ICBC Law

Further to my recent post on this topic, the evidence of biomechanical engineers is becoming more common in BC injury lawsuits.

Biomechanics is the study of forces applied to biological tissue and the injuries that can result from such forces.  In litigation it is easy to imagine the use such expert opinion evidence can be put to in proving causation of injuries.

Biomechanics is a relatively new scientific field.  Courts are generally conservative and can be slow to accept ‘novel‘ scientific evidence.  Despite judicial conservatism, biomechanical evidence does appear to be gaining acceptance by BC Courts as demonstrated in reasons for judgment released today.

In today’s case (More v. Bauer) the Plaintiff suffered a severe brain injury while playing hockey.  The Plaintiff claimed his helmet was negligently designed and sued the manufacturers of the helmet.  In support of his claim he called a biomechanical engineer who gave evidence in the field of biomechanics and the biomechanics of safety standards.

The Defendants did not challenge his qualifications to give this evidence, however, at the conclusion of the expert’s testimony the Defendants brought a motion to rule the testimony inadmissible arguing that the expert’s “underlying methodology and science are so flawed that the evidence (does not meet the legal test for admissibility)” and that the expert was “biased and purposely misled the court to assist the plaintiff“.

Mr. Justice Macaulay rejected the motion and concluded that the evidence was in fact admissible.  In doing so the Court recognized biomechanics as an “accepted area of scientific and academic expertise“.  The Court reasoned as follows:

[1] Dr. Stalnaker has a Ph.D. in theoretical and applied mechanics. Through much of his lengthy career, he has worked in the branch field of biomechanics. He also has practical experience in standards development for certification purposes although not specifically with regard to hockey helmet standards. Biomechanics involves the study of body kinematics ‑ the forces applied to biological tissue and the injuries that can result. The plaintiffs sought to qualify Dr. Stalnaker as an expert in biomechanics and the biomechanics of safety standards…

[12] Mohan sets out the current approach to the admissibility of expert evidence. Mr. Justice Sopinka outlines the following criteria for the admissibility of opinion evidence:

(1)      the evidence must be relevant to some issue in the case;

(2)      the evidence must be necessary to assist the trier of fact;

(3)      the evidence must not contravene an exclusionary rule; and

(4)      the witness must be a properly qualified expert.

[15] Assessing reliability includes determining whether the science or technique the witness uses to reach a conclusion is “novel”. Novel science will be subject to a stricter level of scrutiny than theories or techniques that are more generally accepted…

[23] To conclude, in assessing reliability when exercising my gatekeeper role, I must determine whether the approach the impugned expert takes is novel. If Dr. Stalnaker is relying on a novel theory or technique, I should exercise a higher level of scrutiny when examining reliability, in order to prevent the trial becoming “a medical or scientific convention with an exchange of highly speculative points of view” (R. v. J.E.T. at para. 77).

[24] In assessing reliability, I may find the Daubert factors helpful, but need not apply them too strictly. The purpose of applying the factors is to determine the degree of uncertainty present in the impugned expert’s analysis. The question is whether “the degree of uncertainty is unacceptable given the likely effect upon the trial process and the trier of fact. The level of acceptable uncertainty may depend upon the purpose for which the evidence is tendered and the use made of the evidence by other experts” (Wolfin at para. 20). Both the mode of trial and the importance of the evidence to making a final determination of the matter are factors to consider. If a theory or technique is implausible it will not be admitted.

[25] I remain persuaded that biomechanics is a recognized and accepted area of scientific and academic expertise. I am satisfied that Dr. Stalnaker is qualified to give opinion evidence in the area of biomechanics including in relation to safety standards. Opinion evidence is necessary to assist me in drawing appropriate inferences of fact.

As I’ve previously written, evidence given by a party at examination for discovery can be damaging.  The opposing side can read in portions of the transcript to the trial judge in an effort to advance their case or hurt yours.

A limit on this is relevance.  If the proposed discovery questions and answers are not relevant (even if no objection to relevance was made at the examination for discovery) a trial judge can keep the evidence from going in.  Reasons for judgement were released yesterday by the BC Supreme Court, Victoria Registry, dealing with this practice point.

