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More on Rule 37B – Lack of a "Reasonable Counter Proposal" Considered

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Jury Trials, Uncategorized. 51 Comments on More on Rule 37B – Lack of a "Reasonable Counter Proposal" Considered


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, considering a factor that I don’t believe has been previously considered under Rule 37B, the effect (or lack of) a reasonable counter offer.
In today’s case (Foster v. Juhasz) the Plaintiff was injured in a BC car crash.  She sued for damages.  Before trial she made a formal offer under Rule 37B for some $285,000 and at the same time indicated she would be willing to settle for $214,000.  The Defendants rejected the offers, apparently did not make a counter offer and went to trial.
At trial the Jury awarded the Plaintiff over $450,000 in total damages.  The Plaintiff then brought a motion for ‘double costs’ under Rule 37B.
The Defendants argued that they could not have accepted the offer because their insurance policy was only for $200,000.   Mr. Justice Crawford rejected this argument and ordered that the Defendants pay double costs.  He reasoned that the offer should have been accepted.  In coming to this decision he took into consideration the fact that the Defendants did not make a “rational counter-proposal“.  Mr. Justice Crawford provided the following reasons:

[14] While I accept the policy limits may have been a factor in not accepting the offer, it does not answer the question why a rational counter-proposal was not made by the defendants. There was no comment made by the defendants as to the reasonableness or otherwise of the plaintiff’s offer. Rather, the position was taken that the defendants had a meritorious case to present on the issues which could result in an award under policy limits. If that was so, then a sensible and rational defendant could have sat down and appraised the plaintiff’s case. For instance an assessment of general damages at $60,000, past wage loss at $2,000, future lost earning capacity at $35,000, and $25,000 for future care could be made. That would not have been unreasonable and at least if not accepted, might have created a pathway to settlement. Such an offer pales in comparison to the jury award, especially the future income capacity and future care components. More so in that I recall directing the jury to be moderate. I am obliged to say the jury’s award was far beyond the evidence on these aspects.

[15] However, I do not accept the argument that the defendants were in an impossible situation in terms of accepting the offer. They chose their own level of insurance, and their choice was, with respect, a very low one given current potential liabilities for motor vehicle owners. I accept counsel’s belief that there were reasonable arguments to advance as to the amounts of the plaintiff’s claims. It was not unreasonable to think a jury, in light of the small past income loss, might not give a large future lost income award. As to the reasoning of the jury on the future care aspect, that cannot be fathomed. But no direction is given to a jury on the quantum of general damages, save in catastrophic cases.

[16] The motion for judgment was not contested by the defendants at trial. Counsel does say the case is under appeal, so the quantum may not be settled. I agree with Humphries J. that while consideration should be given to the result, the court’s discretion is not to be driven by “hindsight analysis”: see Lumanlan v. Sadler, 2009 BCSC 142.

[17] Another aspect is deterrence. The difference in the offer and the final award is a factor, as is the failure of the defendants to make a sensible counter-offer. It was not a case where the plaintiff would not obtain a reasonable award. It was a case to be carefully assessed and the usual avenues for settlement explored. A reasonable counter-offer would show a sensible stance being taken by the defendants before trial. That course was not chosen.

[18] Under the previous rule, double costs would have been automatic. Now there is consideration of whether or not the offer could be reasonably accepted.

[19] While there may have been some grounds for not accepting the offer, no response was made, the defendants choosing to “keep their powder dry” for trial. In the circumstances, the plaintiff is entitled to her double costs, which I allow for preparation for trial, examination for discovery, and the trial. I do not allow costs for the notices to admit which I now address.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

Please My Lady, Overturn that Award! One of BC's Largest Personal Injury Jury Awards Discussed

Written by admin on . Posted in Civil Procedure, Jury Trials, Uncategorized. 42 Comments on Please My Lady, Overturn that Award! One of BC's Largest Personal Injury Jury Awards Discussed


Late last year a Vancouver Jury handed out one of the biggest Personal Injury awards in British Columbia’s history.  In that case (Ciolli v. Galley) the Plaintiff was injured in three seperate motor vehicle accidents.  The trial for all of her claims were heard together and a Jury initally awarded some $12 million in compensation.
The award included $6.5 million for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  Such an award is not allowed in Canada as a result of a series of cases known as “the trilogy”.  In the trilogy the Supreme Court of Canada found that the maximum a victim can be awarded for non-pecuniary damages in a negligence claim is $100,000.  Adjusted for inflation this cap is now close to $327,000.  After being advised of this fact the Jury reduced their award of non-pecuniary damages to this maximum amount bringing the total judgement to some $6.2 million.
The Defendants, undoubtedly surprised by the award, asked the trial judge to disregard the Jury’s award arguing that the damages awarded were “exceptional” and mandated “judicial intervention“.  The Defendants asked that a mistrial be ordered .
Madam Justice Loo dismissed the mistrial application finding she had no jurisdiction to overturn the award.   In reaching this conclusion Madam Justice Loo made the following observations:
Only in limited circumstances may a trial judge refuse to accept a jury’s verdict; when he or she concludes “that there is no evidence to support the findings of the jury; or where the jury gives an answer to a question which cannot, in law, provide a foundation for judgment”…
In my respectful view, the defendants are really complaining that the jury’s award is inordinately high or wholly out of proportion to the evidence and cannot be reasonably supported by the evidence. That may be, but unless there is no evidence to support the jury’s findings, a trial judge may not reject a jury’s verdict. I cannot conclude that there was no evidence before the jury relating to Ms. Ciolli’s claim for pecuniary loss, and accordingly, the application is dismissed.
This case is heading off to the BC Court of Appeal and I’ll be sure to report the BC High Court’s comments on this case once they have an opportunity to release their reasons for judgement.

