ICBC Law

The first published reasons for judgement addressing Trial Management Conference attendance requirements pursuant to Rule 12-2(4) were released this week on the BC Supreme Court website.

In this week’s case (Luis v. Haw) the Plaintiff was involved in 4 separate motor vehicle collisions.   A lawsuit was started following each collision and these were set for trial at the same time.  All the Defendants were apparently insured with ICBC.

As the Trial Management Conference neared ICBC made an application requesting that “(the personal) defendants are exempt from attending the trial management conference; secondly, that Mr. Kevin Munt, who appears to be an adjuster at the Insurance Corporation of British Columbia, “represent” the defendants at the trial management conference, and that Kevin Munt be allowed to attend the trial management conference by telephone“.

The Court largely dismissed the application and in doing so Mr. Justice Groves provided the following useful comments about the attendance requirement for Trial Management Conferences:

[19] The first concern raised by the letter and the requisition is the request that Kevin Munt “represent” the defendants at the trial management conference. That is the language in the requisition.

[20] If this is a request for Kevin Munt, who is an adjuster, to appear and that counsel not appear, that is completely inappropriate. Trial management conferences are significant and they are a significant change to the rules. They are mandatory and no trial certificate is issued without the parties attending. Though interlocutory, trial management conferences cannot be done by Masters, who do not hear trials. In my view, this suggests the drafters of the rules have placed significant emphasis on the requirement of trial management conferences.

[21] Noting that, I also then note that there are a number of matters that can be discussed at trial management conferences, as set out in subrule 12‑2(9), that require legal analysis and are clearly not within the knowledge of an adjuster representing an insurance company. These include:  (a) a plan as to how the trial was to be conducted; (c) amendments to pleadings within a fixed time; (d) admissions of fact at trial; (e) admission of documents at trial; (i) respecting experts’ reports and issues dealing with experts’ reports; (l) an adjournment of trial; and (m) directing the number of days reserved for trial to be changed.

[22] Without even considering the clear requirement that people are represented in court by counsel or by themselves, it is, from my reading of what is to transpire at a trial management conference, completely inappropriate to suggest that when a defendant has counsel, that someone else, in this case an adjuster, appear essentially as counsel at a trial management conference. It is impossible to imagine how the requirements of a trial management conference can be accomplished by an adjuster appearing on behalf of the defendants, as may be the request in this requisition.

[23] If, however, this is a request that the adjuster attend in substitution of the mandatory requirement of the defendants’ attendance, that is governed by Rule 12‑2(5).

[24] Rule 12‑2(5) clearly contemplates a circumstance, which may be present here, which is that an individual who has full authority to make decisions for a party in the action or an individual who has ready access to the person or group of persons who collectively have full authority to make decisions for a party to an action can attend in place of a party. It appears from the evidence before me that Kevin Munt may fall into this category. I will say, however, that it is not appropriate for an adjuster to attend on behalf of defendants, unless he or she has the real authority to make decisions for the defendants. It is not good enough to say, as has been said before me, “That exceeds my current authority”, “I have to go back to the committee and they won’t be meeting for another week”.

[25] That, in my view, defeats the whole purpose of Rule 12‑2(5). Ready access, the words in the rule, means really that the adjuster has to have either authority to make decisions or the ability, while the court stands down, to make a phone call to get the instructions he requires to properly speak for the defendant at the trial management conference.

[26] This lack of authority cannot be used as an excuse that prohibits the proper conduct of court actions at trial management conferences, when it is such a representation that allows the representative of the defendant to attend in the first place. Clearly the rule contemplates letting those who represent defendants, such as insurance adjusters, attend in the place of defendants. Insurers may wish to not require their defendants to personally attend. I do note however that there appears to be an increasingly internal requirement that defendants attend at trial, even when liability is not at issue. The adjuster who does attend must have the ability to deal with all matters or have ready, immediate access to those who can so instruct…

[33] In conclusion, if the suggestion in this requisition is that Kevin Munt attend on behalf of the defendants, he is not counsel, he cannot attend without counsel.

