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Contra Proferentem Rule Applied to Court Order Interpretation

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


“Contra Proferentem” is a rule courts use when interpreting contracts.  In plain English it means that if there is an ambiguous clause in a contract it will be interpreted against the party responsible for drafting the clause.   In an interesting use of this rule reasons for judgement were released today by the BC Supreme Court, Victoria Registry, applying this rule to a Court order.
Today’s case (Horne Coupar v. Velletta & Company) involved a dispute between two Victoria lawfirms.  A lawyer left the first firm (Velletta & Company) and joined the second (Horne Coupar).  A few months prior to leaving the first firm the lawyer renegotiated compensation terms with her employer from a salaried position to one which entitled her to a percentage of her “collected professional fees” on the files that she worked on.
Upon joining the second firm “a dispute arose as to what files and clients (the lawyer) would take with her and how (the first firm) would be reimbursed for loss of those files“.    Ultimately a Court motion was brought and the parties entered into a consent order with the direction that “(the second firm is) to pay over professional fees to (the first firm), on a proportionate basis for those hours which had accrued while the matter was under (the first firm’s) conduct“.  This consent order was prepared by the lawyer who left the first firm and joined the second.
The lawyer then “deducted 50% from the payments made by (the second firm) to (the first firm)” as money owing to her under the percentage clause she negotiated prior to parting company with the first firm.  The first firm disputed the propriety of this deduction arguing that the Court order that was agreed to left no such option.
Mr. Justice Romilly agreed with the first firm and ordered that money be paid to the first firm without this deduction.  In coming to this decision the Court used the Contra Proterentem doctrine.  Specifically the Court reasoned as follows:
[10] Contra proferentem is a rule of contractual interpretation which provides that an ambiguous term will be construed against the party responsible for its inclusion in the contract.  This interpretation will therefore favour the party who did not draft the term presumably because that party is not responsible for the ambiguity therein and should not be made to suffer for it.  This rule endeavours to encourage the drafter to be as clear as possible when crafting an agreement upon which the parties will rely.  This rule also encourages a party drafting a contract to turn their mind to foreseeable contingencies as failure to do so will result in terms being construed against them.  That there is ambiguity in the contract is a requisite of the application of this rule, however, once ambiguity is established, the rule is fairly straightforward in application.

[11] In my view the contra proferentem rule clearly applies in this case.  It was Ms. Newman who prepared the consent order signed by herself and Velletta.  As quoted above, that consent order directs inter alia:

…Horne Coupar to pay over professional fees to Velletta & Company, on a proportionate basis for those hours which had accrued while the matter was under Velletta & Company’s conduct…

[12] This provision provides only for payment, not for deduction of “fees” to which Ms. Newman feels she is entitled (and has since deducted).  Ms. Newman’s failure to include a provision or stipulation for deduction of her own fees has resulted in an ambiguity which is to be construed against her by application of the rule of contra proferentem.  Therefore, the clear interpretation of this provision (as against the drafter) is that fees are not deductible.  Horne Coupar is bound by the consent order to pay the professional fees to Velletta in accordance with this order and without deduction for work done by Ms. Newman.

More on the Law of Multiple Defence Medical Exams in Injury Litigation

Written by admin on . Posted in Civil Procedure, independent medical exams, Uncategorized. 70 Comments on More on the Law of Multiple Defence Medical Exams in Injury Litigation


Further to my previous posts on this topic, the law is well settled that the BC Supreme Court can order a Plaintiff involved in an injury lawsuit to undergo multiple defence medical exams in appropriate circumstances in order to ‘level the playing field‘.
There are many reported court cases considering such applications and today reasons for judgement were released by the BC Supreme Court, Victoria Registry, providing a concise summary of some of the legal principles at play when ICBC or another defendant wishes to have a Plaintiff assessed by multiple doctors.
In today’s case (Hamilton v. Pavlova) the Plaintiff was involved in a 2002 BC car crash.   The Plaintiff alleged that she suffered a mild traumatic brain injury (MTBI) in the crash which affected her cognitive functioning and had been assessed by at least 14 doctors since the time of her accident.
The Plaintiff attended two independent medical exams at request of the defendants, the first with an orthopaedic surgeon and the second with a neurologist.  The neurologist provided an opinion that “there was no evidence to support a diagnosis of brain injury“.  The Defendants then requested the Plaintiff to be assessed by a psychiatrist.  The Plaintiff refused and this resulted in a court motion to force attendance.
Mr. Justice Bracken dismissed the motion finding that the defendants were seeking to “bolster the opinion (of the neurologist they chose) by providing a similar opinion from someone with perhaps a more appropriate specialty“.  Before reaching this conclusion Mr. Justice Bracken provided the following very useful summary of some of the factors Courts consider in requests for multiple ‘independent’ medical exams:

