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Cost of Future Care Reports and Hearsay Evidence

Written by admin on . Posted in Civil Procedure, Cost of Future Care Cases, ICBC UMP Cases. 44 Comments on Cost of Future Care Reports and Hearsay Evidence


When presenting an injury claim with a future care component expert evidence is often called to address not only the future care required, but also the cost of future care.  These experts sometimes rely on hearsay evidence in discussing the costs of the items recommended for future care.  Can this evidence be admitted?  This question was squarely answered in a 2008 ICBC UMP Arbitration which I summarize in my continued effort to create a searchable UMP caselaw database.
In the 2008 decision (MEN NN and DN v. ICBC) the Claimants sought damages following the wrongful death of their father/husband following a motor vehicle collision.  The matter was arbitrated under UMP.  In support of their claim the Claimants sought to introduce an expert report from a rehabilitation consultant to address future care needs for the surviving family members.  ICBC objected to this report on several grounds.  One of ICBC’s objections was that the report relied on hearsay evidence in addressing future care costs.  Arbitrator Yule rejected this argument and admitted the report (with a few modifications based on other objections).  In addressing the hearsay component Arbitrator Yule provided the following useful reasons:
18.  As noted previously, the Report as it applies to the claims of DN and NN also includes the commercial cost of various services such as courier service, handyman service, storage locker fees, taxis and airfares.  The cost of various services is considered to be within the scope of opinion evidence customarily given by rehabilitaiton experts notwithstanding that, to some extent, it may be hearsay information obtained from other service providers.  Cost of care expers routinely include informaiton regarding the costs of services in their reports.   In Jacobson v. Nike (1996) BCLR (3d) 63, the cost of care experts were Ms. Schulstad, a nurse with experience and education in rehabilitation nursing, and Ms. Harris, whose background was in occupational therapy.  Levine J. (as she then was) accepted these witnesses as qualified to provide expert evidence concerning both the care required and the costs of providing it.  At paragraph 185 the Judge said:
I am satisfied from the evidence of his injuries and function and of the clinical records that the plaintiff requires personal attendant care and homemaker services to sustain or improve his physical and mental health.  I am also satisfied that consultants with the experience, skill and training of Ms. Schulstad and Ms. Harris are qualified to assess his specific care needs and to provide expert evidence concerning the care required to meet his medical needs and the costs of providing for them.
In MacDonald v. Neufeld, [Vancouver Registry, September 3, 1993] the cost of care expert, Mr. Simpson, included in his report the cost of airplane tickets and other expenses for a travelling companion.
19.  As a practical matter, the admissibility of costing information on this basis makes eminent sense.  If it were not admissible as part of Ms. Stewart-Blair’s report, then one of the Claimants could herself make the same inquiries, but adducing the evidence in that fashion would be subject to the same objection as hearsay.  Thus, in the absence of admissions, the various service providers themselves would have to give evidence which would be both an inconvenience to them and an inefficient use of Hearing time.  Accordingly, I rule that the costs information in the Report of commercially provided services in relation to the claims of DN and NN is admissible.
For more on this topic from a Judicial authority, the latest case from the BC Court of Appeal is worth reviewing for their practical take on the role hearsay evidence can play in expert reports.

$125,000 Non-Pecuniary Damage Assessment for TBI – Adverse Inference Discussed

Written by admin on . Posted in Civil Procedure, ICBC Ankle Injury Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Elbow Injury Cases, ICBC Headache Cases, ICBC Knee Injury Cases, ICBC Liability (fault) Cases, ICBC Shoulder Injury Cases, Uncategorized.

