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ICBC Injury Claims, Trials and Adjournments – Let's Be Reasonable

Written by admin on . Posted in Civil Procedure, Uncategorized. 105 Comments on ICBC Injury Claims, Trials and Adjournments – Let's Be Reasonable

Often times when a BC Supreme Court trial date approaches in an ICBC Injury Claim there are reasons why one party would like to adjourn the trial.  Key witnesses can be unavailable, perhaps the case is not quantifiable due to ongoing medical investigations or maybe one side is simply not prepared.
Whatever the reason if the parties don’t consent an application can be brought to a Supreme Court Judge or Master requesting an adjournment pursuant to Rule 39(9) which holds that “The court may order the adjournment of a trial or fix the date of trial of an action or issue, or order that a trial shall take precedence over another trial“.
The legal test for adjournment applications has long been established and it is clear that courts have the discretion to adjourn a trial.  In exercising this discretion the Court must take into account the “interests of justice”. The interests of justice are determined by ‘balancing the interests of the parties, which is a difficult and delicate matter requiring a careful consideration of all the elements of the case‘.
With this introduction out of the way that brings me to the topic of today’s post.  What if a trial needs to be adjourned for very clear and obvious reasons but the opposing side does not consent?  Unreported reasons for judgement came to my attention today dealing with such a scenario.
In this case (Davis v. Clark, BCSC Chilliwack Registry, June 8, 2009) the Plaintiff’s personal injury claim was set for trial.  Fault was admitted leaving the court to only deal with the issue of damages (value of the personal injury claim).  The trial date, unfortunately, was set on the same date that the Plaintiff’s lawyers daughter was being married.  The Plaintiff was content to have the trial adjourned but the Defendant refused to consent.  A motion was brought asking for an adjournment and it was granted.  The Court went further, however, and ordered that the Defendants pay the Plaintiff $703 in costs ‘forthwith‘ for their unreasonable refusal to consent.
Master Baker had the following to say:
“Anyway, in the case before me, liability is not in issue.  It is admitted.  I just do not see there is any prejudice to the defence, but, with respect, it strikes me as just an eminently reasonable request on the part of the plaintiff to adjourn this.  I wonder where litigation is going when someone says, “Look, my child is getting married and I want an adjournment,” and it is refused.  I find that unacceptable.  It frustrates and angers me, frankly.  I just wonder where it is going…The order will go.  Costs in any event payable forthwith.”
Sometimes there are legitimate reasons for an adjournment and sometimes there are not.  This case, however, demonstrates that where there is a very reasonable request for an adjournment and it is unreasonably refused the Court can punish the unreasonable party with costs payable forthwith.
Note:  Rule 39(9) will be kept intact when the New BC Supreme Court Rules come into force on July 1, 2010 and can be found at Rule 12-1(9).

Slip and Fall Accidents in BC – What Does it Take For a Successful Lawsuit?

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Occupier's liability claims, Uncategorized. 128 Comments on Slip and Fall Accidents in BC – What Does it Take For a Successful Lawsuit?


When you slip and fall and get injured on someone else’s property are you entitled to compensation?  The answer is not necessarily.
Injury in a slip and fall accident is only half of the equation.   The other half is fault.  The ‘occupier‘ of the property (or another defendant who owes you a duty of care) needs to be at fault for the slip and fall otherwise no successful claim for compensation can be brought.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with this area of the law.
In today’s case (Schray v. Jim Pattison Industries Ltd.) the Plaintiff fell (apparently on water) at a Save on Foods Grocery Store which was owned and operated by the Defendant.  The Plaintiff sued for her injuries alleging that the Defendant was at fault.  The Defendant brought a motion under Rule 18-A of the BC Supreme Court Rules to dismiss the case.  Madam Justice Arnold-Bailey denied the Defendant’s motion finding that the case was not suitable for summary dismissal.  Before reaching this conclusion, however, the Court summarized some of the legal principles behind a successful slip and fall lawsuit.   I reproduce these here for your convenience:

[21]        I agree that the prior summary trial judge set out the correct law in the previous application at paras. 5-10, as follows:

[5]        The duties of an occupier are set out in s. 3 of the Occupier’s Liability Act:

3(1)      An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person’s property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.

(2)        The duty of care referred to in subsection (1) applies in relation to the

(a)      condition of the premises,

(b)      activities on the premises, or

(c)      conduct of third parties on the premises.

[6]        The Act does not create a presumption of negligence against an occupier whenever a person is injured on the premises.  To establish liability, a plaintiff must point to “some act (or some failure to act) on the part of the occupier which caused the [plaintiff’s] injury”: Bauman v. Stein (1991), 78 D.L.R. (4th) 118 at 127 (B.C.C.A.).

[7]        A similar test applies under the common law.

[8]        An occupier’s duty of care does not require the occupier to remove every possibility of danger.  The test is one of reasonableness, not perfection.  Thus, an occupier may avoid liability if it establishes that it had in place a reasonable system of inspection:  Carlson v. Canada Safeway Ltd. (1983), 47 B.C.L.R. 252 (C.A.).

[9]        The plaintiff also bears the burden of proving that the hazard in question caused the injury: Keraiff v. Grunerud (1990), 43 B.C.L.R. (2d) 228, 67 D.L.R. (4th) 475 (C.A.).

[10]      An occupier’s duty under the Act in relation to slips and falls in grocery stores was described as follows by Trainor J. in Rees v. B.C. Place (25 November 1986), Vancouver C850843 (B.C.S.C.) (quoted with approval by Hutcheon J.A. in Coulson v. Canada Safeway Ltd. (1988), 32 B.C.L.R. (2d) 212 at 214, [1989] 2 W.W.R. 264 (C.A.)):

The proceedings are brought under the Occupier’s Liability Act and that Act provides that an occupier has a duty to take that care that is reasonable in all the circumstances of the case to see that a person, in using the premises, will be reasonably safe.

The first requirement to satisfy that obligation is to take the kind of steps that were taken by the Defendants here to put into place a system to safeguard against dangerous substances being allowed to remain on the surface of the concourse. And then secondly to be sure that there was compliance by the people who were carrying out that responsibility with the system in place.

The bottom line is that the issue of fault is key.  When considering whether to sue for a slip and fall injury thought should be put to the issue of what the defendant did wrong to cause the incident or should have done to prevent it.

