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Disclosure of Medical Records and Privacy Concerns in ICBC Injury Claims

Written by admin on . Posted in Civil Procedure, Uncategorized. 42 Comments on Disclosure of Medical Records and Privacy Concerns in ICBC Injury Claims


Reasons for judgement were published this week on the BC Supreme Court Website dealing with disclosure of past medical records in the context of an ICBC Injury Claim.
In this week’s case (Sidhu v. Dhani) the Plaintiff was involved in a 2006 BC Car Crash and sued for damages.  In the course of the lawsuit ICBC asked that the Plaintiff provide all her medical records for 4 years before the car crash.  There was evidence that the Plaintiff attended one specific GP 236 times in the years before the collision.  The Plaintiff refused to produce these records and ICBC applied to court.  At the hearing the Master largely agreed with ICBC and ordered that the medical practitioners who treated the Plaintiff produce all of their records for the 3 years before the car crash directly to ICBC’s lawyer.
The Plaintiff appealed arguing that the disclosure should not have been ordered or, in the alternative, that the records should go to the Plaintiff’s lawyer first so that clearly irrelevant records could be redacted before sharing the records with ICBC.
On Appeal Mr. Justice Schultes agreed that the the records should be produced but ordered that they be produced with the safeguards the Plaintiff wished.
In coming to this decision Mr. Justice Schultes reasoned as follows:
[8] The learned master ordered the production of the records in what has become known as Jones form, that is, directly to counsel for the third party rather than in so-called Halliday form, in which the plaintiff’s counsel would first have the opportunity to review the records and seek to vet out any matters said to be irrelevant or subject to a privilege.  The learned master did not provide the reasoning underlying this aspect of his decision…

the master drew the inference that the sheer number of medical visits, including the remarkable number to one doctor, made it likely that the clinical records contained information that would be relevant to the plaintiff’s claims.  The learned master’s reasons, though brief, clearly demonstrate that process of analysis.  In particular, the large number of medical visits would be relevant to the plaintiff’s claim that the accident had diminished his employment prospects and ability to earn future income by suggesting some other chronic or ongoing difficulties potentially unrelated to the accident.

[13] To make this distinction clear, it appears to me that speculation and so-called fishing expeditions refer to a situation in which the material in support of an application does not give rise to a reasonable inference that material relating to the matter is likely in the hands of the third party.  Material relating to the matter is, of course, that which directly or indirectly allows a party to advance his own case or damage that of his adversary’s: Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 (C.A.) which is the standard reference on this point.

[14] It follows that I find that the learned master was not clearly wrong in his decision on this aspect of the case and I would therefore dismiss the first part of the appeal…

[15] The plaintiff further argues that even if the learned master was not clearly wrong in ordering disclosure of these records, he erred to that standard in failing to order their disclosure on the so-called Halliday basis, that is, released first to him so that issues of relevancy and privilege could be considered.  The source of this basis is the decision ofHalliday v. McCulloch (1986), 1 B.C.L.R. (2d) 194 (C.A.).

[16] The value of the Halliday process is to allow potentially privileged material to be preserved until a proper determination of its status has been made and to allow the plaintiff to delete irrelevant or embarrassing or confidential material, or to make it irrelevant by amending his pleadings before discovery: see Halliday, at pages 199 and 200.  The effectiveness of this process, of course, depends on counsel carrying out their duty to disclose relevant material: see Boxer v. Reesor (1983), 43 B.C.L.R. 352 (S.C.).  However, as Lambert J.A. pointed out in Halliday any abuse of this method of disputing relevance can be subsequently punished by an order of costs.

[17] On this issue, the plaintiff relies on Grewal v. Hospedales, (2004), 33 B.C.L.R. (4th) 294 (C.A.), and Gibson v. Mian, 2002 BCSC 1836.

[18] In Grewal, the master was found to have erred in failing to consider in a personal injury accident the relevance of the plaintiff’s medical records from specialist whose areas of specialty appeared to bear no relationship to the types of claims that the plaintiff was advancing.

[19] In Gibson, the master ordered medical records of the plaintiff’s family doctor in Halliday form based on the reasoning that such a doctor is likely to deal with irrelevant issues that could embarrass the plaintiff.  This analysis was as applicable, in the master’s view, to male plaintiffs as to female plaintiffs.  As the master observed:

… in the case of general practitioners, other things being equal, I think that … describing them as the general practitioner with a history of consultations for matters other than the injuries sustained in the accident is enough to meet the necessary standard of lack of relevance and embarrassment.

[20] The Gibson decision, being a decision of a master, is not, strictly speaking, binding on me, but I do find its analysis helpful.  While I would not go so far as to say that in all cases the bare assertion that a doctor is a general practitioner who did not treat the injuries complained of as part of the action will justify disclosure on a Halliday format, I do think that it would raise concerns that a court must at least consider and address.  In this regard, I disagree with the third party’s submission that the Halliday procedure is restricted to circumstances, like those in Grewal, in which the nature of the practitioner’s speciality is on its face irrelevant to the issues in the litigation.

[21] Here, the learned master did not provide any analysis explaining his decision to order disclosure in Jones format.  While he is deemed to know the law and to have applied it correctly in the absence of some contrary indication, I think it was a clear error for him not to have identified that the same large number of medical visits which had made it likely that these records contained relevant evidence also sharply increased the risk of capturing irrelevant and embarrassing information during the process.  This seems to me to be the obvious corollary of his disclosure decision and I cannot infer that he addressed it and resolved it in a manner that justified Jones disclosure in the absence of any indication to that effect.

