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Lawyers Hiring Lawyers – A Reasonable Disbursement?

Written by admin on . Posted in Civil Procedure, Uncategorized. 62 Comments on Lawyers Hiring Lawyers – A Reasonable Disbursement?

(Please note the case discussed in the below article was overturned by the BC Court of Appeal.  You can find my summary of the Appeal Judgement here)
Very interesting reasons for judgment were released today by the BC Supreme Court dealing with the recovery of legal fees after a BC Personal Injury Lawsuit.  Before getting into the facts of this case, however, some brief background is necessary.
Generally speaking when a party sues and succeeds in a BC Supreme Court lawsuit he/she is entitled to Court “Costs” which compensate the successful party for having to go through the hassle of a formal lawsuit.
These “costs” have nothing to do with the party’s actual lawyer fees, rather they are set by a Tarriff and the amount of costs the party is entitled to is generally tied to the number of steps they took in the lawsuit.  In addition to ‘costs’ a successful litigant is entitled to claim reasonable disbursements (money spent on advancing the case such as court filing fees, expert witness costs etc.).
Interesting reasons for judgement were released today dealing with whether a litigant’s actual expense for hiring a lawyer could be recovered after a lawsuit.  The general answer to this question is no, however, on the unique facts of this case the Plaintiff was entitled to recover the actual costs of hiring one of his lawyers as a disbursement.
In today’s case  (Baiden v. Manji et al) the Plaintiff sued various defendants for personal injuries.  Before the matter could proceed to trial the Defendant’s raised a “s. 10 WCB Defence”.   A section 10 defence, when successful, prevents a plaintiff from suing in court where the Plaintiff is injured while acting within the scope and course  of his/her employment and the at fault entity is also a person or employer that caused the accident in the course of their employment.  In these circumstances the Plaintiff must turn to WCB for compensation.
Once this defence is raised, BC Courts cannot deal with its merits rather under s. 257 of the Workers Compensation Act the Workers Compensation Appeal Tribunal (WCAT) has the exclusive jurisdiction to determine the status of parties to a legal action.  This is frustrating to Plaintiffs because if this defence is pursued the lawsuit is basically put on hold, a hearing has to be had at WCAT, and only if the defence fails at WCAT can the Plaintiff carry on with their lawsuit.
In today’s case this is exactly what happened.  The Plaintiff had to go through with a WCAT hearing before his lawsuit was heard in court.  In doing so the Plaintiff hired a second lawyer to deal with the WCAT.   His legal bill for this second lawyer came to $8,400.
The s. 10 defence did not succeed and the WCAT found that “the injuries to the plaintiff did not arise out of and int he course of his employment”.  The Plaintiff then proceeded to trial.  At the end of trial the Plaintiff asked the Court to allow the $8,400 as a disbursement.  Mr. Justice Chamberlist concluded that this was a reasonable disbursement and allowed the Plaintiff to recover this cost.  Specifically the Court reasoned as follows:

I am of the view that having reviewed the legislation applicable to hearings before WCAT that this is a situation where it is necessary that specialist counsel be hired to deal with the issue.

[22]         The Act discloses, through various sections, that the appeal tribunal is not a court of law like the Supreme Court of British Columbia…

[24]         These very simple observations exemplify the difference between proceedings in the Supreme Court of British Columbia and proceedings under the Workers Compensation Act.

[25]         As a result, I find attendances before the Workers’ Compensation Board and WCAT would be quite different from appearing in court and, as such, represent a need for specialization. …

As I have indicated above, a lawyer may be very competent in Supreme Court where he or she has been taught and practised the importance of legal precedent and is familiar with the rules of admissibility of evidence.  Section 246.1 and s. 250 of the Act obviously disclose some of the differences in appearing before WCAT and appearing before the Supreme Court….

it is not always the case that a disbursement for legal fees paid to another lawyer and reasonably incurred will be disallowed.  Experienced litigators should leave nothing to chance. …

[39]         The fact is that only after some years that Mr. Ward had been counsel for the plaintiff was s. 10 of the WCA brought into issue.  The affidavit filed by the plaintiff discloses that Mr. Ward had never before dealt with the WCAT.

[40]         I have reviewed the various submissions made to WCAT as set out in the affidavit of Karin Reinhold, along with the decision of WCAT, and I find that the retention of Mr. Ishkanian to act for the plaintiff before WCAT was reasonably incurred at the time and the account is reasonable.

[41]         The sum of $8,400.00 is allowed as a disbursement in this action.

Striking a Jury and Timing in a BC Personal Injury Lawsuit

Written by admin on . Posted in Civil Procedure, Jury Trials, Uncategorized. 56 Comments on Striking a Jury and Timing in a BC Personal Injury Lawsuit

When personal injury claims, including ICBC claims, are prosecuted in the BC Supreme Court either side has the right to elect trial by jury.  (The exception to this rule is when the claim is prosecuted under BC’s fast track Rules 66 or 68).
For a party to elect trial by Jury they simply need to give notice in accordance with Rule 39(26).
If an opposing party wishes to challenge the election for a jury trial they can oppose it pursuant to Rule 39(27) which holds in part that:

(27) Except in cases of defamation, false imprisonment and malicious prosecution, a party to whom a notice under subrule (26) has been delivered may apply

(a)  within 7 days for an order that the trial or part of it be heard by the court without a jury on the ground that

(i)  the issues require prolonged examination of documents or accounts or a scientific or local investigation which cannot be made conveniently with a jury, or

(ii)  the issues are of an intricate or complex character […]

What if a party opposes trial by jury but fails to challenge the jury election within the 7 day limitation period set out in Rule 39(27)?  Are they out of luck?  Not necessarily and reasons for judgment were released yesterday by the BC Supreme Court, New Westminster Registry, dealing with this are of the law.

In yesterday’s case (Gulamani v. Chandra) the Plaintiff was involved in 2 motor vehicle accidents 10 years apart.  One of the Defendant’s chose to have the case heard by judge and jury.  The Jury notice was filed in 2003.  The Plaintiff brought an application to dismiss the jury notice years after it was filed.

One way to challenge a jury notice outside of the 7 days required by Rule 39(27) is to do so at a pre-trial conference.  This is so because s. 35(4)(a) of the current Supreme Court Rules permits a judge or a master at a pre-trial conference to order that a “trial…be heard by the court without a jury, on any of the grounds set ouyt in Rule 39(27)“.  Yesterday’s case, however, was not heard at a pre-trial conference and this subrule did not assist the Plaintiff.

