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Losing Your Case With Your Own Evidence – More on Effective Cross Examinations

Written by admin on . Posted in Civil Procedure, Uncategorized. 51 Comments on Losing Your Case With Your Own Evidence – More on Effective Cross Examinations

One of the most powerful tools a trial lawyer has is cross-examination.  In cross examination a lawyer can pose leading questions forcing a witness to agree or disagree and in doing so the lawyer seeks to get admissions that help his client’s case or hurt his opponent’s case.
In pre-trial examinations for discovery a lawyer has the right to ‘cross-examine‘ the opposing party.  By that I mean a lawyer is permitted to control the examination with leading questions.  If done effectively damage can be done to the your opponents case.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, demonstrating the results of a persuasive cross examination.
In today’s case (Mann v. Rainsford) the Plaintiff was injured while viewing a neighbour’s open house.  As the Plaintiff was leaving the house she mis-stepped on a concrete slap (basically a step) along a pathway from the home to the sidewalk.  Having mis-stepped the Plaintiff fell and was injured.  She sued the home-owner claiming that this concrete slab was a hazard and that steps should have been taken to guard against this injury.
Mr. Justice Wilson of the BC Supreme Court disagreed and dismissed the Plaintiff’s lawsuit.   The Court noted that the Plaintiff’s injuries “were caused solely by her own inattention“.  The Court reached this decision largely by the Plaintiff’s own evidence which was given at examination for discovery.  The Plaintiff’s evidence clearly had a damaging impact on her case and the discovery exchange is worth reviewing for anyone learning about cross examination in personal injury lawsuits.  The damaging cross examination was as follows:

[29] The plaintiff explained the mechanics of the incident, at her examination for discovery, as follows:

92   Q  Tell me what you did when you left the house.

A   I walked out of the front door and I stepped down the first step.  And I remember I was looking at the garden.  And I tripped.  And I went to grab the handrail, but there was no handrail there and I fell forward down the step.

…

96   Q  You said you were looking at the garden?

A   Mm-hmm, yes.

97   Q  Which area of the garden were you looking at?

A   On the left-hand side coming out.

98   Q  So the right-hand side of the photograph, you were looking over that way?

A   Yes.

…

100 Q  You didn’t slip on anything, is that right?

A   No.

101 Q  And you didn’t trip on anything, did you?

A   No, there was no object there.

102 Q  You misstepped, is that right?

A   Yes.

…

128 Q  So you stepped off the landing onto —

A   The step, yes.

129 Q  — down the first step, and you did that fine.

A   Yes.

130 Q  So you got down onto, say, the second landing?

A   Yes.

131 Q  And then you went forward?

A   Yes.

132 Q  And then what happened?

A   I tripped on that step, as far as I can remember.

133 Q  So you were looking at the garden to the left?

A   Yes.

…

137 Q  Why did you fall?  Do you know why you fell?

A   It wasn’t a normal configuration of steps going down, so I missed it.

138 Q  You just went up it 30 minutes earlier.

A   That’s correct.

139 Q  So you knew that there was a step and a landing and another step and a landing from when you just went up 30 minutes earlier, right?

A   I saw it as I went up, but I wasn’t looking at the stairs as I came down, because I don’t normally have to look and check to see where the steps are when you’re going down.

140 Q  You knew that this isn’t a staircase like at your house.  You knew that when you got there and you knew that when you went to go up into the house, right?

A   I saw it when I went up.

141 Q  So you knew that there were landings in between the steps and that you would have to walk to get to the next step, right?

A   Yes.

142 Q  I’m just trying to find out what was surprising to you that it was the same on the way out as it was on the way in.

A   I guess I hadn’t recalled the configuration when I left.

…

144 Q  So it was the same on the way out as it was on the way in?

A   Yes.

145 Q  It was simply just that you misstepped when you left the house, isn’t that right?

A   That’s correct, yes.

When preparing for discovery or trial you need to know that the defence lawyer will try to harm your case and must be prepared for a leading cross examination.  If not, you risk causing significant and possibly preventable damage to your claim.

