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The Important Role of Treating Doctors in BC Personal Injury Claims

Written by admin on . Posted in Civil Procedure, ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court highlighting the valuable role treating physicians have in personal injury claims.
In today’s case (Deiter v. Briggs) the Plaintiff was injured in 2 BC car crashes.  Liability was admitted for both crashes leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s injuries and losses).
The Plaintiff called 2 physicians in the course of her claim to assist the court with opinion evidence explaining the extent and nature of her injuries.   These physicians were her family doctor (Dr. Cordoni) and a well respected rheumatologist, Dr. Shuckett.   Dr. Shuckett gave the following diagnosis and prognosis for the Plaintiff’s injuries:

[21]         Dr. Shuckett examined Ms. Deiter in December 2008.  Based on the patient’s own description of her history and Dr. Shuckett’s physical examination of her, Dr. Shuckett arrived at the following diagnosis as set out in her report:

1.               Cervicogenic headaches.

2.               Mechanical neck pain, mainly due to musculo-ligamentous injury with bilateral neck pain and some modest decrease of neck mobility.  She may very well have zygapophyseal joint capsular injury of the neck.

3a.     Myofascial pain syndrome of the left neck and shoulder girdle region with palpable muscle spasm.

3b.     Myofascial pain syndrome of right shoulder girdle region with palpable muscle spasm.

There is some myofascial pain syndrome with spasm of the muscle and rounding of the muscle adjacent to the right medial scapula.

3.               Right shoulder impingement and rotator cuff tendonitis suspected (appears to be mild).

[22]         Dr. Shuckett gave the opinion that the symptoms suffered by the plaintiff were related to the first accident and but for the accident, Ms. Deiter would not have these symptoms or diagnoses.  As to the future prognosis, Dr. Shuckett reported that the prospect of further recovery is guarded now that two and a half years have passed since the accident.  Dr. Shuckett gave the opinion that:

It is really not possible to measure degree of disability or impairment from work in an objective sense with chronic soft tissue pain.  I cannot rule out that she may find herself unable to pursue fulltime work in the longer term future due to her injuries, but this is not something I can predict.  However, based on her current status, it appears that she finds it difficult to contemplate increasing her work hours.

And further:

She may not improve from her current status as her pain is chronic by this time.

The Court largely accepted this evidence and awarded damages of just over $144,000 for the Plaintiff’s injuries and losses.

The Lawyer for the Defendants made critical comments about Dr. Shuckett’s expert opinion.  In rejecting the defence lawyers submissions Madame Justice Griffin said the following with respect to the important role treating physicians play in BC Personal Injury Lawsuits:

[28]         The defendants suggested in argument that Dr. Shuckett was an advocate but I do not accept that characterization.  I found her to be very clear and objective in her evidence which she was well qualified to give.  I pause here to note that the defendants appeared to me to show a lack of objectivity when assessing the role of physicians in litigation of this nature.  The defendants stated in written and oral argument:

In contrast to Dr. Shuckett, Dr. Cordoni presented as a [sic] impartial and unbiased physician which is highly unusual for a general practitioner.

[29]         This submission is what is known as a back?handed compliment.  It is a gratuitous attack on Dr. Shuckett to suggest that she was not impartial, a proposition which is entirely unfair on the evidence.  It is a suggestion that appears to praise Dr. Cordoni while it insults general physicians as a group, as if to say they are typically not able to provide independent medical evidence in soft tissue injury cases.  This cynical submission is outrageous and unduly partisan.

[30]         This court hears many cases involving plaintiffs with claims that someone else’s negligent action caused them personal injuries.  These are persons who are entitled to damages under the common law of this country if their claims are proven.  These are persons who may be suffering greatly from their injuries.  This court could not perform its function of determining these important claims without the help of treating medical physicians including general practitioners.

[31]         Thus, physicians who do testify despite the inconvenience are performing a very important professional and public duty.  Coming to court to testify and to face cross?examination may be the last thing a busy physician wants to do, faced with the burdens of practice.  Often a general physician is the one physician who knows the patient best and who will have the longest history of treating the plaintiff before and after the incident giving rise to the claim.  This court is extremely appreciative of the role physicians play in giving evidence.  I sincerely hope that counsel for the defendants in this case reflected only his views, and not a general culture amongst legal counsel who represent defendants or defendant’s insurers, when he decided to advance his submission which was so disrespectful of the important role of family doctors in personal injury cases.  It is true that in some cases a medical practitioner may be impartial but it reflects poorly on the defendants to simply advance this as a general proposition.

Rule 37B and the Significance of Insurance

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure. 49 Comments on Rule 37B and the Significance of Insurance

(Please note the case discussed in this post was upheld by the BC Court of Appeal in June, 2010.  You can click here to read my post discussing the BCCA decision)
When a party beats a formal settlement offer at trial in the BC Supreme Court the existence of the offer can be brought to the courts attention and the Court can then award or deprive a party of Costs as permitted under Rule 37B.
In determining costs consequences Courts have discretion and are to consider various factors as set out in Rule 37B(6).  One of these factors requires the court to consider ‘the relative financial circumstances of the parties‘.  One of the matters still being worked out by BC Courts under Rule 37B is whether a party being insured is a relevant factor when weighing the financial circumstances of the parties.
Today reasons for judgement were released by the BC Supreme Court, Chilliwack Registry addressing this matter.  In today’s case (Smith v. Tedford) the Plaintiff made a settlement offer.  The defendant did not immediately accept and proceeded to trial.  Several days into trial the Defendant accepted the offer.  At issue was what costs the Defendant should pay the Plaintiff.
The Defendant was apparently insured with ICBC.  In arguing what costs consequences should follow the Defendant submitted that the fact insurance was in place was not a relevant consideration.  In asking the court to consider the ‘relevant financial circumstances of the parties‘ the defendant put forward an affidavit setting out her ‘modest circumstances‘.
Mr. Justice Grist rejected this argument and held that the existence of insurance was relevant and could properly be considered by the Court.  Specifically Mr. Justice Grist reasoned as follows:

[14]         Here, I think the consideration stipulated in Rule 37B(6)(c), “the relative financial circumstances of the parties,” also has a bearing. The plaintiff has very limited financial resources and the personal defendant had the advantage of a defence conducted by her automobile insurer. This fact should not constantly put the defence at a disadvantage on costs but, in my view, it is particularly relevant when a late acceptance of an outstanding offer has required the plaintiff to submit to a less certain and potentially prohibitively costly mode of trial.

