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The Answer is Discretion…Jury Strike Application Fails in Case with 32 Expert Reports

Written by admin on . Posted in BCSC Civil Rule 12, Jury Trials, Uncategorized. 94 Comments on The Answer is Discretion…Jury Strike Application Fails in Case with 32 Expert Reports

Last month I highlighted reasons for judgement where a jury strike application succeeded in a personal injury trial with 30 expert reports was deemed “too complex” for that mode of trial.  In a good illustration that there is no certain outcome when it comes to discretionary orders, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing a jury strike application in a case with fairly similar facts.
In this week’s case (Henshall v. Plona) the Plaintiff alleged brain injury from a 2005 collision.  Liability was disputed and further the defendant argued that “credibility of the plaintiff is a key issue at trial. The defendants say that the evidence reveals significant conflicts in the evidence, including the plaintiff’s failure to disclose his significant pre-accident history of head injuries and drug and alcohol use.”
The matter was set for a 25 day trial which was combined with two other injury claims the Plaintiff was advancing from subsequent collisions.   In the course of the lawsuit a total of 32 expert reports were obtained by the litigants.  The Plaintiff argued the sheer volume of evidence would “overwhelm a jury“.  Master Taylor disagreed and dismissed the Plaintiff’s application concluding as follows:
[27]         Given the particular facts of this case, I have concluded that the applicant has failed to satisfy me that the jury notice should be struck based on the grounds articulated in R. 12-6(5)(a), either alone or collectively. Accordingly, the application is dismissed with costs to the defendants.
 

Injury Claim With 30 Expert Reports Deemed "Too Complex" For Jury Trial

Written by admin on . Posted in BCSC Civil Rule 12, Jury Trials.


Reasons for judgement were recently published by the BC Supreme Court, Victoria Registry  striking a jury notice in a complex personal injury claim.
In the recent case (Campbell v. McDougall) the Plaintiff was involved in two collisions, the first in 2006, the second in 2008.  The trials were set to be heard together with ICBC seeking trial by jury.  The Plaintiff brought an application to strike the jury notices arguing the claims were too complex for a jury.  Mr. Justice Gaul agreed and provided the following reasons:
[14]         The plaintiff has served approximately 20 expert reports authored by 16 different experts. In reply, the defendants have served 10 expert reports prepared by seven experts. Combined, these reports amount to approximately 700 pages. The jury is therefore facing the prospect of examining, considering, digesting, and retaining information from approximately 30 reports authored by 23 experts. The range of expert evidence is as broad as it is long, and it includes: general medicine, physiatry, psychiatry, neuropsychology, psychology, anaesthesiology, neurology, plastic surgery, occupational therapy, physiotherapy, forensic engineering and economic actuarial analysis.
[15]         In addition to these expert reports, there are also over 1,200 pages of clinical records relating to the plaintiff’s condition and treatment. Many of these records will be used in cross-examination of the plaintiff and consequently the jury will need to be instructed on the proper use of such records…
[32]         In my opinion, the number of expert reports involved in this litigation, the varying opinions contained in those reports, the medical terms and principles referenced in the reports, and the plaintiff’s unique educational and professional background combine to make this case a significantly complex one…
[37]         I find that the issues that will be addressed at the joint trial of these matters will require the trier of fact to engage in a prolonged examination of documents, as well as a scientific investigation. I also find that the issues in dispute between the parties are of an intricate or complex nature.
[38]         I have reviewed and considered the authorities Ms. Stevens has submitted where juries have addressed complex issues in personal injury cases, as well as other types of claims, over the course of long trials. Having done so and having regard to the principles articulated in Nichols, it is my considered opinion that the examination and investigation in the present case cannot be made conveniently with a jury. Moreover, given the intricate and complex nature of the issues in dispute, in my view this case is not one that is suitable for trial with a jury.
[39]         The plaintiff’s applications are granted. The jury notices in both cases are struck out. The joint trial of these matters will therefore take place before a Supreme Court justice sitting without a jury.

