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Suing the RCMP for Negligence, Can it be Done?

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized. 61 Comments on Suing the RCMP for Negligence, Can it be Done?


Is it possible to sue a member of the RCMP in British Columbia for negligence as a result of their actions in the line of duty?  For example, if an RCMP member isn’t paying adequate attention when driving and causes a car crash can they be sued?
A person injured in these circumstances does have the right to seek remedy in the civil courts (a tort claim) however the Defendant will likely not be the individual officer rather the Minister of Public Safety and Solicitor General of the Province of BC on behalf of her Majesty the Queen in Right of the Province of BC (the “Minister”).
The reason for this is that individual members of the RCMP enjoy statutory immunity for negligence claims if the negligence occurs in the performance of their duties.  However, the Minister is ‘jointly and severally liable‘ for the negligent act meaning that the Minister can be sued.  Reasons for judgement were released today by the BC Court of Appeal addressing this area of the law.
In today’s case (Amezcua v. Taylor) the Plaintiff was injured in a car crash caused by a member of the RCMP.  The RCMP member was sued directly.  She agreed that the accident was as a result of her “simple and regular negligence“.  She raised her statutory immunity as a defence.   Realizing that this would lead to a dismissal of the claim the Plaintiff brought a motion to amend the claim.  Ultimately this motion proved successful and the BC Court of Appeal allowed the proper party to be named.   Before reaching this conclusion the Court of Appeal did a great job discussing the law pertaining to negligence claims against the RCMP, specifically the BC High Court stated as follows:

[3] When authorized to carry out the powers and duties of a provincial police force under an agreement between Canada and the province, an RCMP officer is deemed to be a “provincial constable” (Police Act, s. 14(2)(b)).

[4] Section 11 of the Police Act provides that “[t]he Minister” is jointly and severally liable for torts committed, in the course of their employment, by, inter alia, provincial constables.  The Police Act does not define “the Minister”.

[5] Section 21 of the Police Act provides that no action lies against a police officer (“a person holding an appointment as a constable under this Act” (s. 21(1)) for negligence in the performance of their duties.  The restriction does not apply in circumstances in which the officer is grossly negligent (s. 21(3)).

[6] The Solicitor General of Canada and the Attorney General of British Columbia entered into a Provincial Police Service Agreement effective 1 April 1992, to continue until 31 March 2012.  Under s. 10.7 of the Agreement, if a member of the Provincial Police Service receives the benefit of a statutory defence (such as s. 11 of the Police Act) then “Canada shall indemnify and hold harmless the Province with respect to any such claims or actions” and “Canada shall assume the conduct and the carriage of any proceeding relating to such claim.”

It’s important to understand how these statutes work together if you have been injured by the negligence of a ‘provincial constable‘ in order to properly name the parties in a lawsuit otherwise you can risk having your case dismissed.

This case is also worth reviewing for the Court’s discussion of delay and prejudice in motions to amend pleadings.  In today’s case the Plaintiff  waited over 6 years from the expiration of the limitation period to bring a motion to add the Minister as a Defendant.  The BC Court of Appeal allowed the motion despite the significant delay finding that there was an adequate explanation for this delay and no demonstrated prejudice to the Defendant.  Specifically the Court held as follows:

[63] In my opinion, the chambers judge did not give due consideration to the first two factors to be considered under the Teal analysis.  In the result, she failed to give effect to the overriding factor of what is just and convenient in the circumstances.  The circumstances at play here were of a proposed party who, common sense demands in the absence of explanation to the contrary from the Minister, must have been informed of his potential liability.  An officer for whom the Minister was jointly and severally liable for torts committed in the scope of her employment had been charged with, and had admitted to, simple negligence.  The tenor of the correspondence throughout was that the Department of Justice was acting for both the defendant Taylor and the statutorily liable government representative.  If the Department of Justice wished to disabuse the plaintiff of any misapprehension on this point, counsel should have explicitly stated so.  The Minister’s submissions on appeal that he is prejudiced by the admission made by the defendant Taylor more than nine years ago and may have to himself allege gross negligence on the part of Taylor is not supported by evidence and places counsel for the Minister and Taylor in conflict.

[64] In my opinion, the delay in this case was explained, prejudice to the Minister was not established, and, therefore, the balance in this case favours the plaintiff.  It follows that I would allow the appeal with costs to the plaintiff both of the appeal and in the Supreme Court.

Can a Lawyer Bind a Client to a Settlement Agreement Without Client Consent?

Written by admin on . Posted in Settlement Law, Uncategorized. 154 Comments on Can a Lawyer Bind a Client to a Settlement Agreement Without Client Consent?


