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Litigation Privilege and Solicitor-Client Privilege Explained

Written by admin on . Posted in Civil Procedure, Uncategorized. 99 Comments on Litigation Privilege and Solicitor-Client Privilege Explained

In BC Lawsuits one of the primary goals of the Rules of Court is to require document disclosure to put the parties on a level playing field with respect to the facts and to prevent trial by ambush.
Disclosure requirements, however, need to compete with the equally compelling doctrine of privilege which permits parties to lawsuits the right to refuse production of certain classes of otherwise relevant documents. Two categories of privileged documents which are not always clearly understood by litigants are those of ‘solicitor client privilege‘ and ‘litigation privilege’.
Today the BC Supreme Court released reasons for judgement explaining the difference between these classes of privileged documents.
In today’s case (Lougheed Estate v. Wilson) the Plaintiff sought access to certain documents which the Defendant refused to produce on the basis on litigation privilege.  In ordering that the documents be produced Mr. Justice Grauer did a great job in explaining the difference between solicitor-client and litigation privilege.  I reproduce this summary below:

(b) Solicitor-client privilege

[26] Solicitor-client privilege, or “legal advice privilege”, is conceptually different from litigation privilege.  One of the important differences is that solicitor-client privilege applies only to confidential communications between the client and his or her solicitor: Blank v. Canada, [2006] S.C.R. 319, 2006 SCC 39 at para. 28, citing with approval Professor R.J. Sharpe (now Sharpe, J.A.):  “Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of Upper Canada (1984), 163, at pp. 164-65.

[27] The documents over which Mr. Wilson asserts privilege that are at issue before me consist solely of correspondence between Mr. Wilson’s solicitor and counsel for Elections Canada.  They do not consist of confidential communications between Mr. Wilson and his solicitor.  Accordingly, I find that they are not eligible for the protection of solicitor-client privilege.

(c) Litigation privilege

[28] The nature of litigation privilege was thoroughly discussed by the Supreme Court of Canada in the Blank case, where Fish J. quoted further from Prof. Sharpe’s article as follows (loc. cit. supra):

Litigation privilege, on the other hand, is geared directly to the process of litigation.  Its purpose is not explained adequately by the protection afforded lawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege.  Its purpose is more particularly related to the needs of the adversarial trial process.  Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of the case for trial by the adversarial advocate.  In other words, litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect the relationship (namely, the confidential relationship between a lawyer and the client).

[29] Fish J. then went on to explore the limits of the privilege:

34        The purpose of the litigation privilege, I repeat, is to create a “zone of privacy” in relation to pending or apprehended litigation.  Once the litigation has ended, the privilege to which it gave rise has lost his specific and concrete purpose – and therefore its justification.  But to borrow a phrase, the litigation is not over until it is over.  It cannot be said to have “terminated”, in any meaningful sense of that term, where litigants or related parties remain locked in what is essentially the same legal combat.

35        Except where such related litigation persists, there is no need and no reason to protect from discovery anything that would have been subject to compellable disclosure but for the pending or apprehended proceedings which provided its shield….

36        I therefore agree with the majority in the Federal Court of Appeal and others who share their view that the common-law litigation privilege comes to an end, absent closely related proceedings, upon the termination of the litigation that gave rise to the privilege [citations omitted].

37        Thus, the principal “once privileged always privileged”, so vital to the solicitor-client privilege, is foreign to the litigation privilege.  The litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope nor permanent in duration.

38        As mentioned earlier, however, the privilege may retain its purpose – and, therefore, its effect – where the litigation that gave rise to the privilege has ended, but related litigation remains pending or may reasonably be apprehended….

39        At a minimum, it seems to me, this enlarged definition of “litigation” includes separate proceedings that involve the same or related parties and arise from the same or related cause of action (or “juridical source”).  Proceedings that raise issues common to the initial action and share its essential purpose would in my view qualify as well.

40        As a matter of principle, the boundaries of this extended meaning of “litigation” are limited by the purpose for which litigation privilege is granted, namely, as mentioned, “the need for a protected area to facilitate investigation and preparation of the case for trial by the adversarial advocates” (Sharpe, at p. 165).

Damaging Your Opponents Case at Trial Through Examinations for Discovery

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

Examinations for Discovery in ICBC Claims are conducted for 2 primary reasons.  The first is to learn about your opponents claim, the second, and perhaps equally important reason is to get admissions which can be used against your opponent should the claim proceed to trial.
When a damaging answer from an examination for discovery is read into evidence at trial it can have the same impact as if the damaging fact was testified to live in court.  If a discovery answer contradicts evidence given at trial this can have an impact on credibility and can significanty effect the outcome of trial.
Rule 40(27) of the BC Supreme Court Rules addresses the use of discovery evidence at trial.  This Rule, however, imposes certain limits on the abilities of opponents to use transcripts at trial.  Specifically one limitation contained in the Rule states that the evidence is ‘admissible only against the adverse party who was examined…’

This limit should be kept in mind when suing multiple defendants and reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating this evidentiary limitation in an injury claim trial.

In today’s case (MacEachern v. Rennie) the Plaintiff sued multiple parties for damages as a result of serious injuries.  At trial the Plaintiff sought to read in portions of the Defendants examinations for discovery.   The Plaintiff sought to have some of this evidence ‘used not only against the party who was examined, but also against all the other defendants‘.  Mr. Justice Ehrcke rejected this argument and folowed the strict reading of Rule 40(27) limiting the use of the answers only against the defendants who gave them.  The Court summarized and applied the law as follows:

[13]         In any event it must be noted that the Rules of Court were amended in 1985 and again in 1992. The current form of Rule 40(27) is not the same as the rule upon which McEachern C.J.B.C. was commenting in Foote v. Royal Columbia Hospital. In 1982 there was nothing equivalent to the current Rule 40(27)(a).

[14] I find that the current law is correctly stated in Fraser and Horn, The Conduct of Civil Litigation in British Columbia, Vol. 1 looseleaf (Markham:  LexisNexis Canada Inc., 2006) at paragraph 18.10:

An amendment to Rule 40(27)(a) in 1992 re-affirmed the long-standing jurisprudence that the testimony of a party on discovery was not admissible against his co-party. In 1986 the traditional rule had been held to have been superceded as a result of a rule amendment in 1985. Because of the 1992 amendment, it is once again the law that the evidence of one person on an examination for discovery is not ordinarily admissible against a co-party.

[15] Accordingly, the questions and answers from the examination for discovery of Mr. Rennie requested by the plaintiff and the additional questions 396 and 397, along with their answers, shall be read into evidence at trial, but they do not constitute direct evidence against any of the defendants except Mr. Rennie.

This decision serves as a good reminder that when ICBC Injury Claims are prepared for trial care should be taken to ensure there is admissible evidence against all of the Defendants for all matters in issue.