[10] Rule 30(1) provides discretion to the court to order an independent medical examination, and under Rule 30(2), more than one examination may be ordered.  Counsel, in their helpful submissions, have thoroughly canvassed the relative authorities on this point.  From those authorities, certain principles emerge.  The case law is against a background of the rules of court, and in particular, the principle that the rules are designed to secure a just determination of every proceeding on the merits and to ensure full disclosure, so the rules should be given a fair and liberal interpretation to meet those objectives:  Wildemann v. Webster, [1990] B.C.J. No. 2304 (B.C.C.A.) at pp. 2-3.

[11] Rule 30(2) is a discretionary rule, and the discretion must be exercised judicially.  An independent examination is granted to ensure a “reasonable equality between the parties in the preparation of a case for trial”:  Wildemann v. Webster at p. 11 from the separate concurring reasons of Chief Justice McEachern.

[12] Reasonable equality does not mean that the defendant should be able to match expert for expert or report for report:  McKay v. Passmore, 2005 BCSC 570 at para. 17, andChristopherson v. Krahn, 2002 BCSC 1356 at para. 9.

[13] A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert.  That is, there must be some question or matter that could not have been dealt with at the earlier examination:  Trahan v. West Coast Amusements Ltd., 2000 BCSC 691 at para. 48, and Norsworthy v. Greene, 2009 BCSC 173 at para. 18.

[14] There is a higher standard required where the defendant seeks a second or subsequent medical exam of the plaintiff:  McKay v. Passmore, supra, at para. 17 and para. 29.

[15] The application must be timely.  That is, the proposed examination should be complete and a report available in sufficient time to comply with the rules of admissibility and to allow enough time for the plaintiff to assess and respond if necessary:  Vermeulen-Miller v. Sanders, 2007 BCSC 1258 at paras. 47-48, relying in part on Goss v. Harder, 2001 BCSC 1823.

[16] Finally, subsequent independent medical examinations should be reserved for cases where there are some exceptional circumstances:  Wildemann v. Webster, supra, at p. 3.

As previously pointed out, the BC Supreme Court Rules are being overhauled in July 2010.  Under the new rules the Court will continue to have the power to order multiple medical exams in particular circumstances but one thing that will change is that the concept of ‘proportionality’ will be introduced into the analysis. I plan to follow the law as it develops under the new rules and will report how our Courts apply the concept of proportionality to multiple defence medical exams in ICBC and other BC Personal Injury Litigation.

Keeping Damaging Evidence Out; Bias and Necessity

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized. 54 Comments on Keeping Damaging Evidence Out; Bias and Necessity


An imporant skill of a trial lawyer is being able to persuade the Court, in appropriate circumstances, to exclude expert opinion evidence that is damaging to your client’s case.  Two of the many objections that can be raised against opposing expert evidence are bias and lack of necessity.   Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with these areas of the law.
In today’s case (Beazley v. Suzuki Motor Corporation) the Plaintiff was injured in a 1994 roll-over car crash.  The Plaintiff claimed that the design of the vehicle involved was defective and sued various parties including GMC.  GMC argued that the vehicle was not negligently designed and further that the Plaintiff was the author of her own misfortune for failing to wear her seatbelt.
In support of their case the Defendants obtained two expert reports.  The first was a report from an engineer (who was an employee of the Defendant GMC) who provided opinions about the handling, stability and rollover characteristics of the vehicle in question and whether the vehicle was defective.  The second was the report of a statistician who addressed the injury risk to belted and unbelted occupants in rollover accidents.
The Plaintiff applied to exclude these reports from evidence.  They argued that the engineer’s employment relationship with the Defendant at the very least created a reasonable apprehension of bias that should disqualify him from acting as an expert.  With respect to the statistician’s report the Plaintiffs argued that this evidence was not helpful for the Court.
Mr. Justice Goepel rejected the Plaintiff’s submissions with respect to bias but did agree with the submissions with respect to the statistical evidence.  In coming to these conclusions Mr. Justice Goepel provided the following useful summaries of these areas of law:

  • BIAS

[20] Canadian courts appear to have taken different positions on the issue of whether an expert witness’ bias or perceived bias will disqualify him or her from giving evidence at trial. Some courts have held that for expert evidence to be admissible, the expert must be seen to be absolutely neutral and objective. Other courts have concluded that a lack of objectivity, neutrality and independence are matters that only impact the weight to be afforded that expert. Romilly J. in United City Properties Ltd. v. Tong, 2010 BCSC 111 at paras. 35-68, has exhaustively reviewed the jurisprudence.

[21] The cases are not easily reconciled. Where there is a personal relationship between the proposed expert and the party, where the expert has been personally involved in the subject matter of the litigation or where the expert has a personal interest in the outcome, the expert has not been allowed to testify. Examples of such cases are Fellowes, McNeil v. Kansa General International Insurance Co. (1998), 40 O.R. (3d) 456 (Gen. Div.); Royal Trust Corporation of Canada v. Fisherman (2000), 49 O.R. (3d) 187 (Sup. Ct. J.);  Bank of Montreal v. Citak, [2001] O.J. No. 1096 (Sup. Ct. J.); and Kirby Lowbed Services Ltd. v. Bank of Nova Scotia, 2003 BCSC 617. In cases where the relationship between the expert and the party is more institutional in nature, the evidence has been admitted subject to weight. Examples of such cases are R. v. Klassen, 2003 MBQB 253 and R. v. Inco Ltd.(2006), 80 O.R. (3d) 594 (Sup. Ct. J.).

  • NECESSITY

[28] Expert opinion evidence is admissible only where a judge or jury are unable, due to the technical nature of the facts, to draw appropriate inferences. The defendants seek to call Ms. Padmanapan’s statistical evidence in order to establish a causal connection between a failure to wear a seatbelt in the course of a rollover accident and increased injuries. In certain circumstances statistical evidence can be helpful in determining causation:  Laferrière v. Lawson, [1991] 1 S. C.R. 541.

[29] It has been long recognized in British Columbia that a party who fails to use an available seatbelt and sustains injuries more severe than if the seatbelt had been worn will be found to be contributory negligent: Yuan et al. v. Farstad (1967), 66 D.L.R. (2d) 295 (B.C.S.C.); Gagnon v. Beaulieu, [1977] 1 W.W.R. 702 (B.C.S.C.).

[30] While there appears to have been statistical evidence led in Yuan and in Gagnon, subsequent cases have held that such evidence is not necessary. In Lakhani (Guardian ad litem of) v. Samson, [1982] B.C.J. No. 397 (S.C.) McEachern C.J.S.C. (as he then was) noted at para. 3:

I reject the suggestion that engineering evidence is required in these cases. The court is not required to leave its common sense in the hall outside the courtroom, and the evidence is clear that upon impact in both cases the Plaintiff’s upper body was flung or thrown forward striking the dashboard or the steering wheel. And common sense tells me that the restraint of a shoulder harness would have prevented that, and therefore some of the injury from having occurred.

[31] To succeed on the seatbelt defence, the onus will be on the defendants to establish upon a balance of probabilities that the use of a functioning seatbelt would have avoided, or minimized Ms. Spehar’s injuries:  Harrison v. Brown, [1987] 1 W.W.R. 212 (B.C.S.C.); Terracciano (Guardian ad litem of) v. Etheridge (1997), 33 B.C.L.R. (3d) 328 (S.C.).

[32] The statistical evidence to be led from Ms. Padmanapan is, in my opinion, not necessary and will not assist me as trier of fact in determining the issue of contributory negligence. If the evidence is not necessary, it does not meet the test of admissibility.