More on ICBC Injury Claims and the "Implied Undertaking of Confidentiality"

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 132 Comments on More on ICBC Injury Claims and the "Implied Undertaking of Confidentiality"


As I’ve previously written, when a lawsuit for damages is brought in the BC Supreme Court, the parties are required to make disclosure of certain relevant documents even if such disclosure is harmful to their interests.
In order to strike a balance between fulsome disclosure and privacy rights, the Courts have developed a law known as the “implied undertaking of confidentiality” which prohibits a party who receives this forced disclosure from making use of the documents/information outside of the lawsuit without consent of the other parties or a court order.  Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, dealing with this area of the law.
In today’s case (ICBC v. Titanich) the Defendant was involved in a motor vehicle accident and apparently injured another party named Swan.  Swan sued the Defendant.  ICBC apparently held that the Defendant was in breach of his policy of insurance and defended the lawsuit as a ‘statutory third party‘.  ICBC obtained a Court Order for disclosure of the RCMP records relating to the accident and then settled the Plaintiff’s personal injury lawsuit for some $346,000.  ICBC then sued the Defendant to recover the $346,000 on the basis that they alleged he was in breach of his insurance.
ICBC apparently relied on some of the information obtained in the RCMP files to base their decision to pursue the Defendant for repayment of the $346,000.  The Defendant brought a motion to dismiss the lawsuit arguing that ICBC “breached its implied undertaking of confidentiality in relation to the documents it obtained from the RCMP“:.
The Court ultimately dismissed the motion holding that while ICBC did indeed breach their implied undertaking, no remedy was necessary since ICBC would be granted judicial permission to use the RCMP records in the current lawsuit had they brought a motion seeking such an order.  In reaching this conclusion Mr. Justice Barrow summarized and applied the law of the “implied undertaking” as follows:

[13]        In Juman v. Doucette, [2008] 1 S.C.R. 157, 2008 SCC 8, Binnie J. addressed the scope of the implied undertaking and its underlying rationale. At para. 4, he wrote:

[4]        Thus the rule is that both documentary and oral information obtained on discovery, including information thought by one of the parties to disclose some sort of criminal conduct, is subject to the implied undertaking. It is not to be used by the other parties except for the purpose of that litigation, unless and until the scope of the undertaking is varied by a court order or other judicial order or a situation of immediate and serious danger emerges.

[Emphasis in the original]

[14]        The rationale for the rule is, in part, to promote complete and candid oral and documentary discovery which, in turn, advances the orderly and effective administration of justice. It does that by providing the litigant making discovery with some confidence that the material produced will be used only for the purpose of securing justice in that proceeding.

[15]        Given this rationale, it is worthy of note that the discovery in issue in the matter at hand did not emanate from a party to the litigation. It does not consist of either oral or documentary discovery produced by Mr. Spinks. It is, rather, information gathered by the police in a process entirely independent of this litigation. I note this not because it necessarily follows that documents produced by third parties are not subject to the implied undertaking but rather because it is a factor that may be taken into account in determining whether a remedy ought to be granted…

[17]        The next issue is whether the plaintiff has used the discovery. The “use” that the plaintiff has made of the information is limited to listing those documents in a list of documents. That constitutes “use” within the meaning of the rule (Chonn v. DCFS Canada Corp. dba Mercedez-Benz Credit Canada, 2009 BCSC 1474 at paras. 47?52).

[18]        Assuming that the undertaking extends to documents produced by third parties to earlier litigation but relating to the conduct or affairs of a party to that litigation, I am satisfied that the plaintiff breached the implied undertaking.

[19]        In Juman, Binnie J. wrote this about the range of available remedies for breach of the implied undertaking:

[29]      Breach of the undertaking may be remedied by a variety of means including a stay or dismissal of the proceeding, or striking a defence, or, in the absence of a less drastic remedy, contempt proceedings for breach of the undertaking owed to the court…

Further, it may be that the breach can be remedied by precluding the party in breach from using the evidence in question. That was the remedy applied in Edgeworth Construction Ltd. v. Thurber Consultants Ltd., 2000 BCCA 453, 78 B.C.L.R. (3d) 200.

[20]        Another possible remedy, and the one sought in Chonn is removal of counsel of record for the party in breach…Voith J. concluded that the defendant was in breach of the implied undertaking but declined to grant a remedy. In doing so, he made four points. First, he noted that the documents were relevant. Second, he observed that had the defendant applied to obtain the court’s leave to make use of the documents, leave would have been granted. Third, he noted that although counsel ought to have made an application, his error was not, in all the circumstances, serious. Finally, and largely as a result of the above, there was no prejudice to the plaintiff. As a result, he ordered that the plaintiff produce the documents and that the defendants were at liberty to use them.

[21]        The same four observations apply in the case at bar. The documents are relevant. The outcome of an application to be relieved of the implied undertaking, had it been made, is predictable. Binnie J. commented on the manner in which a court’s discretion might be exercised when faced with such an application. At para. 35, he wrote:

[35]      The case law provides some guidance to the exercise of the court’s discretion. For example, where discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the examinee is virtually non-existent and leave will generally be granted…

The example posited is this case. Next counsel’s conduct in this case is, if anything, less serious than that in Chonn. As in Chonn, plaintiff’s counsel in the present case raised the issue of the implied undertaking in his first conversation with Mr. Titanich’s lawyer. In doing so, he noted that he was of the view that he required the consent of the plaintiff in the previous action before disclosing the documents. He did not suggest that he needed Mr. Titanich’s consent presumably because Mr. Titanich was not a party of record in the earlier action. Mr. Titanich’s counsel did not suggest otherwise. She simply asked that the documents be forwarded to her. The understanding that Mr. Spinks had from the conversation with Ms. Roy was that they would each list the documents and that all he needed to do was obtain the consent of the plaintiff in the previous action. He obtained that consent and listed the documents.

