Civil Procedure – Page 37

More on BC Supreme Court 'Costs' and ICBC Claims

Written by admin on December 2, 2008. Posted in Civil Procedure, Uncategorized.

Except in certain circumstances (such as where formal settlement offers are bested at trial under Rule 37B) a Plaintiff who succeeds in an ICBC injury claim in the BC Supreme Court is entitled to ‘costs’ (money paid under a Tariff system to compensate the successful litigant for the fact that they had to engage the BC Supreme Court process to achieve justice). However, if a Plaintiff receives a sum of money within the jurisdiction of the Provincial Court (currently set at $25,000) then they typically are not entitled to costs. Specifically, BC Supreme Court Rule 57(10) reads as follows:
A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
Today, reasons for judgement were released awarding a Plaintiff Costs even though the judgement received was below $25,000.
The Plaintiff claimed injuries as a result of a BC motor vehicle accident. After trial the claim succeeded and damages just below $25,000 were awarded. In finding that the Plaintiff had ‘sufficient reason for bringing the proceeding in the Supreme Court’ and thus entitled to costs Madam Justice Dardi held as follows:

[10] Accordingly, the plaintiff must establish that as at May 31, 2007 when she commenced her action, she had sufficient reason for bringing the claim in the Supreme Court. When these proceedings were issued, the plaintiff was working full-time but continued to attend at physiotherapy treatments prescribed by her doctor. She attended 13 treatments from May 4, 2007 to September 5, 2007. On May 7, 2007, Dr. McGregor continued to note a decrease in neck flexion and tenderness to palpitation of the left shoulder muscles. The medical-legal report tendered by plaintiff’s counsel is dated September 15, 2007. In that report, the prognosis was that the plaintiff’s condition would gradually settle over the next 12 to 24 months and her injury was not likely to cause any permanent disability.

[11] Given that the plaintiff did not have a medical-legal report at the time of the initiation of the action, nor had the defendant tendered any expert medical opinion, her counsel was not in a position to assess the quantum of general damages that may be awarded: Tucker v. Brown, 2008 BCSC 734. As at May 31, 2007, in all the circumstances, there was a real and reasonable prospect that the plaintiff’s recoverable damages would exceed the Provincial Court jurisdiction. Furthermore, unlike Walia, at the time of filing the proceedings, liability was not admitted; rather, the plaintiff had been informed that her claim was denied pursuant to the Insurance Corporation of British Columbia Low Velocity Impact Guidelines.

[12] I have also considered the following comments of Mr. Justice Chiasson in Reimann at para. 35:

In my view, the approach generally taken by the Supreme Court is too limited. It overemphasizes the policy of encouraging parties to proceed in the Provincial Court, but fails to consider the equally compelling policy consideration that parties are entitled to have respected their legitimate choice of forum.

[13] In Bhanji v. Quezada, 2003 BCCA 445, 185 B.C.A.C. 301 at para. 9, the Court provided some guidance as to what would justify a plaintiff’s decision to proceed in the Supreme Court:

The purpose of R. 57(10) is to encourage actions to be brought and continued in Provincial Court when there is no sufficient reason to expect that the claim might give rise to damages in excess of $10,000. That is sometimes a difficult decision for a plaintiff or his solicitor to make. If the plaintiff decides to proceed in Supreme Court he must be prepared to justify that decision in the event he recovers less than $10,000. In many cases, where there is sufficient medical or other evidence capable of supporting the larger claim, it will not be too difficult to justify the decision, especially if the damage award approaches the Provincial Court limit. [emphasis added]

[14] The award in this case is $24,263.47 prior to pre-judgment interest.

[15] In summary, I have concluded that at the time the proceedings were commenced, there was a real and reasonable prospect that the plaintiff’s recoverable damages would exceed the Provincial Court jurisdiction. The fact that the actual amount of the damages awarded to the plaintiff is very close to the Provincial Court limit supports this conclusion. I am satisfied that the plaintiff has demonstrated sufficient reason for bringing her action in the Supreme Court. I order that the plaintiff is entitled to costs under Appendix B at Scale B.

Can a Claim be Brought Into BC Rule 68 by Unilateral Amended Writ? – BCSC says Yes

Written by admin on December 2, 2008. Posted in Civil Procedure.

Reasons for judgment were released today dismissing a defence motion to strike out an amended Writ of Summons bringing an action into Rule 68.
Rule 68 is the “expedited litigation’ rule and is mandatory for certain claims filed in the BC Supreme Court. Rule 68(2) deals with the types of claims that it applies to. The subrule reads as follows:

Actions to which this rule applies

(2) Subject to subrule (5), this rule applies to an action commenced in the Vancouver, Victoria, Prince George or Nelson registry after September 1, 2005, and to every action commenced in any registry after January 1, 2008, if

(a) the only claims in the action are for one or more of the following:

(i) money;

(ii) real property;

(iii) personal property, and

(b) the total of the following amounts is $100,000 or less, exclusive of interest and costs:

(i) the amount of any money claimed in the action by the plaintiff for pecuniary loss;

(ii) the amount of any money to be claimed in the action by the plaintiff for non-pecuniary loss;

(iii) the fair market value, as at the date the action is commenced, of all real property, all interests in real property, all personal property and all interests in personal property claimed in the action by the plaintiff.

