Skip to main content

Examinations for Discovery and Proper Objections in ICBC Injury Claims

Written by admin on . Posted in Civil Procedure, Uncategorized. 60 Comments on Examinations for Discovery and Proper Objections in ICBC Injury Claims

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, discussing examinations for discovery in ICBC Injury Claims and the proper way to frame objections.
In yesterday’s case (Day v. Hume) the Plaintiff allegedly suffered a brain injury as a result of a serious motor vehicle accident.  In the course of being examined for discovery the Plaintiff’s lawyer ‘intervened on several occasions and, in the end, terminated the examination after 50 minutes over (the objection of the ICBC defence lawyer).’
As a result ICBC’s lawyer brought a motion seeking to dismiss the Plaintiff’s lawsuit on the basis that he unreasonably refused to answer questions put to him in discovery.
Madam Justice Smith of the BC Supreme Court declined to grant ICBC this relief and in doing so highlighted some points about the proper course of objecting to questions in examinations for discovery.  I reproduce the highlights of the courts discussion below:

[20]            The principles emerging from the authorities are clear.  An examination for discovery is in the nature of cross-examination and counsel for the party being examined should not interfere except where it is clearly necessary to resolve ambiguity in a question or to prevent injustice.  Intervention should not be in a form that suggests to a witness what a desirable answer might be.  As stated by Garson J. in Forliti v. Woolley, the proper conduct of counsel is to state the objection to the form of the question and the reasons for the objection, but it is not appropriate to make comments, suggestions, or criticism. 

[21]            There was no real disagreement about the legal principles, except that Mr. Maryn submitted that it must be recognized that the practice has changed since Cominco was decided in that it is now necessary to bring on an application in Chambers with respect to disputes about relevance or other matters at examinations for discovery.  Mr. Maryn submitted that it is quite appropriate for counsel to have a discussion about what might make a line of inquiry relevant and he suggested that if counsel for the defendant had been more forthcoming in this case, some of the problems leading to this application might have been avoided. 

[22]            Mr. Maryn also submitted that, in this case, where his client has suffered a brain injury and consequential memory loss, it was appropriate to remind him during the course of the examination for discovery not to make guesses.  Mr. Duplessis’s submission on that point was that it is not appropriate to remind a witness of such instructions and that any of Mr. Maryn’slegitimate concerns could be resolved through appropriate re-examination at the end of the examination for discovery. 

[23]            Looking at the transcript in this case, while possibly Mr. Maryn would have been justified in reminding his witness once not to guess or speculate and his initial comment to that effect was probably appropriate, his statement after question 39… went well beyond a reminder….  

[24]            There was also disagreement as to whether or not counsel for the party under examination for discovery can make statements for the record at the examination for discovery.  Mr. Duplessis took the position that it is not open to counsel to state things for the record.  I disagree.  Although, as I have stated, counsel for the party under examination should not make comments unless they are clearly necessary, it may be appropriate for counsel making an objection to state briefly what the objection is based upon.  First, that may lead to a resolution of the matter through discussion between counsel and avoid this kind of application.  Second, it facilitates a determination of the issue by the court if there is an application to compel an answer.  However, objections by counsel should be concise and to the point….


Rule 37B and Withdrawn Formal Settlement Offers

Written by admin on . Posted in Civil Procedure.

I’ve written many times about the relatively new Rule 37B and its consequences in BC personal injury claims (click here to read my previous posts), yesterday reasons for judgement were released by the BC Supreme Court (New Westminster Registry) giving more clarity to this rule.
In yesterday’s case, ICBC v. Patko, ICBC sued the defendant alleging fraud.  In the course of the proceedings the Defendant made 2 offers to settle, one of which was withdrawn prior to trial and replaced with a subsequent formal offer.  The Jury dismissed ICBC’s claim against the Plaintiff.  In deciding what costs consequences should flow from these facts one of the issues decided by Mr. Justice Grauer of the BC Supreme Court was whether costs consequences can flow from a formal Rule 37B settlement offer when that offer is withdrawn prior to trial.  In finding that Rule 37B does permit costs consequences to be triggered in these circumstances the court stated as follows:

[31]            Jonathen Patko made a formal offer to settle to ICBC in the amount of $22,500 on June 5, 2007.  On June 4, 2008, after Mr. Patko had pleaded guilty to the quasi-criminal charge against him and had been fined and ordered to pay restitution, he withdrew that offer.  On October 23, 2008, when it became clear that a summary trial was impracticable and this matter would therefore proceed to a full trial, Mr. Patko delivered a further offer to settle in the amount of $11,000.

[32]            Because the action against Mr. Patko was dismissed, the issue addressed by my brother Goepel in A.E. v. D.W.J., 2009 BCSC 505, does not arise, except to confirm that my discretion is limited by the provisions of Rule 37B(5).

[33]            The plaintiff argues that the first offer to settle, dated June 5, 2007, is of no consequence and cannot be considered, because it was revoked a year later.  As to both offers, the plaintiff argues that neither was “one that ought reasonably to have been accepted” in accordance with Rule 37B(6)(a).  In this regard, the plaintiff pointed out that it had paid out over $55,000 as a consequence of the accident and its aftermath, and that Mr. Patko admitted his lie.  Accordingly, the plaintiff argued, both offers were for far less than what the plaintiff had paid out and might have reasonably expected to recover.  ICBC would, of course, have had to pay out that $55,000 even if Mr. Patko had not lied.  This reality did not seem to factor in its assessment of the claim and Mr. Patko’s offers.

[34]            The first question is whether I am limited to considering the second offer to settle, given that the first was revoked a year after it was made.

[35]            In my view, there is nothing in Rule 37B that would place that limitation on my discretion.  Notwithstanding the evolution of the treatment of offers to settle in the Rules, it is clear that one of the principal purposes of Rule 37B remains the same as that noted of the former Rule 37 by Cumming J.A. in Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201, 122 D.L.R. (4th) 330 (C.A.):

… to encourage conduct that reduces the duration and expense of litigation, and to discourage conduct that has the opposite effect.

