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Double Costs Awarded After Jury Dismisses ICBC Injury Claim

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

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Defendant double costs following a Jury dismissing a Plaintiff’s ICBC Injury Claim.
This is one of the first cases that I am aware of under Rule 37B where a defendant was awarded double costs.
In today’s case (Luzuka v. Chuang) the Plaintiff was involved in an intersection collision.  Both fault and value of the claim were at issue.  ICBC, through the defendant’s counsel, made a formal settlement offer in 2007 for $40,000.  This offer was rejected by the Plaintiff.  The claim proceeded to trial which lasted 9 days before a Judge and Jury.  The Jury dismissed the Plaintiff’s claim finding that she did not prove the Defendant was responsible for the collision.
The Defendant sought an award of costs up to the date of delivery of the offer and double costs from that point on.  The application was largely successful and Mr. Justice Harvey noted that the “deterrent functions” of punishing a party who refused to accept reasonable settlement offer should not be ignored in such applicaitons.  Specifically Mr. Justice Harvey found as follows:

[24] The offer to settle was one which ought to reasonably have been accepted by the plaintiff within seven days of the disclosure to counsel of the identity of the witness, Ms. Kapil, which occurred during examinations for discovery on November 27, 2007.

[25] By that date, the plaintiff’s medical condition was well defined and it ought to have been clear to the plaintiff that liability for the accident was seriously in dispute.

[26] As was noted by Hinkson J. in Bailey, at para. 39, a refusal to award double costs following the date determined that the offer of the defendants ought reasonably to have been accepted, “would completely ignore the important deterrent function of the Rules”.

[27] Therefore, the defendants are entitled to costs and disbursements of the action until December 4, 2007, pursuant to Rule 57(9). Thereafter, the defendants are entitled to double costs together with actual disbursements, pursuant to Rule 37B(5)(b).

While no mention of the amount is made, the costs and disbursements stemming from this order would likely be in the tens of thousands of dollars.  This ‘deterrent‘ effect is a real one and unfortunately needs to be accounted for when preparing for trial where a formal settlement offer is made under Rule 37B.

As readers of this blog are likely aware, Rule 37B will be replaced with Rule 9 on July 1, 2010 when the new BC Civil Rules come into force. 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.

I Want a Jury Trial, Wait a Minute, No I Don't

Written by admin on . Posted in Civil Procedure, Jury Trials. 50 Comments on I Want a Jury Trial, Wait a Minute, No I Don't

Reasons for judgement were transcribed yesterday and released on the BC Court’s website dealing with an interesting issue, specifically can a party who elected trial by jury change their mind once the trial starts.
In this case (Chapelski v. Bhatt) the Plaintiff was involved in a 2004 BC Car Crash.  In the course of the lawsuit the defence lawyer filed a Jury Notice and paid the Jury Fees.  On the first day of Trial the Jury was empaneled and the Plaintiff’s lawyer made his opening statement.  The next day the Defence Lawyer advised the Court that he intended to proceed with the trial without the Jury.
Mr. Justice Hinkson ruled that once the Jury was empanelled it was too late for the Defendant to re-elect the mode of trial to that of Judge alone and that the Defendant would have to continue to pay the Jury Fees for the duration of the trial.
Mr. Justice Hinkson’s reasoning was set out in paragraphs 17-20 which I reproduce below:

[17] The reference by Williams J. to Rule 39(26) is significant.  Based upon his reasoning, a party who has served a Notice Requiring Trial by Jury can elect not to proceed with that mode of trial at least until the required jury fees are paid.  But that reasoning does not address a point in time past the point of payment of the required fees.  The reasoning implies that once the point has been passed “the issue of whether a trial is going to be heard by a jury would be conclusively settled”.

[18] I do not take the reference by Williams J., to “late in the day”, to extend past the empanelment of the jury nor the commencement of trial, nor do I accept that it should.  Once empanelled, a civil jury are the triers of fact.