As strange as it may sound the answer is yes.  Lawyers are client’s agents and as such their actions can bind their clients.  If a lawyer agrees to a settlement even if the lawyer does not have or is mistaken about their client’s instructions the settlement agreement can be binding.  Reasons for judgement were released today demonstrating this.
In today’s case (Park v. Palmer) the Plaintiffs took their claim to trial.  The Plaintiffs were represented by their niece who was a lawyer from Toronto.
At the close of the Plaintiffs case the Defendants brought a no-evidence motion. (a motion to dismiss a plaintiff’s claim for failure to call any evidence on an essential element of the case).
The Plaintiffs were apparently concerned about the costs consequences they’d be exposed to if the motion was successful.  Before the Court ruled on the motion the Plaintiff and Defence lawyers had settlement discussions.  When the parties returned to court the Defence lawyer advised the court as follows:
My Lady, I can advise the court of a settlement that was just reached between my friend and I.  The plaintiffs agree to withdraw and discontinue their action, and the defendants, in turn, agree to waive their costs.  We wanted to alert Your Ladyship and with apologies for not being able to advise you of this earlier, but that is the arrangement.  That is the settlement that has been agreed to between myself and my friend.
The Plaintiffs lawyer was present in Court when this statement was made.
The settlement the Plaintiff lawyer allegedly accepted was a Defence offer to “settle the matter by waiving costs and disbursements in return for the plaintiffs agreeing to discontinue and withdraw thier action against the defendants“.
Upon hearing that a settlement was reached the Court did not rule on the No Evidence Motion.  Some time passed and the parties could not agree on whether or not there was a binding settlement.  The Plaintiffs said that “they did not give instructions to settle (to their lawyer)”.  The parties ultimately brought this matter before the Court and asked the presiding Judge to decide “whether or not a settlement was reached in this matter“.
Madam Justice Dillon held that the matter was indeed settled.  Specifically the Court held:
Certainly (the Plaintiffs lawyer) was in the courtroom at that time (the court was informed there was a settlement).  There is some controversy in the affidavits before me as to whether or not (the Plaintiffs) were in the courtroom.  Notwithstanding that uncertainty, clearly (the Plaintiffs lawyer) had authority, as lawyer, agent, and representative of the plaintiffs, to speak on their behalf before the court.  As a lawyer and officer of the court, this court can rely on what (the Plaintiffs lawyer) tells the court. ..

[11] While I realize that this creates an unfortunate situation for the plaintiffs, there is no doubt that (their lawyer) settled this matter before the court by the plaintiff agreeing to withdraw and discontinue their action and the defendants waiving their costs.  The plaintiffs’ recourse now is against (their lawyer) for failure to follow instructions, if that indeed is the case.

[12] This court has to rely on the statements of legal counsel and, in the circumstances before me, I have no alternative but to enforce the settlement that was stated before me on July 4, 2008.

[13] Therefore, I order that this matter is discontinued.  The plaintiffs’ writ and statement of claim is ordered to be withdrawn, and there will be no costs to the defendant.

It is worth noting that the Court did not decide whether the Plaintiffs’ lawyer actually had instructions to accept the settlement matter.  Ultimately it does not matter.  If the Plaintiffs did give those instructions then the case was settled.  If the lawyer acted without instructions the case would still be settled but as Madam Justice Dillon pointed out “the Plaintiffs’ recourse is now against (their lawyer) for failure to follow instructions, if that indeed is the case“.

There is a good lesson to learn here for both clients and lawyers.  If you are giving your lawyer instructions to settle it is vital to know that your lawyer can create an agreement that is binding on you even if you later change your mind.   For this reason you should be committed to the result when giving a lawyer settlement instructions.  For lawyers, it is a good idea to take important instructions in writing so that there is clarity and certainty before settlement offers are made and accepted.

Artery Studios – Thank You and Welcome Aboard!

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Knee Injury Cases. 48 Comments on Artery Studios – Thank You and Welcome Aboard!

I’d like to take a quick moment to thank the good people at Artery Studios, Inc. in Toronto, Ontario.

Artery Studios specializes in the creation of custom medical illustrations, animations and interactive media for medico-legal and other purposes.

Here are two samples of their work:

If you are advancing a personal injury claim and are preparing for mediation or trial you should give serious consideration to obtaining custom designed demonstrative illustrations. The impact of quality demonstrative evidence in the legal process cannot be understated. When dealing with traumatic injuries pictures often speak louder than words and these illustrations can help educate Judges, Jurors and Insurers about the specifics of an injury claim. Education leads to persuasion which in turn can help achieve a better result.

Artery Studios Inc. has generously agreed to provide medico-illustrations for use in my blog posts. I look forward to displaying their work on this site and welcome the opportunity to enhance my articles with the use of these quality illustrations.

Thank you very much and welcome to the BC Injury Law and ICBC Claims Blog!

ICBC Injury Claims, Settlement Offers, Rule 37B, Sanderson Orders…

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, ICBC Liability (fault) Cases, Jury Trials, Uncategorized.