[36]            Both offers constitute an “offer to settle” within the meaning of Rule 37B(1)(a).  Although the first offer was indeed revoked, it was outstanding for a full year.  The real question is whether, notwithstanding its eventual withdrawal, it was an offer that ought reasonably to have been accepted while it remained open.  To treat it this way is, in my view, consistent with the object described by Cumming J.A. in Skidmore.

[37]            Turning to the issue of reasonableness, I do not think that this question turns on the losing party’s view, at the time that the offer was made, of the result it might expect to achieve.  Rather, reasonableness must be viewed from the perspective of the state of the litigation at the time of the offer, and from the perspective of the result.  In this case, the issues were clear at the time of the first offer, let alone the second.  This was not a case where, for instance, further discovery and investigation was required before the plaintiff could reasonably evaluate its position in light of the offer.

[38]            As to the reasonableness of the plaintiff’s expectation, I note that it was ICBC who had chosen trial by jury, thereby accepting the degree of uncertainty that arises from that mode of trial.

[39]            Moreover, it was the plaintiff that chose to bind itself by a “zero tolerance” policy, which prevented the possibility of a compromise settlement in a case that was not a typical automobile insurance fraud claim. It was certainly open to ICBC to adopt such a policy, no doubt for its own good reasons.  But in this proceeding, the policy worked against ICBC, allowing for no flexibility notwithstanding the unique facts of the case.

[40]            In all of these circumstances, I conclude that the first offer was one which ought reasonably to have been accepted.  In choosing not to accept it because of its own assessment of the strength of its position and its “zero-tolerance” policy, ICBC took its chances, and it lost.

[41]            Taking that into account, as well as the other factors set out in Rule 37B(6), and the course of the litigation in general, I conclude that Jonathen Patko should be awarded double costs of all steps taken in this proceeding after June 5, 2007, when the first offer to settle was delivered.

Motor Vehicle Cases and Expert Reports Addressing Fault

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized. 48 Comments on Motor Vehicle Cases and Expert Reports Addressing Fault

I have written about the role expert witnesses play in ICBC Injury Claims on several occasions.  These past posts have largely dealt with expert medical witness who typically address the nature and extent of injuries caused by motor vehicle collisions.  What about experts addressing the issue of fault, can they play a role in BC personal injury claims?
The answer is yes but for a variety of reasons such witnesses typically are not involved in claims arising from car crashes.  This is so because in most car crash cases addressing fault expert evidence is not needed because judges and juries are able to use their common sense and collective life experience to determine who is at fault.  However, sometimes more unusual circumstances outside of most people’s typical life experience cause a collision such that expert evidence may be necessary.  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing this issue.
In yesterday’s case (MacEachern v. Rennie) the Plaintiff was severely injured while “walking or riding her bicycle along the King George Highway…when her head struck the side of a large tractor-trailer“.
The Plaintiff’s lawyer tried to introduce an expert witness to give opinion evidence on the standard of care of professional drivers of tractor-trailers, whether the driver in this case met that standard and lastly with respect to evidence regarding the characteristics of large tractor trailers.
The defence lawyers objected to this witness claiming expert evidence was not necessary to assist the court in making findings of fault.  Mr. Justice Ehrcke of the BC Supreme Court disagreed and permitted this evidence in and in doing so engaged in a useful discussion about the role that expert witnesses play generally in BC cases addressing the issue of fault.  For your convenience I reproduce the highlights of this discussion below:

[10]            In Burbank v. R.T.B., 2007 BCCA 215 our Court of Appeal observed that while expert evidence on the standard of care is not usually required in negligence actions, it may be capable of assisting the trier of fact and admissible as necessary in certain cases, particularly where the subject matter is beyond the common understanding of the judge or jury.

[11]            In the present case, while most adults in British Columbia may have some experience in driving motor vehicles, few have experience in driving large commercial tractor-trailers.  Few would know from their common experience what the handling characteristics of such vehicles are, or what the visibility is from the perspective of a driver in the cab, or what the common driving practices are of professional drivers of such rigs.

[12]            Not only have most persons never had the experience of driving such vehicles, most persons would not even be legally permitted to drive them, since to do so one must first satisfy the requirements to obtain a special class of driver’s licence…

 

[15]            In Tucker (Public Trustee of) v. Asleson (1993), 78 B.C.L.R. (2d) 173 (C.A.), Southin, J.A. specifically addressed the issue of expert evidence in motor vehicle negligence actions and observed that a distinction ought to be made between cases involving motor cars and those involving large transport vehicles.  She wrote at pp.194-195:

To my mind, motor car negligence cases differ significantly from all other actions in which one person alleges that the acts or omissions of another in breach of a duty of care have done him injury.

First, the Legislature has laid down for motorists many rules of the road and many requirements concerning the equipping of vehicles, all of which the motorist is expected to obey and which he expects others to obey.  The only other aspect of ordinary life so governed is that of the movement of vessels upon certain navigable waters.  But I do not say that obedience to these rules relieves the motorist from all other obligations.  See British Columbia Electric Railway v. Farrer, [1955] S.C.R. 757.

Secondly, experts are not called to prove the standard of care which is appropriate. Each judge brings into court his or her own notions of what constitutes driving with reasonable care.  As I said in McLuskie v. Sakai in a passage quoted in the appeal from my judgment (1987), 12 B.C.L.R. (2d) 372 at 378 (C.A.):

The difficulty with these motor car cases and matters of negligence is that whatever we may be saying, what we are doing as judges is, in fact, applying our own knowledge of driving to the facts in the absence of any other evidence.  That is what a judge does every time he says that the defendant should have avoided an obvious obstruction.  I, on the balance of probabilities, am not satisfied that a competent driver coming upon that ice on that bridge on that morning with both hands on the wheel could have done other than Mr. Sakai did.  Therefore, it follows that I do not think he was negligent.

To put it another way, in motor car cases the judge is his or her own expert.  That is not to say that there could not be expert evidence on the proper way, for instance, for the driver of a mammoth transport vehicle to drive.  If, on such an issue, the plaintiff called an expert to say that such a vehicle should not be driven under certain circumstances at more than 40 miles per hour and the defendant called another expert who said the contrary, the learned trial judge could and usually would be obliged to choose one expert over the other.

[16]            Expert evidence on the standard of care has been considered in a number of negligence cases involving the operation of heavy vehicles.  See for example Millott Estate v. Reinhard, [2002] 2 W.W.R. 678 (Alta. Q.B.) and Fuller v. Schaff, 2009 YKSC 10.