[15]         Counsel for the defence argues that insurer’s conduct of the case is not a relevant feature and cites Bailey v. Jang, [2008] B.C.J. No. 1952, in this regard. In Bailey the court held that the fact a defendant’s case was conducted by the defendant’s insurer was irrelevant to the Rule 37B(6)(c) consideration of relative financial circumstances. Almost contemporaneous to this decision, however, the issue was independently considered in Radke v. Parry, [2008] B.C.J. No. 1991. In the Radke case, the court awarded the plaintiff double costs for a trial ultimately settled by the exchange of a further plaintiff’s offer and the defendants’ acceptance of the offer, in circumstances where the plaintiff had earlier made a much more modest initial offer. The relevant comment (at para. 42) was as follows:

…The defendants, represented by ICBC, had substantially greater resources to finance a trial than the individual plaintiff. Had the defendants accepted the plaintiff’s initial reasonable offer, the plaintiff would not have had to incur the significant costs associated with nearly two weeks of trial.

[16]         I choose to follow Radke in this regard. The ability to have a case advanced by experienced and well funded counsel is, to my mind, a resource that should be taken into account in exercising the judicial discretion stipulated under the new Rule. As an example of how the obvious intent of the Rule can be perverted if the consideration is made independent of insurance coverage, here counsel for the defendant produced an affidavit speaking of her modest circumstances. She, like the plaintiff, is a young person employed at near minimum wage. This was particularly hard to accept as a relevant consideration after the 6-day course of this abbreviated trial, during which the Insurance Corporation twice had separate counsel appear to argue issues that might easily have been dealt with by the two trial counsel appearing on the defendants’ behalf.

[17]         The appropriate order of costs is to award costs of the action to the plaintiff with the cost of the trial to be assessed as double costs, all at Scale B.

It appears that this interpretation may be gaining favor with BC Courts and hopefully this trend continues.  As always I will continue to report on these cases as they come to my attention.

An Interesting but Short Lived Rule 37B Precedent

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Jury Trials, Uncategorized.

Reasons for judgement were transcribed today by the BC Supreme Court giving a new and interesting interpretation to Rule 37B.
In today’s case (Oliver v. Moen) the the Plaintiff sued for personal injuries as a result of a BC Car Crash.  The matter proceeded to trial by Jury.
Leading up to the trial the Plaintiff made a formal offer to settle under the now repealed Rule 37 for $400,000.  The Defendant countered with a formal offer of $100,000.  The Plaintiff then delivered a formal offer under Rule 37B for $185,000.  After 12 days of trial the Jury awarded approximately $14,000 in total damages for the Plaintiffs injuries and losses.
More often than not, when a defendant beats a formal settlement offer at trial they are entitled to costs under Rule 37B and in today’s case the defendant brought an application for such an order.  In an interesting twist, however, Mr. Justice Joyce of the BC Supreme Court declined to award the Defendant costs finding that when the Plaintiff made the formal counter offer of $185,000 this constituted a rejection of the Defendant’s offer.  A rejection of an offer, at common law, takes the offer off the table.  Mr. Justice Joyce held that since this occurred the Defendant did not have a valid offer to settle in existence from the time of the Plaintiff’s offer to settle onward thus the offer ‘cannot be considred under Rule 37B when deciding the issue of costs’
Specifically the Court reasoned as follows:

[12] Satanove J. noted that Rule 37(10) had been repealed when the counteroffer was made and Rule 37B did not contain an analogous provision. Accordingly, the common law rule relating to contract applied. At paras. 8 and 9 Madam Justice Satanove said:

8          Turning then to the common law of contracts, it is trite to say that a counteroffer constitutes non-acceptance of a previous offer. The previous offer must be revived in order to be accepted after a counteroffer has ensued. (United Pacific Capital v. Piché, 2004 BCSC 1524; Cowan v. Boyd (1921), 49 O.L.R. 335 (C.A.)).

9          Applying these principles to the chronology of facts in this case, when the plaintiffs issued the counteroffer of January 6, 2009, they were communicating non-acceptance of the Rule 37B offer of November 28, 2008 from the defendants, and this latter offer was no longer extant. [emphasis added]

[13] On the authority of More Marine, I am driven to conclude that when the plaintiff made its offer of January 30, 2009 that counteroffer constituted non-acceptance of the defendant’s offer of February 25, 2008 and rendered the earlier offer no longer extant because the saving provision of Rule 37(10) was no longer in effect.

[14] As the defendant’s offer was no longer in existence and therefore no longer capable of acceptance it cannot be considered under Rule 37B when deciding the issue of costs. This may seem a harsh result but it is one that, in my opinion, follows from the failure to preserve the saving effect of the former Rule 37(10) in Rule 37B.

[15] The defendant submits that More Marine is distinguishable because in that case the offer in question was made under Rule 37B whereas the defendant’s offer in this case was made under Rule 37 and at a time when the saving provision of Rule 37(10) was in effect. It is my view, however, that one must consider the law as it was when the counteroffer was made on January 30, 2009. At that time there was no enactment in place to alter the common law principle that the defendant had to revive his offer in order to give it effect once again.

[16] The defendant argues, in the alternative, that where no formal offer exists, s. 3 of the Supreme Court Act gives the Court a broad discretion over costs and that in the exercise of that discretion I should award the plaintiff costs up to the date of the defendant’s offer and award costs to the defendant from the date of that offer. The defendant relies on British Columbia v. Worthington (Canada) Inc., [1988] B.C.J. No. 1214 (C.A.). That case was concerned with the discretion of a trial judge to order a party who was successful in the action as a whole to pay the costs of an issue in the action to the party who was successful in that issue but who lost the entire action. That issue does not arise in this case. This case does not concern success on separate issues. Mr. Oliver was successful in his action but the jury saw fit to award him only modest damages.

[17] The usual rule as set out in Rule 57(9) is that the “costs of and incidental to a proceeding shall follow the event unless the court otherwise orders”. Having concluded that there is no offer by the defendant that can be considered under Rule 37B, the defendant has not persuaded me that there is any other circumstance that should cause me to depart from the usual rule.

[18] I therefore award the plaintiff the costs of the entire proceeding at scale B.

As far as I am aware this is a novel interpretation of Rule 37B.

Interesting as this case may be, and whether or not it is a correct interpretation of Rule 37B, the case’s value as a precedent will be short lived.  This case, although transcribed today, was pronounced in June, 2009.   As of July 1, 2009 Rule 37B has been amended adding a subrule which specifically states that “An offer to settle does not expire by reason that a counter offer is made.”   which in effect addresses the courts concerns about the short comings of this rule.