In this case the Plaintiff filed the action but did not endorse the Writ of Summons or Statement of Claim to bring the claim within the scope of Rule 68. The Plaintiff then filed an amended Writ of Summons and Statement of Claim with a ‘subject to Rule 68’ endorsement. The Defendant brought an application to strike the amended pleadings. Master McCallum of the BCSC dismissed the defence application ruling that the failure to add the Rule 68 endorsement was a mere irregularity. His key reasons are given at paragraphs 12-13 reproduced below:

[12] Rule 68 is mandatory and requires that actions qualifying as expedited actions proceed under the provisions of the rule. The absence of the required endorsement is an irregularity that may be remedied by amendment. The commencement of a proceeding without the Rule 68 endorsement does not change the character of the proceeding to permit process outside the limits of the rule.

[13] The defendants’ motion is dismissed. The action is an expedited action and Rule 68 applies. The amendments stand. Costs of the motion will be to the plaintiff as costs in the cause.

ICBC Claims, Low Velocity Impacts and Engineering Evidence

Written by admin on November 28, 2008. Posted in Civil Procedure, ICBC LVI (Low Velocity Impact) Cases.

Like many insurance companies the ICBC has a “Low Velocity Impact Program” (LVI) where tort claims are denied on the basis of little vehicle damages in collision.
When these claims are prosecuted one of the strategies often used by ICBC defence lawyers is to try to have the trial focus on the amount of vehicle damage sustained in the collision. This can be done in many ways. Often the Defendant is called to give evidence on the lack of vehicle damage, photos of the vehicles can be put into evidence and evidence of ICBC Vehicle Repair Estimators is sometimes put before the court. Sometimes ICBC goes further and retains a professional engineer to give evidence about the amount of force involved in the collision.
British Columbia courts are not always receptive to engineering evidence being permitted in motor vehicle tort claims. Reasons for judgement were released today by the BC Supreme Court ordering that such a report was indeed inadmissible. Since the judgement is very succinct and easy to follow I reproduce it in its entirety below:

[1] The plaintiff applies for an order that the expert report prepared by James Bowler, a professional engineer, not be admitted as evidence on the basis that it is neither relevant nor necessary.

[2] Mr. Bowler graduated in 1995 and since then has worked for MEA Forensic Engineers & Scientists. The report makes the assumption that “the provided materials accurately describe the vehicle damages from this accident.”

[3] Some of the material that was provided and referred to in the report was a final I.C.B.C. CL14 Repair Estimate and an I.C.B.C. CL14E Low Velocity Impact claim form on the plaintiff’s vehicle, and an I.C.B.C. CL14E Low Velocity claim form on the defendant’s vehicle.

[4] None of this material is before me.

[5] The purpose of the report was to prove what speed change occurred when the plaintiff’s vehicle was struck by the defendant’s vehicle. The vehicles were not examined by the engineer. He relied entirely upon the photographs and the materials supplied by I.C.B.C.

[6] Mr. Bowler stated that the impact severity was assessed by comparing the damage in the incident with two staged collisions tests previously conducted by MEA.

[7] The tests involved a 1985 Mazda RX7 and a 1984 Chevrolet Celebrity. The plaintiff was driving a Nissan 2002 Sentra GXE 4-door sedan and the defendant was driving a Honda 2005 Element 4-door wagon.

[8] The experiment that was conducted by the MEA concluded that on the white Celebrity used in the experiment, which had a mass similar to that of the plaintiff’s vehicle, there was a speed change of 1.3 km/hour.

[9] The conclusion reached was that the plaintiff’s vehicle likely sustained a speed change (slowing of 1.3 km/hour to 2.9 km/hour in the accident).

[10] The defendant says that the change in speed is a factor that I can consider when determining the injuries suffered by the plaintiff. However, without medical evidence as to the effect of the change in speed, this information is not of assistance.

[11] It is trite to say that the opinion expressed by an expert is only as good as the facts that have been proven. Here, there is no evidence as to the validity of the two-stage collision test conducted by MEA. There is no evidence as to the qualifications of the people that performed these tests, whether or not this experiment was published in a peer review article, or whether or not Mr. Bowler had anything to do with those experiments. It seems from the evidence that he did not, as he reviewed two video tapes of these staged collisions. Additionally, the defendant has not put into evidence the I.C.B.C. Low Velocity Impact claim forms or the repair estimate.

[12] I find that the report is not admissible.