[17]            I am satisfied that Mr. Eckert should be qualified as an expert witness and permitted to give opinion evidence in the areas outlined above.  I find that he has the necessary qualifications and that the evidence is necessary in the sense explained by the Supreme Court of Canada in Mohan.  What weight should be attached to his evidence is, of course, a matter that can only be determined at the end of trial.

More on BC Personal Injury Claims and Litigation Privilege

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues. 42 Comments on More on BC Personal Injury Claims and Litigation Privilege

I’ve written previously on BC Personal Injury Claims and Litigation Privilege and today reasons for judgment were released by the BC Supreme Court further considering this topic.
In today’s case (Semkiw v. Wilkosz) the Plaintiff was the widow of a person who was allegedly killed as a pedestrian in a serious motor vehicle collision in Vernon, BC in 2006.
The driver of the allegedly offending vehicle was operating a vehicle owned by U-Haul Co. (Canada) at the time of the crash.  Following the crash the driver gave a statement to a a “U-Haul adjuster” and subsequent to this she showed a copy of this statement to a lawyer that she consulted with and to the RCMP in Calgary.
The Plaintiff’s lawyer asked for a copy of this statement and the Defendants lawyer in the injury lawsuit refused to produce it claiming that it was subject to litigation privilege.
The Plaintiff also asked for a copy optometrists records relating to the eyesight of the alleged driver and lastly asked for photographs and measurements of the van allegedly involved in this collision taken by a professional engineer instructed by U-Haul.  Production of these materials was also opposed on the basis of litigation privilege.
In rejecting the claim for privilege Mr. Justice Rogers of the BC Supreme Court summarize and applied the law as follows with respect to the statement to the insurance adjuster (so that the following excerpt makes sense Ms. Aisler is the ‘U-Haul adjuster’ and Ms. Wilkosz is the alleged driver):

[12]            It is evident from this list that Ms. Aisler had several goals in mind when she asked Ms. Wilkosz to give her statement.  The current litigation is not clearly dominant among them.  In fact, it appears that Ms. Aisler was as concerned about whether Ms. Wilkosz would ask for payment of no?fault accident benefits as she was about instructing some lawyer that U?Haul might eventually retain or preparing for litigation being advanced by the third party to the accident.  I cannot, on Ms. Aisler’s evidence relating to the purposes for which the Wilkosz statement was obtained, conclude that this litigation was the dominant reason for getting it.

[13]            Further, what a party actually does with a document and how it treats that document before its production is demanded can sometimes be as good an indicator of privilege as anything that the party may decide to assert after that demand is made.  In this case, Ms. Wilkosz’s interaction with the police officer in Calgary clearly demonstrates that U?Haul was quite content for her to have and keep and distribute a copy of her statement to whomever she chose.  Ms. Wilkosz was not, apparently, under any instruction from U?Haul to not show the statement to other persons.  If she was under such instruction, one would have thought that U?Haul would have adduced evidence of such in this application, but it did not.  Furthermore, Ms. Wilkosz made it clear that she had shown her statement to her lawyer Mr. Yuzda.  If Ms. Aisley had truly obtained that statement in order to protect U?Haul from, among other things, Ms. Wilkosz’s claims for accident benefits it is unlikely in the extreme that Ms. Aisley would have allowed Ms. Wilkosz to take the statement off to show to a lawyer who might well advise her on how to successfully prosecute such a claim.

[14]            In my opinion, the fact that U?Haul gave a copy of the statement to Ms. Wilkosz and that it did not restrict her use of that statement demonstrates that U?Haul’s dominant purpose in obtaining the statement was not to instruct its own counsel with respect to the accident.  If that had been U?Haul’s dominant purpose, common sense dictates that U?Haul would have kept the statement to itself, or if it let Ms. Wilkosz have a copy it would have done so after giving her very strict instructions limiting her dissemination of it.

[15]            The defendants’ claim of litigation privilege over the Wilkosz statement must fail.  Because the defendant has chosen to assert a single basis for its claim of privilege for all of its documents, the failure of its claim with respect to that one document means that its claims for all of the documents must likewise fail.  The defendants will be required to give production of all of the documents pre?dating September 21, 2007 and for which they claimed privilege in Part III of their supplemental list of documents.  It follows that Ms. Wilkosz need not give evidence in her examination for discovery concerning the circumstances in which she gave her statement to U?Haul.

With respect to the optometrists records:

[16]            Ms. Wilkosz’s visual acuity is obviously an issue in this case.  She has filed no material to suggest that records relating to her eyesight contain any embarrassing, sensitive, or confidential information that is not relevant to these proceedings.  She has not, therefore, met the criteria for insisting that these records be sent first to her counsel for review.  The plaintiff is, therefore, entitled to receive the records directly from the professionals involved in Ms. Wilkosz’s eye care.  Plaintiff’s counsel has offered her undertaking to deliver those records to defence counsel immediately upon receipt.  Defence counsel has, for no good reason I can discern, been reluctant to accept that undertaking.  In the result there will be an order that defence counsel accept the undertaking.  There will be an order that Ms. Wilkosz sign authorizations for release of her eye care records and delivery of those records to plaintiff’s counsel.  She must sign those authorizations and see that they are delivered to plaintiff’s counsel within seven days of the release of these reasons.  Defence counsel will deliver the signed authorizations to plaintiff’s counsel immediately upon receipt.

and lastly with respect to the engineers materials:

 

[18]            Ms. Aisley’s affidavit does not describe Mr. Gough’s involvement in the case beyond saying that she understood that he was to provide expert advice and that he took a look at the U?Haul van and tried to look at another vehicle involved but was rebuffed by its owner.  Mr. Gough’s affidavit describes his activities concerning the U?Haul van and the site, but does not illuminate his purpose.  Specifically, Mr. Gough does not assert that he examined the van and the site for the purpose of preparing an expert report or for the purpose of assisting counsel in preparing for this or any other litigation.  On Mr. Gough’s evidence, the most that I can conclude is that U?Haul asked him to have a look at the van and the accident scene and to record his observations.  There are no grounds on which U?Haul can claim that Mr. Gough’s work is protected by privilege.