Special Costs and "Obviously Flawed Expert Reports"

Written by admin on . Posted in Civil Procedure, Uncategorized. 50 Comments on Special Costs and "Obviously Flawed Expert Reports"

When ICBC Claims proceed to trial in the BC Supreme Court the parties to the lawsuit frequently rely on the reports of ‘expert’ witnesses.  Usually these are medical doctors but other experts such as engineers, economists, functional capacity witnesses and others are common. If a party relies on a hired expert who authors an ‘obviously flawed report’ that party can be penalized by the judge with an order of ‘special costs’.  The BC Supreme Court summarized this principle of law in a 2003 decision by the name of Coulter v.  Ball as follows:

[75]   The use of obviously flawed expert reports is conduct that has been found by the Courts to warrant an award of special costs, see Heppner v. Schmand, supra.  In McKitrick v. Iskic, [1999] B.C.J. No. 1724, Madam Justice Bennett stated, although declining to order special costs on that basis in the case before her at para. 11:

There is no doubt that when a party bases a claim or defence on obviously flawed reports, or an unsubstantiated basis, special costs may be awarded.

In Coulter, the BC Supreme Court summarized the principles behind orders of special costs as follows:

The principle which guides the decision to award solicitor-and-client costs in a contested matter where there is no fund in issue and where the parties have not agreed on solicitor-and-client costs in advance, is that solicitor-and-client costs should not be awarded unless there is some form of reprehensible conduct, either in the circumstances giving rise to the cause of action, or in the proceedings, which makes such costs desirable as a form of chastisement. The words “scandalous” and “outrageous” have also been used. (citations omitted)

[10]   In Leung v. Leung,[1993] B.C.J. No. 2909 (S.C.), Chief Justice Esson, as he then was, clarified the meaning of reprehensible in this context as conduct that the Court finds worthy of rebuke.  At paragraph 5 he stated:

There is nothing in the conduct of Mr. Leung in relation to this matter which I would call “scandalous” or “outrageous”.  But “reprehensible” is a word of wide meaning.  It can include conduct which is scandalous, outrageous or constitutes misbehaviour; but it also includes milder forms of misconduct.  It means simply “deserving of reproof or rebuke”.

[11]   That broader meaning of reprehensible was endorsed in Garcia v. Crestbrook Forest Industries Ltd., [1994] B.C.J. No. 2486 (C.A.).  It was again confirmed in Heppner v. Schmand, [1998] B.C.J. No. 2843(C.A.) by Hinds J.A., speaking for the court, at paragraph 17:

In my view, there was evidence before Mr. Justice Shaw upon which he could found his conclusion that the conduct complained of was reprehensible and was deserving of rebuke.  While the conduct complained of may not have been scandalous or outrageous it was, nevertheless, reprehensible in the sense that it constituted a milder form of misconduct deserving of reproof or rebuke.  It was conduct from which the court sought to dissociate itself.

[12]   Because special costs are awarded to penalize conduct from which the Court seeks to dissociate itself, the award will extend beyond indemnity.  The governing factors are punishment and deterrence, see Fullerton v. Matsqui (District), [1992] B.C.J. No. 2986 (C.A.).

[13]   The general rule is that where special costs are awarded, they will be for the entire proceeding, see Sammartino v. Hiebert, [1997] BCJ 2036 (S.C.).  However, there is discretion to award special costs for only a particular period of time related to the impugned conduct.  The factors which will be relevant in relation to this exercise of discretion included whether the impugned conduct was an isolated occurrence and its significance in terms of the conduct of the litigation, see Muncaster v. Nunnenmacher (1996), 76 B.C.A.C. 211 at paragraph 17 per Finch J.A., speaking for the court:

When one looks at the overall course of this litigation and at the reasons of the learned trial judge in their entirety, two things seem apparent with respect to the false document.  The first is that the learned trial judge viewed its creation as a matter which called for a sanction in costs.  The second is that the document did not play a major part in the disposition of the law suit.  It seems to me that in awarding special costs for the short period he did the learned trial judge was attempting to balance those somewhat conflicting factors.  The order limiting special costs to a brief period of the law suit is an unusual one.  Indeed, counsel were unable to find any case where a similar order had been made.  However, the learned trial judge had the unique advantage of having heard all of the evidence and having seen all of the witnesses, and the advantage of being able to assess the relative importance of the false document in the full context of this long, complex and obviously difficult lawsuit.

On Friday the BC Supreme Court released reasons for judgement dealing with this area of the law.  In Friday’s case (Henri v. Seo) the Plaintiff took her ICBC Claim to trial.  ICBC relied on an orthopaedic surgeon who is often retained in ICBC claims.  The Plaintiff argued that she should be awarded special costs because “the defendant and her insurer (ICBC) improperly relied on the report and the testimony of Dr. J. Schweigel – an orthopaedic surgeon whose evidence has been either rejected or not relied upon in a number of previous cases.  The plaintiff says that by way of an award of special costs this Court ought to express its disapproval of ICBC’s repeated use of what she characterizes as Dr. Schweigel’s “clearly flawed reports”.

Madam Justice Boyd rejected this argument and summarized and applied the law as follows:

[10] I entirely reject this submission.  Even if an award of special costs may be made in the case of an action under Rule 66 (which I do not necessarily accept), it remains that simply by virtue of being insured by ICBC the defendant does not thereby assume the corporate persona of the Insurance Corporation and therefore be subject to criticism concerning its prevailing policies or practices, whether as an insurer or as a litigant.  How ICBC goes about defending motor vehicle actions, including which experts it retains and relies upon, is not a matter to be addressed in costs in an action between the plaintiff and the defendant here.

[11] As to the merits of the argument, it remains that while the use of obviously flawed expert reports may be conduct which warrants an award of special costs (Coulter v. Ball, 2003 BCSC 1186; Heppner v. Schamnd [1998] B.C.J. No. 2843 (C.A.), this is not the case here.  The defence has referred to a number of different actions in which Dr. Schweigel’s opinion has either been accepted or preferred to that of other physicians.

Litigation Privilege and Solicitor-Client Privilege Explained

Written by admin on . Posted in Civil Procedure, Uncategorized. 99 Comments on Litigation Privilege and Solicitor-Client Privilege Explained

In BC Lawsuits one of the primary goals of the Rules of Court is to require document disclosure to put the parties on a level playing field with respect to the facts and to prevent trial by ambush.
Disclosure requirements, however, need to compete with the equally compelling doctrine of privilege which permits parties to lawsuits the right to refuse production of certain classes of otherwise relevant documents. Two categories of privileged documents which are not always clearly understood by litigants are those of ‘solicitor client privilege‘ and ‘litigation privilege’.
Today the BC Supreme Court released reasons for judgement explaining the difference between these classes of privileged documents.
In today’s case (Lougheed Estate v. Wilson) the Plaintiff sought access to certain documents which the Defendant refused to produce on the basis on litigation privilege.  In ordering that the documents be produced Mr. Justice Grauer did a great job in explaining the difference between solicitor-client and litigation privilege.  I reproduce this summary below:

(b) Solicitor-client privilege

[26] Solicitor-client privilege, or “legal advice privilege”, is conceptually different from litigation privilege.  One of the important differences is that solicitor-client privilege applies only to confidential communications between the client and his or her solicitor: Blank v. Canada, [2006] S.C.R. 319, 2006 SCC 39 at para. 28, citing with approval Professor R.J. Sharpe (now Sharpe, J.A.):  “Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of Upper Canada (1984), 163, at pp. 164-65.

