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Exploring Pre-Existing Injury on Discovery – Forever Not Always OK

Written by ERIK MAGRAKEN on . Posted in BCSC Civil Rule 7.

There is no shortage of caselaw addressing the obligations to produce historic clinical records when a plaintiff’s pre-existing health is at issue.  When it comes to the scope of fair questions at discovery the case law is far more sparse.  To this end helpful reasons for judgment were recently published by the BC Supreme Court discussing this issue.

In the recent case (Andrist v. Bryant) the Plaintiff was involved in a vehicle collision and sued for damages.  The Defendant plead that the plaintiff had pre-existing injuries and there was some further evidence this was the case.  Plaintiff’s counsel was ok with questions about the plaintiff’s health in the two years preceding the crash.  The defendant wished to explore the issue without this limit and the disagreement eventually spilled over to a chambers application.

In addressing the fact that limits can be placed on questioning pre-existing health Mr. Justice Tindale noted that the correct balance in this case likely lies somewhere between the Plaintiff’s position of only 2 years and the Defendants position of a lifetime.  The court provided the following reasons:

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Pre Accident Medical Records Are Not Producible “as of right, or on demand” in Injury Claims

Written by ERIK MAGRAKEN on . Posted in BCSC Civil Rule 7.

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, providing useful comments on disclosure obligations of personal injury litigants under the BC Supreme Court Civil Rules.

In today’s case (Holmberg v. McMullen) the Plaintiff suffered “significant injuries” as a result of two vehicle collisions and sued for damages.  In litigation the Defendants requested various pre accident medical records and pharmacological records arguing that when serious injuries are alleged such documents must be produced.  A Master disagreed and dismissed the application.  The Master’s decision was appealed which was also dismissed.

In noting that parties have no obligation to produce documents not in their possession or control in the first phase of document production and further that pre accident medical records are not producible on demand and as of right even in the face of serious injuries being disputed on the pleadings Mr. Justice Johnston provided the following reasons:

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ICBC Not Allowed To Withdraw Admission of Fault Late in Litigation

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, considering a request to withdraw a formal admission of fault for a vehicle collision in the deep stages of litigation.
In today’s case (Bodnar v. Sobolik) the Plaintiff was involved in a 2014 collision.  He sued alleging the Defendants were at fault.  ICBC, the Defendant’s insurer, admitted fault in the course of the lawsuit.  As the trial progressed the Defendants retained an engineer who viewed video of the crash and concluded “the speed of the plaintiff vehicle as 74 km/hr in a 50 zone“.  Based on this the Defendants sought to withdraw the admission of fault.  In refusing the request the Court noted the litigation was mature and it would not be in the interests of justice to allow it.  In dismissing the application Mr. Justice McEwan provided the following reasons:

[13]         The Notice of Civil Claim was filed October 11, 2016. The Response to Civil Claim was filed January 12, 2017, formally admitting liability. On May 30, 2017, Mr. Bo Baharloo assumed conduct of the file.

[14]         ICBC clearly understood the material contained on the video footage. The admission was not made hastily, inadvertently and without knowledge of the facts. Successive adjusters worked on the file and gave instructions to admit liability with full knowledge of the video footage. At the time liability was admitted ICBC had the video footage. The defendants had been aware of the existence of video footage when they were provided with a copy. The preparation of a report on September 28, 2018 was well after ICBC and defence counsel had both received a copy of the video footage.

[15]         At this late stage both cars have been written off and are no longer available for inspection.

[16]         It is not in the interests of justice to allow a withdrawal of the admission of liability because there is now a difference of opinion about the cause of the accident.

[17]         The application is dismissed. In saying that I say nothing about contributory negligence or whether it is possible to plead or amend the pleadings to raise the issue.

[18]         I should say that I have considered the cases Boyd v. Brais, 2000 BCSC 404 and Miller v. Norris, 2013 BCSC 552 as nearest to the present situation.

[19]         The application is dismissed with costs to the plaintiff.

Court Finds BCSC Rules Require Actual Insurance Policy Production

Written by admin on . Posted in BCSC Civil Rule 7.