In my continued efforts to cross-reference the current BC Rules of Court with the soon to be in force New BC Supreme Court Civil Rules I will point out that Rule 18-A is kept intact under the new Rules and is reproduced almost identically at Rule 9-7 “Summary Trial“.

The Law of "Common Interest Privilege" Discussed in the Context of BC Injury Lawsuits

Written by admin on . Posted in Civil Procedure, Uncategorized. 65 Comments on The Law of "Common Interest Privilege" Discussed in the Context of BC Injury Lawsuits


Further to my many posts on the topic of discovery, when parties are involved in a lawsuit in the BC Supreme Court the Rules of Court require the parties to disclose certain information to the opposing side.  Generally all relevant information needs to be disclosed however there are exceptions to this and one such exception is ‘privilege‘.
Generally speaking (this is not an exhaustive list), privileged documents are documents that were created with an expectation of confidentiality between a party and his/her lawyer or documents that were created with the dominant purpose of advancing the parties interests in court.
The purpose behind the privilege exception to disclosure is to permit individuals to freely discuss their legal matters and work with their lawyers to advance their interests without the fear that these conversations/actions can come back to hurt the individuals interests later on.
The law recognizes an extension of privilege between one client and their lawyer to multiple people and that lawyer if the conversations took place in anticipation of a lawsuit and the multiple parties have a common interest.  This type of privilege is sensibly called ‘common interest privilege‘.  Reasons for judgement were released today discussing this area of law and highlighting some of the limitations of common interest privilege.
In today’s case (Peters v. Paterson) the Plaintiff was seriously injured while windsurfing when he was involved in a collision with a motorboat.  He eventually sued multiple parties including the people alleged to have been operating the boat (the “Motorboat Defendants”) and the people alleged to have rented the boat to the Motorboat Defendants (the “Renter Defendants”).
Before the lawsuit started one of the Renter Defendants apparently feared a potential lawsuit and retained the services of a lawyer.  That lawyer retained an adjuster who immediately took statements from a handful of people including the people who would later turn out to be the Motorboat Defendants.
After all the Defendants were sued by the Plaintiff the Renter Defendant who initially hired the lawyer issued a Third Party Notice against the Motorboat Defendants (a Third Party Notice is a document which alleges that if a certain defendant is found at fault and has to pay that the Third Party has to indemnify that defendant for the judgement).
The Plaintiff then asked for the statements of the Motorboat Defendants to be produced.  The Lawyer for the Renter Defendants refused citing ‘common interest privilege‘.  Ultimately an application was brought to court to force disclosure and the application succeeded.  Master Taylor of the BC Supreme Court, Vancouver Registry, held that the Third Party Notice took away any claim to common interest privilege.  The key reasons were as follows:

[13] Common interest privilege is said to be an extension of the privilege against disclosure of solicitor-client communications.  As Wigmore defines it:

The chief instance occurs when the same attorney acts for two parties having a common interest, and each party communicates with him.  Here the communications are clearly privileged from disclosure at the instance of a third person.  Yet they are not privileged in a controversy between the two original parties, inasmuch as the common interest and employment forbade concealment by either from the other.  (Wigmore’s emphasis)

[14] The defendants take the position that the statements in this case are covered by common interest privilege, which, they submit, applies to an exchange of confidential information between individuals who have a common interest in anticipated litigation.  The defendants cite Buttes Gas and Oil Co. v. Hammer (No. 3), [1980] 3 All E. R. 475 (C.A) in support of their position where Lord Denning says:

There is a privilege which may be called a “common interest” privilege.  That is a privilege in aid of anticipated litigation in which several persons have a common interest.  It often happens in litigation that a plaintiff or defendant has other persons standing alongside him – who have the self-same interest as he – and who have consulted lawyers on the self-same points as he – but these others have not been made parties to the action…All exchange counsel’s opinions.  All collect information for the purpose of litigation.  All make copies.  All await the outcome with the same anxious anticipation – because it affects each as much as it does the others.

[15] The defendants maintain that common interest privilege can apply to witness statements and in fact has been so applied in a number of Canadian cases.

[16] On the other hand, the plaintiff asserts that the case at bar is distinguishable from other cases in that there is no suggestion by the defendant or their counsel that counsel has ever worked in conjunction with the motorboat defendants to jointly advance the interests of all the defendants.  As well, the plaintiff maintains, there has not been any evidence led to indicate the motorboat defendants understood the reason for giving their statements, the uses their information would be put to, or that their statements would be kept privileged from the plaintiff.  In fact, in the instant case, two of the motorboat defendants have signed authorizations to release their statements to the plaintiff.

[17] In the recent decision in Maximum Ventures Inc. v. De Graaf, 2007 BCCA 510, Mr. Justice Mackenzie discussed the test for maintaining privilege between parties at paragraph 14:

Recent jurisprudence has generally placed an increased emphasis on the protection from disclosure of solicitor-client communications, including those shared in furtherance of a common commercial interest.  In the instant case the [solicitor’s] draft was produced within the recognized solicitor-client privileged relationship.  The common interest privilege issues arise in response to a plea of waiver of that privilege.  The common interest privileges is an extension of the privilege attached to that relationship.  The issue turns on whether the disclosures were intended to be in confidence and the third parties involved had a sufficient common interest with the client to support extension of the privilege to disclosure to them….Where legal opinions are shared by parties with mutual interests in commercial transactions, there is a sufficient interest in common to extend the common interest privilege to disclosure of opinions obtained by one of them to the others within the group, even in circumstances where no litigation is in existence or contemplated.

[18] And, at paragraph 16, Mackenzie, J.A. made the following finding:

The interests of the clients of the three solicitors were not identical but they were common to the extent that financing of the Western exploration of the Mongolian properties was beneficial to all of them.  They also shared an interest in assessing the invalidity of Maximum’s claims.

[19] The defendants maintain that even though two of the defendants have signed authorizations addressed to counsel for the defendants directing that their statements be released to counsel for the plaintiff, they cannot, in these circumstances, create a waiver over the common interest privilege by so doing.

[20] In my view, that argument begs the question for two reasons.  Firstly, were the persons from whom the statements taken to request copies of their statements, surely they would be entitled to receive copies of them as no privilege attaches to one’s own statement in the hands of a third party?  It would then be open to each of those parties to deliver a copy of their statements directly to the plaintiff.  Secondly, the defendant, Paterson, has issued third party proceedings against the four individual motorboat defendants for which he seeks judgment against the motorboat defendants, or indemnity from them in the event a judgment is rendered against Paterson.