BC Court of Appeal Discusses In Trust Claims and Document Disclosure Requirements

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Reasons for judgement were released today by the BC Court of Appeal discussing two important legal principles in the context of personal injury claims, “In Trust” Claims and Document Disclosure requirements.
By way of brief background, in today’s case (Dykeman v. Porohowski) the Plaintiff was injured in two motor vehicle accidents.  Her matter went to trial and a Jury awarded $44,000 in total damages.  The Plaintiff was seeking substantially greater damages and she appealed alleging the trial judge made multiple errors.
The BCCA granted the appeal and ordered a new trial.  In doing so the Court made some useful comments about the above areas of law.
1.  In Trust Claims
Generally speaking when a person is injured through the fault of another and has limits they can be compensated for hiring others to help them with their limits.  If the help is provided free of charge by family members a claim can still be made and this is called an ‘in trust’ claim.
In today’s case the trial judge refused to put the “in trust” claim to the jury reasoning that injuries were not “grievous” enough for an in trust claim.   The Court of Appeal agreed that this was incorrect and that “grievousness” is not required to advance an in-trust claim.  The Court provided the following useful summary of the law:

[28] Since Kroeker, it has been settled law in this province that “housekeeping and other spousal services have economic value for which a claim by an injured party will lie even where those services are replaced gratuitously from within the family.”  In Kroeker, such recovery was allowed under the heading of ‘loss of future ability to perform household tasks’, but obviously, damages for loss of such ability prior to trial may also be properly claimed and recovered: see, e.g., McTavish v. MacGillivray, 2000 BCCA 164 at paras, 43, 51-7, perHuddart J.A.; West v. Cotton (1995) 10 B.C.L.R. (3d) 73 (C.A.) at para. 25; and Campbell v. Banman 2009 BCCA 484.  The reasoning in Kroeker has been extended beyond “spousal” services to services rendered by other members of a family: see Boren v. Vancouver Resource Society, Dufault, McTavish v. MacGillivray; Bystedt v. Hay, all supra.  Such awards are colloquially referred to as “in trust” even though it is the plaintiff who recovers them, and British Columbia courts do not generally impose trust terms in their orders, regarding the loss as that of the plaintiff: see Feng v. Graham (1988) 25 B.C.L.R. (2d) 116 (C.A.) at 9-10; McTavish, supra.

[29] The majority in Kroeker was alive to the possibility that awards for gratuitous services by family members of plaintiffs could “unleash a flood of excessive claims” (supra, at para. 29) and for that reason, urged courts to be cautious in making such awards.  In the words of Gibbs, J.A.:

… as the law has developed it would not be appropriate to deny to plaintiffs in this province a common law remedy available to plaintiffs in other provinces and in other common law jurisdictions. It will be the duty of trial judges and this Court to restrain awards for this type of claim to an amount of compensation commensurate with the loss. With respect to other heads of loss which are predicated upon the uncertain happening of future events measures have been devised to prevent the awards from being excessive. It would be reasonable to expect that a similar regime of reasonableness will develop in respect of the kind of claim at issue in this case.  [At para. 19; emphasis added.]

I do not read Kroeker or Ellis, however, as establishing a threshold of “grievousness” in terms of the injuries which may necessitate such services.  A plaintiff who has a broken arm, for example – presumably not a “grievous” injury – and who is obliged to seek assistance in performing various household tasks should not be foreclosed from recovery on this basis.  This was recognized in Ellis in the quotation reproduced above.  Thus I disagree with the trial judge’s reference to grievous injury as a threshold that the plaintiff was required to surmount if her claim was to go to the jury.  Instead, claims for gratuitous services must be carefully scrutinized, both with respect to the nature of the services – were they simply part of the usual ‘give and take’ between family members, or did they go ‘above and beyond’ that level? – and with respect to causation – were the services necessitated by the plaintiff’s injuries or would they have been provided in any event?  Finally, if these questions – which I would have thought are appropriate for determination by a jury – are answered affirmatively, the amount of compensation must be commensurate with the plaintiff’s loss.  The assessment of such loss has been the subject of several considered judgments in this province, most notably McTavish and Bystedt, both supra.

[30] The trial judge’s second reason for not putting the claim to the jury in this case was that the services which were the subject of the in-trust claim were not personal or household services but were related to the business operated by the plaintiff’s family.  As mentioned above, counsel evidently agreed that the plaintiff’s parents’ claim for ‘business losses’ had not properly been made.  It is not correct to say, however, that the plaintiff herself could not claim for assistance provided by family members in a family enterprise (see Johnson v. Miller, supra) or that there was no evidence of personal or household services having been provided by Ms. Dykeman’s parents to her.  The mother testified that she was “supposed to spend” a third of her time on the farm – in accordance with the partnership agreement in evidence – and had planned on going back to practice on a part-time basis.  Instead, she found herself spending at least 10 to 12 hours per week assisting in the business and babysitting her grandchildren when her daughter had medical appointments or migraine headaches.  At the time of trial, she testified, she was caring for her grandchildren “pretty well every day” plus assisting in the equestrian business.  The plaintiff’s migraines had become less frequent, but the medication she took for them essentially ‘knocked her out’ for 12-14 hours – during which Ms. Dykeman’s mother slept in the same room with her granddaughter.  The thrust of her evidence was that at least until her grandchildren were in school, she would not be able to return to practice even on a part-time basis.  Mr. Dykeman’s services, on the other hand, related almost entirely to “physical work” in the Freedom Fields Farm operation.

[31] In all the circumstances, it seems to me that there was evidence of household and other assistance provided by Ms. Dykeman’s parents that could have been the basis of an award and that the trial judge erred in effectively granting a ‘no evidence’ motion in respect thereof.  I would allow the appeal on this ground.

2. Document Disclosure Obligations

The second area highlighted in this case relates to document disclosure.  In pre-trial investigation the Defendants gathered a number of Internet postings apparently written by the Plaintiff.  They listed these documents as ‘privileged‘ and did not reveal them until shortly before trial.  In describing the privileged documents they labelled them as a “diskette containing an index to the Plaintiff’s web postings“.

