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 ‘Rule 12’

Potentially “Harsh” Result No Reason To Strike Jury in Injury Claim

November 14th, 2017

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, dismissing a plaintiff request to strike a jury notice in an ICBC injury claim.

In the recent case (Froese v. Wilson) the 17 year old Plaintiff who “became severely intoxicated at a house party” left riding in the cargo box of a pickup truck which then moved and “caused him to fall out of the truck.”.

The Plaintiff sued for damages and the matter was set down for a 20 day trial with the Defendant electing trial by jury.  The Plaintiff objected noting that a total of 19 expert witnesses would likely testify, the matter was too complex for a jury and the jury “may take a harsher view of the plaintiff’s conduct than would a judge in assessing liability“.  The court noted that while this may be true it is no reason to strip a party’s right to trial by jury.  In reaching this conclusion Mr. Justice Smith provided the following reasons:

[17]         This trial is set for 20 days—a length no longer unusual for a jury trial. Although there is a multiplicity of expert evidence, it comes from experts in fields that are commonly at issue in personal injury cases and there appears to be a great deal of common ground as to the nature of the injuries suffered by the plaintiff in the motor vehicle accident. As said above, the main areas of disagreement relate to the long-term impact of those injuries and the cause of the plaintiff’s ongoing symptoms. I am not persuaded that those areas of disagreement are so complex that they cannot be considered by a properly instructed jury on the basis of properly presented and explained expert evidence.

[18]         Counsel for the plaintiff also alluded to a concern that a jury may take a harsher view of the plaintiff’s conduct than would a judge in assessing liability. That is entirely speculative and I presume jurors will be attentive to whatever instructions the trial judge gives them on how they are to go about assessing the relative blameworthiness of both parties. However, the possibility that a jury verdict may reflect community attitudes that differ from those of judges is one of the frequent justifications for retaining the jury system.

[19]         Counsel also argues that the outcome of this trial may determine the course of the rest of the plaintiff’s life and subjecting him to the uncertainties inherent in a jury trial is inconsistent with the object of a just determination on the merits set out in R. 1-3.

[20]         Although I have a certain sympathy with the plaintiff’s concern about the risks and uncertainties in a jury trial, the fact remains that R. 12-6 continues to give either party the right to unilaterally select trial by jury. Unless the party who does not want a jury trial can meet the onus of showing that it is not appropriate in a particular case and the presumptive right to a jury trial should be denied, a jury trial and verdict must be considered to come within the “just determination” envisioned by R. 1-3.

[21]         The plaintiff has failed to meet the onus in this case and the application to strike the jury notice must be dismissed.


Lost Trial Date Due To Lack of Trial Briefs Not Saved By Late Filing

February 3rd, 2017

Reasons for judgement were released today demonstrating that filing a late trial brief is no remedy once a trial date is lost due to lack of compliance with the Rules of Court.

In today’s case (Carleton v. North Island Brewing Corporation) the parties were scheduled for trial and apparently by consent agreed to file trial briefs “outside the times prescribed by the Rules.“.

The Court did not grant the request for lack of sufficient evidence supporting it and struck the trial date.  The parties hoped late briefs would salvage the trial date but the Court declined.  In doing so Mr. Justice Smith provided the following reasons:

[2]            Rule 12-2(1) requires a trial management conference to be held at least 28 days before trial. The plaintiff must file a trial brief at least 28 days before the date of the trial management conference (R. 12-2(2)) and other parties must file their trial briefs at least 21 days before the trial management conference (R. 12-2(3.1)). If no trial briefs are filed as required, the matter is removed from the trial list (Rule 12-2 (3.3).

[3]            These Rules are intended in part to assist the court in determining what cases are ready for trial, which in turn assists the court in the allocation of scarce judicial resources. They are not Rules that counsel and parties may opt out of at their convenience. At the very least, any application to extend the time for filing of a trial brief must be accompanied by a reasonable explanation as to why it was not filed in time as well as a proposed new date by which it will be filed.

[4]            In this case, neither party filed a trial brief and counsel simply submitted a draft consent order that “trial briefs of the plaintiff and defendant be filed outside the times prescribed” by the Rules. There was no explanation of why no one had filed a trial brief and no suggestion of when briefs would be filed. The absence of that material was in itself sufficient grounds to deny the application, but a subsequent review of the court record indicated that the matter had already been struck from the trial list.

[5]            The trial management conference had been set for February 16, 2017 and the requisition seeking a consent order for late filing was not submitted until January 30. In other words, the parties were seeking to file trial briefs after the date on which the Rules required the case to be struck from the trial list.