Several years back the BC Supreme Court Rules were amended requiring parties to a lawsuit to disclose any policy of insurance that’s in play that may satisfy a judgment granted in the action.
Since the rule amendment came into force I am unaware of any cases commenting on its scope of disclosure (other than cases commenting on the relevance of insurance on costs orders) until now.  This week the BC Supreme Court, Victoria Registry, published reasons for judgement finding this rule requires the full policy to be disclosed.
In this week’s case (Sinnett v. Loewen) the Plaintiff sued for damages following a vehicle collision.  The Defendant, after being pressed for disclosure, provided “a screenshot taken from ICBC’s records of the particulars of the defendant’s insurance in effect at the time of the accident”.
The Plaintiff brought application seeking disclosure of the actual policy in place.  In granting the request Master Bouck provided the following reasons:

[15]         In its decision, the Court of Appeal takes a broad view of what information should produced pursuant to the above-cited rule. For example, such information is not limited to an actual document detailing a policy of insurance but rather encompasses information about “insurance coverage.”

[16]         Furthermore, that Court found that all Supreme Court Civil Rules ought to be interpreted in such a fashion as to encourage the settlement of claims: para. 129. Thus, by disclosing their respective insurance coverages (including any UMP coverage available to the plaintiff), the parties in this case will be in a more informed position to reach a negotiated settlement.

[17]         The defendant in the case at bar further submits that there is no evidence before the court to suggest that another insurance policy (that is, one providing “excess coverage”) exists. This is true, but given the mandatory language used in SCCR 7‑1(3), there is an obligation on the defendant to list any such documents. If no such document appears on the defendant’s list, the plaintiff may choose to pursue the existence of the documents at an examination for discovery. If listed, the issue of a particular document’s relevancy and thus its admissibility into evidence can still be challenged by the defendant at trial: SCCR 7‑1(4).

[18]         In the result, there will be an order that the defendant include in his list of documents any insurance policy or certificate of insurance or any other type of document that discloses insurance coverage under which an insurer may be liable to satisfy in whole or any part of a judgment granted in this action or to indemnify or reimburse the defendant for any money paid by the defendant in satisfaction of the whole or any part of such judgment.

Court Prohibits Surveillance During Defence Medical Exam

Written by admin on . Posted in BCSC Civil Rule 7.

Useful reasons for judgement were published this week by the BC Supreme Court, Nanaimo Registry, finding it is appropriate to prohibit a Defendant from conducting video surveillance of a plaintiff who is compelled to attend a Defence medical examination in a personal injury lawsuit.
In the recent case (Moquin v. Fitt) the Mr. Justice Thompson provided the following reasons justifying this restriction:

[21]         The defendant nominates a R. 7-6 medical examiner, but it is the Court that appoints the examiner and orders the plaintiff to attend for the examination at a particular time and place. On the dates of the medical examinations, the plaintiff will not be in public on journeys of his own choosing. If the defendant or the defendant’s insurer takes advantage of the opportunity created by court order to engage in surveillance then the defendant might be seen by a reasonable observer to be acting in close concert with the Court. Partisan conduct aligned with the court order may be seen as lessening or compromising the Court’s neutrality, and the Court must, of course, zealously protect its reputation for impartiality.

[22]         Barring surveillance on the trip to or from the medical examinations is hardly a significant barrier to the defendant’s ability to gather information, and in my view the imposition of a surveillance bar and the consequent chance that the trier of fact might be deprived of some relevant information is a small price to pay to guard the Court’s reputation. Returning to R. 13-1(9), I think the non-surveillance condition promotes the just determination of this proceeding — a stated object of the Rules — because it prevents the possibility of conduct which might degrade the perception of the Court’s impartiality.

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

Written by admin on . Posted in BCSC Civil Rule 7.

