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Leave For Appeal Denied in Computer Hard-drive Disclosure Case

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 61 Comments on Leave For Appeal Denied in Computer Hard-drive Disclosure Case


In April of this year the BC Supreme Court ordered that a Plaintiff involved in a Brain Injury Claim from a BC Car Crash “produce for inspection by an independent expert a duplicate copy of his computer hard-drive and that the expert prepare a report identifying the number, nature, and time for all files relating to the use of the plaintiff’s Facebook account between the hours of 11:00 p.m. and 5:00 a.m., dating from July 23, 2005 to the present.” (Click here to read my post summarizing the trial decision).
The Defendant in this case sought greater disclosure including “production of information (from the Plaintiff’s computer hard drive) regarding the number, nature and time of the information files that related to the Plaintiff’s Hotmail account and all other computer activity occurring between the hours of 11:00 pm and 5:00 am.”  This application was dismissed by the Chambers Judge.
The Defendant asked the BC Court of Appeal permission to appeal this order arguing that such information would have been relevant in assessing the Plaintiff’s brain injury claim and that the Judge failed to turn his mind to the application properly.
The Court of Appeal refused to hear the appeal holding that the sought order was not supported by the evidence, specifically the Court of Appeal held as follows:

[22] At the plaintiff’s examination for discovery, he testified that he communicated with a friend on Facebook at night.  He also testified that he does have a Hotmail account but he had not “checked it forever”.  His mother testified that if anyone used the computer after 11:00 p.m. on weekdays, it would be the plaintiff (as opposed to other family members), and that he would probably be on the computer most nights.

[23] In the psychiatric assessment dated March 10, 2008, the plaintiff had apparently reported to his psychiatrist as follows:

[H]is sleep varies with the time one of his friends goes to bed.  This is because he spends a lot of time on Facebook chatting with this friend.

[24] I conclude that this appeal is prima facie without merit.  It is true that the chambers judge did not explain his reasons for dismissing that part of the application that is the subject of the appeal, but having reviewed the evidence that was before the chamber judge, it does not appear to me there was an evidentiary foundation for the request for the electronic records of his computer usage beyond Facebook.  Any other usage, such as was suggested in the argument before me (that the plaintiff may be using gaming websites or other such websites late into the night), appears to be somewhat speculative.

[25] I dismiss the application for leave to appeal.

You can read the full judgement by clicking here (Bishop v. Minichiello)

Unfortunately the Court of Appeal did not highlight any factors which will be of use in considering when applications for computer hard drives will be meritorious in personal injury claims.  With more and more information being stored on computers these days, however, such applications will become more frequent and it will only be a matter of time before the Court of Appeal has a chance to weigh in on this important issue.

Rule 68 Denied for Historic Personal Injury Case

Written by admin on . Posted in Civil Procedure, Uncategorized. 47 Comments on Rule 68 Denied for Historic Personal Injury Case

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, deciding whether a case that was filed before Rule 68 applied could later be brought into the scope of the Rule.
In today’s case (Sahota v. Sandulo) the Plaintiff sued as a result of personal injuries from a BC Car Crash.  The case was filed in New Westminster in 2005, a time when Rule 68 did not apply to that Court Registry.  The matter was set for Jury Trial.  As trial neared the Plaintiff brought an application to move the case into Rule 68 which would have a number of implications including getting rid of the defendants right to have the matter heard by a Jury.
Mr. Justice Holmes dismissed the application holding that “where an action is commenced before the introduction of Rule 68, the Court has no jurisdiction to make an order bringing the action within the Rule over the objection of one of the parties” In reaching this conclusion he agreed with the reasoning of Mr. Justice Macaulay in a case called Servos v. ICBC where the Court held as follows:

9          The plaintiff argues that any existing proceeding, regardless of the stage it is at, can be transferred into the pilot project if the parties consent.  In written argument, he says that the rule is silent on whether the court may order the transfer in the absence of consent and that, accordingly, the court has “the discretion to make any order, which it considers the circumstances require, particularly where it tends to prevent the misuse of the process”.  He does not suggest that the defendant is misusing the process in withholding consent in this case.  The plaintiff relies on Bell v. Wood, [1927] 1 W.W.R. 580 (B.C.S.C.), considered in MacMillan Bloedel Ltd. v. Galiano Conservancy Assn., [1994] B.C.J. No. 2477 (C.A.), for the proposition set out above.

10        With respect, I do not agree that the principle set out applies here.  In Bell, the court addressed its discretion to make orders regarding procedure as the circumstances may require “when the Rules are silent on the subject and especially when it tends to prevent misuse of the process” at (para. 6).  The particular question was whether an affidavit could be filed on an application for trial by jury when the rules were silent on the question.  MacMillan Bloedel addressed the court’s jurisdiction to permit the continuation of an examination for discovery on the issue of whether special costs should be ordered against a plaintiff that applied to discontinue the action five weeks before trial.

11        I read those decisions as affirming the court’s inherent jurisdiction to craft procedural rules when necessary because the rules do not anticipate the particular problem, but not as anything more.  Once a statute covers a matter, it is well understood that inherent jurisdiction cannot be relied on except to fill a functional gap or vacuum:  Unity Insurance Brokers (Windsor) Ltd. v. Unity Realty & Insurance Inc., [2005] O.J. No. 1069, 251 D.L.R. (4th) 368 (Ont. Div. Ct.).  It represents the reserve or fund of powers which the court may draw on as necessary when it is just or equitable to do so, but it is not unlimited and cannot be exercised contrary to any statutory provision. See Glover v. Minister of National Revenue (1980), 29 O.R. (2d) 392, 113 D.L.R. (3d) 161 (Ont. C.A.), aff’d [1981] 2 S.C.R. 561.

12        There is no gap in the present circumstances.  Rule 68 expressly requires the consent of the defendant.  It follows that my inherent jurisdiction does not extend to overriding the defendant’s lack of consent and directing the transfer of the proceeding into the pilot project.

This case will be a relatively short lived precedent, however, as Rule 68 is coming to an end as of July 1, 2010.  (Click here to read my previous post discussing Rule 68’s replacement with the New BC Supreme Court Civil Rule 15).

