be “flattered” at being labelled a “fat-bottomed girl.”  The notion that Mr. Staniford would ever pay a sincere compliment to Ms. Walling is, itself, laughable and entirely unbelievable. 

[92]      In another Facebook posting during the first week of the trial, he compared the trial to a kangaroo court….

[15]         By engaging in the conduct I described, Mr. Staniford demonstrated his disrespect for witnesses and his disdain generally for the court and the judicial process. 

[16]         Mr. Staniford’s flagrant disregard of my comments during the discussion on January 26, 2012 concerning his victimization of witnesses and in my ruling (indexed at 2012 BCSC 1609) is particularly troubling.  His YouTube interview shortly after my ruling is roughly equivalent to giving the court “the finger,” as he did to Mainstream and its lawyers in response to their demand letter.  Mr. Staniford’s attitude (as expressed during his cross-examination) seemed to be that since Lord Denning’s comments (which I adopted) had been made in the early 1960s, they did not apply to him and he could ignore them.  Once again, Mr. Staniford demonstrated that he is a bad listener.  His repetition in court, and under oath, of his ridiculous justification for his sexist and puerile comments about Ms. Walling and Ms. Brunt – that the comments were complimentary and flattering – insulted the intelligence of anyone who had to listen to it. …

[20]         Although I consider Mr. Staniford’s misconduct in connection with the trial to be serious and clearly deserving of censure, I think that depriving the defendants of all of their costs of the action is too severe, given the dollar amounts likely involved for a 20-day trial.  I have concluded that an appropriate order is that the defendants have 25% of their assessed costs and disbursements.  (There should be only one set of costs for both defendants.)  Depriving the defendants of 75% of their assessed costs and disbursements, in my view, reflects appropriate condemnation of Mr. Staniford’s misconduct.