Here We Go Again – Rule 37B Amended

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Uncategorized. 65 Comments on Here We Go Again – Rule 37B Amended

A year ago the BC Rule dealing with formal offers in the BC Supreme Court, Rule 37, was repealed and replaced with Rule 37B.   One of the primary differences between the rules was the greater discretion given to trial judges in awarding costs to litigants after beating a formal settlement offer at trial.
I have written about every Rule 37B case that came to my attention over the past year keeping track of the judicial development of this rule.  Now, after being in force for a short period of time, Rule 37B is being amended with the changes taking effect on July 1, 2009.
The new changes seem to be in direct response to a recent judgement of Mr. Justice Goepel where he decided that Rule 37B does not give judges the discretion to award Defendants their trial costs after beating a formal offer of settlement at trial.  This interpretation was great for Plaintiffs in personal injury claims because it diminished the financial risks for personal injury trials that did not proceed favorably.  I thought that the Court of Appeal would likely determine whether Mr. Justice Goepel’s interpretation was correct but this no longer will be necessary as the Rule amendment specifically addresses this point.
Interestingly, the new rule does not specifically address whether a Defendant being insured is a relevant factor for the court to consider when looking at the ‘financial circumstances of the parties’.  BC Courts have been inconsistent in determining whether this is a relevant consideration in ICBC Injury Claims.
As of July 1, 2009 the new Rule will read as follows:

Definition

(1) In this rule, offer to settle means

(a) an offer to settle made and delivered before July 2, 2008 under Rule 37, as that rule read on the date of the offer to settle, and in relation to which no order was made under that rule,

(b) an offer of settlement made and delivered before July 2, 2008 under Rule 37A, as that rule read on the date of the offer of settlement, and in relation to which no order was made under that rule, or

(c) an offer to settle, made after July 1, 2008, that

(i)  is made in writing by a party to a proceeding,

(ii)  has been delivered to all parties of record, and

(iii)  contains the following sentence: “The ….[name of party making the offer]…. reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has rendered judgment on all other issues in this proceeding.”

Offer not to be disclosed

(2) The fact that an offer to settle has been made must not be disclosed to the court or jury, or set out in any document used in the proceeding, until all issues in the proceeding, other than costs, have been determined.

Offer not an admission

(3) An offer to settle is not an admission.

Offer may be considered in relation to costs

(4) The court may consider an offer to settle when exercising the court’s discretion in relation to costs.

Cost options

(5) In a proceeding in which an offer to settle has been made, the court may do one or more of the following:

(a) deprive a party, in whole or in part, of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle;

(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

(c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;

(d)  if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

[am. B.C. Reg. 165/2009, s. 1 (a), (b) and (c).]

Considerations of court

(6) In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.

Costs for settlement in cases within small claims jurisdiction

(7) A plaintiff who accepts an offer to settle for a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

[en. B.C. Reg. 165/2009, s. 1 (d).]

Counter offer

(8) An offer to settle does not expire by reason that a counter offer is made.

[en. B.C. Reg. 165/2009, s. 1 (d).]

BC Personal Injury Claims and Document Disclosure

Written by admin on . Posted in Civil Procedure, Uncategorized. 104 Comments on BC Personal Injury Claims and Document Disclosure

Very important reasons for judgement were released today by the BC Court of Appeal dealing with the duties of counsel when it comes to listing privileged documents in BC Supreme Court Lawsuits.
In today’s case (Stone v. Ellerman) the Plaintiff was injured in a 2002 BC car crash.  Her case proceeded to trial and she was awarded almost $700,000 in damages.  The defendants appealed and today the BC Court of Appeal ordered a new trial on the basis that the trial was ‘fundamentally flawed when, partway through the plaintiff’s evidence in chief, and over the objection of the defence, the plaintiff was permitted to use a pain journal‘.   The reason why this created a ‘fundamentally flawed‘ trial was because the pain journal was not properly identified by the plaintiff’s lawyer.
Rule 26 deals with disclosure obligations in most BC Supreme Court lawsuits and subrule 26(2.1) requires that “the nature of any document for which privilege from production is claimed must be described in a manner that, without revealing information that is privileged, will enable parties to assess the validity of the claim of privilge‘.
In the course of the claim the Plaintiff’s lawyer advised her to keep a pain journal, something often done in personal injury cases.  In listing the document as privileged it was described as “notes and documents, correspondence, minutes of evidence, memoranda being the work product of plaintiff’s legal advisers“. The trial judge held that this document was not properly disclosed, however, permitted the Plaintiff’s memory to be ‘refreshed’ at trial with this document.
The Defendants appealed and succeeded.  In granting a new trial the BC Court of Appeal gave the most comprehensive summary of this area of the law that I’m aware of.  Specifically, the court said the following with respect to lawyers disclosure obligations of privileged documents under Rule 26:

[21] The first question to be addressed is whether the pain journal was adequately described for purposes of Rule 26(2.1) by “notes and documents, correspondence, minutes of evidence, memoranda being the work product of plaintiff’s legal advisers”.

[22] It is clear that it was not. Nothing in that description would “enable other parties to assess the validity of the claim of privilege” (Rule 26(2.1)), or to anticipate that anything like a pain journal existed among the “notes and documents”, even in the most general terms.

[23] The information that must be included in the description of a document over which privilege is claimed will vary depending upon the document, but it must be sufficiently described so that if the claim is challenged it can be considered by a judge in chambers: Babcock v. Canada (Attorney General), 2004 BCSC 1311, 246 D.L.R. (4th) 549, citing Visa International Service Assn. v. Block Bros. Realty Ltd. (1983), 64 B.C.L.R. (2d) 390 (C.A.).

[24] In Saric v. Toronto-Dominion Bank, 1999 BCCA 459, Mr. Justice Hall, in chambers, cited Shaughnessy Golf and Country Club v. Uniguard Services Ltd. and Chahal (1986), 1 B.C.L.R. (2d) 309 (C.A.), for the proposition that the grounds for privilege have to be established in respect of each document which is said to be privileged.  He added (at para. 12) “a litigant, (and presumably the court), has to have some proper basis upon which to determine issues of privilege as they relate to documents”.

[25] It has been held that since Rule 26(2.1) came into force in mid-1998 the “bundling” of documents under a broad description is no longer sufficient and that each document must be listed separately.  In Leung v. Hanna (1999), 68 B.C.L.R. (3d) 360 (S.C.), solicitor-client privilege was claimed over documents that were described as “documents marked P3 [through P10], the same having been initialled by the handling solicitor”. Mr. Justice Burnyeat found that each document had been listed separately as the new sub-rule required.  He found that the descriptions themselves otherwise satisfied the requirements articulated in Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129, under the old rule, which permitted quite generic descriptions in favour of protecting privileged information. Burnyeat J. held that such descriptions – now of individual documents – remained sufficient under the new rule.

[26] In Bajic v. Friesen, 2006 BCSC 1290, a master in chambers explained the decision in Leung this way:

[3]        It is clear from the decision of Mr. Justice Burnyeat that the sanctity, if you will, of solicitor/client privilege in his mind trumps any attempt to describe documents in part 3 such that they provide any conceivable understanding to the other party as to the nature of the document. It would appear it then forces a party concerned with the description or lack of same in part 3 to bring an application to the court which then leaves the judge or master hearing the matter to review the document and then conclude whether or not it is appropriately within part 3.