Unknown Prognosis a Barrier to Quantum Trials, But Not Liability

Written by admin on . Posted in BCSC Civil Rule 12, Uncategorized. 55 Comments on Unknown Prognosis a Barrier to Quantum Trials, But Not Liability


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the fact that an unknown prognosis is a true barrier to a personal injury quantum claim proceeding to trial.
In this week’s case (Dazham v. Nachar) the Plaintiff sued the Defendant for injuries sustained in a 2009 collision.  Fault was disputed.  As the matter approached trial the Plaintiff sought an adjournment arguing that the matter was not yet ready as the Plaintiff’s physicians were unable to comment on his prognosis.  The Court agreed but instead of adjourning the entire matter severed the issues of quantum and liability and ordered that the trial proceed solely on the issue of fault.  In doing so Master Baker provided the following reasons:
[12]         Nevertheless, I have concluded that this is not one of those cases where the injuries can be said to have plateaued, that it is now just a matter of waiting. That is not the case to me at all. Both physicians have indicated further surgical intervention. They have also indicated that that is a contingency; in essence  a) whether the cortisone injections work; and b) whatever the MRI says.
[13]         So by no means are we at a point where the extent of Mr. Dazham’s injuries and their expected recovery can be given with satisfactory accuracy. I just do not think we are there yet.
[14]         As I say, the liability is very much in issue, and why it is generally the situation or circumstance that the court prefers not to sever issues, when we have a lay witness, when we have such an active issue. I think it is in everyone’s interest that that matter be resolved first, and then as a consequence, rather than adjourn the matter, that the issues of liability and quantum be severed and that the matter of liability proceed.
[15]         With respect, I adopt Mr. Justice Finch’s comments in Radke v. M.S., 2006 BCCA 12 at paragraph 24, in which he comments that:
If the plaintiff’s injuries have not resolved to the point where damages can fairly be tried, the parties may still try the liability issues while the events are fresh in the witnesses’ memories.
[16]         I understand Ms. Meade’s concerns about credibility being an important aspect, both as to liability and as to damages, but I can’t see that that is a sufficient concern or basis for not severing. I also think severing is the appropriate approach, rather than adjourning, as I have already said.
[17]         As a consequence, there will be an order directing that the issues be severed.
You can click here to read my archived posts addressing adjournment applications and severance applications in the BC Courts.
 

Parties Cannot Rely on Opposing Litigant's Jury Notice Under The New Rules of Court

Written by admin on . Posted in BCSC Civil Rule 12, Jury Trials, Uncategorized. 60 Comments on Parties Cannot Rely on Opposing Litigant's Jury Notice Under The New Rules of Court

Reasons for judgement were released this week by the BC Supreme Court, Cranbrook Registry, concluding that under the New Rules a Plaintiff “is not entitled to have a jury trial by paying the jury fees associated with the jury notice filed by the Defendant“.
In this week’s case (Moll v. Parmar) the Plaintiff was injured in a 2006 collision.  The case had a complex pre-trial history that cannot easily be summarized but in short the matter was set for trial with only one live jury notice in place which was filed by the Defendant.  As trial neared the Defendant elected not to rely on the Jury Notice.  The Plaintiff brought an application allowing him to piggy-back on the Defendant’s Jury Notice.  Mr. Justice Abrioux held that this was not allowed and dismissed the application.  The court did, however, grant the Plaintiff leave to file a jury notice of their own.
In concluding that one party cannot rely on another’s Jury Notice under the New Rules the Court provided the following reasons:
 [1]             The plaintiff seeks to have the trial of this action heard by the court with a jury. The application was heard on July 12, 2012. It raises the issue as to whether under the Supreme Court Civil Rules, which came into effect on July 1, 2010, a party which did not file a jury notice may, nonetheless, rely on a jury notice filed by another party and secure a trial by jury by paying the required fees. In light of the pending trial date being August 13, 2012, I am delivering these oral reasons for judgment today. I reserve the right to edit these reasons although that process will not involve a change in the decision or in the reasoning…
[19]         The plaintiff’s submission is predicated on the word “and” at the conclusion of Rule 39(26)(a) not being present at the end of Rule 12-6(3)(a)(ii). The plaintiff submits the inclusion of “and” at the end of Rule 39(26)(a) formed the basis of William J.’s conclusion in Folk. It was only the party that issued the jury notice who was entitled to pay the jury fees associated with that notice.
[20]         I agree with the plaintiff that the word “and” at the end of Rule 39(26)(a) was an important factor in Folk. I do not agree, however, that its omission in Rule 12-6(3)(a)(ii) changes the state of the law. Rule 12-6(3) states, “a party may require that the trial of an action be heard by the court with a jury by doing the following”. Although “and” is not present, the words “by doing the following” were added in the introductory wording of the present subrule.
[21]         In accordance with Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, I read the subrule in its entire context “in its grammatical and ordinary sense harmoniously” with the Supreme Court Civil Rules. In doing so, I am of the view the words “by doing the following” had the effect of replacing the word “and” which appeared in Rule 39(26)(a).
[22]         Accordingly, as would have been the case under Rule 39(26), the plaintiff in this case is not entitled to have a jury trial by paying the jury fees associated with the jury notice filed by the defendant.