[22]        Although for the reasons indicated, I think Mr. Spinks was required to obtain the consent of Mr. Titanich, in concluding otherwise, he was not acting in a cavalier manner but was rather proceeding carefully and on the basis of an analysis that appeared to have been shared Mr. Titanich’s own lawyer.

[23]        In all of these circumstances, there is, in my judgment, no need for any remedy.

While ICBC was not penalized for breaching the implied undertaking this case serves as a reminder that lawyers must respect the limits the law imposes on the use of documents which come within their possession through the compelled disclosure of the BC Rules of Court.  Failing to heed these restrictions can result in severe consequences as outlined in today’s case including removal from the case, exclusion of evidence or even dismissal of a lawsuit or a defence

Started a Lawsuit? Don't Forget to Serve the Defendant

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When you start a lawsuit in the BC Supreme Court you need to serve the filed Writ of Summons on all Defendants within one year.  Failure to do so could result in a dismissal of your claim and reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, demonstrating this.
In today’s case (Mackie v. McFayden) the Plaintiff was involved in a 2005 BC Car Crash.  The Plaintiff was allegedly injured in this crash and he sued the owner and driver of the other vehicle.
After the lawsuit was started the Plaintiff served the driver of the other vehicle.  However, the Plaintiff never served the Writ of Summons on the Defendant owner.   Some two years passed and still service was not affected.  The Defendant owner brought a motion to dismiss the Plaintiff’s lawsuit.  The Plaintiff brought a counter motion to renew the now expired Writ of Summons seeking permission to serve the document if renewed.
Master Bouck refused to renew the expired Writ of Summons and ordered that the lawsuit against the other vehicle owner be dismissed for “want of prosecution“.  In doing so the Court summarized and applied the law relating to renewing an expired writ of summons as follows:

[19]        The law regarding the renewal of the writ is relatively straightforward. Five factors are to be considered:

1. Whether the application to renew was made promptly;

2. Whether the defendant had notice of the claim before the writ expired;

3. Whether the defendant is prejudiced;

4. Whether the failure to effect service was attributable to the defendant; and

5. Whether the plaintiff, as opposed to his solicitor, is at fault.

Imperial Oil Ltd. V. Michelin North America (Canada) Inc. (2008), 81 B.C.L.R. (4th) 99 (C.A.).

…

[22]        In this case, the application for renewal of the writ was not made promptly. The writ expired in April 2008; the application for renewal was made eighteen  months later.

[23]        There is no evidence to suggest that Ms. McFayden has had notice of this claim.

[24]        Mr. Klear submits that there is prejudice to Ms. McFayden. While ICBC will defend the claim, it may seek indemnification for damages paid to the plaintiff.

[25]        Whether or not that is the case, prejudice may be presumed simply by the passage of time without the defendant McFayden having to prove actual prejudice: Mountain West Resources Ltd. v. Fitzgerald (2005), 37 B.C.L.R. (4th) 134 (C.A.). In this case, the writ has been outstanding for nearly three years.

[26]        There is no evidence that the failure to renew the writ is the fault of the defendant McFayden.

[27]        On the other hand, it would appear that the plaintiff’s solicitors (as opposed to the plaintiff) neglected to proceed with the application to renew the writ. Importantly, no explanation whatsoever is offered for this delay. The plaintiff may have his own remedy in these circumstances: Skolnick v. Wood, [1981] 2 W.W.R. 649. However, given the defendant Olson’s position that there is no cause of action against Ms. McFayden, the plaintiff may not need to seek such relief.

[28]        Balancing all of these factors, I am persuaded that the writ should not be renewed. Thus, the plaintiff’s motion is dismissed in its entirety.

The Court went on to hold that, even if this decision was wrong, the lawsuit against the vehicle owner should be dismissed for want of prosecution.  In doing so Master Bouck noted as follows:

[34]        The plaintiff has known since July 2007 that he required an order for substitutional service in order to proceed with the action. He did not pursue such an order for more than two years. Admittedly, the plaintiff attempted service (thanks to the defendant Olson’s information) in early 2009. However, by that time, the plaintiff (or at least his solicitor) should have been well aware that any application for renewal of the writ (and an order for substitutional service) must be pursued forthwith. Instead, such an application did not occur for another ten months. It is reasonable to infer  that the plaintiff’s application for this relief is merely reactive to the defendant’s motion.