In yesterday’s case (More v. Bauer) the Plaintiff suffered a severe brain injury while playing hockey.  The Plaintiff claimed his helmet was negligently designed and sued the manufacturers of the helmet.   At trial the Plaintiff’s lawyer attempted to read in portions of the examination for discovery evidence obtained in pre-trial investigations.  Mr. Justice Macaulay refused to let certain portions of the proposed evidence in on the basis that it was not relevant.  While the result reached in this case is very fact specific the Court provided the following useful summary of the law of relevance and discovery evidence:

[4] The subrule, as applicable here, reads:

(27)      (a)        If otherwise admissible, the evidence given on an examination for discovery by a party or by a person examined under Rule 27(4) to (12) may be given in evidence at trial, unless the court otherwise orders, but the evidence is admissible only against

(i)         the adverse party who was examined,

(ii)        the adverse party whose status as a party entitled the examining party to conduct the examination under Rule 27(4) to (12), or                      …

[5] A plain reading of Rule 40(27)(a) strongly suggests that the evidence an examining party seeks to read in must be admissible in the usual sense; that is, the evidence must be relevant and not subject to any exclusionary rule. Even if the evidence is admissible, the wording further suggests that the court has a residual discretion to exclude it. In my view, the latter requires me to consider whether admitting the evidence at this stage of the trial would result in unfairness…

[11] I must determine questions of relevance having regard to the issues framed in the pleadings. Throughout, I have applied the description of relevance that Cory J. set out in R. v. Arp, [1998] 3 S.C.R. 339, 166 D.L.R. (4th) 296 at para. 38:

38        … To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to “increase or diminish the probability of the existence of a fact in issue”. [Citation omitted.] As a consequence, there is no minimum probative value required for evidence to be relevant. [Citation omitted.]

As is well known, questions of relevance are largely determined by applying common sense and experience within the above framework.

[12] I also take into account the more recent statement of the Supreme Court of Canada in R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298 at para. 30:

[30]      Relevance can only be fully assessed in the context of the other evidence at trial. However, as a threshold for admissibility, the assessment of relevance is an ongoing and dynamic process that cannot wait for the conclusion of the trial for resolution. Depending on the stage of the trial, the “context” within which an item of evidence is assessed for relevance may well be embryonic. Often, for pragmatic reasons, relevance must be determined on the basis of the submissions of counsel. The reality that establishing threshold relevance cannot be an exacting standard is explained by Professors D. M. Paciocco and L. Stuesser in The Law of Evidence (4th ed. 2005), at p. 29, and, as the authors point out, is well captured in the following statement of Cory J. in R. v. Arp, [1998] 3 S.C.R. 339, at para. 38 …

As readers of this blog know the BC Supreme Court Rules are being overhauled effective July 1, 2010.   The Rule discussed in this post is reproduced in almost identical form and can be found at Rule 12-5(46) so this case ought to retain its value as a precedent moving forward.

As I’ve previously written, when a person sues for damages in the BC Supreme Court they give up certain privacy rights with respect to records (both theirs and those in the hands of third parties) to the extent necessary to ensure that relevant unprivileged documents are disclosed to have a fair trial.

In the context of personal injury litigation documents in the hands of third parties are often requested.  For example, where a Plaintiff is injured the Defendant often wishes to obtain the clinical records documenting the injuries.  Where a serious injury claim is made seeking damages for past and future wage loss often time employment records, tax records and pre-accident medical records demonstrating pre-existing disabilities are sought.

Once it’s determined that these ‘third party’ records are relevant how are they to be produced?  Often times if the records are clearly relevant the Plaintiff lawyer will obtain them and share a copy with the defence lawyer.  In cases where the parties can’t consent the party seeking the records can bring a court motion for production.

The BC Supreme Court has come up with two typical routes of disclosure; the “Jones” order and the “Halliday” order.  At the risk of over-simplification, a Jones order means ordering that the third party produce records relating to the Plaintiff directly to to the Defendant and a Halliday order means producing the records directly to the Plaintiff who then can vet clearly irrelevant entries before providing the defence lawyer with a copy.

With this introduction out of the way, reasons for judgement were released today by the BC Supreme Court providing perhaps the most thorough analysis of when each format should be used and what is required to trigger the protection of the “Halliday” format.

In today’s case (Gorse v. Straker) both parties sought various third party records relating to the litigants.  In considering the applications Mr. Justice Macaulay provided the following detailed and useful overview of this area of the law:

[6]             My general conclusions are as follows. It is necessary to start with a review of the pleadings to determine the matters in issue. Some applications fail at this preliminary point because it is obvious from the specific nature of the documents sought that the party seeking production is engaged in a fishing expedition. There is, at law, no obligation on any third party to produce irrelevant documents. See Dufault.

[7]             Assuming the application survives the initial review for relevancy, the court must then consider the evidence that the parties rely on. It is, at this point, that some of the potential inconsistency appears in the chambers decisions. I discuss some of the cases below and list others that I have reviewed.