More on Rule 37B; Settlement Offers, Acceptance and the Discretion of the Court

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


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing whether the BC Supreme Court has discretion to make costs awards after a formal settlement offer is accepted that specifically addresses costs consequences.
In today’s case (Hambrook v. Sandhu) the Plaintiff was injured in a 2004 BC collision.  He sued for damages.  The defence lawyer (instructed by ICBC) made a formal offer to settle the case for $75,000 plus costs up to the time that the offer was made with the Defendant being entitled to costs thereafter.  (this offer was made under the old Rule 37 which has now been repealed).
The Plaintiff initially dismissed the offer and continued in the lawsuit.   Three days before trial the Plaintiff accepted the offer.  The parties could not agree on the costs consequences.  The Plaintiff argued that Rule 37B (the rule that governed at the time of acceptance) gave the Court discretion to award her costs up to the date the offer was accepted.   Mr. Justice Verhoeven disagreed and held that when a settlement offer is accepted that specifically spells out the costs consequences there is no discretion for the Court to exercise under Rule 37B.  The Court provided the following reasons:
[28] But it has also been held that a settlement agreement containing terms as to payment of costs leaves the court with no room for the exercise of discretion pursuant to Rule 37B:  Buttar v. Di Spirito, 2009 BCSC 72 at para. 17..

[30] Madam Justice Gerow held that the court had no discretion to award costs in the matter before her. She stated at para. 11:

[11]      Both parties advanced arguments that the court has discretion under Rule 37B to make an order regarding costs. However, it is my opinion that the court has no discretion to make an order regarding costs in this matter. Mr. Buttar accepted the offer put forth by the defendants, including the offer regarding costs, without reservation. It is my view that Rule 37B does not confer a discretion on the court to set aside an agreement that has been entered into between the parties regarding costs.

[31] On this basis, where a party has specified the costs consequences of acceptance of its offer to settle, within an offer to settle to which Rule 37B applies, and a settlement agreement results in accordance with the offer, the court does not retain a discretion to depart from the terms of the agreement.

[32] Put another way, it remains open to litigating parties to make an offer to settle within the meaning of Rule 37B and to specify the costs consequences of acceptance of the offer. In my view this is a positive result. It allows the parties to create their own bargain. It provides for certainty, and avoids the need for applications to court where a settlement agreement is reached, while preserving the court’s discretion in cases where no settlement occurs…

[37] In my view the agreement that the parties made was unambiguous. The defendants’ offer was clear in relation to the costs consequence of acceptance; the defendants would pay the costs until the date of the offer, and if the plaintiff were to accept the offer after that date, then the defendants would be entitled to costs after that date.

[38] After July 1, 2008, when the new rule came into effect, the defendants’ offer remained open for acceptance in accordance with its terms. The defendants had not withdrawn it or amended it. The new rule affected the costs consequences in the event that the offer was not accepted, and the court went on to render a judgment. That did not occur…

[61] The plaintiff will receive costs in accordance with Appendix B, Scale B, for the time leading to delivery of the defendants’ offer to settle. The defendants will receive costs following that date. No argument was presented to me that there should be any distinction between the tariff items and disbursements. The applicable costs will include both tariff items and disbursements.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

More on Trials and Examinations For Discovery – Keeping Evidence Out For Lack of Relevance

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

As I’ve previously written, evidence given by a party at examination for discovery can be damaging.  The opposing side can read in portions of the transcript to the trial judge in an effort to advance their case or hurt yours.
A limit on this is relevance.  If the proposed discovery questions and answers are not relevant (even if no objection to relevance was made at the examination for discovery) a trial judge can keep the evidence from going in.  Reasons for judgement were released yesterday by the BC Supreme Court, Victoria Registry, dealing with this practice point.
In yesterday’s case (More v. Bauer) the Plaintiff suffered a severe brain injury while playing hockey.  The Plaintiff claimed his helmet was negligently designed and sued the manufacturers of the helmet.   At trial the Plaintiff’s lawyer attempted to read in portions of the examination for discovery evidence obtained in pre-trial investigations.  Mr. Justice Macaulay refused to let certain portions of the proposed evidence in on the basis that it was not relevant.  While the result reached in this case is very fact specific the Court provided the following useful summary of the law of relevance and discovery evidence:

[4] The subrule, as applicable here, reads:

(27)      (a)        If otherwise admissible, the evidence given on an examination for discovery by a party or by a person examined under Rule 27(4) to (12) may be given in evidence at trial, unless the court otherwise orders, but the evidence is admissible only against

(i)         the adverse party who was examined,

(ii)        the adverse party whose status as a party entitled the examining party to conduct the examination under Rule 27(4) to (12), or                      …

[5] A plain reading of Rule 40(27)(a) strongly suggests that the evidence an examining party seeks to read in must be admissible in the usual sense; that is, the evidence must be relevant and not subject to any exclusionary rule. Even if the evidence is admissible, the wording further suggests that the court has a residual discretion to exclude it. In my view, the latter requires me to consider whether admitting the evidence at this stage of the trial would result in unfairness…

[11] I must determine questions of relevance having regard to the issues framed in the pleadings. Throughout, I have applied the description of relevance that Cory J. set out in R. v. Arp, [1998] 3 S.C.R. 339, 166 D.L.R. (4th) 296 at para. 38:

38        … To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to “increase or diminish the probability of the existence of a fact in issue”. [Citation omitted.] As a consequence, there is no minimum probative value required for evidence to be relevant. [Citation omitted.]