[35]        There is no explanation or excuse offered for the delay.

[36]        Prejudice is presumed. No evidence is presented to rebut that presumption.

[37]        In the result, the action against Ms. McFayden is dismissed for want of prosecution.

The lesson to be learned from today’s case is that just because a lawsuit is filed within the appropriate limitation period doesn’t mean that the Plaintiff’s right to proceed with the lawsuit will continue indefinitely.  If the  lawsuit does not move forward with reasonable diligence a Plaintiff runs the risk of having their case dismissed.

Now to cross reference.  As readers of this blog know the New BC Supreme Court Civil Rules come into force on July 1, 2010.  Under the New Rules the “writ of summons” has been abolished.  However, the originating document in a personal injury lawsuit still needs to be served on Defendants within one year and the Court’s ability to renew the document and to dismiss a claim for want of prosecution remain intact.  Accordingly this case will likely retain its value as a precedent after the new rules come into force.

Examinations For Discovery and Your BC Injury Claim – A Video Introduction

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Here is a video I’ve uploaded to YouTube discussing examinations for discovery in BC Injury lawsuits:

An Examination for Discovery is a process where the opposing side can bring you in front of a Court Reporter and get your sworn answers to questions about relevant topics. Discoveries are designed to learn about your case and to hurt your case.  It is one of the most important pre-trial steps in Injury litigation and a Plaintiff’s evidence can play a key role in whether the case settles or proceeds to trial.
In ICBC claims some of the usual topics that are covered are the circumstances of the accident, the injuries sustained, the expenses incurred, the course of recovery of the injuries, wage loss details and other the effects of the accident related injuries on lifestyle  (You can click here to read a more in depth article about what is covered at a Discovery).
I hope this introductory video and the linked articles take some of the mystery out of the process.

Can Interest on Disbursements be Recovered in BC Injury Litigation?

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Uncategorized. 120 Comments on Can Interest on Disbursements be Recovered in BC Injury Litigation?


As I’ve written before, personal injury litigation can be an expensive business.
It usually costs thousands of dollars if not tens of thousands of dollars to bring an injury claim to trial in the BC Supreme Court.  I’m not talking about lawyers fees here either.  What I’m referring to is the cost of gathering evidence for presentation in court.  To succeed in Court usually expert opinion evidence is required to address many areas that frequently come up in injury litigation such as diagnosis of injury, prognosis, disability etc.   Expert medical reports usually cost anywhere from hundreds to tens of thousands of dollars.
These significant disbursements are often funded by personal injury lawyers or on a line of credit.  When a Plaintiff is successful in their personal injury claim they can recover their reasonable disbursements from the opposing party.  But can the interest on these disbursements be recovered?  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry addressing this topic.
In today’s case (Milne v. Clarke) the Plaintiff was injured in a 2005 BC Car crash.  In advancing his claim private MRI’s were arranged between 2005-2006.  These cost $975 a piece.
The claim settled in 2009 for $170,000 plus costs.  By the time of settlement the costs of the MRI’s with interest came to almost $4,000.  The Plaintiff sought this amount from the Defence and the Defence refused to pay.
Ultimately the matter went before a Master of the BC Supreme Court who held that the interest was not recoverable.  The Plaintiff appealed.  Mr. Justice Burnyeat reversed the Master’s ruling finding that interest on disbursements can be recoverable.  Specifically the Court reasoned as follows:

[4] In support of the submission that the Learned Registrar erred in principle, Mr. Milne submits that the law which was binding on the Learned Registrar is set out in McCreight v. Currie, [2008] B.C.J. No. 2494, where ….  In allowing the interest, Registrar Young concluded:

… The plaintiff really had no choice but to pay the interest given that she did not have the funds to be retaining experts and paying for their reports up front.  I suppose the defendant’s choice was that the defendant could have offered to pay for the report up front once it was disclosed to him, but no offer was forthcoming.  Given this was the only way to finance the obtaining of a report, I find this to be a reasonable expense and I will allow it.

…

[6] Rule 57(4) of the Supreme Court Rules provides that, in addition to determining fees, the Registrar must:

(a)   determine which expenses and disbursements have been necessarily or properly incurred in the conduct of the proceeding, and

(b)   allow a reasonable amount for those expenses and disbursements.

[7] In support of the application, it is said that Mr. Milne had no means of paying for the required M.R.I. scans other than to borrow money from the provider and that, since the cost of the M.R.I. had already been agreed upon, so too should the interest on the unpaid accounts rendered by the provider of the M.R.I. images.  Here, it is the provider of the M.R.I. and not counsel for Mr. Milne who is charging the interest on the invoices.