Rule 3(2) was of assistance which states that:

The court may extend or shorten any period of time provided for in these rules or in an order of the court, notwithstanding that the application for the extension or the order granting the extension is made after the period of time has expired.

In yesterday’s case Madam Justice Arnold-Bailey held it was appropriate to extend the time permitted to challenge the Jury Notice under Rule 3(2) and ultimately ordered that the trial proceed by judge alone.  (the judgement is worth reviewing in full for anyone interested in the factors courts consider when considering whether the trial will require a ‘prolonged examination’ or is too “intricate or complex” to be tried by a jury).  In so ordering the Court summarized and applied the law with respect to late jury strike applications as follows:

[19] In Reischer v. Love & ICBC, 2005 BCSC 1352, the court was faced with similar issues in relation to an application to strike a jury notice in the context of two actions that were going to be heard together.  Well after the original jury notice for the first action was filed, but shortly after the court set a new trial for both actions to be heard together, the plaintiff brought an application to have the jury notice struck.  Drost J. first cited the settled law, explaining that the mode of trial selected for the first action is what determines the mode of trial for the several actions to be heard together.  From this principle flows the further settled point that it is the original jury notice that must be considered with regard to Rule 39(27).  In that case, as well as the case at bar, the seven day time limit had clearly passed.

[20] Drost J. then addressed Rule 35(4)(a) and held that since the application occurred outside the scope of a pre-trial conference, he could not rely upon that section to strike the jury notice either.  These circumstances also parallel the case at bar.

[21] Finally, Drost J. turned to the general judicial discretion to extend time limits afforded in Rule 3(2) and stated (at paras. 37-38) that there are two questions to consider in the circumstances: 1) whether, at an early stage of the proceedings, the plaintiff formed an intention to strike the jury notice, and 2) whether there has been such a change in circumstances as to materially alter the character of the proceedings and render them clearly inappropriate for a trial by judge and jury.  The court answered both questions in the negative, finding in particular that all of the circumstances of the combined actions were known to the plaintiff even when the initial jury notice was filed.

[22] Despite this, the court in Reischer still allowed the time extension for the application to strike the jury notice under Rule 3(2) by relying on the authority of Harder v. Nikolov, [2001] B.C.J. No. 1528 (S.C.), where the court held at para. 17 that lack of timeliness does not necessarily preclude an application to strike a jury notice.  Rather, the time restrictions set out in Rule 39(27) may be overcome if consideration of trial fairness so requires.  In Reischer, at para. 41, Drost J. stated that but for the application of this principle from Harder, the court would have dismissed the plaintiff’s application.

[23] With these decisions in mind, I note firstly that unlike the plaintiff in Reischer, the plaintiff in this matter could not have been aware of all the circumstances in relation to the combined actions dealing with her motor vehicle accidents at the time the original jury notice was filed.  Whereas the accidents in Reischer occurred a relatively short time apart, the accidents in this case occurred a decade apart and the court proceedings in relation to the first accident were essentially at the point of trial before the plaintiff could have possibly been aware of the circumstances arising from the second accident.  I also note that the plaintiff advised of her intention to strike the jury notice within five days of the Court adjourning the first trial and filed her notice of application to strike the jury notice before the Court reset the trial of the two actions.

[24] As to the second question set out in Reischer, and unlike the court’s finding in that case, I do find that a significant change in circumstances has occurred here.  The trial will now be significantly longer and will involve complex legal issues related to causation, including the defence of novus actus, in the context of two accidents that occurred a decade apart.  I find that this is a sufficient change to the character of the proceedings such that a consideration, at least, of the plaintiff’s application to strike the jury notice is necessary and just.

[25] Alternatively, like the court in Reischer, I would in any event also apply Harder and find that the lack of timeliness in the plaintiff’s application is overcome by considerations of trial fairness.

[26] In short, I do not give effect to the Chandra and Doorandish defendants’ initial objections to this application, and I will now turn to consider its merits.

BC Injury Claims and the Local Government Act

Written by admin on . Posted in Civil Procedure, Uncategorized. 73 Comments on BC Injury Claims and the Local Government Act

Limitation periods can be complex.  Typically if a person is injured through the negligence of another in British Columbia a 2 year limitation period applies to bring a claim for damages in Court.  However, there are numerous exceptions and restrictions to this general rule and one restriction is contained in the Local Government Act.
If you are injured and can bring a claim against a municipality you will lose your right to make your claim unless you comply with s. 286 of the local government act which provides as follows:
Immunity Unless Notice Given To Municipality After Damage
(1) A municipality is in no case liable for damages unless notice in writing, setting out the time, place, and manner in which the damage has been sustaibed, is delivered to the municipality within 2 months from the date on which the damage was sustained.

(2)        In case of the death of a person injured, the failure to give notice required by this section is not a bar to the maintenance of the action.

(3)        Failure to give the notice or its insufficiency is not a bar to the maintenance of an action if the court before whom it is tried, or, in case of appeal, the Court of Appeal, believes

(a)        there was reasonable excuse, and

(b)        the defendant has not been prejudiced in its defence by the failure or insufficiency.

This limitation arises in many different cases including BC Car Crash cases.  For example, if you are injured by a Municipal worker in the course of his employment or someone driving a Municipal owned vehicle at the time of a crash this limitaiton can be triggered.  This obscure and very short limitaiton has been the death of many personal injury claims over the years and reasons for judgement were released today by the BC Suprene Court showing this ‘immunity’ in action.

In today’s case (Persall v. Bond) the Plaintiff was injured in a 2006 motor vehicle collision.  The Plaintiff brought a claim against the City of Surrey claiming that “the City failed to design, inspect and maintain the Intersection properly“.

The Plaintiff did not give the City written Notice in 2 months as required by the Local Government Act.  The City of Surrey brought an application to dismiss the Plaintiff’s claim against them for this failure and this motion was granted.

In granting the motion Madam Justice Dickson summarized and applied the law as follows:

[16]         When notice is not given to a municipality within two months in accordance with the statutory obligation, the onus is on the plaintiff to prove a reasonable excuse:  Keen v. City of Surrey, 2004 BCSC 1161, ¶ 17.