[19] I conclude that absent misconduct of a party, a witness, or a juror once a civil trial has begun without the consent of the opposing party, it is not open to a party who has filed a Notice Requiring Trial by Jury pay the required fees pursuant thereto and participate in the selection of the jury to opt out thereafter for trial by judge alone.

[20] To permit such a re-election smacks a forum shopping and cannot be permitted.  I need not and I do not decide if a jury on a civil trial can be discharged absent misconduct of a party, a witness, or a juror once a civil trial has begun even with the consent of all parties.

Striking a Jury and Timing in a BC Personal Injury Lawsuit

Written by admin on . Posted in Civil Procedure, Jury Trials, Uncategorized. 56 Comments on Striking a Jury and Timing in a BC Personal Injury Lawsuit

When personal injury claims, including ICBC claims, are prosecuted in the BC Supreme Court either side has the right to elect trial by jury.  (The exception to this rule is when the claim is prosecuted under BC’s fast track Rules 66 or 68).
For a party to elect trial by Jury they simply need to give notice in accordance with Rule 39(26).
If an opposing party wishes to challenge the election for a jury trial they can oppose it pursuant to Rule 39(27) which holds in part that:

(27) Except in cases of defamation, false imprisonment and malicious prosecution, a party to whom a notice under subrule (26) has been delivered may apply

(a)  within 7 days for an order that the trial or part of it be heard by the court without a jury on the ground that

(i)  the issues require prolonged examination of documents or accounts or a scientific or local investigation which cannot be made conveniently with a jury, or

(ii)  the issues are of an intricate or complex character […]

What if a party opposes trial by jury but fails to challenge the jury election within the 7 day limitation period set out in Rule 39(27)?  Are they out of luck?  Not necessarily and reasons for judgment were released yesterday by the BC Supreme Court, New Westminster Registry, dealing with this are of the law.

In yesterday’s case (Gulamani v. Chandra) the Plaintiff was involved in 2 motor vehicle accidents 10 years apart.  One of the Defendant’s chose to have the case heard by judge and jury.  The Jury notice was filed in 2003.  The Plaintiff brought an application to dismiss the jury notice years after it was filed.

One way to challenge a jury notice outside of the 7 days required by Rule 39(27) is to do so at a pre-trial conference.  This is so because s. 35(4)(a) of the current Supreme Court Rules permits a judge or a master at a pre-trial conference to order that a “trial…be heard by the court without a jury, on any of the grounds set ouyt in Rule 39(27)“.  Yesterday’s case, however, was not heard at a pre-trial conference and this subrule did not assist the Plaintiff.

Rule 3(2) was of assistance which states that:

The court may extend or shorten any period of time provided for in these rules or in an order of the court, notwithstanding that the application for the extension or the order granting the extension is made after the period of time has expired.

In yesterday’s case Madam Justice Arnold-Bailey held it was appropriate to extend the time permitted to challenge the Jury Notice under Rule 3(2) and ultimately ordered that the trial proceed by judge alone.  (the judgement is worth reviewing in full for anyone interested in the factors courts consider when considering whether the trial will require a ‘prolonged examination’ or is too “intricate or complex” to be tried by a jury).  In so ordering the Court summarized and applied the law with respect to late jury strike applications as follows:

[19] In Reischer v. Love & ICBC, 2005 BCSC 1352, the court was faced with similar issues in relation to an application to strike a jury notice in the context of two actions that were going to be heard together.  Well after the original jury notice for the first action was filed, but shortly after the court set a new trial for both actions to be heard together, the plaintiff brought an application to have the jury notice struck.  Drost J. first cited the settled law, explaining that the mode of trial selected for the first action is what determines the mode of trial for the several actions to be heard together.  From this principle flows the further settled point that it is the original jury notice that must be considered with regard to Rule 39(27).  In that case, as well as the case at bar, the seven day time limit had clearly passed.