[21] The Third Party Notice contains the following allegations:

a. The plaintiff’s windsurfer struck the port side of the motorboat;

b. The motorboat defendants represented that Arvinder Kaler would be the person operating the motorboat;

c. While Paterson does not know who was operating the boat at the time of the accident, it has been represented to Paterson that Sukhbir Brar was operating the motorboat at the time of the accident; and

d. the accident was caused solely by the negligence of the operators of the motorboat.

[22] In the circumstances, two things are apparent.  One, that the allegations made in the Third Party Notice are likely the result of information gleaned from the motorboat defendants, and, two, the defendant, Paterson, alleges the accident was caused solely by the negligence of the motorboat defendants, which creates the question: where is the commonality of interest between the renter defendants and the motorboat defendants such that a privilege continues to exist over the statements taken from the motorboat defendants?

[23] In my view, by the very nature of the Third Party Notice and the allegations made in it, there has been a severing of the commonality of interest of the defendants.  In the result, therefore, there is no common interest privilege which can be maintained, and, accordingly, the statements taken from the four motorboat defendants are no longer privileged and must be turned over to the plaintiff.

Court Ordered "Independent Medical Exams" and the Standard of Review – A Second Kick at the Can

Written by admin on . Posted in Civil Procedure, independent medical exams. 49 Comments on Court Ordered "Independent Medical Exams" and the Standard of Review – A Second Kick at the Can


When a court orders a Plaintiff to attend an independent medical exam (click here to read some related posts on this topic) in an ICBC or other Injury Claim and the parties appeal what is the standard of review used in the appellate hearing?
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing this issue.
In today’s case (Barbosa v. Castillo) the Plaintiff attended an Independent Medical Exam (IME) with an Orthopaedic Surgeon chosen by the Defendant.  He gave an opinion that the plaintiff did not have a “functional problem” with respect to any neurological complaints.  The Plaintiff then served expert reports outlining  that he had nerve root irritation which negatively impacted his ability to work.
The Defence asked for a second medical exam, this time with a neurologist.  On application to Court the presiding Master rejected the motion.  The Defendant appealed the ruling.  On hearing the appeal Mr. Justice Schultes had to decide, amongst other things, what the legal test was on these types of applications.  He ruled that the appeal can be a rehearing (as opposed to requiring proof that the Master was ‘clearly wrong’) in essence giving the appellant a second kick at the can.  Specifically the Court held as follows:

[14] Before proceeding further, it is necessary to establish the applicable standard of review of the learned master’s decision.  It is well established that on purely interlocutory matters, it must be demonstrated that the master was “clearly wrong” in his or her decision. However, when the ruling raises questions that are vital to the final issue in the case, the reviewing court approaches the matter as a rehearing.  When the master’s decision deals with a question of law, the standard of review is correctness:  Abermin Corp. v. Granges Exploration Ltd., [1990] B.C.J. No. 1060 (S.C.), and Joubarne v. Sandes, 2009 BCSC 1413 at para. 14.

[15] A decision to deny a defendant the opportunity to have an independent medical examination conducted of the plaintiff can raise questions that are vital to the final issue in the case.  In Belke v. Bennett, 2006 BCSC 536, Mr. Justice Barrow provided the following helpful approach at para. 5:

If the Master’s order amounts to a refusal, whether in whole or in part, of an application to have the plaintiff submit to an independent medical examination, it may deprive the defendant of discovering evidence necessary for a full examination of the plaintiff’s claim or of a defence advanced.  It is in that sense that a decision may be said to go to an issue vital to the trial. […]  If, on the other hand, the Master’s order simply sets terms on which the independent medical examination is to be conducted or directs that such an examination not be performed by a particular professional, the defendant is not deprived of potential evidence, and the order cannot be characterized as going to an issue that may be vital to a final issue at the trial.

[16] I adopt this analysis.  I think the master’s decision in this case fell within the first situation envisioned in Belke.  Denying the defendant’s application effectively foreclosed any exploration of Dr. Hunt’s opinion, let alone any rebuttal of it, on behalf of the defendant by an expert with the specific expertise necessary to cope with the report on its own terms.

[17] If uncontradicted, Dr. Hunt’s opinion could be determinative of several of the kinds of damages claimed by the plaintiff, in particular as to the true nature and extent of his injuries and their impact on his future earning capacity.  These questions appear to be vital to several final issues.  Accordingly, I will treat this appeal as a rehearing.

Mr. Justice Schultes went onto allow the appeal and order the second defence medical exam.  In doing so the Court provided the following useful summary of the law discussing factors courts can consider in applications for multiple independent defence medical exams:

[19] Turning to the actual merits of the defendant’s application on the rehearing, an excellent summary of the applicable law in this area was provided by Madam Justice D. Smith, then a member of this court, in McKay v. Passmore, 2005 BCSC 570 at paras. 15 – 19:

15.       The principles to be followed in deciding whether the defendants have shown an adequate basis for a second IME are set out in Trahan v. West Coast Amusements Ltd.[2000] BCSC 691 (CanLII), [2000] BCSC 691, at para. 48:

The authorities establish that additional medical examinations are in the discretion of the court …  (citations omitted).

That discretion is to be exercised judicially, considering the evidence adduced.  A second examination to permit the defendant a second opinion on the same subject matter will not be allowed.  A second examination may be appropriate where there is some question which could not have been dealt with on the first examination … (Citations omitted).

That the magnitude of the loss is greater than previously known is not in and of itself sufficient to permit a second examination … (Citations omitted).

Where diagnosis is difficult and existing assessments are aged, further assessment may be required …

And in Roberge v. Canada Life Assurance Co. [2002] BCSC 1500 (CanLII), [2002] BCSC 1500 at paragraph 9:

The distinction is quite important.  Simply put, when a person in litigation makes a claim for a personal injury, the defendant is, without oversimplifying the matter, almost always entitled to a medical examination of the plaintiff.  A much higher standard is imposed when the defendant seeks a second medical examination of the plaintiff.

16.       The overriding question is whether a second medical examination is necessary to ensure reasonable equality between the parties in their preparation of a case for trial: Wildemann v. Webster [1990] CanLII 206 (BC C.A.), [1991] 50 B.C.L.R. (2d) 244 (C.A.).