[8]             In short, I conclude that a Halliday order is not a default order for medical or other records in which the subject of the record has an obvious privacy interest. The court should grant a Halliday order if satisfied, on the evidence, that there is a likelihood that a Jones order will also result in the inappropriate production and disclosure of irrelevant or privileged documents.

[9]             The problem that frequently presents is that one party seeks access to records of a non-party respecting the other party that are of a type in which it is reasonable to expect that some will be relevant and others irrelevant. A similar problem often arises respecting litigation privilege. It is often reasonable to assume that counsel for the party, who is the subject of the records, will have communicated with the non-party concerning the litigation. Such communications, if in existence, are likely subject to litigation privilege. It is arguable that, inHalliday, Lambert J.A. anticipated that the mechanism he described would operate in all such cases without requiring an evidentiary base. As I set out later, I do not accept that contention.

[10]         The threshold for making a Halliday rather than a Jones order is low. Nonetheless, some admissible evidence is necessary to meet it.

[11]         This leads to another issue that has attracted attention in the case law: whether the party who alleges an adverse impact on his or her privacy interest arising from the production of irrelevant, private information must personally provide evidence. After all, the affected party is ordinarily in the best position to explain how his or her privacy interest would be adversely impacted.

[12]         In my view, the party alleging the adverse impact should ordinarily swear an affidavit setting out, at least in general terms, the nature of the privacy interest but that is not an absolute requirement so long as there is other admissible evidence on the point. These are not final orders so affidavits sworn on information and belief are admissible.

[13]         Keeping in mind that the evidentiary threshold is relatively low, the evidence does not necessarily need to disclose all the details of the privacy interest but must be sufficient to reasonably identify the nature of the interest and why it appears to be unrelated to any material issue in the litigation…

[24]         When a Halliday order is made, so long as counsel fulfills his or her obligations, there is, apart from the minimal delay associated with the two-step process, no prejudice to the opposing party’s discovery rights. If the opposing party feels that relevant information may not have been disclosed, he or she can still apply to the court to make a determination, as with other disclosure concerns. Further, as suggested in Halliday, at 200, any abuse of the order by overextending claims of privilege or unduly restricting relevance can be dealt with in a costs order.

[25]         In my view, privacy considerations add to the justification for making Halliday orders for the production of medical and some other types of records. The reasoning in this regard may be followed through various decisions since Halliday, up to and including the Supreme Court decision in Keller v. Poulin (16 September 2009), Nanaimo S41497 (S.C.)…

[37]         In the result, I am satisfied that, when the record sought is likely to contain not only relevant, producible information but also irrelevant, private information, the order for production should be in Halliday format. This is very often the case with medical records and may also be applicable to MSP, disability, workers’ compensation, employment or educational records.

[38]         When the records at issue relate to medical or psychological assessment or treatment of the plaintiff after a motor vehicle accident, they may well include relevant, producible documents; irrelevant, private, non-producible documents; and documents properly subject to litigation privilege. Counsel for the plaintiff should take care to present evidence to demonstrate that there is, in fact, some irrelevant, private information or documents, properly subject to litigation privilege. It is not enough to identify the mere possibility because the court cannot properly draw an inference from a possibility.

[39]         It follows that I accept the contention of counsel for the defendants that the decision whether to make an order in Halliday format must be evidence based. In his written submissions, counsel asserts, relying on the Supreme Court decision in Grewal at para. 17, that:

A bare assertion of privacy or confidentiality over the records to be produced in the absence of any evidence regarding irrelevant or privileged information does not meet the requisite threshold for a Halliday type order.

The passage in Grewal summarizes authority for the proposition that a bare assertion of privacy or confidentiality, “in the absence of any evidence regarding irrelevant or privileged information,” is an insufficient basis for a Halliday order. In the same paragraph, the judge also referred to authority that an “expression of mere concern” that the records might contain irrelevant or privileged information is not sufficient.

[40]         I agree with those statements. It is not enough for a party or, as is often the case, a paralegal assisting the party’s lawyer to swear an affidavit raising a mere possibility of privileged or irrelevant, private information. In reaching this conclusion, I also considered and followed the reasoning in the following chambers decisions: Wieler v. Bercier, 2004 BCSC 752; Sullivan v. Lockhart, 2002 BCSC 1891; Bhandari v. Waddington, 2003 BCSC 498, 13 B.C.L.R. (4th) 373; and finally, Ross (Committee of) v. Lai, 2002 BCSC 1864.