[22] Accordingly, I will allow the appeal to the extent of ordering that records of the doctors whom the plaintiff asserted did not treat him for any matters related to the accident that is the subject matter of this litigation will be disclosed in accordance with the procedure in Halliday.

I should point out that as of July, 2010 the new BC Supreme Court Civil Rules come into force and the tests for what types of documents need to be exchanged will be narrower so it will be interesting to see how this area of law changes under the soon to be in place new system.

New Cell Phone Driving Restrictions Now In Force In BC

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases. 87 Comments on New Cell Phone Driving Restrictions Now In Force In BC


A quick reminder to all my readers that with the new year comes a new law with respect to cell phone use while driving.
As I previously posted, effective January 1, 2010 section 214 of the BC Motor Vehicle Act was amended adding section 214.1 – 214.6 which prohibit drivers from using a handheld cell phone or other handheld electronic devices while driving.
Hands free devices are subject to an exemption under the new law.  It is worth noting, however, that there are numerous studies which find that driving while on a cell phone, even a hands free device, can cause driver distraction which can lead to significantly increased risk of collision.  From an Injury Claims perspective it can certainly be negligent to drive while speaking with a hands free device so motorists ought to only do so with caution.
The Full Text of the New Law is as follows:

Part 3.1 — Use of Electronic Devices while Driving

Definitions

214.1 In this Part:

“electronic device” means

(a) a hand-held cellular telephone or another hand-held electronic device that includes a telephone function,

(b) a hand-held electronic device that is capable of transmitting or receiving electronic mail or other text-based messages, or

(c) a prescribed class or type of electronic device;

“use”, in relation to an electronic device, means one or more of the following actions:

(a) holding the device in a position in which it may be used;

(b) operating one or more of the device’s functions;

(c) communicating orally by means of the device with another person or another device;

(d) taking another action that is set out in the regulations by means of, with or in relation to an electronic device.

Prohibition against use of electronic device while driving

214.2 (1) A person must not use an electronic device while driving or operating a motor vehicle on a highway.

(2) Without limiting subsection (1), a person must not communicate by means of an electronic device with another person or another device by electronic mail or other text-based message.

Exceptions to prohibition — emergency personnel

214.3 Section 214.2 does not apply to the following persons who use an electronic device while carrying out their powers, duties or functions:

(a) a peace officer;

(b) a person driving or operating an ambulance as defined in the Emergency and Health Services Act;

(c) fire services personnel as defined in the Fire Services Act.

Exceptions to prohibition — certain permitted activities

214.4 Section 214.2 does not apply to a person who uses an electronic device

(a) while operating a motor vehicle that is safely parked off the roadway or lawfully parked on the roadway and is not impeding traffic,

(b) to call or send a message to a police force, fire department or ambulance service about an emergency, or

(c) that is configured and equipped to allow hands-free use in a telephone function, is used in a hands-free manner and is used in accordance with the regulations, if any.

Exceptions to prohibition — by regulation

214.5 Section 214.2 does not apply to

(a) a prescribed class of persons who, while carrying out their powers, duties or functions and driving or operating a motor vehicle or a prescribed class of motor vehicle, use an electronic device or a prescribed class or type of electronic device,

(b) a person who uses an electronic device while engaged in a prescribed activity or in circumstances or under conditions set out in the regulations, or

(c) a person who uses a prescribed class or type of electronic device.

Power to make regulations

214.6 The Lieutenant Governor in Council may make regulations as follows:

(a) prescribing classes or types of electronic devices for the purposes of paragraph (c) of the definition of “electronic device” in section 214.1;

(b) setting out actions for the purposes of paragraph (d) of the definition of “use” in section 214.1;

(c) for the purposes of section 214.4 (c), setting out the manner in which, or the extent to which, a hands-free electronic device may be used in a telephone function;

(d) for the purposes of section 214.5;

(e) regulating the installation or mounting of classes or types of electronic devices in motor vehicles;

(f) exempting or excluding, with or without conditions, classes or types of electronic devices, classes of persons or classes of vehicles or classes of persons while driving or operating a motor vehicle or class of motor vehicle from the operation of a provision of this Part.

You can click here to read a copy of the regulations that have been passed further to this amendment.

ICBC Injury Claims, Disclosure Requirements and Credibility

Written by admin on . Posted in Civil Procedure, Uncategorized. 48 Comments on ICBC Injury Claims, Disclosure Requirements and Credibility