17.       Reasonable equality does not mean that the defendant must be able to match expert for expert or report for report.  I refer to Trahan v. West Coast Amusement Ltd. and toMacNevin v. Vroom [21 December 2004] New Westminster S072995 (S.C.).

18.       The defendants must satisfy the court that there is some question or matter that could not have been dealt with at the first examination:  Jackson v. Miller [1999] B.C.J. No. 2751 (S.C.).

19.       In considering how to exercise the discretion to grant a second IME, the court should take into account the timeliness of the application in the light of Rule 40A and the practicalities of trial preparation… [citations omitted.]

BC Injury Litigation – An Expensive Business

Written by admin on . Posted in Civil Procedure, Uncategorized. 51 Comments on BC Injury Litigation – An Expensive Business


Ask any personal injury lawyer in BC and they will tell you that Injury Claim prosecution can be a very expensive business.
The greatest expense associated with this type of litigation involves the services of expert witnesses.  It is very rare to prosecute an injury claim without hiring at least one expert to address issues such as diagnosis of injury, cause of injury, prognosis and future care needs.  Medical experts cost money and these expenses are usually paid by Plaintiffs lawyers up front.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, demonstrating just how expensive the services of expert witnesses can be.
In today’s case (Hamo v. Khan) the Plaintiff was injured in a 2001 BC Motor Vehicle Accident.  After the accident the Plaintiff started to suffer from collapsing spells.  The Plaintiff’s lawyer retained Dr. Hurwitz who is trained as both a psychiatrist and a neurologist to provide an opinion with respect to the relationship of the collapsing spells to the trauma.  Dr. Hurwitz generated two reports and billed the Plaintiff’s lawyer $69,543 for his services.
The parties to the lawsuit could not agree whether this expense was reasonable and the matter was brought before the BC Supreme Court.  Ultimately Registrar Blok held that the disbursement as presented was not reasonable and considerably reduced the amount recoverable for the disbursement associated with Dr. Hurwitz’s services.  In addressing this disbursement Registrar Blok provided the following useful reasons:

[47] I conclude that the time spent on the summarizing of the collateral medical information was excessive; in fact, vastly excessive, particularly given that a fair amount of the pertinent history seems to have been summarized elsewhere in the reports.  I also agree that, based on Dr. Hurwitz’s own evidence, in the case of the first report there was inefficiency as a result of the lengthy time it took to complete the process.

[48] As Master Joyce made clear in Cloutier v. Wong, and also as stated in Chandi v. Atwell, there is simply no need to prepare meticulous summaries of medical information obtained from other sources.  I accept that there was a need for Dr. Hurwitz to read and fully absorb this other medical information, but there was no need to do it in this expensive and time-consuming way.  If that is the only way Dr. Hurwitz can accomplish this task then that is all very well as between Dr. Hurwitz and counsel who retain him, but for the purposes of costs between party and party it is excessive and that excessive element cannot be passed on to the opposing party.

[49] I turn now to the hourly rate.  This was the subject of much debate, mostly on the significance of the B.C.M.A. fee schedule, which at present has a guideline fee of $356 per hour for “court preparation” and a fee of $1,495 for preparation of a “medico-legal opinion”.  The defendant did not rely on the “medico-legal opinion” guideline fee (and here I note that the defendant’s own experts did not appear to adhere to it) but did rely on the court preparation fee as providing guidance when considering the $500 per hour rate charged by Dr. Hurwitz.  For her part the plaintiff cited Mohr v. Dent (1983), 40 C.P.C. 8 (B.C.S.C.), where the court said that the B.C.M.A. fee schedule was a guide to the medical profession and had “nothing to do with what is a proper fee for an unsuccessful defendant to pay” (at para. 62).

[50] Both submissions are correct, in their way.  The B.C.M.A. fee schedule is not determinative of the proper amount that ought to be allowed as a disbursement but, as was noted in Moore v. Dhillon, [1992] B.C.J. 3055 (S.C.), it is “of some assistance … to know what the medical profession, in this province, views as a fair, and, presumably, competitive rate, for that particular service” (at para. 212).

[51] In my experience the B.C.M.A. fee schedule can be somewhat helpful in more straightforward cases, but as the cases become more complicated and the medical experts more specialized or accomplished its utility is much less.  Of more relevance, in my view, is the $375 hourly rate charged to the defendant by Dr. Davis, a psychiatrist, who although he does not have a dual specialty in psychiatry and neurology like Dr. Hurwitz, does have a postgraduate specialist degree in both disciplines.  I accept that, all other things being equal, Dr. Hurwitz could rightly charge a higher hourly rate than Dr. Davis because of his additional specialty, but the question is whether the plaintiff has met the burden of showing that Dr. Hurwitz’s hourly rate ought to be 33% more than that of Dr. Davis.

[52] I should say, because it was argued, that I did not find any assistance in knowing the hourly rate of the neuropsychologist, Dr. Crockett.  His specialty is really quite different than that of the medically-trained experts.

[53] The plaintiff made much of the unique nature of Dr. Hurwitz’s qualifications, and submitted that since he is the only one around with this dual specialty “he is the market”.  But this is circular reasoning which could be used to justify any rate at all (he charges this rate, he is the market, therefore it is the market rate and it is ipso facto reasonable).  It also ignores the alternative avenue of retaining two experts instead of one very expensive expert.  Counsel for the defendant did not advance this argument, but it seems to me that a good case might have been made that the plaintiff ought to be limited in her costs recovery to the possibly cheaper reasonable alternative of retaining two experts.

[54] Although the plaintiff submitted that Dr. Hurwitz’s dual qualifications avoided the “wasteful” alternative of having to retain specialists in two different fields, that argument falls rather abruptly in light of the evidence of the charges of the other medical experts, neurologists Dr. Cameron ($2,182) and Dr. Robinson ($2,500), and psychiatrists Dr. O’Shaughnessy ($2,600) and Dr. Davis ($3,850 for his first report), compared to the $45,000 (exclusive of GST) charged by Dr. Hurwitz for his first report.

[55] For these reasons I have concluded that the plaintiff has not met the burden of showing that Dr. Hurwitz’s hourly rate is reasonable.  Doing the best I can on the evidence available I am satisfied that an hourly rate of $425 is a reasonable one in all the circumstances.