[27] The documents over which Mr. Wilson asserts privilege that are at issue before me consist solely of correspondence between Mr. Wilson’s solicitor and counsel for Elections Canada.  They do not consist of confidential communications between Mr. Wilson and his solicitor.  Accordingly, I find that they are not eligible for the protection of solicitor-client privilege.

(c) Litigation privilege

[28] The nature of litigation privilege was thoroughly discussed by the Supreme Court of Canada in the Blank case, where Fish J. quoted further from Prof. Sharpe’s article as follows (loc. cit. supra):

Litigation privilege, on the other hand, is geared directly to the process of litigation.  Its purpose is not explained adequately by the protection afforded lawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege.  Its purpose is more particularly related to the needs of the adversarial trial process.  Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of the case for trial by the adversarial advocate.  In other words, litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect the relationship (namely, the confidential relationship between a lawyer and the client).

[29] Fish J. then went on to explore the limits of the privilege:

34        The purpose of the litigation privilege, I repeat, is to create a “zone of privacy” in relation to pending or apprehended litigation.  Once the litigation has ended, the privilege to which it gave rise has lost his specific and concrete purpose – and therefore its justification.  But to borrow a phrase, the litigation is not over until it is over.  It cannot be said to have “terminated”, in any meaningful sense of that term, where litigants or related parties remain locked in what is essentially the same legal combat.

35        Except where such related litigation persists, there is no need and no reason to protect from discovery anything that would have been subject to compellable disclosure but for the pending or apprehended proceedings which provided its shield….

36        I therefore agree with the majority in the Federal Court of Appeal and others who share their view that the common-law litigation privilege comes to an end, absent closely related proceedings, upon the termination of the litigation that gave rise to the privilege [citations omitted].

37        Thus, the principal “once privileged always privileged”, so vital to the solicitor-client privilege, is foreign to the litigation privilege.  The litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope nor permanent in duration.

38        As mentioned earlier, however, the privilege may retain its purpose – and, therefore, its effect – where the litigation that gave rise to the privilege has ended, but related litigation remains pending or may reasonably be apprehended….

39        At a minimum, it seems to me, this enlarged definition of “litigation” includes separate proceedings that involve the same or related parties and arise from the same or related cause of action (or “juridical source”).  Proceedings that raise issues common to the initial action and share its essential purpose would in my view qualify as well.

40        As a matter of principle, the boundaries of this extended meaning of “litigation” are limited by the purpose for which litigation privilege is granted, namely, as mentioned, “the need for a protected area to facilitate investigation and preparation of the case for trial by the adversarial advocates” (Sharpe, at p. 165).

Damaging Your Opponents Case at Trial Through Examinations for Discovery

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

Examinations for Discovery in ICBC Claims are conducted for 2 primary reasons.  The first is to learn about your opponents claim, the second, and perhaps equally important reason is to get admissions which can be used against your opponent should the claim proceed to trial.
When a damaging answer from an examination for discovery is read into evidence at trial it can have the same impact as if the damaging fact was testified to live in court.  If a discovery answer contradicts evidence given at trial this can have an impact on credibility and can significanty effect the outcome of trial.
Rule 40(27) of the BC Supreme Court Rules addresses the use of discovery evidence at trial.  This Rule, however, imposes certain limits on the abilities of opponents to use transcripts at trial.  Specifically one limitation contained in the Rule states that the evidence is ‘admissible only against the adverse party who was examined…’

This limit should be kept in mind when suing multiple defendants and reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating this evidentiary limitation in an injury claim trial.

In today’s case (MacEachern v. Rennie) the Plaintiff sued multiple parties for damages as a result of serious injuries.  At trial the Plaintiff sought to read in portions of the Defendants examinations for discovery.   The Plaintiff sought to have some of this evidence ‘used not only against the party who was examined, but also against all the other defendants‘.  Mr. Justice Ehrcke rejected this argument and folowed the strict reading of Rule 40(27) limiting the use of the answers only against the defendants who gave them.  The Court summarized and applied the law as follows:

[13]         In any event it must be noted that the Rules of Court were amended in 1985 and again in 1992. The current form of Rule 40(27) is not the same as the rule upon which McEachern C.J.B.C. was commenting in Foote v. Royal Columbia Hospital. In 1982 there was nothing equivalent to the current Rule 40(27)(a).

[14] I find that the current law is correctly stated in Fraser and Horn, The Conduct of Civil Litigation in British Columbia, Vol. 1 looseleaf (Markham:  LexisNexis Canada Inc., 2006) at paragraph 18.10:

An amendment to Rule 40(27)(a) in 1992 re-affirmed the long-standing jurisprudence that the testimony of a party on discovery was not admissible against his co-party. In 1986 the traditional rule had been held to have been superceded as a result of a rule amendment in 1985. Because of the 1992 amendment, it is once again the law that the evidence of one person on an examination for discovery is not ordinarily admissible against a co-party.

[15] Accordingly, the questions and answers from the examination for discovery of Mr. Rennie requested by the plaintiff and the additional questions 396 and 397, along with their answers, shall be read into evidence at trial, but they do not constitute direct evidence against any of the defendants except Mr. Rennie.

This decision serves as a good reminder that when ICBC Injury Claims are prepared for trial care should be taken to ensure there is admissible evidence against all of the Defendants for all matters in issue.