ICBC Claims and Formal Admissions

Written by admin on November 24, 2008. Posted in Civil Procedure. 50 Comments on ICBC Claims and Formal Admissions

ICBC personal injury claims lawyers know all too well that the true issues in an ICBC injury claim are not always narrowed down at the beginning of a claim.
Typically, after a Writ of Summons and Statement of Claim are filed, rather boiler-plate Statements of Defence are filed. Oftentimes not only is the issue of fault not admitted but allegations are made that the Plaintiff was not injured, if injured the Plaintiff is at fault for such injuries, if injured the injuries are not connected to the trauma and on and on. Such defences can significantly broaden the scope of a lawuit. As the lawsuit progresses the true focus of the claim often times becomes narrower.
One of the tools in a litigants arsenal in the BC Supreme Court to help narrow the focus of a lawsuit is the Notice to Admit. Rule 31 permits either side in a BC Supreme Court lawsuit to ask the other side to make formal admissions. This tool can be effective in helping narrow the scope of an ICBC injury claim. If a side fails to make reasonable admissions in a BC lawsuit the court can penalize that party with a costs order pursuant to Rule 31(4).
Rule 31 reads as follows:

Rule 31 — Admissions

Notice to admit

(1) In a proceeding in which a statement of defence, answer or answer and counter petition has been filed, a party may, by delivery of a notice to admit in Form 23, request any party of record to admit, for the purposes of the proceeding only, the truth of a fact or the authenticity of a document specified in the notice.

[en. B.C. Reg. 143/94, s. 6.]

Effect of notice to admit

(2) Unless the court otherwise orders, the truth of a fact or the authenticity of a document specified in the notice to admit shall be deemed to be admitted, for the purposes of the proceeding only, unless, within 14 days, the party receiving the notice delivers to the party giving the notice a written statement that

(a) specifically denies the truth of that fact or the authenticity of that document,

(b) sets forth in detail the reasons why the party cannot make the admission, or

(c) states that the refusal to admit the truth of that fact or the authenticity of that document is made on the grounds of privilege or irrelevancy or that the request is otherwise improper, and sets forth in detail the reasons for the refusal.

Copy of document to be attached

(3) Unless the court otherwise orders, a copy of a document specified in a notice to admit shall be attached to the notice when it is delivered.

Unreasonable refusal to admit

(4) Where a party unreasonably denies or refuses to admit the truth of a fact or the authenticity of a document, the court may order the party to pay the costs of proving the truth of the fact or the authenticity of the document and may award as a penalty additional costs, or deprive a party of costs, as the court thinks just.

Withdrawal of admission

(5) A party is not entitled to withdraw

(a) an admission made in response to a notice to admit,

(b) a deemed admission under subrule (2), or

(c) an admission made in a pleading

except by consent or with leave of the court.

Application for order on admissions

(6) An application for judgment or any other application may be made to the court using as evidence

(a) admissions of the truth of a fact or the authenticity of a document made

(i) in an affidavit or pleading filed by a party,

(ii) in an examination for discovery of a party or a person examined for discovery on behalf of a party, or

(iii) in response to a notice to admit, or

(b) admissions of the truth of a fact or the authenticity of a document deemed to be made under subrule (2)

and the court may, without waiting for the determination of any other question between the parties, make any order it thinks just.

Repealed

(7) to (9) Repealed. [B.C. Reg. 95/96, s. 14.]

The reason why I author this blog post is because interesting reasons for judgement were released today dealing with the issue of when ‘deemed’ admissions can be set aside.
In this case the Plaintiff delivered a Notice to Admit. The Defendant failed to deliver a response as required by Rule 31thus deeming that the facts noted in the Notice to Admit being admitted by the Defendant.
The Defendant brought a motion asking that the deemed admissions be set aside. The court granted the motion noting that ‘the interests of justice require that the Defendants be at liberty to withdraw (their admissions)‘
In doing so the court summarized the following factors which can be considered when considering whether deemed admissions should be judicially set aside:

1) That the test is whether there is a triable issue which, in the interests of justice, should be determined on the merits and not disposed of by an admission of fact.

2) That in applying that test, all the circumstances should be taken into account including the following:

3) That the admission has been made inadvertently, hastily, or without knowledge of the facts.

4) That the fact admitted was not within the knowledge of the party making the admission.

5) That the fact admitted is not true.

6) That the fact admitted is one of mixed fact and law.

7) That the withdrawal of the admission would not prejudice a party.

8) That there has been no delay in applying to withdraw the admission.

If you are involved in an ICBC injury claim in the BC Supreme Court and beleive the focus of your lawsuit can be narrowed you may wish to consider delivering a Notice to Admit under Rule 31.

More on ICBC Claims, Impaired Driving and Civil Consequences in BC

Written by admin on November 23, 2008. Posted in Civil Procedure, ICBC Chronic Pain Cases, Uncategorized.

Reasons for judgment were released on November 21, 2008 awarding a Plaintiff just over $230,000 in damages as a result of injuries and losses sustained in a 2004 Vancouver Island motor vehicle collision.
The Defendant was impaired by alcohol when the collision occurred. As a result the Defendant was in breach of his ICBC insurance and ICBC defended the action as a statutory Third Party. In such situations the issue of fault is rarely admitted and although that was the case here liability was not seriously contested at trial and the court found the impaired driver wholly liable for the crash.
It was a significant crash and the Plaintiff sustained various injuries. The most contentious injury of the Plaintiff was a hip injury and the reasons for judgment focus largely on whether the Plaintiff’s hip ongoing hip problems were causally related to the collision. The court found in the Plaintiff’s favor with the key findings being made at paragraphs 75-79 which I reproduce below:

[75] The findings of Dr. Leith indicate a causal connection between the plaintiff’s hip injury and the Accident. Dr. Leith found that Mr. Hartnett’s left hip injury is a soft tissue injury to the left greater trochanter region of the hip. Dr. Leith concluded, at pages 4 and 5 of his report, that Mr. Hartnett’s hip symptoms are “most likely the result of the subject MVA based on the temporal relationship to the Accident and the fact that there is no indication that Mr. Hartnett had any pre-existing conditions to these areas”.