The New BC Supreme Court Civil Rules – a More Detailed Look

Written by admin on . Posted in Civil Procedure, Uncategorized. 118 Comments on The New BC Supreme Court Civil Rules – a More Detailed Look

Due in part to my recent articles on the New BC Supreme Court Civil Rules I had the opportunity to lead a discussion on the new rules this weekend before a group of distinguished BC Personal Injury Lawyers at the Westin Bayshore Hotel.
Afterwards several lawyers in the audience approached me for a written summary of my presentation.  Not having one handy I determined this would be as good a place as any to produce a written summary so here goes:
Introduction:
As many of you know the BC Supreme Court Rules have been overhauled.  The New BC Supreme Court Civil Rules come into force on July 1, 2010 so anyone with a BC Civil Practice needs to quickly get up to speed on these Rule Changes.
The good news for those of you not familiar with the New Rules is that they are largely “new” in name only.  More than anything else the “new” rules are simply the current rules renumbered and reorganized in what is supposed to be a more user friendly fashion.  About 95% of the current rules are left intact under the new system with the exact or almost exact language in place.
This is good news for lawyers familiar with the current system as many of the precedents we are familiar with interpreting and applying the current Civil Rules will continue to be of use under the new system.
Proportionality:
There is, however, one important exception to the overall similarities and that is that the “object” of the New Rules has changed.  Under the new system the object will be “securing the just, speedy and inexpensive determination of a proceeding on its merits, including, so far as is practicable, conducting the proceeding in ways that are proportionate to the amount involved in the proceeding, the importance of the issues in dispute and the complexity of the proceeding”
Since the New Rules will be subject to this overall concept of “proportionality” there is room for some new direction in the interpretation and application of the rules which have been reproduced word for word from their current form.
Although the new rules are largely the same as the current ones there are a few substantive changes that are worth highlighting.
Starting a Civil Action:
The first thing worth noting is that the Writ of Summons and the Appearance to a Writ of Summons have been abolished.  To start a claim under the new system you file a “Notice of Civil Claim” and to respond to this you file a “Response to a Civil Claim“.   These are nothing more than the Statement of Claim and Statement of Defence that we have under the current system.
When the new rules were being debated there was some discussion in shortening the amount of time a party had to serve a Notice of Civil Claim once filed.  Fortunately this change did not make its way into the final draft and litigants will still have one year within which to serve the Notice after filing.  This time period often comes in handy in the prosecution of personal injury claims with an unknown prognosis.
Changes to the Discovery Process:
Once the lawsuit is started the New Rules have made some changes to the Discovery Process, with respect to Discovery of Parties, Documents and Witnesses.
Discovery of Documents:
The “Demand for Discovery of Documents” has been abolished.  Instead, all parties to a civil action will have an automatic obligation to make discovery of documents within 35 days at the end of the “pleading period“.  Rule 7-1(9) creates a continuing obligation on parties to ensure that their list is up to date.  Failure to do so may prevent a party from putting documents into evidence (Rule 7-1(21)).
If a party is dissatisfied with the disclosure they have received they can make an application for a supplementary list of documents as set out in Rule 7-1(11).
Significantly, the test for what documents are discoverable has been altered.  Under the current system parties must disclose documents “relating to every matter in question in the action“.  Under the new rules this test has been changed to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“.
This new test is supposed to be narrower in scope than the current one.  Time will tell how this new test will change disclosure requirements in the prosecution of personal injury actions however, given the fact that this new test will be applied alongside principles of proportionality there very well may be narrower disclosure requirements in smaller personal injury claims and greater obligations in the prosecution of more serious claims.
Examinations for Discovery:
Moving on to Examinations for Discovery a few noteworthy changes have been made.  Under the current system there is no time limit to the length of discoveries.  If faced with an uncooperative party or a long-winded lawyer these can go on for days and days.  This has been changed under the new system with a 7 hour cap on examinations for discovery.  This cap can be lifted with the consent of the parties or with Court order.    Rule 7-2(3) sets out the factors the Court can consider when deciding whether to permit a longer discovery.  These factors are worth reviewing and include the conduct of the party and the conduct of the examining lawyer
An important examination for discovery loophole has also been plugged.  Oftentimes questions asked at discovery are answered after the fact by letter further to “requests” made at discovery.  Unfortunately the current rules do not provide any mechanism for the admissibility of such evidence at trial.   While such evidence would normally go in without incident one could not be guaranteed such an outcome if faced with an uncooperative opposing lawyer. This has been remedied under Rule 7-2(23) of the New Rules which holds that answers made to discovery requests by follow up letter are deemed to be questions and answers given under oath at the examination for discovery.  This change will give counsel more confidence that they can use admissions made further to requests to advance their case or damage their opponents at trial.
Interrogatories:
Interrogatories are as good as dead under the New Rules.  While they still exist Rule 7-3(1) does not permit their use except with consent or with court order.  This is welcome news with respect to personal injury claims as some defence lawyers oppressively use interrogatories in an attempt to get discovery of information multiple times.
Discovery of Witnesses:
The current system does little to assist litigants in determining which lay witnesses their opponents will bring to trial.  This has been changed under the new rules and the Court will have greater powers to compel such disclosure.
Parties to civil actions will be able to request “Case Planning Conferences” and “Trial Management Conferences” (I discuss these at greater length below).
The court has the power to order disclosure of witness information at these conferences.  Specifically under Rule  5-3(j) the court can make an order with respect to “witness lists” at a Case Planning Conference.  Even if no such order is made parties will need to disclose names and addresses of all lay witnesses they will rely on at least 28 days before trial as set out in Rule 7-4(1).
At Trial Management Conferences Courts can go further and have the power to order “will say” summaries of lay witness evidence as set out in Rule 12-2(g).  Time will tell how often such orders are made but given the fact that one of the well established purposes of the Rules is to avoid trial by ambush I imagine such orders will be made routinely in personal injury claims.
Expert Witnesses:
One of the biggest changes under the new rules is that relating to expert opinion evidence.  I have written about this before and you can click here to read my previous summary of these important changes.
Fast Track Litigation:
Another significant change is that relating to fast track litigation.  I have previously written about these changes and you can read my previous article by clicking here.
CPC’s and TMC’s:
As mentioned above the new rules have introduced Case Planning Conferences and Trial Management Conferences.  These give the Court greater control and power over an action earlier in the litigation process and the Rules discussing these conferences are worth reviewing.
Briefly any party to a civil action may request a Case Planning Conference once the Pleading Period expires.  The court can also order such a conference on its own motion.  Once set the litigants will need to filed a Case Plan Proposal which will include plans for discovery of documents, examinations for discovery, dispute resolution, expert evidence, witness lists and trial estimates and intended mode of trial.  Affidavits will not be permitted at CPC’s and instead the court orders will be based on submissions of the parties (or their counsel).  Rule 5-3 sets out the orders a Court can make at a CPC.
Originally it was proposed that parties would have to personally attend CPC’s.  Fortunately this requirement did not make its way into the final draft and parties are permitted to attend via counsel as set out in Rule 5-2(2).
Trial Management Conferences (TMC’s) will be required in all actions.  These must be held at least 4 weeks before trial and “if practicable conducted by the judge who will preside at trial”.  This is a welcome requirement as under the current system litigants rarely know who their judge will be until a day or two before trial.  Knowing who your judge will likely be ahead of time will assist in preparing your trial in accordance with such a  judge’s preferences and it will certainly be a welcome change for the judge to know something about the case a month or more before trial.
Rule 12-2(9) sets out the orders that Judges can make at TMC’s and these are worth reviewing.
At first read it appears that parties must personally attend TMC’s although Rule 12-2(5) sets out an exception permitting a lawyer to appear provided that the party “is readily available for consultation during the TMC, either in person or by telephone“.
Transition:
Part 24 of the new Rules states that proceedings started under the current Supreme Court Rules will be “deemed to be a proceeding started under these Supreme Court Civil Rules‘ meaning that every current BC Supreme Court civil lawsuit that is not disposed of before July 1, 2010 will be under the force of the new rules at that time.
There is a bit of leeway built into the transition process as Rule 24-1(14) states that “If a step in a proceeding is taken before July 1, 2010, the former Supreme Court Rules apply to any any right or obligation arising out of or relating to that step if and to the extent that that right or obligation is to have effect before September 1, 2010.”    This is very little leeway however and the new Rules will be in effect by July with no exceptions after September so now is the time for all of us to start getting up to speed.

