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More On Discovery Evidence at Trial and The Adverse Party Limitation

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure. 102 Comments on More On Discovery Evidence at Trial and The Adverse Party Limitation

As previously discussed, one limitation when using examination for discovery evidence at trial is that the evidence is only admissible against the party that was examined.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this limitation finding it is equally applicable during a summary trial.
In this week’s case (Liversidge v. Wang) the Plaintiff sued the Defendant’s for damages.  The Defendants brought Third Party proceedings but the Plaintiff never extended the claim against the Third Party.  In the course of the lawsuit the Plaintiff examined the Third Party for discovery and then set down a summary trial intending to rely on portions of the examination transcripts as against the Defendant.  In disallowing this Mr. Justice Burnyeat provided the following reasons:
12] Rule 12-5(46) (formerly Rule 40(27) states that evidence given at the examination for discovery by a party or a person under Rule 7-2(5) to (10) may be tendered as evidence by a party adverse in interest, but is only admissible against the party examined. This concept was explained by Arnold-Bailey J. in Biehl v. Strang, (2011) 21 B.L.R. (4th) 1 (B.C.S.C). as follows:
I note in Bower v. Cominco Ltd. (1998), 53 B.C.L.R. (3d) 322, 19 C.P.C. (4th) 22 (B.C. S.C.), it was held that the predecessor rule, R. 40(27) of the Rules of Court, B.C. Reg. 221/90 [Predecessor Rules], was enacted in response to Robinson v. Dick (1986), 6 B.C.L.R. (2d) 330 (B.C. S.C.), which permitted the admission of discovery evidence against co-defendants. In Beazley v. Suzuki Motor Corp., 2009 BCSC 1575 (B.C. S.C.) [Beazley] at para. 26, it was held that R. 40(27) only permitted discovery evidence to be admitted against the adverse party examined. (at para. 77)
[13] The decisions outlined in Biehl, supra, and Rule 12-5(46) are clear. The evidence given on an examination for discovery is admissible, but it is only admissible against the adverse party who was examined. Rule 12-5(46) applies equally to a Trial and a Summary Trial.
[14] Under Rule 7-2(1), “a party to an action must make himself or herself available for examination for discovery by parties of record to the action… who are adverse in interest to the parties subject to the examination”. The Plaintiffs did not commence an action against the Third Party so as to make the interest the Third Party adverse to the interest of the Plaintiffs. Here, the Plaintiffs did not have the right to examine the Third Party for discovery. Despite the fact the Third Party consented to being discovered by the Plaintiffs, that consent does not then make the evidence that arises from that discovery available for use by the Plaintiffs against the Defendants.
[15] The evidence provided at the Examination for Discovery of a representative of the Third Party cannot be used on this Summary Trial Application to assist the Plaintiffs in advancing the claim that they make against the Defendants. 

Miscarriage Reference Results in Jury Discharge

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure, Jury Trials. 58 Comments on Miscarriage Reference Results in Jury Discharge

Adding to this site’s archives of judicial commentary on the boundaries of opening statements, reasons for judgement were released earlier this week by the BC Supreme Court, Vancouver Registry, finding that comments addressing the Plaintiff by his first name and further discussing his wife’s miscarriage crossed the line.
In the recent case (Demello v. Chaput) the  Plaintiff was involved in a series of collisions.  During his opening statement he was referred to by his first name and further a miscarriage his wife had was referenced with the following statement being made:
His wife is pregnant during this period of time. She’d like a little bit more support. He’s not able to give that to her. In July, Michael was supposed to do a number of things in anticipation of having some friends over, July of 2012, and at that point his wife was pregnant with her third child. He didn’t get around to doing it. Out of frustration, she did it herself. She did all the work he was supposed to do that day in addition to getting the house ready for a party that they were having. They were having some friends over. She started bleeding and two weeks later she has a miscarriage. Now, whether or not or what caused the miscarriage is not the point here. The point is that she blamed Michael for that, so you can see that’s an obvious point of tension.
Madam Justice Maisonville found these comments crossed the line and discharged the jury.  In doing so the Court provided the following reasons:
[30] I find that in the circumstances of the comments as they were made yesterday, it would be impossible to dispel the chain of reasoning that the accident ultimately led to the miscarriage. To make a further comment would underscore that, and, as noted in the above cases, it would be impossible to effect a correction without drawing attention to the problem and refer to what is not going to be led in evidence.
[31] I do not find that this is the same as the circumstances in the cases Zhong v. Ao and Holman v. Martin, which were not jury trials. I do not find that the remarks are appropriate for an opening, and rather that they are inappropriate and inflammatory and appear designed to have evoked sympathy, and that it would be impossible to craft an instruction to the jury that would be able to dispel that possible sympathy to the jury. As noted, as well, that there were similar objections to references to the position of the defendant respecting liability which cause concern.
[32] The remarks in relation to the miscarriage were sufficient to cause this court grave concerns such that I am going to direct that the jury be discharged. While I find that those remarks are questionable, I am not going to comment on them in these reasons as it is not necessary for me to do so. I do note that the reference to the plaintiff by his first name is considered inappropriate and has been considered so by both the Ontario courts and by the Court of Appeal.
[33] In all of the circumstances, I order that the jury in this matter be discharged.
[34] I note that, pursuant to the provisions of Rule 12, that counsel for the defendant submits that the matter can proceed judge alone. In the circumstances, I am going to order that the matter carry on as a judge alone trial.