Here We Go Again – Rule 37B Amended

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Uncategorized. 65 Comments on Here We Go Again – Rule 37B Amended

A year ago the BC Rule dealing with formal offers in the BC Supreme Court, Rule 37, was repealed and replaced with Rule 37B.   One of the primary differences between the rules was the greater discretion given to trial judges in awarding costs to litigants after beating a formal settlement offer at trial.
I have written about every Rule 37B case that came to my attention over the past year keeping track of the judicial development of this rule.  Now, after being in force for a short period of time, Rule 37B is being amended with the changes taking effect on July 1, 2009.
The new changes seem to be in direct response to a recent judgement of Mr. Justice Goepel where he decided that Rule 37B does not give judges the discretion to award Defendants their trial costs after beating a formal offer of settlement at trial.  This interpretation was great for Plaintiffs in personal injury claims because it diminished the financial risks for personal injury trials that did not proceed favorably.  I thought that the Court of Appeal would likely determine whether Mr. Justice Goepel’s interpretation was correct but this no longer will be necessary as the Rule amendment specifically addresses this point.
Interestingly, the new rule does not specifically address whether a Defendant being insured is a relevant factor for the court to consider when looking at the ‘financial circumstances of the parties’.  BC Courts have been inconsistent in determining whether this is a relevant consideration in ICBC Injury Claims.
As of July 1, 2009 the new Rule will read as follows:

Definition

(1) In this rule, offer to settle means

(a) an offer to settle made and delivered before July 2, 2008 under Rule 37, as that rule read on the date of the offer to settle, and in relation to which no order was made under that rule,

(b) an offer of settlement made and delivered before July 2, 2008 under Rule 37A, as that rule read on the date of the offer of settlement, and in relation to which no order was made under that rule, or

(c) an offer to settle, made after July 1, 2008, that

(i)  is made in writing by a party to a proceeding,

(ii)  has been delivered to all parties of record, and

(iii)  contains the following sentence: “The ….[name of party making the offer]…. reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has rendered judgment on all other issues in this proceeding.”

Offer not to be disclosed

(2) The fact that an offer to settle has been made must not be disclosed to the court or jury, or set out in any document used in the proceeding, until all issues in the proceeding, other than costs, have been determined.

Offer not an admission

(3) An offer to settle is not an admission.

Offer may be considered in relation to costs

(4) The court may consider an offer to settle when exercising the court’s discretion in relation to costs.

Cost options

(5) In a proceeding in which an offer to settle has been made, the court may do one or more of the following:

(a) deprive a party, in whole or in part, of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle;

(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

(c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;

(d)  if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

[am. B.C. Reg. 165/2009, s. 1 (a), (b) and (c).]

Considerations of court

(6) In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.

Costs for settlement in cases within small claims jurisdiction

(7) A plaintiff who accepts an offer to settle for 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.

[en. B.C. Reg. 165/2009, s. 1 (d).]

Counter offer

(8) An offer to settle does not expire by reason that a counter offer is made.

[en. B.C. Reg. 165/2009, s. 1 (d).]

BC Personal Injury Claims and Document Disclosure

Written by admin on . Posted in Civil Procedure, Uncategorized. 104 Comments on BC Personal Injury Claims and Document Disclosure

Very important reasons for judgement were released today by the BC Court of Appeal dealing with the duties of counsel when it comes to listing privileged documents in BC Supreme Court Lawsuits.
In today’s case (Stone v. Ellerman) the Plaintiff was injured in a 2002 BC car crash.  Her case proceeded to trial and she was awarded almost $700,000 in damages.  The defendants appealed and today the BC Court of Appeal ordered a new trial on the basis that the trial was ‘fundamentally flawed when, partway through the plaintiff’s evidence in chief, and over the objection of the defence, the plaintiff was permitted to use a pain journal‘.   The reason why this created a ‘fundamentally flawed‘ trial was because the pain journal was not properly identified by the plaintiff’s lawyer.
Rule 26 deals with disclosure obligations in most BC Supreme Court lawsuits and subrule 26(2.1) requires that “the nature of any document for which privilege from production is claimed must be described in a manner that, without revealing information that is privileged, will enable parties to assess the validity of the claim of privilge‘.
In the course of the claim the Plaintiff’s lawyer advised her to keep a pain journal, something often done in personal injury cases.  In listing the document as privileged it was described as “notes and documents, correspondence, minutes of evidence, memoranda being the work product of plaintiff’s legal advisers“. The trial judge held that this document was not properly disclosed, however, permitted the Plaintiff’s memory to be ‘refreshed’ at trial with this document.
The Defendants appealed and succeeded.  In granting a new trial the BC Court of Appeal gave the most comprehensive summary of this area of the law that I’m aware of.  Specifically, the court said the following with respect to lawyers disclosure obligations of privileged documents under Rule 26:

[21] The first question to be addressed is whether the pain journal was adequately described for purposes of Rule 26(2.1) by “notes and documents, correspondence, minutes of evidence, memoranda being the work product of plaintiff’s legal advisers”.

[22] It is clear that it was not. Nothing in that description would “enable other parties to assess the validity of the claim of privilege” (Rule 26(2.1)), or to anticipate that anything like a pain journal existed among the “notes and documents”, even in the most general terms.

[23] The information that must be included in the description of a document over which privilege is claimed will vary depending upon the document, but it must be sufficiently described so that if the claim is challenged it can be considered by a judge in chambers: Babcock v. Canada (Attorney General), 2004 BCSC 1311, 246 D.L.R. (4th) 549, citing Visa International Service Assn. v. Block Bros. Realty Ltd. (1983), 64 B.C.L.R. (2d) 390 (C.A.).

[24] In Saric v. Toronto-Dominion Bank, 1999 BCCA 459, Mr. Justice Hall, in chambers, cited Shaughnessy Golf and Country Club v. Uniguard Services Ltd. and Chahal (1986), 1 B.C.L.R. (2d) 309 (C.A.), for the proposition that the grounds for privilege have to be established in respect of each document which is said to be privileged.  He added (at para. 12) “a litigant, (and presumably the court), has to have some proper basis upon which to determine issues of privilege as they relate to documents”.

[25] It has been held that since Rule 26(2.1) came into force in mid-1998 the “bundling” of documents under a broad description is no longer sufficient and that each document must be listed separately.  In Leung v. Hanna (1999), 68 B.C.L.R. (3d) 360 (S.C.), solicitor-client privilege was claimed over documents that were described as “documents marked P3 [through P10], the same having been initialled by the handling solicitor”. Mr. Justice Burnyeat found that each document had been listed separately as the new sub-rule required.  He found that the descriptions themselves otherwise satisfied the requirements articulated in Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129, under the old rule, which permitted quite generic descriptions in favour of protecting privileged information. Burnyeat J. held that such descriptions – now of individual documents – remained sufficient under the new rule.

[26] In Bajic v. Friesen, 2006 BCSC 1290, a master in chambers explained the decision in Leung this way:

[3]        It is clear from the decision of Mr. Justice Burnyeat that the sanctity, if you will, of solicitor/client privilege in his mind trumps any attempt to describe documents in part 3 such that they provide any conceivable understanding to the other party as to the nature of the document. It would appear it then forces a party concerned with the description or lack of same in part 3 to bring an application to the court which then leaves the judge or master hearing the matter to review the document and then conclude whether or not it is appropriately within part 3.