[6]            Rule 12-2 (3.3) reads

(3.3) Unless the court otherwise orders, a trial must be removed from the trial list if no trial brief has been filed under subrule (3) or (3.1).

[7]            Therefore, where a matter is struck from the trial list pursuant to that Rule, it cannot be restored simply by late filing of trial briefs, even if the court permits late filing. At least one party must make a proper application to restore the trial to the list. The question of late filing of trial briefs will only become relevant if that application is successful. Whether such an application is successful will depend on the circumstances, but I expect that in most cases applicants will be required to show both a reasonable excuse for the failure to file trial briefs and some serious prejudice if the trial does not go ahead.


Court Critical of “Uninformative” Trial Briefs

December 16th, 2016

Reasons for judgment were published today by the BC Supreme Court, Nanaimo Registry, with critical comments about “uninformative” trial briefs.

In today’s case (Kirk v. Nanaimo Literacy Association) the parties wishes to dispense with an otherwise mandatory trial management conference and asked the court to waive the hearing.  In refusing to do so the Court was critical of the trial briefs filed and provided the following comments:

[6]             Both parties state in their trial briefs that they expect the trial to be completed within the scheduled time. Yet I don’t know on what basis that assertion could be made because the total time estimates for witnesses and submissions in the two trial briefs exceeds the time set for trial by almost two days. Again, perhaps the trial was rescheduled for more days, but I have not been given any trial briefs reflecting that.

[7]             Further, the trial briefs do not indicate that counsel have fully considered all matters that might usefully be explored at a TMC. For example, the plaintiff’s trial brief, after listing the witnesses to be called, states:

The filing party may call further witnesses to address any outstanding documentary hearsay concerns which the parties are unable to resolve prior to trial.

[8]             If there are unresolved issues about admissibility of documents, particularly if it is going to affect the number of witnesses to be called, that is an issue to be explored at the TMC and the parties are not ready for trial within the meaning of R. 12-2(3.6).

[9]             Under the category of “Admissions”, the plaintiff’s brief says the plaintiff will admit that:

A document which conforms to the requirements set out in the Evidence Act, RSBC 1996, C. 124, s.42 is admissible as prima facie proof of any fact otherwise provable through direct oral evidence.

[11]         Thus, the purported “admission” by the plaintiff amounts to no more than a statement that the law of British Columbia applies to this case. That does not assist the Court in determining what facts will or will not be at issue in trial. I assume there are documents that qualify as business records under the Act, that certain facts stated in them are relevant to the issues in this case and the plaintiff is admitting or not disputing those facts. If that is the case, a party who wishes to be excused from attending a TMC must set out what those admitted facts are.

[12]         The defendant’s trial brief is equally uninformative on this issue. It simply says that the facts the defendant will admit will be “determined prior to trial date”.

[13]         Clearly, as of the date they wrote their trial briefs, counsel had not clearly turned their minds to or discussed the question of what facts could be admitted. Counsel who do not make that effort cannot expect to be excused from attending a TMC.

[14]         Under the heading of “Authorities”, both parties simply state they do not expect a joint brief of authorities at trial. That is not sufficient. The trial brief asks counsel to refer to authorities in order to identify the legal issues that will be argued at trial and in order to satisfy the Court that the parties and counsel have considered the law as it may affect their position at trial. That does not mean counsel need to cite every case they may wish to refer to at trial, but by the time they start preparing trial briefs, counsel should have identified the most important ones.

[15]         This is a wrongful dismissal case, so counsel should by now be familiar with the leading cases in that area as well as any others that are particularly relevant, such as by virtue of comparable facts. Those should have been referred to in the trial brief.

[16]         In short, the trial briefs submitted are largely pro-forma documents that do not give the Court confidence that all issues have been addressed or that all potentially useful discussions between counsel have taken place. The application to dispense with the TMC is therefore dismissed.


Complex Wage Loss Claim Fuels Successful Jury Strike Application

December 7th, 2016

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, granting a Plaintiff’s jury strike application.

In today’s case (van Driesum v. Young) the Plaintiff was involved in a 2011 collision and sued for damages.  The trial was scheduled for 18 days before a jury at the Defendants election.  The Plaintiff succeeded in striking the jury from the case largely on the basis that his wage loss claim was complex.  In granting the application Mr. Justice Macintosh provided the following reasons:

[6]             The overall question is trial fairness, weighing the Defendant’s presumptive right to a jury against the risk of unfairness to the Plaintiff by having a jury attempt to decide facts and answer questions which are too intricate or complex.  My conclusion is that this case should not proceed with a jury.