Chiropractor Qualified to Opine on Diagnosis and Prognosis in BC Injury Trial

Written by admin on . Posted in BCSC Civil Rule 11, Civil Procedure, independent medical exams. 54 Comments on Chiropractor Qualified to Opine on Diagnosis and Prognosis in BC Injury Trial


In my continued efforts to highlight unreported injury law decisions of the BC Supreme Court, reasons for judgement were recently provided to me addressing the qualifications of a chiropractor to opine on injury causation and prognosis.  This unreported case is a little dated (from 2008) however the discussion is of value and I am happy to publish the decision here.
In the recently provided case (Sloane v. Hill) the Plaintiff was injured in a collision.  She sued for damages and proceeded to jury trial.  In the course of the trial the Defendant objected to the qualifications of the Plaintiff’s chiropractor arguing that a “chiropractor has no basis in training or expertise” to offer opinions regarding diagnosis and prognosis for traumatic injuries.  Mr. Justice Grist disagreed and allowed the chiropractor to be qualified as an expert.  In doing so the Court provided the following reasons:
[5]  Chiropractors are licenced to provide this form of care, and there is no indication that chiropractors are generally incompetent in what they do or, in particular  in the process of forming diagnosis and prognosis.  If nothing else here, the forecast for the future ties to what the chiropractor expects to be the future cost of performing her services…
[6]  The chiropractor will testify and will be subject to cross-examination…
[8]  The admissibility of an expert’s report is dealt with in R v. Marquard [1993] SCJ No. 119 (SCC).  At issue is the witness’s ability, through experience and training, to aid the triers of fact in opinion based on special training or experience; opinion the triers are not likely to be able to form on their own.
[9]  Here, I think the chiropractor does offer something towards this end.  Further, through cross-examination and with the medical evidence to be called, I think there will be ample opportunity for counsel to put the opinion in proper perspective, and there is little likelihood of prejudice.  I think the public is well-acquainted with different healthcare providers, what they can offer and their limitations.
[10]  On balance, I am of the view these opinions can be taken in evidence.
As always I am happy to provide a copy of the full transcript of this unreported decision to anyone who contacts me and requests one.

