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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

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Posts Tagged ‘Rule 7-2’

Court Tells Lawyer to “Focus” Their Questioning Instead of Extending Discovery Time

May 28th, 2016

The BC Supreme Court Rules, which used to be open ended with respect to examinations for discovery, now have time limits in place with the Court retaining discretion to extend these limits in appropriate circumstances.

Unreported reasons for judgement were recently released considering and denying such an application with the Court suggesting counsel “focus” their remaining time appropriately.

In the recent case (Ross v. Casimong) the Plaintiff was injured in a 2009  collision and sued for damages.  The claim was prosecuted in the usual course (outside of fast track) with the present Rules allowing 7 hours of discovery.  The Plaintiff was examined twice with approximately 44 minutes of the allotted 7 hours remaining.  Defence counsel brought an application seeking a further discovery and allowing up to two hours to finish the job.  The Court dismissed the application noting a focused discovery could canvass what was needed in the remaining time.  In dismissing the application Master Dick provided the following reasons:

Master Dick Reasons for Judgement


“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.  

 


8 Year Old Too Young To Be Examined for Discovery

March 13th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a defense application to examine an 8 year plaintiff.

In today’s case (Dann-Mills v. Tessier) the Plaintiff was involved in a ‘serious motor vehicle accident’ when he was 17 months old.  A lawsuit was brought on his behalf by his litigation guardian.  The Defendants sought to examine the Plaintiff for discovery.  The Court found that this would be inappropriate and dismissed the application.  In doing so Mr. Justice Voith provided the following reasons:

[38]        I question the possible utility or value of any examination for discovery of Jorin, particularly in light of some of the medical conclusions I have identified. It was this issue that I canvassed most fully with counsel for the applicant.

[39]        It is generally understood that the central objects of an examination for discovery are:

i)        to enable the examining party to know the case it must meet;

ii)        to enable a party to procure admissions which will dispense with other formal proof of its case; and

iii)       to procure admissions which will damage an adversary’s case.

See e.g. Frederick M. Irvine, ed., McLachlin & Taylor, British Columbia Practice, loose-leaf, 3rd ed. (Markham: LexisNexis, 2006) at 7-178.

[40]        The applicant and other defence counsel accepted that they had no desire to obtain any “admissions” from Jorin on discovery. Instead, the applicant said that the “primary reason” for Jorin’s intended discovery related to the first consideration I identified; that being, to enable the defence to know the case that it must meet.

[41]        Respectfully, I struggle to see how this can be so. This is not a case where the defendants may be surprised by Jorin’s evidence at trial. Jorin will not be present at the trial. Instead, the whole of Jorin’s case will be established by expert evidence, of which the defendants will have ample notice, and through other witnesses. The defendants can examine Jorin’s father and his grandmother (Jorin’s litigation guardian). They can interview his teachers and his special-needs assistants. In earlier applications, it became clear that Jorin, who requires full-time supervision, has had a series of caregivers. These sources are likely to be far more fruitful and reliable than the examination for discovery of an infant who, there is reason to believe, without deciding that it is so, struggles with comprehension, attention and language difficulties.

[42]        The last basis for an examination of Jorin that was raised by counsel for the applicant was a desire, in a sense, to see Jorin and how he functions. There is significant disparity in the existing medical opinions on Jorin’s functionality. I have referred to some of these differences earlier in these reasons. Other differences are apparent in the letters of Drs. Purtzki and Joschko, respectively. Counsel considers that some opportunity to see and interact with Jorin would potentially be helpful for settlement and other purposes.

[43]        First, it would appear that a discovery of Jorin would only achieve this object for the single counsel who conducted the examination for discovery, and not for the teams of counsel who represent the various defendants in this action. I cannot imagine that the intention would be to conduct the examination in the presence of all counsel who are involved in these actions.

[44]        Second, though I do not question counsel’s expressed goal, I consider that this object can be otherwise achieved. I suggested to counsel that Jorin might be videotaped, or that counsel might possibly view Jorin, at a medical examination, through a glass mirror. Though counsel for Jorin indicated he would not be opposed to such endeavours, I was also told by counsel for the defendants that the examining independent medical practitioners might object. Nevertheless, I consider that with some ingenuity there are far better means available to get a sense of Jorin and his functionality than a brief examination for discovery would yield.

