Author: ERIK MAGRAKEN

StatsCanada Earnings Data Ruled Admissible in Injury Trial Without Economist or Other Introductory Witness

Written by ERIK MAGRAKEN on July 14, 2020. Posted in Uncategorized.

Helpful reasons for judgement were recently shared with me finding that StatsCan evidence about wages were admissible in a personal injury trial even without them being incorporated in an economists report or otherwise being introduced by a witness.

In the recent case (Reddy v. Enokson) the Plaintiff was seeking damages following injuries in a vehicle collision. In the course of the trial the Plaintiff sought to introduce data from StatsCan “concerning the average hourly wage rate of persons 15 years and over in Canada“. The Defendant objected arguing “these statistics ought not to replace a proper expert’s opinion. ”

Mr. Justice Blok found the evidence admissible as a public document meeting the admissibility provisions of s. 29 of BC’s Evidence Act.

In reaching this conclusion the Court provided the following reasons:

Jury Notice Struck So Judge Alone Trial Can Proceed Amidst Covid-19 Pandemic

Written by ERIK MAGRAKEN on July 13, 2020. Posted in BCSC Civil Rule 12.

Reasons were published today by the BC Supreme Court, Vancouver Registry, striking a jury notice so a trial could proceed without the need for a lengthy adjournment.

In today’s case (Vacchiano v. Chen) the Plaintiff was injured in a 2015 collision. Both liability and damages were contested. ICBC elected trial by jury which was scheduled in July, 2020. Due to Covid-19 all civil jury selections were suspended and jury trials cancelled up to and including September 7, 2020 everywhere in the province. As a result the trial would face a lengthy adjournment, about 2 years, if the matter was to proceed with a jury.

The Plaintiff brought an application for the jury notice to be struck. The Court agreed that doing so would be fair as a 2 year adjournment would be more prejudicial to the parties than the Defendant losing their prefered mode of trial. In reaching this decision Master Muir provided the following reasons:

Trial Adjourned Where IME’s “Frustrated” Due to Misunderstanding of Covid-19 Related Deadlines

Written by ERIK MAGRAKEN on July 13, 2020. Posted in Uncategorized.

Interesting reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, granting a defence adjournment request where defence failed to obtain needed defense medical opinion evidence in part due to a misunderstanding of the waiver of service deadlines due to Covid-19.

In the recent case (Sidhu v. Sidhu) the parties agreed that the plaintiff would be examined by a defence physiatrist. When defence counsel selected a date the Plaintiff was of the view that it was beyond the date of the service of reports noting

“We write regarding your letter requesting the plaintiff’s attendance at an IME with a physiatrist.

We do not agree that the Rule 11-6 deadline for service of originating reports 84 days before trial has been suspended. You are now in receipt of the plaintiff’s expert reports. You are entitled to respond to those reports but the time for fresh opinion based on a physical assessment has passed. This is unrelated to the COVID‑19 epidemic.“

The Plaintiff did not attend. Defence counsel did not bring an application to compel attendance in part relying on the assertion of plaintiff;s counsel. In granting an adjournment the Court noted the above premise was incorrect as Covid-19 Notice #8 suspended the deadlines for the service of reports.

The court found that the IME process was ‘frustrated‘ by this misunderstanding and found a trial adjournment was an appropriate remedy. In reaching this conclusion Master Cameron provided the following reasons:

No Prejudice Adding Correct Defendants to Claim Where ICBC Provided Plaintiff With Wrong Names

Written by ERIK MAGRAKEN on June 23, 2020. Posted in Uncategorized.

Short but helpful reasons were published today by the BC Supreme Court, Victoria Registry, addressing a fact pattern that sometimes arises in litigation involving ICBC.

In today’s case (Littlejohn v. Clavelle) the Plaintiff was injured in a collision and sued for damages. Prior to staring the lawsuit counsel for the plaintiff asked ICBC to provide information concerning the identity of the Defendants. ICBC provided this information but did so partly in error. As a result the Plaintiff commenced the lawsuit but failed to name all appropriate parties.

The Plaintiff successfully applied to add the correct party to the litigation. Despite the passage of the two year limitation period the court noted there was no prejudice in allowing amendment. In doing so Mr. Justice Steeves provided the following reasons:

Court Rejects Expert Witness Who Gave “Evidence Unworthy of Reliance”

Written by ERIK MAGRAKEN on June 22, 2020. Posted in Uncategorized.

In one of the stronger judicial reasons rejecting expert witness evidence that I have read in recent years reasons for judgement were published today by the BC Supreme Court, Courtenay Registry, finding a defence expert gave evidence that was superficial, out of his area of expertise and “unworthy of reliance“.

In today’s case (Radewulf v. Kelly) the Plaintiff sustained chronic and disabling injuries in two collisions. The Defendants retained an orthopaedic surgeon who provided the court with evidence minimizing the plaintiff’s symptoms and their connection to the collisions. In outright rejecting this opinion the Court provided the following critical reasons noting that even the defence lawyer backed away from the witness’ opinions:

Defence Expert Evidence Rejected After Testimony With “Considerable Controversy”

Written by ERIK MAGRAKEN on June 22, 2020. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, rejecting the opinion evidence of a defence hired orthopaedic surgery on the grounds that the opinions were prohibited advocacy.