[19]            Mr. Gough’s observations are, of course, relevant to issues raised in the lawsuit.  The plaintiff has asked Mr. Gough to produce the records of his observations but he has refused.  This is a proper circumstance for an order under Rule 26(11) that Mr. Gough deliver to all parties of record a copy of all photographs and records in his possession relating to his examination of the U?Haul van and of the accident scene.

ICBC Negotiations – Formal Rule 37B Offers and the Effects of a Counter Offer

Written by admin on . Posted in Civil Procedure, Uncategorized. 86 Comments on ICBC Negotiations – Formal Rule 37B Offers and the Effects of a Counter Offer

Under the old Rule 37 when a formal settlement offer was made by ICBC the Plaintiff could continue to negotiate and make counter offers without jeopardizing the ability to accept ICBC’s formal settlement offer at a later date.  This was so due to rule Rule 37(10) and 37(13) which held that a formal offer to settle did not expire by reason that a counter offer was made.
As readers of this blog know Rule 37 has been repealed and replaced with Rule 37B.  What if ICBC makes a formal settlement offer under Rule 37B that does not contain any language addressing under what circumstances the offer expires.  Would a counter offer act as a rejection of the formal offer such that it can’t be accepted at a later date?
The first case that I’m aware of dealing with this issue was released today by the BC Supreme Court (More Marine Ltd v. The Ship “the Western King”).
In today’s case the Defendant made a formal offer under Rule 37B to settle a lawsuit for “$40,000 inclusive of interest and costs“.  The Plaintiff made several counter offers which were not accepted.  The Plaintiff then purported to accept the defence formal settlement offer.  The parties could not agree on the documents that would be signed to conclude the settlement and the Plaintiff brought a motion to enforce the settlement.
In dismissing the Plaintiff’s motion Madam Justice  Satanove held that in the circumstances of this case the Plaintiff’s counter offer acted as a non-acceptance of the Rule 37B formal offer which then extinguished the formal offer of settlement.
Her summary of the law as applied to this case could be found at paragraphs 5-11 of the judgement which I reproduce below.

[5]                The plaintiffs’ argument would have succeeded under the old Rule 37 which provided in subsections (10) and (13) that an offer to settle did not expire by reason that a counteroffer was made, and an offer to settle that had not been withdrawn could be accepted at any time before trial.  Rule 37(8) provided that a party could withdraw an offer to settle before it was accepted by delivering a written notice of withdrawal in the prescribed form.

[6]                However, Rule 37B contains none of these provisions.  It simply provides a mechanism for the Court to consider an offer to settle when exercising its discretion in relation to costs.  It has been described as “significantly different, and represents a radical departure, from its predecessor Rule 37” (Alan P. Seckel & James C. MacInnis, British Columbia Supreme Court Rules Annotated 2009 (Toronto: Thomson Carswell, 2009) at 372-374).

[7]                In my view, Rule 37B does not change the common law with respect to settlement agreements, which in themselves are just another form of contract.  The old Rule 37 expressly changed the common law in this regard, but the old Rule 37 is repealed.  If the Legislature had intended the provisions of old Rule 37(8), (10), and (13) to continue to apply to the new Rule 37B, it would have retained the wording of those subsections.

[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.

[10]            The only question that remains is whether the November 28, 2008, offer was revived.  The plaintiffs’ purported acceptance in their letter of March 3, 2009, could be construed as a form of offer to the defendants in the same terms as the defendants’ November 28, 2008 offer, but the defendants’ letter of March 5, 2009, once again evidences a counteroffer by its terms.  The subsequent correspondence between the parties reflects further negotiations between them, but no consensus ad idem.

[11]            In conclusion then, based on my interpretation of new Rule 37B, there is no binding separation agreement for me to enforce and the plaintiffs fail in their application.

This case is a reminder that the common law of contract is alive and well regarding settlement offers under Rule 37B and that many of the statutory terms that applied to Rule 37 formal offers no longer are in place.  Formal settlement offers made by ICBC should be carefully scrutinized to see if a counter offer can be made or if doing so will extinguish the formal offer.

Working out the Kinks – More on Rule 37B and BC Injury Cases

Written by admin on . Posted in Civil Procedure, Uncategorized. 50 Comments on Working out the Kinks – More on Rule 37B and BC Injury Cases

Very important reasons for judgment were released today (AE v. DWJ) by the BC Supreme Court giving more interpretation to Rule 37B.  (Click here to read my previous posts discussing this rule.)
Rule 37B is still relatively new and the courts have not come up with a consistent application of this rule.  Today’s case takes this rule in a potentially new direction that can make access to justice a little less costly and risky for Plaintiff’s advancing injury claims.
In today’s case the Plaintiff was awarded damages of $348,075 after taking into account contributory negligence.  After statutory deductions the judgment in the Plaintiff’s favor was less than the Defendant’s formal offer of settlement.
The Defendant’s lawyer applied to court for an order that “the defendant should receive his costs (After the date that they made their formal settlement offer)”.
In declining to make this order Mr. Justice Goepel stated that under Rule 37B “the court cannot award costs to the defendant (where the defendant beats their formal settlement offer at trial) but is limited to depriving a party of costs or awarding double costs“.  This is the first case I’m aware of interpreting Rule 37B in this fashion.
Below I reproduce the highlights of Mr. Goepel’s reasoning:

Judicial Discretion In Awarding Costs

[48] The discretion a Supreme Court judge has in awarding costs was summarized in Stiles v. British Columbia (Workers’ Compensation Board) (1989), 38 B.C.L.R. (2d) 307 at 310, 39 C.P.C. 2(d) 74 (C.A.):

The power of a Supreme Court judge to award costs stems from s. 3 of the Supreme Court Act which confirms that the judges of the Supreme Court have the inherent powers of a judge of superior court of record.  The power to award costs is governed by the laws in force in England before 1858 and by the enactments, including the Rules of Court, affecting costs made in British Columbia since 1858.  Generally, the decisions on costs, including both whether to award costs, and, if awarded, how to calculate them, are decisions governed by a wide measure of discretion.  See Oasis Hotel Ltd. v. Zurich Ins. Co., 28 B.C.L.R. 230, [1981] 5 W.W.R. 24, 21 C.P.C. 260, [1982] I.L.R. 1-1459, 124 D.L.R. (3d) 455 (C.A.).  The discretion must be exercised judicially, i.e. not arbitrarily or capriciously.  And, as I have said, it must be exercised consistently with the Rules of Court.  But it would be a sorry result if like cases were not decided in like ways with respect to costs.  So, by judicial comity, principles have developed which guide the exercise of the discretion of a judge with respect to costs.  Those principles should be consistently applied: if a judge declines to apply them, without a reason for doing so, he may be considered to have acted arbitrarily or capriciously and not judicially.