[45]        In all the circumstances, I do not consider that an examination for discovery of Jorin would be appropriate, and I am unprepared to allow that examination to take place.


Absent Agreement Discoveries To Take Place At Lawyers Office

October 1st, 2014

Reasons for judgement were released today (Schroeder v. Sweeney) by the BC Supreme Court, Kelowna Registry, addressing a practice point.  Where are examinations for discovery to take place if the parties can’t agree?  Master McDiarmid ruled that the default is the lawyer’s office of the party being examined.  The court provided the following reasons:

[4]             Subrule 7-2(11) needs a bit of analysis. It provides, firstly, that you are to find a Registry closest to where the party to be discovered resides in British Columbia and then you are to find a location within 30 kilometres of that registry. It does not say that the discovery is to take place at the registry, although in the past that is where discoveries did take place. All of the larger registries had rooms where examinations for discovery occurred. It is true that often the most convenient location is the place where the court reporters carry on their business.

[5]             However, I have always understood the default position (for parties resident in B.C.) to be that if the parties could not agree, the party would be discovered at that party’s counsel’s office.

[6]             There are reasons why that is convenient to the party. One reason is that the full documents in the possession of that party will be available. A second is that the party being examined is in a surrounding where that party’s counsel practises and so the party is presumably somewhat more comfortable there.

[7]             In responding to this particular application, I reviewed some comments — and not unreasonable comments by the plaintiff, where he deposes basically, that yes, he  could go to the court reporter’s office, but he does depose to some issues with parking. That does, to some extent, impact on his convenience. It seems to me though that the — what I am going to call the default provision which was certainly the provision I understood as counsel was that if parties could not agree, the discovery should take place at the office of the counsel representing the party to be discovered. The matter is somewhat of an important practice point.

[8]             I am dismissing the application and ordering that the discovery take place at the office of the plaintiff’s counsel. The part of the application that the plaintiff attend Okanagan Court Reporters is dismissed and instead of that, the order is that the plaintiff attend at examination for discovery at the offices of his counsel.


Discovery Continuation Distinct from a Further Examination

August 15th, 2013

As previously discussed, the law sets a heavy burden when a party seeks a second examination for discovery in a lawsuit in the BC Supreme Court.  There is a distinction, however, between a second discovery and a continuation of an incomplete one.  This distinction was discussed in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.

In this week’s case (Li v. Oneil) the Plaintiff was examined for discovery at which various requests for further information were made.  When the Defendant sought to schedule a continuation of the discovery the Plaintiff opposed arguing the heavy burden for a further discovery was not met.  Master Muir granted the application noting the distinction between concluding an incomplete discovery based on outstanding requests and a genuine further examination.  The Court provided the following reasons:

[11]         The application before me, despite being framed as an application for a further discovery, was in reality an application that the examination of the plaintiff continue, both in accordance with R. 7-2(22) and generally, based on production of new material such as the list of special damages, medical records and employment records. In support, he relies on the decisions in Cowan v. Davies, 2008 BCSC 1239, and Dhami v. Bath, 2012 BCSC 2077…

[15]         I am of the view that the examination for discovery was adjourned as contemplated by these rules. Thus, the defendant is entitled to continue its examination for discovery regarding questions left on the record and I am of the view that logically extends to questions based on documents requested at the discovery and subsequently produced.

[16]         As the examination for discovery was not concluded, the heavy onus required to justify a further discovery referred to in Sutherland v. Lucas is not engaged. Given the extensive document production since the examination for discovery was conducted, I am also of the view that the defendant is entitled to continue its examination for discovery based on the new material, whether or not it was produced in accordance with a request left on the record.

[17]         If this was an application for a second examination for discovery I would come to a similar conclusion.

[18]         On a review of the listing of documents produced by the plaintiff since her examination for discovery as set out in the defendant’s notice of application, it is clear that many are documents that could prove or disprove a material fact and that they were in existence prior to her examination for discovery and as such required to be produced under rules 7-1(1) and 7-1(9).

[19]         The defendant submits that is sufficient to constitute a failure to make full and frank disclosure as contemplated in Sutherland v. Lucas and is such as to warrant a second discovery.

[20]         I agree. In my view it does not behoove a party to fail to make complete document disclosure prior to an examination for discovery and then to take the position that the examination cannot be continued when proper disclosure is made.