Lessons From the Toothbrush Case: Setting Aside An Adverse Party Notice

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure, Uncategorized.


Last year I discussed the practice of calling a Defendant during the course of a Plaintiff’s case in chief using the adverse party provisions of the BC Supreme Court Rules.  Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, in the highly publicized ‘broken toothbrush’ trial, addressing these and the circumstances where the Court can set aside an Adverse Party Notice.
In the recent case (Alnoor v. Colgate-Palmolive Canada Inc.) the Plaintiff alleged she was injured while brushing her teeth with a toothbrush manufactured by the Defendant.  She alleged that the toothbrush was negligently designed and sued for “substantial damages“.
In the course of the lawsuit the Plaintiff attempted to examine the President of Colgate-Palmolive Canada for discovery.   These attempts were dismissed with the Court finding that the President was not an appropriate witness to be examined in the circumstances of the case.
As trial neared the Plaintiff served an Adverse Party Notice on the Defendant requiring the president to testify at trial.   Madam Justice Wedge exercised her discretion under Rule 12-5(23) to set aside this Notice finding again that this was an inappropriate witness to be compelled at trial.  In doing so the Court provided the following reasons:

29] The recent decision of Mr. Justice Butler in Dawson v. Tolko Industries Ltd., 2010 BCSC 1384, examines the meaning and effect of these provisions in detail. He observed at para. 18 that the Court is granted only limited jurisdiction to set aside an adverse witness notice. It is only where the evidence of the person is “unnecessary” that the Court can set aside the notice.

[30] Further, as the Court noted at para. 19, it is only in a clear case that a judge should exercise his or her discretion to set aside a subpoena on the ground that the evidence is unnecessary. That is because the Court should be very cautious about second guessing the litigants concerning the benefits they may derive from calling a particular witness.

[31] I agree with those comments. However, the Court is also granted discretion under subrule (24) which provides that where an application is made to strike an adverse witness notice, the Court may make any order it considers will further the objects of the rules.

[32] As I noted earlier, Ms. Alnoor first attempted over two years ago to issue an appointment to examine Mr. Jeffery for discovery. However, the Court ruled that Mr. Jeffery was not the appropriate representative on the basis that his position in the company is strictly managerial. He has no knowledge pertaining to any of the issues arising in the litigation. Ms. Alnoor has been clear that she wants to call Mr. Jeffery, not because he has any knowledge of the issues in the lawsuit, but because he is the person within the corporation who is ultimately responsible for the corporation’s actions, its consumer safety policies, and its recall policies. She points to the various mission statements on the defendant’s website, published over Mr. Jeffery’s signature.

[33] Ms. Alnoor wishes to question Mr. Jeffery about his statement that the defendant is committed to consumer safety, about his responsibility for product safety, and its recall policies. She wants to ask Mr. Jeffery why the company did not recall the toothbrush model in question before she purchased one. Because Mr. Jeffery is the president, submits the plaintiff, he must be the one ultimately responsible to recall products and warn consumers, and she wants to question him about those responsibilities.

[34] The difficulty with Ms. Alnoor’s argument is that the evidence she seeks to elicit from Mr. Jeffery is not relevant to the proof of her claim. She has brought a negligence action against the defendant. She must establish that the defendant was negligent in the manufacture, design, and/or testing of the toothbrush such that it was defective, and that the defect caused the harm the plaintiff alleges she suffered when using it. Any acknowledgment by Mr. Jeffery that he is the person ultimately responsible for the defendant’s actions, including its recall policies, will not advance the plaintiff’s claim in any way.

[35] The identity of the person ultimately responsible and any acknowledgment by that person that he is ultimately responsible by virtue of his management position within the company is simply irrelevant to the negligence factors the plaintiff must prove in order to succeed in her claim.