[49] In Cridge, Lowry J.A. noted the right of the Lieutenant Governor in Council to restrict the exercise of a Supreme Court judge’s discretion in awarding costs at para. 23:

While, subject to abiding by established principles, a Supreme Court judge has a broad discretion in awarding costs, it remains open to the Lieutenant Governor in Council in promulgating the Rules of Court to restrict the exercise of that discretion as may be appropriate where it is thought that to do so will achieve a desired objective.  The purpose of Rule 37 is to encourage the settlement of litigation through prescribed consequences in costs as in sub-rule (24).  Given that the sub-rule provides for the litigants’ entitlement to costs while affording no discretionary alternative, I consider it clear that there is no room for judicial discretion where sub-rule (24) applies.

[50] A trial judge cannot impose cost sanctions that are not authorized by the Rules.  An example of an ill fated attempt to do so is Kurtakis v. Canadian Northern Shield Insurance Co.(1995), 17 B.C.L.R. (3d) 197, 45 C.P.C. (3d) 294 (C.A.).  In Kurtakis, the trial judge awarded the plaintiff three times special costs.  The Court of Appeal reversed noting at para. 9 that there was “no statutory authority for such an order … and therefore no basis upon which such an order could be made.”

[51] Rule 37B has returned to judges a broad discretion in regards to costs orders arising from an offer to settle.  The discretion is however not unlimited and must be exercised within the parameters set out in the Rule.  Rule 37B(5) dictates the cost options open to a judge when an offer to settle has been made.  A judge can either deprive the party, in whole or in part, of costs to which the party would otherwise be entitled in respect of steps taken in the proceeding after the date of the delivery of the offer to settle or award double costs of some or all of the steps taken in the proceeding after the delivery of the offer to settle.  As noted in Baker, the section is permissive and a judge is not compelled to do either.

[52] What a judge cannot do, however, in my respectful opinion, as a result of an offer to settle, is to order costs to a defendant where the offer to settle was in an amount greater than the judgment.  While that cost option had existed since the time of the 1890 rules, either as an exercise of the court’s discretion or because it was mandated by the terms of the rule, it is not an option available under Rule 37B.  The drafters of Rule 37B(5) have removed that option and presumably determined that the potential deprivation of costs to which a plaintiff would otherwise be awarded is a sufficient incentive for plaintiffs to settle litigation.  As noted in Cridge, the Lieutenant Governor in Council has the right to limit the court’s discretion.  Accordingly, I hold that pursuant to Rule 37B(5) the court cannot award costs to the defendant but is limited to depriving a party of costs or awarding double costs

[53] The defendant does not seek double costs in this case.  It would be a rare case that a plaintiff who recovers damages would face the sanction of double costs. I would expect those sanctions would be limited to situations in which a plaintiff’s case is dismissed or when the plaintiff was awarded more than its offer to settle.

If this precedent holds then Plaintiffs will face fewer financial risks when proceeding to trial.  The costs consequences of going to trial and losing (not beating an ICBC formal offer of settlement) can be prohibitive and today’s case may lead the way to better access to justice in British Columbia for the victims of others negligence.

Can ICBC Talk to my Doctors About my Injuries?

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 102 Comments on Can ICBC Talk to my Doctors About my Injuries?

When you are injured by another motorist in British Columbia and advance an injury claim does ICBC have access to your treating physicians to receive information about the nature and extent of your injuries?
If you are seeking no-fault benefits from ICBC under Part 7 of the Insurance (Vehicle) Regulation the answer is yes.  Section 98 of the Regulation reads as follows:

98 (1)  An insured shall, on request of the corporation, promptly furnish a certificate or report of an attending medical practitioner, dentist, physiotherapist or chiropractor as to the nature and extent of the insured’s injury, and the treatment, current condition and prognosis of the injury.

(1.1)  The certificate or report required by subsection (1) must be provided to the corporation

(a) in any form specified by the corporation including, without limitation, narrative form, and

(b) in any format specified by the corporation including, without limitation, verbal, written and electronic formats.

(2)  The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section.

What if you are injured by a person insured with ICBC and make a tort claim  in the BC Supreme Court against them for your pain and suffering and other losses?    In the course of defending the Claim can the lawyer hired by ICBC have access to your treating physicians to discuss the nature and extent of your accident related injuries?  

Reasons for judgement were released today (Scott v. Erickson) by the BC Supreme Court, Victoria Registry, dealing with this issue.

In today’s case the Plaintiff was injured in a 2004 motor vehicle collision.  In the course of her recovery she was treated by a neuropsychologist.  The injury lawyer defending the claim brought an application to speak with the Plaintiff’s treating neuropsychologist.  In dismissing this application, Master McCallum of the BC Supreme Court summarized the law relating to defendants access to treating physicians in injury litigation as follows:

[8]                The Defendant applies for two orders.  The second application for permission to speak to a doctor may be disposed of summarily.  I refer to the decision of Wilkinson J. in Swirski v. Hachey, [1995] B.C.J. No. 2686 where the court held that there was no necessity for an application for permission to speak to plaintiff’s treating doctors concerning information relevant to the claims made in the action.  The court suggested that notice should be given of an intention to seek informal discussions with plaintiff’s treatment providers and confirmed that treatment providers were not compelled to participate in such meetings.

[9]                The Plaintiff in the case at bar knows of the Defendant’s intention to speak to Dr. Martzke and Dr. Martzke will know that he is free to participate or not as he pleases.  No order is necessary.  As the court said in Demarzo v. Michaud, 2007 BCSC 1736, if the Defendant’s counsel wishes to compel the treatment providers to participate in discussions, an application under Rule 28 is the appropriate vehicle.