Where to begin…
Important reasons for judgement (Burdett v. Mohamed) were released on Friday by the BC Supreme Court, Vancouver Registry addressing a host of topics in the context of BC personal injury litigation.
By way of background the Plaintiff was a passenger in a 2002 motor vehicle accident.  She was riding in a vehicle operated by Mr. Mohamed and this vehicle collided with a vehicle operated by a Mr. Samuel.
The Plaintiff suffered various injuries including a traumatic brain injury.
The Defendant Mohamed was charged with Dangerous Driving and was deemed to be in breach of his insurance policy.  Accordingly, ICBC, Mr. Mohamed’s insurer defended the claim as a ‘statutory third party.’
There was reason to believe that Mohamed was solely responsible for the collision however the Plaintiff’s lawyer sued both Mohamed and Samuel.  The reason being was concern about limited insurance coverage.  Mohamed only had $1 million in insurance coverage.  The Plaintiff was not the only injured party and when sharing this money with the other claimants the Plaintiff was concerned she would be significantly undercompensated if this was the extent of her recovery.
ICBC made an offer to the various claimants to “get together to divide among themselves the $1,000,000 third party liability (coverage).”   This offer was not accepted and the Plaintiff proceeded to trial.
Prior to trial the Plaintiff made a formal offer to settle her claim against Mohamed for $1.5 million.  The Defendant Samuel made a formal offer to the Plaintiff to ‘walk away’ on a costs free basis.  After a lengthy trial the case against Samuel was dismissed, the Jury found Mohamed responsible for the Plaintiff’s injuries and the Plaintiff 20% contributorily negligent for her own injuries.   After this reduction in liability the Plaintiff was awarded over $1.8 million in damages.
The Court was asked to decide, amongst other things, whether the Plaintiff should be awarded double costs against Mohamed, whether Samuel should be awarded double costs against the Plaintiff and whether the Mohamed should pay to Samuel any costs the Plaintiff is exposed to.
Rule 37B – Is it reasonable to go to trial for a claim exceeding the Defendants insurance coverage?
The Plaintiff was awarded double costs for beating her formal offer of settlement against Mohamed.  In coming to this decision the Court had to grapple with an area of law that is still open to debate, specifically, when considering whether to award double costs can a court consider the insurance coverage available to the parties?
There are cases that go both ways on this topic and the law is not yet set in stone.  Usually Plaintiff’s argue that this is a relevant consideration and Defendants argue it is not.  Interestingly, here it was ICBC that was arguing the presence of insurance could be “the central factor driving the Court’s analysis under Rule 37B.”.  The Defendant submitted that the Plaintiff was unreasonable in going to trial “knowing of the third party liability policy limits“.
Madam Justice Boyd “entirely reject(ed) this submission.”   Specifically the Court held as follows:
[36] In my view, having never received an actual offer of settlement from the Third Party, it was reasonable for the plaintiff to choose to proceed to trial in this case.  She could expect that she would recover judgment against at least Mohammed and Dubois.  The judgment would also likely be in excess of the policy limits.  While the quantum of the judgment actually recovered would not exceed her pro rata share of the insurance funds (the calculation of which depended on settlements reached or judgments obtained by Maxwell and Sahota), she would still be left with the ability for the next ten years to pursue execution on the judgment against Mohammed and Dubois.  While the Third Party apparently insists that any such judgment will be dry, there is simply no evidence one way or another to confirm that likelihood.  It should also be noted that had the insurance monies been paid into court, and had the three claimants reached some agreement as to an appropriate division of the funds, the Third Party could not have enforced any requirement for a release of her claim against either Mohammed or Dubois.
Can a “Walk Away” offer trigger Double Costs under Rule 37B?
A ‘walk away’ offer is one where a Defendant, confident of winning at trial, offers that if the Plaintiff discontinues the lawsuit pre-trial that the Defendant will waive their entitlement to costs.  The Defendant Samuel made exactly such an offer to the Plaintiff.  The Plaintiff rejected this offer and went to trial.  The Plaintiff indeed was unsuccessful against Samuel.  Samuel asked for an order of Double Costs for beating their formal offer.
Madam Justice Boyd sided with the Defendants and granted the order for double costs.  The Court held that while not automatic, a walk away order is capable of triggering double costs and here it was appropriate to do so.  Specifically the court held as follows:
[56] My own impression is that faced with the grim realities of the other defendants’ limited insurance coverage, the plaintiff made a calculated decision to pursue a claim of very doubtful merit against Samuel, realizing that she would realize a substantial benefit even if Samuel’s liability was limited to a small percentage.  But for the insurance situation, I am confident that the Samuel offer would have been accepted early on by the plaintiff.  ..

[60] As Hinkson J. noted in Bailey v. Jang, 2008 BCSC 1372, the underlying purpose of the offer to settle provisions survived the repeal of Rule 37 and the implementation of Rule 37B.  That purpose is to encourage conduct which reduces both the duration and the cost of litigation, while also discouraging the conduct which has the opposite effect.

[61] I conclude that all of these factors weigh in favour of the defendant Samuel recovering double costs.

The Sanderson Issue:

When a Plaintiff sues 2 parties and succeeds only against one (which was the case here) the Court has a discretion under Rule 57(18) to order that the unsuccessful defendant pay the successful defendants costs.  This is called a “Sanderson Order”.

Here the Plaintiff, not wanting to have the ‘double costs’ order eat into into the limited $1,000,000 of insurance coverage applied for a Sanderson Order.  Madam Justice Boyd granted the order and required Mohamed to pay  Samuel’s court costs.  Vital in this decision was the fact that ICBC, in their Third Party Statement of Defence, alleged that Samuel was negligent in causing the collision.

In reaching this decision the Court held as follows:

[66] This raises the issue, was it reasonable for the plaintiff to have sued and continued her action against the defendant Samuel?  I accept that at the outset, given the evidence of the eyewitness to the effect the Dubois vehicle (driven by Mohammed) had fishtailed back and forth across the road before its collision with the oncoming Samuel vehicle, it was reasonable for the plaintiff to have joined Samuel as a defendant to the action.  However, after the receipt of the many engineering reports which overwhelmingly laid the blame on Mohammed and absolved Samuel of any negligence, was it reasonable for the plaintiff to have continued her action against Samuel?  …

[70] In my view, faced with ICBC’s plea that Samuel caused or contributed to this accident, the plaintiff had no choice but to continue her claim against Samuel.

[71] In all of these circumstances, I exercise my discretion under Rule 57(18) and find that a Sanderson order is appropriate in the case at bar, thus requiring the defendants Mohammed and Dubois to pay the costs which the plaintiff would otherwise pay to the successful defendant Samuel.

The lesson to be learned here is that if a Defendant is going to allege that another party is responsible for a car crash they should do so with caution.  The Plaintiff is free to bring them into the lawsuit and if the claims are not successful ultimately it is the Defendant who may be on the hook for the extra court costs.

Not Done Yet…

One last point.  A companion set of reasons was also released in this case on Friday addressing tax gross ups and management fees.   You can find that decision here.