As is well known, questions of relevance are largely determined by applying common sense and experience within the above framework.

[12] I also take into account the more recent statement of the Supreme Court of Canada in R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298 at para. 30:

[30]      Relevance can only be fully assessed in the context of the other evidence at trial. However, as a threshold for admissibility, the assessment of relevance is an ongoing and dynamic process that cannot wait for the conclusion of the trial for resolution. Depending on the stage of the trial, the “context” within which an item of evidence is assessed for relevance may well be embryonic. Often, for pragmatic reasons, relevance must be determined on the basis of the submissions of counsel. The reality that establishing threshold relevance cannot be an exacting standard is explained by Professors D. M. Paciocco and L. Stuesser in The Law of Evidence (4th ed. 2005), at p. 29, and, as the authors point out, is well captured in the following statement of Cory J. in R. v. Arp, [1998] 3 S.C.R. 339, at para. 38 …

As readers of this blog know the BC Supreme Court Rules are being overhauled effective July 1, 2010.   The Rule discussed in this post is reproduced in almost identical form and can be found at Rule 12-5(46) so this case ought to retain its value as a precedent moving forward.

BC Injury Lawsuits and Expert Witnesses; Hired Guns Need Not Apply

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

I’ve written many times about the role expert witnesses play in injury claims.  From diagnosing injury, commenting on causation, prognosis, future care needs and disability expert witnesses play a crucial role in ICBC and other injury lawsuits.
In addition to experts called by the Plaintiff, the Rules of Court also permit the Defendant to retain their own experts in order to ‘level the playing field‘.
Expert witnesses owe a duty to the Court to present their opinions impartially and not to act as advocates for the side that hired them.  Sometimes, regrettably, experts forget this and stray into the field of advocacy.  When this happens the expert’s opinion can be rejected entirely or even be kept from entering into evidence in the first place.  Today reasons for judgement were released by the BC Supreme Court, Nanaimo Registry, discussing this area of the law.
In today’s case (Hodgkins v. Street) the Plaintiff was involved in a BC Car Crash and was awarded damages of just over $650,000.  (You can click here to read my post summarizing the trial judgement)  The parties could not agree on what damages should be awarded for  a tax gross-up award and management fees and a Court application was brought.
Both the Plaintiff and Defendant produced expert reports from economists.  The Plaintiff argued that the Defence report ought to be rejected in its entirety because the defence expert was a “partisan advocate“.  Mr. Justice Kelleher disagreed with this submission but before reaching this conclusion gave the following useful summary on the role of expert witnesses in BC litigation:

[6] In Tsilhqot’in Nation v. Canada (Attorney General), 2005 BCSC 131 at para. 32, the court referred to the duties and responsibilities of expert witnesses discussed in National Justice Compania Naviesa S.A. v. Prudential Assurance Co. Ltd. (“The Ikarian Reefer”), [1993] 2 Lloyd’s Rep. 68:

1.         Expert evidence presented to the court should be and should seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.

2.         An expert should provide independent assistance to the court by objective unbiased opinion in relation to matters within his or her expertise.  An expert witness should never assume a role of advocate.

3.         An expert should state the facts or assumptions on which the opinion is based and should not omit to consider material facts which detract from that opinion.

4.         An expert should make it clear when a particular question or issue falls outside of the expert’s expertise.

5.         If an expert’s opinion is not properly researched because insufficient date is available, this must be stated with an indication that the opinion is no more than a provisional one.

…

[10] I am in respectful agreement with the guidelines put forward in the Ikarian Reefer.  As trial judges, we must be wary of advocacy dressed up in the guise of an expert’s report.