[34] If this is a request that Kevin Munt attend in the place of the defendants themselves, which is permissible under the trial management conference rule, then I am satisfied, if Kevin Munt has the real authority or has ready access, and by that, immediate access to those who have authority, then he can attend pursuant to Rule 12‑2(5).

This decision is also worth reviewing for Mr. Justice Groves discussion of Rule 23-5 and the circumstances when the Court should allow a party to attend a Court Proceeding via telephone.

As I’ve previoulsy discussed, a trial in the BC Supreme Court isn’t over until a formal Court Order is entered.  In limited circumstances a trial can be re-opened after the close of a case.  This can apply even after a Court gives judgement in a lawsuit as was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.

In today’s case (Graham v. Galaxie Signs Ltd.) The Plaintiff was an employee of the Defendant.  He claimed he was unlawfully dismissed from his employment and sued for damages.  His lawsuit appeared to succeed and in April, 2010 the BC Supreme Court gave judgement ordering that the Defendant pay the Plaintiff just over $44,000.

Prior to entering a Court order, the Defendant obtained further evidence and alleged that this new evidence “suggests that the plaintiff was less then forthcoming both at discovery and at trial about efforts he made to earn income during the relevant period of notice“.  The Defendant asked the Court to re-open the trial and to permit further evidence to be led.  Mr. Justice Groves agreed to take this unusual step and went further and ordered that the Plaintiff submit to another exaximation for discovery prior to having the trial resume.  In reaching this decision the Court provided the following useful reasons:

[6]             In Zhu v. Li, 2007 BCSC 1467, 2007 CarswellBC 2367 [Zhu], leave to appeal to British Columbia Court of Appeal dismissed, 2008 BCCA 239, 2008 CarswellBC 1153, this court stated at para. 20 that the following principles apply to an application to re-open a trial to adduce fresh evidence:

1.               Prior to the entry of the formal order, a trial judge has a wide discretion to re-open the trial to hear new evidence.

2.               This discretion should be exercised sparingly and with the greatest care so as to prevent fraud and abuse of the court’s process.

3.               The onus is on the applicant to show first that a miscarriage of justice would probably occur if the trial is not re-opened and second that the new evidence would probably change the result.

4.               The credibility of the proposed fresh evidence is a relevant consideration in deciding whether its admission would probably change the result.

5.               Although the question of whether the evidence could have been presented at trial by the exercise of due diligence is not necessarily determinative, it may be an important consideration in deciding whether a miscarriage of justice would probably occur if the trial is not re-opened.

[7]             In regards to the test set out in the Zhu case, it is of note here that the formal order has not yet been entered.

[8]             Additionally, the evidence appears credible.  There are before me emails as well as numerous documents that appear to be authored by the plaintiff during the notice period and related to the construction of the Cap-It sign.  All of these documents suggest that the plaintiff was working on the Cap-It sign.  Additionally, the affidavit of the plaintiff does not dispute the documentary evidence provided in the affidavit of John LeComte but states in his defence that he did not receive remuneration for the work that the documents confirm he did.

[9]             I find that the proposed fresh evidence is credible and tends to show that a miscarriage of justice would probably occur if the trial is not re-opened to deal with the issues raised by this evidence.

[10]         As suggested by Zhu, the defendant is obligated to exercise due diligence prior to trial to ensure that all issues are before the court and that all defences are raised so as to avoid unnecessary re-openings of trial.  With that said, I find that this defendant was diligent in their actions prior to trial in trying to uncover possible avenues of mitigation of this plaintiff.  In fact, the defendant has been so diligent that it has, in the past, received criticism from the court for some of their “diligence”.  That, coupled with what appears to be a prima facie denial at trial and at discovery by this plaintiff of work that the documents support he did, leads me to conclude that this defendant has exercised due diligence prior to and at trial in attempting to get all evidence in the area of mitigation before the court.

[11]         I direct that the trial of this matter be re-opened.  I further direct that the plaintiff be required to attend a further examination for discovery on the issue of mitigation during the relevant notice period as it relates to his relationships with Cap-It and Dickson’s Signs Ltd.  Additionally I direct that the defendant be permitted to call additional witnesses at trial on the issue of mitigation during the notice period as it relates to Cap-It and Dickson’s Signs Ltd.