Update March 21, 2014 – the Liability findings in the below case were upheld today by the  BC Court of Appeal
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Adding to this site’s ICBC Case Summary Archives, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, assessing non-pecuniary damages for a traumatic brain injury sustained in a BC vehicle collision.
In this week’s case (Meghji v. Lee) the Plaintiff was struck by a vehicle while walking in a marked cross-walk in 2003.  Both the Defendant driver and BC Ministry of Transportation and Highways were found at fault for the crash.  The former for failing to keep a proper lookout while driving, the latter for designing the intersection at question with inadequate overhead lighting.  The driver was found 90% at fault with the Ministry shouldering 10% of the blame.
The Plaintiff suffered a fracture near her left shoulder, left elbow, ankle, knee and a traumatic brain injury.   The consequences of these were expected to cause permanent dysfunction.  In assessing non-pecuniary damages at $125,000 Mr. Justice Johnston provided the following reasons:
 
 
 
 
 
 
 
 
 
 

[134]Mr. Lee struck Ms. Meghji on her left side. That caused a significant fracture to Ms. Meghji’s left upper arm, a less significant fracture just below and into her left knee and an injury to her left ankle, all of which required immediate medical intervention. There were also the soft tissue injuries that would reasonably be expected to accompany such trauma.

[135]Within a day of the accident, Ms. Meghji had surgery to her left upper arm that involved the insertion of a rod that was fixed by screws just below her shoulder and just above her left elbow. She also had a screw placed into her left ankle…

 
 
 
 
 
 
 
 
 
 

[270]Based upon the evidence of Dr. Ali and Mr. Brozak of the substantial change noted in Ms. Meghji during this time, as supported by similar observations from Ms. Chauncey’s and Ms. Wyeth’s description of Ms. Meghji’s abilities in her math class and as a teaching assistant before the accident, I conclude that Ms. Meghji has more likely than not suffered a brain injury in the accident, and that the combination of the effects of the brain injury and the depression and chronic pain disorder, which I also find was caused by the accident or flows from injuries suffered in the accident, are so inextricably intertwined that they cannot possibly be disentangled.

[271]In all of the circumstances, the defendants are ordered to pay Ms. Meghji $125,000 for non-pecuniary damages for pain, suffering, and loss of amenities and enjoyment of life.

This case is also worth reviewing for the Court’s application of the ‘adverse inference’ principle.  In the course of the lawsuit the Plaintiff’s lawyers had her assessed by a neurologist.  The neurologist did not tender evidence at trial.  Mr. Justice Johnston used his discretion to draw an adverse inference in these circumstances finding that the privately hired doctor likely did not have helpful evidence to give in support of the Plaintiff’s claim.  The court provided the following reasons:

 
 
 
 
 
 
 
 
 
 

[240]In ordinary circumstances, I would agree that a claim of litigation privilege should be sufficient explanation for the failure to produce evidence from an expert who examined a party, and no inference adverse to that party should be drawn from the failure to produce the evidence.

[241]However, where, as here, counsel has assumed control of medical management of a plaintiff’s injuries, the circumstances are not ordinary.

[242]Dr. Grimwood would ordinarily have been expected to coordinate Ms. Meghji’s treatment, including referrals to specialists as he thought advisable. In this case, Dr. Grimwood appears to have largely ceded that responsibility to Ms. Meghji’s counsel, largely because counsel were able to arrange examinations by medical specialists much sooner than could Dr. Grimwood.

[243]Where counsel becomes actively involved in arranging treatment, or in treatment decisions, or in selection of treatment providers to the extent that it becomes difficult or impossible to determine whether any particular doctor is involved for treatment purposes, or to advise counsel, the protective cloak of litigation privilege becomes tattered.

[244]In such circumstances, counsel and the party who permit the line between treating physicians and physicians retained to advise counsel to become blurred must accept some risk that the protection ordinarily afforded by litigation privilege might be lost.

[245]Ms. Meghji testified that she saw Dr. Cameron for headaches. In the face of that evidence, I infer, from the refusal to produce evidence from Dr. Cameron, that any opinion generated as a result of his examination of Ms. Meghji was not helpful to the claims she makes in this trial. I also infer that, while examining for headache, had Dr. Cameron observed any signs that suggested to him that Ms. Meghji had suffered a traumatic brain injury in the accident, his observations or opinion would have been produced at trial.