[17]         What may constitute a reasonable excuse will depend on the circumstances of each case.  Courts in British Columbia have taken various factors into account in assessing whether a plaintiff has a reasonable excuse for providing late notice.  They include:

a)       The plaintiff’s knowledge of the statutory obligation to provide notice;

b)       Actions or representations by the local government which have the effect of lulling the plaintiff into a false sense of security;

c)       The plaintiff’s awareness of his/her injuries and awareness of the seriousness of his/her injuries;

d)       The plaintiff’s awareness of the involvement of the local government in the matter giving rise to the litigation; and

e)       The plaintiff’s capacity to provide notice.

Griffiths v. New Westminster (City of), 2001 BCSC 1516
Keen v. City of Surrey, supra
Teller v. Sunshine Coast (Regional District of), 1990 CanLII 2131 (B.C.C.A.)

[18]         In Keen, Burnyeat J. held that ignorance of the law alone will not constitute a reasonable excuse for failure to provide timely notice pursuant to s. 286 of the Act.  Rather, it is but one of the factors to be taken into account:  Teller.

[19]         When a plaintiff acts through a solicitor, responsibility for providing a municipality with timely notice of a damages claim is shared.  In Horie v. Nelson (1987) Can LII 2508 (B.C.C.A.), a majority of the British Columbia Court of Appeal held that a solicitor’s negligent failure to deliver timely notice does not necessarily constitute a reasonable excuse.  In response to an argument that the appellants relied on their solicitor to deliver notice, but the solicitor inexplicably failed to do so, MacDonald J.A. stated:

[18]      … That approach can only help the appellants if they can put forward their own reasonable conduct and dissociate themselves from the failure of their solicitor.

[19]      I agree with Locke J. when he said in the course of his reasons [p. 112]:  “I am driven further by the wording of the section of our statute to hold that the responsibility for delivering the notice is collective in that, if the notice is not delivered, it does not matter by whose hand the failure occurred”.  The section requires reasonable excuse for “failure to give the notice”.  That means that when a party acts through a solicitor the conduct of both must be examined to determine whether there was reasonable excuse for failure to give the notice.

[20]      In my opinion the judge was correct in his conclusion. I would dismiss the appeal.

[20]         When a plaintiff is able to establish a reasonable excuse for failing to provide timely notice, the Court must go on to consider whether the municipality has nevertheless been prejudiced in its defence.  If so, the action against it cannot be maintained despite the existence of a reasonable excuse.

[21]         The onus is on the municipality to prove it has suffered prejudice as a result of receiving delayed notice.  Prejudice may be presumed on the basis of inordinate delay.  In such circumstances, however, it is open to the plaintiff to rebut the presumption of prejudice:  Griffiths.

[22]         In most cases, the issue of prejudice cannot be determined until the end of the trial.  This is so because whether a defendant has, in fact, been prejudiced will depend on the allegations pursued by the plaintiff at trial and the conclusions the Court is asked to draw:  Teller.

DISCUSSION

[23]         The City submits that Mr. Persall has not provided an excuse, reasonable or otherwise, for his failure to provide timely notice of his damages claim to the municipality.  It argues that knowledge of the statutory obligation should be imputed to Mr. Persall, given his failure expressly to deny it, and presumed of his previous solicitors.  Taking into account Mr. Persall’s apparent ability to instruct counsel from the outset despite his injuries, in the City’s submission there is no basis for a finding of reasonable excuse.

[24]         The City also submits that it has been demonstrably prejudiced by the long delay in notification.  The Intersection’s condition at the time of the Accident is presently unknown and would likely have been easier to ascertain had timely notice been received.  In addition, the 18-month delay at issue is excessive and inordinate.  In these circumstances, prejudice should be presumed.

[25]         Mr. Persall responds that his serious injuries, together with his reasonable conduct in leaving the matter of notification to his solicitors, constitute a reasonable excuse.  He submits the Court should infer he was personally unaware of the notification requirement and unable fully to instruct counsel until he was released from GF Strong in January, 2008.  He emphasises that notice was provided shortly after his present solicitors were retained, but concedes his previous solicitors’ failure to provide timely notice is unexplained.  In the event a reasonable excuse is found, he submits the issue of prejudice should be determined at trial as evidence of the Intersection’s condition at the relevant time may well come to light.

[26]         I accept that Mr. Persall’s discovery evidence as to his knowledge of the statutory notice requirement is less than crystal clear.  I am nonetheless satisfied that an absence of personal knowledge can be reasonably inferred and conclude he was personally unaware.  This does not, however, constitute a reasonable excuse, given Mr. Persall’s demonstrated capacity to instruct counsel within weeks of the Accident and his previous solicitors’ unexplained failure to notify the City of his damages claim.

[27]         It is not difficult to posit various explanations for the failure of Mr. Persall’s previous solicitors to provide the City with written notice of his damages.  One is that they formed the view the City would not be held liable and chose consciously not to notify.  Another is that they were unaware of, or insufficiently attentive to, the statutory notice obligation.  In the absence of evidence on the point, however, a factual conclusion simply cannot be reached.

[28]         As stated by MacDonald J.A. in Horie, when a plaintiff acts through a solicitor responsibility for delivering notice of damages in accordance with the Act is collective.  Accordingly, the Court must examine the conduct of both to determine whether there was a reasonable excuse for late notification.  In my view, the reason is obvious.  A plaintiff will not be excused from the statutory notification obligation merely because he or she retains a new solicitor who adopts a new approach to a potential claim for damages against a municipality.  Were it otherwise, the Legislature’s decision to impose a short limitation period for such claims would be easily overcome.

[29]         In this case, I am satisfied that Mr. Persall acted through his previous solicitors from no later than October 10, 2006 in connection with the Accident.  I am unable to reach a conclusion, however, as to why those solicitors did not provide the City with written notice of his damages as required by the Act.  That being so, I am unable to determine whether Mr. Persall does or does not have a reasonable excuse for his failure to comply with his statutory obligation to provide timely notice to the City.  The onus is on Mr. Persall to establish a reasonable excuse.  The onus has not been met.

[30]         If I am wrong and Mr. Persall does have a reasonable excuse as a result of his injuries and the unexplained inaction of his previous solicitors, I agree with him that the issue of prejudice cannot be determined until the end of the trial.