Late Plaintiff Testimony Does Not Result In Adverse Inference in Injury Claim

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

In my ongoing efforts to track judicial commentary of late plaintiff testimony in injury litigation, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this practice.
In this week’s case (Ram v. Rai) the Plaintiff was injured in a rear-end collision.  At trial her mother and sister testified before she did.  The Defendant argued that the Court should draw an adverse inference in these circumstances.  Mr. Justice Holmes refused to do so but provided the following comments addressing the practice of late plaintiff testimony:
[36]         A plaintiff is free to call her witnesses in the order she and her counsel choose.  However, I agree with the defendants that for a plaintiff to testify after hearing other witnesses testify may affect the weight that can be given to the plaintiff’s own evidence about matters the earlier witnesses addressed.  It may be difficult for the trier of fact to be confident that the plaintiff’s account of events is her own, and is not coloured by or adapted to the preceding evidence. 
[37]         I note also that it may be difficult for the trier of fact to appreciate and assess the full import of the evidence of supplementary witnesses without having first seen and heard the plaintiff herself in the witness stand.  However, that observation relates to a matter of practice or effective advocacy, and not to one of law, evidence, or civil procedure. 
[38]         Madam Justice Humphries discussed these problems at greater length in Gustafson v. Davis, 2012 BCSC 1576 at paras. 112-116.
[39]         Mindful of the potential dangers in the sequence of witnesses in this trial, I find the situation to be a relatively unusual one in which I can be fully confident that Ms. Ram’s evidence was not contaminated in any way by her having heard her mother and her sister give evidence before her.
[40]         The three witnesses gave accounts of the collision and its effects on Ms. Ram, apparent or felt as the case may be, that were consistent with each other in their broad outline but which each spoke clearly and convincingly from the witness’s own perspective.  The mother and the sister testified about what they saw, while Ms. Ram testified about what she felt. 
[41]         For example, Ms. Ram’s mother testified in general terms that after the accident Ms. Ram spent much more time alone in her room.  Ms. Ram in her testimony did not describe her conduct in quite the same way.  She testified that after the accident she felt generally unwell and could not keep up with her usual activities, friends, school, and work.  Sometimes her headaches were bad and she would need to stay alone in a dark room.  These were not identical accounts, but they described the same response from different perspectives.
[42]         In another example, Ms. Ram’s sister testified that Ms. Ram’s posture was affected by the accident.  She testified that Ms. Ram would tend to stoop, and as she began to recover the sister would often touch Ms. Ram on the nose to remind her to straighten up.  Ms. Ram made no mention of stooping or her sister touching her nose, and referred only in passing to her posture as an aspect of the consequences of her back pain.  Ms. Ram’s evidence was in no way inconsistent with her sister’s, but spoke of the pain she herself felt, rather than the stooping the sister saw.
[43]         To my observation, when Ms. Ram had no personal knowledge about a matter, she said so; she did not borrow from the testimony she had heard her mother or her sister give shortly before.  For example, Ms. Ram testified that she did not know whether the impact of the collision had moved the Ram car forward.  She had been in the courtroom when her mother testified earlier during the same day that the impact moved the car forward by between 3 and 6 feet, shifting it into the intersection.
[44]         In short, I found each of Ms. Ram and her mother and her sister to be impressive and entirely credible witnesses.  While I have carefully considered the implications of the order in which they gave their testimony, I find no indication at all that Ms. Ram’s evidence was affected by her mother and sister having testified before she did.

Further BC Supreme Court Criticism of Late Plaintiff Testimony in Injury Litigation

Written by admin on . Posted in Civil Procedure. 58 Comments on Further BC Supreme Court Criticism of Late Plaintiff Testimony in Injury Litigation