[27] Some authority supports the proposition that where the privilege claimed is not solicitor-client privilege but rather litigation privilege, as in this case, the premium placed on protecting the information is lower and the description must be more detailed to facilitate challenge.  In Hetherington v. Loo, 2007 BCSC 129, Master Caldwell distinguished Leung v. Hanna on the basis that it dealt exclusively with solicitor-client privilege.  He reasoned as follows:

[8]        …The present case deals with a claim of privilege based upon the “dominant purpose of litigation” test and protection. While information such as the date and author’s identity may well be protected from disclosure under a claim of solicitor-client privilege, such protection is not necessarily afforded claims of privilege based upon the dominant purpose test. The latter protection is less absolute, more fact driven and subject to challenge. In the recent case of Blank v. Canada (Minister of Justice), [2006] S.C.J. No. 39, Fish J. said at [paragraph] 60:

the litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal partner of the broadly interpreted solicitor-client privilege. The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure.

[9]        And at [paragraph] 61:

While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process.

[10]      In order that proper assessment may be made as to the propriety of a claim of litigation or dominant purpose privilege it is necessary that sufficient particulars of the documents be given. In most cases dealing with documents involving adjusters files and certainly in this case, particulars as to date and author must be provided. When dealing with interview notes, transcripts, and statements, it may also be necessary to identify if not the actual subject, at least the category of subject (e.g. eyewitnesses, home-care worker, etc.) involved.

[28] Snow v. Friesen, 2008 BCSC 1664, is to the same effect.

[29] In this case, the pain journal is properly to be treated as within the lawyer’s brief, or litigation privilege.  The description in the plaintiff’s affidavit of documents failed to provide any information that would have made the defendants aware of a document in the “category of subject” of the pain journal or enabled them to assess the validity of the claim of privilege.  It follows that for the purposes of Rule 26(14) the plaintiff failed to make discovery of the pain journal “as required by this rule”.

[30] Nondisclosure notwithstanding, the judge retained the discretion to permit the use of the pain journal for the purposes of the plaintiff’s examination-in-chief.  Factors basic to the exercise of this discretion are whether the defendants would suffer prejudice if the use of the journal was permitted, and whether there was a reasonable explanation for the plaintiff’s failure to disclose it.

[31] Other factors relevant to the exercise of the discretion are whether excluding the document would prevent the determination of the issue on its merits: Hoole v. Advani, [1996] B.C.J. No. 522; and whether, in the circumstances of the case, the ends of justice require that the document be admitted: Jones, Gable & Co. v. Price (1977), 5 B.C.L.R. 103; Wu v. Sun, 2006 BCSC 1890; and Adamson v. Charity, 2007 BCSC 671.

[32] In Carol v. Gabriel (1997), 14 C.P.C. (4th) 376, Mr. Justice Henderson excluded a surreptitiously recorded videotape of an independent medical examination.  He said:

[9]        A party tendering a previously undisclosed document must establish to the court’s satisfaction a justification for the failure to abide by Rule 26(14). The question of whether the opposite party will be prejudiced by the admission of the document is always relevant but is not, in and of itself, decisive. Even in cases where no prejudice will ensue from the admission in evidence of the document, it will be excluded unless there is a reasonable justification for the earlier failure to disclose it. To hold otherwise would be to dilute the disclosure obligation and tempt counsel to refrain from disclosing in situations where they do not expect any prejudice to result.

[33] Mr. Justice Henderson found that the defendant would not be prejudiced in any way by the admission of the videotape, because the alleged discrepancies between the tape and the report were minor and would not have affected his assessment of the doctor’s credibility.  However, he ruled the tape inadmissible in the absence of any reasonable justification for failing to disclose it earlier.

[34] This approach has been followed in subsequent cases: see Ball v. Gap (Canada) Inc., 2001 BCSC 824, 8 C.P.C. (5th) 258; Golden Capital Securities Ltd. v. Holmes, 2002 BCSC 516; Sturzenegger (c.o.b. Zurich Trucking) v. K. Peters Industries Northern Ltd., 2003 YKSC 72; Kursar v. BCAA Insurance Corp., 2006 BCSC 586; and Wu v. Sun, 2006 BCSC 1890.

[35] It appears that the judge failed entirely to consider whether there was any reasonable explanation for the plaintiff’s failure to comply with the disclosure rule.  The law leaves no doubt that this is a central factor to be considered, nor any doubt that the fact that a document may be subject to lawyers’ brief privilege or litigation privilege does not provide a reasonable explanation for failing to disclose it in accordance with the requirements of Rule 26: Hoole v. Advani, and Ball v. Gap (Canada) Inc. (both supra).

[36] In Golden Capital Securities Ltd. v. Holmes (supra), the plaintiff claimed litigation privilege over some tape recordings made by a witness to a conversation between the witness and the defendants.  The tapes and transcripts thereof were not provided by the plaintiff to defendants’ counsel until just before the witness appeared to testify, some seven days after the trial commenced.  The plaintiff sought to have them admitted into evidence.

[37] Applying Carol v. Gabriel (supra), and noting that the burden was on the plaintiff, the judge sought a reasonable explanation for the lack of timely disclosure.  The judge rejected as a reasonable explanation the claim that the recordings were subject to litigation privilege.  While prejudice was not required to be found in order to rule the documents inadmissible, the judge found that in this case there was potential prejudice.  The defendants missed the opportunity to examine the recordings, prepare objections that might be proper, discover and respond to any problems with the recordings themselves and were unable to cross-examine witnesses who had already testified about the content of the recordings.  The judge noted that the content of the recordings had been the subject of the witness’s testimony so the plaintiff was not deprived of the opportunity to put that aspect of his case before the court.  The witness would have had to testify from memory had he not recorded the conversations or had the tapes been lost, and so the plaintiff had the benefit of the tapes to the extent of having had his memory refreshed by them.  The tapes were excluded from evidence.

[38] In my view, there was in the case at bar significant prejudice to the defence in being refused the opportunity to make a full and reasoned objection to the late production of this document.  Had the document been disclosed in a timely way, it would have undoubtedly affected defence counsel’s preparation for trial.

[39] If the pain journal had been identified in the plaintiff’s list of documents in a manner that complied with Rule 26(2.1), the defence would have been able “to assess the validity of the claim for privilege”.  If not satisfied that the document was properly protected by the claim of litigation privilege, the defence could have applied under Rule 26(8) to compel production of the document for inspection.  Upon being satisfied that the document was not privileged, the court could have ordered its production for inspection and copying under Rule 26(10). If the claim for privilege had been maintained, the defence would have known of the document’s existence, if not its content. Knowledge of its existence might well have affected settlement negotiations and would have enabled defence counsel to anticipate the document’s possible presentation at trial.