[56] For the first report I conclude that fees of $18,000 (plus GST) are appropriate.  In general, this reflects my conclusions on the hourly rate, the unproductive and unnecessary clinical records summaries (though accepting and allowing for time that had to be spent reviewing those records) and the element of inefficiency due to the lengthy report-creating process, while accepting the time spent on the examination of the plaintiff and related interviews (that is, all the time spent prior to February 16, 2005) and the time that was shown to have been spent on the actual preparation of the report.

[57] For the second report I would allow fees of $9,800, plus GST, based in general on the elimination of the time spent on the records summaries (while allowing for time to have been spent reviewing those records) and the reduction in the hourly rate.

[58] The trial preparation charges I would allow at $936.25, based solely on the reduction in the hourly rate.  For some reason GST was not included in the subject invoice and therefore GST is not to be added to this disbursement.

[59] I disallow the “administration and processing” charges included in the first two accounts.  While it may be an interesting debate whether these charges should be disallowed because they are part of overhead (as they usually are with lawyers’ bills) or may be charged in addition (which, for reasons unknown, is by case authority allowable for receivers and bankruptcy trustees), I leave the answer to that question for another time because in this case there is no (or at least, insufficient) evidence to show what Dr. Hurwitz’s actual costs were or the relationship between the round-figure charges of $500 and $250 and his actual costs.

BC Injury Claims, Infant Settlements and the Office of the Public Trustee

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


When an infant (in BC every person below the age of 19 is considered legally an ‘infant’) is involved in a BC Injury claim a settlement generally cannot be reached without the approval of the Office of the Public Guardian and Trustee.  This holds true whether the infants claim is prosecuted by a lawyer or not. Since infants cannot enter into legally binding contracts this protection is necessary both to bring certainty to the settlement process and to protect the interests of the child.
As with any bureaucratic organization, however, there are some limits in the discretionary factors the trustee takes into consideration when approving a proposed settlement.   Reasons for judgement were released today demonstrating this.
In today’s case (Lotocky v. Markle) the Plaintiff suffered a brain injury shortly before his birth.  A lawsuit was brought (through his parents who acted as his litigation guardians) alleging medical negligence against nurses, doctors and the hospital where the infant was born.  After a lengthy trial the case was dismissed by Mr. Justice Macaulay with costs being awarded to the Defendant.
In a very real demonstration of the extraordinary costs losing litigants can pay after a lengthy BC Supreme Court Trial the Defendants claimed over $330,000 in costs from the Plaintiff’s parents. The Plaintiff appealed the dismissal.  Before the appeal was heard the Defendants offered to walk away from their claimed costs if the Plaintiff abandoned the appeal.  This offer appealed to the Plaintiff’s parents given the ‘magnitude of the costs‘ and their prohibitive consequences on their financial future.
The Plaintiff’s parents wished to accept the offer and approached the Public Trustee’s office for permission.   The Public Trustee obtained their own legal opinion which concluded that the appeal had “merit“.  As a result the Trustee refused to consent to the infant abandoning the appeal.  In an unusual development the BC Court of Appeal was asked to intervene and approve the settlement.  They indeed did approve the settlement and provided the following useful reasons:

[66]         It is clear that payment of the trial costs would present a significant additional burden for the Lotocky family, and that this would inevitably affect Michael’s home life and future care.

[67]         Turning to the position of the Public Guardian and Trustee on the issue of costs, it takes no issue with the good intentions of the Lotockys, but says that their potential liability for trial costs creates an inevitable conflict of interest between them and Michael. It maintains that their endorsement of the settlement should therefore play no role in this Court’s examination of whether it is in Michael’s best interests to approve the settlement.

[68]         The Public Guardian and Trustee says that it, by contrast, is able to speak to Michael’s interests with the “purity of independence”. In that guise, it argues that the overarching issue must remain the merits of the appeal, and says it is not in Michael’s interests to abandon it. It maintains that it has acknowledged the parents’ burden of costs by offering to act as litigation guardian on the appeal, and carry the responsibility for the appeal costs. It is adamant, however, that it will not assume the parents’ responsibility for the trial costs.

[69]         While I do not doubt that the Public Guardian and Trustee’s position is well-intentioned, it is, with respect, artificial and misguided to judge the merits of the appeal in isolation from the financial ramifications that would arise from an unsuccessful appeal. This became abundantly clear when the Lotockys raised an argument that the offer of the Public Guardian and Trustee to undertake the appeal amounted to a determination under s. 7(3) of the Public Guardian and Trustee Act, R.S.B.C. 1996, c. 383, and that the Court should compel it to undertake the appeal on the same terms as the parents. Section 7(3) reads:

7(3)      If a litigation guardian is required for a young person under the Court Rules Act and is not otherwise provided for by the Infants Act, the Public Guardian and Trustee must act as litigation guardian for the young person if the Public Guardian and Trustee considers it is in the young person’s best interests to do so.

[70]         The Lotockys argued that they were not prepared to act as Michael’s litigation guardian for the appeal due to their financial circumstances. The Public Guardian and Trustee had nevertheless decided it was in Michael’s best interests that the appeal proceed. Thus a new litigation guardian was required, and under s. 7(3) the Public Guardian and Trustee must step into that role. As a trustee charged with acting in the best interests of the young person, it cannot properly use financial considerations as a reason to abandon its statutory role. It must accordingly take on the appeal by stepping into the same shoes as the former litigation guardian, and assuming her outstanding obligation for trial costs.

[71]         This argument was strenuously resisted by the Public Guardian and Trustee, and it ultimately withdrew its offer to undertake the appeal as litigation guardian and pay appeal costs, on the basis that it had not intended the offer to be an ultimate determination under s. 7(3). While its arguments were couched in terms of statutory construction, administrative policy, and budgetary constraints, I cannot resist the inference that its opposition was fuelled as well by the fact that, if the Court accepted the Lotockys’ argument, it faced significantly heightened financial risks in pursuing the appeal.

[72]         Essentially, it became evident that, if placed in the same position as the Lotockys, the Public Guardian and Trustee would decline to act on the appeal due to the financial risks. It was also apparent that if the Lotockys could have pursued Michael’s appeal on the terms proposed by the Public Guardian and Trustee, they would have had no hesitation in doing so.

[73]         In short, the outstanding obligation for Dr. Markle’s trial costs must play a part in deciding whether the settlement is in Michael’s best interests. While I appreciate the conflict of interest that potential liability creates for the litigation guardian, the financial burden and risks it represents cannot be ignored as the Public Guardian and Trustee advocates. His parents’ financial circumstances have significant repercussions for Michael’s well-being both now and in the future.