[8] I find that the Learned Registrar erred in principle.  The December 29, 2009 decision was clearly wrong.  First, even if the Learned Registrar was not bound by the decision inMcCreight, I am not bound by the decision reached by the Learned Registrar herein.  I am satisfied that the statement set out in McCreight accurately represents the law in British Columbia.  Second, the decision in Hudniuk relates to the question of whether disbursement interest is a head of damage and not to the question of whether it is recoverable as costs on an assessment.

[9] The law in British Columbia is that interest charged by a provider of services where the disbursement has been paid by counsel for a party is recoverable as is the disbursement.  The interest charge flows from the necessity of the litigation.  If the disbursement itself can be assessed as an appropriate disbursement, so also can the interest owing as a result of the failure or inability of a party to pay for the service provided.  In order to obtain the M.R.I., it was necessary to pay not only the $975.00 cost but also the interest on any unpaid balances that were not paid immediately.  The cost plus interest was the cost of obtaining the M.R.I.  The claim for interest should have been allowed.

This judgement is a welcome development for people advancing personal injury claims in BC as the Court’s reasoning provides greater certainty that successful Plaintiffs can recover interest charged on reasonable disbursements incurred in the course of litigation.

Privacy Rights – Personal Injury Claims and Your Computer Hard Drive

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A developing area of law is electronic discovery.
In the personal injury context the BC Supreme Court Rules require relevant, non privileged documents to be disclosed to opposing counsel.  The definition of document includes “any information recorded or stored by any means of any device“.  So, if there is relevant information, be it printed, on a computer or even on a cell phone, discovery needs to be made in compliance with the Rules of Court.
In recent years electronic documents have been the subject of court applications and Insurance companies / Defendants have sometimes been successful in gaining access to a Plaintiff computer’s hard drive.  Reasons for judgement were released today by the Supreme Court of Canada discussing court orders for the seizure of computer hard drives.
Today’s case (R v. Morelli) dealt with a criminal law matter.  However the Canadian High Court’s reasons may be of some use in the personal injury context.
By way of background the Defendant was charged with a criminal code offence.  One of the reasons for the charges was evidence that was apparently obtained from the Defendant’s computer which was seized pursuant to a search warrant.
The Defendant was convicted at trial.  The Supreme Court of Canada, in a very close split decision (4-3) overturned the conviction on the basis that the search warrant never should have been ordered because there were no reasonable and probable grounds to issue it.
While this case strictly dealt with criminal search warrants and the necessary evidence to obtain one, the Canadian High Court made some very strong comments about the intrusive effects of computer searches and this reasoning very well may have persuasive value for Courts considering whether they should give insurance companies access to Plaintiffs computers.  Specifically the Supreme Court of Canada provided the following comments:

[1]   This case concerns the right of everyone in Canada, including the appellant, to be secure against unreasonable search and seizure.  And it relates, more particularly, to the search and seizure of personal computers.

[2]  It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer.

3]  First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you.  There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created.  The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet — generally by design, but sometimes by accident.

[4]  That is precisely the kind of search that was authorized in this case.  And it was authorized on the strength of an Information to Obtain a Search Warrant (“ITO”) that was carelessly drafted, materially misleading, and factually incomplete.  The ITO invoked an unsupported stereotype of an ill-defined “type of offender” and imputed that stereotype to the appellant.  In addition, it presented a distorted portrait of the appellant and of his surroundings and conduct in his own home at the relevant time…

[105] As I mentioned at the outset, it is difficult to imagine a more intrusive invasion of privacy than the search of one’s home and personal computer.  Computers often contain our most intimate correspondence.  They contain the details of our financial, medical, and personal situations.  They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet. ..

[111] The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause.  To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term.

When considering whether a Defendant should be allowed access to a Plaintiff’s computer in a personal injury lawsuit I should point out that the New BC Supreme Court Civil Rules will change the scope of documents that need to be disclosed.  Specifically, the test for what documents are discoverable will be altered.

Under the current system parties must disclose documents “relating to every matter in question in the action“.  Under the new rules this test has been changed to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“.

This new test is supposed to be narrower in scope than the current one.  Time will tell how this new test will change disclosure requirements in the prosecution of personal injury actions however, given the fact that this new test will be applied alongside principles of proportionality there very well may be narrower disclosure requirements in smaller personal injury claims and greater obligations in the prosecution of more serious claims.
I will continue to write about this area of British Columbia personal injury law as it develops in the coming months.