BC Civil Sexual Assault Lawsuits Part 3 – Non-Pecuniary Damages

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized. 98 Comments on BC Civil Sexual Assault Lawsuits Part 3 – Non-Pecuniary Damages

Further to my recent posts on BC civil sexual assault claims addressing limitation periods and vicarious liability, I will now address another topic in this unique area of law – the assessment of non-pecuniary damages.
“Non-pecuniary damage” is the legal phrase that describes compensation for pain and suffering and loss of enjoyment of life.  When a person is harmed at the hands of others, be it intentionally or negligently, the harmed individual is usually able to claim compensation for their losses including for non-pecuniary loss.  Some of the factors that go into valuing non-pecuniary loss in British Columbia are discussed here.
Historically there was no ceiling in the amount of money that could be awarded to an injured plaintiff for non-pecuniary loss in Canada.  This changed, however, in 1978 when the Supreme Court of Canada heard a “Trilogy” of cases and handed down a significant decision which held that there should be a cap on Canadian awards for non-pecuniary damages.  Specifically the Canadian high court held that “Save in exceptional circumstances…an upper limit of non-pecuniary loss”  should be set at $100,000.
This cap on non-pecuniary damages has been the subject of much criticism and recent court challenges, however, none of this has resulted in change.  Unless there is legislative intervention or a reversal by the Supreme Court of Canada this cap will continue to remain in place.  This figure has been subject to inflation and now, in 2010, the rough upper limit is set at approximately $320,000.
With that introduction out of the way that brings me to today’s topic.  Does this ceiling for non-pecuniary damages apply to civil sexual assault cases?  The answer is no and this was made clear by the BC Court of Appeal in a case named S.Y. v. F.G.C.
In the S.Y case the Plaintiff was the victim of sexual abuse.   At trial a Jury awarded her $650,000 including $350,000 for non-pecuniary and aggravated damages.  This amount greatly exceeded the Canadian cap on non-pecuniary damages which was at $260,000 at the time.
The Defendant appealed arguing that non-pecuniary damages in sex assault cases are caught by the trilogy therefore the Jury’s award was in excess of what was permitted by law.  The BC Court of Appeal disagreed with this submission and made it clear that in British Columbia victims of sexual abuse are not caught by the Canadian cap on non-pecuniary damage awards.  Specifically the Court held as follows:
I am not persuaded that the policy reasons which gave rise to the imposition of a cap in “the trilogy” have any application in a case of the type at bar…The policy considerations which arise from negligence causing catastrophic personal injuries, in the contexts of accident and medical malpractice, do not arise from intentional torts involving criminal behaviour…A cap is not needed to protect the general public from a serious social burden, such as enormous insurance premiums.  Insofar as damage awards may be so high as to be wholly erroneous, or wholly disproportionate, an appellate court may intervene to correct disparity, and to foster consistency…In some cases, sexual abuse victims may require and deserve more than the “cap” allows, due to the unpredictable impact of the tort on their lives.  Judges, juries and appellate courts are in a position to decide what is fair and reasonable to both parties according to the circumstances of the case.
Just as with limitation periods and the principles of vicarious liability, the law of non-pecuniary damages in sexual assault claims in BC recognizes that these cases are unique and certain advantages are provided in prosecuting such claims in the Civil Courts.

Document Disclosure and Litigation Privilege – A Potentially Difficult Test to Meet

Written by admin on . Posted in Civil Procedure, Uncategorized. 115 Comments on Document Disclosure and Litigation Privilege – A Potentially Difficult Test to Meet

Further to my previous posts on the topic of ICBC Claims and Privilege, reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, demonstrating that a party seeking to withhold documents on the basis of ‘litigation privilege’ may face an uphill battle.
In yesterday’s case (Celli v. White) the Plaintiff was a pedestrian who was struck by a vehicle.  The Plaintiff was injured and eventually sued for damages.  In the course of the lawsuit the Defendants refused to produce a number of documents relevant to the Plaintiff’s Claim on the basis that they were protected by ‘litigation privilege‘.
The Plaintiff obtained legal advice almost immediately after the accident.  As a result of this the defence lawyers argued that “litigation was inevitable from the outset.”  On this basis the Defendant refused to produce a number of documents which were gathered by the Defendant’s insurer in the immediate aftermath of this collision.
The Plaintiff applied to Court for production of a number of the allegedly privileged documents.  The Plaintiff was largely successful and the Defendants were ordered to produce a number of documents which were gathered by the Defendants insurer in the 6 months following the collision.  In reaching this decision Master Caldwell summarized the law of litigation privilege in the context of BC Injury Claims as follows:

[8] The leading case in this subject area is Hamalainen v. Sippola (1991), 62 B.C.L.R. (2d) 254 [Hamalainen].  In that case the Court of Appeal held that two factual determinations were required in order to uphold a claim of litigation privilege:

(1)        Was litigation in reasonable prospect at the time the document was produced,

(2)        If so, what was the dominant purpose for its production?

[9] The court indicated that while the first of these requirements would not likely be overly difficult to establish, the second would be more challenging:

22.       I am not aware of any case in which the meaning of “in reasonable prospect” has been considered by this Court. Common sense suggests that it must mean something more than a mere possibility, for such possibility must necessarily exist in every claim for loss due to injury whether that claim be advanced in tort or in contract. On the other hand, a reasonable prospect clearly does not mean a certainty, which could hardly ever be established unless a writ had actually issued. In my view litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all pertinent information including that peculiar to one party or the other, would conclude it is unlikely that the claim for loss will be resolved without it. The test is not one that will be particularly difficult to meet. I am satisfied it was met in this case in connection with all of the documents in issue. The circumstances of this accident, and the nature of Mr. Hamalainen’s injuries, were such that litigation was clearly a reasonable prospect from the time the claim was first reported on December 1st, 1986.