 
 
 
 
 
 
 
 
 
 

Can You Sue Twice For Damages From the Same Event?

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized. 104 Comments on Can You Sue Twice For Damages From the Same Event?


(UPDATE June 28, 2012 – the case discussed in the below post was reversed by the BC Court of Appeal in reasons for judgement released today; you can click here to read the Court of Appeal’s reasons)
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this topic.
In last week’s case (Singh v. McHatten) the Plaintiff was involved in a 2006 motor vehicle collision.  Following the collision ICBC found the Plaintiff at fault.  Displeased with this decision, the Plaintiff sued the Defendants in small claims court asking the Court to decide the issue of liability.  The Plaintiff sought damages for his deductible and increased insurance premiums.  His trial succeeded with the Court finding the Defendants at fault and awarding damages to the Plaintiff.
Before the limitation period expired the Plaintiff sued for damages stemming from his personal injuries from the same collision.  He did so in the BC Supreme Court.  ICBC brought a motion to dismiss the lawsuit arguing that the Plaintiff was “estopped” from suing again due to the small claims court trial.  Madam Justice Loo disagreed and allowed the personal injury lawsuit to proceed.  In dismissing ICBC’s motion the Court provided the following reasons:

[31] In my view the cause of action in the prior Small Claims action is distinct from the cause of action in this Court. While the Notice of Claim filed by the plaintiff in Small Claims Court claimed “vehicle damage & repair costs”, it is clear on a review of the transcript of the proceedings that the plaintiff’s vehicle had been repaired by ICBC; he was not seeking damages for repair costs because ICBC had paid the repair costs. The primary issue was ICBC’s determination that the plaintiff was wholly at fault for the accident and the plaintiff’s increased insurance premiums. Counsel for the plaintiff made it clear that the claim for personal injuries and damages would be dealt with later, and that was understood by counsel for ICBC. On that basis neither the third nor the fourth criteria for cause of action estoppel, or the first criteria for issue estoppel have been met.

[32] The facts of this case are similar to the facts in Innes v. Bui and Evans v. Campbell. Whether issue estoppel or cause of action estoppel is applicable, at the end of the day the court must determine whether it should exercise its discretion to bar the action by reason of res judicata or whether there are exceptional or special circumstances that should apply.

[33] I find that all of the criteria necessary for cause of action estoppel or issue estoppel have not been met. If I am wrong, there are special circumstances not to apply res judicata for to do so would cause a real injustice to the plaintiff. The plaintiff has not had his day in court on his claim for damages for personal injuries arising out of the accident. It may be that the issue of liability isres judicata, but the application was not argued on that basis. Rather, it is argued that the plaintiff should have brought his claim for personal injuries at the same time he brought his action in Small Claims Court. In certain circumstances that may be correct but only if the claim can be brought within the monetary limit of Small Claims Court. However, the fact remains that the plaintiff’s claim for damages for personal injuries has never been before a court and considered. To dismiss the plaintiff’s claim at this stage of the litigation would be denying the plaintiff an opportunity to be heard on that issue and unjust.

[34] The application is dismissed with costs.

As a point of interest, the recent BC Court of Appeal case of Innes v. Bui is worth reviewing for the Court’s comments on appropriate parties to sue when the only dispute following a collision is ICBC’s determination of fault and the premium consequences that flow from this.

The Other Side of Bradley: Indivisible Injuries and Damage Deductions

Written by admin on . Posted in Civil Procedure, Uncategorized.


In 2010 the BC Court of Appeal released welcome reasons for judgement (Bradley v. Groves) which made it easier for individuals to recover damages for “indivisible” injuries.  In short the Court confirmed that if two or more incidents caused an indivisible injury you could sue any of the party’s responsible for causing the harm and recover the whole of the loss.
There is, however, a downside to the benefits of Bradley v. Groves.  If you sustain an indivisible injury and receive compensation for it from one tortfeasor a subsequent tort feasor may be able to reduce their liability by the amount of the previous settlement or judgement.  This argument was considered in reasons for judgement released this week by the BC Supreme Court.
In this week’s case (Thomas v. Thompson) the Plaintiff sued for damages from a 2005 motor vehicle collision.  The trial judge found that some of the Plaintiff’s injuries were indivisible from those sustained in a 2002 collision.   The Plaintiff settled his claim for damages from the 2002 collision for $10,000.  Following trial the Defendant argued that the damage assessment for the 2005 collision should be reduced by $10,000 to take into account the previous settlement.
The Court noted that damages were assessed taking the Plaintiff’s pre-existing issues into account and that it would not be just to re-open the trial to allow for such a result.  Implicit in the Court’s judgement is that if the right evidence is tendered at trial such a deduction could be allowed.  Mr. Justice Brooke provided the following illustrative reasons:






[7] I did not accept the evidence of the plaintiff that he had made a full recovery from the 2002 accident. In assessing non-pecuniary damages for the effects of the accident of June 27, 2005, I took the plaintiff in the position he then occupied; that is, as continuing to make recovery from the earlier injuries. I did not treat him as if he were whole at the time of the second accident. Thus, I reject the submission that the settlement funds paid to the plaintiff following the first accident be deducted from the award for the damages sustained in the second accident. There is no double recovery.

[8] I refer to the decision of the British Columbia Court of Appeal in Bradley v. Groves, 2010 BCCA 361 where the plaintiff had been injured in a second accident which aggravated injuries sustained in the first accident. At paragraph 38 the Court said this:

Without a finding of divisibility, the appellant’s arguments cannot succeed. The trial judge found as a fact that the plaintiff’s injuries from the first accident and the second accident were indivisible. The defendant and the other motorist both caused and contributed to the plaintiff’s soft tissue injuries. He also found those injuries were not separable. There is no basis on which to interfere with these findings of fact. Flowing from them is the conclusion of joint and several liability.

[9] On all of the evidence before me, I found that the plaintiff’s injuries in the first and second accident were indivisible.

[10] While I accept that I have discretion to reopen the trial, I am not satisfied that it is right and just to do so.







For an example of this deduction argument succeeding see the 2008 BC Court of Appeal decision of Ashcroft v. Dhaliwal.

QEEG Evidence Not Admissible In BC Brain Injury Claim

Written by admin on . Posted in Civil Procedure, ICBC Brain Injury Cases, Uncategorized. 60 Comments on QEEG Evidence Not Admissible In BC Brain Injury Claim

(Image courtesy of Wikipedia)
Reasons for judgement were published this week by the BC Supreme Court, Victoria Registry, addressing the admissibility of QEEG Evidence in a brain injury claim.  In short the Court held that while such evidence may be admissible in appropriate cases, the evidence presented in the case was insufficient to meet the threshold test of reliability to admit “novel” evidence.
In this week’s case (Bialkowski v. Banfield) the Plaintiff was injured in a motor vehicle collision.  He allegedly suffered a traumatic brain injury.  In support of his claim he tired to introduce QEEG evidence  tendered through a neuropsychologist.  Mr. Justice Bracken declined to let the evidence in finding that the neuropsychologist was not properly qualified to introduce the QEEG evidence and further the evidence was not proven to be reliable.  In excluding the evidence Mr. Justice Bracken provided the following summary of his findings:



[3] Electroencephalography (“EEG”) is a means of recording the electrical activity of the brain.  Typically, electrical signals are received through 19 electrodes placed on certain areas of the scalp by attaching the electrodes to a cap that fits snugly over the patient’s head.  The electrical activity is then recorded either on paper, or digitally on a computer.  The clinician can then visually examine the recorded data to analyze the patterns of activity.

[4] QEEG is a relatively new neuroimaging technique.  It uses computer assisted analysis of EEG tests.  The raw EEG data is digitized and analyzed by means of a mathematical algorithm.  It is said that the computer analysis is capable of extracting more information from the raw EEG data and enables the clinician to observe more subtle anomalies than can be seen with the eye on standard visual analysis.  Using another program the digitized data is then compared to a normative database to determine if the data are consistent with what is normal for a comparable group of individuals…

[58] While there may be cases where QEEG evidence will be accepted as part of expert opinion in Canadian Courts it should only be through a neurologist who is trained and qualified in EEG testing and analysis.  In my view, only a trained electroencephalographer who has the skill, knowledge and training to recognize the potential for error is qualified to give opinion evidence of QEEG analysis.

[59] On the evidence presented in this case, I find the QEEG evidence to be novel science and not sufficiently reliable for admission into evidence on the principles established in J.L.J. andMohan.  I conclude it will not assist the trier of fact.  As science progresses this may change and the evidence may meet the test of reliability so as to be admissible at some point in the future.  As was noted in Seifert, the fact that expert evidence conflicts does not, by itself, make it inadmissible.  Coburn, et al, recognize this in the conclusion of their report at p. 23, where it is stated:

Used cautiously and with appropriate recognition of its limitations, QEEG offers the clinician an accurate laboratory test to aid in the detection and differential diagnosis of several common neuropsychiatric disorders.  …  Additional uses of QEEG showing promise but not yet sufficiently developed for routine clinical application include the prediction of medication efficacy and the prediction of the clinical cause of a disorder.

There is nothing in that conclusion to suggest it will become clinically useful in diagnosing traumatic brain injury in the near future; however, it remains open for such evidence to be offered through an appropriate expert if and when it satisfies the evidentiary requirements of Canadian Courts.

[60] The evidence of QEEG analysis given by Dr. Malcolm is rejected as not being offered by a qualified expert.  QEEG does not meet the requisite reliability threshold and is still novel science.



BC Supreme Court Declines Jurisdiction in Out of Province Sexual Abuse Action

Written by admin on . Posted in Civil Procedure, Sexual Assault Civil Cases, Uncategorized. 43 Comments on BC Supreme Court Declines Jurisdiction in Out of Province Sexual Abuse Action


Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing the jurisdiction of the BC Supreme Court to hear a claim involving alleged sexual abuse which took place out of  Province.
In this week’s case (TC v. AM) the Plaintiff sued her former father in law in the BC Supreme Court claiming he sexually abused her in Montreal.  The Defendant, at all material times, lived in Montreal and continued to reside there when the lawsuit started.  He did not respond to the lawsuit.  The Court ultimately found that no jurisdiction existed to hear this case pursuant to the Court Jurisdiction and Proceedings Transfer Act.  In doing so the Mr. Justice Harvey provided the following reasons:





[8] None of the presumptive categories under s. 10 of the CJPTA apply in these circumstances; however, the language of s. 10 clearly indicates that those categories do not limit “the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based.”

[9] The common law threshold for a real and substantial connection is high. In Josephson v. Balfour Recreation Commission, 2010 BCSC 603, Loo J. stated:

[79] The real and substantial connection test requires that there be a significant or substantial connection: Beals v. Saldanha, [2003] 3 S.C.R. 416; and UniNet Technologies Inc. v. Communication Services Inc., 2005 BCCA 114.

[10] The jurisprudence in British Columbia suggests that the mere residence of the plaintiff in British Columbia is not sufficient to establish jurisdiction over a defendant resident outside of the province. Something more is required. This was discussed in Dembroski v. Rhainds, 2011 BCCA 185, where Hall J. referred to the decision of Bruce J. in Roed v. Scheffler, 2009 BCSC 731…

[11] This case lacks the additional element, beyond the mere residence of the plaintiff in this jurisdiction, to support a finding that there is a real and substantial connection between British Columbia and the facts on which a proceeding is based. The action concerns allegations of sexual assault in Quebec in relation to a defendant who continues to reside in Quebec. There is not a “significant connection” as required by the Supreme Court of Canada in Beals v. Saldanha, [2003] 3 S.C.R. 416.

[12] That the plaintiff suffers damages here is, as was the case in Roed, purely as a result of her residence in British Columbia. As stated by Dickson J. in Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, and referred to in Dembroski, if the essence of a tort is injury, “a paramount factor in determining situs must be the place of the invasion of one’s right to bodily security.” That location in this case is Quebec. The motor vehicle scenarios in Roed and Dembroski are analogous for the purposes of determining territorial competence, as they concern tortious conduct in another jurisdiction. The presence of the plaintiff in British Columbia alone does not establish a real and substantial connection in relation to events that occurred in another jurisdiction where the defendant continues to reside.

[13] Accordingly, I dismiss the plaintiff’s application.





Waiting For Police Report Held Insufficient to Postpone Limitation Period in ICBC Claim

Written by admin on . Posted in Civil Procedure, Uncategorized.


Section 6(4) of the BC Limitation Act states in part that a limitation period “does not begin to run against a plaintiff…..until the identity of the defendant…is known to the plaintiff“.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering this provision in the context of an ICBC Claim.
In this week’s case (Telus Corporation v. Araneda) equipment owned by Telus was struck by a motor vehicle causing $43,000 in damage.  They sued the party they alleged was responsible but did so nine days after the limitation period expired.
Telus argued that the running of the period should be postponed by several days under s. 6(4) of the Limitation Act because it took 18 days for them to receive the police report identifying the defendant.  Mr. Justice McEwan rejected this argument and dismissed the lawsuit.  In doing so the Court provided the following reasons:


[20] …. On the day of the accident, Telus, through its employee Dale Summers, knew it had a claim for property damage and knew the name of the tortfeasor was immediately ascertainable from a reliable source, the RCMP.

[21] In saying so, I reject Telus’ argument that a large enterprise should be judged on its “ individual circumstances” and that its step-wise approach to the management of its legal claims is akin to the situation in Strata Plan LMS 2940 v. Quick as a Wink Courier, 2010 BCCA 74. There the Court of Appeal upheld a judge of this Court who had found that an action brought by a strata corporation against an individual one day outside the limitation period was not statute-barred because the strata corporation was obliged to pass a resolution before it could initiate the action, and doing so took some time.

[22] Telus was not impeded by a statutory prerequisite, and there is no reason in principle why a large organization should be judged by a more accommodating standard than would apply to any competent individual. As in Meeker, Telus knew on the first day of the accident that it had suffered actionable harm and that the name of the person involved was ascertainable.

[23] It is regrettable that the limitation period went by in this case. As some of the case law demonstrates Courts frequently go some distance to ensure that cases are tried on their merits. The policy inherent in limitation periods, however, must also be respected. Applying the relevant legal principles to the present case, Telus has not established that it is entitled to postponement, and the action must be dismissed.


ICBC Application to Move Lawsuit to Small Claims Denied, Court Finds it "Most Unsafe" to do so

Written by admin on . Posted in Civil Procedure, Uncategorized.


As previously discussed, Section 15 of the Supreme Court Act allows the Court to transfer a lawsuit to the Provincial Court (Small Claims) in certain circumstances.  Reasons for judgement were released today making it clear that such applications will rarely succeed in personal injury lawsuits.
In today’s case (Chang v. Wren) the Plaintiff was involved in a collision and sued for damages in Supreme Court.  ICBC brought an application to move the case to Small Claims Court.  Mr. Justice McEwan expressed “difficulty appreciating the motivation for the application” and dismissed it.  In doing so the Court noted the well-known delay in getting trial dates for personal injury lawsuits in Provincial Court and further the difficulty in predicting that any given case would be worth less than $25,000 in a summary hearing.  The following useful reasons were provided:


[3] I must say I find it unusual that a defendant brings such an application and had some difficulty appreciating the motivation for the application, given that the sanction in costs and in depriving the plaintiff of costs following a Supreme Court hearing would appear, in my view, to be more advantageous than the inevitable result of putting the matter down to Provincial Court, which would be a trial some eight months from when the trial is presently set in August of 2011 in Provincial Court, and a further proceeding by way of mandatory mediation in the Provincial Court.