Litigants in the BC Supreme Court have to make pre-trial disclosure in a variety of ways.  Some of this compelled disclosure may reflect poorly on a party’s credibility but if the documents or evidence is otherwise producible it must be disclosed to the other side despite the potentially harmful effects on your case.  What about documents or facts that don’t relate to the lawsuit directly but do address a parties credibility?  Can these documents be forced to be disclosed?
The answer is usually no.  Credibility, as important as it is, is considered a ‘collateral issue‘ in litigation and matters relating solely to credibility are deemed irrelevant in terms of pre-trial disclosure.  Reasons for judgement were released today by the BC Supreme Court discussing this.
In today’s case (Bay v. Pasieka) the Plaintiff was involved in a 2005 intersection car crash in Kelowna, BC.  The Plaintiff sued the alleged at fault motorist.   In the pre-trial discovery process the Defendant stated he had no recollection of the accident.  In exploring why the Defendant had no recollection the Plaintiff’s lawyer asked him whether he might have been taking any medication at the time of the crash which may have affected his memory to which he replied “I don’t know if I took medication that would affect my memory“.
The Plaintiff’s lawyer brought a motion for the production of the Defendant’s MSP history along with clinical records of treating physicians who cared for the Defendant in the relevant time frame to test “the creditility of the defendant” and to provide “some explanation for why he has no recollection of the accident“.
Master Young ultimately dismissed the motion holding that the evidence on the application was not sufficient for production of the sought records.  Before reaching this conclusion Master Young made some useful comments with respect to sought disclosure in ICBC Injury Claims relating solely to issues of credibility.  Specifically she held as follows:
Credibility is a collateral issue, as stated in the decision of Sandhu (Guardian ad litem of) v. Philipow (1996), 24 B.C.L.R. (3d) 78 (S.C.), and that decision says that it is not a matter which can be examinable in discovery. The defendant quotes from the decision in Roberts v. Singh, 2006 BCSC 906, which confirms that principle and quotes several other decisions which I have reviewed..These records are only being demanded to challenge his credibility, which is not a relevant issue.
There is caselaw that suggests that matters relating solely to credibility may be produced when punitive damages are being claimed (see for example Rioux v. Smith; 1983, 43 BCLR 392) but otherwise it is important to note that credibility is a ‘collateral issue‘ and not relevant for the purposes of pre-trial disclosure.

More on ICBC Injury Claims and the "Worker v. Worker" Defence

Written by admin on . Posted in Civil Procedure, Uncategorized. 61 Comments on More on ICBC Injury Claims and the "Worker v. Worker" Defence


When a person is injured through the fault of another in British Columbia the injured party generally has the right to make a claim for compensation against the at fault party through our Civil Litigation system (ie. a tort claim through the Courts).
There are some exceptions to this and one such exception is found in section 10 of the Workers Compensation Act.   Generally speaking, Section 10 prohibits a worker who is injured in the course of employment from suing a responsible party who was also in the course of employment at the time of the injury.  (I should point out that there are some exceptions to this general rule).  This statutory bar can be a complete defence to a tort claim arising from a motor vehicle accident and reasons for judgement were released today by the BC Supreme Court demonstrating this.
In today’s case (Dhanoa v. Trenholme) the Plaintiff was injured in a 2006 BC Car Crash.    She was “walking through a parking lot owned by her employer when she was struck by the Defendant who was driving a motor vehicle at that time and who also works for the same employer“.
The Plaintiff sued the Defendant for her injuries and damages.  The Defence lawyer, in responding to the claim, raised s. 10 of the Workers Compensation Act.  When this defence is raised in a BC Lawsuit the issue of whether both parties were workers must be decided by the Workers Compensaiton Appeal Tribunal (WCAT).  WCAT decided that both Plaintiff and Defendant were in the course of their employment when the crash happened.  With this decision in hand the Defendant’s lawyer applied to dismiss the lawsuit and succeeded.  In dismissing the claim Mr. Justice Cole awarded the Defendant full costs of defending the lawsuit.
In doing so Mr. Justice Cole made the following useful points with respect to the practical procedural consequences that are created when a s. 10 defence is raised in an ICBC Injury Claim”
[11] The case law is clear that merely pleading a s. 10 defence does not itself bar the litigation. The WCAT has the exclusive jurisdiction to determine the “worker vs. worker” issue and the action remains ongoing unless and until the WCAT renders a decision that would bar the action. I am of the view that if the plaintiff does not want the defendant to run up costs in the meantime, the plaintiff is at liberty to make an application for a stay of the proceedings until the Workers’ Compensation Board issue is decided…

[18] Based on the foregoing review of the relevant authorities, it is clear that the WCAT proceeding is a step within the action which is mandated by legislation. A stay of proceedings pending this step, however, is not automatic when the s. 10 defence is pled: Hommel, at paras. 38 and 46. Therefore, to presume there is a stay and say counsel should not be taking steps for the upcoming action is wrong in law. Unfortunately, the decision in Khare does not appear to consider the authorities that were provided to the Master in the present case and because the decision in Khare was delivered orally without the opportunity to fully consult authority, I am not bound by it: Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, 13 W.W.R. (N.S.) 285 (B.C.S.C.).

[19] I am of the view that because each case is unique, it would be wrong to set a blanket rule that a party claiming costs cannot recover on any proceedings initiated by them after a s. 10 Workers’ Compensation Board defence is raised, as it would be too draconian. There may be legitimate reasons to take steps in a proceeding and if those steps are unfair, either party can apply for a stay.

This case goes to show that, where the s. 10 WCB defence is raised in an ICBC Injury Claim it may be in the parties best interests to have the issue resolved early in the process to minimize costs consequences for unsuccessful party.