The Plaintiff objected to these documents being used in cross examination but the trial judge allowed the cross examination.  On appeal the BCCA found that this was an error finding that the documetns were not properly described and this may have pejudieced the Plaintiff.  Specifically the BCCA said as follows:

[41] Applying these observations to the case at bar, can it be said that the descriptions reproduced above were such as to enable the plaintiff and her counsel, or a judge in chambers, to assess the validity of the claim of privilege?  In my opinion, none of the items was sufficiently described for this purpose.  Item 77, an index to the plaintiff’s “web postings”, could contain any number of “writings” posted on any number of websites, relevant or irrelevant to the case.  With respect to item 78, one does not know who wrote the “articles” regarding the plaintiff’s equestrian business or the date of such articles; with respect to item 79, there is no description of the “pictures printed out from the Internet regarding horse riding”, where they are from or what connection, if any, the plaintiff had with them; and with respect to item 80, there is again no description of the “articles”, who wrote them or when.  Counsel told the court below that the postings had all been written by the plaintiff, but even that was not apparent from the disclosure document.  Thus I disagree with the trial judge’s ruling that the postings had been adequately “listed” for purposes of R. 26.  (For a discussion of ‘e-discovery’ generally, see The Sedona Conference Working Group 7, The Sedona Canada Principle: Addressing Electronic Discovery (2008).)  If the defence had been more forthcoming, counsel for Ms. Dykeman might well have challenged the claim of privilege asserted by Mr. Harris – via the Form 93 filed by Mr. Gibb.

[42] Assuming, then, that the defence failed to make proper discovery of the Internet documents, the next question is whether it can be said the trial judge nevertheless properly exercised his discretion under the opening words of R. 26(14) to permit Ms. Dykeman to be cross-examined on some of those documents.  In Stone v. Ellerman, the majority stated that the factors relevant to the exercise of such discretion include the question of prejudice to the party being cross-examined, whether there was a reasonable explanation for the other party’s failure to disclose, whether excluding the document would prevent the determination of the issue on its merits, and whether in the circumstances of the case, the ends of justice require that the document be admitted.  In this case, counsel did not provide any “explanation” for the non-descriptiveness of Mr. Gibb’s list and argued only that disclosure hadbeen sufficient.  The trial judge therefore had no explanation to consider, even if he had been of the view that the listing was deficient.

[43] It is difficult to square the trial judge’s ruling on this second question with his prior ruling that the documents had been properly disclosed or ‘listed’.  If the latter was correct, there was no need to ‘balance’ the interests of justice in avoiding trial by ambush against the interests of justice in assessing Ms. Dykeman’s credibility by cross-examining her on the Internet postings.  Given that her lawyer had only half an hour to discuss the 124 pages with her, it cannot be said with any certainty that she was not prejudiced by what transpired.  At the end of the day, I am not confident that the apparent exercise of the trial judge’s discretion was fair to the plaintiff or rested on a correct understanding of the Rule.  I would therefore allow the appeal on this basis as well.

This case contains some other interesting comments which are worth reviewing, particularly with defence statements to the jury regarding adverse inference.  I urge all personal injury lawyers in BC to read this case in full as it thoroughly canvasses many areas that routinely arise in injury prosecution in this Province.

Navigating the Minefield – BCCA on Improper Opening and Closing Statements in Jury Trials

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One role lawyers have in Injury Litigation is to persuasively advance their clients case and this extends to opening statements and closing arguments at trial.  Sometimes, however, lawyers become caught up in the moment and cross the line in their remarks to a jury and this can lead to a mistrial.  Reasons for judgement were released today by the BC Court of Appeal reviewing this area of the law.
In today’s case (Knauf v. Chao) the Plaintiff was involved in two Motor Vehicle Collisions in 2002.  The Plaintiff was injured in both crashes.  The Plaintiff’s claim proceeded to trial and the Jury awarded just over $500,000 in total compensation for her injuries including an award of $235,000 for non-pecuniary damages.
The Defendants appealed the judgement arguing in part that the trial was unfair because the Plaintiff’s lawyer made improper statements in his opening and closing submissions to the Jury.  The BC Court of Appeal agreed with this submission and found that the Jury’s award for non-pecuniary damages was excessive.  The Court reduced the jury’s award by $100,000.  In doing so the court made some useful comments with respect to the Plaintiff’s lawyers submissions which are worth reviewing.
During the trial the Plaintiff called an expert witness who conducted a functional capacity assessment of the Plaintiff’s abilities.  In doing so the expert used some validity tests which are used to measure the consistency of effort applied by the Plaintiff.  When the expert gave evidence the results of the validity testing was discussed.  In short the validity testing showed consistent effort throughout the assessment.  In closing arguments, the Plaintiff’s lawyer commented on this evidence and stated as follows ” She was consistent throughout.  What she said and what the test result showed were the same.  She wasn’t exaggerating; she wasn’t saying she was in pain when the test results showed differently.  She was consistent. And that’s what those tests were designed to do to show if what she told Mr. Pakulak, if what she told her doctor, what she told you was real and legitimate.”
The Court of Appeal took no issue with the validity testing but held that the Lawyers comments were improper.  Mr. Justice Tysoe held as follows: “In my opinion, there is nothing objectionable about validity testing per se.  It goes to the reliability of the opinion expressed by the expert and the weight to be given to it by the trier of fact.  That is a proper purpose…However, the remark made by the plaintiff’s counsel in his closing address to the jury was clearly improper (this was conceded on appeal by counsel for the plaintiff, who was not counsel at trial).  The plaintiff’s counsel effectively told the jury that they could use Mr. Pakulak’s evidence for the improper purpose of oath-helping.  This was not corrected by an instruction in the charge to the jury.”
The Court then went on to highlight some further statements made by the Plaintiff’s lawyer and reproduced the following exerpts at paragraphs 39-40:

[39] The opening statement made by the plaintiff’s counsel to the jury included the following (with the comments the defendants say are objectionable emphasized by me):

The statements of defence that were filed on behalf of the defendants say they are not responsible, and this confused and upset Ms. Knauf. … Responsibility was still denied, that is until last Friday, six years after these accidents, when the defendants’ lawyer told us that they now admit responsibility; …

Ms. Knauf comes to court to ask you to fix the harm that was done to her on those two days in 2002.

Ms. Knauf lost her ability to make good money as a waitress and save to buy a home back when prices were still reasonable.  These accidents were six years ago and Ms. Knauf had already saved — and by coincidence the figure is $6,000.  She’d already saved that from the time a year before the accident when she started working as a waitress….

Ms. Knauf has not collected any disability benefits or sick benefits or social assistance because of her injuries.  She’s a worker. She’s struggling in an expensive city and wants to work not less but more.