[4] Whatever the merits of the respective parties’ positions as to the ultimate quantum of damages in this matter, it seems to me that the appropriate disposition is to see that it gets to trial before a competent tribunal as quickly as possible, and with as little procedural clutter as possible.  That militates strongly in favour of the Supreme Court retaining this matter within its precincts, where there is a far greater likelihood, in the present circumstances, of a trial being held when it is scheduled, than there is in the Provincial Court.

[5] Circumstances might be different if it could be reliably assumed that Provincial Court would get the matter on quickly and be done with it faster than a Supreme Court, but while I am not prepared to go so far as to say I take judicial notice of anything in particular, I certainly will observe that I do not think I can behave on the basis of that particular fiction.

[6] What this application amounts to is a request to the court to summarily assess the evidence without hearing from any witnesses or without hearing from the plaintiff herself and determine that the matter would come in under $25,000.  That would depend on the court reading the medical reports, essentially as the defence suggests I should, and I do not think it is something that a responsible court could really do.

[7] The plaintiff has chosen the Supreme Court of British Columbia.  She will have been advised of the hazards of bringing a Small Claim jurisdiction matter in this court, but if she is determined to proceed and to have a determination in Supreme Court, I think it would have to be established very, very firmly that the damages she claims could not exceed $25,000, before the court would entertain such an application.

[8] Counsel have provided some case law reflecting what the test is for bringing the matter down to Provincial Court.  My own view is that in a case where the liquidated damages could not possibly exceed $25,000, it might be clear, but in a case of this kind where the nuances of personal experience may have a significant bearing on the court’s assessment, perhaps even notwithstanding the medical evidence, it would be most unsafe to summarily decide that the case could not exceed the limits of the Small Claims jurisdiction.

[9] So on the basis that, first of all, it appears to be more efficient to continue in Supreme Court, and secondly, on the basis that it is, in any event, the plaintiff’s right to choose the forum, where there is any doubt about the appropriate jurisdiction, I think it better at this stage of this proceeding, post-discovery and a few months to trial, for the matter to remain in Supreme Court.

[10] I dismiss the application.


Defendant Called During Plaintiff's Case in Traumatic Brain Injury Claim

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure, ICBC Brain Injury Cases, Uncategorized. 45 Comments on Defendant Called During Plaintiff's Case in Traumatic Brain Injury Claim

In most BC Supreme Court lawsuits Plaintiff’s obtain evidence from the opposing side prior to trial by way of examination for discovery.   Helpful portions of the discovery transcript are then read into the trial record in support of the Plaintiff’s claim.   This is a controlled way to lead helpful evidence from a potentially damaging source.
There is, however, another way (albeit a riskier way) to use the Defendant in support of a Plaintiff’s claim.  The Rules of Court allow one party to call an “adverse party” as part of their case in chief with delivery of a subpoena and witness fees.   Rule 12-5(22) goes further and allows a Plaintiff to put the Defendant on the witness stand without notice if the Defendant is “in attendance at the trial“.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, demonstrating this seldom used option in action.
In last week’s case (Rintoul v. Gabriele) the Plaintiff pedestrian was struck while in a cross-walk.   The Plaintiff was born without upper limbs and after being struck “would have been unable to break her fall.  In landing on the pavement, she hit her head and was briefly unconscious“.
Both liability and quantum (fault and value of the case) were at issue with the Defendant arguing the Plaintiff was to blame at least in part for the collision and that her on-going issues were not related to the brain trauma suffered in the collision.  Mr. Justice Saunders disagreed and found the Defendant fully at fault for the impact.  In the course of the trial the Plaintiff’s lawyer took advantage of Rule 12-5(22) and put the Defendant on the stand as their first witness.  Damaging admissions were extracted which could not be remedied when the Defendant was re-called as a witness in the Defence case.  In highlighting this interesting turn of events Mr. Justice Saunders provided the following reasons:
[7] The defendant, Ms. Gabriele, was in attendance on the first day of trial. She was called to the witness stand as the first witness for the plaintiff’s case, and cross-examined…























[14] Ms. Gabriele testified that she was turning her vehicle and had just started to enter the pedestrian crosswalk, going perhaps 10 or 15 km/h, when she felt a bump, and saw a flash of a face in her headlights. She stopped and got out, and ran to the front of her vehicle. The plaintiff was lying unconscious in the crosswalk.