[76] Dr. Leith’s finding that Mr. Hartnett had no prior injuries to his hip is consistent with the evidence led at trial. The evidence did not disclose that Mr. Hartnett had any hip problems, or physical limitations in performing road service prior to the Accident. Further, the evidence of Mr. Hartnett and his wife demonstrates Mr. Hartnett’s willingness to work through pain and his stoic nature. Mr. Hartnett’s reluctance to disclose his hip injury to his physicians does not indicate a lack of connection between the Accident and the injury. Rather, it simply demonstrates that Mr. Hartnett was reluctant to complain about his hip injury based on his personality and his hope that it would gradually heal on its own.

[77] I find Mr. Hartnett’s hip injury is casually related to the Accident since the evidence demonstrates, on a balance of probabilities, that he would not be suffering a hip pain but for the Accident.

FUTURE PROGNOSIS:

[78] The reports of Drs. Leith and Gilbart both indicate the prognosis for Mr. Hartnett’s injuries is positive and that surgery will not be required. Neither examination finds any substantive problems in Mr. Hartnett’s hip, which is his principal, ongoing complaint, along with his shoulder and lower back. Based on an initial review of these reports, it may seem that the severity of Mr. Hartnett’s injuries is minimal and any corresponding impacts on his work and personal life would also be negligible. However, I am persuaded, based on the evidence of Mr. Hartnett and his wife, that the injuries to his hip, lower back and shoulder are in fact significant and continue to cause him considerable pain during various physical activities, especially certain aspects of his employment, recreation and home maintenance activities. I found that both Mr. Hartnett and his wife gave their evidence in a straightforward and honest manner with respect to their recollections and assessments of the Accident and its impact on Mr. Hartnett and the family. I also agree with the conclusion reached by Dr. Leith, that given the time elapsed since the Accident and the extent of Mr. Hartnett’s pain, it is likely that these injuries will continue to affect him in the future.

[79] It is clear that Mr. Hartnett experiences greater amounts of pain while working road service, as compared to yard service. He has twice attempted to work road service since the Accident, for a total of 12 months, and found the job duties resulted in a significant increase in pain. As a result, he was forced to elect yard service because the job requirements in that position, while still painful, were more manageable. Based on all of the evidence, I find these injuries will continue to adversely affect Mr. Hartnett for the foreseeable future.

The court awarded the following damages:

· Non-pecuniary damages: $60,000

· Loss of income-earning capacity: $150,000

· Loss of home maintenance capacity: $10,000

· Past wage loss: $16,280

Future cost of care: $1,000

I have previoulsy blogged about the civil consequences of impaired driving in BC and cases like this serve a stark reminder that the financial consequences can be significant. As an ICBC personal injury claims lawyer I have unfortunately seen the long term impact of impaired driving too many times. If a person drives drunk in BC and negligently causes injury to another they can be held in breach of their insurance. If this happens ICBC (assuming they follow the statutory protocol) have the right to defend resulting tort claims as a ‘statutory third party’ and after they pay the settlement or judgement can come after the Defendant directly for repayment. Unlike most creditors ICBC enjoys certain statutory rights which give them greater teeth to collect from a breached defendant. This case shows that the financial consequences of impaired driving causing injury in BC can easily be in the hundreds of thousands of dollars.

ICBC Claims, CPP Disability and Deductibility of Wage Loss Awards

Written by admin on November 21, 2008. Posted in Civil Procedure, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Wage Loss.

Reasons for judgement were released today dealing with the issue of whether a defendant ordered to pay a plaintiff money for future wage loss as a result of a BC motor vehicle accident can deduct from such an award disability benefits the Plaintiff will receive from the Canada Pension Plan (CPP).
The Plaintiff was injured in a 2005 motor vehicle collision. Liability was not seriously contested and the Defendant was found 100% at fault at trial. The Plaintiff suffered serious injuries including a

1. Fractured sternum; and

2. Head injury with probable significant cerebral concussion; and

3. Contused lower thoracic spine and upper lumbar spine; and

4. Multiple rib contusions.

The most contested injury was whether the Plaintiff suffered from on-going problems as a result of a brain injury allegedly sustained in the collision. The court found for the Plaintiff noting that
[71] On balance I conclude that I accept the expert evidence to the effect that it is more likely than not that there are persisting, but very mild, sequelae from the mild traumatic brain injury affecting cognition. The effects on Mr. Kean’s cognition are so subtle as to be virtually indistinguishable from the concurrent effects from the other operating causes, namely pain, pain medication, and depressed mood.
The Court assessed damages as follows:

Non-pecuniary damages:	$180,000.00
Past wage loss:	$32,506.38
Future earning capacity loss:	$100,000.00
Future care costs:	$51,032.28
Special damages:	$10,672.95

ICBC argued that money the plaintiff has/will receive from CPP should be deducted from his awards for past wage loss and future wage loss awards. The court dismissed this argument concluding that “the law in this jurisdiction is settled to the effect that CPP disability benefits fall within the insurance exception to the rule against double recovery and should not be deducted from tort awards for past or future wage loss”
The key discussion took place at paragraphs 102 – 111 which I reproduce below:

[102] Counsel for the defendant and the third party argued that CPP disability benefits received by Mr. Kean should be deducted from his award for past wage loss, and the present value of future CPP disability benefits should be deducted from his future income award. The thrust of their argument is that this is necessary to prevent double recovery. The defendant argues that CPP disability benefits are a form of mandatory social insurance that workers cannot negotiate out of, and the scheme is a form of income replacement.