[27] Some authority supports the proposition that where the privilege claimed is not solicitor-client privilege but rather litigation privilege, as in this case, the premium placed on protecting the information is lower and the description must be more detailed to facilitate challenge.  In Hetherington v. Loo, 2007 BCSC 129, Master Caldwell distinguished Leung v. Hanna on the basis that it dealt exclusively with solicitor-client privilege.  He reasoned as follows:

[8]        …The present case deals with a claim of privilege based upon the “dominant purpose of litigation” test and protection. While information such as the date and author’s identity may well be protected from disclosure under a claim of solicitor-client privilege, such protection is not necessarily afforded claims of privilege based upon the dominant purpose test. The latter protection is less absolute, more fact driven and subject to challenge. In the recent case of Blank v. Canada (Minister of Justice), [2006] S.C.J. No. 39, Fish J. said at [paragraph] 60:

the litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal partner of the broadly interpreted solicitor-client privilege. The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure.

[9]        And at [paragraph] 61:

While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process.

[10]      In order that proper assessment may be made as to the propriety of a claim of litigation or dominant purpose privilege it is necessary that sufficient particulars of the documents be given. In most cases dealing with documents involving adjusters files and certainly in this case, particulars as to date and author must be provided. When dealing with interview notes, transcripts, and statements, it may also be necessary to identify if not the actual subject, at least the category of subject (e.g. eyewitnesses, home-care worker, etc.) involved.

[28] Snow v. Friesen, 2008 BCSC 1664, is to the same effect.

[29] In this case, the pain journal is properly to be treated as within the lawyer’s brief, or litigation privilege.  The description in the plaintiff’s affidavit of documents failed to provide any information that would have made the defendants aware of a document in the “category of subject” of the pain journal or enabled them to assess the validity of the claim of privilege.  It follows that for the purposes of Rule 26(14) the plaintiff failed to make discovery of the pain journal “as required by this rule”.

[30] Nondisclosure notwithstanding, the judge retained the discretion to permit the use of the pain journal for the purposes of the plaintiff’s examination-in-chief.  Factors basic to the exercise of this discretion are whether the defendants would suffer prejudice if the use of the journal was permitted, and whether there was a reasonable explanation for the plaintiff’s failure to disclose it.

[31] Other factors relevant to the exercise of the discretion are whether excluding the document would prevent the determination of the issue on its merits: Hoole v. Advani, [1996] B.C.J. No. 522; and whether, in the circumstances of the case, the ends of justice require that the document be admitted: Jones, Gable & Co. v. Price (1977), 5 B.C.L.R. 103; Wu v. Sun, 2006 BCSC 1890; and Adamson v. Charity, 2007 BCSC 671.

[32] In Carol v. Gabriel (1997), 14 C.P.C. (4th) 376, Mr. Justice Henderson excluded a surreptitiously recorded videotape of an independent medical examination.  He said:

[9]        A party tendering a previously undisclosed document must establish to the court’s satisfaction a justification for the failure to abide by Rule 26(14). The question of whether the opposite party will be prejudiced by the admission of the document is always relevant but is not, in and of itself, decisive. Even in cases where no prejudice will ensue from the admission in evidence of the document, it will be excluded unless there is a reasonable justification for the earlier failure to disclose it. To hold otherwise would be to dilute the disclosure obligation and tempt counsel to refrain from disclosing in situations where they do not expect any prejudice to result.

[33] Mr. Justice Henderson found that the defendant would not be prejudiced in any way by the admission of the videotape, because the alleged discrepancies between the tape and the report were minor and would not have affected his assessment of the doctor’s credibility.  However, he ruled the tape inadmissible in the absence of any reasonable justification for failing to disclose it earlier.

[34] This approach has been followed in subsequent cases: see Ball v. Gap (Canada) Inc., 2001 BCSC 824, 8 C.P.C. (5th) 258; Golden Capital Securities Ltd. v. Holmes, 2002 BCSC 516; Sturzenegger (c.o.b. Zurich Trucking) v. K. Peters Industries Northern Ltd., 2003 YKSC 72; Kursar v. BCAA Insurance Corp., 2006 BCSC 586; and Wu v. Sun, 2006 BCSC 1890.

[35] It appears that the judge failed entirely to consider whether there was any reasonable explanation for the plaintiff’s failure to comply with the disclosure rule.  The law leaves no doubt that this is a central factor to be considered, nor any doubt that the fact that a document may be subject to lawyers’ brief privilege or litigation privilege does not provide a reasonable explanation for failing to disclose it in accordance with the requirements of Rule 26: Hoole v. Advani, and Ball v. Gap (Canada) Inc. (both supra).

[36] In Golden Capital Securities Ltd. v. Holmes (supra), the plaintiff claimed litigation privilege over some tape recordings made by a witness to a conversation between the witness and the defendants.  The tapes and transcripts thereof were not provided by the plaintiff to defendants’ counsel until just before the witness appeared to testify, some seven days after the trial commenced.  The plaintiff sought to have them admitted into evidence.

[37] Applying Carol v. Gabriel (supra), and noting that the burden was on the plaintiff, the judge sought a reasonable explanation for the lack of timely disclosure.  The judge rejected as a reasonable explanation the claim that the recordings were subject to litigation privilege.  While prejudice was not required to be found in order to rule the documents inadmissible, the judge found that in this case there was potential prejudice.  The defendants missed the opportunity to examine the recordings, prepare objections that might be proper, discover and respond to any problems with the recordings themselves and were unable to cross-examine witnesses who had already testified about the content of the recordings.  The judge noted that the content of the recordings had been the subject of the witness’s testimony so the plaintiff was not deprived of the opportunity to put that aspect of his case before the court.  The witness would have had to testify from memory had he not recorded the conversations or had the tapes been lost, and so the plaintiff had the benefit of the tapes to the extent of having had his memory refreshed by them.  The tapes were excluded from evidence.

[38] In my view, there was in the case at bar significant prejudice to the defence in being refused the opportunity to make a full and reasoned objection to the late production of this document.  Had the document been disclosed in a timely way, it would have undoubtedly affected defence counsel’s preparation for trial.

[39] If the pain journal had been identified in the plaintiff’s list of documents in a manner that complied with Rule 26(2.1), the defence would have been able “to assess the validity of the claim for privilege”.  If not satisfied that the document was properly protected by the claim of litigation privilege, the defence could have applied under Rule 26(8) to compel production of the document for inspection.  Upon being satisfied that the document was not privileged, the court could have ordered its production for inspection and copying under Rule 26(10). If the claim for privilege had been maintained, the defence would have known of the document’s existence, if not its content. Knowledge of its existence might well have affected settlement negotiations and would have enabled defence counsel to anticipate the document’s possible presentation at trial.

[40] With respect to contrary opinion, it is no answer to non-compliance with Rule 26 to argue that the pain journal was not used for an improper purpose at trial, or that the defence chose to cross-examine on its contents.  Those considerations are quite irrelevant to the questions of whether there was non-compliance with the rule, whether there was prejudice to the defence, and whether the judge exercised his discretion judicially.