Navigating the Minefield – BCCA on Improper Opening and Closing Statements in Jury Trials

Written by admin on . Posted in Civil Procedure, Jury Trials, Uncategorized. 36 Comments on Navigating the Minefield – BCCA on Improper Opening and Closing Statements in Jury Trials


One role lawyers have in Injury Litigation is to persuasively advance their clients case and this extends to opening statements and closing arguments at trial.  Sometimes, however, lawyers become caught up in the moment and cross the line in their remarks to a jury and this can lead to a mistrial.  Reasons for judgement were released today by the BC Court of Appeal reviewing this area of the law.
In today’s case (Knauf v. Chao) the Plaintiff was involved in two Motor Vehicle Collisions in 2002.  The Plaintiff was injured in both crashes.  The Plaintiff’s claim proceeded to trial and the Jury awarded just over $500,000 in total compensation for her injuries including an award of $235,000 for non-pecuniary damages.
The Defendants appealed the judgement arguing in part that the trial was unfair because the Plaintiff’s lawyer made improper statements in his opening and closing submissions to the Jury.  The BC Court of Appeal agreed with this submission and found that the Jury’s award for non-pecuniary damages was excessive.  The Court reduced the jury’s award by $100,000.  In doing so the court made some useful comments with respect to the Plaintiff’s lawyers submissions which are worth reviewing.
During the trial the Plaintiff called an expert witness who conducted a functional capacity assessment of the Plaintiff’s abilities.  In doing so the expert used some validity tests which are used to measure the consistency of effort applied by the Plaintiff.  When the expert gave evidence the results of the validity testing was discussed.  In short the validity testing showed consistent effort throughout the assessment.  In closing arguments, the Plaintiff’s lawyer commented on this evidence and stated as follows ” She was consistent throughout.  What she said and what the test result showed were the same.  She wasn’t exaggerating; she wasn’t saying she was in pain when the test results showed differently.  She was consistent. And that’s what those tests were designed to do to show if what she told Mr. Pakulak, if what she told her doctor, what she told you was real and legitimate.”
The Court of Appeal took no issue with the validity testing but held that the Lawyers comments were improper.  Mr. Justice Tysoe held as follows: “In my opinion, there is nothing objectionable about validity testing per se.  It goes to the reliability of the opinion expressed by the expert and the weight to be given to it by the trier of fact.  That is a proper purpose…However, the remark made by the plaintiff’s counsel in his closing address to the jury was clearly improper (this was conceded on appeal by counsel for the plaintiff, who was not counsel at trial).  The plaintiff’s counsel effectively told the jury that they could use Mr. Pakulak’s evidence for the improper purpose of oath-helping.  This was not corrected by an instruction in the charge to the jury.”
The Court then went on to highlight some further statements made by the Plaintiff’s lawyer and reproduced the following exerpts at paragraphs 39-40:

[39] The opening statement made by the plaintiff’s counsel to the jury included the following (with the comments the defendants say are objectionable emphasized by me):

The statements of defence that were filed on behalf of the defendants say they are not responsible, and this confused and upset Ms. Knauf. … Responsibility was still denied, that is until last Friday, six years after these accidents, when the defendants’ lawyer told us that they now admit responsibility; …

Ms. Knauf comes to court to ask you to fix the harm that was done to her on those two days in 2002.

Ms. Knauf lost her ability to make good money as a waitress and save to buy a home back when prices were still reasonable.  These accidents were six years ago and Ms. Knauf had already saved — and by coincidence the figure is $6,000.  She’d already saved that from the time a year before the accident when she started working as a waitress….

Ms. Knauf has not collected any disability benefits or sick benefits or social assistance because of her injuries.  She’s a worker. She’s struggling in an expensive city and wants to work not less but more.

[40] His closing address included the following (with the similar added emphasis):

It took six years for the defendants to acknowledge their responsibility for these accidents. We are now here, not for sympathy, but to collect the debt that is owed to Ms. Knauf and the rules require that that debt be paid.

Ms. Knauf does not stay at home and whine.  She has not collected disability benefits; she has not collected welfare; she’s not collected employment insurance or any benefits because of her injuries.

Now, Ms. Knauf has had to deal with other problems, big, difficult problems:  the death of her mother; an unrelated knee problem; her marriage. Don’t be sidetracked by those issues.

I said that we’re here to collect a debt, a debt that is owed to Ms. Knauf by the defendants.  That debt is compensation for the harm and the losses that they caused her. …You’re not to consider any outside reasons.  The rules don’t allow that.  You’re only to consider the losses and the harms that were suffered by Ms. Knauf, nothing else. If any of you consider any outside reasons, you’re breaking the rules and everyone here has to follow the rules.

You’re going to be asked about special damages.  That’s the money that Ms. Knauf spent on treatment.  That’s Exhibit 1.  It’s just under $6,000 and those amounts were not challenged.  And it’s a coincidence, perhaps a sad coincidence, that the money Ms. Knauf has spent on her own treatment these last six years is about equal to what she had saved up hoping to buy her own home at the time of these accidents.

The Court of Appeal concluded that these comments were improper and provided the following guiding comments:

Some of the comments made by the plaintiff’s counsel were irrelevant and appeared to be designed to arouse hostility against the defendants.  Others appeared to be designed to appeal to the emotions of the jury or otherwise engender sympathy for the plaintiff.  Counsel improperly stated that his client was owed a debt by the defendants.  He improperly suggested to the jury members that they would be “sidetracked” or “breaking the rules” if they considered the death of the plaintiff’s mother, the injury of her knee or her unsuccessful marriage, all of which were relevant to the state of her health or enjoyment of amenities.

[43] The plaintiff concedes that some of the comments made by her counsel at trial were unfortunate or improper, but says there were no exceptional circumstances warranting interference by this Court in view of the lack of objection by the defendants’ counsel.  I do not agree.  The effect of the improper comments is manifested in the jury’s award for non-pecuniary damages, which, as I will discuss under the next heading, was wholly disproportionate and constitutes a substantial wrong.