[103] The defendant’s argument is essentially the same argument that these same counsel made unsuccessfully in the case of Maillet v. Rosenau 2006 BCSC 10. In Maillet, the plaintiff had received social assistance payments which were deducted from the past wage loss, but Powers J. did not accede to the defendant’s argument that future CPP disability benefits should be deducted from the award for losses of future earnings. As here, the defendants relied on the case of M.B v. British Columbia, 2003 SCC 53, suggesting that the rationale applied in that case to conclude that social assistance payments were deductible from a future wage loss award, was equally applicable to CPP disability benefits and that the decision represented a change in the law.

[104] In Maillet, Powers J. followed a line of authority which had held that the CPP disability pension scheme was essentially an insurance scheme and covered by the insurance exception to the rule against double recovery. This line of authority includes Canadian Pacific v. Gill,[1973] S.C.R. 654, Hayre v. Walz (1992), 67 B.C.L.R. (2d) 296 (BCCA) and Cugliari v. White, (1998) 159 D.L.R. 4^th 254 (Ont.C.A.).

[105] Like Powers J, I do not see the reasoning in M.B. as effecting a change in the law as it applies to CPP disability payments. The analysis undertaken in that case was outlined in ¶24 of the decision:

The first question is whether social assistance is a form of income replacement. If it is not, no duplication arises. If it is, the further question arises of whether social assistance can be excluded from the non-duplication rule under an existing or new exception.

[106] The court determined that social assistance was a form of income replacement and then stated in ¶28:

It follows that the only way in which they can be non-deductible at common law is if they fit within the charitable benefits exception, or if this court carves out a new exception. Otherwise, retention of them would amount to double recovery.

[107] After holding that social assistance payments did not fit the charitable benefits exception (because the rationale for that exception did not concern the purpose of charitable donations, but its effect on the owners and the difficulties of valuation), the court discussed whether it should carve out a new policy- based exception. The court decided that it should not do so. Clearly there was no viable argument that the insurance exception might be applicable to social assistance and that was not considered.

[108] The defendant wishes to characterize the CPP disability payments as a form of social security because it is a legislative creature and contributions are mandatory. But, unlike social assistance, it is funded by contributions and only those who have contributed can benefit. There is an overlap of recovery, but that is inherent in the insurance exception to the rule against double recovery. The other side of the coin is that to deduct the CPP benefits from a tort award is to force the injured contributor to share the benefits of his contributions, (which represent deductions from his former earnings), with the tortfeasor.

[109] The defendant’s book of authorities included, in fairness, the case of Sulz v. Minister of Public Safety and Solicitor General 2006 BCCA 582, which was decided shortly after theMaillet decision. In Sulz, the British Columbia Court of Appeal quotes from Mr, Justice Iacobucci in Sarvanis v. Canada 2002 SCC 28 at ¶33:

….it has already been held by this court that CPP disability payments are not to be considered indemnity payments, and therefore that they are not to be deducted from tort damages compensating injuries that actually caused or contributed to the relevant disability. See Canadian Pacific Ltd. v. Gill; Cugliari, supra. This rule is passed on the contractual or contradictory nature of the CPP. Only contributors are eligible, at the outset received benefits, provided that they then meet the requisite further conditions.

[110] The issue in Sulz was the deduction of superannuation pension from a tort award. The British Columbia Court of Appeal, in a decision written by Madam Justice Levine, (who was the trial judge in M.B. whose deduction of social assistance payments was upheld by the Supreme Court of Canada) said, at ¶65:

The superannuation pension received by the respondent is of the same character as CPP disability benefits and other pension payments, which have consistently held to be non-deductible from tort damages.

[111] I conclude, as did the court in Maillet, that the law in this jurisdiction is settled to the effect that CPP disability benefits fall within the insurance exception to the rule against double recovery and should not be deducted from tort awards for past or future wage loss.

NOTE – the reasoning of this case may not apply to all ICBC claims. For example in ICBC UMP Claims where ICBC is entitled to certain statutory deductions from the damages they need to pay to an insured.