[7]             The motor vehicle accident giving rise to the claim occurred on February 23, 2011.  That year also serves as the approximate dividing line between what I will characterize as two separate careers for the Plaintiff.  The methods for determining income loss and lost-earning capacity are complicated within each of his two careers.  In what I am viewing as the Plaintiff’s post‑accident career, or second career, determining income loss and lost-earning capacity are, in my view, particularly complex.

[8]             Before the accident, the Plaintiff practised law for 20 years.  For the last 17 of those years, he was a partner in a Victoria law firm.  During at least part of that time, he practised law through the business model of a personal law corporation.  Money he received from the firm went into his law corporation.  He did not take all that money out, at least not regularly.  Also, he split income with his wife in reliance on the applicable tax laws.  Accordingly, his income tax returns do not tell the full story of his pre‑accident earnings.  They need to be interpreted together with his personal law corporation’s annual financial statements, and the particulars of his income splitting with his wife.

[9]             In the result, determining the Plaintiff’s pre‑accident earning history will not be a straightforward exercise.  The complexity of that exercise, however, pales when it is compared with determining the Plaintiff’s earnings, lost earnings, and diminished earning capacity post-accident.

[10]         The Plaintiff has maintained, at different times, at least three personal companies:  through one, after his accident, he became the president of a mining company; through another, also after the accident, he consulted on WorkSafe BC claims; the other was his pre‑existing personal law corporation, which remained in place until December 31, 2014, to receive the Plaintiff’s declining earnings from his residual practise of law.  That included some post‑accident legal work by the Plaintiff, as well as some pre‑accident legal work which gave rise to post‑accident remuneration.

[11]         It will, in my view, be extremely difficult for the trier of fact to sort out both the Plaintiff’s true earnings in the post‑accident period, and the extent to which the accident impaired his earning capacity.

[12]         Furthermore, the Plaintiff’s post‑accident earnings history, and evidence of earning capacity, is over-layered with a dispute the Plaintiff had with a post‑accident business colleague, who was a former client from the Plaintiff’s law practice.  Plaintiff’s counsel characterized the evidence of that dispute as amounting to a trial within a trial in this proceeding, and that is not an unreasonable analogy.

[13]         The difficulties for a jury in this case would be increased by the difficulties a judge would have in properly charging the jury in matters of causation and the quantification of damages.

[14]         The brief summary above, of the complexities in determining both causation and damages, and in the judge charging the jury, probably would have caused me to strike the jury even if there were no other relevant facts.  When I add the other complexities of the case, which are associated with the accident itself, and the related medical evidence, the complexity is only increased.

[15]         I will preface this next part of the analysis by saying that what I call the accident evidence and medical evidence, viewed in isolation, would probably not have caused me to strike the jury.  That evidence becomes relevant on this application, however, when it is added to the evidence associated with determining the past and future income loss, and diminished earning capacity, discussed earlier in these reasons.

[16]         Liability is in issue.  All the elements of the damages claimed are also in issue.  The Defendant, through his pleadings and his expert witnesses, disputes diagnosis, causation, mitigation, prognosis and the Plaintiff’s working capacity.  It is probably the case, as well, that at least some clinical records will have to become part of the evidentiary record.

[17]         The Plaintiff plans to call nine expert witnesses in at least seven disciplines, and the Defendant plans to call four expert witnesses and tender eight expert reports.  I further note that the Plaintiff intends to object to all or part of three of the Defendant’s expert reports, and the Defendant intends to object to all or part of four of the Plaintiff’s expert reports.

[18]         The law is clear in saying that the judge’s discretion on this application must be exercised having primary regard to his or her assessment of the relevant factors present in the particular application:  see Rados v. Pannu, 2015 BCCA 459, at paras. 30‑32 and Such v. Dominion Stores Ltd., [1961] O.R. 190 (Ont. C.A.).  In other words, the analysis, not surprisingly, is driven by the facts present in the application at bar.

[19]         What is appropriate for a jury to try has to do not only with the jury’s capacity to understand the evidence as it is presented and rebutted, but also to retain over several weeks what they have heard and then analyse it in the context of the questions they are required to answer.  (See Wipfli v. Britten, [1981] B.C.J. No. 1706 (F.C.) at paras. 30 and 31.)