[41] Nor is it any answer to suggest that the plaintiff was not required to produce the document until privilege was waived.  That argument ignores entirely the other provisions of Rule 26, which enable opposing counsel to challenge the claim for privilege before trial.

[42] The object of the discovery rules is to prevent trial by ambush.  The object of the Rules in general is “… to secure the just, speedy and inexpensive determination of every proceeding on its merits” (Rule 1(5)).  Discovery of documents that fails to comply with the Rules is antithetical to these ends.

[43] The judge appears to have given little or no consideration to the prejudice suffered by the defence.

[44] It is unfortunate that the trial judge did not avail himself of defence counsel’s offer to provide authorities on how the judge should exercise his discretion in the circumstances.  Defence counsel was obviously taken by surprise at the production of the pain journal in the midst of the plaintiff’s evidence in chief.  It was entirely reasonable for defence counsel to seek an opportunity to research and consider the law before making submissions to the court, and it may well have been of considerable assistance to the court.

[45] The pain journal proved to be of central importance to the plaintiff’s evidence.  As the judge observed in ruling its use permissible “her memory of events isn’t good” and without something to prompt her she “is unable to give me any of the detail that makes up the total picture.  What she gives me is conclusory opinions”.

[46] The proposition that keeping a pain journal on counsel’s advice is sufficiently common practice as to exempt such a journal from the disclosure rules is unsupported by any authority. The judge’s suggestion that one ought to assume that a pain diary is being kept in all personal injury litigation is also inconsistent with the fact that the burden of providing a reasonable explanation falls squarely on the party who has failed to make disclosure in accordance with the rules.

[47] It may be apparent in retrospect that it was necessary for the plaintiff to refer to her pain diary in order to recall events long past, and it is arguable that to have prevented her from doing so may have interfered with the proper decision of the issues at trial on their merits and with full information.  However, permitting use of the document with no notice to the defence gave the plaintiff an unfair advantage.

[48] One cannot say with certainty that the judge would have reached a different conclusion on the use of the pain diary if he had considered all relevant factors, in particular whether there was a reasonable explanation for the delay in its disclosure.  However, the simple claim that the document was subject to litigation privilege is not an explanation, and no other explanation was presented to the judge.

[49] In the absence of a reasonable explanation for the late disclosure, and without an adequate consideration of the issue of prejudice, the judge ought not to have permitted the use of the diary.

[50] In my respectful opinion, permission to use the document in the circumstances described amounted to a miscarriage of justice.

[51] I would allow the appeal, set aside the judgment and order a new trial.

The Disclosure Conflict: Civil vs. Criminal Law

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

When a person at fault for a car crash is sued by the innocent victims and at the same time faces criminal charges as a result of the accident competing needs for records disclosure arise.
In the course of the criminal defence trial Canadian law requires disclosure of the facts the prosecution has gathered against the accused.  This information can be very useful to the Plaintiff in the civil suit against the at-fault motorist.  Is the Plaintiff advancing a Civil Injury Claim entitled to this disclosure or does the law limit this disclosure until the criminal trial concludes?
Reasons for judgement were released today by the BC Court of Appeal addressing disclosure rights when there are competing criminal and civil interests.
In today’s case (Wong v. Antunes) the Plaintiff’s son was struck and killed by a motor vehicle in 2005.  A civil lawsuit was started against the alleged driver Mr. Antunes.  At the same time the alleged driver was charged with ‘criminal negligence causing death’.
In the course of the criminal prosecution the Defendant was provided disclosure by Crown Counsel as required by Canadian law.   He refused to provide these documents to the Plaintiff in the civil lawsuit.  The Plaintiff brought a motion for production and largely succeeded.
The Attorney General for BC, the creator of the records, appealed this order. In allowing the appeal and in modifying the terms under which a civil litigant is entitled to disclosure of records produced in the prosecution of a criminal offence, the BC Court of Appeal held as follows:

[18] The case at bar is complicated, first, by Mr. Antunes’ refusal to even list the VPD documents as being in his possession and, second, by the Crown’s concern that some of the documents or information may jeopardize the on-going criminal proceedings.

[19] The chambers judge was alive to the problems associated with disclosure of the VPD documents.  It appears that he intended to adopt the approach to disclosure approved by the Ontario Court of Appeal in D.P. v. Wagg (2004), 239 D.L.R. (4th) 501, 71 O.R. (3d) 229, 184 C.C.C. (3d) 321 [“Wagg” cited to D.L.R.].

[20] Wagg bears some resemblance to the case before us.  It too concerned the right of a plaintiff to disclosure and production of documents in the possession of the defendant that the defendant obtained as a result of the disclosure process in criminal proceedings brought against the defendant.  In particular, the plaintiff was interested in obtaining statements given by the defendant to the police which the trial judge in the criminal proceedings had ruled as inadmissible because the statements were held to be obtained in violation of his Charter rights.

[21] The Ontario Court of Appeal ultimately endorsed the screening process formulated in the Divisional Court, holding, at para. 48-49:

Like the Divisional Court, I can see no practical way of protecting the interests discussed by that court and by the House of Lords in Taylor without giving the bodies responsible for creating the disclosure, the Crown and the police, notice that production is sought.  Further, where the Crown or police resist production the court must be the final arbiter.

I do not think that the various interests will be protected because of the implied undertaking rule in Rule 30.1.  The fact that civil counsel obtaining production is bound not to use the information for a collateral purpose may be little comfort for persons who once again find their privacy invaded, this time in civil rather than criminal proceedings.  Further, the Stinchcombe obligation on the police and Crown is very broad.  Subject to privilege the Crown must disclose all relevant information.  If there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, the information must be disclosed.  Crown counsel are urged in Stinchcombe at p. 339 to err on the side of inclusion and refuse to disclose only that which is clearly irrelevant.  The courts ought not to apply the discovery rules in civil cases in a way that could have an unintended chilling effect on Crown counsel’s disclosure obligations.

[22] The screening mechanism devised by the Divisional Court was summarized (and endorsed) by the Court of Appeal as follows, at para. 17:

· the party in possession or control of the Crown brief must disclose its existence in the party’s affidavit of documents and describe in general terms the nature of its contents;

· the party should object to produce the documents in the Crown brief until the appropriate state authorities have been notified, namely the Attorney General and the relevant police service, and either those agencies and the parties have consented to production, or on notice to the Attorney General and the police service and the parties, the Superior Court of Justice has determined whether any or all of the contents should be produced;

· the judge hearing the motion for production will consider whether some of the documents are subject to privilege or public interest immunity and generally whether “there is a prevailing social value and public interest in non-disclosure in the particular case that overrides the public interest in promoting the administration of justice though full access of litigants to relevant information” (para. 51).