[20] Drost J. then addressed Rule 35(4)(a) and held that since the application occurred outside the scope of a pre-trial conference, he could not rely upon that section to strike the jury notice either.  These circumstances also parallel the case at bar.

[21] Finally, Drost J. turned to the general judicial discretion to extend time limits afforded in Rule 3(2) and stated (at paras. 37-38) that there are two questions to consider in the circumstances: 1) whether, at an early stage of the proceedings, the plaintiff formed an intention to strike the jury notice, and 2) whether there has been such a change in circumstances as to materially alter the character of the proceedings and render them clearly inappropriate for a trial by judge and jury.  The court answered both questions in the negative, finding in particular that all of the circumstances of the combined actions were known to the plaintiff even when the initial jury notice was filed.

[22] Despite this, the court in Reischer still allowed the time extension for the application to strike the jury notice under Rule 3(2) by relying on the authority of Harder v. Nikolov, [2001] B.C.J. No. 1528 (S.C.), where the court held at para. 17 that lack of timeliness does not necessarily preclude an application to strike a jury notice.  Rather, the time restrictions set out in Rule 39(27) may be overcome if consideration of trial fairness so requires.  In Reischer, at para. 41, Drost J. stated that but for the application of this principle from Harder, the court would have dismissed the plaintiff’s application.

[23] With these decisions in mind, I note firstly that unlike the plaintiff in Reischer, the plaintiff in this matter could not have been aware of all the circumstances in relation to the combined actions dealing with her motor vehicle accidents at the time the original jury notice was filed.  Whereas the accidents in Reischer occurred a relatively short time apart, the accidents in this case occurred a decade apart and the court proceedings in relation to the first accident were essentially at the point of trial before the plaintiff could have possibly been aware of the circumstances arising from the second accident.  I also note that the plaintiff advised of her intention to strike the jury notice within five days of the Court adjourning the first trial and filed her notice of application to strike the jury notice before the Court reset the trial of the two actions.

[24] As to the second question set out in Reischer, and unlike the court’s finding in that case, I do find that a significant change in circumstances has occurred here.  The trial will now be significantly longer and will involve complex legal issues related to causation, including the defence of novus actus, in the context of two accidents that occurred a decade apart.  I find that this is a sufficient change to the character of the proceedings such that a consideration, at least, of the plaintiff’s application to strike the jury notice is necessary and just.

[25] Alternatively, like the court in Reischer, I would in any event also apply Harder and find that the lack of timeliness in the plaintiff’s application is overcome by considerations of trial fairness.

[26] In short, I do not give effect to the Chandra and Doorandish defendants’ initial objections to this application, and I will now turn to consider its merits.

An Interesting but Short Lived Rule 37B Precedent

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

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

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

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

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

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

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

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

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

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

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

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

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

More on Car Accident Claims, Complexity and Jury Trials

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

When car accident cases are prosecuted in the usual course (not using Rule 66 or 68) in the BC Supreme Court either side can elect to have trial by jury.
In certain circumstances, however, a jury trial is inappropriate and a court and strike a jury notice.  One of the reasons a court can strike a jury notice is complexity.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dealing with this issue.
In today’s case (McIntosh v. Carr) the Plaintiff was involved in 3 car accidents and the parties agreed that all 3 cases were to be heard at the same time.  Fault was not at issue in any of the cases but the alleged injuries were serious and included ‘pain and suffering, shock, brain injury, concussion, physical injuries to the head, neck, back, shoulders and knee, headaches, cuts, loss of sensation in the scalp, depression, anxiety, insomnia, sleep disorder and post-traumatic stress disorder‘.  The case was expected to be complex, take 25 days to hear with over 30 witnesses including 17 professionals testifying.
The Defendants elected trial by Jury.  The Plaintiff’s lawyer brought a motion to dismiss the jury notice claiming that it was too complex.  Mr. Justice Macaulay of the BC Supreme Court granted the Plaintiff”s motion and in doing so summarized and applied the area of the law as follows:

[6]           A 25 day trial requires a significant commitment by jurors. Experience tells us that juries are capable of understanding the expert medical evidence typically heard in cases involving an alleged brain injury but experience also indicates that juries have more difficulty retaining that understanding throughout longer trials. This affects my consideration whether it is convenient for a jury to undertake the medical, or “scientific” investigation required in this case.

[7]           A 25 day trial involving intricate medical, psychological and behavioural issues involving a young person who was not yet fully developed at the material time, presents such a risk. That risk is compounded by a number of complications that the evidence must address. Taken together, these factors also render the issues too complex for a jury.

[8]           It is now about ten years post-accidents. Over that period, the plaintiff has undergone extensive treatment and a variety of testing including cognitive or psychological testing. The outcome of testing as it relates to the diagnosis or proof otherwise of the alleged brain injury is complicated by factors such as the identification and effect of a pre-existing learning disability as well as other social, scholastic and family stressors already present in the plaintiff’s life before the accidents. There are live issues as to whether these factors explain or at least materially contributed to the plaintiff’s ongoing difficulties. The factors also impact the application of any expert evidence respecting future pecuniary losses.

[9]           The defendants contend that the evidence is not too complicated for a jury. They point out that the court refused to strike the jury notice in Forde v. Interior Health Authority (c.o.b. Royal Inland Hospital), 2009 BCSC 254, a medical negligence claim involving 19 experts and 26 detailed expert reports and summaries of evidence. The medical evidence covered some of the same areas as in the case at bar as well as others, including neurosurgery, radiology, neuroradiology and kinesiology. The trial in that case was scheduled for 15 days. In another case, Furukawa v. Allan, 2007 BCSC 283, the court also declined to strike the jury notice. The plaintiff claimed a brain injury in that case and the trial, as here, was scheduled for 25 days.

[10]        Each case is necessarily fact dependent but the results in Forde and Furukawa may be taken as confirmation that factors such as the length of trial, the extensive number of medical experts and complex medical issues do not automatically remove the right of a party to a trial with a jury.

[11]        For convenience, Rule 39(27) in its entirety reads:

Court may refuse jury trial

(27)      Except in cases of defamation, false imprisonment and malicious prosecution, a party to whom a notice under subrule (26) has been delivered may apply

(a)        within 7 days for an order that the trial or part of it be heard by the court without a jury on the ground that

(i)         the issues require prolonged examination of documents or accounts or a scientific or local investigation which cannot be made conveniently with a jury, or

(ii)        the issues are of an intricate or complex character, or

(b)        at any time for an order that the trial be heard by the court without a jury on the ground that it relates to one of the matters referred to in subrule (25).

[12]        In Furukawa, commencing at para. 10, Dorgan J. summarized the authorities respecting the analysis required under the rule. The court must first determine, as a question of fact, whether the matters at issue at trial will require either a prolonged examination of documents or accounts or a scientific or local investigation. If either answer is yes, the court must consider whether a jury can conveniently make the examination or investigation. Convenience in this sense refers to the ability of the jury to both understand the evidence and retain that understanding throughout the trial. The length of trial may be a factor, albeit not determinative, in addressing the issue of convenience. The court also has discretion to strike the jury notice if the issues are too intricate or complex.

[13]        It is likely in the present case that the plaintiff’s entire life, at least from the start of school through to the time of trial, a period of about 20 years, will be subjected to microscopic expert analysis and comment. That will require the trier of fact to absorb and retain a vast amount of information, some of which is likely to be, at least, nuanced if not complex, with a view to later deciding the issues.

[14]        I am persuaded that this is not an appropriate case for a jury. It would not be convenient, as defined by the authorities, for a jury to undertake the scientific examination required in this case. In any event, the issues are too intricate given their intertwined nature and, in some instances, likely too complex as well.