[74]         The Lotockys face a potential liability for $205,000 if the appeal is unsuccessful. I earlier indicated that I view the merits of the appeal as arguable at best. I am persuaded that those factors, taken together, make it untenable to proceed with the appeal. I am satisfied that it is in Michael’s best interests to approve the proposed settlement.

This post is not intended to be a criticism of the Public Trustee.  To the contrary the Public Trustee’s office has a difficult and sometimes thankless job which involves making critical decisions in the best interests of injured infants in BC.  However, settlement decisions are often made with the real world cost consequences of Supreme Court litigation in mind.  For this reason the BC Court of Appeal’s comments are most welcome in discussing these risks and requiring their consideration in a ‘best interest of the child’ analysis.

More on the Jurisdiction of BC Courts and Out Of Province Car Crash Cases

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Further to my post yesterday discussing this topic another case was released today by the BC Supreme Court discussing the jurisdiction of the British Columbia Courts in relation to out of province motor vehicle collision tort claims.
In today’s case (Sooparayachetty v. Fox) 8 separate plaintiffs were apparently involved in an Alberta motor vehicel accident.  The Defendants were Alberta residents.  Some of the Plaintiffs were BC Residents and others were resident in the UK.  All of the Plaintiff’s brought lawsuits in both Alberta and BC with respect to their injuries.
The Defendant’s brought a motion to dismiss the claim arguing that the BC Court had no jurisdiction to preside over the lawsuit.  Master Scarth, sitting in the Vancouver Registry, agreed with the Defendants and dismissed the BC lawsuits.  In coming to this conclusion the Court reasoned as follows:

[13] The Court of Appeal has recently confirmed that the question of jurisdiction is to be determined exclusively by the substantive rules set out in the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (“CJPTA”):  Stanway v. Wyeth Pharmaceuticals Inc., 2009 BCCA 592, at para. 12.

[14] Section 3 of the CJPTA sets out the circumstances in which a court has territorial jurisdiction as follows:

A court has territorial competence in a proceeding that is brought against a person only if:

(a)        that person is the plaintiff in another proceeding in the court to which the proceeding in question is a counterclaim,

(b)        during the course of the proceeding that person submits to the court’s jurisdiction,

(c)        there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the proceeding,

(d)        that person is ordinarily resident in British Columbia at the time of the commencement of the proceeding, or

(e)        there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.

[15] Section 10 of the CJPTA sets out a list of circumstances that presumptively constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based for the purposes of s. 3(e).  A plaintiff who is unable to bring herself within the statutory presumptions may nevertheless prove other circumstances which constitute a real and substantial connection.

[16] The plaintiffs rely on s. 3(e) of the CJPTA – real and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based.  In this case, the presumptive circumstances in section 10 of the CJPTA do not apply.  It is therefore for the plaintiffs to establish that there is the real and substantial connection necessary to found jurisdiction…

[20] While “real and substantial connection” has not been defined, the cases provide some guidance as to what connections are insufficient to found jurisdiction.

[21] It is clear that the fact that a plaintiff is resident in British Columbia is insufficient:  Roed v. Scheffler et al, 2009 BCSC 731, at para. 35, citing Jordan v. Schatz, 2000 BCCA 409, and Williams v. TST Porter (c.o.b. 6422217 Canada Inc.) 2008 BCSC 1315.

[22] The fact that a plaintiff continues to suffer damages in British Columbia is insufficient to establish a real and substantial connection on its own: Roed, supra, at para. 43…

[26] Since the hearing of this application, our Court of Appeal has rejected the approach set out in Muscutt: see Stanway, supra, paras. 71 to 73.  Smith J.A., writing for the court, held that:

In my view, any reliance on the Muscutt factors as a guide to determining the question of jurisdiction came to an end in British Columbia with the coming into force of the CJPTA.

[27] Accordingly, the test remains real and substantial connection which appears to require a straightforward determination of whether, on the facts, a real and substantial connection has been established.

[28] Applying Roed, the first connection upon which the plaintiff relies to found jurisdiction – damages suffered within British Columbia – is too tenuous.  The question therefore becomes whether the fact that, since the Alberta accident, the plaintiff has been injured in a second accident which occurred in British Columbia can provide the basis for a finding of jurisdiction.  These circumstances were not addressed in Roed.

[29] The parties appear to agree that a global assessment of Ms. Sooparayachetty’s injuries will be required.  I take this to mean that they accept that, in order to assess damages for which the Alberta defendants may be liable, the court will be required to assess “global damages” as of the date of trial in respect of both accidents.  Circumstances relating to the second accident will therefore be considered in the assessment of damages for the first.

[30] Section 3(e) of the CJPTA provides that the court has territorial competence if there is a real and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based.  While facts relating to the second accident may have to be canvassed in order to assess Ms. Sooparyachetty’s damages arising from the first accident, the two claims remain separate.  In my view, the circumstances relating to the second accident are not facts upon which the proceedings against these defendants are based, and therefore cannot provide the real and substantial connection required by s. 3(e).  The need to call evidence relating to the second accident in the trial of the first, while an appropriate consideration on the question of forum conveniens (see, for example, Stewart v. Stewart, [1995] 6 W.W.R. 402; 5 B.C.L.R. (3d) 350 (S.C.)), does not confer jurisdiction on this court in relation to the first accident, and Ms. Sooparaychetty’s action arising from it.

[31] The other plaintiffs did not press their argument in relation to territorial competence over their actions.

[32] I find that, the plaintiffs having failed to establish that there is a real and substantial connection between British Columbia and the facts on which these proceedings are based, the court does not have territorial competence in these proceedings.

[33] Where the court determines that it lacks territorial competence, s. 6 of the CJPTA gives the court a residual discretion to hear the proceeding if it considers that:

(b) the commencement of the proceeding in a court outside British Columbia cannot reasonably be required.

[34] In Lailey et al v. International Student Volunteers, Inc., 2008 BCSC 1344, at para. 47, Grauer J. interpreted s. 6 with reference to the Uniform Law Conference comment on the identical section in the uniform act:

Residual discretion permits the court to act as a “forum of last resort” where there is no other forum in which the Plaintiff could reasonably seek relief.