[20]         When the facts in this application are viewed through the legal prism of the cases cited above, I find that the Plaintiff has established the three grounds he relies upon, noted above in paragraph 5.  As stated above in paragraph 6, I conclude that I should exercise my discretion to strike the jury.


Retrial Ordered After “Inconsistent” $765 Jury Award in Personal Injury Claim

November 27th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a retrial after a jury awarded special damages but nothing for non-pecuniary loss in a personal injury lawsuit.

In today’s case (Harder v. Poettcker) the Plaintiff proceeded to jury trial after alleging injuries in a collision.  The jury found the Plaintiff 85% at fault for the crash and awarded a total $5,100 in damages, which were all based on out of pocket expenses and awarded nothing for non pecuniary damages.  After applying the split of fault this left an award of $765.

The presiding judge found a new trial was necessary as it was inconsistent to award money for special damages yet nothing for non-pecuniary loss for the injuries underlying the need for those damages.  In reaching this conclusion Mr. Justice Sigurdson provided the following reasons:

17]         Notwithstanding the importance of attempting to enforce a jury’s verdict and the fact that even apart from the 85% contributory negligence award against the plaintiff, the award was at best either very modest or nil, I am driven to conclude that to award nothing for non-pecuniary damages but award $1,200 for special damages is an inconsistent verdict.

[18]         Although a possible rationalization of the award is that the jury intended to award the plaintiff say $400 for non-pecuniary damages but rounded it down in accordance with my instructions to zero, I reject that. I find the jury intended to award nothing for non-pecuniary damages. Even if the jury intended to award only a nominal amount for non-pecuniary damages, I think that would still create an inconsistent verdict: see Le v. Luz, 2003 BCCA 640.

[19]         I also reject the submission that the jury verdict could properly be interpreted to mean that they intended to award something for non-pecuniary damages under a pecuniary heading.

[20]         Although the defendant argues forcefully that there was coherence and consistency in the jury verdict, I respectfully disagree. I find that the jury award, although small from the plaintiff’s perspective, is inconsistent and judgment cannot be entered on the defendant’s motion.

[21]         The question then arises whether I can and should sever the issues of liability and damages and enter judgment on liability for the plaintiff including the contributory negligence finding and direct a retrial only on damages, or whether I should order a retrial of the entire case.

[22]         I have concluded that I am bound by the considered decision of my brother Weatherill J. in Kalsi. Although severance may be ordered in many cases before trial, this is not an appropriate case to have issues that are largely dependent on credibility decided by different triers of fact.

[23]         Given that there must be a retrial, how should that take place? A further trial by a new jury would be months, or a year or more, ahead. The mode of trial by jury was at the plaintiff’s request but now he wants the retrial by judge alone. The plaintiff now consents to and requests a retrial being conducted before me.

[24]         I think for a number of reasons that the retrial should be before me. I heard all of the evidence and the submissions of counsel. Given the fact that it would be a lengthy time until the matter is retried before a jury, and given the age of the plaintiff and the question of cost to the parties, I think it is appropriate that I conduct a retrial based on the evidence I have heard and I so order. Accordingly I exercise my discretion under the governing rule that the retrial take place before me without a jury.

[25]         I have heard the submissions of counsel and a recording of those submissions is available to me to refresh my memory. Counsel may make further submissions in writing on liability and damages provided they do not repeat what I have already heard in the submissions to the jury. I ask that the plaintiff file his argument within three weeks and the defendant his argument within three weeks following, with the plaintiff having a right of reply within a week. I will then hand down a written decision.


BC Court of Appeal – Jury Trial OK in Case With 40 Expert Reports

November 10th, 2015

Reasons for judgement were released today by the BC Court of Appeal finding a personal injury lawsuit with 40 expert reports totaling over 700 pages was not too complex for a jury to determine.

In today’s case (Rados v. Pannu) the Plaintiff alleged serious injuries as a result of a motor vehicle collision including “a traumatic brain injury; a vestibular injury that has impaired the appellant’s balance and induced bouts of nausea, dizziness and vomiting; various musculoligamentous and other physical injuries; and, a major depressive disorder”.