[40] His closing address included the following (with the similar added emphasis):

It took six years for the defendants to acknowledge their responsibility for these accidents. We are now here, not for sympathy, but to collect the debt that is owed to Ms. Knauf and the rules require that that debt be paid.

Ms. Knauf does not stay at home and whine.  She has not collected disability benefits; she has not collected welfare; she’s not collected employment insurance or any benefits because of her injuries.

Now, Ms. Knauf has had to deal with other problems, big, difficult problems:  the death of her mother; an unrelated knee problem; her marriage. Don’t be sidetracked by those issues.

I said that we’re here to collect a debt, a debt that is owed to Ms. Knauf by the defendants.  That debt is compensation for the harm and the losses that they caused her. …You’re not to consider any outside reasons.  The rules don’t allow that.  You’re only to consider the losses and the harms that were suffered by Ms. Knauf, nothing else. If any of you consider any outside reasons, you’re breaking the rules and everyone here has to follow the rules.

You’re going to be asked about special damages.  That’s the money that Ms. Knauf spent on treatment.  That’s Exhibit 1.  It’s just under $6,000 and those amounts were not challenged.  And it’s a coincidence, perhaps a sad coincidence, that the money Ms. Knauf has spent on her own treatment these last six years is about equal to what she had saved up hoping to buy her own home at the time of these accidents.

The Court of Appeal concluded that these comments were improper and provided the following guiding comments:

Some of the comments made by the plaintiff’s counsel were irrelevant and appeared to be designed to arouse hostility against the defendants.  Others appeared to be designed to appeal to the emotions of the jury or otherwise engender sympathy for the plaintiff.  Counsel improperly stated that his client was owed a debt by the defendants.  He improperly suggested to the jury members that they would be “sidetracked” or “breaking the rules” if they considered the death of the plaintiff’s mother, the injury of her knee or her unsuccessful marriage, all of which were relevant to the state of her health or enjoyment of amenities.

[43] The plaintiff concedes that some of the comments made by her counsel at trial were unfortunate or improper, but says there were no exceptional circumstances warranting interference by this Court in view of the lack of objection by the defendants’ counsel.  I do not agree.  The effect of the improper comments is manifested in the jury’s award for non-pecuniary damages, which, as I will discuss under the next heading, was wholly disproportionate and constitutes a substantial wrong.

The Court went on to reduce the Jury’s award of non-pecuniary damages by $100,000 but pointed out that if the Defence lawyers objected during trial a mistrial may have been an appropriate remedy.

As trial lawyers know it is a fine line distinguishing between what comments are persuasive and which cross the line to improper.  Cases such as this will continue to add clarity and help trial lawyers navigate the minefield of Jury Trials.

The Jursidiciton of Trial Judges to Rule on "Trial Fairness" Matters

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In a judgement released today the BC Court of Appeal discussed the power of Trial Judges to make orders relating to “Trial Fairness” matters.
In today’s case (Oberreiter v. Akmali) the Plaintiff sued for personal injuries from a 2004 BC car crash.  The matter went to trial and a Jury awarded the plaintiff about $118,000 in total damages.  Before the judgement was ‘entered’ it was discovered that the jury was given access to surveillance footage of the Plaintiff which had not been entered into evidence.  The Plaintiff successfully applied for a mistrial.  (Click here to read my summary of the mistrial application).
The Defendants brought the matter to the Court of Appeal arguing, amongst other things, that the Trial Judge had “no jurisdiction to entertain a motion after a jury has rendered its verdict and been discharged“.
The BC Court of Appeal disagreed with this submission and dismissed the appeal.  In doing so Madam Justice Smith gave the following useful and succinct outline regarding the powers of trial judges to rule on “trial fairness” matters:

[24] It is settled law that until a judgment or order has been entered, a trial judge continues to be seized of the matter before him or her. In Clayton v. British American Securities,[1935] 1 D.L.R. 432 at para. 83, [1934] 3 W.W.R. 257 (B.C.C.A.), the court noted that this was recognized as an “unquestioned practice” and “one of very long standing”. Similarly inBurke, the court concluded that, as a principle of law, a trial judge retains the remedial jurisdiction to declare a mistrial on an issue that goes to trial fairness (in that case it was whether there existed a reasonable apprehension of bias) after a jury verdict has been rendered and the jury discharged.

[25] In my view, there is no conflict in the authorities and none were provided that would suggest that a trial judge, before judgment is entered, does not retain jurisdiction to address a trial fairness issue. If that were so, then there would be no jurisdiction for a trial judge, as an issue of law, to address an application to reduce a jury’s award on damages that exceeded the “cap”. In my view, there was no arguable or meritorious issue as to whether the trial judge was functus officio to hear the application.

More on BC Injury Claims and Mode of Trial

Written by admin on . Posted in Civil Procedure, Jury Trials, Uncategorized. 52 Comments on More on BC Injury Claims and Mode of Trial

Further to my previous post about parties flip-flopping on their choice to have a Trial by Jury in a BC Injury Claim reasons for judgement were released today considering the issue of “whether or not a party who has taken the necessary two steps to require a trial by jury…can change that mode of election before the trial commences“.
In today’s case (Iskum v. Badali) the Plaintiff was involved in two motor vehicle collisions.  The Plaintiff sued and both cases were set for trial.  The defence lawyers in each lawsuit filed Jury Notices within the time frames required.    The Defendants paid the Jury fees as required by the Rules of Court.  Late in the litigation new defence lawyers were appointed and 10 days before trial they told the Plaintiff’s lawyer that they intended to have this matter tried before a judge without a jury.  The Plaintiff objected arguing that it was too late for the defendant to change their mind.
Madam Justice Griffin agreed with the Plaintiff and reasoned as follows:

[10] Here, the plaintiff did not exercise any right to trial by jury.  The plaintiff simply did not contest the defendants’ election of trial by jury.

[11] Thus, the issue before me does not have to do so much with a party’s right to a jury trial, rather, it has to do with a party’s right to know the mode of trial no later than 30 days before trial.  The issue properly framed is whether or not a party who has taken the necessary two steps to require trial by jury, as set out in Rule 39(26), can later change that mode of election before the trial commences…

[30] I find that by taking the two steps set out in Rule 39(26), the defendants “required a jury,” and therefore the payment of the subsequent fees is mandatory pursuant to s. 17 of theJury Act.