[35] It is clear that here, as in Lailey, British Columbia does not stand out as a forum of last resort.  There are no limitation concerns as the plaintiffs have commenced actions in Alberta as well.

[36] I do not propose to address the issue of forum conveniens given my finding regarding territorial competence, and the fact that the notice of motion did not seek relief of that nature.

[37] The plaintiffs having failed to plead, or adduce in affidavit form, facts sufficient to establish jurisdiction, the application by the defendants is allowed and the plaintiffs’ actions are stayed pursuant to Rule 14(6).

One of the reasons why Plaintiffs try to bring their lawsuits in BC versus Alberta is the fact that British Columbia has greater rights in place for those injured at the hands of others.  However, cases such as this one demonstrate that it is no easy task to establish jurisdiciton of BC Courts to hear cases inovlving foreign motor vehicle collisions.

Can British Columbia Residents Sue in BC If They Are Injured Out of Province?

Written by admin on . Posted in Civil Procedure, Tort Reform, Uncategorized. 53 Comments on Can British Columbia Residents Sue in BC If They Are Injured Out of Province?


(The decision discussed below was upheld by the BC Court of Appeal in 2011, you can find the BCCA judgement here)
British Columbia remains the least ‘tort-reformed” Province in Canada and as a result we can be proud that in most instances BC offers fair adjudication of claims for those injured at the hands of others.  Many other Canadian jurisdictions offer fewer protections with compensation restrictions such as ‘no-fault‘ laws or ‘soft-tissue injury caps‘ on damages.
If a British Columbia resident is injured in another Province can they sue in BC to be compensated for their injuries?  Reasons for judgement were released today considering this issue.
In today’s case (Dembroski v. Rhainds) the Plaintiff was involved in a car crash in Alberta in 2007.  The Plaintiff was a British Columbia resident and was in Alberta for a short while to do some work as a farrier.    The Plaintiff was injured and unable to perform her work.  She returned to BC shortly after the car crash.  She had the majority of her treatments in BC.
The Plaintiff eventually sued the alleged at fault motorist for compensation in British Columbia.  The Defendant brought a motion to dismiss the claim arguing that BC Courts lack jurisdiction to preside overthis case.
Mr. Justice Truscott agreed with the defendants and dismissed the lawsuit.  In doing so he made the following points regarding BC Courts’ jurisdiction to preside over a lawsuit arising from an out of Province motor vehicle accident:

11] The court’s jurisdiction is governed by the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (CJPTA), which gives the court territorial jurisdiction in particular circumstances.

[12] From the facts here, the only circumstance set out in the legislation that might give the court jurisdiction is the provision in s. 3(e) that “there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.”…

[19] Defence counsel cites a number of court decisions in British Columbia that have denied jurisdiction on what are alleged to be similar circumstances, including: Canadian International Marketing Distributing Ltd. v. Nitsuko Ltd. (1990), 56 B.C.L.R. (2d) 130 (C.A.); Aubichon (Guardian ad litem of) v. Kazakoff, [1998] B.C.J. No. 3058 (S.C.); Jordan v. Schatz, 2000 BCCA 409; Sequin-Chand v. McAllister, [1992] B.C.J. No. 237 (S.C.); Williams v. TST Porter (c.o.b. 6422217 Canada Inc.), 2008 BCSC 1315; and Roed v. Scheffler, 2009 BCSC 731.

[20] All of these cases concluded that where a British Columbia resident plaintiff is injured in a foreign jurisdiction and then returns to British Columbia for treatment of injuries, there exists no real and substantial connection with British Columbia to give the courts of British Columbia jurisdiction because the only connection to this province is the fact that the plaintiff is a resident here at the time of the claim.

[21] In Jordan v. Schatz, Mr. Justice Cumming, writing the decision for the Court, said at para. 23:

What constitutes a “real and substantial connection” has not been fully defined. However, it has been well established by this Court in Nitsuko, supra, and in Ell, supra, that there is no real and substantial connection to British Columbia based on the bare residency of the Plaintiff in the jurisdiction. There must be some other or further sufficient connecting factor or “contacts” to this province. Clear examples of connecting factors include the residency of the defendant in the jurisdiction or the fact that the tortious act was committed or damages suffered here.

…

36] I can see no exception that would be applicable in this case to allow me to depart from the decisions in those cases that have denied jurisdiction to the court when the plaintiff’s only connection to the jurisdiction is the fact she continues to suffer from her injuries while she resides here. To accept jurisdiction here would be to accept jurisdiction for a plaintiff who moves to the jurisdiction after an accident in another province and continues to suffer from injuries here. That cannot be.

[37] There is no real and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based. There may be a real and substantial connection between British Columbia and the plaintiff, but that does not satisfy the words of s. 3.

[38] The action is dismissed for want of jurisdiction. The defendants will have their costs.

Reduction of Damages for Contributing Effects of Pre-Existing Conditions in BC Injury Claims

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


In BC Injury Claims (tort claims) a damage award can be reduced to account for the extent that a pre-existing condition contributes to a subsequent impairment.  Reasons for judgement were released today by the BC Court of Appeal discussing this area of law in the context of a jury trial.
In today’s case (Laidlaw v. Couturier) the Plaintiff was involved in a 2004 motor vehicle accident.  The Plaintiff suffered from various pre-existing difficulties including depression.  He was injured in the car accident and following a Jury Trial his damages were assessed at $128,717.  The Jury went on to reduce this award by 85% to take into account the “measurable risk that the plaintiff would have suffered from the (post accident) physical and psychological complaints even if the (car accident) had not happened“.
The Plaintiff appealed this jury award arguing that the trial judge made a mistake in having the Jury give a general ‘across the board’ reduction of damages for the risk of difficulties the pre-existing conditions may have posed.  The BC Court of Appeal agreed that the trial judge did indeed err in instructing the Jury and ordered a new trial.  In coming to this conclusion the BC high court extensively discussed the law of reduction of damages to account for risks of pre-existing conditions.  The highlights of this discussion were as follows:

[42] Ultimately, this appeal turns on a significant error exposed in the jury charge, in the third jury question, and the ultimate verdict.