In today’s case (Dhugga v. Poirier) the Plaintiff was involved in 2 collisions that the Defendants conceded liability for. The collisions resulted in chronic injuries. In the course of the litigation the Defendants retained an orthopaedic surgeon who provided evidence minimizing the connection between the plaintiff’s symptoms and the collisions. In rejecting this evidence as advocacy in the guise of opinion Mr. Justice Jenkins provided the following critical comments:

Plaintiff Awarded Costs Despite Jury Awarding Damages Far Less than ICBC Formal Setttlement Offer

Written by ERIK MAGRAKEN on June 18, 2020. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Reasons for judgement were published today by the BC Supreme Court, Penticton Registry, dismissing a defence application for costs and awarding a Plaintiff full costs despite receiving a jury award substantially smaller than a pre trial formal settlement offer.

In today’s case (Duarte v. McMillan) the Plaintiff was injured in a 2016 collision that the Defendant accepted fault for. The matter proceeded to trial by Jury, an election made by ICBC on the Defendants behalf.

Prior to trial the Plaintiff made a formal settlement offer for $175,000. The Defendant made several formal offers with the highest being $88,000 plus costs. At trial the jury awarded far less with global damages being assessed at $22,000 being comprised of $7,300 for costs of future care and loss of homemaking capacity and $14,700 for non-pecuniary damages.

ICBC sought to have the Plaintiff pay costs. The court declined and instead awarded the Plaintiff full costs finding with the evidence available it was reasonable to reject the settlement offer and proceed to trial. In reaching this decision Madam Justice McDonald provided the following reasons:

BC Supreme Court Strikes Jury So Injury Trial Can Proceed

Written by ERIK MAGRAKEN on June 17, 2020. Posted in Uncategorized.

In the wake of the Covid-19 Pandemic one of the many directions of the BC Supreme Court was that jury trials could not proceed for the time being creating a balancing of interests between trials proceeding in a timely fashion vs the right of a party to have their preferred mode of trial.

Today reasons for judgement were pronounced considering this direction and ultimately striking a civil jury desired by a Defendant in a personal injury claim.

In today’s case (Cheung v. Dhaliwal) the Plaintiff was injured in a 2016 collision. The claim was set for trial on June 22, 2020. Both liability and quantum were at issue. The Defendant desired trial by jury which would have resulted in an adjournment. The plaintiff brought an application to strike the jury notice so it could proceed on the date set. In finding the prejudice to the Plaintiff in adjournment outweighed the prejudice to the Defendant by having a judge alone trial Master Vos provided the following reasons:

Browne v. Dunn Not Violated Where It is “Obvious That The Cross‑Examiner Intends To Impeach The Witness’s Testimony”

Written by ERIK MAGRAKEN on June 16, 2020. Posted in Civil Procedure.

Today reasons for judgment were published by the BC Court of Appeal upholding a trial decision finding a motorist in breach of his insurance coverage due to impairment. In doing so the Court outlined limitations on the successful use of the Rule in Browne v. Dunn.

The rule in Browne v. Dunn generally requires that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross‑examination while he or she is testifying.

In today’s case (Hamman v. ICBC) the Appellant caused personal injuries and property damage in a motor vehicle collision. ICBC denied coverage arguing he was impaired. Following the collision various evidence was gathered documenting the appellants possible impairment. At trial ICBC relied on the evidence of a Sgt. who “made observations of the appellant consistent with impairment“. The notes of this Sgt. were shared with the appellant prior to trial.

During the course of trial the appellant testified and in cross examination the Sgt.’s observations were not put to him for comment. He argued this violated the rule in Browne v. Dunn. The BC Court of Appeal disagreed noting in some cases it is so obvious that testimony impeachment is in play that the rule is not violated. In reaching this conclusion the court provided the following reasons:

No Adjournment For Unilaterally Scheduled Trial During Defence Counsels Possible Vacation Time

Written by ERIK MAGRAKEN on June 12, 2020. Posted in BCSC Civil Rule 12.

Reasons for judgement were published today dismissing an adjournment application for a trial that was unilaterally set down during a time that opposing counsel kept free for a possible vacation. In part the Court noted that the vacation plans may very well be off due to the Covid-19 pandemic.

In today’s case (Henderson v. Fisher) the Plaintiff claimed damages for injuries sustained in a collision. The matter was set for trial on January, 2020 but this was adjourned because no judge was available. The parties could not agree on a date to reset the trial for. The Plaintiff unilaterally set the matter down for September, 2020, a month that the Defence lawyer booked off “for a personal vacation out of the country“. An application to adjourn was dismissed with the Court noting the vacation plans may very well be thwarted due to Covid19.

In dismissing the application Mr. Justice Branch provided the following reasons: