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BC Court of Appeal Clarifies Law of Hearsay Evidence in Expert Reports

Written by admin on . Posted in BCSC Civil Rule 11, Civil Procedure, Uncategorized. 127 Comments on BC Court of Appeal Clarifies Law of Hearsay Evidence in Expert Reports


Expert reports often contain hearsay evidence.  This is especially true in personal injury cases where expert witnesses review pages upon pages of clinical notes of other physicians in arriving at their opinions.  Today the BC Court of Appeal released useful reasons for judgement confirming that hearsay evidence does not render an expert report inadmissible.  The Court further noted that some types of hearsay evidence in expert reports, even if not independently proven at trial, does not necessarily nullify the experts opinion.
In today’s case (Mazur v. Lucas) the Plaintiff was injured in a 2006 BC motor vehicle collision.  At trial the Plaintiff tendered the report of a psychiatrist.  The trial judge ordered that hearsay portions of the report be redacted and did not permit opposing counsel to cross examine the expert with respect to the redacted portions of the report.  Ultimately the Jury awarded the Plaintiff $528,400 in damages.
The Defendant appealed arguing that the trial judge incorrectly redacted hearsay from the expert reports and unreasonably restricted the cross-examination.  The BC High Court agreed and ordered a new trial.  In doing so the Court repeated the following very useful quote from Mr. Justice Sopinka addressing the reality of hearsay in medical diagnosis:
“A physician, for example, daily determines questions of immense importance on the basis of the observations of colleagues, often in the form of second- or third-hand hearsay.  For a court to accord no weight to, or to exclude, this sort of professional judgment, arrived at in accordance with sound medical practices, would be to ignore the strong circumstantial guarantees of trustworthiness that surround it, and would be, in my view, contrary to the approach this Court has taken to the analysis of hearsay evidence in general, exemplified in Ares v. Venner, [1970] S.C.R. 608”
The BC Court of Appeal went on to provide the following useful summary of hearsay evidence in expert reports in personal injury lawsuits:

[40]         From these authorities, I would summarize the law on this question as to the admissibility of expert reports containing hearsay evidence as follows:

·                 An expert witness may rely on a variety of sources and resources in opining on the question posed to him.  These may include his own intellectual resources, observations or tests, as well as his review of other experts’ observations and opinions, research and treatises, information from others – this list is not exhaustive.  (See Bryant, The Law of Evidence in Canada, at 834-835)

·                 An expert may rely on hearsay.  One common example in a personal injury context would be the observations of a radiologist contained in an x-ray report.  Another physician may consider it unnecessary to view the actual x-ray himself, preferring to rely on the radiologist’s report.

·                 The weight the trier of fact ultimately places on the opinion of the expert may depend on the degree to which the underlying assumptions have been proven by other admissible evidence.  The weight of the expert opinion may also depend on the reliability of the hearsay, where that hearsay is not proven by other admissible evidence.  Where the hearsay evidence (such as the opinion of other physicians) is an accepted means of decision making within that expert’s expertise, the hearsay may have greater reliability.

·                 The correct judicial response to the question of the admissibility of hearsay evidence in an expert opinion is not to withdraw the evidence from the trier of fact unless, of course, there are some other factors at play such that it will be prejudicial to one party, but rather to address the weight of the opinion and the reliability of the hearsay in an appropriate self-instruction or instruction to a jury.

[41]         The common law is supplemented by the Rules of Court concerning expert reports.  The Rules of Court in force at the time of this trial required an expert to state “the facts and assumptions upon which the opinion is based”.  (Rule 40A(5)(b)).  Rule 11-6(1) which replaces Rule 40A requires the expert to state:

…

(f) the expert’s reasons for his or her opinion, including

(i)  a description of the factual assumptions on which the opinion is based,

(ii)  a description of any research conducted by the expert that led him or her to form the opinion, and

(iii)  a list of every document, if any, relied on by the expert in forming the opinion.

[42]         New Rule 11-6 expands on what an expert was required to state under old Rule 40A, but does not alter the general principle that it is essential for the trier of fact to know the basis of an expert opinion so that the opinion can be evaluated.  The Rule has a dual purpose.  The second purpose is to allow the opposing party to know the basis of the expert’s opinion so that they or their counsel can properly prepare for, and conduct, cross-examination of the expert, and if appropriate, secure a responsive expert opinion.  Thus, the result of these reasons would be the same if this case had arisen under the new Rules.  There is nothing in these Rules touching directly on the question of the admissibility of hearsay evidence in expert reports.

I have previously written (here and here) that Plaintiff’s need to be wary if relying on a radiologists findings in support of a personal injury claim at trial and ensure that the evidence is independently proven at trial.  Today’s case appears to potentially soften this requirement somewhat.

Challenging Opposing Witnesses: The Rule in Browne v. Dunn

Written by admin on . Posted in Civil Procedure, Uncategorized. 60 Comments on Challenging Opposing Witnesses: The Rule in Browne v. Dunn


(Update March 8, 2012 – The case discussed below was set for a new trial after the Court of Appeal found the trial judge made errors applying the law of mitigation, causation and credibility.  The Court of Appeal Judgement can be foud here)
Browne v. Dunn is an English case that’s almost 120 years old.  Despite it’s vintage its a case all British Columbian’s should be familiar with when going to trial.
The rule in Browne v. Dunn states that if you intend to contradict an opposing witness on a significant matter you must put the contradictory version of events to the witness on cross examination.  Failure to do so permits the Court to prefer the witness’ version over the contradictory version.  In practice, failure to follow the rule of Browne v. Dunn can prove damaging to a case and this was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Wahl v. Sidhu) the Plaintiff was involved in a significant collision in Surrey, BC in 2006.  The Plaintiff sustained various injuries.  At trial he sought over $1.1 million dollars.  Much of his claim was dismissed but damages of $165,000 were assessed to compensate him for physical and psychological injuries from the crash.
During the course of the trial the Defence lawyer argued that the Plaintiff was not credible and was exaggerating his claim.   The lawyer relied on evidence from various treating medical practitioners who had negative opinions about the Plaintiff’s efforts and argued that “the plaintiff is intentionally faking symptoms“.   The Defence lawyer did not, however, cross examine the Plaintiff with respect to these witnesses allegations.  Mr. Justice Chamberlist relied on the rule in Browne v. Dunn and refused to place any weight on these challenges to the Plaintiff’s credibility.  Specifically the Court provided the following useful comments:
[213] … I wish to comment on what occurred and what did not occur with respect to the evidence of Mr. Wahl at trial.  My notes of his evidence, particularly his evidence given under cross-examination, indicate that negative comments made by the various treators and Mary Richardson and Gerard Kerr were not put to him under cross-examination so that he would have an ability to deal with that evidence.  It is my view that the witness must be confronted with these opinions before the opinion can be properly dealt with (Browne v. Dunn, (1893) 6 R. 67 (H.L.)).  This is especially required in a case such as this where the defence submits that the plaintiff, in this case, is not motivated to get better and that the credibility of the plaintiff is at issue.
[217] The defence, in this case, called Dr. Bishop as a witness. …As indicated earlier Dr. Bishop was originally retained by the plaintiff but did not call Dr. Bishop at trial.  The defence made a point of filing Dr. Bishop’s reports and defence called her evidence as part of its case.  In the defence written submissions, the defence maintains that “her evidence makes it clear that she is of the opinion that the plaintiff is intentionally faking symptoms”….

[219]     It is important to note the first lines of the evaluation of effort where Dr. Bishop said, and I repeat:

. . . Although effort testing of itself cannot determine motivation as submaximal effort may be multifactorial in origin (e.g. fear of pain, anxiety with regard to performance, perception of dysfunction, need to demonstrate distress, etc) . . .

That finding cannot be relied upon, in my opinion, by the defence when the particulars of those conclusions were not put to the plaintiff when he was on the stand….

BC Injury Claims, Pre-Trial Discovery and "Mental Incompetence"

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure, ICBC Brain Injury Cases, Uncategorized. 119 Comments on BC Injury Claims, Pre-Trial Discovery and "Mental Incompetence"


When suing for damages as a result of personal injuries the BC Supreme Court Rules generally permit Defendants to compel Plaintiffs to participate in pre-trial examinations for discovery.  There are a few exceptions to this and one of these relates to mentally incompetent Plaintiffs.  If a Plaintiff is mentally incompetent they can only be examined with permission from the Court.  Reasons for judgement were released earlier this week by the BC Supreme Court, Vancouver Registry, dealing with this area of law.
In this week’s case (DeMerchant v. Chow) the Plaintiff sustained a serious brain injury during a fall from a ladder in 2007.  The Plaintiff started a lawsuit in the BC Supreme Court through a litigation guardian.  During the course of the lawsuit the Plaintiff refused to participate in a discovery.  The Defendant brought a motion seeking an order that he be forced to participate.  The Plaintiff opposed this and relied on medical evidence which opined that the Plaintiff “could not reliably answer questions put to him” and that he “does not have the capacity to give testimony in court“.
Ultimately Master Taylor dismissed the motion and refused to grant the defendant permission to examine the Plaintiff.  This is the first case I’m aware of applying the new BC Supreme Court Rule 7-2(9) which deals with discovery of mentally incompetent parties.  Master Taylor provided the following reasons in dismissing the application:

[2]             The application is made pursuant to Rule 7-2(9) of the new Rules which was formerly Rule 27(11) of the old Rules.  The wording of both rules is similar, but the new Rule has changed the wording somewhat.  The new Rule provides:

7-2(9) If a party to be examined for discovery is a mentally incompetent person, his or her litigation guardian and his or her committee may be examined for discovery, but the mentally incompetent person must not be examined without leave of the court.

…

[34]         The question to be determined, therefore, is whether the evidence before me is sufficient to find that court approval should be granted to allow the plaintiff to be examined for discovery.

[35]         In Penn v. Secord (1979), 16 B.C.L.R. 48, [1980] 1 W.W.R. 464, 106 D.L.R.(3d) 9 Ruttan, J. said the onus for showing that a party is competent to be examined rests on the party seeking his examination. In the case at bar, the onus rests on the defendants.

[36]         The Rule in question uses the term, “a mentally incompetent person”.

[37]         It has been assumed up to now that Mr. DeMerchant is a mentally incompetent person because he has a trustee and a litigation guardian.  As well, the very nature of the application assumes the plaintiff is a mentally incompetent person since the application seeks leave of the court to examine him.

[38]         According to section 29 of the Interpretation Act, a “mentally incompetent person” is a “person with a mental disorder as defined in section 1 of the Mental Health Act”.

[39]         Reference to the Mental Health Act reveals the definition of a “person with a mental disorder” as “a person who has a disorder of the mind that requires treatment and seriously impairs the person’s ability (a) to react appropriately to the person’s environment, or (b) to associate with others”…

[45]         In the case at bar, there is medical evidence which conflicts, however I am satisfied that Drs. Bogod and  Lu have provided sufficient medical evidence  to suggest that the plaintiff does confabulate and would be unreliable as a witness.

[46]         I am also satisfied that the evidence of Drs. Bogod and Lu establish that the plaintiff meets both tests set out in the definition of a person with a mental disorder.

[47]         Accordingly, I determine that the applicants have not met the onus imposed upon them in seeking an order that the defendants be granted leave to examine the plaintiff at discovery.  It should also go without saying that I do not find the plaintiff to be competent to give evidence on his own behalf in these proceedings.

[48]           Consequently, I dismiss the defendants’ applications with costs to the plaintiff in any event of the cause.

BC Rules of Court Update: The Adverse Witness Rule

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


The Rules of Court permit parties to a lawsuit to force opposing parties to take the stand during the course of a lawsuit.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing this power under the New BC Supreme Court Civil Rules.
In today’s case (Dawson v. Tolko) the Plaintiffs were current and former employees of Tolko Industries.   Tolko Industries amended a pension plan it offered it’s employees.  During the course of this occurring another Defendant in the lawsuit, Mr. Mercier, assisted and advised Tolko Industries on issues relating to the offer made to the employees to change from a defined benefit pension plan to a defined contribution plan.
The Plaintiff’s sued Tolko and Mercier alleging that they did not act in good faith during this period.  Prior to trial the Plaintiffs lawyer examined Mr. Mercier extensively.  During the course of the trial the Plaintiffs wished to put Mr. Mercier on the stand.
The Defendant objected arguing that this was not necessary as he would take the stand in the defence and could be cross-examined at that time and further that the Plaintiff could read his discovery evidence in at trial.
Mr. Justice Butler rejected the Defendant’s argument and ordered that he take the stand.  In doing so the Court canvassed the power of litigants to put adverse parties on the stand in the BC Supreme Court.  In doing so the Court found that authorities developed under the former Rules remain helpful.  Specifically Mr. Justice Butler held as follows:

[6]             The Rules provide that the plaintiff may call an adverse party as a witness for cross-examination as part of the plaintiff’s case.  This may be done either by delivering the notice (as was done in this case), issuing a subpoena, or calling the adverse party as a witness if he or she is in the courtroom.

[7]             In my decision in Canadian Bedding Company Ltd. v. Western Sleep Products Ltd., 2008 BCSC 1444, I considered an application to set aside a notice delivered under the provisions in the former Rules in circumstances that were very similar to the circumstances in this case.  I dismissed the defendant’s application to set aside the notice.  In doing so, I examined the three different ways in which an adverse party could be called as a witness in the plaintiff’s case and the differences in the provisions for setting aside the notice or subpoena.  The provisions in the current Rules are, with one exception, the same and so my analysis is relevant to the current Rules…

[16]         I agree that the natural unfolding of the narrative can be impacted by use of the adverse party witness rule and that the use of the rule may unnecessarily prolong the trial.  However, I do not agree that the adverse party witness rule was intended to be limited to situations where the evidence sought to be elicited cannot be satisfactorily tendered in any other way.  The use of an adverse party witness may, in certain circumstances, be an effective way to prove a party’s case.  Counsel should not be deprived of that option when the language in the adverse party witness rule does not contain that limitation.

[17]         I have arrived at this conclusion on the basis of my analysis of the former Rules set out in Canadian Bedding.  In my view, the differences in the discretion given to a trial judge depending on how the adverse party witness is called to be a witness are important and cannot be ignored.

[18]         The Rules establish a hierarchy of discretionary considerations depending on how the adverse party witness is compelled to testify.  When a notice has been properly served pursuant to Rule 12-5(21), the witness and counsel have ample time to prepare for the cross-examination and design a trial strategy to deal with the fact that the defendant will be an adverse party witness.  Accordingly, the court is given a limited jurisdiction to set aside the notice.  It is only where the “evidence of the person is unnecessary” that the court can set aside the notice.  I cannot read Rule 12-5(23)(b) as equivalent to Rule 12-5(39), which states that a subpoena may be set aside where “compliance with it is unnecessary.”  The wording of Rule 12-5(39) must encompass a broader range of considerations including a consideration of the steps already taken in the case and whether compliance with the subpoena is necessary for the proper conduct of the trial.

[19]         Further, as I noted in Canadian Bedding, the discretion granted to the court must be exercised with restraint.  In De Sousa v. Kuntz (1988), 24 B.C.L.R. (2d) 206 (C.A.), Wallace J.A. cautioned that it was only in a clear case that a judge should exercise his discretion to set aside a subpoena on the ground of necessity.  He emphasized, at 214, the need for a judge to be acutely aware that if he sets aside a subpoena:

… he is substituting his view for that of counsel as to the need to subpoena a certain witness and that he will seldom have as complete an appreciation as counsel does of the benefits – both tactical and substantive – that a litigant may derive from calling a certain witness.

That caution applies with equal force in relation to the adverse party witness rules.  If plaintiff’s counsel decides to utilize the adverse party witness rule in order to satisfy the onus of proof borne by the plaintiff, the court should be reluctant to interfere.

[20]         In arriving at his conclusion in Strother, I also note that Lowry J.A. specifically stated at para. 43 that he intended “no imposition of any procedural limitation.”  If I were to accede to Mr. Mercier’s interpretation of the adverse party witness rule, it would add a gloss that does not appear in the current Rules.  It would impose a procedural limitation which does not appear in the adverse party witness rule.

[21]         Mr. Mercier cannot show that his evidence is “unnecessary”.  Mr. Poulus’s undertaking to call him as a witness and the fact of the extensive examination for discovery is not relevant to that consideration.  Accordingly, I decline to set aside the notice pursuant to Rule 12-5(23)(b).

Change is Coming to BC Limitation Law

Written by admin on . Posted in Civil Procedure, Tort Reform, Uncategorized. 74 Comments on Change is Coming to BC Limitation Law

The Government of BC intends on overhauling the BC Limitation Act. As Ian Mulgrew of the Vancouver Sun points out, this proposed law reform is something that matters to everyone, not just personal injury lawyers and claimants.

The Government has released a White Paper discussing the proposed changes at length. The proposed New Limitation Act can be found at Appendix A of the White Paper. On review it is clear that the proposed changes are not concrete and the Government is seeking feedback before bringing the law into force.

Members of the public can contact the Government with any concerns or suggestions no later than November 15, 2010, at:

Civil Policy and Legislation Office

Justice Services Branch

Ministry of Attorney General

PO Box 9222 Stn Prov Govt

Victoria, British Columbia V8W 9J1

Fax: 250 387-4525

E-Mail: CPLO_Limitation@gov.bc.ca

One of the goals of the reformed act is to “simplify” the law. On review there is nothing simple about the proposed new law and it seems every bit as complex as the current Limitation Act. There are some proposed changes that are noteworthy including:

Replacing varying basic limitation periods with a standard 2 year period

Reducing the Ultimate Limitation Period from 30 years to 10 or 15 years

Redefining “Discoverability” of a potential lawsuit

Abolishing the special ultimate limitation period for medical malpractice claims

Continuing to waive limitation periods for civil lawsuits for damages as a result of sexual assault

There are other proposed changes as well and I suggest that anyone interested in this topic review the proposed new law in full.  If you have concerns about how these reforms may affect your rights or have suggestions for improved changes please be sure to contact the Government prior to the November 15 deadline.

Withdrawing Deemed Admissions: Rule 7-7(5) Given First Judicial Consideration

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure, Uncategorized. 56 Comments on Withdrawing Deemed Admissions: Rule 7-7(5) Given First Judicial Consideration


Under both the old and the new BC Supreme Court Civil Rules parties to a lawsuit could ask the opposing side to make binding admissions through a “Notice to Admit”.  If the opposing side fails to respond to the Notice in the time lines required they are deemed to have made the sought admissions.  Once the admission is made it cannot be withdrawn except by consent of the parties or with the Court’s permission.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, considering when deemed admissions could be withdrawn under the New Rules.
In today’s case (Weiss v. Koenig) the Plaintiff was involved in a 2006 motor vehicle collision.  He claimed he sustained various injuries including bilateral hearing impairment.  In the course of the lawsuit ICBC asked the Plaintiff to make various admissions including an admission that his hearing was not affected as a result of the collision.  The Plaintiff failed to respond to the Notice to Admit in time thus was deemed to make the admissions.  The Plaintiff brought a motion to set these admissions aside and ICBC opposed.
Master Keighley granted the motion and set aside the admissions.  In doing so the Court noted that the admissions were made by inadvertence and that there was little prejudice to ICBC if these admissions were set aside.
This is the first decision I’m aware of applying Rule 7-7(5) of the new Rules of Court.  The Court noted that the new rule is almost identical as the old rule and implies that the precedents developed under the old Rule 31 remain good law.  Master Keighley set out and applied the following test in addressing the application:

Is there a triable issue which in the interests of justice should be resolved on the merits and not disposed of by deemed admission? In applying the test, all of the circumstances should be taken into account including:

1.         That the admission has been made inadvertently, hastily, or without knowledge of the facts.

2.         That the fact admitted was not within the knowledge of the party making the admission.

3.         That the fact admitted is not true.

4.         That the fact admitted is one of mixed fact and law.

5.         That the withdrawal of the admission would not prejudice a party.

6.         That there has been no delay in applying to withdraw the admission.

Renewing a Lawsuit and the New BC Supreme Court Civil Rules

Written by admin on . Posted in BCSC Civil Rule 3, Civil Procedure, Uncategorized. 66 Comments on Renewing a Lawsuit and the New BC Supreme Court Civil Rules


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, applying Rule 3-2(1) of the New BC Supreme Court Civil Rules.  This rule permits the Court to renew a Notice of Civil Claim before or after it expires.  Today’s case is the first I’m aware of applying this new rule.
In today’s case (Stuart v. Patterson) the Plaintiff was injured in two consecutive instances while engaging in exercises known as “dead-lifts”.  These exercises were apparently being supervised by the Defendant.  The Plaintiff started two separate lawsuits against the Defendant alleging that he was at fault for her injuries.  The Plaintiff’s lawyer failed to serve the Writ of Summons within the first year after filing.  The Plaintiff brought an application to renew the lawsuit relying on Rule 3-2(1) of the New Rules of Court.
Madam Justice Fitzpatrick found that the Plaintiff’s lawyer acted reasonably in taking steps to renew  the lawsuit after learning it expired and that there was little prejudice to the Defendant and accordingly renewed the filed documents for a further two months permitting them to be properly served on the Defendants.  In doing so the Court seemed to accept that Rule 3-2(1) reads almost identically to the old Rule 9(1) and that the precedents developed under the old rule remain in force.   Madam Justice Fitzpatrick summarized the applicable law as follows:

[10]         The leading case on the test to be applied on this application is Bearhead v. Moorhouse, [1977] B.C.J. No. 1324, (1977), 3 B.C.L.R. 81 (S.C.), upheld on appeal (1978), 5 B.C.L.R. 380. The test adopted by the Court of Appeal at that time requires the court to ask itself the basic question of “what is necessary to see that justice is done?”  In considering that question, the following factors are to be considered:

1.               Was the application to renew brought promptly?

2.               Did the defendants have notice of the claim before the writ expired?

3.               Did the defendant suffer prejudice?

4.               Was the failure to serve the writ attributable to the actions of the defendants?

5.               Was the failure to serve the writ attributable to the actions of the plaintiff?

[11]         Recent considerations of these factors are found in our Court of Appeal decisions of Seeliger v. Eagle Ridge Hospital, 2007 BCCA 582, and Fast Fuel Services Ltd. v. Michelin North America (Canada) Inc., 2008 BCCA 216.

[12]         It is clear from the authorities cited to me by both counsel that each case is to be decided on its particular facts.

[13]         Further, counsel for Ms. Stuart refers me to the statements from the Saskatchewan Court of Appeal in Simpson v. Saskatchewan Government Insurance Office (1967), 61 W.W.R. 741, at p. 750, 65 D.L.R. (2d) 324, to the effect that failure to renew a writ is an “irregularity” and that “if the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to permit it is not going to work any substantial injustice to the defendant or prejudice the defendant’s defence, then the writ should be renewed”: see Bearhead, BCCA at para. 8; Lowe v. Christensen (1984), 54 B.C.L.R. 88 (C.A.) at para. 13; Sutherland v. McLeod, 2004 BCCA 653, at paras. 28-29.

[14]         I accordingly consider the Bearhead factors:

ICBC Injury Claims, Dueling Experts and the Danger of "Advocacy"

Written by admin on . Posted in Civil Procedure, Uncategorized. 121 Comments on ICBC Injury Claims, Dueling Experts and the Danger of "Advocacy"


A common theme when ICBC or other personal injury claims go to trial is that of dueling expert witnesses.  Often times the Plaintiff’s treating physicians provide an opinion to the Court that is contradicted by experts hired by defendants or insurance companies.  In deciding how much the claim is worth a Court must navigate through these competing opinions and decide who to believe.
Treating doctors, due in part to their long term relationship with their patients, sometimes provide their opinion in an argumentative way.  While well intentioned such opinions can do more harm than good.  The reason being is that the Rules of Court require expert witnesses to be neutral when presenting their opinion to the Court.  When experts advocate for one side or another they risk having their opinion discounted or even being excluded from evidence altogether.  The potential harm caused by expert advocacy was demonstrated in reasons for judgement released today by the BC Supreme Court, Vernon Registry.
In today’s case (Gendron v. Moffat) the Plaintiff was involved in a motor vehicle collision in 2008.  Fault for the crash was admitted by the opposing motorist focusing the trial on the value of the Plaintiff’s ICBC claim.  The Plaintiff sustained various injuries.  The Court heard different opinions as to the extent of these from the Plaintiff’s treating doctor and from the expert hired by ICBC.
The Plaintiff’s GP provided the opinion that the Plaintiff suffered from chronic injuries as a result of the Crash.  The doctor hired by ICBC disagreed and gave evidence that the accident related injuries largely ran their course and the Plaintiff’s symptoms were better explained by unrelated arthritis.  Ultimately Mr. Justice Cole preferred the evidence of ICBC’s doctor.  In coming to this conclusion the Court found that the Plaintiff’s doctor acted as an advocate and excluded portions of her evidence and discounted other parts.  Mr. Justice Cole provided the following useful comments:

[15] The doctor summarized her condition as follows:

Ms. Gendron sustained grade 2 strains to her cervical, thoracic and lumbar spines and a grade 2 strain to her right shoulder when she was T-boned in an intersection by a vehicle that had run through a red light. The impact imparted both forward and rotational acceleration forces through Ms. Gendron, and the subsequent symptom pattern and chronology of injury were consistent with the mechanism and severity of injury. Ms. Gendron has consistently demonstrated a high level of motivation to recover from her injuries, and has remained at work since her MVA , albeit in a reduced capacity. [Emphasis added.]

[16] The last two sentences of that summary I had removed, as in my view, the first sentence dealing with the impact of the accident and acceleration forces were not within the expertise of the doctor and the comment about her high level of motivation demonstrated that the doctor was acting more as an advocate than as an independent professional.

[17] The doctor was also critical of Dr. T. O’Farell, an orthopaedic surgeon who filed a report and gave evidence at trial. He was of the view that Dr. O’Farell’s report was “below the currently accepted standard for a specialist’s medical legal report.”  Again, that sentence was removed on the basis that the family doctor was more of an advocate than an independent professional and lacked the expertise to make such a statement…

[22] I am of the view that the plaintiff’s family physician, while a highly qualified doctor, is more of an advocate than an independent medical specialist and that it is almost impossible to be objective and an advocate at the same time. I therefore prefer the evidence of Dr. O’Farell that her neck pain is due to arthritis in her spine…

[27] In conclusion, I find that the injuries sustained by the plaintiff in the motor vehicle accident for which the defendant is liable, have substantially resolved.

While the doctor’s advocacy was not the sole reason for the Plaintiff’s lack of success at trial (The Court also found that the Plaintiff was not a credible witness) it goes to show that an overzealous treating physician can do more harm than good when providing an opinion to the Court.  It is important for treating doctors to give their evidence in a fair and balanced manner to maximize the chance of having their opinions accepted at trial.

"Proportionality" Given First Judicial Interpretation, Severance of Liability and Quantum Considered

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 12, Civil Procedure, Uncategorized.


Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, interpreting two topics under the New BC Supreme Court Civil Rules, the test of “proportionality” and the circumstances permitting a Court to sever liability (the issue of fault) from quantum (the value of a personal injury claim).
In today’s case (Cayou v. Cayou) the Plaintiff was injured in an intersection collision in 2006.  The Plaintiff was the front seat passenger in a vehicle being driven by her daughter.  The Plaintiff sued the drivers of both vehicles.  ICBC alleged that the Plaintiff was in breach of her policy of insurance and intervened as a statutory Third Party.  The Plaintiff’s claim was set for trial in November to be heard by Judge and Jury.  The Plaintiff applied for an order seperating quantum from liability seeking to have the issue of fault determined by Judge alone.
Mr. Justice Wilson dismissed the application and in doing so found that the New Rules of Court dealing with severance of issues are identical to the old rules therefore old precedents should retain their value as guiding authorities.  Specifically Mr. Justice Wilson held as follows:

[22]         The plaintiff’s application is said to be made pursuant to Rule 1-3 and 12-1(9), of the Rules of Court.

[23]         Rule 1-3 directs the court on the object of the rules, including the notion of “proportionality”.

[24]         Rule 12-1(9) confers upon the court a power to adjourn a trial.

[25]         Although not stated, the plaintiff also, presumably, finds authority for her application in Rule 12-5(67) and (68).

[26]         Rule 12-5(67) confers a power on the court in these words:

(67)      The court may order that one or more questions of fact or law arising in an action be tried and determined before the others.

[27]         Rule 12-5(68) confers a power on the court in these words:

(68)      The court may order that different questions of fact arising in an action be tried by different modes of trial.

[28]         There is a change in the wording between Rule 12-5(67) and the former rule, Rule 39(29).

[29]         I conclude that the power to sever issues is the same in substance between the former rule and the current rule.

[30]         The governing principles established for the exercise of the power conferred under the previous rules have been established. Since I find that the power conferred under the new rule is the same as the old rule, I conclude that the principles defined under the former rule must be considered.

The Court went on to note that while the law of severance of issues remains the same the Court now must consider the overarching purpose of ‘proportionality’ when applying the Rules of Court.  This is the first case I’m aware of addressing this principle.  Mr. Justice Wilson provided the following comments:

[48]         To the framework of analysis under the pre-existing rule, must be added a consideration of the objective of “proportionality” mandated by Rule 1-3(2):

(2)        Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a)        the amount involved in the proceeding,

(b)        the importance of the issues in dispute, and

(c)        the complexity of the proceeding.

[49]         Expense was the sole factor urged by the plaintiff in support of severance. In the event of a review, however, I will set out my findings on the factors prescribed in the rule.

[50]         First, I take the “amount involved” to mean the quantum of monetary damages awarded to the plaintiff as the result of a successful prosecution of her lawsuit.

[51]         This factor was not argued. But, seemingly, the method of trial currently extant is proportionate to, that is to say, “duly related” to, the amount involved. I find this factor to be neutral.

[52]         Second, the issue of credibility is important to the issue of fault, and, I am told, to the issue of quantum.

[53]         For the reasons given above, for deciding against severance on the ground of interconnected issues, I find that one trial of all issues is proportionate to the expense to be incurred, to conduct one trial.

[54]         Severance, for the economic reasons advanced in this case, by denying the trier of fact all of the evidence on the issue of credibility, would be disproportionate to the twin objectives of a just and speedy determination of the action, on its merits.

[55]         Third, I would not characterize this action as one of complexity.

[56]         Mr. Shumka is probably right. This action arises out of a routine intersection collision, involving a vehicle turning left in the path of an oncoming vehicle, with its attendant personal injuries. In the event, there is nothing on the record to suggest that complexity was a factor contributing to the notion of proportionality.

[57]         No other factors (other than economical) were identified.

[58]         In result, the plaintiff’s application is dismissed. Costs of the application will be in the cause, pursuant to Rule 14-1(12).

ICBC Claims and Requests for "Particulars"

Written by admin on . Posted in BCSC Civil Rule 3, Civil Procedure, Uncategorized. 111 Comments on ICBC Claims and Requests for "Particulars"


When suing for compensation in an ICBC claim the BC Supreme Court Rules contain various ways to force disclosure of information.  From requiring the exchange of relevant documents, permitting the parties to attend an examination for discovery and even forcing an ‘independent medical exam’ in certain circumstances there are many tools which can be used to learn about your opponents case.
One further tool is the request for “particulars“.  If a party to a lawsuit is not clear what the other side is formally putting in issue they can ask for clarification by making a demand for particulars under Rule 3-7(23) of the Rules of Court.  There are, however, limits to the use of this Rule and this was demonstrated in reasons for judgement released this week by the BC Supreme Court.
In this week’s case (Yousofi v. Phillips) the Plaintiff was injured in a motor vehicle collision.  He sued for damages seeking compensation for, amongst other things, past and future wage loss, past and future medical expenses, past and future disability and out of pocket expenses.  ICBC’s lawyer demanded that the Plaintiff provide particulars of these claims.  The Plaintiff refused arguing that this was an inappropriate request.  Mr. Justice Hinkson agreed with the Plaintiff and in dismissing the Defence motion made the following useful comments about the limited use requests for particulars should have in ICBC injury claims:

The entitlement of a party to particulars…is discussed by Mr. Justice Joyce in Delaney & Friends Cartoon Productions Ltd. v. Radical Entertainment Inc. et al, 2005 BCSC 371, beginning at paragraph 9.

[4] In that case, His Lordship makes the point that:

Particulars are provided to disclose what the pleader intends to prove. How that party intends to prove the material facts and particulars is a matter of evidence. The pleading party is not required to, and indeed, is not entitled to set out in the pleadings the evidence that he or she intends to adduce at trial to prove the facts that have been pleaded.

[5] In David et al v. Her Majesty the Queen in Right of Canada et al, 2004 BCSC 1306, Mr. Justice Cohen considered the distinction between the material facts and evidence and referred to an earlier decision of Mr. Justice Joyce when he was a master of this court, Firestone v. Smith, [1991] B.C.J. No. 2660 (S.C.)(QL), where Master Joyce said at paragraph 11:

In my view the concern raised by the plaintiff at this stage is that he does not know but would like to know now what precise evidence the defendant may lead in support of his allegations of fact. In my respectful opinion the plaintiff is not entitled to ascertain the evidentiary basis of the defendant’s case by way of this demand for particulars.

[6] Turning to the notice of motion for particulars, the particulars sought at a relatively late juncture following examinations for discovery include a request for further and better particulars with respect to:

(a)      The Plaintiff’s Past and Prospective Loss of Enjoyment of Life

In my view, that is an inappropriate request for particulars and is a matter that can and should be pursued by way of examination for discovery. In my view, it is not necessary to provide particulars with respect to that head of damage.

(b)      The Plaintiff’s Past and Prospective Physical Disability

The injuries alleged by the plaintiff have been set out in the statement of claim and the extent of his disability arising therefrom is not a matter that is required as an item of pleadings. It, too, should be pursued by examination for discovery.

(c)      The Plaintiff’s Past and Prospective Loss of Earnings

Insofar as the past loss of earnings is concerned, this is information that can be identified and quantified and should be provided by the plaintiff to the defendant. It is not, in my view, appropriate that it be provided as particulars, but I am satisfied it should be provided in some fashion to the defendant, and I am going to direct that the plaintiff quantify his claim for past loss of earnings and provide that information to the defendant.

Insofar as prospective loss of earnings is concerned, I am not satisfied that that is a matter that can be necessarily particularized, and I leave it to the defendant to pursue that through examinations for discovery.

(d)      The Plaintiff’s Past and Prospective Loss of Earning Capacity

Like the prospective loss of earnings, I do not consider this to be an appropriate subject matter for particulars, and it is a matter that can be pursued by way of examination for discovery.

(e)      The Plaintiff’s Past and Prospective Loss of Opportunity to Earn Income

This is a head that is hard to distinguish from past and prospective loss of earning capacity. To the extent there is any difference, in my view it should be treated the same as the request for particulars of past and prospective loss of earning capacity.

(f)       The Plaintiff’s Past and Prospective Loss of Housekeeping Capacity

This is another matter that in my view does not warrant particularization in the pleadings. It can be pursued through examinations for discovery.

(g)      The Trust Award on Behalf of the Plaintiff’s Friends and Family

This, too, is not a matter that, in my view, should be dealt with by way of particulars, with this exception:  The individual or individuals for whom a trust award is claimed should be identified in the statement of claim where the trust award is advanced.

(h)      The Plaintiff’s Special Damages

These are matters that should be identified by the plaintiff for the defendant, but not as particulars of the pleadings.