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.

Posts Tagged ‘Master Scarth’

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

November 30th, 2015

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

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

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

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

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

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

 


Slow Moving Prosecution Plays Role in Fast Track Removal Application

November 23rd, 2015

Reasons for judgement were released today finding that a slow moving prosecution, in part, was a factor in removing a claim from Rule 15.

In today’s case (Bagri v. Bagri) the Plaintiff alleged injury as a result of two collisions, the first in 2007 and the second in 2009.   The matters were prosecuted subject to the fast track Rule (Rule 15) and the Defendants brought an application to remove the claims from this rule.

In finding that the claims were not suited for fast track prosecution, both based on the claims potential value and the likely length of trial, the Court also commented on the speed of prosecution.  In removing the cases from the fast track rule Master Scarth provided the following reasons:

[28]         There are other factors which support a finding that these actions are not fast track actions. Given that the earlier accident is from almost 8 years ago, the fast track procedures have not assisted the parties in resolving the disputes quickly or efficiently. In contrast, applying fast track procedures restricts the defendants’ right to proceed as a jury trial and caps their potential costs. While it has not been made out that the plaintiff has invoked Rule 15-1 specifically to defeat the defendants’ jury notice, it is fair to conclude that, in the circumstances, using fast track procedures would negatively impact the defendants more than it would positively assist the plaintiff or advance the purposes of Rule 15-1.

[29]         In my view, taking all these factors into account, it is fair to conclude that Rule 15-1 does not apply to these proceedings. Accordingly the application by the defendants to remove the actions from fast track is allowed.


Plaintiff Ordered To Produce Past Settlement Details in Potential Indivisible Injury Claim

May 4th, 2015

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff to disclose details of previous settlements in a personal injury prosecution.

In last week’s case (Dholliwar v. Yu) the Plaintiff was injured in three collisions.  The Plaintiff settled his first two claims.  In the third claim the Defendants requested details of the previous settlements and the Plaintiff did not produce these arguing the details were privileged.  The Court found the claims had overlapping and possibly indivisible injury claims and thus the details needed to be produced.  In reaching this decision Master Scarth reasoned as follows:

[10]         The cases set out the following principles which are applicable to this application:

a.               The public interest in the settlement of disputes generally requires “without prejudice” documents or communications created for, or communicated in the course of, settlement negotiations to be privileged:Middelkamp v. Fraser Valley Real Estate Board (1992), 71 B.C.L.R. (2d) 276 (C.A.).

b.               A final settlement agreement is covered under the Middelkamp blanket protection for settlement communications: B.C. Children’s Hospital v. Air Products Canada Ltd., 2003 BCCA 177, confirming a general policy of non-production of all documentation relating to settlement negotiations.

c.               To establish an exception to settlement privilege, the applicant must show that a competing public interest outweighs the public interest in encouraging settlement. An exception should only be found where the documents sought are both relevant, and necessary in the circumstances of the case to achieve either the agreement of the parties to the settlement, or another compelling or overriding interest of justice. Relevance alone is not sufficient to override the settlement privilege. See Middelkamp; Dos Santos v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, para. 21.

d.               An exception to settlement privilege may be necessary to prevent injustice through excessive compensation to the plaintiff: Dos Santos, para. 29, citing Pete…

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

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

[28]         To the extent that disclosure at this time raises concerns with respect to the fettering of the trial judge’s determination of damages, the parties may wish to agree that, as in Gnitrow Ltd, v. Cape plc, [2000] 3 All E.R. 763, the terms of the settlements not be disclosed to the trial judge until a determination of the damages payable by the defendant has been made: at para. 21.

[29]         In the circumstances, I conclude that it is appropriate to make an order for production of the documents which set out the terms of the settlements of the plaintiff’s claims arising from the two previous accidents.

[30]         The defendants are entitled to their costs in the cause.