[23] The Attorney General identifies a number of practical problems created by the impugned order.  The Stinchcombe package is assembled by the Crown, not the VPD.  The order, as it currently reads, requires the VPD to produce documents, despite the fact that it will not know whether these documents were part of the Stinchcombe package.  More importantly, the Attorney General maintains it is cumbersome in that it contemplates all documents being produced, subject to the police or Crown specifying why a particular document is not required to be produced.  Further, the order contemplates that the Crown must assert public interest immunity on a document by document basis.  The difficulty posed by effectively ordering disclosure of theStinchcombe package is that it fails to recognize that the disclosure under Stinchcombe serves a different purpose than disclosure in the civil context, and that to meld the two is an unfortunate development in the law.  Further, by failing to incorporate the public interest immunity claimed by the Crown in the order, it creates opportunities for unforeseen negative consequences.

[24] The preferable alternative, according to the Attorney General, is for the making of a desk order which recognizes the public interest in maintaining the confidentiality of police — Crown communications as a class, and leaving the parties with liberty to apply as to whether particular documents, or the whole class, should be disclosed in a particular case.

[25] In my opinion, the mischief identified by the Attorney General in the application of the impugned order, namely unfortunate unforeseen consequences that may impair the criminal proceedings, can be rectified by the form of order suggested by the Attorney General, which reads as follows:

ON THE APPLICATION of the [party], without a hearing and by consent;

THIS COURT ORDERS THAT:

1.         the [Chief Constable of municipal police force] [Officer in Charge or the Non-Commissioned Officer in Charge of the location Detachment of the Royal Canadian Mounted Police], or his delegate (“the Police”) be authorized and directed to, within 35 days of receipt of a copy of this Order, find all documents as defined in the Supreme Court Rules, including all handwritten notes of all investigating officers, in the possession or control of the Police relating to [incident] (“the Incident”) and in particular file number [file number];

2.         the Police shall examine the said documents when found, and determine which documents or portions of documents may not be produced because they are:

(a)  any correspondence or communications between the Police and Crown Counsel, or between the Police and solicitors advising them, for the purpose of giving or receiving legal advice;

(b)  documents which it would be contrary to the public interest to produce, and in particular documents which if disclosed:

(i)  could reveal correspondence or communications between the Police and Crown Counsel other than those referred to in subparagraph (a);

(ii)  could prejudice the conduct of a criminal prosecution which is anticipated or has been commenced but not finally concluded, where the dominant purpose for the creation of the documents is that prosecution (not including reports, photographs, videotapes or other records of or relating to the Incident created by or for the Police on their attendance at the scene of the Incident or as a contemporaneous record of such attendance);

(iii)  could harm an ongoing statutory investigation or ongoing internal Police investigation;

(iv)  could reveal the identity of a confidential human source or compromises the safety or security of the source;

(v)  could reveal sensitive police investigation techniques; or

(vi)  could harm international relations, national defence or security or federal provincial relations;

(c)  protected from production by the Youth Criminal Justice Act (Canada), or by any other applicable statute;

3.         the Police shall copy the documents which satisfy the criteria for production referred to in paragraph 2 or such portions of the documents as satisfy the criteria for production referred to in paragraph 2;

4.         the Police shall make the copies available to the solicitor for the Applicant for inspection or collection at [address];

5.         the solicitor for the Applicant shall forthwith enter this Order and deliver a copy to the Police and the solicitors for the parties herein;

6.         any reasonable costs incurred by the Police for the retrieval, production, inspection, copying and delivery of the said documents shall be paid forthwith by the solicitor for the party requesting such retrieval, production, inspection and delivery of the said records;

7.         within seven days after receipt by the solicitor for the Applicant of the said documents from the Police pursuant to this Order, such solicitor shall provide each of the solicitors for the parties herein with a copy thereof and the solicitors for the parties herein shall be at liberty to examine the copies of the documents received by the solicitor for the Applicant from the Police;

8.         any party, the Police and the Attorney General of British Columbia, shall have liberty to apply to the Court to determine which, if any, documents are required to be produced pursuant to this order.

[26] In my opinion, the form of order suggested by the Attorney General balances the plaintiff’s need to obtain information in the police file with the Crown’s need to preserve the integrity of the criminal prosecution.  Further, it permits, in the appropriate case, full debate on the various privilege issues that may arise.

IV.        DISPOSITION

[27] It follows that I would allow the appeal and direct that an order in the form referred to above be entered.

More on BC Personal Injury Law and the Duty to Mitigate

Written by admin on . Posted in Civil Procedure, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

A plaintiff who fails to take reasonable steps to minimize their losses and injuries after a car accident risks having their claim reduced accordingly for this ‘failure to mitigate’.
I’ve written about this before and reasons for judgement were released today by the BC Supreme Court demonstrating this principle in action.
In today’s case (Latuszek v. Bel-Air Taxi 1992 Ltd.) the Plaintiff was involved in a serious intersection crash in the lower mainland.  The Defendant died in the collision and the Plaintiff suffered serious injuries.
These injuries included Depression, PTSD and Chronic Pain.  The Court valued the non-pecuniary damages (pain and suffering) for these injuries at $100,000 but then reduced the award by $40,000 due to the plaintiff’s failure to mitigate.
Madam Justice Stromberg-Stein summarized and applied the law as follows:

[84] Prior to setting non-pecuniary damages, I will address the duty to mitigate.

[85] There is a duty at law to take reasonable steps to minimize your loss, particularly where, as here, conservative treatments have been recommended.  Because of the nature of the plaintiff’s work, as a professional driver transporting fuel, he has limited his medication to Tylenol Extra Strength or Tylenol 8 Hour.  Dr. Jaworski recommended exercises in the pool and gym and brisk walking.  Mr. Latuszek says he swam once in a while, but he did not go to the gym or do brisk walking.  Dr. Jaworski suggested that brisk walking may be contraindicated now that he knows that Mr. Latuszek has a torn medial meniscus.  Mr. Latuszek does very little regular exercise of any kind, except once or twice a week.  He did not try yoga, massage therapy, relaxation therapy or the medications as recommended by his psychiatrist.  He has not taken holidays in the past two years to try the anti?depressant medication, yet he understands that such medication as well as exercise, may improve, if not cure, his symptoms.  The plaintiff has not prioritized his recovery.

[86] In light of the authorities presented by the parties, I conclude that general damages, having regard to the injuries suffered by Mr. Latuszek and the continued problems in that regard, including depression, PTSD, and chronic pain, should be set at $100,000.  There will be a reduction of $40,000 for failure to mitigate.  Therefore, I award $60,000 as general damages.