More on BC Injury Claims and Mode of Trial

Written by admin on . Posted in Civil Procedure, Jury Trials, Uncategorized. 52 Comments on More on BC Injury Claims and Mode of Trial

Further to my previous post about parties flip-flopping on their choice to have a Trial by Jury in a BC Injury Claim reasons for judgement were released today considering the issue of “whether or not a party who has taken the necessary two steps to require a trial by jury…can change that mode of election before the trial commences“.
In today’s case (Iskum v. Badali) the Plaintiff was involved in two motor vehicle collisions.  The Plaintiff sued and both cases were set for trial.  The defence lawyers in each lawsuit filed Jury Notices within the time frames required.    The Defendants paid the Jury fees as required by the Rules of Court.  Late in the litigation new defence lawyers were appointed and 10 days before trial they told the Plaintiff’s lawyer that they intended to have this matter tried before a judge without a jury.  The Plaintiff objected arguing that it was too late for the defendant to change their mind.
Madam Justice Griffin agreed with the Plaintiff and reasoned as follows:

[10] Here, the plaintiff did not exercise any right to trial by jury.  The plaintiff simply did not contest the defendants’ election of trial by jury.

[11] Thus, the issue before me does not have to do so much with a party’s right to a jury trial, rather, it has to do with a party’s right to know the mode of trial no later than 30 days before trial.  The issue properly framed is whether or not a party who has taken the necessary two steps to require trial by jury, as set out in Rule 39(26), can later change that mode of election before the trial commences…

[30] I find that by taking the two steps set out in Rule 39(26), the defendants “required a jury,” and therefore the payment of the subsequent fees is mandatory pursuant to s. 17 of theJury Act.

[31] The defendants suggest that having paid the first set of fees, they can decide to not pay the second set of fees simply by giving notice to the sheriff that they no longer require a trial by jury.  They suggest that s. 19 indicates that the trial judge has discretion to allow this.

[32] I find that s. 19 of the Jury Act does not give a party who has elected trial by jury the right to simply give notice that it will not pay the jury fees required on a daily basis and thereby unilaterally un-elect the mode of trial by jury.  Rather, the payment of those fees is mandatory and only if they are not paid will the sheriff bring this to the attention of the court to make such order as the court considers just.  This preserves the court’s inherent jurisdiction to control its own process, but does not confer a procedural right on a party to simply “un-elect” trial by jury by not paying subsequent fees.

[33] Here, the defendants attempted to unilaterally un-elect trial by jury within 10 days of the trial starting by simply advising the sheriff and the other side that they no longer wished to proceed by trial by jury.  I conclude that the Rules of Court do not allow for such a re-election within 30 days before trial.  I find that the defendants had no authority to do so under theRules of Court.

[34] It is clear that the Rules of Court do not allow for a party to elect trial by jury late in the process.  This election must be made within strict time limits set out in Rule 39(26).

[35] The mode of trial is very relevant to how the parties will prepare for trial and is also relevant to settlement discussions before trial.  The Rules of Court as a whole recognize that it is not efficient to conduct civil trials by ambush.  Civil trials are more efficient and settlement is more likely if parties have advance notice of not just the case they have to meet, but the mode of trial.  The 30-day notice period in Rule 39(26) is there to provide parties with some certainty as to the mode of trial with a goal of efficient resolution of disputes.

[36] As noted by Mr. Justice Taylor of our Court of Appeal in Hoare v. Firestone Canada Inc. (1989), 42 B.C.L.R. (2d) 237 at 241:

The learned judge very properly emphasized the importance of the right to elect for jury trial.  But on a broad consideration of the rules and authorities which has been possible in these appeal proceedings I have concluded that the election is intended to be made once only, at a particular stage, and for good reason.  If the trial may be before judge and jury, rather than judge alone, that is generally an important consideration for both parties in preparation of the case and perhaps, indeed, in the selection of counsel.  It is, I think, for these reasons that the rules require the election to be made, once for all, soon after the action is set down, instead of leaving the parties free to elect thereafter on the basis of later developments.