[36] In the event that Ms. Alnoor does establish her claim, the corporation, not Mr. Jeffery or any other senior management person, will be held liable for the damages flowing from the corporation’s negligence. That is so whether or not Mr. Jeffery acknowledges the various responsibilities he has as the corporation president. The company will be liable whether or not Mr. Jeffery had any idea that his company was manufacturing a defective product.

[37] In short, the evidence Ms. Alnoor intends to elicit from Mr. Jeffery is not relevant to the issues in the lawsuit. Irrelevant evidence is not admissible. It is unnecessary evidence within the meaning of the Rule.

Examination For Discovery Evidence and Proper Procedure at Summary Trials

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 9, ICBC Liability (fault) Cases.

Update July 19, 2013 – the below decision was upheld in reasons for judgement released today by the BC Court of Appeal
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Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing the introduction of examination for discovery evidence at a summary trial.
In the recent case (Mawani v. Pitcairn) the Plaintiff was injured in a pedestrian/vehicle collision.  Fault was disputed and following a summary trial Mr. Justice Kelleher found both parties equally to blame.
In the course of the summary trial the Plaintiff tendered an affidavit which attached the transcript from the Defendant’s examination for discovery as an exhibit.   The Plaintiff’s application response clearly indicated that the Plaintiff was only relying on specific questions and answers from the examination.  Despite this the Defendant argued that the entire transcript was put in evidence by the Plaintiff therefore the Plaintiff was bound by the unhelpful answers.
Mr. Justice Kelleher rejected this argument finding that in circumstances where the Plaintiff clearly identifies the specific questions he is relying on such a harsh result is not justified.  The Court provided the following reasons:

[23]At the hearing before me, the defendant argued that the entire examination for discovery of the defendant is before me.  That is because of para. 46 of the earlier ruling:

[46]      … Neither the deposition evidence nor Mr. Pitcairn’s examination for discovery are tendered as part of Mr. Pitcairn’s case.  If they are before me at all, they are before me as part of Mr. Mawani’s case.  His evidence, as matters currently stand, includes both the entirety of the examination for discovery evidence, and an affidavit from Ms. Forrest disclosing those portions of the examination for discovery he intends to rely on.  It also includes the entirety of the deposition evidence, but as I already noted, the rules do not provide for the admissibility of the deposition on summary trial unless arguably the court makes an order for its admission.  As I have also noted, there has been no application yet made by any party for that deposition evidence to be received in whole or in part.

[24]I disagree with the defendant that the entire examination for discovery is before me.  Mr. Justice Harris went on to direct, at para. 69, that plaintiff’s counsel file an application response which sets out the material on which he relies as part of the evidence in his case.  Mr. Gourlay did that on February 29, 2012.

[25]Mr. Arvisais argues that the entire transcript is in evidence.  In a conventional trial, the transcript would not be an exhibit.

[26]The application response filed February 29, 2012, makes it clear that the plaintiff is relying on certain questions and answers only.  Despite Mr. Justice Harris’s statement at para. 46 of his reasons, which were published before the application response was filed, the plaintiff does now make clear what questions and answers are relied upon.  The attachment of the entire transcript of the examination for discovery is consistent with the “proper procedure” outlined by Burnyeat J. in Newton v. Newton, 2002 BCSC 14.

Practice Direction 36 – Trial Management Conferences Allowed to Be Waived by Consent

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure.

(UPDATE – August 31, 2012 – PD 36 has been repealed and replaced with PD 37)
Addressing concerns that mandatory Trial Management Conferences add unnecessary time and expense to litigation, Practice Direction 36 comes into force on September 4 which will allow parties to BC Supreme Court Civil and Family matters to apply to waive TMC’s.
The waiver of TMC’s is limited to Vancouver Registry trials 9 days or less in duration with no self-represented litigants involved.  Hopefully this directive will be expanded Province wide.

Examination for Discovery Caselaw Update: Scope of Proper Questions

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 15, BCSC Civil Rule 7, Uncategorized.