[40] With respect to contrary opinion, it is no answer to non-compliance with Rule 26 to argue that the pain journal was not used for an improper purpose at trial, or that the defence chose to cross-examine on its contents.  Those considerations are quite irrelevant to the questions of whether there was non-compliance with the rule, whether there was prejudice to the defence, and whether the judge exercised his discretion judicially.

[41] Nor is it any answer to suggest that the plaintiff was not required to produce the document until privilege was waived.  That argument ignores entirely the other provisions of Rule 26, which enable opposing counsel to challenge the claim for privilege before trial.

[42] The object of the discovery rules is to prevent trial by ambush.  The object of the Rules in general is “… to secure the just, speedy and inexpensive determination of every proceeding on its merits” (Rule 1(5)).  Discovery of documents that fails to comply with the Rules is antithetical to these ends.

[43] The judge appears to have given little or no consideration to the prejudice suffered by the defence.

[44] It is unfortunate that the trial judge did not avail himself of defence counsel’s offer to provide authorities on how the judge should exercise his discretion in the circumstances.  Defence counsel was obviously taken by surprise at the production of the pain journal in the midst of the plaintiff’s evidence in chief.  It was entirely reasonable for defence counsel to seek an opportunity to research and consider the law before making submissions to the court, and it may well have been of considerable assistance to the court.

[45] The pain journal proved to be of central importance to the plaintiff’s evidence.  As the judge observed in ruling its use permissible “her memory of events isn’t good” and without something to prompt her she “is unable to give me any of the detail that makes up the total picture.  What she gives me is conclusory opinions”.

[46] The proposition that keeping a pain journal on counsel’s advice is sufficiently common practice as to exempt such a journal from the disclosure rules is unsupported by any authority. The judge’s suggestion that one ought to assume that a pain diary is being kept in all personal injury litigation is also inconsistent with the fact that the burden of providing a reasonable explanation falls squarely on the party who has failed to make disclosure in accordance with the rules.

[47] It may be apparent in retrospect that it was necessary for the plaintiff to refer to her pain diary in order to recall events long past, and it is arguable that to have prevented her from doing so may have interfered with the proper decision of the issues at trial on their merits and with full information.  However, permitting use of the document with no notice to the defence gave the plaintiff an unfair advantage.

[48] One cannot say with certainty that the judge would have reached a different conclusion on the use of the pain diary if he had considered all relevant factors, in particular whether there was a reasonable explanation for the delay in its disclosure.  However, the simple claim that the document was subject to litigation privilege is not an explanation, and no other explanation was presented to the judge.

[49] In the absence of a reasonable explanation for the late disclosure, and without an adequate consideration of the issue of prejudice, the judge ought not to have permitted the use of the diary.

[50] In my respectful opinion, permission to use the document in the circumstances described amounted to a miscarriage of justice.

[51] I would allow the appeal, set aside the judgment and order a new trial.

ICBC Soft Tissue Injury Claims, Low Velocity Impacts and Credibility

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 1 Comment on ICBC Soft Tissue Injury Claims, Low Velocity Impacts and Credibility

When ICBC denies compensation for an injury claim due to their LVI Program the credibility of the Plaintiff is usually put squarely at issue. In Soft Tissue Injury Claims ICBC often challenges the veracity of the Plaintiff alleging that the injuries are being exaggerated or perhaps wholly made up.
Reasons for judgement were transcribed today by the BC Supreme Court, New Westminster Registry, dealing with such a defence.
In today’s case (Jezdic v. Danielisz) the Plaintiff was involved in a 2003 BC Car Crash.  The crash occurred in a parking lot and was a low velocity impact which resulted in little vehicle damage.  The Plaintiff alleged that she suffered various injuries in this collision.  Mr. Justice Sigrudson dismissed the Plaintiff’s claim finding that she ‘has not dischared the burden on her to establish on a balance of probabilities that she was injured in the car accident’.   In reaching this conclusion the Court made the following comments on credibility, low velocity impacts and soft tissue injury claims:

[30] I should consider the circumstances of the collision.  I am mindful that persistent injuries can arise from low velocity collisions.  This was a low velocity collision.  The defendant’s pickup truck was backing out of a spot two spaces (or at least one space) over from the plaintiff’s father’s vehicle.  The parking lot was slightly higher on the side where the defendant was parked, and lower on the side where the plaintiff’s vehicle was.  The accident occurred, I find, when the defendant’s vehicle backed into the plaintiff’s vehicle at an angle.  The defendant’s bumper rode up over the plaintiff’s bumper causing it to compress and split the paint on the bumper, and then the defendant’s vehicle struck the area around the trunk with the left rear corner of the defendant’s vehicle’s bumper.  The damage to the plaintiff’s father’s vehicle was to the lower part of the trunk.  The cost of repairs was $1,122 and the trunk was still operational.  There was no misalignment of the plaintiff’s bumper.

[31] I found the defendant to be a reliable witness.  The circumstances of the accident seem to accord with his evidence.  I think he was prepared to concede things when his evidence was shown to possibly be incorrect.  I accept that he was moving slowly – he described backing up at “a snail’s pace” with his foot on the brake pedal.  The evidence indicates that there were cars parked close to him that required him to move slowly as he backed out.  However, he was careless in ensuring that he did not make contact with the vehicles behind him as he was backing up.  He testified that he did not feel the impact, but agreed on cross-examination that it was possible that the plaintiff’s car moved two to three inches.

[32] Mr. Addision points to the fact that the defendant’s bumper appears lower on the left side, and the fact that there was a “wow” in the bar that attaches the bumper to the frame, but I find it extremely unlikely that those things occurred in this accident.  The accident, I find, was a very minor one with minor damage.

[33] Given the nature of the accident, it is perhaps somewhat surprising that the plaintiff says she was thrown first into the steering wheel and then back, and had immediate pain in her neck and her back.  But as has been noted, there is no rule of law or physics that a person cannot be injured in a low speed collision.  There was no expert evidence lead as to the anticipated body movement in an accident of the type that the plaintiff described.  However, I find some merit in Mr. Addison’s submission that it is probably difficult for a person to recall with any precision exactly how her body moves when she is in a collision.

[34] Although I found that Dr. Petrovic was a reasonable witness, his evidence depended on the veracity and reliability of the symptoms that were described to him by the plaintiff from time to time.

[35] Let me turn to the evidence of the plaintiff.  I have a number of concerns about the plaintiff’s evidence.  The plaintiff’s evidence contained significant inconsistencies in the manner in which she described her symptoms at trial, to her doctor and on discovery.

(a)        She testified at trial that her neck pain got better in the first eight months and there were times that she did not have neck pain, but on discovery she said that the pain in her neck was constant.

(b)        At trial, she said that the back pain was there for two years and got better, but came back depending on the weather.  However, on discovery in December 2005, more than two years after the accident, she said that the back pain was as constant and severe and had not changed since the accident.

(c)        Her description of her symptoms and their duration is inconsistent with Dr. Petrovic’s report that on July 17, 2003, three months after the accident, the plaintiff noted no neck or lower back symptomatolgy.