[15] Ms. Gabriele was not challenged on her estimate of her speed.

[16] Ms. Gabriele was asked why she did not, after looking to the right, look to the left again before making her turn, to see if any of the pedestrians she had previously seen on the southeast corner were walking in the crosswalk. She replied, “I made a mistake”….
























[24] There was a break in the trial of just over two months. During that time period, Ms. Gabriele walked through the accident scene with her counsel. After the trial resumed, Ms. Gabriele was called to give evidence as part of the defence case. Testifying in chief, she gave a slightly different version of events. She said in her evidence in chief that after looking at the southwest corner, she looked back in front of her, did not see anything, and then proceeded to make her turn.

[25] I do not accept this second version of events…

The Court went on to conclude that the Plaintiff did suffer from long term consequences as a result of her injuries and assessed global damages at just over $950,000 including non-pecuniary damages of $175,000.  In addition to the above point of civil procedure, this case is worth reviewing in full for Mr. Justice Saunders lengthy discussion of the expert evidence called to address the issue of the Plaintiff’s traumatic brain injury.

Is an Unentered BC Supreme Court Order Effective?

Written by admin on . Posted in Civil Procedure, Uncategorized.


After a BC Supreme Court Judge or Master makes an Order, the parties to the lawsuit typically agree to the order’s terms, reduce it to writing, sign it and enter it with the Court Registry.  Can an order be effective if parties fail to take these usual steps?  The answer is yes and Reasons for Judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this area of the law.
In this week’s case (Hable v. Hable) the parties were involved in a family law dispute.  In the course of the lawsuit a Court Order was obtained.  The order was never entered and the lawsuit was eventually discontinued.  After this the parties could not agree as to whether the unentered order was effective and the Court was asked to address this issue.  The respondent argued that the order could not be entred because the underlying lawsuit was discontinued.  The Court disagreed and in finding that the order was valid and effective Mr. Justice Bowden provided the following helpful reasons:









[7] The law in British Columbia regarding the effect of an order that has not been entered, as found in Metro Trust Co. of Can. v. MacDonald, (1988) CanLII 3025 (B.C.S.C.), is that it is “provisionally effective and can be treated as a subsisting order in cases where the justice of the case requires it and the right of withdrawal would not be thereby prevented or prejudiced.” That view of the law reflects an earlier decision of the B.C. Court of Appeal in Allard v. Manahan, [1974] B.C.J. No. 933, where the Court of Appeal said at para 10:

What is meant by the statement that an unentered order is only “provisionally effective”? I think that it means that the Judge who made it may, in his discretion, alter it or set it aside.

[8] A superior court is not functus officio with respect to an unentered order. (Clayton v. British American Securities Ltd., [1935] 1 D.L.R. 432 (B.C.C.A.).  Unlike the dismissal of an action, which is a final order, a discontinuance leaves matters open and is not a bar to further proceedings. (Chrétien v. Canada (Attorney General), 2005 FC 925 (Federal Court) and Davis v. Campbell (1986), 54 O.R. (2d) 443 (H.C.)

[9] I have concluded that the discontinuance filed in this matter does not preclude me from signing and entering the Order without the signatures of counsel.  By doing so, I am simply confirming an order which was made prior to the filing of a discontinuance.  Either party is at liberty to apply to settle the order before me or the Registrar, provided that such application is made before July 16, 2011.  If no application is made by that date, the Order will be entered.