If you are involved in an injury lawsuit and are served with an expert report by opposing counsel that you think is not objective the above passage should be kept handy.  You can challenge the opposing party’s experts if they contain “advocacy presented in the guise of opinion evidence” and such objections should be raised to keep reports that cross the line out of Court.

Proving Your BC Injury Claim: A "Balance of Probabilities"

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When you sue someone in British Columbia for causing injuries (either negligently or intentionally) you need to prove your case.  If you fail to do so your case can be dismissed and you may end up paying the other party’s Court costs.
What is the test that needs to be met when proving your injuries?  Unlike criminal trials which require proof of a crime ‘beyond a reasonable doubt‘, civil lawsuits have a much lower burden of proof.  A Plaintiff in an injury lawsuit need only prove their claim on a ‘balance of probabilities‘ which means more likely than not.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing the civil burden of proof in an ICBC claim.
In today’s case (Costello v. Rafique) the Plaintiff was involved in a ‘relatively minor rear-end collision‘ in 2006.  He sued for damages.  The Plaintiff claimed the accident caused a back injury which continued to cause problems up until the time of trial.  The Defendant disagreed arguing the car crash was not the cause of the Plaintiff’s ongoing pain problems rather these were attributable to a previous back condition (the Plaintiff in fact underwent a decompressive laminectomy shortly before the collision).
Mr. Justice Melnick found that while the Plaintiff did indeed continue to suffer from back pain, and that the ongoing symptoms “may well be…the result of soft tissue injuries resulting from the accident” possibility is not enough to prove a case on the civil standard.  In dismissing the Plaintiff’s allegation of causation of ongoing injuries due to the collision the Court stated as follows with respect to the Civil Burden of Proof:

[16] It may well be that Mr. Costello’s continuing back pain is the result of soft tissue injuries resulting from the accident. However, on the balance of probabilities, Mr. Costello has failed to persuade me that this is the case…

[17] Dr. Reebye’s carefully worded report really says it all:  “[t]he soft tissue injuries were responsible for his symptoms and limitation soon after the accident” [emphasis added] and, “[t]he injuries sustained were not severe enough to aggravate his pre-existing conditions.” I note that it is possible that Dr. Reebye is wrong. It could be that the whiplash from the accident did affect Mr. Costello’s spine in a way that affected the area of the surgery. But without a full and proper medical investigation with the aid of diagnostic imaging, I have no way of knowing that. The body of evidence that has been put before me on behalf of Mr. Costello, who bears the burden of proving his case on the balance of probabilities, just does not do that. The evidence neither convinces me that the soft tissue injuries from this minor rear-end collision have independently resulted in the debilitating pain and discomfort I have no doubt he now suffers, or that those injuries in some way affected the area of his spine which was the subject of the 2006 surgery or in some way caused his pre-existing condition to re-assert itself.

[18] I am convinced on a balance of probabilities that Mr. Costello did, indeed, suffer soft tissue injuries in the motor vehicle accident which caused him pain and discomfort for a period of time that cannot be quantified precisely but, before the time of trial, would have been resolved. Dr. Reebye’s suggestion in cross-examination that Mr. Costello could experience effects of the accident for five to ten years is implausible and at odds with his report. As noted above, I have no doubt that Mr. Costello is suffering back pain but I am not satisfied, to the standard required on a civil trial, that his current problems result from the injuries sustained in the motor vehicle accident. ..

Another Case Holds ICBC Insurance is Relevant Factor Under Rule 37B

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Further to my recent post on this topic, another case was just released by the  BC Supreme Court considering whether the Court can consider the fact that the Defendant is insured when determining what costs consequences a formal offer of settlement should have in an ICBC Claim.
In today’s case (Cridge v. Ivancic) the Plaintiff was involved in a 2005 car crash in Surrey, BC.  The Plaintiff sued for damages.  Fault was admitted by the Defendant and the Court was asked to value the claim.
Prior to trial the Defendants (through their ICBC appointed defence lawyer) made a formal offer to settle the case for $50,000.  The Plaintiff did not accept this offer and went to trial.  At trial the Plaintiff sought damages of over $100,000.  The claim was largely unsuccessful with the Court awarding just over $12,000 in total damages.
The Defendants brought a motion seeking that the Plaintiff pay their costs from the point of trial onward.   The Court held that it was not unreasonable for the Plaintiff to reject the formal offer until the week before trial.  As a result the Court awarded the Plaintiff her costs until that stage and the Defendants their costs from that time on.  The result was the costs cancelled each other out.  While there is nothing noteworthy about this result, the decision is worth reviewing because it is yet another precedent discussing whether insurance is a relevant consideration under Rule 37B.  Madam Justice Fenlon held that the existence of insurance is a fair consideration stating as follows:

[14] Under R. 37B(6)(c), another consideration is “the relative financial circumstances of the parties”. The defendants were represented by ICBC. The plaintiff was unrepresented; she is a retired accountant in her 70s, and appears to be of limited means, working only part-time each spring during tax season.