Recently I highlighted judicial criticism of the practice of not calling the Plaintiff as the first witness in an injury trial.  You can click here to read Madam Justice Humphries previous criticism of this practice and here for the comments of Mr. Justice McEwan.
Last week further reasons for judgement were released addressing this practice.  In last week’s case (Gustafson v. Davis) the Plaintiff was injured in a motor vehicle collision.  Several witnesses took the stand before the plaintiff testified.  In criticizing this practice Madam Justice Humphires echoed her previous comments and provided the following feedback:
[112]  Ms. Bartholomew, Ms. Hunter, Mr. Sivertson, Mr. Gustafson, a teaching colleague, and Ms. Gustafson’s family practitioner, Dr. Verbonac, were called before Ms. Gustafson went into the witness box. Much of their evidence was hearsay and consisted of subjective complaints and accounts by Ms. Gustafson to them. As the court mentioned several times to counsel for Ms. Gustafson, it would have been helpful to hear her first, before the substance of her evidence was given second hand by other witnesses while she listened to it and to the issues that arose during cross-examination.
[113]  Aside from their recounting of things Ms. Gustafson had told them, these witnesses also had their own observations to make. While their observations of Ms. Gustafson are not hearsay, that evidence was given without the benefit of Ms. Gustafson’s presentation and her first hand testimony, and was difficult to put into a meaningful context, not having heard her testify.
[114]  Counsel has the responsibility to present his case as he sees fit and the court understands if obstacles are created by scheduling difficulties for expert and out of town witnesses, or other unavailability. However, from the point of view of a trier of fact, it is not only frustrating and even confusing to listen to evidence without a context, it can have an impact on the value of all of the evidence.
[115]  The practice of calling the plaintiff first is longstanding and is a common theme in advocacy texts for reasons that resonate with, and are often written by, trial judges. I refer, for example, to § 25.8 of Fraser, Horn & Griffin, The Conduct of Civil Litigation in British Columbia, 2nd ed. (Markham, Ont: Lexis Nexis Canada Inc., 2007):
Unsurprisingly, if a plaintiff is called as the first witness for his case, he tends to have more credibility than if he is called as the last witness, because of his opportunity, in the latter situation, to tailor his evidence to the evidence of the witnesses who have gone before him.
and to s. 8.20 of the British Columbia Civil Trial Handbook, 2nd ed. (Vancouver: The Continuing Legal Education Society ofBritish Columbia, 2005):
In many cases the plaintiff will be called first, such as in a non-catastrophic injury case or a family case. One reason for this choice is that the decision­maker usually wants to see the plaintiff to get a sense of the case, and may pay less attention to other witnesses if impatiently awaiting the plaintiff.
and to Donald S. Ferguson, ed., Ontario Courtroom Procedure (Markham, Ont.: Lexis Nexis Canada Inc., 2007) at p. 815:
It is common for counsel to call their party as their first witness to avoid any submission that the party may have tailored his or her testimony to that of other witnesses.
[116]   If persuasion is the objective, and if it rests largely on the credibility of the plaintiff, counsel might give consideration to the practical and sensible course suggested by experience and this common sense advice.
Given the preference of some injury lawyers to follow this practice the Trial Lawyers Association of BC sent a request to Chief Justice Bauman asking if this was a ‘wide-spread concern‘ for trial judges and if so invited the Chief Justice to a professional development seminar to discuss the concern.   Mr. Justice Bauman responded “I have not heard it suggested that this is a matter of general concern among trial judges on this Court…I do not believe a general discussion of the issue at this time is warranted but I thank you for bringing the issue to my attention”.
I am happy to provide a copy of Mr. Justice Bauman’s letter  to anyone who contacts me and requests one.

"Silence Does Not Mean Consent" – Examination for Discovery Caselaw Update

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure, Uncategorized. 157 Comments on "Silence Does Not Mean Consent" – Examination for Discovery Caselaw Update


 
Adding to this site’s archived caselaw addressing examination for discovery, useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, making the following points:
1. silence (or even agreement) to a discovery request does not compel a party to comply with it
2. the court has no power to order that answers to questions outstadning at an examination for discovery be put in writing
3.  the narrower scope for document production requirements is not circumvented simply by asking for production of documents at an examination for discovery
In this week’s case (LaPrarie Crane (Alberta) Ltd. v. Triton Projects Inc.)Master Bouck provided the following reasons addressing these points:
[32]         As for the outstanding requests from the examinations, Triton submits that  when there is no objection to production on the record — or indeed, where a positive response from the examinee is made — such requests must be answered : Winkler v. Lower Mainland Publishing Ltd., 2002 BCSC 40 at para. 17. In other words, the party being examined is not able to reflect upon requests unless counsel states on the record that the request will be taken under advisement or an objection is raised. Nor can a party have a change of mind upon reflection, or upon taking legal advice.
[33]         The principle that a party should not be permitted to subsequently revoke agreements made at an examination for discovery is laudable. However, silence does not mean consent: Gellen v. British Columbia (Public Guardian and Trustee of), 2005 BCSC 1615 at para. 17 (S.C.). Furthermore, it is difficult to see how the principle enunciated in Winkler can be applied after the introduction of time limited examinations for discovery: Rule 7-2 (2).
[34]         If counsel is expected to pause and consider the relevancy of every question asked of the witness, the time allotted for a party’s examination might well be consumed by objections, interventions and even argument. In recent decisions, the court has strongly discourage such intervention at examinations for discovery: see More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166 at para. 13 foll’g Kendall v. Sun Life Assurance Co. of Canada, 2010 BCSC 1556 at para. 18. Given this change in procedure, I decline to follow Winkler.
[35]         If a person declines to provide the additional information requested, the examining party is not without a remedy: Rules 7-2 (22)-(24). This appears to be the remedy pursued on this application. Nonetheless, the court has no power to order that answers to questions outstanding at an examination for discovery be put in writing: Diachem Industries Ltd. v. Buckman (1994), 91 B.C.L.R. (2D) 312 at p. 314 (S.C.) [my emphasis].
[36]         Finally, it is acknowledged that under the SCCR, the duty to answer questions at an examination is broader than the duty to produce documents: More Marine Ltd. v. Shearwater Marine Ltd., supra, at para. 7. However, a party does not get around the application of Kaladjian v. Jose principles by asking for the documents at these examinations: Maxam Opportunities Fund (International) Ltd. Partnership v. 893353 Alberta Inc., 2012 BCSC 553.
 