The Defendants elected a jury trial and the Plaintiff objected arguing the case was ‘too complex’ and pointed to the sheer volume of competing expert evidence.  The Plaintiff pointed to many cases where discretion was exercised to strike a jury in similar cases.  In finding that judicial discretion does allow for competing results and more than ” adding up the number of experts and medical issues or the number of pages of documents or the length of trial” is needed the Court provided the following reasons:

[22]         As I turn to consider the appellant’s argument, it is useful to remember that a decision whether to strike a jury notice is not only discretionary, but also engages important issues of trial management. The determination of such issues is properly a matter for the trial court. Furthermore, the onus is on the applicant to displace the presumptive right to a jury: MacPherson v. Czaban, 2002 BCCA 518 at para. 17, leave to appeal ref’d [2002] S.C.C.A. No. 480. Accordingly and appropriately, decisions of this kind attract considerable deference from this Court. These decisions turn critically on an assessment by the trial court of multiple factors bearing ultimately on the question whether a matter can be conveniently tried with the jury or should be heard without one.

[23]         The appellant points to numerous cases in which jury notices have been struck which share similarities with this case in terms of the number of medical issues, the number of experts, the nature of the issues and the length of trial. He suggests the result in this case cannot be reconciled with the results in those cases. Thus, he argues that the bar for striking a jury notice has been raised to a level beyond anything that can be accounted for by the inevitable variability of outcome inherent in the exercise of discretion.

[24]         I accept that, as was pointed out in Cochrane v. Insurance Corp. of British Columbia, 2005 BCCA 399 at para. 28:

It is unassailable that decisions under Rule 39(27) are driven by the particular facts of the case.  Even so, the facts in prior decisions are helpful in determining whether the discretion to grant or refuse an order to strike a jury notice has been exercised judicially.

[25]         It follows from this that, even allowing for the inevitable variation in outcomes arising from exercises of discretion, one would expect decisions with broadly similar facts to produce broadly predictable outcomes if discretion is being exercised judicially…

[30]         In my opinion, while other similar cases can assist in assessing whether discretion has been exercised judicially, broad and general similarities may mask material differences. The analysis does not begin and end with adding up the number of experts and medical issues or the number of pages of documents or the length of trial. Those factors may be indicative of whether the trial may be conveniently heard with a jury, but they are not necessarily the last word. They were not here because the judge delved deeply into an analysis of the factual circumstances engaged in the trial and exercised his discretion based on his assessment of those circumstances.

[31]         The appellant is not able to point to any relevant factors the judge failed to take into consideration in exercising his discretion, nor can he point to any irrelevant factors he did consider. He is not able to point to any consideration receiving too much or too little weight. In short, the appellant was not able to direct us to any specific error in the exercise of discretion that would warrant this Court interfering with the order.

[32]         The appellant suggested that if this order is not set aside, this Court would be endorsing a much higher bar for striking a jury notice than has previously been the case in this province. I do not accept that submission. In my view, this case turned on its specific and particular factual circumstances as they stood at the time of the application and as they were analyzed by the judge.  The judge then properly applied the relevant considerations to the exercise of his discretion. The case turned on its facts and does not represent a departure of principle or a resetting of the height of a bar.

[33]         Finally, it should be pointed out, as the chambers judge did, that when this matter comes on for trial, the trial judge “may order the trial to proceed without a jury if the interests of justice then require the making of such an order”. It may be that the case that goes to trial may be quite different to what now appears to be the case. As noted by Seaton J.A. in Ball v. Novlesky, [1981] B.C.J. No. 677 (C.A.) at para. 16, we and the chambers judge can examine the issue only on the basis of the record before us. The case at trial may be different and the trial judge would be free to deal with the issue then, if necessary.

[34]         In my opinion, the submissions of the appellant do not rise above an attempt to reargue the case that was rejected by the chambers judge. I do not think that the appellant has identified any error in principle in the exercise of the chambers judge’s discretion. Accordingly, I would dismiss the appeal.


Corporate Plaintiff Not Allowed To Read In Discovery Evidence of Former Employee

June 29th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing limits on the use of discovery evidence at trial.

In today’s case (No Limits Sportswear Inc v. 0912139 BC Ltd) the Plaintiff sought to read in evidence at trial of their former employee who was questioned at discovery as a representative of the Plaintiff.  The Plaintiff argued that Rule 12-5(47) allowed such a result.  Madam Justice Griffin disagreed and in preventing the Plaintiff from using the discovery evidence of their former employee the Court noted as follows:

[14]         The interpretation of the Rules suggested by the plaintiffs regarding the use at trial of the examination for discovery of a former employee is contrary to the underlying purposes of the procedure.

[15]         The utility of an examination for discovery would be undermined if self-serving parts of evidence of the former employee given on discovery could be read-in at trial by the party who used to employ the witness. Such a result would seriously inhibit the scope of questioning by the examining party, limiting the fact-finding nature of the discovery and its usefulness as a tool to avoid surprise at trial and to encourage settlement.