[37] As a matter of common sense and in light of the clear purpose of the Rules of Court to avoid trial by ambush, the time limits imposed on the mode of selection of trial apply whether the mode of trial is by jury or is by judge alone.  I conclude that were it intended to be otherwise, there would be an express provision in the Rules of Court, pursuant to which a party could unilaterally elect to proceed by judge alone, despite having elected trial by jury by meeting the requirements of Rule 39(26) at least 30 days before trial.  There is no such provision.

[38] Rather, once the election has been made and has crystallized by the taking of the two steps set out in Rule 39(26) at least 30 days prior to trial, the only basis for a party to set aside the election of trial by jury is pursuant to Rule 39(27) on the basis that the case is unsuitable for trial by jury.

[39] On its face, Rule 39(27) would seem to apply only to the party who has received the jury notice.  However Rule 35(4) provides that the court, on its own motion or on the motion of any party, may order that the trial proceed without a jury on any of the grounds set out in Rule 39(27).  In this regard, see Robitaille v. Vancouver Hockey Club Ltd. (1979), 12 B.C.L.R. 335 (S.C.), aff’d 14 B.C.L.R. 377 (C.A.).

[40] This brings me back to the B.C. Court of Appeal decision in Molnar.  I conclude that having elected trial by jury, the defendants must proceed with a jury unless they can discharge the onus of proving that this matter is not suitable for a jury on the grounds set out in Rule 39(27).

[41] Here, the defendants did not apply at this pre-trial conference to set aside the jury notice, and advanced no argument based on the grounds set out in Rule 39(27).  It is clear that the defendants simply asserted that they had a right to re-elect trial by judge alone at any time prior to the start of trial.  I have found that the Rules of Court do not permit this.

This is the first case that I am aware of dealing with these specific facts making this case a useful precedent.  Now the question is will this precedent continue to be useful once the new BC Supreme Court Civil Rules come into force?

The answer appears to be yes.  This case turned on the Court’s interpretation and application of Rule 39(26).  This rule is replaced in the New BC Supreme Court Civil Rules at Rule 12-6(3) which is almost identical to the current rule in its language and requirements (there are some minor changes in the timelines involved but otherwise the rules appear identical).  If a party wants to change their minds after filing a Jury Notice they better do so before paying the Jury Fees otherwise it appears to be too late.

To read my other posts cross referencing the current Rules with the New BC Supreme Court Rules simply click here or on the New BC Supreme Court Rules tag below.

ICBC Uninsured Motorist Claims and the Health Care Costs Recovery Act

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

Further to my previous posts on the Health Care Costs Recovery Act, I recently had the opportunity to scrutinize the Act’s application to Uninsured Motorist Claims under Section 20 of the BC Insurance (Vehicle) Act.  It was a a bit of a lengthy exercise so I thought I would share my findings for the benefit of anyone else researching this topic.
A representative of the Government familiar with the HCCRA told me that the BC Government’s initial position when the HCCRA came into force was that it applied to BC Car Crash cases where the Defendant is uninsured and in cases where the Defendant is in breach of their insurance.  In my recent experience suing Defendants who were in breach of their insurance the Government required notice about the claim but did not require recovery of health care costs.  (Please note I am not speaking on behalf of the BC Government here, I am simply highlighting my past experiences with this act, so if you are prosecuting such a claim please satisfy yourself whether or not the Act applies).
Where a Defendant is Uninsured at the time of the crash (as opposed to in breach of their insurance) the HCCRA appears to apply at first glance.
Section 24 of the Health Care Costs Recovery Act holds in part that:

(1) Subject to this section, this Act applies in relation to any personal injury suffered by a beneficiary, whether before or after this subsection comes into force….

(3) This Act does not apply in relation to health care services that are provided or are to be provided to a beneficiary in relation to

(a) personal injury or death arising out of a wrongdoer’s use or operation of a motor vehicle if the wrongdoer has, when the injury is caused, coverage under the plan, as those terms are defined in the Insurance (Vehicle) Act,

So on strict reading the HCCRA appears to apply to BC Car Crash Cases where a Defendant motorist is uninsured because in these circumstances the “wrongdoer” does not have “coverage under the plan“.  If a Plaintiff sues a Defendant in these circumstances the Government’s claim arguably should be advanced.  Practically speaking, however, Plaintiff’s rarely recover anything from Uninsured Defendants and instead take advantage of the Benefit available under section 20 of the Insurance (Vehicle) Act.

Specifically, Section 20 of the Insurance (Vehicle) Act permits people injured by Uninsured Motorists in BC to apply to ICBC for ‘payment of damages to which he or she claims to be entitled to’.
If you dig a little deeper ICBC appears to be under no obligation to pay HCCRA damages in a settlement or judgement in Section 20 Claims because of the Deductions set out in section 106 of the Insurance (Vehicle) Regulation which holds that “No amount shall be paid by (ICBC) under section 20…of the Act in respect of that part of a claim that is paid or payable as an insured claim“.
For the purpose of s. 106 of the Insurance (Vehicle) Regulation “insured claim” means “any benefit, compensation similar to benefits, right to indemnity or claim to indemnity accruing to a person entitled to benefits, compensation or indemnity...”
It is hard to imagine a successful argument holding that the right to Government Paid Health Care under MSP is not a ‘benefit‘ as used in the above definition of ‘insured claim‘.  So, in summary, while the Health Care Costs Recovery Act appears to be triggered in tort claims against Uninsured Motorists, ICBC appears to not have to pay any portion of such a claim when a Plaintiff applies for benefits to ICBC under s. 20 of the Insurance (Vehicle) Act because of the deduction they are entitled to under s. 106 of the Insurance (Vehicle) Regulation.  Clear as mud folks?

Functional Assessment Biomechanical System (FAB) Deemed Inadmissible in Injury Claim

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

Reasons for judgement were released today by the BC Supreme Court considering the admissibility of the “Functional Assessment Biomechanical System” (known as FAB for short) in a personal injury claim.
In today’s case (Forstved v. Penner) the Plaintiff was suing as a result of personal injuries.  In presenting her case she hired an occupational therapist to write a report summarizing her physical limitations and giving an estimate of her future care needs.  In preparing this report the occupational therapist used the FAB system.
Mr. Justice summarize the FAB System as follows:

[5] The development of the FAB started in 2004 and Mr. McNeil has been using the FAB results since 2006 or 2007 in the preparation and formulation of his opinions.