[31] The defendants suggest that having paid the first set of fees, they can decide to not pay the second set of fees simply by giving notice to the sheriff that they no longer require a trial by jury.  They suggest that s. 19 indicates that the trial judge has discretion to allow this.

[32] I find that s. 19 of the Jury Act does not give a party who has elected trial by jury the right to simply give notice that it will not pay the jury fees required on a daily basis and thereby unilaterally un-elect the mode of trial by jury.  Rather, the payment of those fees is mandatory and only if they are not paid will the sheriff bring this to the attention of the court to make such order as the court considers just.  This preserves the court’s inherent jurisdiction to control its own process, but does not confer a procedural right on a party to simply “un-elect” trial by jury by not paying subsequent fees.

[33] Here, the defendants attempted to unilaterally un-elect trial by jury within 10 days of the trial starting by simply advising the sheriff and the other side that they no longer wished to proceed by trial by jury.  I conclude that the Rules of Court do not allow for such a re-election within 30 days before trial.  I find that the defendants had no authority to do so under theRules of Court.

[34] It is clear that the Rules of Court do not allow for a party to elect trial by jury late in the process.  This election must be made within strict time limits set out in Rule 39(26).

[35] The mode of trial is very relevant to how the parties will prepare for trial and is also relevant to settlement discussions before trial.  The Rules of Court as a whole recognize that it is not efficient to conduct civil trials by ambush.  Civil trials are more efficient and settlement is more likely if parties have advance notice of not just the case they have to meet, but the mode of trial.  The 30-day notice period in Rule 39(26) is there to provide parties with some certainty as to the mode of trial with a goal of efficient resolution of disputes.

[36] As noted by Mr. Justice Taylor of our Court of Appeal in Hoare v. Firestone Canada Inc. (1989), 42 B.C.L.R. (2d) 237 at 241:

The learned judge very properly emphasized the importance of the right to elect for jury trial.  But on a broad consideration of the rules and authorities which has been possible in these appeal proceedings I have concluded that the election is intended to be made once only, at a particular stage, and for good reason.  If the trial may be before judge and jury, rather than judge alone, that is generally an important consideration for both parties in preparation of the case and perhaps, indeed, in the selection of counsel.  It is, I think, for these reasons that the rules require the election to be made, once for all, soon after the action is set down, instead of leaving the parties free to elect thereafter on the basis of later developments.

[37] As a matter of common sense and in light of the clear purpose of the Rules of Court to avoid trial by ambush, the time limits imposed on the mode of selection of trial apply whether the mode of trial is by jury or is by judge alone.  I conclude that were it intended to be otherwise, there would be an express provision in the Rules of Court, pursuant to which a party could unilaterally elect to proceed by judge alone, despite having elected trial by jury by meeting the requirements of Rule 39(26) at least 30 days before trial.  There is no such provision.

[38] Rather, once the election has been made and has crystallized by the taking of the two steps set out in Rule 39(26) at least 30 days prior to trial, the only basis for a party to set aside the election of trial by jury is pursuant to Rule 39(27) on the basis that the case is unsuitable for trial by jury.

[39] On its face, Rule 39(27) would seem to apply only to the party who has received the jury notice.  However Rule 35(4) provides that the court, on its own motion or on the motion of any party, may order that the trial proceed without a jury on any of the grounds set out in Rule 39(27).  In this regard, see Robitaille v. Vancouver Hockey Club Ltd. (1979), 12 B.C.L.R. 335 (S.C.), aff’d 14 B.C.L.R. 377 (C.A.).

[40] This brings me back to the B.C. Court of Appeal decision in Molnar.  I conclude that having elected trial by jury, the defendants must proceed with a jury unless they can discharge the onus of proving that this matter is not suitable for a jury on the grounds set out in Rule 39(27).

[41] Here, the defendants did not apply at this pre-trial conference to set aside the jury notice, and advanced no argument based on the grounds set out in Rule 39(27).  It is clear that the defendants simply asserted that they had a right to re-elect trial by judge alone at any time prior to the start of trial.  I have found that the Rules of Court do not permit this.

This is the first case that I am aware of dealing with these specific facts making this case a useful precedent.  Now the question is will this precedent continue to be useful once the new BC Supreme Court Civil Rules come into force?

The answer appears to be yes.  This case turned on the Court’s interpretation and application of Rule 39(26).  This rule is replaced in the New BC Supreme Court Civil Rules at Rule 12-6(3) which is almost identical to the current rule in its language and requirements (there are some minor changes in the timelines involved but otherwise the rules appear identical).  If a party wants to change their minds after filing a Jury Notice they better do so before paying the Jury Fees otherwise it appears to be too late.

To read my other posts cross referencing the current Rules with the New BC Supreme Court Rules simply click here or on the New BC Supreme Court Rules tag below.

ICBC Injury Claims and the "Volenti" Defence

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Jury Trials, Uncategorized. 112 Comments on ICBC Injury Claims and the "Volenti" Defence

Volenti Non Fit Injuria is a Latin phrase which generally means that a plaintiff cannot sue a defendant where the Plaintiff has consented to or willingly accepted the risk of harm.   The Volenti Doctrine, when used successfully, can be a complete defence to a personal injury lawsuit.
The Volenti defence has been raised many times in ICBC Injury Claims where a passenger rides with a knowingly impaired driver who then loses control and injures the passenger.  Our Courts have severely limited the effectiveness of this defence over the years and reasons for judgement were released today demonstrating the difficulty is successfully arguing this defence.
In today’s case (Shariatmadari v. Ahmadi) the Plaintiff was severely injured when the driver of her vehicle lost control in Stanley Park, left the roadway and hit a tree.  The Defendant was drinking prior to losing control.  The claim went to Jury Trial and ICBC, on behalf of the Defendant, tried to raise the Volenti Defence.
Madam Justice Fenlon refused to put the defence to the jury finding that the evidence required for the defence to succeed was not present in the case at hand.  In coming to this conclusion she summarize the Volenti Defence in impaired driving cases and applied it as follows:

[3] The third party, Insurance Corporation of British Columbia (“ICBC”), who is defending this case on behalf of the deceased driver, wished to lead evidence of excessive drinking by the plaintiff, defendant, and mutual friends several nights a week for some time prior to the accident. ICBC also sought to lead evidence of the plaintiff occasionally driving following such evenings or letting the defendant drive her vehicle. They argued that this evidence, in conjunction with the fact that the plaintiff and defendant had a close personal relationship and were both driving impaired before the accident, will support a finding by the jury of a tacit agreement between the parties to assume any risk that might arise in relation to such driving – a finding which would support the defence of volenti non fit injuria.