[41]         The evidentiary burden is not an onerous one. The evidence necessary to support a conclusion that the particular records sought are irrelevant will vary according to the content of the pleadings and the nature of the record. In some cases, it may be possible to conclude, on an analysis of the pleadings, that they are irrelevant and, accordingly, not required to be produced at all. When it is apparent that some, but not necessarily all, of the records should be produced, there must be some evidence respecting the content of the records said to require the review by counsel contemplated by a Halliday order.

[42]         When the documents at issue are said to be private and irrelevant, it is usually the party who provides the evidence. For example, in Grewal, the plaintiff deposed that the consultation with her gynaecologist related to the delivery of her two children and that, in her view, the records were not relevant to the claims that she had advanced. If the question relates to litigation privilege, an appropriate agent or employee of the party’s lawyer should swear to the fact of the communications said to give rise to the privilege without disclosing actual content…

[88] I return to my suggestion that counsel should, wherever possible, work through the questions of non-party document production in a manner that recognizes and balances the often competing interests. The present applications would likely have been unnecessary if counsel had done that. In the circumstances, neither succeeded in their primary positions in any meaningful fashion. Both sides will bear their own costs as a result.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, deciding whether a case that was filed before Rule 68 applied could later be brought into the scope of the Rule.

In today’s case (Sahota v. Sandulo) the Plaintiff sued as a result of personal injuries from a BC Car Crash.  The case was filed in New Westminster in 2005, a time when Rule 68 did not apply to that Court Registry.  The matter was set for Jury Trial.  As trial neared the Plaintiff brought an application to move the case into Rule 68 which would have a number of implications including getting rid of the defendants right to have the matter heard by a Jury.

Mr. Justice Holmes dismissed the application holding that “where an action is commenced before the introduction of Rule 68, the Court has no jurisdiction to make an order bringing the action within the Rule over the objection of one of the parties” In reaching this conclusion he agreed with the reasoning of Mr. Justice Macaulay in a case called Servos v. ICBC where the Court held as follows:

9          The plaintiff argues that any existing proceeding, regardless of the stage it is at, can be transferred into the pilot project if the parties consent.  In written argument, he says that the rule is silent on whether the court may order the transfer in the absence of consent and that, accordingly, the court has “the discretion to make any order, which it considers the circumstances require, particularly where it tends to prevent the misuse of the process”.  He does not suggest that the defendant is misusing the process in withholding consent in this case.  The plaintiff relies on Bell v. Wood, [1927] 1 W.W.R. 580 (B.C.S.C.), considered in MacMillan Bloedel Ltd. v. Galiano Conservancy Assn., [1994] B.C.J. No. 2477 (C.A.), for the proposition set out above.

10        With respect, I do not agree that the principle set out applies here.  In Bell, the court addressed its discretion to make orders regarding procedure as the circumstances may require “when the Rules are silent on the subject and especially when it tends to prevent misuse of the process” at (para. 6).  The particular question was whether an affidavit could be filed on an application for trial by jury when the rules were silent on the question.  MacMillan Bloedel addressed the court’s jurisdiction to permit the continuation of an examination for discovery on the issue of whether special costs should be ordered against a plaintiff that applied to discontinue the action five weeks before trial.

11        I read those decisions as affirming the court’s inherent jurisdiction to craft procedural rules when necessary because the rules do not anticipate the particular problem, but not as anything more.  Once a statute covers a matter, it is well understood that inherent jurisdiction cannot be relied on except to fill a functional gap or vacuum:  Unity Insurance Brokers (Windsor) Ltd. v. Unity Realty & Insurance Inc., [2005] O.J. No. 1069, 251 D.L.R. (4th) 368 (Ont. Div. Ct.).  It represents the reserve or fund of powers which the court may draw on as necessary when it is just or equitable to do so, but it is not unlimited and cannot be exercised contrary to any statutory provision. See Glover v. Minister of National Revenue (1980), 29 O.R. (2d) 392, 113 D.L.R. (3d) 161 (Ont. C.A.), aff’d [1981] 2 S.C.R. 561.

12        There is no gap in the present circumstances.  Rule 68 expressly requires the consent of the defendant.  It follows that my inherent jurisdiction does not extend to overriding the defendant’s lack of consent and directing the transfer of the proceeding into the pilot project.

This case will be a relatively short lived precedent, however, as Rule 68 is coming to an end as of July 1, 2010.  (Click here to read my previous post discussing Rule 68’s replacement with the New BC Supreme Court Civil Rule 15).