[16]         The former employer does not need to use the examination for discovery transcript in order to call helpful evidence from its former employee at trial. The former employer always has a choice of calling him as a witness at trial.

[17]         Contrary to the submissions of the plaintiffs, the fact that subrules 12-5(46), (47) and (48) are separate subrules does not lead to the conclusion that each subrule stands alone and that any party can tender the examination for discovery evidence of a former employee.

[18]         Rule 12-5(46) states that evidence given on examination for discovery may be tendered by “any party adverse in interest”. Rule 12-5(47) does not say who it may be tendered by, but instead, deals with the requirement of giving notice of the intention to tender the evidence if it is from a former employee. Subrule (47) does not say the evidence can be tendered by any party and does not supersede the requirement in R. 12-5(46) that it be tendered by a party adverse in interest.

[19]         Also relevant is the restriction on the use of the evidence as set out in R. 12‑5(46)(b). This subrule provides that the evidence is admissible only “against” the adverse party whose status as a party entitled the examining party to conduct the examination. In other words, the evidence of the former employee, if read-in at trial, is only admissible against his former employer, the plaintiff company. It cannot be read-in by one group of defendants as evidence to be used against the other defendant. The plaintiffs’ submission that the plaintiffs should be entitled to read-in portions of the evidence to be used “at large” in the trial would be contrary to these restrictions.

[20]         The purposes of subrules 12-5(47) and (48) are to deal with the situation where the former employee who was examined for discovery is hostile to his former employer, and gave evidence on discovery which the former employer does not accept and wishes to challenge. Subrule (47) requires that the party tendering the former employee’s evidence, which again by subrule (46) must be a party adverse in interest to the party who formerly employed the witness, must give 14 days’ notice before trial of the intention to tender the evidence. This then gives the party who formerly employed the witness, and any other party, the opportunity to require the witness to be produced for cross-examination at trial pursuant to subrule (48).

[21]         To deal with the possibility that the former employee may have loyalties to none of the parties at trial, subrule (48) allows all parties to cross-examine the witness if his presence is required at trial.

[22]         I find support in this interpretation in the commentary to R. 12-5(47) found in McLachlin & Taylor, British Columbia Practice, vol. 2, 3d ed. (Markham, Ont: LexisNexis, 2006) at 12-51 as follows:

Under SCR 1961, M.R. 370rr, only the examination of a person who was an officer or servant of the corporation at the time of trial could be used as evidence. This was subject to SCR 1961, M.R. 370s which effectively excluded the use of discovery of a former officer or servant who had been dismissed from employment except where such dismissal occurred after service of the appointment for examination for discovery, in which case his examination could be used with leave of the court: Seymour v. Fleetwood Logging Co., [1963] B.C.J. No. 64, 45 W.W.R. 511 (S.C.). The apparent reason for these rules was the prospect of the unfair use against a corporation of the discovery of a person no longer in its employ and possibly hostile to it.

These restrictions on the use of examination for discovery of former director, officer, employee, agent or external auditor of a party was abolished by the enactment of SCR 1976, Rule 40(24) (which became SCR 1990, Rule 40(27)): Robitaille v. Vancouver Hockey Club Ltd. (No. 2), [1979] B.C.J. No. 526, 13 B.C.L.R. 309 (S.C.), affd [1981] B.C.J. No. 555, 30 B.C.L.R. 286 (C.A.). Because a party has no choice in the selection of who is examined on his behalf under Rule 7-2(5), it is arguably unfair to burden him with such a person’s answers: see Rule 7-2(5) and comments thereunder.

Accordingly, SCR 1976, Rule 40(27) (which became SCR 1990, Rule 40(24)) was amended in 1985 to provide that the examination for discovery of a former director, officer or servant may be given at trial only if notice of the intention to do so is delivered to all parties at least 14 days before the trial. Any party may then require that the person examined attend at the trial and, if any part of the examination for discovery is given in evidence, all parties may then cross-examine the former director, officer or servant.

[23]         I conclude that the plaintiffs are not entitled to read-in passages of the examination for discovery of its former employee, Mr. Darren Hawrish.


ICBC Rate Hike Letter to PolicyHolders Does Not Taint Injury Claim Jury Pool

July 14th, 2014

Interesting reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing whether ICBC should lose the right to trial by jury due to a letter they sent their policy holders blaming increased insurance rates on ‘rising injury costs’.