In other words, there is no property in a treating physician and a court order is not required for a defendant to approach a Plaintiff’s treating physicians.  However, the treating physicians are under no duty to participate in discussions initiated by the defendant in a lawsuit.  As a result of the professional obligations of treating physicians in British Columbia, many decline to participate in such discussions.

Lawyers involved in the defence of BC injury claims should also keep their professional duties as set out in Chapter 8, section 14 of the Professional Conduct Handbook in mind which states as follows with respect to cotacting opposing expert witensses:

 

Contacting an opponent’s expert

14. A lawyer acting for one party must not question an opposing party’s expert on matters properly protected by the doctrine of legal professional privilege, unless the privilege has been waived.

[amended 12/99]

15. Before contacting an opposing party’s expert, the lawyer must notify the opposing party’s counsel of the lawyer’s intention to do so.

[amended 12/99]

16. When a lawyer contacts an opposing party’s expert in accordance with Rules 14 and 15, the lawyer must, at the outset:

(a) state clearly for whom the lawyer is acting, and that the lawyer is not acting for the party who has retained the expert, and

(b) raise with the expert whether the lawyer is accepting responsibility for payment of any fee charged by the expert arising out of the lawyer’s contact with the expert.

[amended 09/06]

17. In Rules 14 to 16, “lawyer” includes a lawyer’s agent.

In situations where treating physicians refuse to particiapte in an interview set up by the defence lawyer in an injury claim today’s case appears to indicate that Rule 28 of the BC Supreme Court Rules is the proper tool to use to compel the witness to share any relevant facts he/she may have knowledge of.  Rule 28 states as follows:

Order for

(1)  Where a person, not a party to an action, may have material evidence relating to a matter in question in the action, the court may order that the person be examined on oath on the matters in question in the action and may, either before or after the examination, order that the examining party pay reasonable solicitor’s costs of the person relating to the application and the examination.

Expert

(2)  An expert retained or specially employed by another party in anticipation of litigation or preparation for trial may not be examined under this rule unless the party seeking the examination is unable to obtain facts and opinions on the same subject by other means.

Affidavit in support of application

(3)  An application for an order under subrule (1) shall be supported by affidavit setting out

(a) the matter in question in the action to which the applicant believes that the evidence of the proposed witness may be material,

(b) where the proposed witness is an expert retained or specially employed by another party in anticipation of litigation or preparation for trial, that the applicant is unable to obtain facts and opinions on the same subject by other means, and

(c) that the proposed witness has refused or neglected upon request by the applicant to give a responsive statement, either orally or in writing, relating to the witness’ knowledge of the matters in question, or that the witness has given conflicting statements.

Notice of application

(4)  The applicant shall serve notice on the proposed witness at least 7 days before the hearing of the application.

Subpoena

(5)  Where a party is entitled to examine a person under this rule, by serving on that person a subpoena in Form 21, the party may require the person to bring to the examination

(a) any document in the person’s possession or control relating to the matters in question in the action, without the necessity of identifying the document, and

(b) any physical object in the person’s possession or control which the party contemplates tendering at the trial as an exhibit, but the subpoena must identify the object.

[am. B.C. Reg. 95/96, s. 12.]

Notice of examination

(6)  The examining party shall give notice of examination of a person under this rule by delivering copies of the subpoena to all parties of record not less than 7 days before the day appointed for the examination.

Mode of examination

(7)  The proposed witness shall be cross-examined by the party who obtained the order, then may be cross-examined by any other party, and then may be further cross-examined by the party who obtained the order.

Application of examination for discovery rules

(8)  Rule 27 (15), (20) and (22) to (26) apply to an examination under this rule.

Rule 18-A and Your ICBC Injury Case

Written by admin on . Posted in Civil Procedure, ICBC Spine Injury Cases. 38 Comments on Rule 18-A and Your ICBC Injury Case

One of the tools in a BC Trial Lawyers arsenal is BC Supreme Court Rule 18-A.
Rule 18-A permits claims to proceed to court via ‘summary trial’.   In summary trials no live witnesses are called, instead the evidence is put before the Judge by way of affidavit evidence.  From there the lawyers make their submissions and a ruling is made.  By this method the time, and therefore the cost, of trial can be cut down significantly.  
Rule 18-A is, however,  not without its shortcomings.  Without live witnesses taking the stand and getting faced down by a judge or jury it is difficult to weigh credibility.  Where there are 2 different sides to the story and credibility plays a central role Rule 18-A is usually not an appropriate way to proceed to trial.
In personal injury litigation the credibility of the Plaintiff is usually a key issue at trial and for this reason Rule 18-A is rarely used.  That said, this rule can be effective for certain ICBC and other personal injury claims and reasons for judgement were released today by the New Westminster Registry of the BC Supreme Court illustrating this fact.
In today’s case (Smith v. Bhangu) the Plaintiff was injured when she was 14 years old in a BC Car Crash.  The issue of fault was admitted.  This left the issue of quantum of damages (value of the ICBC case) to be decided by the trial judge.
Both lawyers agreed that Rule 18-A was appropriate for this case.  The Plaintiff;s MRI showed a herniated lumbosacral disc injury.  There was no dispute that the Plaintiff suffered from this condition, rather the key issue was whether the Plaintiff’s herniated lumbrosacral disc was related to the car accident.  In agreeing that it was, Mr. Justice Grist made the following findings:

[21]            I am satisfied that the evidence provides, on a balance of probabilities, a causal link between the motor vehicle collision and the lower back condition. I accept the Plaintiff’s evidence that the lower back complaints presented after a period of weeks or months from the motor vehicle collision and that there were no prior or subsequent events causing or contributing to the condition. Further, I accept that following the initial visit to the doctor, she did not present these continuing complaints for medical treatment until lower back spasms developed in 2004 and 2005. I also note Dr. Hershler’s comment that, based on the history and his physical examination, both the neck and lower back symptoms were referable to the motor vehicle collision.

[22]            The upper back condition continues to be symptomatic from time to time, but as in many cases, has shown improvement, and the overall effect of the assessments in the medical reports is an expectation of further progress.