BC Jury Discharched for Bringing Wikipedia Article to Court During ICBC Trial

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

Everything that seemingly could go wrong in an ICBC Jury Trial went wrong when an injured Plaintiff brought her claim to court in early May 2009 (Sharamandari v. Ahmadi).  ICBC, the insurer on the case, insisted on a jury trial.  Certain concerns about the jurors behaviour came to the trial judge’s attention which ultimately caused him to discharge the Jury.
One of the many interesting developments (click here to read Vancouver Reporter Ian Mulgrew’s recent story shedding light on some of the other notable developments) in this trial was the jury’s reference to outside legal research in the course of the trial.
During the case mention was made of the legal principle volenti non fit injuria.  One of the jurors took it upon himself to research this via wikipedia and apparently brought this outside legal research back into the jury room.  This of course was improper and contradicted the presiding judges instructions as it had not yet been determined whether this principle of law was to be considered by this jury (and if volenti was to go to the jury Wikipedia fails to explain how this principle of law has developed in British Columbia car crash cases).
Upon learning of this transgression the following exchange took place between the trial judge and the juror:
THE COURT Its come to my attention that you may have brought outside legal research into the jury room what part of my instructions telling you not to do that did you think that you could do it
JUROR  I didnt think this was this is a term that I I was looking for a definition of the term
THE COURT Yes And isnt that within the purview of outside or doesnt that come within the definition of doing outside research
JUROR  I didnt think so at the time
THE COURT I see And what were your grounds for not thinking so
JUROR I dont have an answer for that question
THE COURT okay why did you think if it was research for your benefit that you thought it was appropriate to bring it into the jury room and start to discuss it
JUROR  I thought that everybody would want to know because it was a definition
THE COURT A definition of a legal term
JUROR well yes yes and no It was it was from wikipedia It was just like its not a legal its not something that I go to for legal terms Its just something that was on the internet
Ultimately the judge discharged the jury for this and other transgressions.  In discharging the jury Mr. Justice Burnyeat made the following comments which give insight into just how much went wrong in this ICBC Jury Trial:
THE COURT I have been a judge for 13 years and what Im about to say I havent had to say before so I say it with considerable regret.
You were told by me not to do outside research and yet one of you has decided to ignore that and bring a wikipedia article which has absolutely no relevancy in Canada or in the jury deliberations and may well be based on us cases which are of no relevance in Canada and on an issue which may or may not go to you as jurors.
You were told not to consider the evidence until all evidence was before you and you have decided to start in anyway.
You were told to put the question of whether awards do or do not result in higher insurance premiums out of your minds and yet someone has decided to mention that it probably and speculate that it probably results in higher  insurance premiums for all of us if in fact an award is made by you and the amount of award.
You  were told to deal with the evidence alone and not views that you might have that would interfere with that And I am advised that comments were made about the heritage of the party and some of the  witnesses.
You were told to weigh the evidence of all experts equally but assume that those who testify for one party are being paid for their opinions as hired guns and not for opinions that are professionally arrived.  You were told to each consider all of the evidence but then divide up the evidence so that not everyone will necessarily look at everything thats before them. You were told that it may be necessary to sit  this week and next but ignored that advice I have  given in order that you can save time by adopting  a procedure which is totally inappropriate.
You  were told to spend Friday afternoon reviewing the  evidence but decide that your own schedules are more important than my instructions.
You have failed collectively and in some cases individually to discharge your duties as jurors and I have no alternative but to discharge you as a jury . Your actions have resulted in considerable hardship to both the plaintiff and to ICBC and the defendant.  As a result an answer  will not be available to them.  All parties must have a consideration of matters delayed for what may be a further six to 12 months.
The cost of  having expert witnesses appear for the plaintiff will be thrown away The cost of having to cancel the appearances of expert witnesses who would be appearing for ICBC will be considerable All witnesses will have to go through the anxiety of appearing in court a second time And you have caused a blow to the system a blow to the parties from which there can be no particular recovery You are discharged as a jury and you can now leave and I will not thank you for your attendance