In today’s case (Yates v. Lee) the Plaintiff was injured in a 1998 collision.   He was 6 years old at the time.  His matter was set for trial in February, 2015 and ICBC, the insurer for the Defendant, elected to proceed via jury trial.  The Plaintiff argued that the Court should use its inherent jurisdiction to strip ICBC of their right to jury trial suggesting that the letter ICBC sent their policy holders “has tainted the jury pool by creating a real potential for bias against plaintiffs among jurors who are policy holders“.  Mr. Justice Pearlman disagreed finding there was no reason for the Court to use its inherent jurisdiction and the trial judge could deal with any suggestion of bias.  In reaching this decision the Court provided the following reasons:

[12]         Shortly after November 1, 2013, ICBC began including in the insurance renewal notices sent to each of its policy holders the following statement:

          ICBC Rate Changes:

Rising injury costs mean we’re asking the British Columbia Utilities Commission (BCUC) for 4.9% increase to Basic insurance rates. The BCUC has approved an interim rate increase of 4.9% effective November 1, 2013 and will make a final decision after a public hearing process. If a final approved rate differs from the interim rate, your Basic premiums will be adjusted for the difference, subject to the BCUC’s final Order. We are also able to reduce our optional rates to lessen the impact on you.

[13]         The renewal reminder also included a statement of the insured’s estimated total premium for the year…

[53]         Here, at best, the material filed by the plaintiff goes no further than establishing a possibility for bias on the part of some prospective jurors who are  ICBC policyholders. In addition to relying on the renewal notice itself, the plaintiff referred to Norsworthy v. Green, (30 May 2009), Victoria Registry 06 2644 (B.C.S.C.).  There, Macaulay J. commented, obiter, that every potential juror knows that ICBC funds damages awards, and that this creates the risk that prospective jurors may believe the higher an award in a given case, the greater the likelihood that their own insurance premiums may rise. Macaulay J. observed that such thinking is improper, and would, if disclosed, demonstrate bias. The plaintiff also filed newspaper and Internet articles referring to Shariatamadari v. Ahmadi (4 May 2009), Vancouver Registry S061583 (B.C.S.C.), where the trial judge’s investigation into complaints of juror misconduct revealed that one of the jurors, during deliberations, had expressed concern that a high damage award would drive up their own auto insurance rates. This material falls well short of establishing that a real potential exists in the circumstances of this case that some jurors may be incapable of setting aside any prejudice they may have as a result of the renewal notice, and deciding this case impartially, after receiving appropriate instructions from the trial judge.

[54]         Even if this court had the inherent jurisdiction to strike a jury notice for juror partiality, I would decline to exercise that jurisdiction in the circumstances of this case for the following reasons:

(a) the court is asked to find that ICBC’s communication to its policy holders through the renewal notices constitutes prejudicial pre-trial misconduct in the absence of an adequate evidentiary foundation;

(b) to grant the relief sought would skirt the challenge for cause process by having the court make a determination of juror partiality without requiring the plaintiff to satisfy both branches of the well-established test for juror partiality, and without any inquiry to determine whether particular members of the juror pool selected for this case could not serve impartially; and

(c) another decision-maker, the trial judge, has all the powers necessary to ensure trial fairness…

[59]         Chester provides further support for my conclusion that the plaintiff’s assertion of juror partiality is a matter which, if pursued, must be raised before the trial judge for determination through the challenge for cause process, rather than before a chambers judge who has neither the inherent jurisdiction to grant the relief sought, nor an adequate evidentiary foundation on which to do so.


The “Acceptable Practice” For Taking Pre-Trial Witness Statements

June 25th, 2014

Courts in British Columbia frown on the practice of having witnesses commit their evidence in affidavit form before trial.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing this practice and explaining the Courts concerns with it.

In this week’s case (Staaf v. ICBC) three witnesses testified on behalf of ICBC. Prior to doing so all provided sworn statements authenticating various business records.  The Plaintiff argued that less weight should be given to these witnesses evidence because of this practice.

The Court agreed that the practice is to be discouraged, however went on to note that in the circumstances of this case no lesser weight should be attached to these witnesses.  In discouraging the practice of having witnesses swear pre-trial affidavits Mr. Justice Burnyeat provided the following comments:

[6]             The question which arises is the propriety of recording statements of witnesses in sworn form before trial.  Statements in sworn form should not be taken.  The consciences of witnesses at a trial are fettered by committing them in advance to a story which is favourable to the client of the lawyer preparing the affidavit.  To obtain a sworn affidavit or a statutory declaration not only influences the evidence that a witness may give under oath at a trial but also compromises accurate and truthful evidence at trial because a previous statement may compromise the interest of the witness who wishes to testify truthfully but the truth may be in conflict with the previously sworn statement.  Before trial, the acceptable practice is to take statements from witnesses but not arrange for those witnesses to swear affidavits or to make statutory declarations.