BC Injury Claims and "Responsive" Expert Opinion Evidence

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

Currently the law relating to the disclosure of expert opinion evidence is governed by Rule 40A of the BC Supreme Court Rules.   (click here to read my previous posts about the upcoming changes to the Rules of Expert Opinion Evidence).
If a party wishes to introduce expert opinion evidence at trial Rule 40A requires that “a copy of the statement is furnished to every party of record at least 60 days before the statement is tendered in evidence.”
One noteworthy exception to this is the rule of “responsive” opinion  evidence.  If the defence in a personal injury trial obtains a report that does not offer a fresh opinion but rather is an opinion that is ‘truly responsive to evidence introduced by the opposing party”  the 60 day notice period does not apply.
Reasons for judgement were released today by the BC Supreme Court dealing with this area of law.  In today’s case (MacEachern v. Rennie) “the plaintiff suffered traumatic brain injury when her head struck the side of a large tractor-trailer as she was walking or riding a bicycle along the side of King George Highway” in 2005.  One of the Defendants in the Plainitiff’s injury claim sought to introduce the report of a toxicologist which concluded that “the plaintiff was cognitively impaired from the ingestion of drugs at the time of the accident, and that she had permanent brain damage from drug abuse prior to the accident.”
This report was served outside of the requirements of Rule 40A.  The defendant tried to rely on the ‘responsive‘ evidence exception to Rule 40-A and have the report introduced into evidence despite its late disclosure (the report in fact was exchanged after the Plaintiff concluded her portion of the trial).
In refusing to enter the report into evidence Mr. Justice Ehrcke gave the following consice and handy definition of the law of rebuttal opinion evidence in the BC Supreme Court:
The right to introduce opinion evidence without notice is limited to rebuttal evidence that is truly responsive to evidence introduced by the opposing party, and cannot be used as a masquerade for introducing a fresh opinion: Sterritt v. McLeod (2000), 74 B.C.L.R. (3d) 371 (C.A.); Stainer v. Plaza (2001), 87 B.C.L.R. (3d) 182 (C.A.). Where a defendant elicits opinions in cross-examination of a plaintiff’s witness that were not in that witness’s report, the defendant cannot use his own elicitation to justify calling a defence expert to give an opinion on the topic without notice.

Can You Record an "Independent Medical Exam" In an ICBC Injury Claim?

Written by admin on . Posted in Civil Procedure, independent medical exams, Uncategorized.

When ICBC sends you to an ‘independent’ medical exam for the purposes of litigation in the BC Supreme Court are you permitted to record the examination?
This issue was dealt with by the BC Court of Appeal in a 2006 decision (Wong v. Wong) in which the Court held that BC Courts do have the authority to permit audio recording as part of an order for an independent medical exam but that this discretion should be exercises sparingly.  Specifically the BC Court of Appeal said the following about the courts ability to permit audio recording as a term of an independent medical exam:

[44]           One would think that if the tape recording of a medical or psychiatric examination was thought likely to enhance the quality of such an examination, the medical profession would long since have adopted the use of audio tapes as a general practice.  The material before us shows that use of an audio tape recorder is not only not considered to be an advantage, but rather can be an impediment to a proper, independent examination.  Dr. Smith says that use of an audio tape recorder will alter the nature of a psychiatric exam, and may make the examinee reluctant to answer some questions.  These observations have the ring of simple common sense.  In fact, hundreds if not thousands of psychiatric examinations of both infant and adult plaintiffs have been conducted in this province under Rule 30, or its predecessors, without any suggestion that they might have been of better quality if tape recorded.

[45]           It may well be that the recollection of a plaintiff as to what was said on an examination will differ from the doctor’s notes or recollection.  As Brooke J.A. observes, “the rules proceed on the basis that there may be some disparity” in recollections.  But these differences can be tested in the usual way, as they have been for years.  As in the Bellamy case “… there is no suggestion on the record that any injustice has occurred.”

[46]           It was argued before us that an audio tape recording would provide the “best evidence” at trial of what was said in the examination, in the event of a conflict between the examinee and the doctor, and that the courts should endorse the use of technologies available to provide the best evidence.  The oral history and other information provided by the person being examined is often an important part of the foundation on which the examiner’s opinion is based.  However, any advantage to be gained by tape recording the interview must be weighed against the extent to which it would impede or impair a full and proper examination.  Absent unusual circumstances, I am not persuaded that the presumed advantage would outweigh the disadvantages.

[47]           Apart from any impairment of the examination itself, there are other concerns related to the audio taping of medical examinations.  No matter how good the technology, there will be failures.  A tape recording will no doubt be transcribed and there will be issues before and at trial over the transcription.  The transcript will add an unwarranted level of importance to the oral portion of examination, and another layer of adversarial complexity to the trial process.  None of these difficulties need be encountered.

[48]           While I am of the view that a master or judge has a discretion under Rule 30 to permit the use by a plaintiff of an audio tape recorder on an independent medical examination, it is in my opinion a discretion that should be exercised rarely and with restraint, and only in circumstances where there is cogent evidence that the use of an audio tape recording will advance the interests of justice.

Today, reasons for judgement were released by the BC Supreme Court further dealing with this issue.  In today’s case (Kelly v. Sanmugathas) the Defendants sought to have a plaintiff examined by a psychiatrist.  The Plaintiff wished to have the examination recorded.  In permitting the recording Master Donaldson summarized and applied the law as follows:

[2] A number of authorities were cited specifically referring to Dr. Davis.  The decision of the Court of Appeal in Wong stands for the current state of law in British Columbia, namely, that if there is to be a recording it would be only in very limited situations.  Counsel on behalf of the plaintiff referred me to a number of decisions where it was concluded that Dr. Davis was an advocate for the defence and matters of that nature.  Those decisions do not concern me in this instance and do not lead me any closer to reaching the conclusion that the plaintiff should be able to record her visit with Dr. Davis.  What does give me concern are two references, Sinclair, Mr. Justice Hood in 2002, and McGowan, a 1992 decision of Madison, J. in the Yukon, both of which make reference to mistakes having been made.  Fraser, J. in the Edmonds case where he stated: “if [sic] mistakes, likely they were those of Dr. Davis”.  In the McGowan decision, Mr. Justice Madison stated “his opinion was thus based on an erroneous view of the facts.”

[3] Clearly it will be easy enough for a judge in this action to conclude how he or she should assess the opinion of Dr. Davis, but of concern to me, is whether or not Dr. Davis takes an accurate history.  Clearly the recollection of the plaintiff as to the history taken and the reliance on clinical records and the like, will assist the court in determining whether or not Dr. Davis in fact has misapprehension of the facts or he in fact was accurate so far as the facts given are concerned.