ICBC's Trial Policy Gets Judicial Attention

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Jury Trials, Tort Reform, Uncategorized. 59 Comments on ICBC's Trial Policy Gets Judicial Attention

It used to be that when ICBC claims went to trial ICBC would only require the people they insure to participate at trial as necessary.  For example if fault was at issue the defendant would testify as to how the crash happened or if the Plaintiff seemed uninjured at the scene the Defendant would share his/her observations with the court.
More recently, ICBC has created a policy where the people they insure have to get extensively involved in the trial even if they have no vital role to play.   Reasons for judgement were released today by the BC Supreme Court discussing this ICBC trial policy.
In today’s case (Coates v. Marioni) the Plaintiff was injured 2006 car crash.  The at fault driver was insured by ICBC.  In the lawsuit the issue of fault was admitted leaving the court to only deal with the issue of the value of the ICBC claim.  The matter went to jury trial.  Just before trial ICBC made an offer to settle.  The Victoria jury returned a verdict just below ICBC’s formal settlement offer.  The trial judge was asked to decide what costs consequences should follow under Rule 37B since ICBC beat their formal offer (click here to read my previous posts about Rule 37B in ICBC Claims).
Madam Justice Gerow, who presided over this jury trial, refused to give the Defendant their costs despite beating their formal offer.  The Plaintiff was awarded costs through trial.  2 factors leading to this decision were the late delivery of ICBC’s formal settlement offer and the fact that the jury award was very close to the formal offer.
In asking that the Plaintiff be deprived of trial costs the lawyer hired by ICBC noted that the Plaintiff attended fewer days of the trial than the Defendant.  The court rejected this argument and in doing so discussed ICBC’s policy of forcing their insured defendants to sit through trial even if they have nothing to add to the evidence at trial.  Below are the highlights of this discussion:

[53] The defendant also argues that the plaintiff should be deprived of her costs because the defendant attended all of the trial and the plaintiff did not.  However, the defendant chose to attend the trial.  Although she testified, her evidence was very brief as liability had been admitted.  There was no requirement that the defendant attend throughout the trial, particularly in circumstances where she had to take time off work and travel to Victoria.

[54] The plaintiff argues the fact that the defendant attended more of the trial than the plaintiff is not a factor to be considered in assessing whether the plaintiff should be deprived of her costs.  The plaintiff points to an ICBC claims bulletin dated June 13, 2008 outlining a policy that requires defendants to attend the trials from start to finish.  In the bulletin it sets out that:  “This policy applies even if they will not be testifying.  The intent of the new requirement is to present a ‘face’ for the defendant to the court.  Defence counsel will be instructed to have the defendant sit at counsel’s table if possible.”  In the circumstances, I do not accept the defendant argument that her attendance at the trial is a factor that should favour depriving the plaintiff of her costs.

[55] Having considered the factors set out in subrule 6, including the relationship between the offer and the award, I have concluded that this is not an appropriate case in which to exercise my discretion to deprive the plaintiff of her costs on the basis of the offer to settle.

If you are insured with ICBC and are at fault for a car crash and injure another do you think there is any value in being forced to trial even if you have nothing to add?  Does giving a ‘face to the defendant’ make any sense when the lawsuit is an insured claim?  As always, feedback is welcome.