[7]             If testimony is to be given by affidavit, an application should be made pursuant to Rule 12‑5(59) of the Rules of Court.  Subject to the order of the Court to the contrary, that affidavit must be served at least 28 days prior to such an application being heard by the Court.  No such application was made relating to the evidence of these three affiants…

[9]             Under the circumstances, it would have been appropriate for counsel for the Defendants to apply for an order pursuant to Rule 12‑5(59) and, if that order had been granted, for counsel for the Plaintiff to require those witnesses to be called for cross-examination at trial pursuant to Rule 12‑5(61).  That was not done.

[10]         When it became apparent that three Affidavits had been sworn, counsel for the Defendants was urged by me to make an application that the evidence of the three be given by affidavit and counsel for the Plaintiff was urged to make a subsequent application that the three witnesses be called to the Trial for cross-examination.  That is what occurred and those orders were made.

[11]         In the circumstances of this case, I am satisfied that the sworn testimony of the three witnesses were in no way compromised by the assumption that the truth of what they were saying was in conflict with the affidavits that they had sworn.  First, the affidavits were sworn in order to place before the Court the business records that would be relied upon by the Defendants.  Second, the affidavits were prepared and sworn on the assumption that it would then not be necessary for the three affiants to appear at the Trial.  Third, the three witnesses were merely attaching business records and were not providing direct observations that they had made relating to the accident.  Fourth, the affidavits did not concern controversial matters.

[12]         In the circumstances of this case, I attach no lesser weight to the testimony at Trial of the three witnesses by virtue of the fact that they had all sworn affidavits prior to testifying.  Because of the two Orders made and in view of the nature of what was set out in their Affidavits, I am satisfied that it is not appropriate to disregard the whole of their testimony.


NHL Player’s Wage Loss Claim Not “Too Complex” For a Jury

May 15th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether a Jury was capable of determining an NHL player’s wage loss claim in a personal injury lawsuit.

In today’s case (Franson v. Caldarella) the Plaintiff, Cody Franson, was injured a in 2008 collision.  At the time he “was in the second year of a three-year Entry Level two-way contract with the National Hockey League (NHL) and the American Hockey League (AHL), and was in training camp preparing for tryouts for the Nashville Predators.”

The lawsuit claimed that the collision related injuries delayed his entry into the NHL by one year.  He claimed damages for loss of opportunity for this year and further alleged that his subsequent NHL contracts would have been more favorable had the delay not occurred.  The Plaintiff brought an application to strike the Defendant’s jury notice arguing that the intricacies of NHL contract negotiations are too complex for a jury.  Madam Justice Fisher disagreed and dismissed the Plaintiff’s application.  In doing so the Court provided the following reasons:

[21]         The essence of the plaintiff’s position is that issues (2) and (3) will require answers to questions which rely on complex technical evidence. The main questions as I understand them are:

(a) What were the chances that the plaintiff would have played any games for Nashville in the 2008-2009 season?

(b) If his chances were good, how many games would he have played?

(c) If he had played a certain number of games in that season, would he have been able to negotiate more favourable terms in his contract in subsequent years as a Restricted Free Agent?..

[26]         The plaintiff submitted that the trier of fact will be required to understand the methodology, assess it, and determine which statistics and methodology is appropriate in order to calculate these damages. I do not disagree that the trier of fact will have to understand the methodology used by Mr. Gurney but I question whether it will be necessary to determine another appropriate methodology and apply that. These kinds of hypothetical damages in circumstances of uncertainty are not normally assessed by way of a mathematical calculation. The expert evidence is presented as a tool to assist the trier of fact in its assessment. In my view, a jury will be capable of understanding Mr. Gurney’s methodology when it is properly explained and it will also be capable of assessing the criticisms of that methodology by Prof. Weiler.

[27]         It is my view that a jury is capable of assessing this kind of evidence and determining the issues arising from it, including the use of hypotheticals and contingencies, with proper direction.

[28]         Moreover, this will not be in inordinately long trial, set for up to 14 days, a time estimate that is reasonable given the number of witnesses and issues to be addressed. In my opinion, a jury will be able to understand the evidence and retain that understanding for the length of the trial.

[29]         For all of these reasons, the plaintiff’s application is dismissed.