The Court went on to reduce the Jury’s award of non-pecuniary damages by $100,000 but pointed out that if the Defence lawyers objected during trial a mistrial may have been an appropriate remedy.

As trial lawyers know it is a fine line distinguishing between what comments are persuasive and which cross the line to improper.  Cases such as this will continue to add clarity and help trial lawyers navigate the minefield of Jury Trials.

More on Rule 37B and the Timing of Formal Settlement Offers, "All Inclusive" Offers Discussed

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Uncategorized. 80 Comments on More on Rule 37B and the Timing of Formal Settlement Offers, "All Inclusive" Offers Discussed


One pattern that is becoming well developed under Rule 37B (the Rule dealing with Formal Settlement Offers in BC Supreme Court Lawsuits) is that of timing.  Caselaw seems to require that formal offers need to be available for acceptance for a reasonable period of time before triggering cost consequences under Rule 37B.  Reasons for judgement were released this week demonstrating this.
In this week’s case (Dodge v. Shaw Cablesystems [SBC) Ltd.) the Plaintiff sued for damages as a result of a slip and fall.  As a result of the fall the Plaintiff injured her knee.  Before trial the Defendant made a formal offer for $50,000 on an “all-in” basis (meaning inclusive of all damages, costs and disbursements).  This offer was made two working days before the start of trial.
After trial, the Jury decided that the Plaintiff and the Defendant were equally at fault for the fall an awarded a net sum of $20,000 for her injuries.  The Defendant then brought a motion for costs under Rule 37B.  Mr. Justice Masuhara refused to award the Defendant any costs because the offer was not left open for consideration for a reasonable period of time.  In coming to this conclusion Mr. Justice Masuhara stated as follows with respect to timing of formal offers under Rule 37B:

I conclude that the defendant’s offer was in effect from Wednesday, January 7, 2009 to Friday, January 9, 2009.

[14] A party requires a reasonable time within which to consider an offer and decide in the circumstances existing at the time of the offer whether it should be accepted or rejected:Coquitlam (City) v. Crawford, 2008 BCSC 1507. There is case law on Rule 37B that suggests that a reasonable amount of time to consider an offer is seven days. In Arnold, Butler J. cited Bailey when he stated at para. 22 that “[a] reasonable period of time to consider an offer to settle is seven days”. In Towson v. Bergman, 2009 BCSC 978 at para. 70, Gray J. stated that the seven day period “has been applied in the case law.” I do not, however, read these cases as laying down a rule of general application. In Wright v. Hohenacker, 2009 BCSC 996, for example, Fisher J. did not consider a “seven day rule” when determining whether an offer should have been reasonably accepted, stating that, in the circumstances of that case, the fact that the offer was made only four days before trial was not particularly significant. Suffice it to say that every case must be judged on its own facts. Imposition of an inflexible rule as to what is considered a reasonable amount of time risks returning to the rigid consequences of the old Rule 37 and fettering the wide discretion intended under Rule 37B.

[15] In this case, the plaintiff was only given two days to consider accepting the offer before it expired. Apart from pointing out that the offer was made after mediation and after delivery of the defendant’s expert reports, neither party has led any evidence surrounding the circumstances at the time the offer was made. It is known, however, that the plaintiff was a resident of Ontario at the time, whereas her counsel was resident in Abbotsford. While this alone is not determinative (the plaintiff has not led any evidence of her whereabouts at the time of the offer), when an offer to settle is received, counsel and client are required to make a careful appraisal of the merits, taking into account complex and subjective factors in appraising the eventual outcome of a trial, in this case, a jury trial. Complexity is increased where the plaintiff is asked to evaluate an “all-in” offer where, by the very nature of the offer, the actual amount offered in discharge of the action is not immediately apparent.

[16] Taking into account that analysing the “all-in offer” would have required breaking out the appropriate cost consequences, and that plaintiff and counsel undoubtedly had many other things that required their attention, two days was an unreasonable amount of time in which to properly analyze the offer. Even if the offer did beat the result, counsel for the plaintiff did not have enough time to reach this conclusion within the deadline set by the defendant…

[18] Since I have decided that it was unreasonable for the defendant to expect that the plaintiff would accept the offer within two days, the policy underlying Rule 37B, which is to encourage the settlement of disputes by rewarding the party who makes a reasonable offer and penalizing the party who declines to accept such an offer, is not engaged. Accordingly, as permitted by Rule 37B(4), I decline to consider the defendant’s offer to settle in exercising my discretion relating to costs.

Another interesting point in this decision was the Court’s discussion of “all-inclusive” offers under Rule 37B.  Under the now repealed Rule 37 such offers were not allowed and could not trigger costs consequences.  Mr. Justice Masuhara ruled that such a strict prohibition is not warranted under Rule 37B but parties should make such “all-in” offers at their own peril, Specifically the Court stated as follows:

24] Since the introduction of Rule 37B, there is no longer a complete code to dictate the cost consequences of an offer to settle. Rule 37B contemplates a summary procedure to determine costs. It offers broad discretion to the trial judge to determine cost consequences of a failure to settle. While the defendant is no longer automatically entitled to costs from the date of the offer if the offer is more favourable than the judgment, Rule 37B(5)(d) still states that the court may in such a case “award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.” While I accept that the consequences of an uncertainty in the calculation of costs up to the date of the offer to settle are no longer as stringent, as under the old Rules, the court is still faced with difficulty in summarily determining the relationship between the offer and the costs in an “all-in” offer. Consequently, the potential for injustice still exists. Thus, under Rule 37B, it does not appear to me that the rationale for the rule in Helm is no longer of assistance. In my view the language of Rule 37B is broad and assumes that the trial judge in every case is in the best position to determine whether an “all-in” offer can be considered. Provided that the proper form of an offer to settle is adhered to, the court has under Rule 37B the discretion to take into account that offer to settle. Nonetheless, defendants who make an “all-in” offer do so at their own peril.