[4] Counsel for the plaintiff offered to have the plaintiff testify on a voir dire to permit counsel for ICBC to argue the appropriateness of putting the volenti defence to the jury based on the actual evidence that could be elicited from the plaintiff. The third party was of the view, with which I agreed, that they could argue the appropriateness of putting the defence ofvolenti non fit injuria to the jury based on their “best case scenario”. I heard argument on that basis.

[5] Counsel for ICBC candidly acknowledged that in cases involving a plaintiff riding with an impaired driver, volenti is a difficult defence to prove in light of recent cases on the issue. In Hall v. Hebert, [1993] 2 S.C.R. 159 at 207, 101 D.L.R. (4th) 129, Cory J. in concurring reasons noted that the maxim volenti non fit injuria “stands for the proposition that no injury is done to one who consents.”  He stated the following at 207-208:

In order for the doctrine of volenti to apply, there must be either an express or implied assumption of the risk of the activity which caused the damage. That is to say, both parties to the activity must have agreed that they would participate in it regardless of the risk of injury and give up their right to sue should injury occur as a result of the agreed upon activity. It must be observed that the consent goes to the legal as opposed to the physical risk of harm (see Lehnert v. Stein, [1963] S.C.R. 38).

…

The volenti defence acts as a complete bar to recovery. Although it has not been the subject of legislation, it has been very severely limited in its application. Perhaps the judicial limitation was well merited in light of the harsh academic criticism of the defence. See Prosser, supra, at p. 454. Before it can operate as a defence, the plaintiff must not only consent to accept the risk of harm but also must bargain away his or her right to sue for injuries that may result from the dangerous activity. The doctrine will only be applied where it can truly be said that there is an understanding on the part of both parties that the defendant assumed no responsibility to take care for the safety of the plaintiff and the plaintiff did not expect him or her to do so. Clearly, the volenti defence will only be applicable in a narrow range of cases.

[6] In Joe v. Paradis, 2008 BCCA 57, 290 D.L.R. (4th) 556, the plaintiff had persuaded the defendant to drive him to a pub to obtain beer. Both parties were heavily intoxicated and the defendant drove off the road, injuring the plaintiff. The plaintiff’s action for damages was dismissed by a jury on the basis of the volenti defence. The issue before the British Columbia Court of Appeal was whether the defence of volenti non fit injuria should have been put to the jury. At para. 13, Mackenzie J.A. writing for the Court said:

[13]      There is no evidence of any express agreement between Mr. Joe and Mr. Paradis to absolve the latter from legal liability for negligent driving. The first issue is whether there was evidence from which a properly instructed jury could find an implied agreement to that effect. The first and third issues are inter-related: if there was no evidence to support the defence, the jury verdict is unsupported by evidence and therefore perverse.

[7] He noted further at paras. 16-22:

[16]      Commentators are generally critical of the volenti doctrine, particularly its application to passengers in motor vehicle accident cases: see, for example, G.H.L. Fridman,The Law of Torts in Canada, 2nd ed. (Toronto: Carswell, 2002); Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: Butterworths, 2002); Lewis N. Klar, Tort Law, 3rd ed. (Toronto: Carswell, 2003); John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998); and Clerk & Lindsell on Torts, 19th ed. (London: Sweet & Maxwell, 2006). Clerk & Lindsell on Torts points out that volenti’s complete bar to recovery is inconsistent with comparative negligence statutes which allow the apportionment of responsibility and “a more finely adjusted justice between parties” (at §3-103). Professor Klar observes that the nominal standard of an implied waiver of legal liability will rarely be met, if taken seriously. He adds: “It is not realistic to impose this implied agreement upon parties who are frequently unaware of the legal niceties surrounding these types of events, and who are not deliberating upon the physical or legal risks of dangerous conduct” (at 482). It would be hard to find parties who better fit Professor Klar’s description than Mr. Joe and Mr. Paradis.

…

[20]      Interjecting the volenti defence short circuits the process and invites the jury to use the defence as a subterfuge to assign all responsibility for the accident to Mr. Joe notwithstanding that the theoretical basis of the doctrine, an implied agreement to waive legal liability, may be unsupported by the evidence. Unless the courts are prepared to condone the manipulation of the volenti doctrine to avoid the comparative fault regime of the Negligence Act, volenti should not be invoked unless there is evidence that the parties put their minds to the question of legal liability and expressly or tacitly made an agreement to waive liability that could be supported on basic contract law principles.

[21]      The weight of Supreme Court of Canada jurisprudence and the critical commentaries support restricting the doctrine to cases where an agreement can be supported by the evidence. This case was not one of them.

[22]      The question left with the jury failed to clearly distinguish between the physical and legal risk of harm. The judge’s charge attempted to explain the distinction, but essentially in a vacuum as to evidence supporting acceptance of the legal risk of injury in contrast to the physical risk. Voluntary acceptance of the physical risk without acceptance of the legal risk is a contributory negligence issue and not volenti. [Emphasis added]

[8] In my view, even assuming the defendant’s best case scenario on the evidence elicited at trial, there is no evidence to support the plaintiff’s waiver of her legal right to sue for injuries, as distinct from evidence to support a willingness to assume the risk of injury itself. There is no evidence that the plaintiff and defendant turned their minds to the question of legal liability, and either expressly or tacitly made an agreement to waive liability that could be supported on basic contract law principles.

[9] In conclusion on this point, there is no evidence to support the defence of volenti; therefore that defence should not be put to the jury.