[43] As can be seen from the emphasized portion of the jury charge recited in paragraph 26 of these reasons, the trial judge instructed the jury that if they found that “if the May 2004 accident had not happened there was a material risk that Mr. Laidlaw would nevertheless have suffered from general anxiety or depression or back problems, then you should reduce Mr. Couturier’s liability by the amount of that material risk, whatever you find it to be.”…

[47] The wording of question 3, together with the judge’s charge on causation was overly simplistic.  The various conditions from which the plaintiff had suffered previously, and the symptoms to which they gave rise, were not capable of reduction to a single “measurable risk”.

[48] One, some or none of those previous conditions might have “detrimentally affected the plaintiff in the future”.  One or more of those conditions might have affected him at different points in time.  The degree to which each such condition might have affected him need not have been identical.

[49] To lump these variables together into one question and to invite a single mathematical adjustment was unfair and inappropriate.

[50] Athey was a case with a single identifiable injury, a disc herniation, occurring some months after the accidents giving rise to the plaintiff’s claim.  There was a single pre-existing condition, “a history of minor back problems”, which was alleged to have contributed to his injury.  I do not read the language in Athey, while appropriate to the kind of case with a single measurable risk, to be transferable to the facts of a more complex case such as this one, which involves the assessment of multiple and distinct measurable risks.

[51] The contributing effects of a pre-existing condition to a subsequent injury can be taken into account if the trier of fact considers that to be appropriate.  In many cases, it may well be a relevant factor for the jury to consider.  However, the jury should be told that the effect to be given to such a “measurable risk” should be carefully related to the specific facts of the case.  In a case such as this, where there were various pre-existing conditions, and where it was uncertain if, when, or to what degree those conditions might adversely affect the plaintiff in future, it was an error to invite a general reduction across the board, as is required by question 3.

[52] In my opinion, the first portion of the charge on causation and in question 3 directed the jury to undertake a formulaic approach to the assessment of damages attributable to the defendant rather than directing them to consider, in a nuanced fashion, all of the contingencies and risks inherent in Mr. Laidlaw’s individual circumstances and to arrive at a global assessment of damages.  Question sheets such as this one that ask the jury to answer questions that tend to reveal their deliberations are not helpful, invite appeals, and are to be avoided.

[53] It must be said that the second portion of the trial judge’s written instructions did not mirror the wording in question 3.  However, it stands to reason that by the time the jury was completing its deliberations, their focus must have been on the question sheet.  Question 3 is clear in its terms but, unfortunately, incorrect in its legal effect.  In my view, it amounts to misdirection…

[58] In the end, it is impossible to say with confidence that the jury properly understood its task in assessing the damages due to Mr. Laidlaw.  In my view, the only recourse available is to order a new trial.

Removing a Claim from Rule 68 – Criteria To Be Considered

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As readers of this blog know Rule 68 is a ‘proportionality‘ based rule which was brought in a few years ago and was intended to be mandatory to certain claims worth $100,000 or less in the BC Supreme Court.
Rule 68 has not been particularly successful and many injury lawyers have avoided this rule whenever possible due to its perceived shortcomings.  This rule is going to be wiped from the books when the New BC Supreme Court Civil Rules take effect on July 1, 2010.  Rule 68 will be blended with the New Rule 15 which really combines the best of our current alternative litigation rules.
Despite Rule 68’s mandatory nature, Rule 68(7) permits parties to get out of Rule 68 if a Court “so orders“.
So what factors will a court considering in removing a case from the rule?  Reasons for judgement were published today on the BC Supreme Court website dealing with this issue for what I believe is the first time.
In today’s case (The Board of Trustees of School District No. 41 v. Crane Canada Co.) the Plaintiff sued for damages as a result of allegedly faulty bathroom fixtures.  The case was worth less than $100,000 but the Defendant’s wanted it removed from Rule 68.  They applied for an order under Rule 68(7) and were successful.  In removing the case from Rule 68 Mr. Justice Groves provided a list of non-exhaustive factors that could be considered on such applications, specifically the Court held as follows:

14] Unfortunately, the criteria to apply to an application to remove a case from Rule 68 has not been effectively resolved by the case law as of yet.

[15] On these facts, a number of considerations are appropriately applied to the consideration of whether or not a case should be removed from Rule 68.

[16] The following discussion is not meant to be exclusive.  It is somewhat factual driven, as must all the cases be.  It is not the final word on or is it intended to be a definitive word on when Rule 68 is not appropriate to litigation.

[17] Of note first is that Rule 68 has the $100,000 cap.  That does not mean all case under $100,000 are appropriately litigated under Rule 68.  There are many types of cases which fall within the $100,000 cap and based on a simple analysis of complexity it may be inappropriate to allow a case to continue under Rule 68.

[18] Here is an example.  A motor vehicle case which is under $100,000 which involves only an assessment of non-pecuniary damages is clearly a case in which Rule 68 should apply.  That, I am probably going out on a limb here to say, is the type of case that Rule 68 was clearly designed to manage.  A straightforward piece of litigation.

[19] However, sticking within the $100,000 criteria and the motor vehicle scenario, there are cases in which a claim for damages from a motor vehicle accident might be under $100,000 but it would not be appropriate for them to continue under Rule 68.  That would be a case perhaps where both liability and damages are in dispute and expert evidence is required on both those issues.  Additionally, the damages may be under $100,000 but may involve non-pecuniary damages, past wage loss, cost of future care and future lost opportunity.  Though all those heads of damages may still work out to a grand total of damages of less than $100,000, that type of case with a liability and damage component is clearly one which is in my view too complex and requiring too many potential streams of evidence and expert evidence for it to logically continue under a Rule 68 model.

[20] A second consideration that the courts should take in determining whether or not Rule 68 still should apply is whether or not the issues between the parties are of interest only to them or whether or not there is some legal or juristic significance to the litigation.  Clearly a dispute between two people about a contract, a property dispute between two neighbours, a simple motor vehicle case, are cases in which the issues between the parties are of interest only to those parties and likely do not have any long-term legal or juristic significance.  Case which have long term consequences to litigants or far reaching juristic significance may not.

[21] Thirdly, a consideration about removal should be whether or not moving the case to the regular stream would have the effect of putting an end to the litigation because of cost and not allowing the parties to actually pursue their litigation because Rule 68 is not open to them.

[22] With those non-exclusive approach, I now turn to an analysis of this case…

While Rule 68 is being abolished soon this case may still retain some value as a precedent under the New BC Supreme Court Civil Rules as Rule 15-1(6) the ‘fast track’ rule contains a similar subrule about removing a case from fast track litigation if a Court ‘so orders‘