Lawyers Opinions, Mistrials and ICBC Injury Claims

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

US Trial Lawyer Elliott Wilcox recently wrote a great article on why “I” is one of the most dangerous words for a lawyer to utter in court during a jury trial.  The short answer is because it is inappropriate for lawyers to share their personal opinion as to the merits of a case.  When a lawyer uses the word “I” there is a good chance a personal opinion is going to follow.
Reasons for judgement were released today by the BC Court of Appeal demonstrating the repercussions of counsel sharing their opinions during jury trials.
In today’s case (Joy v. Atkinson) the Plaintiff’s lawyer made several comments during his opening statement to the jury which the ICBC defence lawyer took objection to.  After hearing submissions in the absence of the jury the trial judge granted a motion for a mistrial (click here to read my previous post about the trial judgement).
In dismissing the appeal the BC Court of Appeal said the following about lawyers sharing their personal opinion of the merits of the case in jury trials:

[20]          Whether the plaintiff’s argument is otherwise sound need not be decided because there is a further aspect of counsel’s opening that is of particular concern.  Counsel expressed his personal belief in the strength of the plaintiff’s case when he told the jury “we had to satisfy ourselves that Mr. Joy’s injuries are real, serious, and permanent” and that “Geno Joy has and will continue to suffer real harms and losses now and into the future”.  In my view, there is no doubt this was clearly an improper statement.  Counsel acknowledged that to be the case in submissions on the application for a mistrial.  He was in effect giving evidence, albeit inadmissible evidence that could never be challenged, about the plaintiff’s injuries and his losses. 

[21]          Counsel’s suggestion before the judge was that any damage done could be corrected by a jury instruction or what he referred to as a “rebuke”.  But no meaningful suggestion as to what that instruction might be was made nor is one advanced now.  I am unable to see what instruction the judge could have given the jury that would have afforded the defence any confidence counsel’s expression of his satisfaction with the plaintiff’s claim would be ignored.  The jury had been told counsel had satisfied himself – he knew, apparently by investigation – the injuries suffered which the defence was challenging were real, serious, and permanent and they had caused, and would in the future cause, real losses.  That was not an assertion each member of the jury could be expected to completely ignore no matter what they were told, and it bore directly on the fairness of the trial.

[22]          The judge did not refer to this part of the opening statement in the reasons he gave for declaring a mistrial but, in my view, it is fatal to the success of this appeal.  It cannot now be said there was no sound basis for a mistrial.

Did ICBC Snoop in my Private Records When I Was Called for Jury Duty?

Written by admin on . Posted in ICBC Privacy Issues, Jury Trials, Uncategorized. 69 Comments on Did ICBC Snoop in my Private Records When I Was Called for Jury Duty?

Given ICBC’s admitted snooping in jurors private records in a recent personal injury trial in Victoria, BC, many people who have sat as jurors or even called as witnesses in ICBC Injury Cases may be wondering whether their records were compromised when they were called to court to perform their civic duty.

ICBC’s public take on the matter is that to the very best of ICBC’s knowledge “this was an isolated incident“.
For the sake of people who have sat on civil juries in the past and for the integrity of the administration of justice in BC I certainly hope that is the case.  However, ICBC has by their own admission not completed a full review of past jury cases at this time.  As I write this article ICBC’s website states that “we have already begun a full review of previous cases handled by the defence counsel in question” and “we are undertaking a review of past jury trials and will report on our findings”  so the possibility of this occurring in other ICBC jury trials cannot be excluded.
If you sat on a jury in an ICBC Case or were called as a witness in an ICBC case and are wondering whether your private records were compromised and misused can you do anything to get to the bottom of matters?  
The answer is yes and is contained in the BC Freedom of Information and Protection of Privacy Act.  This act makes public bodies (such as ICBC) more accountable to the public with respect to the protection of personal privacy and gives members of the public certain rights with respect to the access of records held by these bodies.
So, if you sat on a jury in an ICBC Claim and during that time had an active claim of your own and are wondering if ICBC misused your private records you can make an application under section 5 of the Act and ask ICBC to share your records with you including information about whether anyone from ICBC accessed your file during the time you were on jury duty.
If you have any questions about making a Freedom of Information Request for your ICBC records you can contact a BC Personal Injury Lawyer or a Lawyer experienced in privacy matters.  These requests are routinely made in ICBC claims and assistance can be provided by experienced people if needed.
What if you find out that your records were misused?  Hopefully ICBC will make proper amends if this is the case as “The responsibility of protecting the private information of our customers is something that ICBC takes very seriously.”  As I previously posted, a separate law called the BC Privacy Act, makes it a tort if your privacy was violated “willfully and without claim of right” and this legislation is worth reviewing for anyone concerned about their privacy and the potential misuse of private records by public bodies.