Protection of the Public – Holding a Lawyer Personally Liable for Unnecessary Court Costs

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Can a lawyer be held personally liable to his client or to the opposing party for Court Costs incurred because of unreasonable steps taken in a lawsuit?  The answer is yes and today the BC Court of Appeal provided lengthy reasons addressing this important issue.
In today’s case (Nazmdeh v. Spraggs) the lawyer represented a client in a personal injury lawsuit.  A number of pre-trial applications for discovery were brought by the defence lawyer and these were resolved through Chambers Hearings.   One of the applications was for interrogatories and another demanded particulars.  The Court granted these motions and held that the lawyer for the Plaintiff “failed to comply with his independent obligations as counsel in response to the interrogatories and demand for particulars…..the lawyer had failed to take positive steps to meet his obligations“.
As a result the lawyer was ordered to personally pay costs to the Defendant.  This order was made under Rule 57(37) which holds as follows:

(37)  Where the court considers that a solicitor for a party has caused costs to be incurred without reasonable cause, or has caused costs to be wasted through delay, neglect or some other fault, the court may do any one or more of the following:

(a)        disallow any fees and disbursements between the solicitor and the solicitor’s client or, where those fees or disbursements have been paid, order that the solicitor repay some or all of them to the client;

(b)        order that the solicitor indemnify his or her client for all or part of any costs that the client has been ordered to pay to another party;

(c)        order that the solicitor be personally liable for all or part of any costs that his or her client has been ordered to pay to another party;

(d)        make any other order that the court considers appropriate.

The Plaintiff’s lawyer challenged this finding and the case was brought before the BC Court of Appeal.  He argued that a lawyer should only face such punishment if his/her conduct was “reprehensible“.
The case was argued before a 5 member panel of the BC High Court and even the Law Society of BC intervened arguing that the Chambers Judge was wrong in making such an order and that it would have a “chilling effect on litigation and on advocacy…and ultimately undermine collegiality“.
The Court of Appeal rejected these arguments and dismissed the appeal.  In doing so the BC High Court provided the following instructive reasons on when a lawyer can be personally responsible for Court Costs under Rule 57(37) for steps taken in a BC Supreme Court Lawsuit:

[101] Prior to the enactment of the Rules, the Supreme Court of British Columbia had power to make orders against lawyers to pay costs personally under the court’s inherent jurisdiction.  Such orders were generally made only in cases of “serious misconduct”. The Rules, particularly Rule 57(30) and its successor Rule 57(37), have, however, expanded the scope of conduct which might support costs orders against lawyers. The Court now has a discretion to order a lawyer to pay costs where he has “caused costs to be incurred without reasonable cause, or has caused costs to be wasted through delay, neglect or some other fault”.

[102] Under Rule 57(37), mere delay and mere neglect may, in some circumstances, be sufficient for such an order against a lawyer. Under the Rule there is no requirement for “serious misconduct”, the standard required under the court’s inherent jurisdiction. The requirement in Young and in Kent of “reprehensible” conduct applies only in cases of orders against a lawyer for special costs. Young and Kent are not authority for requiring such a standard when making an order for party and party costs against a lawyer. In such circumstances, the lower standard mandated by the Rule is sufficient.

[103] The power to make an order for costs against a lawyer personally is discretionary. As the plain meaning of the Rule and the case law indicate, the power can be exercised on the judge’s own volition, at the instigation of the client, or at the instigation of the opposing party. However, while the discretion is broad, it is, as it has always been, a power to be exercised with restraint. All cases are consistent in holding that the power, whatever its source, is to be used sparingly and only in rare or exceptional cases.

[104] The restraint required in the exercise of the court’s discretion is not to be confused with the standard of conduct which may support its use. Care and restraint are called for because whether the unsuccessful party or his lawyer caused the costs to be wasted may not always be clear, and lawyer and client privilege is always deserving of a high degree of protection.

[105] Nothing in these reasons is a comment upon the immunity of barristers for their conduct in court. This case is not about contempt, abuse of process or similar egregious conduct. It concerns only what a lawyer did or did not do in response to interrogatories and a demand for particulars.

[106] In my respectful view, the learned chambers judge did not err in interpreting the rule according to the plain meaning of its words.

Now to Cross-Reference:  Do the New BC Supreme Court Civil Rules which come into force change this judgment?  Probably not.  Rule 57(37) is reproduced with almost identical language and can be found at Rule 14-1(33) of the New Rules.

The ability of parties to use interrogatories as a means of pre-trial discovery has been restricted under the New Rules so this triggering event is unlikely to give rise to costs consequences however the test set out by the BC Court of Appeal will likely remain good law after the new Rules come into force.

ICBC Injury Claims: Provincial Court vs. BC Supreme Court

Written by admin on . Posted in Civil Procedure, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, Uncategorized.