[21]         Thus, in the circumstances of this case I am satisfied that the defendant did not conclude its discovery and thus the heavy onus referred to in Sutherland v. Lucas does not apply. The defendant is entitled to continue its examination for discovery on the new matters, but is not entitled to examine on matters covered on the first day of examination for discovery.


“Overly-Frequent Interventions, Inappropriate Objections, and an Under-Prepared Witness” Leads To Further Discovery

August 13th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, ordering a further examination for discovery of a party due to “overly-frequent interventions, inappropriate objections, and an under-prepared witness“.

In this week’s case (CP v. RBC Life Insurance Company) the Plaintiff was suing for disability insurance coverage she had in place with the Defendant.  In the course of the lawsuit the plaintiff examined a representative of the Defendant and the discovery was “at times disruptive, or event fractious“.  The Plaintiff adjourned the discovery before using her full 7 hours.  The Plaintiff sought an order allowing her to reschedule the examination and seeking to exceed the 7 hour cap.  In finding this was appropriate Master Baker provided the following sensible comments addressing the conduct of discoveries under the new rules of court:

[14]         Ms. Hayman adjourned in part due, she says, to the frequent interruptions and interventions by Ms. Carmichael. She argues that many of the interruptions were in and of themselves improper and that, for example, questions that were objected to should be answered by court direction. But perhaps more concerning to Ms. Hayman is that, she says, it was practically impossible to establish “a flow” to the examination which is, after all, in the nature of a cross-examination.

[15]         I have reviewed the 170 pages of the transcript of the two examination intervals. There are comments, objections, interventions, questions, or the like by Ms. Carmichael on 116 of the pages. It must be said that many are typical of an examination and benign; advice to Ms. Edizel, for example, to speak up, or confirmation to Ms. Hayman that the defense does have the proffered document. But the sheer number of recorded comments and interventions lend support to Ms. Hayman’s submission…

[18]         I worry that there is a trend to more oppositional examinations for discovery and that more and more will, inevitably, result in applications such as this. While the court is always available to apply the Rules of Court and decide on procedural issues, the process for examinations for discovery never intended this level of supervision. I agree with N. Smith J. that the court should generally discourage a question by question approach that, essentially, subsidizes counsel’s fundamental duty to conduct an appropriate discovery, on the one hand, or to permit one (including its broad and wide-ranging nature, often), on the other.

[19]         Rule 7-2(1)(a) inevitably increases the responsibilities in that regard. With a seven-hour limitation, examining counsel is obviously required to be efficient, focussed, and effective in conducting his or her examination. Opposing counsel, on the other hand, is obliged to restrict his or her objections and not consume that valuable time with unnecessary objections or interventions. Quite the contrary: if one thinks strategically, why not allow one’s opponent to use the examining time with irrelevant or non-productive questions? Tedious as they may seem, they would offer an excellent response to any application for increased examination time.

[20]         But that choice would be entirely left to the examinee’s counsel. In the main, it is for him or her to avoid intruding on the examiner’s time unless clearly justified.

[21]         There is a parallel obligation on the actual examinee; with the restriction on examination time comes a heightened responsibility to inform oneself in advance of the examination, so that the time can be used fruitfully and the discovery process serve its purpose. In this case Ms. Edizel had a particularly clear obligation in that regard. She was not the case manager or supervisor during the operative times of C.P.’s claim management; both of those individuals, as I’ve said, have left RBC. It was therefore incumbent on Ms. Edizel to redouble her efforts to examine the file and its history and to inform herself as much as possible. Both Ms. Wadhwani and Ms. Rhodes were apparently unwilling to talk to anyone about C.P.’s claim. The best source of information (other than the file entries themselves, one supposes) were therefore denied Ms. Edizel. I can understand, then, her inability to answer some (perhaps many) questions, but on the whole I am not satisfied that she met her obligation to inform herself as much as reasonably possible in advance of her examination. As a consequence, Rule 7-2(22) applies:

In order to comply with subrule (18) or (19), a person being examined for discovery may be required to inform himself or herself and the examination may be adjourned for that purpose.

[22]         The combination, then, of overly-frequent interventions, inappropriate objections, and an under-prepared witness requires that Ms. Edizel be further examined. I will not restrict that examination to outstanding requests. Moreover, her attendance for further examination in British Columbia will be at the expense of the defendant (subject, obviously, to any future rulings on costs). Ms. Hayman will be permitted a further four hours for examination as requested.