ICBC Snooping in Jurors Records, Apologies and the Privacy Act

Written by admin on . Posted in ICBC Privacy Issues, Jury Trials, Uncategorized.

BC Personal Injury Lawyers have been abuzz lately with the news that ICBC intentionally snooped into jurors claims histories while conducting the defence in a recent ICBC Injury Trial.
I have been following this story since it first came to my attention a few weeks ago.  It was reported by Ian Mulgrew of the Vancouver Sun and more recently by the Louise Dickson of the Victoria Times Colonist.  In a nutshell the facts behind the story are as follows:  
The Plaintiff was injured in 2 motor vehicle collisions.  She sued for damages.  The trial for both claims were to be heard at the same time.  ICBC chose to have both matters heard by Jury Trial.  At the beginning of trial the Plaintiff brought an application to strike the jury and have the matter proceed by Judge alone.  Mr. Justice Macaulay, the presiding judge, dismissed this motion and let the jury trial begin.  (click here to read the reasons denying the motion to strike the jury).
A few days into the trial a settlement was reached.  At the same time ICBC admitted to improper conduct, particularly snooping in the jurors private ICBC records.   This breach of privacy was apparently initiated by ICBC’s defence lawyer who asked an ICBC adjuster to provide her with the juror’s claims histories.  This admission concerned the presiding judge who discharged the jury and ordered that the ICBC defence lawyer and ICBCs’ corporate counsel appear before him for a subsequent hearing to shed some light on why the jurors claims histories were improperly disclosed to ICBC’s defence lawyer.
The following hearing took place today in the BC Supreme Court.  One thing that I and many other personal injury lawyers had hoped for was that some information would have come to light about the frequency with which this snooping has occurred in the past.  Particularly has ICBC improperly accessed jurors, plaintiffs or witnesses ICBC claims histories in other cases?  Unfortunately these important questions were left unanswered.  
Mr. Justice Macaulay held that the behaviour that came to his attention fell short of contempt of court however that it was improper and left serious concerns about the administration of justice in BC.  The Times Colonist reported that ” The justice again emphasized he had serious concerns that the unauthorized disclosure of the two claims history impacts the administration of justice.  Macaulay said it was not the responsibility of the court to investigate alleged breaches of the Information and Privacy Act, nor was it the function of the court to decide whether the lawyer’s conduct falls short of professional standards. Macaulay said he was concerned about fairness. If the plaintiff had called for a mistrial, Macaulay said he likely would have granted one.”
According to the Times Colonist “Macfarlane (ICBC’s corporate counsel) said ICBC had sent letters of apology to five of the eight jurors, but had been unable to contact the remaining three. Macaulay told him ICBC would not have the assistance of the court in contacting them.”
I wonder if ICBC’s letters of apology to the jurors make any mention of the BC Privacy Act and the fact that “it is a tort, actionable without proof of damage, for a person, willfully and without a claim of right, to violate the privacy of another“.  I hope that ICBC’s letters contain more than a mere apology but proper compensation for this improper use of the jurors records.  I further hope that this is an isolated incident and some sort of objective proof can be had to verify if this is the case.  
The concerns about this behaviour and its impact on the administration of justice are serious ones.  I commend the individuals at ICBC who came clean about this breach of Privacy but given the vast records that ICBC have in their database regarding British Columbians and the relative ease with which these can be accessed by ICBC adjusters this story should not end until there is a proper and verifiable assurance from ICBC that this is an isolated incident and that the jurors whose privacy was breached are properly compensated for this wrong.