Joint Expert Witness Appointed Despite "Vigorous" Defendant Opposition

August 29th, 2011

Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, appointing a joint expert witness against the wishes of a Defendant in an on-going legal dispute.  Although this recent case is not a personal injury claim I summarize the findings because it is the first case I’m aware of appointing a joint witness in a contested application under the ‘new’ BC Supreme Court Civil Rules.

In the recent case (Leer and Four L. Industries v. Muskwa Valley Ventures Ltd.) the Plaintiff and Defendants had a falling out in their commercial dealings.  The Plaintiff sued seeking an order that the Defendant “purchase his shares at fair market value“.  At a Case Planning Conference the Plaintiff sought an order that a joint business valuator be appointed to value the shares.  The personal Defendant “vigorously oppose(ed)” the idea of a joint expert.

Ultimately Master Scarth granted the order and in doing so provided the following useful comments of general interest in applications for joint experts:

[4] Rule 5-3(1)(k)(i) provides that at a case planning conference, a judge or master may order that expert evidence on any one or more issues be given by one jointly-instructed expert. Given the prohibition in Rule 5-3(2)(a) against hearing an application supported by affidavit evidence at a case planning conference, the court is required to rest any exercise of discretion on the pleadings and submissions to the extent that they do not require recourse to affidavit evidence: Przybysz v. Crowe, 2011 BCSC 731 at para. 59; Vernon v. British Columbia (Liquor Distribution Branch), 2010 BCSC 1688; and Jurezak v. Mauro, 2011 BCSC 512 – considering Rule 12-2(11)…

[14] Rule 11-3 was recently considered in Benedetti v. Breker, 2011 BCSC 464. Master Baker noted that while joint experts are not new to litigation in British Columbia, the new rules clearly have brought greater focus and emphasis to the appointment of joint experts and invite wider application of that process: paragraph 11…

[18] The personal defendants object to paying for expert evidence which is part of the plaintiffs’ case. Why should they pay for a report which the plaintiffs require? The answer is because it is a proportionate way to conduct this proceeding.

[19] Read together with Rule 1-3 which sets out the object of the rules, Rule 11-3, like joint expert rules in other jurisdictions, is intended to reduce litigation costs and promote the conduct of a proceeding in ways consistent with the amount involved. While in this case, the amount at issue is not yet resolved and will not be until an opinion has been obtained, the buyout of Royer in 2009 gives some indication that the amount is likely modest. In such circumstances, proportionality suggests that an effort should be made to avoid duplication of the costs of obtaining an expert report which is the likely outcome if a joint report is not ordered.

[20] It follows that the parties are required to share the cost of the expert, at least at the outset. The ultimate determination as to costs is for the trial judge.

[21] I will add that a report as to value may benefit all parties in another way. The value of Leer’s shares has been an issue and a topic of discussion between the parties since 2009, when the personal defendants offered him a buyout. A valuation will provide the parties with the information required to settle this longstanding dispute, and may promote that result.

[22] I conclude that it is appropriate to exercise my discretion in favour of the plaintiffs and to make the order set out in Rule 5-3 that expert evidence as to valuation of Leer’s shares be given by a jointly appointed expert.


More on BC Injury Claims and Litigation Privilege

August 6th, 2010

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.


Defence Medical Exams – Best Expert Not Required to "Level the Playing Field"

June 9th, 2010

(Update: November 14, 2011The case discussed in the below post in now publicly available.  Master Scarth’s reasons for judgement can be accessed here)

Further to my previous posts about Independent Medical Exams in BC Supreme Court Injury Claims unpublished reasons for judgement recently came to my attention (Hou v. Kirmani BCSC Vancouver Registry, 20091119) dealing with the ability for a Defendant to have an injured party undergo multiple exams where the first defence expert feels an opinion from a second expert would be of benefit.