Translator's "Poor Performance" Gives Way to Further Examination for Discovery

April 10th, 2013

The current BC Supreme Court Rules cap examinations for discovery in a conventional prosecution at 7 hours unless the Court otherwise orders.   Reasons for judgement were released recently by the BC Supreme Court, Victoria Registry, addressing one circumstance when prolonging this cap was appropriate.

In the recent case (Dhami v. Bath) the Plaintiff attended 8 hours of discovery.  A translator was used who “did a poor job“.  The Court exercised its discretion to allow a further 2 hours of discovery and in doing so provided the following reasons:

[5]             This application must be determined on the evidence before the court. The only evidence with respect to the examination itself are the excerpts revealing the translator’s poor performance which objectively interfered with counsel’s ability to conduct the examination in an efficient manner. Put another way, I find that the translator’s conduct made it reasonably impractical to complete the examination for discovery in the time spent to date.

[6]             I am not persuaded that the examination of the plaintiff was concluded such that the defendant must meet the heavy onus suggested in Hogg v. Hansen, 2007 BCSC 958, for a second examination. The additional two hours is allowed to the defendant to complete the one and only examination.


Case Plan Conference Orders Can't Trump Privilege

March 7th, 2013

Last year I highlighted a decision confirming that the Court’s powers under the new rules of court don’t allow orders to be made which will trump legitimate privilege claims.  Reasons for judgement were released earlier this month by the BC Supreme Court, Vancouver Registry, confirming this principle.

In the recent case (Blackwell v. Kwok) the Defendant sought an order at a Case Planning Conference requiring the Plaintiff to disclose the specialty of the expert witness(es) the Plaintiff intends to rely on.  The Court refused to make this order finding it would trump the privilege in the Plaintiff’s counsel’s solicitor’s brief.  In dismissing the request Mr. Justice Funt provided the following reasons:

[11]         Plaintiff’s counsel referred me to the Court’s decision in Nowe v. Bowerman, 2012 BCSC 1723.  In Nowe, the defendant proposed that each party be limited to one expert each and that the plaintiff advise the defendant of the area of expertise by November 17, 2012, approximately ten months before the scheduled trial.  The Court denied the application:

[10]  The area of expertise of an intended expert witness is a matter of trial strategy.  Trial strategy is a key component of a solicitor’s brief.  It may well evolve as plaintiff’s counsel builds a case and makes decisions based upon a myriad of factors and considerations.  Intentions may change as the process unfolds over time.

[11]  In my view, unless and until the intention to rely upon a particular expert in a particular field is declared by delivery of a report in accordance with the timelines established by the Rules, in the absence of a compelling reason an early incursion into this aspect of the solicitor’s brief will not be justified.

[12]  That being said, there may well be cases in which a departure from the usual timelines can be justified.  For example, in complex cases such as those involving brain injuries as a matter of fairness it may be necessary to provide defence counsel with a longer period than would be available under the usual regime in order to schedule appointments with certain kinds of experts. …

[12]         I note that in Nowe, the plaintiff argued that it was “not the kind of case in which a long period is required in advance of an appointment being made with a certain type of expert” (para. 7).  Although possibly a longer period may be justified in some cases, I am not satisfied that a “departure from the usual timelines can be justified” in the case at bar.

[13]         In my view, the defendants’ application should be rejected.  I see no prejudice if the normal rules for delivery of expert reports apply.  If the defendants choose to retain an expert to conduct an independent medical examination and prepare a report based on the plaintiff’s pleaded injuries, but no psychological injury is alleged at trial, an appropriate award of costs will afford the defendants the necessary relief.

[14]         Not surprisingly, I cannot state matters better than Chief Justice McEachern in Hodgkinson: “While I favour full disclosure in proper circumstances, it will be rare, if ever, that the need for disclosure will displace privilege”.

[15]         The Court declines to make the order sought.

 


Litigants Prohibited From Self-Recording Examinations For Discovery

February 5th, 2013

Adding to this site’s archived posts relating to examinations for discovery under the BC Supreme Court Rules, reasons for judgement were released this week addressing whether a party may self-record an examination for discovery.  In short the answer is no.

In this week’s case (Rassaf v. SNC-Lavalin Engineers and Constructors Inc.) the Plaintiff indicated he wished to record his own discovery.  The Defendant brought an application prohibiting him from doing so.  In granting the application Mr. Justice Goepel provided the following reasons:

[6]             A somewhat similar situation arose concerning the power of parties to videotape examinations for discovery. In Ramos v. Stace-Smith (2004), 24 B.C.L.R. (4th) 333, Mr. Justice Fraser allowed an examination to be videotaped.