[4] I have concluded that recording is the least invasive way of ensuring that Ms. Kelly’s recollection of the facts which have been elicited from her and Dr. Davis’ recollection of the facts elicited from her are accurate.  Her evidence, by way of affidavit, interestingly enough, seems to indicate, if you will, self generated concern about Dr. Davis once she had discussions with her counsel about Dr. Davis.  It is also interesting to note that apparently her concerns only arose after she was ill and could not attend the 28 of May medical examination which had been arranged with Dr. Davis.

[5] Notwithstanding this state of affairs, I am satisfied there should be a recording.  It will be a dual recording:  one tape will be given to Dr. Davis and the other can be retained by Ms. Kelly.

Can a Plaintiff's Treating Doctor Give Expert Opinion Evidence for the Defence in an Injury Claim?

Written by admin on . Posted in Civil Procedure. 104 Comments on Can a Plaintiff's Treating Doctor Give Expert Opinion Evidence for the Defence in an Injury Claim?

Reasons for judgement were released today by the BC Supreme Court dealing with this interesting issue.
In today’s case (MacEachern v. Rennie) the Plaintiff ‘suffered traumatic brain injury when her head came into contact with a tractor trailer while she was walking or riding her bicycle along King George Highway in Surrey, BC”
In the years before the collision the Plaintiff was treated by a physician, Dr. Dowey, who apparently “prescribed methadone (to the plaintiff) as part of her treatment for heroin addiction“.
In the months leading up to the trial the Defence lawyers had a pre-trial interview with the doctor which was not consented to by the Plaintiff’s lawyers.  After speaking with this doctor the defendants decided to rely on him as a witness in their case.
The Defendants called the doctor to give evidence and sought to have the doctor qualified as an expert to give medical opinions about the Plaintiff’s pre-accident condition and prognosis.  The Plaintiff opposed this for several reasons and argued that “it was improper for Dr. Dowey to have pre-trial meetings with counsel for the defendants in the absence of plaintiff’s counsel“.
In permitting the doctor to testify as an expert witness for the defence Mr. Justice Ehrcke of the BC Supreme Court summarized and applied the law as follows:
[22] Plaintiff’s counsel submits that as a treating physician, Dr. Dowey owed the plaintiff a duty of confidentiality not to divulge her personal information without her consent, and that Dr. Dowey breached his duty of confidence when he spoke with counsel for the CN Defendants in the their absence. The submission is that as a result, the CN Defendants should not be permitted to lead evidence of Dr. Dowey’s expert opinions….

[29]         The only question before me, then, is whether Dr. Dowey should be prohibited from giving opinion evidence. He has been subpoenaed by the CN Defendants. As a witness under subpoena, he must answer the questions asked of him unless there is a basis in law for excluding his evidence. The plaintiff does not make a claim of privilege, but rather submits that to permit Dr. Dowey to give expert opinion evidence would conflict with his duty of confidentiality.

[30]         The plaintiff relies on a decision of the Ontario Superior Court of Justice, Burgess v. Wu (2003), 68 O.R. (3d) 710 (Sup. Ct. of Justice). In that case, Ferguson J. emphasized the distinction between pre-trial disclosure and the admissibility of evidence at trial, as well as the distinction between a claim of privilege and the duty of confidentiality. He wrote at para. 55-57:

[55]      It is important at the outset to distinguish between access at trial and access before trial. Once a physician takes the witness stand, and regardless of whether he or she is called by the patient or subpoenaed by the defence, the physician must answer all relevant questions subject to a ruling in unusual circumstances that some subjects are privileged (see the discussion below re M. (A.) v. Ryan, infra). It is irrelevant whether or not the patient consents. The physician cannot refuse to answer on the ground of a duty of confidentiality:  Metropolitan Life Insurance Co. v. Frenette, [1992] 1 S.C.R. 647, 89 D.L.R. (4th) 653, at p. 687 S.C.R., p. 681 D.L.R., per L’Heureux-Dubé J.

[56]      This rule is consistent with the rules of ethics promulgated by the profession and by regulation which specifically state that the duty does not apply to situations where disclosure is “required by law”.

[57]      The issue of concern in the present case is access before trial. The general question is:  what is required by law outside the witness stand? In this context the primary restraint is the duty and right of confidentiality, and not the evidentiary issue of legal privilege.

[31]         Counsel for the plaintiff points out that Ferguson J. went on to hold that the doctor who had treated the plaintiff in that case would be prohibited from testifying as an expert for the defence. Counsel urges me to make a similar ruling here.

[32]         There are, however, two important distinctions between that case and this. First, Ferguson J. made a finding that there had been improper pre-trial contact between the witness and counsel for the defence, and that finding was instrumental in his decision that the witness should not be permitted to testify as an expert for the defence. He wrote at para. 134: “The party at fault should not benefit from the fruits of the impropriety.”  On the facts of the present case, I have found that there was no impropriety in the meeting between Dr. Dowey and counsel for the CN Defendants.

[33]         The second distinction is in the nature of the opinion evidence that is being sought. In Burgess v. Wu, the tenor of the opinion sought was expressed in a letter quoted at para. 21:

We are interested in your views, as a forensic psychiatrist, as to the likelihood that Mr. Burgess would have committed suicide (regardless of the prescription of Seconal), his prognosis otherwise, and the probability of him returning to a functioning lifestyle.

[34]         That is, the opinion sought in Wu related to the patient’s prognosis after the period of time when the witness had treated him. In the present case, counsel for the CN Defendants have stated that they do not seek any opinion from Dr. Dowey about Ms. MacEachern’s prognosis after the last date he saw her, November 29, 2004. More specifically, they do not seek from him an opinion about whether she likely would have continued using drugs after September 2005 had it not been for the accident. They might attempt to elicit such an opinion from another expert who did not treat the plaintiff, but they will not seek such an opinion from her treating physicians.

[35]         Counsel for the plaintiff has referred to the Personal Information Protection Act, S.B.C. 2003, c. 63, but its provisions do not support the plaintiff’s position since s. 3(4) of thatAct provides:

3(4) This Act does not limit the information available by law to a party in a proceeding.

[36]         In the circumstances of this case, I do not find that the duty of confidentiality would prevent Dr. Dowey from giving relevant opinion evidence as a medical doctor in relation to the period of time that she was his patient.