[23]            The lower back condition, however, is more of a problem. The MRI shows a herniated lumbrosacral disk which continues to cause episodes of back pain, sometimes debilitating to the point of prompting attendance at an Emergency Ward. I accept that at age 14, this was not likely a degenerative condition and, as I have previously indicated, on the evidence, is most likely attributable to the collision.

General damages (money for pain and suffering and loss of enjoyment of life) were assessed at $65,000 and a further $80,000 was awarded for the Plaintiff’s diminished earning capacity to reflect the fact that her chronic condition will likely effect her vocationally over her lifetime.
What is remarkable about this case is that the trial took only one day.  Often times when ICBC Claims with serious injuries proceed to trial the process takes numerous days or even weeks.  Rule 18-A permitted this case to be adjudicated with one day of court time with costs savings to both parties.
While Rule 18-A is inaproppriate for many personal injury claims, this case shows that it can be used effectively in certain circumstances.  When prosecuting an ICBC injury claim this rule should not be automatically brushed aside and should be considered in appropriate circumstances.

Personal Injury Claims and Privacy – Can ICBC access your Facebook Account?

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues.

If you pursue a personal injury claim in the BC Supreme Court you will be bound by the Rules of Court with respect to production of relevant documents.
With our ever-expanding use of technology, more and more documents may become relevant in Injury Litigation.  So, can computer records ever be relevant in personal injury claims?  
Reasons for judgement were released today by the BC Supreme Court (Bishop v. Minichiello) dealing with this issue.  In today’s case the Plaintiff allegedly suffered a brain injury as a result of the negligence of the defendants.  The Defendants wished to analyze the Plaintiff’s computer hard drive to ‘determine the period of time the plaintiff spends on Facebook between eleven at night and five in the morning‘.  The Plaintiff refused to produce his computer hard-drive and this resulted in a Court motion seeking an order compelling the Plaintiff to do so.
Mr. Justice Melnick granted the motion and ordered that ‘the parties agree on an independent expert to review the hard drive …to isolate and produce to counsel…the information sought or a report saying that the information sought is not retrievable.’.
In reaching this conclusion Mr. Justice Melnick engaged in the following analysis and application of the law:

IV. ANALYSIS

[46]            Electronic data stored on a computer’s hard drive or other magnetic storage device falls within the definition of “document” under R. 1(8) of the Rules of Court: Ireland at para. 6. 

[47]            Rule 26(1) requires disclosure of documents relating to any matter in question in the action.  The decision of whether to grant an order requiring production under R. 26(10) is a discretionary one: Park at para. 15.  The court has used its discretion to deny an application for the production of documents in the following two circumstances: firstly, where thousands of documents of only possible relevance are in question; and secondly, where the documents sought do not have significant probative value and the value of production is outweighed by competing interests such as confidentiality and time and expense required for the party to produce the documents: Park at para. 15.  Additionally, privacy concerns should be considered in a determination under R. 26(10), where the order sought is so broad it has the potential to unnecessarily delve into private aspects of the opposing party’s life: Park at para. 21.

[48]            Disclosure in the civil litigation context is largely informed by an inquiry into relevance and probative value.  Relevance should be granted a broad scope: Peruvian Guano at 62.  Relevancy is to be determined upon a description of the nature of the documents sought and a reasonable interpretation of the pleadings: Boxer at 359. 

[49]            Relevant to this particular application are the values enshrined in s. 8 of the Charter – the right to be secure against unreasonable search and seizure.  Rule 26(10) confers no power to make an order that is really authorization for a search: Privest Properties Ltd. at para. 38.

[50]            Metadata is information recorded or stored by means of a device and is thus a document under R. 1(8): Desgagne at para. 29.  Metadata is a report of recorded data that is generated by computer software.  It is not something created by the user; rather, it is based on what the user does with their computer.  In both Park and Desgagne, it was held the threshold of relevance had not been met to order production of records of the frequency and duration of computer use.  However, Mr. Justice Myers in Park stated at para. 42 that he did not mean to say that hard drives and other electronic documents need never be produced under R. 26.  Thus, in the appropriate case if the threshold of relevance is met, a hard drive may require production.

[51]            This threshold was found to be met in Chadwick.  Despite agreeing with the plaintiffs that this was a case in which the hard drive was to be regarded as a file repository and not a document itself, Mr. Justice Myers held that such a distinction was not to be determinative of the application. 

[52]            Mr. Justice Bauman, for the Court of Appeal, held that leave to appeal the order should not be granted and the application was dismissed.  The Court of Appeal stated that while an appropriate case may give rise to important issues such as privacy, solicitor-client privilege, expense, and time, this was not that case as Mr. Justice Myers’ order was of narrow scope.

[53]            Similarly, the application at hand is of narrow scope.  The defence wishes to have the plaintiff’s hard drive of his family computer produced and analyzed to determine the periods of time the plaintiff spent on Facebook between eleven at night and five in the morning, each day.

[54]            Examination for discovery evidence of the plaintiff’s mother confirms that the plaintiff is the only person in the family using the family computer between those hours.  The plaintiff suggests that, at times, friends may use the computer once he logs onto Facebook.  But that is an evidentiary issue for trial.  The issues of privacy and solicitor-client privilege are basically resolved as only the plaintiff has the password to his Facebook account and he has not used this account to converse with his counsel.

[55]            It is true the Bishop family computer is more akin to a filing cabinet than a document; however, it is a filing cabinet from which the plaintiff is obligated to produce relevant documents.  This sentiment was approved in Chadwick.  Simply because the hard drive contains irrelevant information to the lawsuit does not alter a plaintiff’s duty to disclose that which is relevant.  If there are relevant documents in existence they should be listed and produced (or simply listed if they are privileged). 

[56]            The defence argues that this case is distinguishable from Baldwin and that the information sought is relevant.  The plaintiff advised Dr. Zoffman that his sleep varies with the time one of his friends goes to bed.  This is because he spends a substantial amount of time on Facebook chatting with this friend.  The plaintiff alleges that ongoing fatigue is preventing him from maintaining employment and thus his late-night computer usage is relevant to matters at issue in this lawsuit.