(b)        What was the dominant purpose for which the documents were produced?

23.       A more difficult question to resolve is whether the dominant purpose of the author, or the person under whose direction each document was prepared, was “… [to use] it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation …”.

24.       When this Court adopted the dominant purpose test, it did so in response to a similar move by the House of Lords in Waugh v. British Railways Board, [1980] A.C. 521. In that case the majority opinion is to be found in the speech of Lord Wilberforce, who agreed “in substance” with the dissenting judgment of Lord Denning M.R. in the Court below. While the Court of Appeal judgments do not appear to have been reported, some excerpts from Lord Denning’s opinion are to be found in the speech of Lord Edmund-Davies, including the following at p. 541 of the report:

If material comes into being for a dual purpose – one to find out the cause of the accident – the other to furnish information to the solicitor – it should be disclosed, because it is not then “wholly or mainly” for litigation. On this basis all the reports and inquiries into accidents – which are made shortly after the accident – should be disclosed on discovery and made available in evidence at the trial.

25.       At the heart of the issue in the British Railways Board case was the fact that there was more than one identifiable purpose for the production of the report for which privilege was claimed. The result of the decision was to reject both the substantial purpose test previously adhered to by the English Court of Appeal and the sole purpose test which by then had been adopted by the majority of the Australian High Court in Grant v. Downs.

26.       Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

27.       In that sense there is obviously no absolute rule that the decision to deny liability in such a claim must mark the point in which the conduct of litigation becomes the dominant purpose underlying the production of each and every document of the sort for which privilege was claimed in this case. But I do not read the master’s reasons as invoking any such absolute rule. He was faced with affidavit material filed by the party claiming privilege which was deficient in a number of respects. As already noted it failed to draw any distinction between the purpose underlying the production of individual documents. The risk inherent in that approach was pointed out by Mr. Justice Esson in the Shaughnessy Golf case at p. 319 of the report:

Privilege was claimed for a large number of documents. The grounds for it had to be established in respect of each one. By trying to extend to the whole list the considerations which confer privilege on most of the documents, the plaintiff has confused the issue and created the risk that, because it did not make in its evidence the distinctions that could have been made, it must be held not to have established privilege for any.

28.       Furthermore, the affidavit material concentrated on the repetitious assertion by each deponent of his belief that litigation in the case was inevitable, from which fact the dominant purpose underlying the production of all documents was apparently assumed. As already pointed out that approach to the onus facing the deponent on this question represented a mistaken view of the law.

[10] Gray J. echoed this sentiment at paragraphs 97 and 98 of Keefer Laundry Ltd. v. Pellerin Milnor Corp., 2006 BCSC 1180 as follows:

97.       The first requirement will not usually be difficult to meet.  Litigation can be said to be reasonably contemplated when a reasonable person, with the same knowledge of the situation as one or both of the parties, would find it unlikely that the dispute will be resolved without it. (Hamalainen v. Sippola, supra.)

98.       To establish “dominant purpose”, the party asserting the privilege will have to present evidence of the circumstances surrounding the creation of the communication or document in question, including evidence with respect to when it was created, who created it, who authorized it, and what use was or could be made of it. Care must be taken to limit the extent of the information that is revealed in the process of establishing “dominant purpose” to avoid accidental or implied waiver of the privilege that is being claimed.

[11] This dominant purpose test was also confirmed by Fish J. in the case of Blank v. Canada (Minister of Justice), 2006 SCC 39 at paragraphs 60 and 61:

60. I see no reason to depart from the dominant purpose test. Though it provides narrower protection than would a substantial purpose test, the dominant purpose standard appears to me consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal partner of the broadly interpreted solicitor-client privilege. The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure. As Royer has noted, it is hardly surprising that modern legislation and case law

[TRANSLATION] which increasingly attenuate the purely accusatory and adversarial nature of the civil trial, tend to limit the scope of this privilege [that is, the litigation privilege]. [para. 1139]

Or, as Carthy J.A. stated in Chrusz:

The modern trend is in the direction of complete discovery and there is no apparent reason to inhibit that trend so long as counsel is left with sufficient flexibility to adequately serve the litigation client. [p. 331]

61. While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process. In this context, it would be incongruous to reverse that trend and revert to a substantial purpose test.

In ordering that the Defendants produce the relevant documents the Court held that the dominant purpose of much of the defendants insurer’s early investigations was due to ‘adjusting‘ the potential claims as opposed to in response to anticipated ‘litigation‘.

Since ICBC is a monopoly insurer in British Columbia the analysis of the ‘adjusting‘ phase vs. the ‘litigation‘ stage will be triggered in most multi-party motor vehicle collisions.  The lesson to be learned is that many documents which are gathered by ICBC in the early stages which may prove harmful to a Defendant if disclosed may not be protected by privilege if they were gathered by for the dominant purpose of determining how a collision occurred.

I Accept Your Settlement Offer…Wait a Minute, What Settlement Offer?

Written by admin on . Posted in Civil Procedure, Settlement Law, Uncategorized. 105 Comments on I Accept Your Settlement Offer…Wait a Minute, What Settlement Offer?


Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, dealing with a very interesting set of facts.  Can a Defendant accept a Formal Settlement Offer from a Plaintiff when the Plaintiff forgot the offer was made in the first place?
In yesterday’s case (Burton v. Bakker) the Plaintiff was injured in a 2005 BC motor vehicle accident.  He hired a lawyer to help him advance his ICBC claim.  In the course of the lawsuit the Plaintiff’s lawyer made a formal settlement offer to resolve the claim for $40,000.  Some time after this the Plaintiff switched lawyers.  When the new lawyer took over the file “there was no copy of the settlement offer made (by the last lawyer) in the file and the correspondence accompanying the file made no reference to (the) offer“.
Almost one year passed.  During this time the potential value of the Plaintiff’s claim appreciated significantly.  The Plaintiff’s new lawyer continued to be unaware of the outstanding offer made by the first lawyer.  Then the Defendants lawyer, without any prior notice to the Plaintiff’s new lawyer, accepted the formal settlement offer.  The parties could not agree if there was a binding settlement which resulted in the Defendants applying to Court for “a declaration that there is a binding settlement agreement“.
Madam Justice Bruce of the BC Supreme Court presided over the application.   The Plaintiff’s lawyer argued that “the offer to settle was made under a misapprehension of the facts underlying the claim such that it would result in an injustice to enforce the settlement“.  Ultimately the Court held that this is an issue that would better be dealt with by the trial judge as opposed to in a pre-trial chambers application.  Before reaching this conclusion, however, Madam Justice Bruce provided a useful discussion of the powers of BC Courts to offer remedies in the enforcement of settlement agreements.  Here are the highlights of the Courts discussion:

[20] The enforcement of settlement agreements is not a separate field of law exempt from the ordinary principles of contract law and the rules of procedure. The various means of enforcing a settlement agreement may involve equitable principles, discretionary remedies, and rules regarding the entry of consent orders; however, this does not oust the general principles of contract law. This proposition of law is amply supported by the reasoning of the Court of Appeal in Robertson where Lambert J.A. says at 386:

The law in relation to the enforcement of settlement agreements by stays of proceedings brings together principles of contract law, principles of the law of agency as they apply to barristers and solicitors, rules of equity as they apply to discretionary remedies, and rules of procedure as they apply to the pronouncement and entry of consent orders. In each case, the issues between the parties must be dealt with in accordance with those principles. The effectiveness and the enforcement of settlement agreements does not constitute a separate field of law to which the ordinary principles of contract law, agency, and equity, and the ordinary rules of procedure, do not apply.

[21] It is because the enforcement of settlement agreements involves such a collage of legal and equitable principles that the remedies available to the court have become somewhat muddied. On the one hand, it is apparent that the Rules of Court and in particular, Rules 37A and 37B addressing settlement offers, are not a complete code that have ousted the principles of contract law in respect of the enforcement and interpretation of settlement agreements. As Madam Justice Ross says in Thom at paras. 33 to 34:

[33] In my view, the decision in Acadia Hotels did not have the effect contended by counsel for the respondent of completely ousting the principles of mistake from a consideration of Offers to Settle.

[34] I find support for this conclusion in Craig Estates and in Vickaryous v. Vickaryous (2001), 19 R.F.L. (5th) 195, [2001] B.C.J. No. 1343, 2001 BCSC 930 (S.C.) per Garson J. In both decisions, the principles applicable to unilateral mistake were applied in relation to the acceptance of an Offer to Settle. Moreover, in 256593 B.C. Ltd., Mr. Justice Donald approved of the statement of law made by Baker J. in the Craig Estate decision.

[22] Thus, on an application for a declaration that a settlement agreement is binding on the parties, the court may apply the ordinary principles of contract law to determine the matter and grant or dismiss the application based on these principles.

[23] On the other hand, in an application to enforce a settlement agreement, the court has a broader range of remedies available to it that in an ordinary contract case, particularly because of s. 8 of the Law and Equity Act. This provision authorizes the court to grant a stay of proceeding in any cause or matter before it if it is just and fit in all of the circumstances. Alternatively, the court may exercise its discretion to leave the issue of the settlement agreement to the trial judge. As Garson J. (as she then was) says in Vickaryous v. Vickaryous, 2001 BCSC 930, 19 R.F.L. (5th) 195 at paras. 28 to 29:

[28] This application is brought pursuant to Rules 1, 2, 18A, 27 and 57 of the Rules of Court and s. 8 of the Law and Equity Act.

[29] In an application such as this, the court may grant or dismiss the application to enforce a settlement, pursuant to Rule 18A. Alternatively, pursuant to s. 8 of the Law and Equity Act the court may exercise its discretion in favour of granting a stay of the proceedings pending completion of the settlement agreement. The court also has a discretion to leave the settlement issue to be resolved at trial. (English v. Storey, [1999] B.C.J. No. 1647 (B.C.S.C.) and Hawitt v. Campbell (1983), 148 D.L.R. (3d) 341, 46 B.C.L.R. 260 (C.A.).)

[24] In Hawitt v. Campell, (1983) 148 D.L.R. (3d) 341, 46 B.C.L.R. 260 (C.A.) [Hawitt CA], , the Court of Appeal articulated the circumstances in which the court may refuse a stay of proceedings and held that the same factors should apply whether the application is for a stay of proceedings or for summary trial on the issue. These factors are described by MacFarlane J.A. in Hawitt CA at paras. 20 to 23:

[20] The judge may refuse the stay if:

1. there was a limitation on the instructions of the solicitor known to the opposite party;

2. there was a misapprehension by the solicitor making the settlement of the instructions of the client or of the facts of a type that would result in injustice or make it unreasonable or unfair to enforce the settlement;

3. there was fraud or collusion;

4. there was an issue to be tried as to whether there was such a limitation, misapprehension, fraud or collusion in relation to the settlement.

[21] Refusal of a stay would leave the parties to their remedy in the action or in an action on the settlement.

[22] My fourth point arises from an analogy between a summary application to stay, and an application for summary judgment. In either case, if there is a triable issue then the parties ought to be left to their remedy at trial.