The New BC Supreme Court Civil Rules and Admissibility of Expert Reports

Written by admin on . Posted in Civil Procedure, Uncategorized. 109 Comments on The New BC Supreme Court Civil Rules and Admissibility of Expert Reports

One of the biggest changes in the new BC Supreme Court Civil Rules (click here and here to read my previous posts on these rules) are those with respect to the requirements for admissibility of expert reports.  These changes are significant for ICBC and other Personal Injury Lawyers because these types of lawsuits are heavily dependent on expert opinion evidence.  From medical doctors to engineers to vocational specialists, personal injury trials are perhaps more reliant on expert evidence than any other type of trial.
One thing we should all keep in mind is that as of July 1, 2010 ongoing lawsuits will be deemed to be started under the new rules.  This means that any report ordered now that will be used in trial after July 1, 2010 will have to comply with the new rules.  For this reason it is vital that lawyers and expert witnesses alike become immediately familiar with the new Civil Rules.
Under the current Supreme Court Rules expert evidence requirements are governed by Rule 40-A.  These are rather modest.  Rule 40A(2) requires that expert reports be exchanged “to every party of record at least 60 days before the statement is tendered in evidence” and Rule 40A(5) requires that the reports set out “the qualifications of the expert, the facts and assumptions on which the opinion is based, and the name of the person primarily responsible for the content of the statement”
Under the new BC Civil Rules requirements of expert reports are set out in Rule 11-6.  Below I reproduce Rule 11-6 in its entirety.  On review it is clear that the new rule has significant changes compared to the current Rule 40A.
One of the most obvious changes is the time when expert evidence needs to be exchanged.  Currently reports need to be exchanged 60 days before they are put into evidence.  The new rule requires reports to be exchanged at least 84 days ‘before the scheduled trial date‘ and goes on to create a second category of reports called “responding reports” which need to be served “at least 42 days before the scheduled trial date”
The other significant change relates to requirements for admissibility.    Rule 11-6(1) requires experts to be much more clear and detailed about how they arrived at their opinions as compared to the current Rule 40A.  Although, to be fair, these changes are really little more than a codification of the common law that has developed around Rule 40-A.
The new rule also improves on the disclosure obligations to opposing counsel.  Under the current rule opposing counsel is not entitled to review the experts working files and materials until the expert takes the stand.  This can lead to unnecessary delay and surprise at trial.  Under the new Rule 11-6(8) opposing parties are entitled to fulsome pre-trial disclosure of the experts materials which will let lawyers better prepare for cross examination.
Other parts of Rule 11 contain interesting provisions about court appointed experts, joint experts and the role of the expert in the lawsuit.  I hope to write about these shortly.  Overall these improvements will likely be for the better, however, lawyers and doctors can be stubborn and it may take some adjustment for all of us to get used to these changes.
RULE 11-6 – EXPERT REPORTS
Requirements for report
(1) An expert’s report that is to be tendered as evidence at the trial must be signed by the expert, must include the certification required under Rule 11-2 (2) and must set out the following:
(a) the expert’s name, address and area of expertise;
(b) the expert’s qualifications and employment and educational experience in his or her area of expertise;
(c) the instructions provided to the expert in relation to the proceeding;
(d) the nature of the opinion being sought and each issue in the proceeding to which the opinion relates;
(e) the expert’s opinion respecting each issue and, if there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range;
(f) the expert’s reasons for his or her opinion, including
(i) a description of the factual assumptions on which the opinion is based,
(ii) a description of any research conducted by the expert that led him or her to form the opinion, and
(iii) a list of every document, if any, relied on by the expert in forming the opinion.
Proof of qualifications
(2) The assertion of qualifications of an expert is evidence of them.
Service of report
(3) Unless the court otherwise orders, at least 84 days before the scheduled trial date, an expert’s report, other than the report of an expert appointed by the court under Rule 11-5, must be served on every party of record, along with written notice that the report is being served under this rule,
(a) by the party who intends, with leave of the court under Rule 11-3 (9) or otherwise, to tender the expert’s report at trial, or
(b) if 2 or more parties jointly appointed the expert, by each party who intends to tender the expert’s report at trial.
Service of responding report
(4) Unless the court otherwise orders, if a party intends to tender an expert’s report at trial to respond to an expert witness whose report is served under subrule (3), the party must serve on every party of record, at least 42 days before the scheduled trial date,
(a) the responding report, and
(b) notice that the responding report is being served under this rule.
Supplementary report of joint or court-appointed expert
(5) If, after an expert’s report is served under subrule (3) (b), the expert’s opinion changes in a material way,
(a) the expert must, as soon as practicable, prepare a supplementary report and ensure that that supplementary report is provided to the party who served the report under subrule (3), and
(b) the party to whom the supplementary report is provided under paragraph (a) of this subrule must promptly serve that supplementary report on every other party of record.
Supplementary report of own expert
(6) If, after an expert’s report is served under subrule (3) (a) or (4), the expert’s opinion changes in a material way and the party who served the report intends to tender that expert’s report at trial despite the change,
(a) the expert must, as soon as practicable, prepare a supplementary report and ensure that that supplementary report is provided to the party, and
(b) the party must promptly serve that supplementary report on every other party of record.
Requirements for supplementary report
(7) A supplementary report under Rule 11-5 (11) or under subrule (5) (a) or (6) (a) of this
rule must
(a) be identified as a supplementary report,
(b) be signed by the expert,
(c) include the certification required under Rule 11-2 (2), and
(d) set out the change in the expert’s opinion and the reason for it.
Production of documents
(8) Unless the court otherwise orders, if a report of a party’s own expert appointed under Rule 11-3 (9) or 11-4 is served under this rule, the party who served the report must,
(a) promptly after being asked to do so by a party of record, serve on the requesting party whichever one or more of the following has been requested:
(i) any written statement or statements of facts on which the expert’s opinion is based;
(ii) a record of any independent observations made by the expert in relation to the report;
(iii) any data compiled by the expert in relation to the report;
(iv) the results of any test conducted by or for the expert, or of any inspection conducted by the expert, if the expert has relied on that test or inspection in forming his or her opinion, and
(b) if asked to do so by a party of record, make available to the requesting party for review and copying the contents of the expert’s file relating to the preparation of the opinion set out in the expert’s report,
(i) if the request is made within 14 days before the scheduled trial date, promptly after receipt of that request, or
(ii) in any other case, at least 14 days before the scheduled trial date.
Notice of trial date to expert
(9) The person who is required to serve the report or supplementary report of an expert under this rule must, promptly after the appointment of the expert or promptly after a trial date has been obtained, whichever is later, inform the expert of the scheduled trial date and that the expert may be required to attend at trial for cross-examination.
Notice of objection to expert opinion evidence
(10) A party who receives an expert report or supplementary report under this Part must, on the earlier of the date of the trial management conference and the date that is 21 days before the scheduled trial date, serve on every party of record a notice of any objection to the admissibility of the expert’s evidence that the party receiving the report or supplementary report intends to raise at trial.
When objection not permitted
(11) Unless the court otherwise orders, if reasonable notice of an objection could have been given under subrule (10), the objection must not be permitted at trial if that notice was not given.