In this recent case the Plaintiff was a pedestrian who was apparently struck by a vehicle.    She suffered “multiple injuries including traumatic brain injury“.  One of her most serious injuries was a foot and ankle injury.  She consented to attend a Defence Medical Exam with an orthopaedic surgeon.  He provided the following opinion:

(the Plaintiff) would benefit from an opinion from a foot and ankle orthopaedic surgeon, as further surgical intervetnion may be of benefit to her and this might include surgical correction of her deformity so as to allow her to bear weight and walk short distances more appropriately. …I do not feel further passive treatment for her left foot and ankle will be of any benefit to her..

The Defendant brought a motion to compel the Plaintiff to be examined by a second orthopeadic surgeon, this time one with a specialty in foot an ankle injuries.  The Plaintiff opposed arguing a further exam was not necessary.  Master Scarth agreed and dismissed the motion.  In doing so the Court made the following comments about the purpose and limitations of Defence Medical Exams:

…I am not of the view that Rule 30 is intended to allow follow-up on every issue which is raised by experts who examine the plaintiff.

Dr. Arthur was chosen, and I accept the submissions of the plainitff in this regard, with the knowledge that there were concerns regarding this plaintiff’s ankle.  Thee is, it is fair to say, nothing new since Dr. Arthur was retained, apart from his reticence to provide an opinion.  And he does not say, I do not believe, that he is not qualified to give the opinion which is missing, if it is missing.  He simply says, I think it is fair to conclude, that in the best of all worlds she would be seen by an orthopaedic surgeon with a subspeciality training.  In my view that is not the purpose of Rule 30.

As mentioned above, this is an unreported judgement but if anyone wants a copy feel free to contact me and I’ll be happy to e-mail a copy of the transcript.


More on the Jurisdiction of BC Courts and Out Of Province Car Crash Cases

February 13th, 2010

Further to my post yesterday discussing this topic another case was released today by the BC Supreme Court discussing the jurisdiction of the British Columbia Courts in relation to out of province motor vehicle collision tort claims.

In today’s case (Sooparayachetty v. Fox) 8 separate plaintiffs were apparently involved in an Alberta motor vehicel accident.  The Defendants were Alberta residents.  Some of the Plaintiffs were BC Residents and others were resident in the UK.  All of the Plaintiff’s brought lawsuits in both Alberta and BC with respect to their injuries.

The Defendant’s brought a motion to dismiss the claim arguing that the BC Court had no jurisdiction to preside over the lawsuit.  Master Scarth, sitting in the Vancouver Registry, agreed with the Defendants and dismissed the BC lawsuits.  In coming to this conclusion the Court reasoned as follows:

[13] The Court of Appeal has recently confirmed that the question of jurisdiction is to be determined exclusively by the substantive rules set out in the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (“CJPTA”):  Stanway v. Wyeth Pharmaceuticals Inc., 2009 BCCA 592, at para. 12.

[14] Section 3 of the CJPTA sets out the circumstances in which a court has territorial jurisdiction as follows:

A court has territorial competence in a proceeding that is brought against a person only if:

(a)        that person is the plaintiff in another proceeding in the court to which the proceeding in question is a counterclaim,

(b)        during the course of the proceeding that person submits to the court’s jurisdiction,

(c)        there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the proceeding,

(d)        that person is ordinarily resident in British Columbia at the time of the commencement of the proceeding, or

(e)        there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.

[15] Section 10 of the CJPTA sets out a list of circumstances that presumptively constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based for the purposes of s. 3(e).  A plaintiff who is unable to bring herself within the statutory presumptions may nevertheless prove other circumstances which constitute a real and substantial connection.

[16] The plaintiffs rely on s. 3(e) of the CJPTA – real and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based.  In this case, the presumptive circumstances in section 10 of the CJPTA do not apply.  It is therefore for the plaintiffs to establish that there is the real and substantial connection necessary to found jurisdiction…

[20] While “real and substantial connection” has not been defined, the cases provide some guidance as to what connections are insufficient to found jurisdiction.