Permitting Late Expert Evidence in the Interests of Justice a Remedy to be Used "Sparingly"

Written by admin on . Posted in BCSC Civil Rule 11, Civil Procedure. 112 Comments on Permitting Late Expert Evidence in the Interests of Justice a Remedy to be Used "Sparingly"

Rule 11-7(6) discusses the circumstances when the BC Supreme Court can allow expert evidence to be introduced at trial which does not otherwise comply with the Rules of Court.  Reasons for judgement were released last week addressing this section.  In short the Court held that allowing non-compliant expert evidence to be introduced in the interests of justice is a discretion that “must be exercised sparingly, with appropriate caution, and in a disciplined way“.
In the recent case (Perry v. Vargas) the Plaintiff was injured in a collision.  On the last business day before trial the Plaintiff served a ‘supplementary report’ from her expert which bolstered the experts previous views, clarified statements made in the previous report, and lastly critiqued the defence medico-legal report.s
The Plaintiff argued the late report ought to be admitted as a ‘supplementary report’ pursuant to Rule 11-6(6) or in the alternative the Court should exercise its discretion to allow the non-compliant report in through Rule 11-7(6).  Mr. Justice Savage rejected both of these arguments and in doing so provided the following reasons:
[9]             Rules 11-6(6) (a party’s own expert) and 11-6(5) (a jointly appointed expert) are cognate provisions designed to deal with circumstances where an expert’s opinion “changes in a material way”. Rule 11-6(6) contains an election. In the case of one’s own expert, a party must determine whether it still seeks to rely on the expert report notwithstanding the material change. If it does so, the party must promptly serve a supplementary report.
[10]         Rule 11-6(6) was not intended to allow experts to add either fresh opinions or bolster reasons upon reviewing for the first time or further reviewing material under the guise of there being a material change in their opinion. To provide otherwise would surely defeat the purpose of the notice provisions contained in Rules 11-6(3) and 11-6(4) and the requirement of R. 11-7(1)…
[18]         Rule 11-7(6)(b) focuses on whether there is prejudice to the party against whom the evidence is sought to be tendered. Of course there are cases where reports are delivered a few days late where there is no prejudice. This is not such a case. Delivering a new expert report without any notice well outside of business hours on a Friday evening before a trial commencing Monday morning places the opposing party in obvious difficulties. In my view there is some prejudice to the defendants given the untimely delivery of the Late Report.
[19]         More generally, delivering expert reports on the eve of trial is antithetical to the purpose of the Rules regarding expert reports, which seek to ensure the parties have reasonable notice of expert opinions. Compliance with the Rules allows considered review of the expert opinions, the obtaining of important advice, and possible response reports. Under the former Rules, in Watchel v. Toby, [1997] B.C.J. No. 3150, 33 M.V.R. (3d) 115, Kirkpatrick J., as she then was, excluded in its entirety a late report delivered 12 days before trial where there was insufficient time to obtain any opinion evidence to answer the report.
[20]         Rule 11-7(6)(c) allows the court to admit expert evidence in the interests of justice. It is a separate provision so it can apply in circumstances where the relaxing provisions of Rules 11-7(6)(a) and (b) are not met. Effectively, it provides that the court retains a residual discretion to dispense with the other requirements of R. 11.
[21]         Context here is all important. This is the second scheduled trial. There was a trial management conference with comprehensive trial briefs prepared by both counsel.
[22]         In my view the discretion provided for in R.11-7(6)(c) must be exercised sparingly, with appropriate caution, and in a disciplined way given the express requirements contained in Rules 11-6 and 11-7. That is, the “interests of justice” are not a reason to simply excuse or ignore the requirements of the other Rules. There must be some compelling analysis why the interests of justice require in a particular case the extraordinary step of abrogating the other requirements of the Supreme Court Civil Rules. None was provided.
[23]         In the circumstances, the Late Report is not admissible.