The Court did, however, go on to permit the Jury to hear evidence of the Plaintiff’s level of intoxication finding that “ here the evidence establishes that the plaintiff and defendant were together drinking over the evening and consuming roughly the same number of drinks (the evidence in this case), the level of the plaintiff’s intoxication is also relevant to her awareness of how intoxicated the defendant was at the time she let him drive her car.”.  Madam Justice Fenlon held this evidence was relevant in deciding whether the Plaintiff was ‘contributorily negligent‘ for riding as a passenger with a driver who had been drinking.

Jury Instructions For ICBC Injury Claims With Multiple Years of Past Wage Loss

Written by admin on . Posted in Civil Procedure, ICBC Wage Loss, Jury Trials, Uncategorized. 47 Comments on Jury Instructions For ICBC Injury Claims With Multiple Years of Past Wage Loss

If you have an ICBC Injury Claim heading for a Jury Trial reasons for judgement were released today demonstrating an effective ‘charge‘ to the Jury where multiple years of past income loss are at issue.
Section 98 of the BC Insurance (Vehicle) Act limits past income loss awards to ‘net’ income loss in negligence claims stemming from BC motor vehicle collisions (Click here to read my previous post on this topic for some background).   This limitation in law can significantly reduce a Plaintiff’s damages in a BC Injury Claim and reasons for judgement were released today demonstrating this.
In today’s case (Wittenberg v. Ellis) the Plaintiff sued for damages as a result of a 2005 car crash.  After a jury trial damages of over $2 Million dollars were awarded which included an award for $1,420,000 in past income loss.  The court was asked to make the appropriate deduction under s. 98 of the Insurance (Vehicle) Act and ultimately decided that the past wage loss had to be reduced by $594,774 in order to comply with the legislation.
In a recent case by the BC Court of Appeal (Lines v. Gordon) the Court clarified how past income awards by juries will be taxed to comply with section 98.  Specifically the Court of Appeal held that “There will be a wide variety of circumstances facing trial judges.  In each case, the trial judge will have to decide whether it is appropriate in the circumstances before him or her to calculate net income loss on the basis of one period, calendar-year periods or other multiple periods.  In making a decision in this regard, the trial judge should consider all of the circumstances and apply s. 98 in a manner that is most consistent with the principles of damage assessment to which I have referred. ”
Today’s case demonstrates keen trial skills by the Plaintiff’s lawyer as he asked the judge to instruct the Jury to focus on the claimed income loss on a year by year basis.  The Jury did indeed award damages on a year by year basis.  As a result Madam Justice Boyd was able to assess the income tax consequences for each year.  If the Plaintiff’s lawyer was not savvy enough to get this instruction the Jury could have awarded the past income loss as a lump sum and the award could have been taxed as if the money was all earned in one tax year.  This would have resulted in a significantly greater reduction for the Plaintiff.
This case also addressed whether a personal plaintiff can use a corporate tax rate when there is evidence that the past income claimed would have been earned through a corporation.  Madam Justice Boyd held that s. 98 does not permit this and Plaintiff’s need to have past income taxed based on personal tax rates, specifically she held as follows:

[39] I agree with the defence submission that this is the exact result which would occur if the plaintiff at bar is permitted to rely on a corporate tax rate for the bulk of his income loss award.  Like the RRSP deduction, corporate tax rates offer the deferral of the personal tax burden, but only until the owner/shareholder withdraws the corporate funds for personal use, at which time personal income tax must be paid on the funds.  As the award for net income loss will be paid to Mr. Wittenberg and not to his corporation, in effect, it will be as if earnings had been withdrawn from the corporation and taken into Mr. Wittenberg’s personal income.

[40] Permitting the plaintiff to rely on corporate tax rates for part of his income loss award in this case would enable him to avoid entirely his statutory obligation to pay personal income tax rates on personal income theoretically drawn from the corporation.  The result would be over-compensation.  Such an outcome would consequently place Mr. Wittenberg in a better position than he would have been in if he had not been injured.  In my view, this result is impermissible under the Insurance (Vehicle) Act, income tax legislation, and the general principles of damage assessment noted above.

[41] The correct approach is for the jury award for past income loss to be taxed at the personal income tax rate, as required by s. 95 of the Act.

ICBC Injury Claims and Relevance of Minimal Vehicle Damage

Written by admin on . Posted in Civil Procedure, ICBC LVI (Low Velocity Impact) Cases, ICBC Wage Loss, Jury Trials.

Further to my numerous previous posts on Low Velocity Impacts (LVI Claims) reasons for judgement were released today by the BC Supreme Court dealing with the relevance of photographs depicting minimal vehicle damage in Injury Litigation.
In today’s case (Deventer v. Woods) the Plaintiff was involved in 3 rear-end collisions.  Fault was admitted for all three crashes.   The Plaintiff claimed she was injured as a result of these crashes.  The matter was set down for a Jury Trial (ICBC normally sets LVI cases for Jury Trial) and proposed to put photos which ‘show very little damage to an of the cars involved’ to the Jury.
The Plaintiff objected arguing that the photos were not relevant.  Madam Justice Fenlon disagreed with the Plaintiff and allowed the photos to be put to the Jury.  In coming to this conclusion Madam Justice Fenlon referred to and summarized 2 previous authorities dealing with this issue at paragraphs 8-13 and went on to hold as follows:

[14] In any event, I am of the view that photographs showing the extent of the damage to the vehicles in this case are relevant and therefore admissible. They are relevant because it is a matter of common sense and common understanding that the greater the force with which two vehicles collide, the more likely it is that occupants of those vehicles will be injured. The relationship between increased force and damage and increased probability of injury does not mean that parties involved in lower impact collisions that do not cause very much damage to the vehicles involved cannot suffer significant injuries. Many cases have recognized that serious injuries can result from collisions involving little or no damage, as Mr. Justice Thackray observed in Gordon.

[15] In Brar v. Johal, 2002 BCSC 150, Mr. Justice Cohen, at para. 11, held that the onus would be on the defendant to lead engineering or medical evidence to support the submission that a plaintiff’s injuries are inconsistent with the force generated by the impact between two vehicles.

[16] The relevance of photographs showing the extent of damage to the plaintiff’s and defendants’ vehicles can be tested by considering photographs of highly damaged vehicles. It would be hard to imagine plaintiff’s counsel in such a case arguing that photographs of the damage were not relevant to the issue of whether the plaintiff suffered injuries in the accident.