[6] The FAB in short is comprised of hardware, the most critical part being some 13 wireless inertial sensors that are attached to a subject or patient’s body while they undertake various physical tasks; and software, that translates the signals from the sensors into measurements of the movements of the body on a real-time basis. Embedded in the software are functions such as the analysis of the data as requested by the operator as the test subject is conducting the instructed activities. It also includes a timer function, graphing and other report templates.

[7] Mr. McNeil is present while the subject performs the tests and says that he observes the actions of the subject. He also states that the FAB is not a diagnostic tool but rather augments his findings. He says he applies standardized tests which are set out in his report and that the FAB system provides additional measures that would otherwise only be guessed at by an evaluator.

The Defence lawyer argued that the expert report should not be admitted into evidence because the FAB System was “novel as a science or technique“.  Mr. Justice Masuhara agreed that the report was not admissible as the FAB System does not meet the judicially required “threshold level of reliability“.

Specifically Mr. Justice Masuhara held as follows:

[12] As I have mentioned, the report itself reflects the measurements from the FAB. The report is lengthy, being 82 pages, again which I say is largely comprised of the information derived from the FAB.

[13] The report says that there are checks and balances within the tests when cross correlating and with cross correlating tests in order to establish the level of effort put forth by the individual. As I have said, he states that it is not a test protocol and that standard tests are used throughout the assessment and that motion capture system augments the evaluator’s observation and allows for accurate measurement, mobility and measurements of biomechanical forces that could otherwise not be performed by the evaluator and that tests are performed to identified the reliability of the individual’s pain reports including distraction tests and Waddell signs.

[14] On the other hand, the defence in following the factors in R. v. J.?L.J. points to the following.

[15] That the technique which includes both the hardware and the software has not been tested except by Biosign or someone under its direction. Mr. McNeil’s own words stated that the testing was still in the “beta phase” which I took to mean that it was not yet ready commercially. The software itself is proprietary and Mr. McNeil being an occupational therapist is not able to speak to the coding as he did not develop it, nor could he speak to the hardware but relied upon his own team of engineers who have developed these things. From that perspective there are some difficulties with respect to the ability to test and to query the software and the hardware embedded and integrated within the FAB.

[16] That the technique while Mr. McNeil indicated was under some form of peer review, nothing has been published and Mr. McNeil was not able to indicate when such a review or the results of such a review would be produced. He also agreed that the motion capture technique is a relatively new technique. Though I note that he stated it was not “cutting edge”.

[17] There are no published standards for the techniques nor is there any rate of error known though Mr. McNeil did say that the device had met CSA, Health Canada, FDA and FCC standards. However, on cross-examination it was revealed that these standards largely deal with safety issues with respect to the device being used upon a subject and could not be taken to speak to the accuracy or reliability of the FAB.

[18] In regard to the technique being generally accepted, Mr. McNeil is the only occupational therapist in British Columbia using the motion capture software. There is no consensus on any technology being the best for the type of work that is the subject of this ruling. No one has yet purchased his technology and the vast majority of occupational therapists do not use motion capture techniques.

[19] Complicating the entirety of the circumstances is the fact that Mr. McNeil is the inventor and a marketer of the FAB. He has a financial interest in the acceptance and success of the FAB. Mr. McNeil’s testimony revealed a lack of appreciation regarding the role of a court expert and the need for open and candid disclosure of a financial interest in the very tools that he refers to in validating or verifying the reliability of the information supporting his opinions. His view that such information was irrelevant was troubling. This problem with respect to his non-disclosure was also referred to by Madam Justice Allan recently in the Rizzolo v. Brett, 2009 BCSC 732 at para. 105. I wish to add that Mr. Mussio was not aware of these issues and that Mr. Chan for the defence only came upon Mr. McNeil’s testimony before Allan J. on the weekend before this trial started.

[20] In the circumstances, I am of the view that the results from the FAB do not meet the threshold level of reliability. As the subject report is comprised to a large degree with the data from the FAB, which creates an unwarranted perception of precision, and which is integrated into the recommendations I rule that the report is not admissible in its present form. Having said that, I think it would be in order for the court to receive submissions from Mr. Mussio and of course reply by Mr. Chan as to Mr. McNeil being called to provide evidence and his opinions based on his observations or some other form in which his testimony can be received by the court. That concludes my ruling.

Even More on Costs and "Sufficient Reason" to Sue in the BC Supreme Court

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

Further to my previous posts on this topic, reasons for judgement were released today considering whether to award a Plaintiff Supreme Court Costs in an ICBC Claim where the judgement amount was within the Small Claims Court’s jurisdiction.
In today’s case (Mohamadi v. Tremblay) the Plaintiff was awarded $10,490 in his ICBC Claim after trial (click here to read my summary of the trial judgment).
The Plaintiff brought an application to be awarded ‘costs’ under Rule 57(10) which reads as follows:
A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
ICBC opposed this application.  Mr. Justice Truscott set out the leading test in applying Rule 57(10) from the BC Court of Appeal (Reimann v. Aziz) where the BC high court held that “Considering Rule 57(10) in its legislative context and applying its words in their grammatical and ordinary sense harmoniously with the scheme of the legislation and its objects, I conclude that a plaintiff does not have an ongoing obligation to assess the quantum of a claim and that the point in time for a consideration of whether a plaintiff had sufficient reason for bringing a proceeding in the Supreme Court is the time of the initiation of the action.”
Mr. Justice Truscott held that this Plaintiff did not have “sufficient reason for bringing” his lawsuit in the Supreme Court.  He summarized the key reasons behind his conclusion as follows:

[58] I recognize that most plaintiffs with personal injury claims probably feel more comfortable with counsel representing them and more confident that they will obtain a greater amount of damages for their claim with the assistance of counsel than by acting on their own in Small Claims Court.

[59] However, the onus to prove that at the beginning of the claim there is sufficient reason for bringing the proceeding in Supreme Court, as Rule 57(10) states, lies in practice to some great extent on plaintiff’s counsel who is advising the plaintiff on the value of his claim and commencing the action.