Cyberbullying and Plaintiff Anonymity Discussed by the Supreme Court of Canada

Written by admin on . Posted in Civil Procedure, Sexual Assault Civil Cases, Uncategorized. 59 Comments on Cyberbullying and Plaintiff Anonymity Discussed by the Supreme Court of Canada

Occasionally Canadian Courts make exceptions to the open court principle and allow litigants to sue under a pseudonym and further place publication bans in place.  Reasons for judgement were released today by the Supreme Court of Canada grappling with these issues in the context of a ‘cyberbullying‘ lawsuit involving an infant plaintiff.
In today’s decision (AB v. Bragg Communications Inc.) the Plaintiff, a 15 year old girl, found someone ” had posted a Facebook profile using her picture, a slightly modified version of her name, and other particulars identifying her.  Accompanying the picture was some unflattering commentary about the girl’s appearance along with sexually explicit references.”.  She commenced legal proceedings seeking to uncover the identity of the person who posted this.  She further sought to do so anonymously and asked for the protection of a publication ban.  In a unanimous decision the Supreme Court of Canada held that Plaintiff anonymity was appropriate in these circumstances but that a publication ban beyond information which could identify the Plaintiff was not warranted.  Justice Abella provided the following reasons:
[25]                          In the context of sexual assault, this Court has already recognized that protecting a victim’s privacy encourages reporting: Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122.  It does not take much of an analytical leap to conclude that the likelihood of a child protecting himself or herself from bullying will be greatly enhanced if the protection can be sought anonymously.  As the Kids Help Phone factum constructively notes (at para. 16), protecting children’s anonymity could help ensure that they will seek therapeutic assistance and other remedies, including legal remedies where appropriate.  In particular, “[w]hile media publicity is likely to have a negative effect on all victims, there is evidence to be particularly concerned about child victims. . . . Child victims need to be able to trust that their privacy will be protected as much as possible by those whom they have turned to for help”: Lisa M. Jones, David Finkelhor and Jessica Beckwith, “Protecting victims’ identities in press coverage of child victimization” (2010), 11Journalism 347, at pp. 349-50.
[26]                          Studies have confirmed that allowing the names of child victims and other identifying information to appear in the media can exacerbate trauma, complicate recovery, discourage future disclosures, and inhibit cooperation with authorities.  (See e.g., UNICEF Innocenti Research Centre, Child Safety Online: Global challenges and strategies (2011), at pp. 15–16; and R. v. D.H., 2002 BCPC 464 (Can LII), at para. 8).
[27]                          If we value the right of children to protect themselves from bullying, cyber or otherwise, if common sense and the evidence persuade us that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and if we accept that the right to protection will disappear for most children without the further protection of anonymity, we are compellingly drawn in this case to allowing A.B.’s anonymous legal pursuit of the identity of her cyberbully. ..
[29]                          The acknowledgment of the relative unimportance of the identity of a sexual assault victim is a complete answer to the argument that the non-disclosure of the identity of a young victim of online sexualized bullying is harmful to the exercise of press freedom or the open courts principle.  Canadian Newspapers clearly establishes that the benefits of protecting such victims through anonymity outweigh the risk to the open court principle. 
[30]                          On the other hand, as in Canadian Newspapers, once A.B.’s identity is protected through her right to proceed anonymously, there seems to me to be little justification for a publication ban on the non-identifying content of the fake Facebook profile.  If the non-identifying information is made public, there is no harmful impact since the information cannot be connected to A.B.  The public’s right to open courts and press freedom therefore prevail with respect to the non-identifying Facebook content.
[31]                          I would allow the appeal in part to permit A.B. to proceed anonymously in her application for an order requiring Eastlink to disclose the identity of the relevant IP user(s).   I would, however, not impose a publication ban on that part of the fake Facebook profile that contains no identifying information.