The BC Supreme Court Rules, which used to be open ended with respect to examinations for discovery, now have time limits in place with the Court retaining discretion to extend these limits in appropriate circumstances.
Unreported reasons for judgement were recently released considering and denying such an application with the Court suggesting counsel “focus” their remaining time appropriately.
In the recent case (Ross v. Casimong) the Plaintiff was injured in a 2009  collision and sued for damages.  The claim was prosecuted in the usual course (outside of fast track) with the present Rules allowing 7 hours of discovery.  The Plaintiff was examined twice with approximately 44 minutes of the allotted 7 hours remaining.  Defence counsel brought an application seeking a further discovery and allowing up to two hours to finish the job.  The Court dismissed the application noting a focused discovery could canvass what was needed in the remaining time.  In dismissing the application Master Dick provided the following reasons:
Master Dick Reasons for Judgement

Double Costs Ordered For Unreasonable Response to "Notice to Admit"

Written by admin on . Posted in BCSC Civil Rule 7.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry finding defendants at fault for a vehicle collision and further ordering double costs to be paid following an ‘unreasonable’ refusal to admit facts set out in a notice to admit.
In today’s case (Ceperkovic v. MacDonald) the Defendants were sued for a three vehicle collision that they were ultimately found liable for.  Prior to trial they were served with a Notice to Admit seeking admission of various facts regarding the circumstances of the crash.  The Defendants did not admit all of these facts requiring ultimate proof at trial.
In finding the refusal was unreasonable and ordering double costs Madam Justice Dillon set out the following test to be utilized in these circumstances along with the following reasons:

[38]         In summary, the failure to admit the truth of a fact may be unreasonable within the meaning of Rule 7-7(4) if:

(a)      the truth of the fact is subsequently proved;

(b)      the fact was relevant to a material issue in the case;

(c)      the fact was not subject to privilege;

(d)      the notice to admit was not otherwise improper;

(e)      the notice to admit was reasonably capable of evaluation within the time required for response; and

(f)       the refusing party had no reasonable grounds for believing that it would prevail on the matter.

…

[43]         While the cost consequences of an unreasonable failure to admit are usually confined to the costs of proving the truth of facts or the authenticity of documents, the power conferred by Rule 7-7(4) to penalize a party by awarding additional costs or depriving a party of costs “as the court considers appropriate” suggests that in an appropriate case the court could go further. At the least, it is not outside of contemplation that if the entire trial could have been avoided had reasonable admissions been made (for example, if the originating party could have applied for judgment on admissions under Rule 7-7(6)), the party who unreasonably failed to admit the facts could be penalized by an award of additional costs for all steps taken following delivery of the notice to admit.

[44]         Here, the plaintiff bus driver would not have had to lead any evidence and would not have had to cross-examine other parties or witnesses if the facts had not been unreasonably denied. Other than perhaps being called as a witness in the Ceperkovic action, Patriquin would not have had to appear. An award of double costs against the defendants, MacDonald and Janet MacDonald, for trial preparation, attendance at trial and written argument and an award of ordinary costs for time spent in preparing Patriquin for testimony is very reasonable. The plaintiff, Patriquin, is awarded those costs pursuant to Rule 7-7(4).

No Medical Report Thwarts Request for Second Defence Medical Exam

Written by admin on . Posted in BCSC Civil Rule 7.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, rejecting a defense application for a defense medical exam where they had not provided a report following an initial exam.
In today’s case (Thandi v. Higuchi) the Plaintiff agreed to be assessed by an orthopedic surgeon selected by the Defendant.  No report was produced following this assessment and the Defendant requested a further a exam with a neurologist.  In dismissing the application the Court noted that the lack of a report left the court without a proper evidentiary foundation respecting the equality of the playing field.  Master Harper provided the following reasons:

[6]             The major impediment to the defendant’s application in this case is the absence of Dr. Loomer’s report. It might be the case that the defendant could establish the necessity for a third independent medical examination before a neurologist, but the Court does not have sufficient evidence to assess that issue. Here, I rely on Koulechov v. Dunstan, 2015 BCSC 393 at para. 6, which is on all fours with this application:

[6]        It is counsel’s prerogative, of course, to control the timing of disclosure in a civil case. However, an order for a second independent medical examination under Rule 7-6 is a discretionary remedy that will only go if it is required to put the parties on an equal footing with respect to medical evidence: Stainer v. Plaza, 2001 BCCA 133 at para. 8. In the present application, in the absence of Dr. Gittens’ report, it is impossible for me to evaluate if there is any inequality in evidence or if an orthopaedic IME could redress it. …

[7]             Applying the Koulechov decision to the present application, I am not in a position to assess whether the medical complaints that involve neurological complaints were addressed by Dr. Loomer, could have been addressed by Dr. Loomer, or whether Dr. Loomer declined to opine on any neurological complaints because it was outside his area of expertise.