Two useful, albeit unreported, cases were recently provided to me dealing with objections to two fairly common examination for discovery questions and dealing with their propriety.
In the first case (Blackley v. Newland) the Plaintiff was injured in two motor vehicle collisions.  In the course of examining the Defendant for discovery, the Plaintiff’s lawyer asked a series of “do you have any facts known or knowable to you” questions addressing the specific allegations set out in the Pleadings such as:

  • do you have any facts known or knowable to you that relate in any way to whatever injuries Mr. Blackley received in this collision?
  • do you have any facts known or knowable to you that relate in any way to what pain or suffering Mr. Blackley has had because of this collision?

At trial, the Plaintiff proposed to read this series of questions and the answers that followed to the Jury.  Mr. Justice Williams held that while the exchange should not go to the jury as its prejudicial effect outweighed its probative value, the series of questions was entirely appropriate in the context of an examination for discovery.  Mr. Justice Williams provided the following comments:
[10]  Speaking generally, in this case, I do not find that the questions asked at the examination for discovery are improper.  They can be said to have been substantially informed by the statement of defence that was filed by the defendant.  As is usual, that statement of defence is replete with denials and positings of other alternative propositions.
[11]  The examination for discovery conducted by plaintiff’s counsel was obviously shaped in part as a response to the pleadings of the defendant and was an appropriate use of the examination process, specifically to discovery the defendant’s case.
In the second decision (Evans v. Parsons) the Defendant put a medico-legal report to the Plaintiff and asked the broad (and arguably compound) question “Okay.  Was there — the facts in Dr. Aiken’s report, was there anything that struck you as incorrect?“.  The Plaintiff’s lawyer objected to the question resulting in a chambers application.  The Defendant argued the question was fair and further that the limited two hour discovery in Rule 15 matters allowed this type of a short cut question.
Master Caldwell disagreed finding the question was too broad and vague.  In doing so the Court provided the following reasons:
All right.  Thank you.  Applications to have a subsequent examination for discovery done specifically to address what I do find as an extremely general and vague question which was asked and objected to at the first discovery.  That comment probably leads one to surmise the application will be dismissed, at it will.  There was an opportunity to specify what facts were being referred to, and counsel refused to further qualify.  There’s a reason for short discoveries in rule 15-1 cases.  Two hours were granted.  If this was an important question, it could have been addressed earlier in the discovery.  I don’t, in the circumstances of the context of the question, believe it to have been a fair question to the plaintiff.  It was far too general, and, as I say, defence counsel refused the opportunity to further qualify or narrow it.  I’m not going to force the Plaintiff to answer such a general question.  Application is dismissed.  Costs to the Plaintiff.
To my knowledge these judgements are not yet publicly available.  As always, I’m happy to provide a copy to anyone who contacts me and requests copies.

Fixed Trial Date a Prerequisite for Trial Management Conference

Written by admin on . Posted in BCSC Civil Rule 12. 49 Comments on Fixed Trial Date a Prerequisite for Trial Management Conference


Reasons for judgement were released today by the BC Supreme Court, Penticton Registry, confirming that a Trial Date needs to be fixed before the Court has the authority to conduct a Trial Management Conference.
In today’s case (Landis v. Witmar Holdings Ltd.) the Claimant unilaterally set down a Trial Management Conference before a trial date was secured.  The Respondent argued that the conference was a nullity in these circumstances.  Mr. Justice Punnett agreed and in doing so provided the following reasons:

[5] Trial management conferences are a creation of the new Rules and are governed by Rule 12-2.  The objective of a trial management conference is to provide increased judicial supervision of pre-trial steps of litigation and the conduct of trials.  The rationale for increased judicial supervision is to provide assistance to parties in moving the case forward consistent with the overall objective of the Rules, particularly the proportionality principles.

[6] The requirement under Rule 12-2(1) to hold a trial management conference at least 28 days before the scheduled trial date indicates that a trial must be set before a trial management conference is scheduled.

[7] Rule 12-2(1) reads:

Unless the court otherwise orders, a trial management conference must take place at least 28 days before the scheduled trial date, at a time and place to be fixed by a registrar.  [Emphasis added]

[8] Without a trial date a judge is unable to address the issues referred to in Rule 12-2(9), nor would counsel be in a position to comply with the requirements of Rule 12-2(3) respecting the filing of trial briefs.

[9] Consequently, the trial management conference should not have been set down.  A notice of trial fixing a trial date must be issued before a trial management conference can be scheduled.

[10] The trial management conference set for June 11, 2012 is struck.