[15] There is conflicting case law on the issue of whether a defendant’s insurance coverage is relevant to the consideration of the financial circumstances of the parties. In Bailey v. Jang, 2008 BCSC 1372 at paras. 32-34, 90 B.C.L.R. (4th) 125 [Bailey], Hinkson J. held that the defendant’s insurance coverage should not be considered because the wording of Rule 37B(6)(c) of the Rules of Court does not invite such consideration and because an insurer is not generally a party to the litigation. Bailey has been followed on this point in various cases, including Abma v. Paul, 2009 BCSC 60 at para. 32, 66 C.P.C. (6th) 100, and A.E. v. D.W.J., 2009 BCSC 505 at para. 58, 91 B.C.L.R. (4th) 372.

[16] However, in Radke at para. 42, Boyd J. held that the fact that the defendants were represented by ICBC and “had substantially greater resources to finance a trial than the individual plaintiff” is a relevant consideration under R. 37B(6)(c). Radke was followed in Smith v. Tedford, 2009 BCSC 905, 77 C.P.C. (6th) 308, where Mr. Justice Grist stated at para. 16 that “[t]he ability to have a case advanced by experienced and well funded counsel is, to my mind, a resource that should be taken into account in exercising the judicial discretion stipulated under the new Rule.”

[17] I find Mrs. Cridge’s modest financial means and the defendants’ representation by ICBC to be a relevant consideration, although not a significant or determinative factor in my decision.

As pointed out in my last article on the topic, Rule 37B has been on the books now for almost two years.  The Court is clearly conflicted about whether the availability of insurance is a relevant factor under the rule.  When the New BC Supreme Court Rules come into force on July 1, 2010 Rule 37B will be replaced with Rule 9.  Rule 9 uses language that is almost identical to Rule 37B so the lack of clarity will likely continue.  In light of the on-going conflicting authorities it will be useful if the BC Court of Appeal addresses this issue.

More on ICBC Injury Claims and Late Defence Motions For Medical Exams

Written by admin on . Posted in Civil Procedure, independent medical exams, Uncategorized. 54 Comments on More on ICBC Injury Claims and Late Defence Motions For Medical Exams


Further to my recent post on this topic, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that ICBC may face an uphill battle when they apply for a Defence medical exam when the trial of the action is imminent.
In this week’s case (Agesen v. ICBC) the Plaintiff was injured in 2 separate motor vehicle accidents.  The Plaintiff sued and both cases where scheduled to be heard at the same time.  In support of his case the Plaintiff served medico-legal reports from a psychiatrist, a psychologist, an occupational therapist, his GP and a vocational assessment.  The Plaintiff attended a defence medical exam with a neurosurgeon and a report was served by the Defendants.
The Defendants then requested that the Plaintiff be assessed by an orthopaedic surgeon.  The Plaintiff would not consent and a court motion was brought.  The Master who presided granted the motion and ordered the Plaintiff to be assessed by the orthopaedic surgeon.  This appointment was to take place less than one month before trial.  The Plaintiff appealed and succeeded.  In overturning the Master’s decision Madam Justice Morrison reasoned that the late application would be prejudicial to the Plaintiff.  Specifically, on the topic of timing of defence applications for medical exams the Court stated as follows:

[38]        In Benner v. Vancouver (City), Mr. Justice N. Smith refused an application for a medical examination that came three weeks before trial.  The application was three weeks before trial and the examination itself would have been less than two weeks before trial.  In paragraph 19 of his judgment, Smith J. confirmed that the purpose of Rule 30 was “to place the parties on an equal footing in their ability to obtain medical evidence in a case where injuries are alleged.”  He also referred to Rule 40A which requires service of expert opinions 60 days before trial, where a report delivered less than 60 days before trial is inadmissible unless the court were to order otherwise.  In that case, the court found that the plaintiff’s physical condition was clearly put in issue by the pleadings.  The defendants had full advantage and protection of routine production of medical records.  I find that decision is applicable to this appeal.