[7]             That decision was subsequently followed in Ribeiro v. Vancouver (City), 2004 BCSC 105. The Ribeiro case was appealed. The appeal judgment is found at 2004 BCCA 482. On appeal, Madam Justice Southin held that the decision in Stace-Smith was wrongly decided and similarly the chambers judgment in Ribeiro, which had followed Stace-Smith, was similarly wrongly decided. In reaching her decision, she noted that there was no provision in the Rules for an order for videotaping. She said at para. 3:

There is no provision in the Rules of the Supreme Court of British Columbia for the order which was pronounced in this case. Since time immemorial, that is to say since examinations for discovery were first permitted in this province which I think now is about 80 or 90 years ago, they have never been filmed by any method at all. If they are to be, there must be a change in the Rules of the Court to permit or authorize such a practice, or, in my view, there must be at least a practice direction emanating from the whole of the Supreme Court of British Columbia on the point. In making the latter remark, I am not saying that a practice direction would necessarily be valid in such circumstances. Matters of practice and procedure in the court below must be governed by its Rules, and those Rules must be duly enacted under theCourt Rules of Practice Act. It is certainly open to the Lieutenant Governor in Council to permit what Mr. Potts says is a very good idea but she has not done so. It is not appropriate for a single judge of the court below to engage in matters of practice and procedure in what I call judicial individualism. The course of the court below is the law of the court and the course has never been to engage in such a practice.

Those words apply in these circumstances.

[8]             It has not been the practice that individual parties are allowed to record examinations for discovery. There is no provision for same in the Rules. In these circumstances it would not be appropriate for me to allow such to occur. Accordingly, I am granting the defendant’s order, and the plaintiff will be prohibited from recording by any means his examination for discovery.


Defendant Ordered to Pay 25% Greater Trial Costs for "Reprihensible" Failure to Attend Examination for Discovery

December 31st, 2012

Parties to a BC Supreme Court lawsuit can be forced to attend an examination for discovery set up by opposing litigants.  Failure to attend can have a variety of consequences.  Demonstrating one such consequence in action, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, punishing a non-attending part with increased costs.

In the recent case (Stanikzai v. Bola) the Defendant was found 75% at fault for a motor vehicle collision and was ordered to pay damages of just over $189,000.  Prior to trial the Defendant failed to appear at an examination for discovery.  Mr. Justice Smith found this behaviour was “reprehensible” and ordered that the defendant pay post trial costs at a level greater than they otherwise would have been.  In reaching this decision the Court provided the following reasons:

[6]             Parties to civil litigation are required by R. 7-2(1) of the Supreme Court Civil Rules, to make themselves available for examinations for discovery. It is not something a litigant can choose to do or not do on the basis of her own convenience. If Ms. Bola was unable to attend the examination on the day it was set, her obligation was to notify her counsel and discuss alternate dates. Instead, she simply failed to show up.

[7]             I also find it difficult to believe that she had no knowledge of the false information her husband was apparently providing to defence counsel when a second discovery was requested. Ms. Bola showed a complete and unacceptable disregard for her duties under the law. I stress this was not the fault of defence counsel, who attempted to get her cooperation…

[10]         I find that the defendant’s refusal to appear at discovery meets the definition of “reprehensible conduct” and I would not hesitate to award special costs if I thought that conduct had affected the outcome of the trial. But, in the specific circumstances of this case, I find that there is another, more proportionate rebuke available.

[11]         Under normal circumstances the plaintiff, having been found 25 per cent responsible for the accident, would recover only 75 per cent of his costs. This arises from s. 3(1) of the Negligence Act, RSBC 1996, c 333:

3 (1) Unless the court otherwise directs, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damage or loss.

[12]         Although payment of costs in proportion to the degree of liability is the default rule, the court has discretion to depart from it. That departure must be for reasons connected with the case, with the principle consideration being whether application of the usual rule will result in an injustice: Moses v Kim, 2009 BCCA 82 at para 70.

[13]         In these circumstances, I find that the interest of justice can best be served by depriving the defendants of the reduction in costs that they would otherwise benefit from and I award the plaintiff the full costs of this action.