In my continued efforts to get prepared for the New BC Supreme Court Civil Rules I am cross referencing Civil Procedure cases that I discuss on this blog with the New Rules.  To this end  it is worth pointing out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

BC Court of Appeal On The Deductibility of Part 7 Benefits in Tort Actions

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Further to my post yesterday on the Deductibility of Part 7 Benefits in BC Tort Actions the BC Court of Appeal made some interesting comments with respect to these in reasons for judgement released today.
In today’s case (Boota v. Dhaliwal) the Plaintiff was awarded just over $170,000 in total damages by a jury as a result of a 2003 Car Crash.  The trial judge reduced part of the Jury Award by $1,000 as an assessment of the benefits that the Plaintiff was entitled to receive from ICBC under his policy of insurance.  The Defendants, who were insured with ICBC, appealed this portion of the judgement arguing that a far greater amount should have been deducted from the jury award.
The Court of Appeal Dismissed this appeal and in doing so made the following useful comments:

[72] I turn to consider the question of whether the trial judge in this case erred in estimating the s. 25 deduction either by incorporating a matching approach or by considering the likelihood of ICBC paying benefits.

[73] As noted already, the jury awarded the appellant $28,205 for the cost of future care.  The jury was not asked to specify the items of future care which it awarded, though there seems to be no reason where the claim is advanced as a pecuniary one that the jury could not be required to particularize this part of the award.  The trial judge deducted $1,000.  Because it is possible the appellant may in the future apply for, and receive, payment under Part 7, there exists the risk that he will be doubly compensated.  However, the trial judge held that he was unlikely to be paid and therefore assessed a nominal deduction.  ..

The respondents argued at trial that the appellant was not entitled to the $218,893 – $377,273 he claimed as future cost of care.  The defence largely succeeded in that argument.  I infer the jury found either that the bulk of the future expenses claimed were unnecessary, or if they were necessary, the condition for which they were necessary was not caused by the motor vehicle accident.  The respondents cannot now succeed in arguing that the appellant’s entire claim  for future cost of care as advanced at trial (one which the appellant pressed at trial, has now been judicially determined to be largely without merit) ought to reduce the entirety of his tort award.  I would not accede to this argument.  This is not a question of matching Part 7 claims to specific heads of damage in tort, which Gurniak says is wrong, but rather a question of not estimating claims under Part 7 in a manner opposite to what has already been found in this case to be unnecessary or unrelated to the motor vehicle accident.

[82] That leaves for consideration the question of the award of $28,205 for future cost of care and whether the trial judge erred in making only a nominal estimate under s. 25.

[83] The s. 25 estimate should be, as it was here, based upon the evidence and arguments advanced at the trial:  Coates v. Marioni, 2009 BCSC 686 at para 35; Schmitt v. Thomson (1996), 132 D.L.R. (4th) 310, 70 B.C.A.C. 290 at para. 19.

[84] Section 25(5) says that the “court must estimate” the amount of benefits to which the claimant is entitled.  That necessarily involves some kind of itemized examination of benefits that the appellant may claim in the future under Part 7.  After all, how else is the court to perform the estimate?  Gurniak has been interpreted to mean that this s. 25 assessment or estimate is not to be matched with heads of damage claimed in the tort action for deductibility purposes, but that interpretation does not preclude the court from taking into account the itemized amounts claimed in the tort claim when making its estimate under s. 25.  I recognize that in advancing its s. 25 claim the respondent is not limited to specific items claimed by the appellant in the tort action, although usually one would expect some overlap between the future cost of care and the estimate of items to be deducted under s. 25.

[85] The trial judge may exercise caution in her findings about the likelihood that ICBC would in the future pay any benefits under s. 88 of the Regulations:  Schmitt at para. 19.  The trial judge may have regard to the position taken at trial.  (Uhrovic v. Masjhuri, 2008 BCCA 462, 86 B.C.L.R. (4th) 15 at paras. 37–42).  Should the trial judge take into account the verdict in her assessment of the likelihood of payment?  In my view that is one of the considerations that may be taken into account in adopting a cautious approach.  In my view, the trial judge may properly infer that the same considerations propounded by ICBC at trial, and which appear to have been reflected in the damage award, may determine ICBC’s position on an application for payment of future benefits.

[86] In summary, the Court may take into account the evidence and submission on necessity and causation in assessing the likelihood of ICBC paying the Part 7 expenses.  This is so because those same factors are pre-conditions for payment under Part 7.  It was implicit in the comments of the trial judge at paras. 51 and 53 of her reasons for judgment that she considered the appellant was unlikely to be entitled to receive payment under Part 7.  I cannot say that she erred in her conclusion.  I would not accede to this argument.