[60] Here, I am satisfied that if Dr. Fox’s medical records pre-accident had been obtained and if his opinions and the opinions of Dr. Cameron had been obtained before the writ of summons was issued, with the plaintiff’s credibility at issue with respect to the injuries he was alleging that were not supported by his doctors, with his false statement to ICBC, and with the contrary evidence of his employer, it could and should easily have been determined that the action should be commenced in Small Claims Court and not this Court.

In my continued exercise to get used to the New BC Supreme Court Civil Rules, I am cross referencing all civil procedure cases I write about with the new rules.   The Current Rule 57(10) will become Rule 14-1(10) and it reads identically to the current rule so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants after July 1, 2010.

More on the Scope of Examination For Discovery Evidence At Trial

Written by admin on . Posted in Civil Procedure, Uncategorized. 57 Comments on More on the Scope of Examination For Discovery Evidence At Trial

When a Defendant is examined for discovery in a BC Injury Claim damaging answers can be read in at trial as evidence against that defendant. A limit to this, however, is that if there is more than one defendant in a lawsuit the evidence can generally only be used against the defendant who was examined (click here to read a previous post discussing this restriction).
Reasons for judgment were released today demonstrating an exception to this restriction.  In today’s case (Beazley v. Suzuki Motor Corporation) the Plaintiff was injured in a 1994 motor vehicle collision.   The Plaintiff claimed that the design of the vehicle involved was defective and sued various parties including GMC.
In the course of the lawsuit representatives of GMC were examined for discovery.  The Plaintiff obtained admissions which were useful in advancing their lawsuit.  Subsequent to this, GMC sought bankruptcy protection under Chapter 11 of the US Bankruptcy Code.  Because of the Bankruptcy the plaintiff’s could no longer compel the GMC representatives as adverse witnesses.   The case was set for trial and the Plaintiff wished to read in the discovery answers of these witnesses as against the other defendants.  The other defendants opposed this raising the limitation set out in Rule 40(27) of the BC Supreme Court Rules.
Mr. Justice Goepel agreed that the restriction in Rule 40(27) “does not allow exceptions and, accordingly, the discovery evidence would not be admissible pursuant to Rule 40(27) as against anyone other than GMC“.
However, the Court went on to hold that, despite this restriction, the Court could permit this evidence in as against the other defendants under Rule 40(4) of the rules of Court due to the circumstances of this case.    Below I set out Mr. Justice Goepel’s useful analysis:

[27] Rule 40(4) deals with the evidence of witnesses who are otherwise unavailable.  Rule 40(4) gives the court the discretion in certain defined circumstances to allow a transcript of prior evidence given by the witness to be put in evidence.  The Rule reads:

40(4)  Where a witness is dead, or is unable to attend and testify because of age, infirmity, sickness or imprisonment or is out of the jurisdiction or his or her attendance cannot be secured by subpoena, the court may permit a transcript of any evidence of that witness taken in any proceeding, hearing or inquiry at which the evidence was taken under oath, whether or not involving the same parties to be put in as evidence, but reasonable notice shall be given of the intention to give that evidence.

[28] Mr. Leffert and Mr. Uthe are both residents of the United States.  They are not subject to this Court’s subpoena powers and the plaintiffs cannot compel their evidence at trial.

[29] The Rule is discretionary in nature.  If the witness cannot attend for one of the stated reasons the court may, not must, allow a transcript of prior testimony to be put into evidence, subject only to the requirement of prior notice.  In determining whether or not to allow the evidence to be admitted, the court must consider matters of trial fairness and potential prejudice to the parties.

[30] Rule 40(4) has been the subject of several recent decisions.  Most have concerned applications to introduce a deceased plaintiff’s examination for discovery transcript.  The authorities were reviewed and considered in Malik Estate v. State Petroleum Corp., 2007 BCSC 934, 74 B.C.L.R. (4th) 330.  In Malik, the plaintiff sought to admit into evidence the transcript of the examination for discovery of Mr. Malik that had been conducted by the defendant.  Mr. Malik had since died. After reviewing previous decisions dealing with Rule 40(4) and considering at some length the restated rules concerning the admission of hearsay evidence, Burnyeat J. concluded that the transcript of Mr. Malik’s discovery was admissible.

[31] The arguments in favour of admissibility are much stronger in this case than in Malik.  In Malik, the plaintiff was seeking the admission of discoveries conducted by the defendant.  Such discoveries often present an incomplete version of the case as an examiner may choose to refrain from examining on some aspect of the case in order to avoid revealing trial tactics.  The potential for prejudice in such cases is great, particularly when the witness is deceased and the transcript is the only evidence of that witness that will be before the court.

[32] That is not the situation in the case at bar.  Here the examination was conducted by the plaintiffs.  It was conducted with the intent that the evidence would be read in at trial.  Absent the bankruptcy, Leffert and Uthe could have been called as adverse witnesses and their evidence would have been admissible against all defendants.

[33] There is minimal prejudice to the remaining defendants if the evidence is admitted.  Mr. Leffert and Mr. Uthe are clearly allied with the GM defendants.  There is no reason to believe that they would not voluntarily attend at the trial if the GM defendants requested their attendance.  If the evidence is admitted the remaining GM defendants can call Mr. Leffert or Mr. Uthe to explain any admissions that they may have made.

[34] It may well be pursuant to the Letters of Request that the plaintiffs could again obtain the evidence of Mr. Leffert and Mr. Uthe and then lead that evidence at trial.  Rule 1(5) seeks to secure the just, speedy and inexpensive determination of every proceeding on its merits.  To put the plaintiffs to the cost and expense of again examining these witnesses would be contrary to and the antithesis of Rule 1(5).

[35] Rule 40(4) refers to transcripts of other evidence.  The plaintiffs in this case wish only to put into evidence those parts of the transcripts which assist their case.  While admission of only a portion of the evidence may be objectionable in other circumstances, such as when the witness is deceased, I will allow the plaintiffs in this case to submit only portions of the transcript, subject to the defendants’ right to request that other parts of the discovery that are reasonably connected to those portions already introduced be also put into evidence:Foote v. Royal Columbian Hospital, (1982) 38 B.C.L.R. 222 (S.C.).