When deciding how to advance an ICBC injury claim one of the important decisions that needs to be made is which court to sue in.  Should the claim be made in Small Claims Court (The Provincial Court of BC) or in the Supreme Court?
Both courts have notable differences.  Perhaps the greatest distinguishing feature (from an injury claims perspective) is their monetary jurisdiction.  The maximum award for damages that can currently be made in the Provincial Court is $25,000.  The Supreme Court has an unlimited monetary jurisdiction.
For serious injury claims there is not much of a choice to make, these are almost always filed in the Supreme Court.  But what about more modest claims, claims that may fall in the $20,000 – $30,000 range?  Where should these be filed?
While the various courts have many different advantages and disadvantages (such as discovery rights, rules addressing expert evidence, pre-trial procedure and costs consequences) there is one reality that is well recognized by many personal injury lawyers.  Typically a similar claim in the Supreme Court can result in a higher assessment of non-pecuniary damages than one assessed in the Provincial Court.  There is nothing wrong with this variance in law as the range of acceptable non-pecuniary damages for any given injury can be quite broad.
While this discrepancy is well known to many practicing lawyers, I have never seen it addressed in a judgement until now.  Reasons for judgement have come to my attention discussing the sometimes differing views of Supreme Court vs. Provincial Court judges in the assessing non-pecuniary damages for soft tissue injuries.
In today’s case (Gatari v. Wheeler, BCPC Victoria Registry File No. 080409) the Plaintiff was involved in a 2007 rear end collision near Duncan, BC.  This was a Low Velocity Impact.  ICBC defended the case in accordance with their LVI policies and the Defence Lawyer argued at trial that the Court should dismiss the case on the basis that any injuries suffered were so minor that they did not warrant compensation or in the alternative damages between $1,000 – $2,000 should be awarded.
The Plaintiff’s lawyer sought a significantly higher award.  Judge Kay found that the Plaintiff suffered a mild soft tissue injury of 7 months duration and awarded non-pecuniary damages of of $7,500.  In doing so Judge Kay addressed the discrepancy in non-pecuniary damage awards between the Provincial and Supreme Court.  Specifically Judge Kay stated as follows:
This court is aware that quantum of damage awards in cases similar to the one at bar vary dramatically.  This court is also aware that the major variation is attributable to difference between cases that are heard in Supreme Court as opposed to those that are heard in Provincial Court.  In general, awards in Supreme Court are much higher than those that are made in Provincial Court but this court notes that the cases that come before the Supreme Court, while they may be similar in circumstances, they are distinguishable by the severity of the injuries and interference with enjoyment of life.  While recovery periods may be similar, claimants in Supreme Court tend to testify to a greater overall impact on life in terms of, inter alia, more severe pain and suffering and more time lost from work.

Expert Evidence – Doctors, Biomechanical Engineers and Force Necessary to Cause Injury

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


When a personal injury claim is advanced the Plaintiff has the burden to prove what injuries they suffered and that these were caused (or materially contributed to) by the trauma in question.  In proving a case it is common for a Plaintiff to obtain expert opinion evidence from medical doctors to address issues such as diagnosis of injury, prognosis, treatment needs, disability and causation.
One tactic used by personal injury lawyers is to try and limit the scope of the opposing sides expert witness’ opinions.  If a witness wanders outside of their area of expertise then those portions of their opinion become inadmissible.
When addressing the issue of causation a developing area of BC Injury Law is whether a physician can give opinion evidence with respect to the forces necessary to cause a specific injury.  Some argue that this is outside of a medical doctors training and is better left to biomechanical engineers.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an argument.
In today’s case (Pham-Fraser v. Smith) the Plaintiff sustained numerous injuries in a 2006 BC car crash.  The Plaintiff’s vehicle was struck at an intersection when the Defendant entered against a red light.  The issue of fault was admitted focusing the trial on the issue of damages.
In support of her case the Plaintiff called numerous physicians to give expert opinion evidence.  One of these witnesses was Dr. Brian Hunt, a neurological surgeon.  He provided the opinion that the “accident created sufficient deceleration forces to produce damage to (the plaintiff’s) L5 vertebra through abnormal axial-loading but that a biomechanical engineer (would need to) confirm this probability“.
The Defence lawyer argued that Dr. Hunt was simply not qualified to give this opinion and that this opinion was inadmissible.  Mr. Justice Greyell rejected this submission and provided the following useful analysis:

[50] Mr. Killas argued certain aspects of the expert evidence called by the plaintiff were inadmissible and that other expert opinion evidence should be given little or no weight.  In particular the defendants argued I should give little or no weight to Dr. Hunt’s opinion the accident created sufficient forces to produce damage to the L5 vertebral body through abnormal axial loading.  Mr. Killas pointed out Dr. Hunt then qualified this opinion with this remark:  “However a biomechanical engineer will need to confirm this probability”.  Mr. Killas noted Dr. Hunt had not done an investigation into the circumstances of the accident (vehicle speed, etc.) to make his opinion.