ICBC Claims and Recording 'Independent' Medical Exams

Written by admin on November 20, 2008. Posted in Civil Procedure, independent medical exams. 54 Comments on ICBC Claims and Recording 'Independent' Medical Exams

Reasons for judgement were released today dealing with several motions before the BC Supreme Court in a motor vehicle accident claim.
The Plaintiff was self represented in this Supreme Court action. (This case is worth reviewing on this point alone as the judgment illustrates some of the challenges courts sometimes face when dealing with unrepresented parties in Supreme Court actions).
One of the motions before the court was to compel the Plaintiff to attend an independent medical examination with a doctor of ICBC’s choosing. While the Plaintiff did not object to being examined, she wished for several conditions to be set including the right to record the examination.
In not granting this condition Master Young reviewed several authorities dealing with the issue of recording independent medical exams. Master Young concluded that in this case there were no cogent reasons to permit audio recording. She referred to the leading BC Court of Appeal case on this topic of Wong v. Wong, 2006 BCCA 540 which discussed the the factors BC Courts should consider when hearing such applications, namely:

(a) the absence of evidence that an audio tape recording would inhibit or impair the examination;

(b) evidence that the plaintiff had a poor memory or was forgetful;

(c) the absence of evidence that the examining doctor objected to the use of a tape recorder;

(d) evidence that the plaintiff had difficulty communicating and understanding, perhaps related to lack of fluency in English or the language of the examining doctor;

(e) the likelihood that a tape recording might lead to settlement short of trial; and

(f) the likelihood that an audio tape recording would contribute to the fairness of the trial.

In the same case the Court of Appeal noted the following about recording independent medical exams:

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

More Judicial Consideration of Rule 37B

Written by admin on November 19, 2008. Posted in Civil Procedure, ICBC Psychological Injury Cases, ICBC PTSD Cases.

Reasons for judgement were released today by Mr. Justice Butler providing more commentary on the new BC Rule 37B. (search this site if you wish to read my numerous previous posts on Rule 37B precedents).
In this case the Plaintiff witnessed a severe motor vehicle collision. He was not involved in the crash nor did he know any of the people involved. He claimed that he suffered from Post Traumatic Stress Disorder (PTSD) and sued for damages for nervous shock. The claim succeeded and damages in the amount of $11,100 were awarded.
That in and of itself was a first in BC as far as I am aware as previous successful nervous shock cases involved circumstances where the allegedly injured party knew or had family connections to the victims of the collision.
The Defendants delivered a formal offer of settlement which was greater than the judgement amount. The issue now was, what, if any, costs consequences should there be under the new Rule 37B.
In awarding the Plaintiff costs up to the point that the offer was made an in awarding the defendant costs from then onwards the court made the following comments:
[16] One of the goals of Rule 37B, like the former Rule 37, is to promote settlements by providing that there will be consequences in the amount of costs payable when a party fails to accept an offer that ought reasonably to have been accepted. That goal would be frustrated if Rule 37B(5) did not permit the court the option of awarding costs of all or some of the steps taken in a proceeding after the date of delivery of an offer to settle….

[20] While the case was novel for the reason noted above, it was not particularly complex. The foreseeability, proximity and public policy questions have been the subject of other decisions of both this court and the Court of Appeal. Ultimately, my decision rested upon the evidence of the three psychiatrists regarding causation. This should not have surprised the parties, as all three psychiatrists concluded that Mr. Arnold suffered Post Traumatic Stress Disorder (“PTSD”) as a result of the nervous shock he experienced at the scene of the motor vehicle accident. The real issue was whether the psychiatric difficulties he encountered approximately a year after the accident were caused by the motor vehicle accident induced PTSD.

[21] Mr. Arnold received supportive medical legal opinions from two treating psychiatrists. However, the report of Dr. Smith concluded that Mr. Arnold’s subsequent disability was not related to the PTSD or the motor vehicle accident. Once Mr. Arnold was in receipt of that report, he had all of the information he required to properly consider the offer to settle. Within a reasonable period after receipt of the report and the offer to settle, the offer to settle was one that ought reasonably to have been accepted. This is the most significant consideration for me in deciding how to exercise my discretion in this case.

[22] A reasonable period of time to consider an offer to settle is seven days: Bailey v. Jang, 2008 BCSC 1372. I do not know when Dr. Smith’s medical legal report was delivered to Mr. Arnold. If it was delivered prior to the delivery of the offer to settle, then the offer to settle is one that ought reasonably to have been accepted seven days after the date it was delivered. However, if Dr. Smith’s report was not delivered until some later date, I conclude that the offer to settle was one that ought reasonably to have been accepted seven days after delivery of the report.

[23] Mr. Arnold has asked that I take into account the relative financial circumstances of the parties when exercising my discretion. I find that I am unable to do so. First, Mr. Arnold has provided no evidence regarding his financial circumstances other than the assertion that the likely result of a costs award in favour of the defendant will leave him with no recovery from the action. Rule 37B gives this Court greater discretion than it had under the old Rule 37. It specifically allows the Court to consider the relative financial circumstances of the parties. However, there will always be a substantial difference between the relative financial circumstances of the usual personal injury plaintiff and the defendant’s motor vehicle insurer. That difference, in and of itself, is not enough for the Court to exercise its discretion to deprive the defendant of costs. If that was the intent of the new rule, it would have been more clearly articulated.

[24] In the present case, Mr. Arnold has put forward no evidence of special circumstances regarding his finances. He has put forward no evidence of other factors that should be taken into consideration in the exercise of my discretion. Accordingly, I will leave it to other courts to consider when it is appropriate to deprive a party of costs when that party has delivered an offer that ought reasonably to have been accepted.

Rule 37B precedents are being handed down at a very fast pace by our BC Courts and I will continue to discuss these judgments as they come to my attention, particularly in ICBC or personal injury claims.