(d)        Her description of the fact that her injuries had resolved by about two years after the accident was inconsistent with her description to Dr Sovio in May 2007, four years after the accident, that she had pain in the back since the time of the accident.

[36] There were other aspects of the plaintiff’s evidence which were contradictory to other evidence that she gave or inconsistent with evidence that I accepted on a balance of probabilities.

(a)        Her evidence at trial was that she had spoken to Dr Petrovic’s office rather than going in, that she received the doctor’s advice from his receptionist but did not speak to him on the telephone, but on discovery I find that she said that she had spoken with the doctor on the telephone;

(b)        Her evidence about whether she was a member of the Lady Dyna-fit health club before the accident was different at trial than on discovery.  She explained her evidence at trial that before trial she went to that club on a free pass or tickets or on a promotion before the accident but the evidence of the owner Ms. Humphries suggests that the ability to use the club on that basis was quite limited.  This evidence suggested to me that on discovery and at trial she exaggerated to a degree the amount of her physical activity prior to the accident.

(c)        The plaintiff’s evidence at trial that she saw the truck moving pretty fast towards her vehicle was inconsistent with her evidence on discovery where she said that she heard the truck and did not see it.

(d)        In a statement given by the plaintiff after the accident she said that the impact moved the car she was in one meter but at trial she professed not to know how long a meter was and held her hands up four to six inches indicating that might be the distance that the car moved

(e)        She said at trial that she was upset after the accident and told the defendant it was because of the pain that she suffered but the defendant denied that she said that.  I accept the defendant’s description of the accident and of his subsequent discussion with the plaintiff.

[37] In assessing the plaintiff’s credibility I must take into account that English is not her first language, but also that she has been in Canada for ten years and appeared to me to be able to converse easily in English.  At the end of her cross-examination, she was indicating a lack of understanding of the terms and questions used during the discovery.  The plaintiff was offered an interpreter for the discovery but did not take that offer up.  Her inability to understand questions near the end of her cross-examination I found to be disingenuous.  It appeared to become an excuse that she felt she could use to fend off questions on cross-examination that she found difficult.  She appeared to be able to use the transcript from the discovery to analyze the questions for the purpose of explaining her evidence.

[38] I think that the inconsistencies in her evidence that I described are significant and are not explained by her lack of understanding of the questions on discovery or at trial.

[39] The burden is on the plaintiff to prove on a balance of probabilities that she was injured in the accident that was caused by the admitted negligence of the defendant.  Even in the absence of any objective symptoms, the court can be and often is persuaded by the evidence of the plaintiff.

[40] What is my overall assessment?  Has the plaintiff’s evidence persuaded me that she was injured, and the extent to which she was injured in the accident?

[41] I have concluded that on all the evidence that plaintiff has not discharged the burden on her to prove that she has suffered any injury in this accident.  I find the plaintiff’s evidence to be exaggerated and significantly inconsistent both internally and with facts that I find have been established such that I have serious reservations about her credibility to the extent that I can not rely on it alone to determine whether the plaintiff has discharged the burden on her to prove that she was injured in this accident.

[42] I find no support for the plaintiff’s case in the other evidence in this trial.  Dr. Petrovic’s report depends entirely on the reliability of the plaintiff’s reporting and accordingly his report can be given little weight.  I found no evidence that provided corroboration for the plaintiff’s alleged injuries.  The circumstances of the accident I find were very minor and did not provide corroboration for the injuries of the type that the plaintiff asserts.

[43] Looking at the plaintiff’s evidence in light of all of the evidence, I have concluded that the plaintiff has not discharged the burden on her to establish on a balance of probabilities that she was injured in the car accident.

[44] The plaintiff’s action must be dismissed.

$35,000 Non-Pecuniary Damages for Moderate Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgment were released today by the BC Supreme Court awarding just over $40,000 in total damages as a result of injuries and loss sustained in a 2006 Richmond, BC Car Crash.
In today’s case (Lo v. Chow) the Plaintiff was injured when his vehicle was struck by the Defendants.  Liability (fault) was admitted by the Defendant leaving the court to decide quantum of damages (the value of the plaintiff’s losses and injuries).
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $35,000 Mr. Justice Sewell of the BC Supreme Court highlighted the following findings:

[19] As I have already indicated many of Mr. Lo’s symptoms resolved within a relatively short period after the accident.  His on-going complaints relate mainly to his lower back and are aggravated by heavy exertion at work.  Mr. Lo did not give any evidence about curtailment of recreational activity which he has suffered as a result of the accident.

[20] I conclude that Mr. Lo suffered a mild to moderate soft-tissue injury as a result of the accident.  On the evidence before me, and in particular given the duration of his symptoms, I conclude that he will continue to be symptomatic for the foreseeable future.  At the same time, the intensity of his symptoms is not severe and they do not appear to be in any way debilitating.  My impression of Mr. Lo is that he has coped well with his pain.  Nevertheless, he has continued to experience pain for over 3 years and, as I indicated above, that pain is likely to continue indefinitely.  In all the circumstances I award Mr. Lo non-pecuniary damages for pain and suffering of $35,000.00.

In addition to the discussion addressing damages for pain and suffering this case is worth reviewing for some of the ways ICBC defence lawyers use entries contained in clinical records to try and impeach a Plaintiff at trial.  This type of impeachment with ‘prior inconsistent statements‘ is a common method used in personal injury claims.

In this case the defence lawyer argued that the Plaintiff’s evidence was inconsistent with statements recorded in certain documents.   Mr. Justice Sewell put little weight in this argument and in rejecting it noted the following:

[13] In his submissions counsel for the defendant submitted that Mr. Lo’s credibility was in issue and that I should be very sceptical about the evidence which he gave as to his condition.  Having observed Mr. Lo in the witness box and taking into consideration the whole of the evidence I find that Mr. Lo was a credible witness and that I should accept his evidence as credible.  He did not seem to overstate his symptoms and gave forthright answers to questions even when the answers did not advance his case.

[14] Defence counsel’s criticisms of Mr. Lo’s credibility are centered on two particular documents.  The first is a document described as a Discharge Report prepared by Mr. Troy Chen, a personal trainer who supervised an exercise program to Mr. Lo between August 29, 2006 and October 12, 2006.  Counsel submitted that Mr. Lo’s evidence that he continues to have difficulty and pain when called upon to do heavy work cannot be reconciled with some of the comments attributed to him in the Discharge Report.  In particular, counsel points to the following passage on page 2 of the Discharge Report dealing with client activities:

“Mr. Lo indicated the following:

Working fulltime as a packager for BEPC Apparel.  No time for any sporting or recreational activities.  On October 12, 2006, Mr. Lo indicated that he was now able to perform all job-related duties without assistance.”

[15] Counsel submits that this statement is inconsistent with Mr. Lo’s evidence that while he was employed at BEPC he required assistance in lifting heavy objects and packages.  He therefore invited me to make adverse findings of credibility against Mr. Lo.