V. CONCLUSION

[57]            The information sought by the defence in this case may have significant probative value in relation to the plaintiff’s past and future wage loss, and the value of production is not outweighed by competing interests such as confidentiality and the time and expense required for the party to produce the documents.  Additionally, privacy concerns are not at issue because the order sought is so narrow that it does not have the potential to unnecessarily delve into private aspects of the plaintiff’s life.  In saying that, I recognize the concern of the plaintiff that to isolate the information the defence does seek, its expert may well have consequent access to irrelevant information or that over which other family members may claim privilege.  For that reason, I direct that the parties agree on an independent expert to review the hard drive of the plaintiff’s family computer and isolate and produce to counsel for the defendant and counsel for the plaintiff the information sought or a report saying that the information sought is not retrievable, in whole or in part, if that is the case.  I grant liberty to apply if counsel cannot agree on such an independent expert or if other terms of this order cannot be agreed. 

[58]            At the conclusion of the hearing on March 5, having been made aware that the passage of time was critical because of the potential for the memory of the plaintiff’s family computer to be “overwritten” with ongoing use, I directed that within two weeks of that date, an expert engaged by the plaintiff’s counsel, at the expense of the defence, produce two copies of the hard drive to be deposited with the court pending this ruling.  One of those copies should be used for the analysis I have now ordered.  The other copy should remain with the court as a backup to be accessed only with further order of the court. 

This case should serve as a reminder that technology is rapidly changing the potential scope of document production in Injury Litigation.  Lawyers and Plaintiff’s advancing BC Injury Claims need to be aware of the scope of documents that may be relevant and when doing so should not be so quick to overlook the potential relevance of electronically stored documents not only on a computer hard drive but also those that can be found on social networking sites such as Twitter, MySpace and Facebook.

 

BC Personal Injury Claims and the Cost of Litigation

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

Personal Injury Claims can be very expensive to prosecute.  There are many typical expenses involved such as court filing fees, process servers, administrative expenses and the costs associated with gathering relevant information and documents.  However, by and far the greatest expenses associated with prosecuting a Personal Injury Claim are expert witness fees.
Expert witnesses play a role in almost every Personal Injury and ICBC Injury Claim.  Typical expert witnesses include family physicians, treating therapists such as chiropractors and physiotherapists, specialist physicians such as orthopaedic surgeons and physical medicine doctors.  In serious cases where the effects of the injury are permanent often times economists, future cost of care experts and vocational consultants are retained as well.
All of the above professionals are entitled to charge for their involvement as an expert witness in an ICBC Injury Claim and these costs can be significant.  Reasons for judgement were released yesterday (Narvaez v. Zhang) illustrating just how expensive an expert witness can be in a case involving serious injuries.
In yesterdays case the Plaintiff suffered a serious brain injury as a result of a 2004 collision when she was struck as a pedestrian in Richmond, BC.  The case settled before trial for $850,000 plus costs and disbursements.  One of the disbursements incurred by the Plaintiff’s lawyer was associated with expert witness reports by a well respected economist.  
The economist had to prepare ‘several different future income loss assessments and different cost of future care calculations in order to show losses based on (various) plans‘.  In preparing these reports the economist charged about $10,600.
The Defendants refused to pay this account in the settlement claiming it was excessive.  A motion was brought before Registrar Blok of the BC Supreme Court to determine whether this expense was reasonable in the prosecution of the injury claim.  In concluding that this was a reasonable expense Registrar Blok found as follows:

[19]            Here, the question of what the plaintiff had intended as a career path was very much in dispute: in one version of the evidence the plaintiff was going to train as a registered nurse and move to the United States and in another version she would achieve lesser credentials (e.g., licensed practical nurse) and probably would not be able to emigrate to the U.S.  There was evidence going both ways.  The evidence of the plaintiff’s U.S. immigration plan was not fanciful or unreasonably speculative (in which case the cost might be properly disallowed), and there was a reasonable basis to argue that her examination for discovery admission ought not to be accepted at face value.  A registrar considering whether a disbursement was necessarily or properly incurred need only decide that there was a sufficient basis to incur the cost of a disbursement relating to a certain claim; it is not the role of the registrar to decide whether that claim would have succeeded.

[20]            For these reasons I conclude that the evidence supporting the claimed disbursement is admissible and that it was reasonable for plaintiff’s counsel to have asked the economist to provide opinion evidence on U.S.-based scenarios.

[21]            The defendants also argue that the scope of the economist’s reports is excessive in that he was asked to opine on six different scenarios in circumstances where it would have been sufficient to set out just a couple of the more likely scenarios and to then provide a multiplier for the jury to use (for this was to have been a jury trial) to assess damages for any other scenarios the jury concluded would be most likely.  Similarly, the economist was also asked to do six different scenarios for the cost of future care (as distinct from future income loss) and, again, the defendants argue that a multiplier and a table would have been sufficient for the purpose.

[22]            In reply, the plaintiff noted that the economist was asked to do more than provide mere arithmetic, he was asked to compile statistical information on earnings of registered nurses both in Canada and the U.S., the earnings of licensed practical nurse and residential care aides, the likely amount of her residual earnings (that is, her likely earnings given her cognitive impairment) and to prepare projections of lost earnings for those positions using two different start years.  As for the cost of future care, had the situation been straightforward (e.g., based on predictable costs that would be incurred in each and every year) it might have been appropriate to have a multiplier with a table or two, but in this case some of the care items were intermittent or temporary, and some were based on possibilities that she would require more extensive care later in life.  It was thus submitted that it would not be reasonable to expect a jury to use a multiplier or table in a fashion that would properly address these cost variations.

[23]            I have reviewed the reports and accounts of the economist in some detail and conclude that in the circumstances of this particular case it was proper for counsel to ask the economist to set out his opinion on future income loss and future care costs using the different scenarios he did.  There were several employment possibilities for the plaintiff and she might either have ended up in the United States or stayed in Canada, and there was the question of the income that she was now capable of earning in her impaired state.  Similarly, for the cost of future care I conclude that it was reasonable for counsel to set out relatively understandable numbers for presentation to a jury in light of the fact that a number of the future care items were uncertain, intermittent or temporary.  I do not think it inappropriate to conclude that a jury might have difficulty using a mere multiplier or table in light of these sorts of complications.

[24]            In the result, I allow in full the amounts claimed for the costs of the economist’s reports.