ICBC Claims, Surveillance Video and Disclosure

Written by admin on November 19, 2008. Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 38 Comments on ICBC Claims, Surveillance Video and Disclosure

Reasons for judgment were released today by the BC Court of Appeal dealing with the timing of disclosure of non-privileged video surveillance of a Plaintiff involved in a tort claim.
In this case the Plaintiff sued for damages as a result of 2 motor vehicle collisions. The Defendants insurer retained a private investigator to conduct surveillance of the Plaintiff.
In the course of the lawsuit the Plaintiff triggered Rule 26 (which, when complied with, requires the opposing party to provide a list of documents relevant to the action). The Defendants listed the video surveillance as non-privileged but refused to produce the tape of the Plaintiff until after her examination for discovery claiming that Rule 26(1.2) permits them to delay production of this document because the credibility of the Plaintiff was a central issue of this claim and if the supposedly damaging tape was disclosed prior to discovery that would somehow compromise the defendants ability to examine her for discovery.
The Plaintiff applied to court for production of the tape and succeeded. The Defendants took the case up to the Court of Appeal.
The Court of Appeal dismissed the appeal and gave the following insightful reasons discussing the intent of Rule 26(2.1)

[22] Generally speaking, the burden of proof is on the party making an application. That burden is to the standard of a balance of probabilities. I see no principled reason why an application under R. 26(1.2) should be treated any differently. In this case, the appellants are the applicants seeking a postponement of production of the Investigative Report. In my view, they have the burden of establishing the grounds for such an order on a balance of probabilities.

[23] Both sides contend that Blank, the seminal decision on the scope of the exemption for litigation privilege, supports their respective positions that the trend in disclosure of documents favours broadening (the appellants) or restricting (the respondent) of the exemption. With respect, I do not find these submissions offer assistance in this appeal. The circumstances of this case do not involve a request for disclosure of a privileged document but, rather, a request to postpone production of a relevant, non-privileged document. In my view, the issue raised in this appeal requires an inquiry into what factors might negate the mandatory production of relevant, non-privileged documents in an action…..

[37] I am not persuaded these authorities support the appellants’ position that the common law permits the postponement of non-privileged documents in order to permit a party to challenge the credibility of the opposing party. On the other hand, neither am I persuaded that the policy considerations relied upon by the chambers judge, namely that prior disclosure may save the cost of discoveries as well as court time, preclude trial by ambush, or advance settlement, are relevant considerations. In my view, the scope of R. 26(1.2) must be decided by reference to the legislative intent of its drafters and a principled application of the competing rights provided by the Rules of Court to parties in an action.

[38] The express wording of R. 26(1.2) allows for exclusion from compliance with R. 26(1), not the postponement of its compliance. To read in language importing a temporal factor is not, in my view, in keeping with the approach to statutory interpretation adopted in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] S.C.R. 559 at 26, where the Court endorsed the modern approach to statutory interpretation: “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”. In determining the scope of the exemption provision in R. 26(1.2), I am of the view the Court must consider only those circumstances in which valid policy concerns might support the decision to exclude (not postpone) production of a relevant, non-privileged document. …

[45] There has been much debate over the broad scope of the Peruvian Guano rule, which stated in Murao at para. 12 requires disclosure of “every document … which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit [making the demand] either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a chain of inquiry which may have either of these consequences”. In my view, it is the extensive scope of this common law disclosure rule that created the need for reasonable limitations. Stated in another way, it is the “slavish” application of R. 26(1) which informs the scope of R. 26 (1.2).

[46] The appellants seek to distinguish these decisions under R. 26(1.2) on the basis that they do not involve a key issue of credibility. They submit that, in this case, an order postponing the production of the surveillance videotapes would give them the opportunity to test the willingness of the respondent to lie about her claim. They argue that, in the absence of such an order, the respondent might tailor her evidence to fit the scenario depicted in the videotape.

[47] With respect, I do not accept this argument as representing a valid purpose for an application of R. 26(1.2). In this case, there has been no factual determination regarding the respondent’s truthfulness, or lack thereof. This is the appellants’ theory of liability, and it is for them to establish in the course of the trial. Nor am I persuaded that the Rules of Court were intended to be used in a manner that would displace a right of a party granted under them, in favour of creating an opportunity for an adverse party to advance their theory of a fact in issue.

[48] The court in Bronson v. Hewitt, 2007 BCSC 1477, 52 C.P.C.(6th) 116 reached a similar conclusion in dismissing an application for the exclusion of the defendants from one another’s examination for discovery over concerns they might tailor their evidence to fit the evidence of the other. Credibility was a key issue in that case. Citing Sissons v. Olson (1951), 1 W.W.R. (N.S.) 507 (B.C.C.A.), Goepel J. stated at para. 17 that “exclusion was only appropriate if necessary to ensure the fair and proper judicial conduct of the action.”