New BC Supreme Court Civil Rules – Some Initial Thoughts

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

As I posted yesterday, the BC Government has announced a full overhaul of the current BC Supreme Court Rules to take effect on July 1, 2010. You can click here to read a full copy of the new Rules.  These new rules will apply to all BC Personal Injury and ICBC Claims prosecuted in the Supreme Court after they come into force.
I’ve now had a chance to review these new Rules in their entirety.  The first thing I noticed is that most of the new Rules are similar if not identical to the current ones in their wording.   This is very important as the countless precedents built up over the years interpreting the current rules should still be of significant assistance when applied to the new rules.
More than anything else, the new Rules are organized in a far better fashion than the current BC Supreme Court Rules.  This improvement is more coherent and logical and should make them easier to get through for people unfamiliar with Supreme Court Procedure.
In addition to improved organization, there are some significant changes made to the substance of these Rules.  None of these changes jumped out at me as particularly concerning for personal injury litigation and surprisinly the overall changes seem to be for the better.
For today’s post I’ll illustrate one example.   The current BC Supeme Court Rules have 2 competing ‘fast track litigation’ rules.  Rule 66 and Rule 68.  These rules both have some significant advantages and significant shortcomings for litigants.  These rules overlap and litigants wishing to take advantage of fast track litigation procedures are forced to choose between the 2 rules relative strengths and weaknesses.  Under the New Civil Rules these have been replaced with one “fast track litigation” rule.  This can be found in Part 15 of the new rules.
Rule 15, in my opinion, takes the best aspects of Rule 66 and 68 and leaves out most of their shortcomings. Rule 15, like Rule 68, applies to cases below $100,000.  It also applies to cases that can be completed in 3 days or less and this appears to be independent of the claims value.  This rule does away with the cumbersome ‘will say’ requirement of Rule 68 and allows 2 hour examinations for discovery.  This rule also increases the minimal costs allowable under Rule 66 and permits costs awards more reflective of conventional litigation in the BC Supreme Court.  The Rule also does away with the ‘one expert’ limit of Rule 68 which to date has kept most BC personal injury lawyers from using the rule.
Below I reproduce the new Rule 15 in full.  I’d be interested in the thoughts of other BC Injury Lawyers about the apparent improvements in this rule over our current fast track rules 66 and 68.
RULE 15-1 – FAST TRACK LITIGATION
When rule applies
(1) Subject to subrule (4) and unless the court otherwise orders, this rule applies to an action if
(a) the only claims in the action are for one or more of money, real property, a builder’s lien and personal property and the total of the following amounts is $100,000 or less, exclusive of interest and costs:
(i) the amount of any money claimed in the action by the plaintiff for pecuniary loss;
(ii) the amount of any money to be claimed in the action by the plaintiff for non-pecuniary loss;
(iii) the fair market value, as at the date the action is commenced, of
(A) all real property and all interests in real property, and
(B) all personal property and all interests in personal property claimed in the action by the plaintiff,
(b) the trial of the action can be completed within 3 days,
(c) the parties to the action consent, or
(d) the court, on its own motion or on the application of any party, so orders.
Subsequent filings
(2) If this rule applies to an action,
(a) any party may file a notice of fast track action in Form 61, and
(b) the words “Subject to Rule 15-1” must be added to the style of proceeding, immediately below the listed parties, for all documents filed after the notice of fast track action is filed under paragraph (a) or the court order is made under subrule (1) (d), as the case may be.
Damages not limited
(3) Nothing in this rule prevents a court from awarding damages to a plaintiff in a fast track action for an amount in excess of $100,000.
Rule does not apply to class proceedings
(4) This rule does not apply to a class proceeding within the meaning of the Class Proceedings Act.
Conflict
(5) These Supreme Court Civil Rules apply to a fast track action but in the event of a conflict between this rule and another rule, this rule applies.
When rule ceases to apply
(6) This rule ceases to apply to a fast track action if the court, on its own motion or on the application of any party, so orders.
Case planning conference required
(7) Subject to subrule (8), a party to a fast track action must not serve on another party a notice of application or an affidavit in support of an application unless a case planning conference or a trial management conference has been conducted in relation to the action.
Exception
(8) Subrule (7) does not apply to an application made
(a) for an order under subrule (6) that this rule cease to apply to the action,
(b) to obtain leave to bring an application referred to in subrule (9),
(c) under Rule 9-5, 9-6 or 9-7,
(d) to add, remove or substitute a party, or
(e) by consent.
Court may relieve
(9) On application by a party, a judge or master may relieve a party from the requirements of subrule (7) if
(a) it is impracticable or unfair to require the party to comply with the requirements of subrule (7), or
(b) the application referred to in subrule (7) is urgent.
Trial to be without jury
(10) A trial of a fast track action must be heard by the court without a jury.
Oral discovery
(11) Unless the court otherwise orders, in a fast track action the examinations for discovery of a party of record, including any person referred to in Rule 7-2 (1) (b) who is examined in relation to that party of record, by all parties of record who are adverse in interest must not, in total, exceed in duration
(a) 2 hours, or
(b) any greater period to which the person to be examined consents.
When discoveries must be completed
(12) Unless the court otherwise orders or the parties to the examination consent, all examinations for discovery in a fast track action must be completed at least 14 days before the scheduled trial date.
Setting of trial date
(13) If a party to a fast track action applies for a trial date within 4 months after the date on which this rule becomes applicable to the action, the registrar must set a date for the trial that is not later than 4 months after the application for the trial date.
If trial will require more than 3 days
(14) If, as a result of the trial management conference in a fast track action, the trial management conference judge considers that the trial will likely require more than 3 days, the trial management conference judge
(a) may adjourn the trial to a date to be fixed as if the action were not subject to this rule, and
(b) is not seized of the action.
Costs
(15) Unless the court otherwise orders or the parties consent, and subject to Rule 14-1 (10), the amount of costs, exclusive of disbursements, to which a party to a fast track action is entitled is as follows:
(a) if the time spent on the hearing of the trial is one day or less, $8,000;
(b) if the time spent on the hearing of the trial is 2 days or less but more than one day, $9,500;
(c) if the time spent on the hearing of the trial is more than 2 days, $11,000.
Settlement offers
(16) In exercising its discretion under subrule (15), the court may consider an offer to settle as defined in Rule 9-1.
Taxes to be added to costs
(17) If tax is payable by a party to a fast track action in respect of legal services, an additional amount to compensate for that tax must be added to the costs to which the party is entitled under subrule (15), which additional amount must be determined by multiplying the amount of costs to which the party is entitled under subrule (15) by the percentage rate of the tax.