[39]        In dismissing the application for a medical examination at that late stage, at paragraph 35, Smith J. stated, “… the Rules of Court are intended to level the playing field as between the plaintiff and the defendant, a defendant who takes no timely steps to exercise its rights under the rules does so at its peril.”..

[45] In my view, it would be prejudicial to the plaintiff at this date to order an IME four weeks before a ten day jury trial.  That the plaintiff has serious injuries is not a surprise to the defence.  That his claim is substantial should certainly not have been a surprise.  Any advantage to the defence at this point in time would be outweighed by prejudice to the plaintiff, not only because of his problems in dealing with examinations, depositions and preparation for trial, but also because of the very real possibility that a late medical opinion could well result in plaintiff’s counsel having to seek an adjournment of this trial, in order to meet unexpected or opinion evidence that may be prejudicial to the plaintiff.  In this case, the balancing of prejudice must be in favour of the plaintiff, given the chronology of events.

As readers of this blog know the BC Supreme Court Civil Rules are being overhauled in July 2010.  Some of the biggest changes in the new Rules relate to expert evidence and you can click here to read my article discussing these changes.  The Court will continue to have the power to order multiple medical exams in particular circumstances but one thing that will change is that the concept of ‘proportionality’ will be introduced into the analysis.  I will continue to post about these decisions as the new Rules is developed in its application by the BC Supreme Court.

The Debate Goes On – Rule 37B and the Relevance of Insurance

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Uncategorized.


Further to my numerous posts discussing the development of Rule 37B, reasons for judgement were released today demonstrating that this Rule’s application is still being shaped by the BC Supreme Court.
The one factor that has yet to receive judicial agreement is whether the defendant being insured is a factor the Court can consider when exercising its discretion to award costs under the rule.  There are cases going both ways and today’s case shows that the debate goes on.
In today’s case (Wittich v. Bob) the Plaintiff was injured in a car crash.  Her husband was the at fault driver.  She sued for damages.  Before the trial the Defendant (through his insurer ICBC) made a formal offer to settle the case for $40,100.  Later the Defendant withdrew this offer and made a second formal under Rule 37B to settle the case for $65,000.  The Plaintiff rejected this offer, made her own formal offer of $196,000 and proceeded to trial.
At trial the Plaintiff sought damages of $847,000.  The claim was largely unsuccessful with the Court awarding just over $31,000 in damages.  (You can click here to read my summary of the trial judgement).
The Defence then brought a motion to be awarded costs and disbursements.  This application was partially successful with the Defendant being awarded their costs and disbursements from 6 weeks before trial through trial.  Before coming to this decision, however, Madam Justice Bruce was asked to consider whether the fact that the Defendant was insured with ICBC was a factor the court can consider when weighing the financial positions of the parties.  The Court ruled that this indeed is a relevant factor holding as follows:

[23]        Turning to the financial circumstances of the parties, it is clear that, as a married couple, the plaintiff and the defendant have the same economic position.  The authorities are divided as to whether the circumstances of the insurer should be considered as a relevant factor in an order for costs. In the particular circumstances of this case, I find it is appropriate to consider the insurer’s resources in comparison to the plaintiff’s. The defendant Mr. Wittich supported his wife’s claim and testified that her pain and suffering after the accident was considerable and prolonged; however, counsel for the defendant took an entirely different position in argument. Thus it must be inferred that counsel was taking instructions from the insurer and not the litigant.

[24]        The plaintiff is not a wealthy person. She has not worked for a considerable period of time. The defendant has an income of less than $70,000 per year. I thus find that their economic circumstances are far less substantial when compared to that of the insurer. It is also apparent that an award of costs may deprive the plaintiff of the judgment awarded at trial. These are factors in her favour.

Rule 37B has been on the books now for almost two years.  The Court is clearly conflicted about whether the availability of insurance is a relevant factor under the rule.  When the New BC Supreme Court Rules come into force on July 1, 2010 Rule 37B will be replaced with Rule 9.  Rule 9 uses language that is almost identical to Rule 37B so the lack of clarity will likely continue.  In light of the on-going conflicting authorities it will be useful if the BC Court of Appeal addresses this issue.