[21] It is clear that the fact that a plaintiff is resident in British Columbia is insufficient:  Roed v. Scheffler et al, 2009 BCSC 731, at para. 35, citing Jordan v. Schatz, 2000 BCCA 409, and Williams v. TST Porter (c.o.b. 6422217 Canada Inc.) 2008 BCSC 1315.

[22] The fact that a plaintiff continues to suffer damages in British Columbia is insufficient to establish a real and substantial connection on its own: Roed, supra, at para. 43…

[26] Since the hearing of this application, our Court of Appeal has rejected the approach set out in Muscutt: see Stanway, supra, paras. 71 to 73.  Smith J.A., writing for the court, held that:

In my view, any reliance on the Muscutt factors as a guide to determining the question of jurisdiction came to an end in British Columbia with the coming into force of the CJPTA.

[27] Accordingly, the test remains real and substantial connection which appears to require a straightforward determination of whether, on the facts, a real and substantial connection has been established.

[28] Applying Roed, the first connection upon which the plaintiff relies to found jurisdiction – damages suffered within British Columbia – is too tenuous.  The question therefore becomes whether the fact that, since the Alberta accident, the plaintiff has been injured in a second accident which occurred in British Columbia can provide the basis for a finding of jurisdiction.  These circumstances were not addressed in Roed.

[29] The parties appear to agree that a global assessment of Ms. Sooparayachetty’s injuries will be required.  I take this to mean that they accept that, in order to assess damages for which the Alberta defendants may be liable, the court will be required to assess “global damages” as of the date of trial in respect of both accidents.  Circumstances relating to the second accident will therefore be considered in the assessment of damages for the first.

[30] Section 3(e) of the CJPTA provides that the court has territorial competence if there is a real and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based.  While facts relating to the second accident may have to be canvassed in order to assess Ms. Sooparyachetty’s damages arising from the first accident, the two claims remain separate.  In my view, the circumstances relating to the second accident are not facts upon which the proceedings against these defendants are based, and therefore cannot provide the real and substantial connection required by s. 3(e).  The need to call evidence relating to the second accident in the trial of the first, while an appropriate consideration on the question of forum conveniens (see, for example, Stewart v. Stewart, [1995] 6 W.W.R. 402; 5 B.C.L.R. (3d) 350 (S.C.)), does not confer jurisdiction on this court in relation to the first accident, and Ms. Sooparaychetty’s action arising from it.

[31] The other plaintiffs did not press their argument in relation to territorial competence over their actions.

[32] I find that, the plaintiffs having failed to establish that there is a real and substantial connection between British Columbia and the facts on which these proceedings are based, the court does not have territorial competence in these proceedings.

[33] Where the court determines that it lacks territorial competence, s. 6 of the CJPTA gives the court a residual discretion to hear the proceeding if it considers that:

(b) the commencement of the proceeding in a court outside British Columbia cannot reasonably be required.

[34] In Lailey et al v. International Student Volunteers, Inc., 2008 BCSC 1344, at para. 47, Grauer J. interpreted s. 6 with reference to the Uniform Law Conference comment on the identical section in the uniform act:

Residual discretion permits the court to act as a “forum of last resort” where there is no other forum in which the Plaintiff could reasonably seek relief.

[35] It is clear that here, as in Lailey, British Columbia does not stand out as a forum of last resort.  There are no limitation concerns as the plaintiffs have commenced actions in Alberta as well.

[36] I do not propose to address the issue of forum conveniens given my finding regarding territorial competence, and the fact that the notice of motion did not seek relief of that nature.

[37] The plaintiffs having failed to plead, or adduce in affidavit form, facts sufficient to establish jurisdiction, the application by the defendants is allowed and the plaintiffs’ actions are stayed pursuant to Rule 14(6).

One of the reasons why Plaintiffs try to bring their lawsuits in BC versus Alberta is the fact that British Columbia has greater rights in place for those injured at the hands of others.  However, cases such as this one demonstrate that it is no easy task to establish jurisdiciton of BC Courts to hear cases inovlving foreign motor vehicle collisions.