[17] I have considered whether the probative value of the photographs in this case is outweighed by their prejudicial effect on the jury’s assessment. For the reasons set out inMakara by Mr. Justice Barrow, I am of the view that such prejudice can be adequately addressed by way of appropriate instructions to the jury. Such directions would not simply be to ignore the photographs, as plaintiff’s counsel argued, but rather, a direction to put the pictures into the context of the evidence as a whole. The pictures are one piece of evidence about the impact and the vehicles, as is the plaintiff’s evidence.  There would also likely be a direction that the fact that no or little damage has occurred to vehicles does not mean that a plaintiff cannot be injured.

[18] In conclusion on this issue, the photographs are admissible, subject to objections about their authenticity or accuracy.

Another intresting aspect of this judgement is the Court’ discussion of the Plaintiff’s financial status.  The Defendants wished to highlight certain elements of the Plaintiff’s finances in support of an argument that  “such information is relevant in assessing the quantum of damages for future wage loss because that information provides the context within which the jury must determine whether the plaintiff would have worked full-time in the future if the injuries sustained in the accident had not occurred.”

Madam Justice Fenlon agreed that such evidence is admissible in addressing a claim for future wage loss holding that:

[35] The plaintiff argues that the cases cited by the defendants in which a plaintiff’s financial circumstances were considered in relation to future wage loss were not jury cases. However, if the plaintiff’s financial circumstances are relevant to the assessment of future wage loss in a judge alone case, they are also relevant in a jury trial. The only additional question on a jury trial is whether the prejudicial effect of such evidence outweighs its probative value. The concern raised by plaintiff’s counsel, and it is a real concern, is that the jury may assume that because the plaintiff is relatively well-off she does not need to be compensated for future wage loss and they may reduce their awards for general and special damages as well. That would indeed be improper, but as I stated in relation to this issue on the admissibility of the photographs, I am of the view that the jury can be properly instructed to avoid this error and can be trusted to properly assess damages.

[36] In the circumstances of this case, I find that the probative value relating to the life insurance proceeds and the absence or existence of a mortgage outweighs the prejudicial effect of such evidence. However, I also find that the value of the new family home has such little probative value in relation to the propensity of the plaintiff to be working full-time or part-time that it is outweighed by the prejudicial effect of such evidence. I would therefore disallow that evidence.

[37] In conclusion on this issue, evidence relating to life insurance proceeds received, the payout of the mortgage on the family home at the time as a result of another life insurance policy, the existence of a current mortgage, and other evidence of that nature is admissible. Evidence regarding the value of the home the plaintiff is currently living in is not.

Another Rule 37B Case – Plaintiff Awarded Trial Costs Despite not Beating Defence Offer

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Jury Trials, Uncategorized. 49 Comments on Another Rule 37B Case – Plaintiff Awarded Trial Costs Despite not Beating Defence Offer

(Please note the case discussed in this post was overturned on Appeal, you can click here for an updated post and click hear to read the BC Court of Appeal decision)
Reasons for judgement were released today dealing with costs consequences under Rule 37B.
Although Rule 37B has some flexibility to its outcomes, normally when a Plaintiff fails to beat a defence formal settlement offer after trial the Plaintiff is deprived of his/her costs and the Defendant is awarded theirs.  Today’s case had a result which departs from this norm.
In today’s case (Gehlen v. Rana) the Plaintiff was injured when she was a passenger involved in a rear-end car crash.  The Defendant admitted fault for the crash but denied liability to the Plaintiff claiming that the Plaintiff “was not present in the vehicle at the time of the accident“.  The Defendant made a formal offer to settle the Plaintiff’s claim for $22,000 plus disbursements.  The Plaintiff rejected this offer and went to trial.  After trial the Jury awarded the Plaintiff total damages of just over $13,000.
The Plaintiff brought a motion for her costs and the Defendant brought a counter motion for their costs from the time of the offer onward.  Mr. Justice Leask held that the Plaintiff should be awarded her full costs, even for steps taken after the formal settlement offer despite not beating the offer.  His reasoning was as follows:

[18]         As to s-s. (d), I consider two other factors to be relevant.  First, the defendant’s choice of trial by jury, which considerably increases the costs.  Second, the manner in which the defence was conducted – to accuse the plaintiff and her family of fraud – that accusation having been rejected by the jury.

[19]         Turning last to s-s. (a) – the most important question – whether the offer was one that ought reasonably to have been accepted.  On this issue, I agree with Goepel J.’s judgment in A.E. v. D.W.J., 2009 BCSC 505, at paragraph 55:

[55]      … this analysis is not one to be done based on hindsight once the final result is known.  The reasonableness of the plaintiff’s decision not to accept the offer to settle must be assessed without reference to the court’s decision.

[20]         I am satisfied that the defendant’s denial of liability, and the allegations of fraud that underlay that denial, dominated the plaintiff’s thinking at the time the offer to settle was made and, indeed, throughout the entire pre-trial period.  Knowing that her claim was not fraudulent and knowing the persuasive evidence she had to rebut the allegation of fraud, the plaintiff thought she had a good answer to the defendant’s “low ball” offer to settle.  With hindsight, it is obvious that her counsel did not anticipate the defendant’s vigorous attack on her credibility including the detailed attack on her employment resumé and the emphasis on her second accident.  Her counsel’s trial preparation did not include preparing her or her witnesses for these issues.  However, analyzing the plaintiff’s decision not to accept the defendant’s offer to settle without the benefit of hindsight, I am satisfied that it was not an offer that ought reasonably to have been accepted.

[21]         Analyzing all the Rule 37B(6) factors, I am satisfied that the plaintiff is entitled to a judgment under Rule 37B(5)(c) and is entitled “in respect of all … of the steps taken in the proceeding after the date of delivery … of the offer to settle, costs to which the party would have been entitled had the offer not been made” (emphasis added).

I turn now to the plaintiff’s submission for 1.5 times Scale B costs because of the allegation of fraud made by the defendant and the manner in which those allegations were pursued at trial.  Having taken that factor into account in my analysis of Rule 37B(6), I believe it would represent a form of “double counting” to award increased costs for this factor.  My conclusion is that the plaintiff is entitled to her costs and reasonable disbursements of the entire proceeding on Scale B.