As readers of this blog know Rule 68 is a ‘proportionality‘ based rule which was brought in a few years ago and was intended to be mandatory to certain claims worth $100,000 or less in the BC Supreme Court.

Rule 68 has not been particularly successful and many injury lawyers have avoided this rule whenever possible due to its perceived shortcomings.  This rule is going to be wiped from the books when the New BC Supreme Court Civil Rules take effect on July 1, 2010.  Rule 68 will be blended with the New Rule 15 which really combines the best of our current alternative litigation rules.

Despite Rule 68’s mandatory nature, Rule 68(7) permits parties to get out of Rule 68 if a Court “so orders“.

So what factors will a court considering in removing a case from the rule?  Reasons for judgement were published today on the BC Supreme Court website dealing with this issue for what I believe is the first time.

In today’s case (The Board of Trustees of School District No. 41 v. Crane Canada Co.) the Plaintiff sued for damages as a result of allegedly faulty bathroom fixtures.  The case was worth less than $100,000 but the Defendant’s wanted it removed from Rule 68.  They applied for an order under Rule 68(7) and were successful.  In removing the case from Rule 68 Mr. Justice Groves provided a list of non-exhaustive factors that could be considered on such applications, specifically the Court held as follows:

14] Unfortunately, the criteria to apply to an application to remove a case from Rule 68 has not been effectively resolved by the case law as of yet.

[15] On these facts, a number of considerations are appropriately applied to the consideration of whether or not a case should be removed from Rule 68.

[16] The following discussion is not meant to be exclusive.  It is somewhat factual driven, as must all the cases be.  It is not the final word on or is it intended to be a definitive word on when Rule 68 is not appropriate to litigation.

[17] Of note first is that Rule 68 has the $100,000 cap.  That does not mean all case under $100,000 are appropriately litigated under Rule 68.  There are many types of cases which fall within the $100,000 cap and based on a simple analysis of complexity it may be inappropriate to allow a case to continue under Rule 68.

[18] Here is an example.  A motor vehicle case which is under $100,000 which involves only an assessment of non-pecuniary damages is clearly a case in which Rule 68 should apply.  That, I am probably going out on a limb here to say, is the type of case that Rule 68 was clearly designed to manage.  A straightforward piece of litigation.

[19] However, sticking within the $100,000 criteria and the motor vehicle scenario, there are cases in which a claim for damages from a motor vehicle accident might be under $100,000 but it would not be appropriate for them to continue under Rule 68.  That would be a case perhaps where both liability and damages are in dispute and expert evidence is required on both those issues.  Additionally, the damages may be under $100,000 but may involve non-pecuniary damages, past wage loss, cost of future care and future lost opportunity.  Though all those heads of damages may still work out to a grand total of damages of less than $100,000, that type of case with a liability and damage component is clearly one which is in my view too complex and requiring too many potential streams of evidence and expert evidence for it to logically continue under a Rule 68 model.

[20] A second consideration that the courts should take in determining whether or not Rule 68 still should apply is whether or not the issues between the parties are of interest only to them or whether or not there is some legal or juristic significance to the litigation.  Clearly a dispute between two people about a contract, a property dispute between two neighbours, a simple motor vehicle case, are cases in which the issues between the parties are of interest only to those parties and likely do not have any long-term legal or juristic significance.  Case which have long term consequences to litigants or far reaching juristic significance may not.

[21] Thirdly, a consideration about removal should be whether or not moving the case to the regular stream would have the effect of putting an end to the litigation because of cost and not allowing the parties to actually pursue their litigation because Rule 68 is not open to them.

[22] With those non-exclusive approach, I now turn to an analysis of this case…

While Rule 68 is being abolished soon this case may still retain some value as a precedent under the New BC Supreme Court Civil Rules as Rule 15-1(6) the ‘fast track’ rule contains a similar subrule about removing a case from fast track litigation if a Court ‘so orders‘