[16] I do not think that Mr. Lo’s credibility is in any serious way damaged by the contents of the Discharge Report.  Firstly, Mr. Chen testified that he has absolutely no recollection of the matters recorded in the Report.  Accordingly, the only evidence that I have from him is in the form of past recollection recorded in the Discharge Report.  Mr. Lo speaks primarily in the Cantonese dialect of the Chinese language.  Mr. Chen speaks English and Mandarin.  He testified that he would have spoken to Mr. Lo through an interpreter but was unable to identify who that interpreter was or the circumstances in which he made notes of Mr. Lo’s comments.  I also note that in the portion of the Discharge Report immediately below client activities Mr. Chen noted that Mr. Lo continued to suffer constant discomfort in his lower back and that exertion tended to elicit pain which may linger for several days.  Mr. Lo also reported to Mr. Chen that lifting heavy objects elicited pain in his right pectoral area.

[17] The other document which counsel submitted brings Mr. Lo’s credibility into question is a WorkSafe B.C. claim filed by Mr. Lo in June 2007 with respect to a work-related injury.  On June 8, 2007 Mr. Lo lifted 30 boxes weighing at least 60 pounds each.  Mr. Lo at that time reported back pain and made a claim for wage loss compensation to WorkSafe B.C.  In the course of investigating Mr. Lo’s claim WorkSafe B.C. required various forms to be completed.  In one of the forms which was completed on behalf of Mr. Lo, in English, he reported that there was no previous condition prior to the injury.  I, again, do not find that the contents of these documents cause me to form an unfavourable impression about Mr. Lo’s credibility.  The documents, as I indicated above, are prepared in the English language and were prepared on Mr. Lo’s behalf by an employee of BEPC.  Mr. Lo testified that the contents of the document were not read to him and he understood that they were an application for benefits.  In all of the circumstances, I do not think that Mr. Lo intended to mislead or make false statements in his application to WorkSafe B.C., nor do I think that the contents of these documents are necessarily inconsistent with Mr. Lo’s symptoms as he reported them to his physicians and testified to at trial.

The Disclosure Conflict: Civil vs. Criminal Law

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

When a person at fault for a car crash is sued by the innocent victims and at the same time faces criminal charges as a result of the accident competing needs for records disclosure arise.
In the course of the criminal defence trial Canadian law requires disclosure of the facts the prosecution has gathered against the accused.  This information can be very useful to the Plaintiff in the civil suit against the at-fault motorist.  Is the Plaintiff advancing a Civil Injury Claim entitled to this disclosure or does the law limit this disclosure until the criminal trial concludes?
Reasons for judgement were released today by the BC Court of Appeal addressing disclosure rights when there are competing criminal and civil interests.
In today’s case (Wong v. Antunes) the Plaintiff’s son was struck and killed by a motor vehicle in 2005.  A civil lawsuit was started against the alleged driver Mr. Antunes.  At the same time the alleged driver was charged with ‘criminal negligence causing death’.
In the course of the criminal prosecution the Defendant was provided disclosure by Crown Counsel as required by Canadian law.   He refused to provide these documents to the Plaintiff in the civil lawsuit.  The Plaintiff brought a motion for production and largely succeeded.
The Attorney General for BC, the creator of the records, appealed this order. In allowing the appeal and in modifying the terms under which a civil litigant is entitled to disclosure of records produced in the prosecution of a criminal offence, the BC Court of Appeal held as follows:

[18] The case at bar is complicated, first, by Mr. Antunes’ refusal to even list the VPD documents as being in his possession and, second, by the Crown’s concern that some of the documents or information may jeopardize the on-going criminal proceedings.

[19] The chambers judge was alive to the problems associated with disclosure of the VPD documents.  It appears that he intended to adopt the approach to disclosure approved by the Ontario Court of Appeal in D.P. v. Wagg (2004), 239 D.L.R. (4th) 501, 71 O.R. (3d) 229, 184 C.C.C. (3d) 321 [“Wagg” cited to D.L.R.].

[20] Wagg bears some resemblance to the case before us.  It too concerned the right of a plaintiff to disclosure and production of documents in the possession of the defendant that the defendant obtained as a result of the disclosure process in criminal proceedings brought against the defendant.  In particular, the plaintiff was interested in obtaining statements given by the defendant to the police which the trial judge in the criminal proceedings had ruled as inadmissible because the statements were held to be obtained in violation of his Charter rights.

[21] The Ontario Court of Appeal ultimately endorsed the screening process formulated in the Divisional Court, holding, at para. 48-49:

Like the Divisional Court, I can see no practical way of protecting the interests discussed by that court and by the House of Lords in Taylor without giving the bodies responsible for creating the disclosure, the Crown and the police, notice that production is sought.  Further, where the Crown or police resist production the court must be the final arbiter.

I do not think that the various interests will be protected because of the implied undertaking rule in Rule 30.1.  The fact that civil counsel obtaining production is bound not to use the information for a collateral purpose may be little comfort for persons who once again find their privacy invaded, this time in civil rather than criminal proceedings.  Further, the Stinchcombe obligation on the police and Crown is very broad.  Subject to privilege the Crown must disclose all relevant information.  If there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, the information must be disclosed.  Crown counsel are urged in Stinchcombe at p. 339 to err on the side of inclusion and refuse to disclose only that which is clearly irrelevant.  The courts ought not to apply the discovery rules in civil cases in a way that could have an unintended chilling effect on Crown counsel’s disclosure obligations.

[22] The screening mechanism devised by the Divisional Court was summarized (and endorsed) by the Court of Appeal as follows, at para. 17:

· the party in possession or control of the Crown brief must disclose its existence in the party’s affidavit of documents and describe in general terms the nature of its contents;

· the party should object to produce the documents in the Crown brief until the appropriate state authorities have been notified, namely the Attorney General and the relevant police service, and either those agencies and the parties have consented to production, or on notice to the Attorney General and the police service and the parties, the Superior Court of Justice has determined whether any or all of the contents should be produced;

· the judge hearing the motion for production will consider whether some of the documents are subject to privilege or public interest immunity and generally whether “there is a prevailing social value and public interest in non-disclosure in the particular case that overrides the public interest in promoting the administration of justice though full access of litigants to relevant information” (para. 51).

[23] The Attorney General identifies a number of practical problems created by the impugned order.  The Stinchcombe package is assembled by the Crown, not the VPD.  The order, as it currently reads, requires the VPD to produce documents, despite the fact that it will not know whether these documents were part of the Stinchcombe package.  More importantly, the Attorney General maintains it is cumbersome in that it contemplates all documents being produced, subject to the police or Crown specifying why a particular document is not required to be produced.  Further, the order contemplates that the Crown must assert public interest immunity on a document by document basis.  The difficulty posed by effectively ordering disclosure of theStinchcombe package is that it fails to recognize that the disclosure under Stinchcombe serves a different purpose than disclosure in the civil context, and that to meld the two is an unfortunate development in the law.  Further, by failing to incorporate the public interest immunity claimed by the Crown in the order, it creates opportunities for unforeseen negative consequences.