More on BC Supreme Court Trials and Costs

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

I’ve previously posted that when a Plaintiff in a BC Supreme Court Lawsuit is awarded damages in the Small Claims Court Jurisdiction ($25,000 or less) the Plaintiff is usually not permitted to court ‘costs’.
This is so because Rule 57(10) of the Supreme Court Rules holds that:
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 is sufficient reason for bringing the proceeding in the Supreme Court and so orders.
Today, reasons for judgement were released by the BC Supreme Court dealing with this section and the issue of when there is ‘sufficient reason for bringing a proceeding in the Supreme Court.’
In today’s case (Munro v. Thompson) the Plaintiff was awarded just over $12,000 for injuries sustained in a 2006 BC Car Crash.  The Defendant was apparently insured by ICBC and subject to ICBC’s Low Velocity Impact Defence.
The Plaintiff brought application seeking court ‘costs’.  He argued as follows:

[7]             The plaintiff says that “sufficient reason” is to be considered as at the time of commencement of proceedings: Riemann v. Aziz [2009] BCCA 448.

[8]             He says that at the date of commencement of the action, he had in hand the reports of two medical experts.  The conclusion arising from those is that it was a moderate/severe whiplash injury impacting on his future vocational capabilities, indicating a loss of capacity claim.

[9]             In these circumstances, counsel for the plaintiff contends there was good reason to bring his action in this court as opposed to the Small Claims division of the Provincial Court.

The defence lawyer argued that the Plaintiff should be deprived of ‘costs’ because the Plaintiff only recovered half of what could have been awarded in Small Claims Court therefore the Plaintiff should have started the lawsuit there.
In accepting the Plaintiff’s position Mr. Justice Williams applied the law as follows:

[22]         In order to determine the merit of the plaintiff’s claim for costs, it is necessary to examine whether he has shown that there was sufficient reason to have justified the decision to commence the proceeding in the Supreme Court.

[23]         Both parties accept that to be the correct analysis.  As well, both agree that the point in time at which the assessment is to be made is when the action in initiated.

[24]         In this case, plaintiff’s counsel had in hand the reports of two medical practitioners when he commenced the proceeding.  The report of Dr. Paterson, a treating chiropractor, concluded that the plaintiff’s symptoms of neck pain and stiffness, headaches, left shoulder pain and weakness are the result of a Grade III whiplash (moderate/severe) that he sustained in his July 6, 2006 motor vehicle accident. …

[25] There was also a medical-legal opinion from Dr. Condon….

26] Based on those opinions, it was not unreasonable for the plaintiff’s counsel to conclude that the action should be commenced in the Supreme Court.  The evidence indicated the likelihood of a viable claim for loss of future earning capacity as well as a not-insignificant claim for general damages.  Taking that into account, I am not prepared to find that his decision to bring the claim as he did was improper:  he had sufficient reason to proceed as he did when the writ was filed….

32] In the result, there is no basis to find that he deliberately misrepresented his situation to the doctors.  I stand by my conclusion that there was sufficient reason for bringing this proceeding in the Supreme Court, and reject the argument that he should be disentitled to the benefit of that finding because of his own conduct.

On another note, I posted yesterday about the new BC Supreme Court Civil Rules which come into force next year.   I have referenced these and it appears that the law as set out in Rule 57(10) of the current rules remains in place in the New Rules.  The relevant provision is set out in Rule 14-1(10) of the new Civil Rules.  The language there is identical to the current Rule 57(10) so precedents such as this case should remain good law after the new rules take effect.

The Times They Are A Changin' – Major Overhaul to BC Civil Rules As of July 1, 2010

Written by admin on . Posted in Civil Procedure, Uncategorized. 50 Comments on The Times They Are A Changin' – Major Overhaul to BC Civil Rules As of July 1, 2010

There are major changes coming to the landscape of Civil Litigation in the BC Supreme Court in the coming year.  Today, the BC Government issued a press release advising of a complete overhaul of the BC Supreme Court rules effective July 1, 2010.
These new civil rules have been the source of much controversy since the proposed changes were first announced.
Whatever side of the debate you were on these new rules appear to now be a reality and all lawyers (or people who will represent themselves in the BC Supreme Court) have just under one year to get up to speed.  In fact, 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.
You can click here to access a copy of the new Civil Rules.
As the new BC Supreme Court Civil Rules were just released today in their final form I will need some time to review them to see what changes they contain with respect to the way ICBC Claims and Personal Injury Claims are prosecuted in the BC Supreme Court.  Over the course of the next year I hope to write extensively about these new rules and the way they will affect personal injury litigation.  In the meantime, according the the BC Government’s Press Release, some of the highlights of these new rules are as follows:

Under the new civil and family rules, the Province will provide up to three days of trial time before litigants are required to pay court fees. Current fees start at $156 for a half day or less. To encourage the use of mediation, court fees for filing or responding to a legal claim will be eliminated for parties that engage in mediation prior to commencing a civil action.

Additional reforms include changes to rules used by B.C.’s civil courts to speed up, simplify and lower the cost of resolving disputes. These include:

· Containing legal processes so that they are proportionate to the value, importance and complexity of the case.

· Allowing parties the option of having a judge set time limits on litigation events.

· Providing a new fast track process that greatly simplifies procedures when the amount in dispute is $100,000 or less or when the case can be tried in three days or less.

· Providing new family rules for minimizing family conflict, promoting co-operation and ensuring that the interests of children are paramount.