[36] Accordingly, the plaintiffs can read into evidence, pursuant to Rule 40(4), portions of the examinations of Mr. Leffert and Mr. Uthe.  That evidence will become evidence at large and will be admissible for and against all parties. The plaintiffs must 14 days prior to trial specify the part of the discovery evidence that they intend to be given at trial.  The remaining GM defendants will have the right to request that other parts of the discovery that are reasonably connected to those parts given in evidence also be put into evidence.

Now to continue my effort to cross reference civil procedure cases that I write about with the soon to be in force New BC Supreme Court Civil Rules.

Rule 40(27) will be replaced with the new Civil Rule 12-5(46).  With respect to the restriction of who the discovery evidence can be used against, the new rule seems to be in line with the current rule.

Rule 40(4) is replaced with Rule 12-5(54) with identical language.  Accordingly, this case should retain its value as a precedent once the new BC Supreme Court Civil Rules come into force.

ICBC Injury Claims and the "Volenti" Defence

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Jury Trials, Uncategorized. 112 Comments on ICBC Injury Claims and the "Volenti" Defence

Volenti Non Fit Injuria is a Latin phrase which generally means that a plaintiff cannot sue a defendant where the Plaintiff has consented to or willingly accepted the risk of harm.   The Volenti Doctrine, when used successfully, can be a complete defence to a personal injury lawsuit.
The Volenti defence has been raised many times in ICBC Injury Claims where a passenger rides with a knowingly impaired driver who then loses control and injures the passenger.  Our Courts have severely limited the effectiveness of this defence over the years and reasons for judgement were released today demonstrating the difficulty is successfully arguing this defence.
In today’s case (Shariatmadari v. Ahmadi) the Plaintiff was severely injured when the driver of her vehicle lost control in Stanley Park, left the roadway and hit a tree.  The Defendant was drinking prior to losing control.  The claim went to Jury Trial and ICBC, on behalf of the Defendant, tried to raise the Volenti Defence.
Madam Justice Fenlon refused to put the defence to the jury finding that the evidence required for the defence to succeed was not present in the case at hand.  In coming to this conclusion she summarize the Volenti Defence in impaired driving cases and applied it as follows:

[3] The third party, Insurance Corporation of British Columbia (“ICBC”), who is defending this case on behalf of the deceased driver, wished to lead evidence of excessive drinking by the plaintiff, defendant, and mutual friends several nights a week for some time prior to the accident. ICBC also sought to lead evidence of the plaintiff occasionally driving following such evenings or letting the defendant drive her vehicle. They argued that this evidence, in conjunction with the fact that the plaintiff and defendant had a close personal relationship and were both driving impaired before the accident, will support a finding by the jury of a tacit agreement between the parties to assume any risk that might arise in relation to such driving – a finding which would support the defence of volenti non fit injuria.

[4] Counsel for the plaintiff offered to have the plaintiff testify on a voir dire to permit counsel for ICBC to argue the appropriateness of putting the volenti defence to the jury based on the actual evidence that could be elicited from the plaintiff. The third party was of the view, with which I agreed, that they could argue the appropriateness of putting the defence ofvolenti non fit injuria to the jury based on their “best case scenario”. I heard argument on that basis.

[5] Counsel for ICBC candidly acknowledged that in cases involving a plaintiff riding with an impaired driver, volenti is a difficult defence to prove in light of recent cases on the issue. In Hall v. Hebert, [1993] 2 S.C.R. 159 at 207, 101 D.L.R. (4th) 129, Cory J. in concurring reasons noted that the maxim volenti non fit injuria “stands for the proposition that no injury is done to one who consents.”  He stated the following at 207-208:

In order for the doctrine of volenti to apply, there must be either an express or implied assumption of the risk of the activity which caused the damage. That is to say, both parties to the activity must have agreed that they would participate in it regardless of the risk of injury and give up their right to sue should injury occur as a result of the agreed upon activity. It must be observed that the consent goes to the legal as opposed to the physical risk of harm (see Lehnert v. Stein, [1963] S.C.R. 38).

…

The volenti defence acts as a complete bar to recovery. Although it has not been the subject of legislation, it has been very severely limited in its application. Perhaps the judicial limitation was well merited in light of the harsh academic criticism of the defence. See Prosser, supra, at p. 454. Before it can operate as a defence, the plaintiff must not only consent to accept the risk of harm but also must bargain away his or her right to sue for injuries that may result from the dangerous activity. The doctrine will only be applied where it can truly be said that there is an understanding on the part of both parties that the defendant assumed no responsibility to take care for the safety of the plaintiff and the plaintiff did not expect him or her to do so. Clearly, the volenti defence will only be applicable in a narrow range of cases.

[6] In Joe v. Paradis, 2008 BCCA 57, 290 D.L.R. (4th) 556, the plaintiff had persuaded the defendant to drive him to a pub to obtain beer. Both parties were heavily intoxicated and the defendant drove off the road, injuring the plaintiff. The plaintiff’s action for damages was dismissed by a jury on the basis of the volenti defence. The issue before the British Columbia Court of Appeal was whether the defence of volenti non fit injuria should have been put to the jury. At para. 13, Mackenzie J.A. writing for the Court said:

[13]      There is no evidence of any express agreement between Mr. Joe and Mr. Paradis to absolve the latter from legal liability for negligent driving. The first issue is whether there was evidence from which a properly instructed jury could find an implied agreement to that effect. The first and third issues are inter-related: if there was no evidence to support the defence, the jury verdict is unsupported by evidence and therefore perverse.

[7] He noted further at paras. 16-22:

[16]      Commentators are generally critical of the volenti doctrine, particularly its application to passengers in motor vehicle accident cases: see, for example, G.H.L. Fridman,The Law of Torts in Canada, 2nd ed. (Toronto: Carswell, 2002); Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: Butterworths, 2002); Lewis N. Klar, Tort Law, 3rd ed. (Toronto: Carswell, 2003); John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998); and Clerk & Lindsell on Torts, 19th ed. (London: Sweet & Maxwell, 2006). Clerk & Lindsell on Torts points out that volenti’s complete bar to recovery is inconsistent with comparative negligence statutes which allow the apportionment of responsibility and “a more finely adjusted justice between parties” (at §3-103). Professor Klar observes that the nominal standard of an implied waiver of legal liability will rarely be met, if taken seriously. He adds: “It is not realistic to impose this implied agreement upon parties who are frequently unaware of the legal niceties surrounding these types of events, and who are not deliberating upon the physical or legal risks of dangerous conduct” (at 482). It would be hard to find parties who better fit Professor Klar’s description than Mr. Joe and Mr. Paradis.