[24] The preferable alternative, according to the Attorney General, is for the making of a desk order which recognizes the public interest in maintaining the confidentiality of police — Crown communications as a class, and leaving the parties with liberty to apply as to whether particular documents, or the whole class, should be disclosed in a particular case.

[25] In my opinion, the mischief identified by the Attorney General in the application of the impugned order, namely unfortunate unforeseen consequences that may impair the criminal proceedings, can be rectified by the form of order suggested by the Attorney General, which reads as follows:

ON THE APPLICATION of the [party], without a hearing and by consent;

THIS COURT ORDERS THAT:

1.         the [Chief Constable of municipal police force] [Officer in Charge or the Non-Commissioned Officer in Charge of the location Detachment of the Royal Canadian Mounted Police], or his delegate (“the Police”) be authorized and directed to, within 35 days of receipt of a copy of this Order, find all documents as defined in the Supreme Court Rules, including all handwritten notes of all investigating officers, in the possession or control of the Police relating to [incident] (“the Incident”) and in particular file number [file number];

2.         the Police shall examine the said documents when found, and determine which documents or portions of documents may not be produced because they are:

(a)  any correspondence or communications between the Police and Crown Counsel, or between the Police and solicitors advising them, for the purpose of giving or receiving legal advice;

(b)  documents which it would be contrary to the public interest to produce, and in particular documents which if disclosed:

(i)  could reveal correspondence or communications between the Police and Crown Counsel other than those referred to in subparagraph (a);

(ii)  could prejudice the conduct of a criminal prosecution which is anticipated or has been commenced but not finally concluded, where the dominant purpose for the creation of the documents is that prosecution (not including reports, photographs, videotapes or other records of or relating to the Incident created by or for the Police on their attendance at the scene of the Incident or as a contemporaneous record of such attendance);

(iii)  could harm an ongoing statutory investigation or ongoing internal Police investigation;

(iv)  could reveal the identity of a confidential human source or compromises the safety or security of the source;

(v)  could reveal sensitive police investigation techniques; or

(vi)  could harm international relations, national defence or security or federal provincial relations;

(c)  protected from production by the Youth Criminal Justice Act (Canada), or by any other applicable statute;

3.         the Police shall copy the documents which satisfy the criteria for production referred to in paragraph 2 or such portions of the documents as satisfy the criteria for production referred to in paragraph 2;

4.         the Police shall make the copies available to the solicitor for the Applicant for inspection or collection at [address];

5.         the solicitor for the Applicant shall forthwith enter this Order and deliver a copy to the Police and the solicitors for the parties herein;

6.         any reasonable costs incurred by the Police for the retrieval, production, inspection, copying and delivery of the said documents shall be paid forthwith by the solicitor for the party requesting such retrieval, production, inspection and delivery of the said records;

7.         within seven days after receipt by the solicitor for the Applicant of the said documents from the Police pursuant to this Order, such solicitor shall provide each of the solicitors for the parties herein with a copy thereof and the solicitors for the parties herein shall be at liberty to examine the copies of the documents received by the solicitor for the Applicant from the Police;

8.         any party, the Police and the Attorney General of British Columbia, shall have liberty to apply to the Court to determine which, if any, documents are required to be produced pursuant to this order.

[26] In my opinion, the form of order suggested by the Attorney General balances the plaintiff’s need to obtain information in the police file with the Crown’s need to preserve the integrity of the criminal prosecution.  Further, it permits, in the appropriate case, full debate on the various privilege issues that may arise.

IV.        DISPOSITION

[27] It follows that I would allow the appeal and direct that an order in the form referred to above be entered.

More on BC Personal Injury Law and the Duty to Mitigate

Written by admin on . Posted in Civil Procedure, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

A plaintiff who fails to take reasonable steps to minimize their losses and injuries after a car accident risks having their claim reduced accordingly for this ‘failure to mitigate’.
I’ve written about this before and reasons for judgement were released today by the BC Supreme Court demonstrating this principle in action.
In today’s case (Latuszek v. Bel-Air Taxi 1992 Ltd.) the Plaintiff was involved in a serious intersection crash in the lower mainland.  The Defendant died in the collision and the Plaintiff suffered serious injuries.
These injuries included Depression, PTSD and Chronic Pain.  The Court valued the non-pecuniary damages (pain and suffering) for these injuries at $100,000 but then reduced the award by $40,000 due to the plaintiff’s failure to mitigate.
Madam Justice Stromberg-Stein summarized and applied the law as follows:

[84] Prior to setting non-pecuniary damages, I will address the duty to mitigate.

[85] There is a duty at law to take reasonable steps to minimize your loss, particularly where, as here, conservative treatments have been recommended.  Because of the nature of the plaintiff’s work, as a professional driver transporting fuel, he has limited his medication to Tylenol Extra Strength or Tylenol 8 Hour.  Dr. Jaworski recommended exercises in the pool and gym and brisk walking.  Mr. Latuszek says he swam once in a while, but he did not go to the gym or do brisk walking.  Dr. Jaworski suggested that brisk walking may be contraindicated now that he knows that Mr. Latuszek has a torn medial meniscus.  Mr. Latuszek does very little regular exercise of any kind, except once or twice a week.  He did not try yoga, massage therapy, relaxation therapy or the medications as recommended by his psychiatrist.  He has not taken holidays in the past two years to try the anti?depressant medication, yet he understands that such medication as well as exercise, may improve, if not cure, his symptoms.  The plaintiff has not prioritized his recovery.

[86] In light of the authorities presented by the parties, I conclude that general damages, having regard to the injuries suffered by Mr. Latuszek and the continued problems in that regard, including depression, PTSD, and chronic pain, should be set at $100,000.  There will be a reduction of $40,000 for failure to mitigate.  Therefore, I award $60,000 as general damages.

More on ICBC Claims, Trials and Costs

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

One important difference between the BC Supreme Court and BC Small Claims Court is the availability of court ‘costs’ to the winning litigant.
A winning party in the Provincial Court is usually awarded their disbursements, that is, the money it cost to bring the legal proceedings such as court filing fees, the cost of producing medical evidence etc.  The winner cannot, however, be awarded Tariff Costs (money to compensate the party for the various steps they took in the lawsuit).  This can be contrasted with the Supreme Court where a winning party can be awarded Costs and Disbursements.   This can make a big difference as a ‘costs’ award after a Supreme Court trial could easily exceed $10,000.
What if you bring your ICBC injury claim in Supreme Court but are awarded an amount of money in the Small Claims Court’s jurisdiction (currently up to $25,000).  Could you still get awarded Tariff Costs?  The answer is sometimes and the starting point is to look at Rule 57(10) which states:
(10) A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
So, the question is when is there sufficient reason for bringing an ICBC injury claim in Supreme Court when the claim ends up being worth less than $25,000?
Reasons for judgement were released today further dealing with this issue.  In today’s case (Bagasbas v. Atwal) the Plaintiff brought an injury claim in the BC Supreme Court.  At trial the Plaintiff’s evidence was contradicted by photos that she had posted on her Facebook account.   The result was a finding that the Plaintiff suffered rather minimal injuries that were valued at $3,500 by the trial judge.
The trial judge was then asked to determine whether the Plaintiff should be awarded ‘costs’ which would depend on whether she had ‘sufficient reason for bringing the proceeding in the Supreme Court.’  Madam Justice Satanove held that the plaintiff did not have sufficient reason and in coming to this decision said the following about a litigants obligation to fully inform treating physicians and lawyers of pertinent facts:

[5] Plaintiff’s counsel in the case at bar has filed an affidavit from the plaintiff’s solicitor of record setting out the state of affairs that existed at the time the plaintiff asked him to initiate the action.  This solicitor relied primarily on a medical?legal report requisitioned by him from the plaintiff’s general practitioner, Dr. Ladhani.  Dr. Ladhani’s report dated February 8, 2008, concluded that subsequent to the accident, the plaintiff developed pain in her neck, upper and lower back areas, as well as her right hip area.  He found she had made slow but steady progress over the last 20 months but that she continued to have some pain in the upper and lower back areas, as well as her right hip.  He anticipated that the plaintiff would continue to improve over the next few months but if her condition did not improve, he may have to order a CAT scan of her lower back.

[6] Let me pause at this juncture and say that I find it eminently reasonable for counsel faced with a medical-legal report of this nature to commence an action in Supreme Court as opposed to Provincial Court.  The prognosis was unclear and further radiography was required.  Later, a CAT scan showed the plaintiff to have a herniated disk but as I have said, the plaintiff did not claim that this was due to the accident.

[7] The difficulty that arises which has caused the parties to appear before me is that on cross-examination of Dr. Ladhani at trial, it became apparent that the plaintiff had not been fully forthright with her doctor.  From the date of the accident to September 2, 2006, she advised Dr. Ladhani that she continued to get pain in the right side of her neck and upper back and lateral movements of these areas produced discomfort.  Later, in subsequent visits, she complained of pain in her lower back, tenderness in her spine, difficulty wearing high heels, inability to run or kayak or jog and the other matters which are itemized in Dr. Ladhani’s report.  She did not tell him that between June and September 2006, she had taken a camping trip to the United States, had attended her Filipino dance rehearsals regularly, had flown to Antwerp, Belgium for two weeks where she participated in dance performances and after-hours celebrations.  Dr. Ladhani seemed surprised to see the many photographs shown him by defence counsel which photographs depicted the plaintiff in quite intricate dance manoeuvres, sometimes in high heels looking comfortable and smiling.  The plaintiff also did not tell Dr. Ladhani of her ongoing activities after September 2006, including such things as a trip to Cancun, to Hawaii and further dance appearances in Kamloops, Victoria and other places.

[8] Dr. Ladhani was not asked if knowing of these facts in February 8, 2008, would have changed his opinion at that date but it certainly reduced the weight I gave to his opinion.

[9] In my view, a plaintiff who does not fully inform his or her treating physician and legal counsel of the pertinent facts at the time medical or legal advice is sought runs the risk of receiving inaccurate or erroneous advice through no fault of the professional advisors.  If all the evidence I heard at trial about the plaintiff’s condition before February 8, 2008, had been in the possession of counsel at the time he commenced the action, I expect he would have advised the plaintiff to start an action in Small Claims Court where this case belongs.

[10] The onus is on the plaintiff under Rule 57(10) to establish sufficient reason for bringing the proceeding in Supreme Court and I find that she has not done so.  In no way is her counsel to blame.  This regrettable outcome for the plaintiff lies at her feet alone.  Therefore, the plaintiff is not entitled to costs other than her disbursements.

Expert Evidence and Litigation Privilege

Written by admin on . Posted in Civil Procedure, Uncategorized. 2 Comments on Expert Evidence and Litigation Privilege

It is common for lawyers involved in personal injury claims to retain the services of expert witnesses.  The most common expert witnesses are medical doctors but often engineers, economists, and other specialists are brought into the fray.
Experts are typically retained to be involved in two common roles.  The first role is to provide expert opinions to assist the judge or jury to understand the evidence called at trial.  The second is to assist counsel in preparing the case for trial.  When experts are retained to assist counsel to prepare for trial the communications between the expert and the lawyer are confidential and subject to litigation privilege.
When an expert takes the stand and gives opinion evidence they are subject to a cross-examination that is quite wide in scope.  Does this permit the opposing side to ask questions about the confidential opinions and advice the expert gave the lawyer that retained him prior to trial?  Not necessarily.  Reasons for judgement were transcribed today by the BC Supreme Court, Vancouver Registry, dealing with this issue.
In today’s case (McLaren v. Rice) the Defendants to a car accident claim hired an engineer who was qualified to give expert opinion evidence regarding accident reconstruction and speed and speed changes.  During cross examination the lawyer for the Plaintiff asked whether the defence lawyer sought his opinion with respect to a vehicle’s tie-rod and ball-joint assembly.  The Defence lawyer objected to the question claiming it addressed matters that were protected by litigation privilege.  Mr. Justice Brooke upheld the objection and in doing so summarized and applied the law as follows:

[4] In the recent decision of Madam Justice Satanove in Lax Kw’alaams, 2007 BCSC 909, the nature and extent of litigation privilege was considered.  At paragraph 9, Justice Satanove referred to the decision in Delgamuukw where it was said that litigation privilege was waived when the expert witness was called, but that that waiver was to be narrowly construed and privilege maintained when it was fair to do so.

[5] In Vancouver Community College v. Phillips, Barratt (1987), 20 B.C.L.R. (2d) at 289 (S.C.), Justice Finch, as he then was, recognized that even where an expert is called as a witness he may remain a confidential advisor to the party who called him at least in regard to advising on cross-examination of the other side’s witnesses, including the other side’s expert witnesses.

[6] In Lax Kw’alaams as well as in Barratt, the issue was the production and cross-examination on documents that had been prepared by the witness.  As I understand it, here all privileged documents are set out in part 3 of the document disclosure of the defendant and there is no suggestion that there are undisclosed documents.

[7] What the plaintiff wishes to cross-examine upon is not documents, but oral advice or opinions or commentary concerning the tie-rod assembly and ball joint, an area which the report of Mr. Brown does not pretend to address.

[8] I find, if Mr. Brown was asked questions out of court regarding the tie-rod and ball-joint assembly it was to assist the defendant in its defence of the plaintiff’s claim and specifically the allegation that the collapse of the tie-rod and ball-joint assembly caused the accident in which the plaintiff sustained devastating injuries.

[9] In my opinion, it would not be fair to require Mr. Brown to answer questions directed to matters outside the scope of his report because it could give the plaintiff an advantage not available to the defendant.  Here I refer to paragraph 29 of Barratt.  Moreover, to permit such cross-examination would cast a chill over the ability of counsel for both plaintiffs and defendants to properly prepare their client’s case and also to answer the other party’s case.  In the result, the objection of the defendant is sustained.