Loss of Interdependency Claims Need to Be Specifically Plead

Written by admin on . Posted in Civil Procedure. 54 Comments on Loss of Interdependency Claims Need to Be Specifically Plead

In British Columbia the law recognizes that a Plaintiff can be awarded damages if they have injuries which impair their opportunity to form a permanent interdependent economic relationship.  Reasons for judgement were released Last week by the BC Supreme Court, Cranbrook Registry, addressing whether such a claim forms part of a diminished earning capacity claim or if it is a unique loss which needs to be specifically plead.  In short the Court held such claims do indeed need to be particularized in the pleadings.
In last week’s case (Moll v. Parmar) the Plaintiff was injured in a 2006 collision.  As trial neared the Plaintiff served an economist’s report advancing an interdependency claim and valuing damages for this at $200,000.  The report was served outside the time permitted under the Rules of Court.  The Defendant objected to the report’s admissibility due to its late service and further due to the fact that an interdependency claim was not specifically plead.  Mr Justice Abrioux held that the report would not be admitted in these circumstances and ordered an adjournment to address the concerns raised.  In concluding that an interdependency claims need to be specifically plead the Court provided the following reasons:
[19]         The issue before me, being whether the interdependency claim had to be specifically pled, was not before the Court of Appeal in Anderson. I have concluded that while an interdependency claim is “closely connected” to one for loss of earning capacity, it is nonetheless a separate head of damages. It should be specifically pled and accompanied, pursuant to the Supreme Court Civil Rules, R. 3-1(2)(a), by a concise statement of the material facts giving rise to the claim.
[20]         Accordingly, if the plaintiff seeks to advance this claim, he is required to amend his statement of claim. Absent the defendant’s consent, he will have to apply to do so. There is no draft amended notice of civil claim before me and, accordingly, I am not in a position to deal with a proposed amended pleading at this time.

Implied Undertaking of Confidentiality Set Aside For Health Care Costs Recovery Action

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

Further to my previous posts addressing the implied undertaking of confidentiality, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing whether the undertaking for documents produced in a tort action should be set aside for a subsequent prosecution under the Health Care Costs Recovery Act.
In this week’s case (British Columbia v. Tekavec) the Defendant was found liable for damages after an individual fell from a balcony in a building owned by him.   He was ordered to pay over $322,000 in damages.  The BC Government then sued the Defendant seeking recovery of their Health Care Costs.
In the course of the lawsuit the Government requested production of certain documents which were created in the initial litigation such as examination for discovery transcripts.  The Defendant refused to provide these arguing they were subject to the implied undertaking of confidentiality.  The Court held that in these circumstances it was appropriate to order production.  In doing so Mr. Justice Williams provided the following reasons:
11]         It is a fundamental rule of the litigation model that information, both documentary and oral, obtained by a party through the discovery process is subject to an implied undertaking. It cannot be used by any other party (i.e. other than the originator) except for the purpose of the litigation in which it was produced. The undertaking is essentially perpetual: it survives the resolution of the litigation in which the discovery was made. The restriction can be modified only by court order or with the consent of the party with whom the material originates.
[12]         The principle is authoritatively articulated in Juman v. Doucette, 2008 SCC 8, and the underlying rationale is discussed there at some length. For the purpose of the present discussion, there is no point to delving into that.
[13]         Where a court order is sought to relieve against the implied undertaking, the applicant will have the onus of satisfying the court on a balance of probabilities that the interest to be advanced through the sought-after disclosure is greater than the values that underpin the rationale for the implied undertaking. Central to the analysis will be a careful consideration of any prejudice that will be caused to the party who initially provided the material at issue. Of course, it goes without saying that the material must be relevant to the issues in the action in which the disclosure is sought…
29]         In the matter at hand, it is my conclusion that the circumstances warrant an order overriding the protection of the implied undertaking. The basis for so deciding is that, while the applicant HMTQ was not a party to the original action, the principal issue in the present action is compellingly similar to the issue there: was Mr. Tekavec responsible for the injuries that were sustained by Mr. Jack? I note as well the following: Mr. Jack has apparently indicated that he has no objection to the materials being disclosed to the applicant. There would be no prejudice to Mr. Jack if the materials were to be disclosed. Finally, the same questions and topics that were canvassed with Mr. Tekavec in the examination for discovery at issue could be quite properly raised in his examination for discovery in the present action. In effect, disclosure of the materials represents a proper means of proceeding more efficiently.