[49] Another similar conclusion was reached in McGarva v. British Columbia, 2003 BCSC 909. That case involved a damages claim for breach of fiduciary duty against the Crown by a plaintiff who had been abused while in foster care. The plaintiff sought disclosure of similar fact evidence from the Crown. The Crown, in turn, applied for a postponement of disclosure of that evidence in order to avoid the potential of the plaintiff tailoring her evidence to fit the similar fact evidence. Credibility was a key issue in the action. Madam Justice Gray declined to impose such a term on the disclosure of the relevant documents, stating that there was no basis for her to restrict the plaintiff’s receipt of this information. In her view, the Crown’s position was not prejudiced because it would remain open to the Crown to argue, at trial, that the plaintiff had tailored her evidence to conform to any similar fact evidence disclosed to her before her examination for discovery (para. 17).

[50] The final submission by the appellants is that, in our adversarial system, the right to cross-examination is sacrosanct and should not be trumped by disclosure. However, this argument mischaracterizes the issue. Rule 26(1.2) does not limit the appellants’ right to cross-examine the respondent. The respondent’s credibility may be challenged in any number of ways, including the use of a prior inconsistent statement on cross-examination, the lack of adequate explanation for any apparent discrepancies between the respondent’s actions in the surveillance videotape and her reported disability, and by other evidence tendered at trial that might dispel the legitimacy of her claims.

[51] In summary, I am not persuaded that R. 26(1.2) was intended for the purpose of restricting the right of a party, at an examination for discovery, to prior knowledge of all relevant and non-privileged documentation in the examining party’s possession and control, in order to permit the latter to advance its theory of the case where credibility of the former is a key issue in the litigation.

[52] I would dismiss the appeal and award costs of the appeal to the respondent in any event of the cause.

I should point out that this case does not address the more typical fight about the release of surveillance video in a tort claim that is supposedly privileged. In this case it was agreed that the tape was not privileged. This case is useful, however, because the Court of Appeal references many precedents addressing the issue of litigation privilege and the disclosure of video surveillance.

More from BCSC on Rule 37-B

Written by admin on November 18, 2008. Posted in Civil Procedure. 54 Comments on More from BCSC on Rule 37-B

Reasons for judgment were released today further interpreting the relatively new BC Rule 37(B) (the rule dealing with formal settlement offers and costs consequences of these in BC Supreme Court Actions).
The facts of this case are a little difficult to extract from the judgement but it appears that the Plaintiff sued for damages as a result of 2 motor vehicle collisions and separate Formal settlement offers were made by the Defendants in each action. Both actions went to trial by jury and damages were awarded.
It appears that the global Jury award exceeded the combined settlement offers but when broken down between the 2 accidents it appears that the settlement offer for the second collision exceeded the damages the Jury awarded for that collision.
The Defendants asked the court to award them costs for beating the Second Accident Rule 37 offer. (I should point out that the settlement offers where made when Rule 37 was still in place but verdict was given after it was repealed by Rule 37B).
The court noted that:

[11] Rule changes have overtaken this case. Rule 37B retroactively reinstates judicial discretion in the matter of settlement offers and cost awards.

[12] As set out in Bailey v. Jang, 2008 BCSC 1372, Rule 37B came into force on July 1, 2008. The Rule states that it applies to offers to settle made both before and after July 1, 2008, where no order as to costs has been made. As conceded by the defendants on this application, Rule 37B returns judicial discretion as a major factor in determining an appropriate award of costs. Thus, the new rule makes far less applicable most of the Court of Appeal decisions relied upon by the defence. That is, those which stated Rule 37 is a complete code in relation to which no judicial discretion is applicable.

The court then refused to exercise its discretion to award the second defendant costs or double costs for exceeding their settlement offer. The court provided the following reasons:

[14] The analysis requires applying the facts to Rule 37B(6)(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

[15] Here, while I do not find, as urged to do by the plaintiff, that the offer is ambiguous or at least significantly ambiguous, it is clear that to accept the second offer in this case would not have simplified the trial at all. It is reasonable to assume that, particularly with a jury to have settled the second action would tend to leave the jury with more complicated instructions.

The relationship between the terms of settlement offered and the final judgment of the Court

[16] The two offers combined were significantly less than half the award of the jury. Thus, this factor favours not awarding costs to the defendants.

The relative financial circumstances of the parties

[17] This was a matter of a bus company versus the modest financial circumstances of the plaintiff. If anything, it favours the plaintiff however, I give little weight to this.

[18] In all these circumstances – the over-riding principle here is whether, if the offer had been accepted would there have been a significant or any saving in litigation cost to either party or the Court. Here, it would be difficult to see any saving. It was obvious during this trial that the defence intended to call the bus driver and perhaps other witnesses to the second accident to challenge the plaintiff’s credibility generally. There was little or no evidence by the plaintiff that painted the second accident as other than minimal physically. The psychological impact was far greater because the second accident occurred just hours following a much more traumatic accident.

[19] Thus, there would have been no savings in time at the trial. In these circumstances the defendants are not entitled to any costs of these two actions and the plaintiff will have her costs throughout.

[20] There is divided success on this application. However, the plaintiff was successful on the costs issue which took up almost the whole of the submissions. In these circumstances she should have her costs at the lowest scale on this application.

I will continue to post the BC Supreme Court’s interpretation and application of Rule 37B. The factors the courts consider in exercising discretion under this rule should be of particular interest to anyone taking an ICBC injury claim to trial in BC Supreme Court where a formal settlement offer has been delivered.