[23] In exercising his discretion to refuse to grant a stay, a judge will consider not only whether there was the required misapprehension by the solicitor but whether the result of that would be unreasonable or unfair to the client. It is in that sense that I understand the reference to reasonableness and fairness in the authorities cited.

[25] Finally, in Robertson the Court of Appeal clarified that the judgment in Hawitt CA deals with an application for a stay of proceedings or summary relief and does not address the legal and equitable principles that ultimately govern whether the settlement is binding on the parties. The latter question is to be determined by the ordinary principles of contract law. As Lambert J.A. says in Robertson at 388:

…But the remarks made in the course of the reasons in Hawitt v. Campbell that a stay might be refused if a settlement obtained as a result of a misapprehension was unreasonable or unfair should not be regarded as introducing a rule that settlements are not binding if they are unreasonable or unfair. In my opinion, those remarks were intended to apply to the exercise of the judge’s discretion upon a summary application for a stay. A judge hearing such an application might refuse a stay, if there had been a misapprehension of instructions, on the ground that to allow it might be unjust. The result of a refusal would be to leave the parties to seek their remedies in the action, in which the settlement might be pleaded, or to seek them separately in an action on the settlement. In short, Hawitt v. Campbell deals with the considerations which apply to the judicial discretion under s. 8 of the Law and Equity Act to grant or refuse a stay. But those same considerations do not determine whether a settlement is binding or not.

[26] Applying these principles to the case at hand, I find it would be inappropriate to grant a stay of proceedings or to grant the summary relief claimed by the defendants. In my view, Mr. Burton has raised a triable issue that there was a unilateral mistake and unfair reliance upon it by the defendants. Further, he has raised a triable issue that the offer to settle was made under a misapprehension of the facts underlying the claim such that it would result in an injustice to enforce the settlement. The parties should be left to pursue their remedies in respect of the settlement agreement at the trial of the action set to commence on April 19, 2010.

Ultimately this case serves as an important reminder that great care should be taken before making a settlement offer in an ICBC Claim otherwise the consequences could cause regret.  If the parties to this lawsuit are unable to come to a resolution before the case goes to trial the presiding Judge will certainly be asked to grapple with this interesting issue.  If that occurs I will be sure to write about the reasons for judgement once they are released

BC Civil Sexual Assault Lawsuits Part 2- The Law of Vicarious Liability

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This is the second in my series of posts on some of the unique topics in BC Civil sexual assault lawsuits.  Yesterday I wrote about limitation periods, today I’ll address another important topic, the legal principle of “Vicarious Liability“.
Civil Lawsuits are designed to compensate victims who suffered harm at the hands of others.  Since one of the primary goals of civil litigation is compensation it is important to obtain judgement against a Defendant who has the ability to pay.  Otherwise the judgement may be worth little more than the paper it’s written on.
Lawyers call a judgement where a Defendant can’t pay a ‘dry judgement‘.  Given the stress, expense and time invested in a civil lawsuit the process is hardly worth the effort if a successful plaintiff ends up with a dry judgement.  In Civil sexual assault cases this often is a possibility.
Insurance contracts often contain exclusions for “intentional harm“.  Civil suits for damages for sexual assault are ‘intentional tort claims‘ and these are often caught by intentional harm exclusion clauses.  For this reason if a Defendant does not have assets (or applicable insurance coverage) a Plaintiff will have to consider whether a civil lawsuit will be worth the effort.
That is where the law of vicarious liability comes in.  Vicarious liability is a legal principle which in certain circumstances extends liability (fault) for a wrongful act to governments, corporations and institutions.  This doctrine can apply to intentional torts.
So in what circumstances can Courts impose vicarious liability in Canada?  This was addressed by the Supreme Court of Canada in a case called John Doe v. Bennett.  Specifically the Canadian High Court set out the following test:

20                              In Bazley, the Court suggested that the imposition of vicarious liability may usefully be approached in two steps. First, a court should determine whether there are precedents which unambiguously determine whether the case should attract vicarious liability.  “If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability”: Bazley, at para. 15;Jacobi, at para. 31. Vicarious liability is based on the rationale that the person who puts a risky enterprise into the community may fairly be held responsible when those risks emerge and cause loss or injury to members of the public.  Effective compensation is a goal.  Deterrence is also a consideration.  The hope is that holding the employer or principal liable will encourage such persons to take steps to reduce the risk of harm in the future. Plaintiffs must show that the rationale behind the imposition of vicarious liability will be met on the facts in two respects. First, the relationship between the tortfeasor and the person against whom liability is sought must be sufficiently close. Second,  the wrongful act must be sufficiently connected to the conduct authorized by the employer. This is necessary to ensure that the goals of fair and effective compensation and deterrence of future harm are met: K.L.B., supra, at para. 20.

21                               In determining whether there is a sufficient connection in the case of intentional torts, factors to be considered  include, but are not limited to the following (Bazley, supra, at para. 41):

(a)   the opportunity that the enterprise afforded the employee to abuse his or her power;

(b)  the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);

(c)   the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;

(d)  the extent of power conferred on the employee in relation to the victim;

(e)   the vulnerability of potential victims to wrongful exercise of the employee’s power.

The employer’s control over the employee’s activities is one indication of whether the employee is acting on his or her employer’s behalf: K.L.B., supra, at para. 22.  At the heart of the inquiry lies the question of power and control by the employer: both that exercised over and that granted to the employee. Where this power and control can be identified, the imposition of vicarious liability will compensate fairly and effectively.