The reason this case is important is because, as I wrote yesterday, often times ICBC refuses to provide Part 7 Benefits and then has their lawyer in the tort trial argue that these benefits should have been paid thereby giving the Defendant a statutory deduction.  In today’s case BC Court of Appeal specifically stated that it is proper for a trial judge to look at the Defendant’s trial position during the damage assessment portion (where the lawyer usually argues that the Plaintiff’s expenses are unreasonable) and infer that this mirrors ICBC’s position when considering the payment of Part 7 benefits.

Personal Injury Claims and Radiologists Opinion Evidence

Written by admin on . Posted in Civil Procedure, Uncategorized. 59 Comments on Personal Injury Claims and Radiologists Opinion Evidence


(Please note the topic discussed in this post should be reviewed keeping a subsequent October 2010 BC  Court of Appeal in mind)
X-rays, CT Scans, Bone Scan and MRI’s are routinely used in the diagnosis of traumatic injury and accordingly the findings of these diagnostic tests are frequently used at trial by personal injury lawyers.
Strictly speaking, however, the findings of radiologists interpreting the raw data generated by these tests are opinions and opinion evidence needs to comply with the Rules of Court to be admissible.  If an MRI shows a traumatic injury it is not good enough to show up at trial with only the radiologists consultation report in hand.  If you want the Court to rely on the radiologists findings of injury the reports need to be served in compliance with Rule  40A (Rule 40A is being overhauled in July 2010 and you can click here to read my previous article discussing this) Reasons for judgement were released today by the BC Supreme Court showing this legal principle in action.
In today’s case (Wittich v. Bob) the Plaintiff was injured in a 2004 BC Car Crash near Merritt, BC.  She sued for her injuries seeking up to some $800,000 in damages.  She claimed various accident related injuries including a herniated disc at C5-6.  In support of this claim two CT Scan Reports were entered into evidence, the first taken before the crash and the second after the crash.  The later scan was “interpreted by the radiologist as showing….a c56 level …herniated disc“.
The radiologist’s consultation report did not comply with Rule 40A.  Accordingly the report was only admitted for the fact that the diagnosis was made but not for the truth of the opinion.  Ultimately the court did not make a finding that the herniated disc was caused by the car crash.    Madam Justice Bruce summarized and applied the law to the facts of this case as follows:

[143] Of particular concern is the plaintiff’s failure to call any medical opinion evidence to support a finding that she suffered a herniated disc at C5-6 during the accident. As part of Dr. Grist’s clinical records, Mrs. Wittich entered two CT scan reports; one taken prior to the collision and one taken shortly thereafter. While the later scan was interpreted by the radiologist as showing a change from disc degeneration at the C5-6 level to a herniated disc that was impinging on the nerves of the spinal canal, this evidence cannot be regarded as expert medical opinion. These reports do not comply with Rule 40 and contain no indication of the radiologist’s qualifications and expertise to make these findings. Thus they are only admissible for the fact that this diagnosis was made and not for the truth of their contents.

[144] Moreover, even if I were to accept these reports as expert opinion evidence, there is the cogent evidence of Dr. Maloon, an orthopaedic surgeon, which supports a contrary finding as to the existence of a disc herniation. Dr. Maloon provided a detailed explanation for his conclusion that Mrs. Wittich did not suffer from a herniated disc, which included factors related to his physical examination of Mrs. Wittich and the symptoms she presented with at the time of his examination and interview. Dr. Maloon was qualified as an expert in the field of orthopaedic surgery and qualified to give opinion evidence as to the existence, cause and prognosis of spinal cord injuries. His evidence was thoroughly tested in cross examination and held up to scrutiny. In my view, it would be in the most unusual circumstances that the court would prefer the radiologist’s report to the evidence to that of Dr. Maloon and I find there are no such circumstances in this case. There is no evidence of the radiologist’s qualifications or expertise and no explanation of the reasons underlying his diagnosis.

[145] As a consequence, I find there is really no medical evidence before the court that Mrs. Wittich suffered any injuries to her neck apart from soft tissue complaints. In this regard, it was Dr. Maloon’s evidence that she likely experienced such injuries in the accident, but he was unable to specify which tissues (muscles, ligaments, or facet joints) were damaged based on Mrs. Wittich’s subjective reporting of vague pain symptoms.

The Plaintiff’s claim was largely dismissed and damages of just over $30,000 were awarded.  This case serves as a reminder that if the findings of a radiologist make up an important part of your personal injury case the evidence has to be served in compliance with the rules governing expert opinion evidence.

Don't Like the Court's Order? Get it Entered Before Appealing

Written by admin on . Posted in Civil Procedure, Uncategorized. 44 Comments on Don't Like the Court's Order? Get it Entered Before Appealing

When prosecuting a personal injury claim various orders can be made in the course of litigation.  In Civil matters in the BC Supreme Court such orders have to be ‘entered’ before crystallizing.    Until the order is entered the Court maintains jurisdiction to review, clarify or potentially vary the order.  If you wish to appeal an order it is important to have it entered first.  Reasons for judgement were released today by the BC Court of Appeal discussing this important practice point in the context of an ICBC Claim.
In today’s case (Chand v. ICBC) counsel for ICBC appealed an order from a BC Supreme Court Master and later Judge.  At the time the Appeal was filed the original order was unentered.  In her reasons for judgement Madam Justice Kirkpatrick of the BCCA said the following regarding the importance of having an entered order before launching an appeal:
[29] The salient feature that I wish to note at this point is that it appears the power described in Buschau is restricted to amending an entered order.  The reason for restricting the application to entered orders is obvious.  Until the order is entered, the judge or master may, on application, reconsider the order.  Here, as I have noted, Master Baker’s order was not entered until 27 May 2009.  Accordingly, it was open to the parties to return before Master Baker at any time before that date to have him clarify the meaning of the stay order….