[51] Mr. Killas also argued Dr. Hunt’s diagnosis that the plaintiff sustained a brain dysfunction secondary to brain injury was simply based on the reading of Dr. Longridge’s medical report and on an unproven assumption the plaintiff had a lack of awareness of the circumstances of the motor vehicle accident.  Mr. Killas also argued Dr. Hunt’s opinion the plaintiff probably suffered abnormal axial loading on her spinal column during the accident was qualified by Dr. Hunt when he said in his report that “a biomechanical engineer will need to confirm this probability”.

[52] I accept Dr. Hunt’s opinion on both these issues.  There was evidence concerning the plaintiff’s limited recollection of what happened following the accident and I accept Dr. Hunt, given his qualifications and special experience, was well able to offer the opinions he did.

[53] I have ascribed as much weight to Dr. Hunt’s opinion concerning the cause of the plaintiff’s lower back injury as I have on the opinions of the other specialists who testified, including Dr. Schweigel.  Dr. Hunt’s expertise (and that of the others) has been gained through many years treating patients who have been involved in motor vehicle accidents.  He is well qualified to offer the opinion he did.  The fact Dr. Hunt was prepared to defer to the opinion of a biomechanical engineer does not, in my view detract from his expertise in offering his opinion to the court on the cause of the plaintiff’s lumbar spine injury.  I similarly find that the evidence of Dr. Hartzell concerning the forces applied to the plaintiff’s lower spine during the accident is helpful to the court and hence admissible, given his experience and qualifications.  Both Dr. Hunt and Dr. Hartzell, through their long and distinguished medical practices have had experience with persons with spinal injuries.

More on ICBC Claims and the "Failure to Mitigate" Defence

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

When advancing an ICBC tort claim Plaintiffs have a duty to take reasonable steps to limit their loss.  If a plaintiff does not do so the value of their claim can be reduced .  This legal defence is known as “failure to mitigate“.  (You can click here to read my previous posts discussing this topic).
In the personal injury context, it is not unusual for defendants to argue that plaintiffs failed to mitigate their damages.  A common argument is that a Plaintiff failed to follow medical advice.
While failing to follow medical advice can result in reduction of the value of a claim, this fact in and of itself is not enough.  To succeed the Defendant will have to prove not only that the Plaintiff failed to follow medical advice but that had the Plaintiff done so it would have improved the course of their injuries.  Reasons for judgement were released today demonstrating this principle.
In today’s case (Singh v. Shergill) the Plaintiff was injured in a 2006 rear-end collision.  Fault was admitted.  The Plaintiff’s injuries included soft tissue damage to his low back.  The Defendant argued that the Plaintiff “did not follow his doctor’s recommendations” and that the Court should reduce the value of the claim for failure to mitigate.  Madam Justice Baker agreed that the Plaintiff “did not follow his doctor’s recommendations” but did not reduce the value of the Plaintiff’s claim.  Specifically the Court held as follows:

[45] The defendant submits that Mr. Singh would have recovered more quickly, and would experience less discomfort and impairment if he had followed Dr. Ng’s recommendation to undergo physiotherapy for a period longer than he did, and to engage in an active program of physical exercise to strengthen his core muscles, in particular, his abdominal muscles.

[46] I agree with the defendant that Mr. Singh did not follow his doctor’s recommendations.  I am not persuaded, however, that the evidence is sufficient to permit me to conclude that Mr. Singh would have recovered more fully, or more quickly, if he had done as Dr. Ng recommended.  Mr. Singh testified that although the five physiotherapy treatments he did have in 2006 resolved the problems in his neck and shoulders, he experienced no relief in relation to the lower back symptoms.

[47] I expect that Dr. Ng was hopeful that the treatment he was recommending would be of benefit to Mr. Singh, but he has not testified that it is probable that Mr. Singh would be in better condition today if he had continued physiotherapy.  Dr. Ng has pointed out, and the evidence establishes, that the job Mr. Singh does five days a week involves considerable physical labour, and therefore Mr. Singh does get physical exercise.

[48] I conclude the defendant has failed to prove a failure to mitigate.

The lesson to be learned is that the Defendant has the burden of proving failure to mitigate in a personal injury lawsuit.

If this defense is raised it needs to be determined what difference would have been made if the Plaintiff did what the Defendant alleges the Plaintiff should have done.  Usually expert opinion evidence would be necessary to discharge this burden and Plaintiffs faced with this defence would be wise to scrutinize the evidence Defendants have in support of their arguments when gauging whether their settlement should be affected for failure to mitigate.