…

[20]      Interjecting the volenti defence short circuits the process and invites the jury to use the defence as a subterfuge to assign all responsibility for the accident to Mr. Joe notwithstanding that the theoretical basis of the doctrine, an implied agreement to waive legal liability, may be unsupported by the evidence. Unless the courts are prepared to condone the manipulation of the volenti doctrine to avoid the comparative fault regime of the Negligence Act, volenti should not be invoked unless there is evidence that the parties put their minds to the question of legal liability and expressly or tacitly made an agreement to waive liability that could be supported on basic contract law principles.

[21]      The weight of Supreme Court of Canada jurisprudence and the critical commentaries support restricting the doctrine to cases where an agreement can be supported by the evidence. This case was not one of them.

[22]      The question left with the jury failed to clearly distinguish between the physical and legal risk of harm. The judge’s charge attempted to explain the distinction, but essentially in a vacuum as to evidence supporting acceptance of the legal risk of injury in contrast to the physical risk. Voluntary acceptance of the physical risk without acceptance of the legal risk is a contributory negligence issue and not volenti. [Emphasis added]

[8] In my view, even assuming the defendant’s best case scenario on the evidence elicited at trial, there is no evidence to support the plaintiff’s waiver of her legal right to sue for injuries, as distinct from evidence to support a willingness to assume the risk of injury itself. There is no evidence that the plaintiff and defendant turned their minds to the question of legal liability, and either expressly or tacitly made an agreement to waive liability that could be supported on basic contract law principles.

[9] In conclusion on this point, there is no evidence to support the defence of volenti; therefore that defence should not be put to the jury.

The Court did, however, go on to permit the Jury to hear evidence of the Plaintiff’s level of intoxication finding that “ here the evidence establishes that the plaintiff and defendant were together drinking over the evening and consuming roughly the same number of drinks (the evidence in this case), the level of the plaintiff’s intoxication is also relevant to her awareness of how intoxicated the defendant was at the time she let him drive her car.”.  Madam Justice Fenlon held this evidence was relevant in deciding whether the Plaintiff was ‘contributorily negligent‘ for riding as a passenger with a driver who had been drinking.

Jury Instructions For ICBC Injury Claims With Multiple Years of Past Wage Loss

Written by admin on . Posted in Civil Procedure, ICBC Wage Loss, Jury Trials, Uncategorized. 47 Comments on Jury Instructions For ICBC Injury Claims With Multiple Years of Past Wage Loss

If you have an ICBC Injury Claim heading for a Jury Trial reasons for judgement were released today demonstrating an effective ‘charge‘ to the Jury where multiple years of past income loss are at issue.
Section 98 of the BC Insurance (Vehicle) Act limits past income loss awards to ‘net’ income loss in negligence claims stemming from BC motor vehicle collisions (Click here to read my previous post on this topic for some background).   This limitation in law can significantly reduce a Plaintiff’s damages in a BC Injury Claim and reasons for judgement were released today demonstrating this.
In today’s case (Wittenberg v. Ellis) the Plaintiff sued for damages as a result of a 2005 car crash.  After a jury trial damages of over $2 Million dollars were awarded which included an award for $1,420,000 in past income loss.  The court was asked to make the appropriate deduction under s. 98 of the Insurance (Vehicle) Act and ultimately decided that the past wage loss had to be reduced by $594,774 in order to comply with the legislation.
In a recent case by the BC Court of Appeal (Lines v. Gordon) the Court clarified how past income awards by juries will be taxed to comply with section 98.  Specifically the Court of Appeal held that “There will be a wide variety of circumstances facing trial judges.  In each case, the trial judge will have to decide whether it is appropriate in the circumstances before him or her to calculate net income loss on the basis of one period, calendar-year periods or other multiple periods.  In making a decision in this regard, the trial judge should consider all of the circumstances and apply s. 98 in a manner that is most consistent with the principles of damage assessment to which I have referred. ”
Today’s case demonstrates keen trial skills by the Plaintiff’s lawyer as he asked the judge to instruct the Jury to focus on the claimed income loss on a year by year basis.  The Jury did indeed award damages on a year by year basis.  As a result Madam Justice Boyd was able to assess the income tax consequences for each year.  If the Plaintiff’s lawyer was not savvy enough to get this instruction the Jury could have awarded the past income loss as a lump sum and the award could have been taxed as if the money was all earned in one tax year.  This would have resulted in a significantly greater reduction for the Plaintiff.
This case also addressed whether a personal plaintiff can use a corporate tax rate when there is evidence that the past income claimed would have been earned through a corporation.  Madam Justice Boyd held that s. 98 does not permit this and Plaintiff’s need to have past income taxed based on personal tax rates, specifically she held as follows:

[39] I agree with the defence submission that this is the exact result which would occur if the plaintiff at bar is permitted to rely on a corporate tax rate for the bulk of his income loss award.  Like the RRSP deduction, corporate tax rates offer the deferral of the personal tax burden, but only until the owner/shareholder withdraws the corporate funds for personal use, at which time personal income tax must be paid on the funds.  As the award for net income loss will be paid to Mr. Wittenberg and not to his corporation, in effect, it will be as if earnings had been withdrawn from the corporation and taken into Mr. Wittenberg’s personal income.

[40] Permitting the plaintiff to rely on corporate tax rates for part of his income loss award in this case would enable him to avoid entirely his statutory obligation to pay personal income tax rates on personal income theoretically drawn from the corporation.  The result would be over-compensation.  Such an outcome would consequently place Mr. Wittenberg in a better position than he would have been in if he had not been injured.  In my view, this result is impermissible under the Insurance (Vehicle) Act, income tax legislation, and the general principles of damage assessment noted above.

[41] The correct approach is for the jury award for past income loss to be taxed at the personal income tax rate, as required by s. 95 of the Act.