[41] In my opinion, on an application in which a party is seeking to determine the intention of an entered order, it is essential that the entered order be before the court.  Similarly, on an appeal from a master’s order, the appeal should not proceed until the court has before it the entered order appealed from.  To proceed in the absence of the entered order gives rise to unnecessary uncertainty.  The court hearing the application or the appeal must know that the order under consideration is not susceptible to review or variation by the master who made the order because, of course, until the order is entered, the master is not functus officio.  The proper course in light of the unentered order would have been for the chambers judge to direct ICBC to immediately appear before Master Baker for the purposes of clarifying his order.

[42]         Once the order is entered, the court is functus officio.  In R. v. Roberts, 2004 BCCA 436, this Court said that “[i]t is well settled that the court remains seized of a matter and is not functus officio until the formal judgment of the court is entered and, until that time, the court has the power to reconsider, vary or revoke its judgment” (at para. 7).

[43]         Variation is expressly authorized by the Rules of Court, under Rule 41(24):

The court may at any time correct a clerical mistake in an order or an error arising in an order from an accidental slip or omission, or may amend an order to provide for any matter which should have been but was not adjudicated upon.

[44]         There are limits as to what can be corrected under Rule 41(24). McLachlin and Taylor, British Columbia Practice, 3rd ed. by Frederick Irvine (Markham, Ont.: Butterworths, 2006), summarize these limits at 41-38 to 39:

Notwithstanding that R. 41(24) is much wider than the old “slip rule”, it cannot be used to amend or alter a substantive finding even though that finding might be demonstrated to be in error … R. 41(24) does not permit changing a final order where a judge has second thoughts about his order, or to permit the parties to provide fresh details on matters already before the court ….  Its proper use is (1) to rectify a slip in drawing the order which, if unamended, would produce a result contrary to the intention of the court or of the parties… or (2) to provide for a matter which should have been but was not adjudicated upon….  [citations omitted].

[45]         It does not appear that ICBC considered making an application under Rule 41(24).

[46]         In addition to Rule 41(24), the court has, through inherent jurisdiction, “the power to amend the entered order on the basis that it contained an error in expressing the manifest intention of the Court” (Buschau v. Rogers Communications Inc., 2004 BCCA 142, 237 D.L.R. (4th) 260 at para. 26, leave to appeal ref’d [2004] S.C.C.A. No. 221).  In the absence of evidence of irrevocable steps in reliance or undue prejudice, the court should correct the order (para. 27).  It is not in the interests of justice for an order to stand that does not reflect the parties’ true entitlements (para. 27).

[47] In the case at bar, no one seems to have addressed their mind to the fact that Master Baker’s order was unentered.  Since then, of course, the order has been entered and I consider that this Court has jurisdiction under s. 9(1) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, to amend the order and exercise the jurisdiction invested in the Supreme Court.  Proceeding in this way avoids further litigation and expense, far too much of which has been wasted in this case to date.

The Jursidiciton of Trial Judges to Rule on "Trial Fairness" Matters

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

In a judgement released today the BC Court of Appeal discussed the power of Trial Judges to make orders relating to “Trial Fairness” matters.
In today’s case (Oberreiter v. Akmali) the Plaintiff sued for personal injuries from a 2004 BC car crash.  The matter went to trial and a Jury awarded the plaintiff about $118,000 in total damages.  Before the judgement was ‘entered’ it was discovered that the jury was given access to surveillance footage of the Plaintiff which had not been entered into evidence.  The Plaintiff successfully applied for a mistrial.  (Click here to read my summary of the mistrial application).
The Defendants brought the matter to the Court of Appeal arguing, amongst other things, that the Trial Judge had “no jurisdiction to entertain a motion after a jury has rendered its verdict and been discharged“.
The BC Court of Appeal disagreed with this submission and dismissed the appeal.  In doing so Madam Justice Smith gave the following useful and succinct outline regarding the powers of trial judges to rule on “trial fairness” matters:

[24] It is settled law that until a judgment or order has been entered, a trial judge continues to be seized of the matter before him or her. In Clayton v. British American Securities,[1935] 1 D.L.R. 432 at para. 83, [1934] 3 W.W.R. 257 (B.C.C.A.), the court noted that this was recognized as an “unquestioned practice” and “one of very long standing”. Similarly inBurke, the court concluded that, as a principle of law, a trial judge retains the remedial jurisdiction to declare a mistrial on an issue that goes to trial fairness (in that case it was whether there existed a reasonable apprehension of bias) after a jury verdict has been rendered and the jury discharged.

[25] In my view, there is no conflict in the authorities and none were provided that would suggest that a trial judge, before judgment is entered, does not retain jurisdiction to address a trial fairness issue. If that were so, then there would be no jurisdiction for a trial judge, as an issue of law, to address an application to reduce a jury’s award on damages that exceeded the “cap”. In my view, there was no arguable or meritorious issue as to whether the trial judge was functus officio to hear the application.