In the Bennett Case the Supreme Court of Canada went on to find that ‘diocesan enterprise‘ could be held liable for the intentional abuse of a priest.  The Court stated as follows:

32                              In summary, the evidence overwhelmingly satisfies the tests affirmed in Bazley, Jacobi and K.L.B.  The relationship between the diocesan enterprise and Bennett was sufficiently close. The enterprise substantially enhanced the risk which led to the wrongs the plaintiff-respondents suffered. It provided Bennett with  great power in relation to vulnerable victims and with the opportunity to abuse that power.  A strong and direct connection is established between the conduct of the enterprise and the wrongs done to the plaintiff-respondents. The majority of the Court of Appeal erred in failing to apply the right test.  Had it performed the appropriate analysis, it would have found the Roman Catholic Episcopal Corporation of St. George’s vicariously liable for Father Bennett’s assaults on the plaintiff-respondents.

This was a crucial finding since priests take a vow of poverty.  Accordingly the Plaintiff may have faced a dry judgement if not for the doctrine of vicarious liability.  When considering a civil action for damages from sexual assault its important to consider if a Defendant has the ability to pay.  If not the analysis should extend to whether a Defendant with the ability to satisfy a judgement may be vicariously liable.

British Columbia Civil Sexual Assault Lawsuits and Limitation Periods

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With the amount of quality legal articles available on the Internet these days there is a surprising lack of information concerning civil sexual assault lawsuits in British Columbia.  Perhaps it’s because this topic can be considered taboo, or perhaps its because there are relatively few lawyers who are experienced in prosecuting these types of claims.  Whatever the reason, I thought it would be appropriate to author a few articles addressing this unique area of law.  Today’s article will deal with an important topic; limitation periods.
Limitation Periods are legal rules that dictate the time frame in which a lawsuit needs to be brought.  If a claim is not brought within an applicable limitation period it can be dismissed by the Court, not on its merits but because it was simply not brought in time.
In British Columbia limitation periods for civil suits are set out in a statute called the Limitation Act.  Different limitation periods apply to different types of lawsuits.
Often times serious injury victims struggle with the decision of whether to sue.  Time is spent focusing on recovery instead of restitution.  When a victim finally decides to sue it can add insult to injury to learn that a limitation period expired.
Sexual assault victims often struggle more so than others with the decision of whether to file a lawsuit.   It is not unusual for substantial amounts of time to pass before victims of sexual abuse come to terms with the harm that has been caused.  For this reason the law in British Columbia creates a special exception for civil sexual assault claims.
Specifically, section 3(4)(l) of the BC Limitation Act holds that “a cause of action based on sexual assault”  is not “governed by a limitation period and may be brought at any time“.
This is important and powerful legislation.  The British Columbia Justice System respects the fact that the healing process can be lengthy and does not punish sexual abuse victims with artificial time limits within which they can access the civil courts of this Province.

More on the Standard of Care When Driving Near Children

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As I’ve previously written, children can be unpredictable.  Accordingly drivers need to use extra care when passing by children otherwise they can be found liable for an accident in circumstances where their actions may not otherwise be considered careless.  In legalese, the presence of children raises the ‘standard of care‘.  Reasons for judgement were released today discussing this area of law in an unsuccessful personal injury lawsuit.
In today’s case (Chen v. Beltran) the Plaintiff was involved in an unfortunate accident in New Westminster, BC in 2006.  The 11 year old Plaintiff was lying on a skateboard travelling down a steep hill.  The Plaintiff lost control and entered an intersection against a red light.  He was struck by an oncoming motorist and was injured.
The Plaintiff’s lawyer agreed that the Plaintiff was at fault for this accident but argued that the driver was partially at fault as well.  Mr. Justice Greyell disagreed and found the Plaintiff was fully at fault for the incident.  Before dismissing the case, however, Mr. Justice Greyell summarized the standard of care imposed on motorists when driving by children.  The Court stated as follows:

[25] The law to be applied in determining the duty of a driver when there are children in or about the area was set out by Hood J. in Bourne (Guardian ad litem of) v. Anderson, [1997] B.C.J. No. 915, 27 M.V.R. (3d) 63 (S.C.) at paras. 55 and 56:

55 In my opinion, once the presence of a child or children on a road is known, or should have been known, to the driver of a vehicle proceeding through a residential area where children live, that driver must take special precautions for the safety of the child or children seen, and any other child or children yet unseen whose possible appearance or entrance onto the road is reasonably foreseeable. The precautions include keeping a sharp look out, perhaps sounding the horn, but more importantly, immediately reducing the speed of the vehicle so as to be able to take evasive actions if required.

…

The above standard of care has been followed in numerous subsequent decisions:  see for example, Hixon (Guardian ad litem of) v. Roberts, 2004 BCCA 335; Mitchell (Guardian ad litem of) v. James, 2007 BCSC 878; Johnson v. Eyre, 2009 BCSC 1711.

[27] The general principle underlying any determination of fault or blameworthiness rests on a finding whether the defendant could reasonably foresee that his or her conduct would cause or contribute to the accident.  When it is known there are young children in the area drivers must use extra care and attention as children do not always behave as adults would in similar circumstances.  In Chohan v. Wayenberg (1990), 67 D.L.R. (4th) 318 (B.C.C.A.), the Court of Appeal stated at 319:

… There is, of course, a need for constant vigilance for children on the roads, especially in suburban areas, for the very reason that they can not be expected always to act with the same care that is expected of adults.

While this greater standard of care ultimately did not assist the Plaintiff in succeeding in his lawsuit, this case demonstrates that our Courts will place greater scrutiny on the actions of a driver when they are driving by an area where there are children.