[8]             So quite simply, the defendant has not met the evidentiary burden necessary to justify the order sought and, therefore, I dismiss the application.

Previous Discovery Transcripts, Expert Reports and Mediation Documents Ordered Produced in Indivisible Injury Case

Written by admin on . Posted in BCSC Civil Rule 7.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering broad document production from past litigation in a case of potential indivisible injuries.
In today’s case (Easton v. Chen) the Plaintiff was injured in a 2011 collision and sued for damages.  The Plaintiff was also involved in four prior collisions that resulted in injury claims, all of which settled prior to trial.
The Defendant requested production of past examination for discovery transcripts, expert reports and mediation documents on the basis that the injuries may be indivisible.  In ordering production Master Muir provided the following reasons:

[25]         I agree with the submissions of the defendant. I am satisfied that the prior documents, the discovery transcripts and the experts reports from the prior actions could be used to prove or disprove material facts in this action and on that basis alone I would order their production. I also conclude that in any event a sufficient foundation has been laid for their production under Rule 7-1(11). Further, I conclude that it is in the interests of justice to relieve against the implied undertaking of confidentiality. Thus, the documents are to be disclosed.

[26]         The mediation documents sought raise another issue and that is settlement privilege. The defendant relies on Dholliwar v. Yu, 2015 BCSC 670 and Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, for the proposition that the disclosure of these documents is necessary in order to prove what the plaintiff received in compensation in the prior accidents and to prevent injustice through potential double compensation.

[27]         In Dholliwar, Master Scarth held:

[26]      It has yet to be established here that the injuries arising from the third accident are indivisible from those in the first and second. However, on the basis that indivisibility is at issue, and that there is potential for over-compensation, it is appropriate to require disclosure of the settlement documents at this time. I accept the submission of the defendants that such disclosure is necessary, in that it may assist in the settlement of the plaintiff’s claims arising from the third accident. Disclosure at this time is consistent with the previous decisions of this Court in Pete and Murray. I am satisfied that the defendants here do not seek a purely tactical advantage, as the Court found in Phillips v. Stratton, 2007 BCSC 1298 (CanLII), but rather, they wish to have the information necessary to assess their exposure, both for purposes of settlement and in the preparation of their case for trial.

[27]      In Dos Santos at para. 34, the Court stated that “significant weight should be given to the just disposition of pending litigation in determining whether the documents sought come within an exception to settlement privilege.” In my view, to find that the documents should be disclosed at this time is consistent with this approach

[28]         Similarly in this case, indivisibility is an issue and the defendants argue there is a potential for double compensation. The only evidence available showing what the plaintiff was compensated for in the prior actions will be found in this documentation. As a result, I conclude that the mediation documents should be disclosed.

"There Is No (Discovery) Continuation As of Right Once a Matter is Removed From Fast Track"

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure.

Unreported reasons by the BC Supreme Court, Vancouver Registry, were recently shared with me finding that there is no right for examination for discovery continuation once a matter is removed from fast track prosecution.
In the recent case (Nordin v. Wong) the Plaintiff sued for damages for injuries and her claim was initially prosecuted under Rule 15.  She underwent examinations for discovery which was limited to the two hour cap under the fast track rule.
The case was removed from Rule 15 and the Defendant sought a further discovery under the greater timelines allowed.  In dismissing the application and finding there was “no continuation as of right” when a matter is removed from fast track Master Scarth provided the following reasons:
[4]  To the extent that this is an application for a continuation of the examination for discovery which took place in May of 2014, I am satisfied that it should be dismissed…
[5]  Counsel conducting the discovery stated it to be concluded.  Responses have been provided to the outstanding document requests, and the defendant here concedes that nothing arises fro the material which was so provided.   Further, there is no continuation as of right once a matter is removed from fast track…No conditions were placed on the removal of the action from fast track, apparently it not being in the contemplation of the defendant at the tine that they might require a further discovery.
[6] In my view, therefore, the fact that Rule 7-2(2) provides for seven hours of discovery does not assist the defendant here.