Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, confirming that it is an abuse of process to deny liability in a civil lawsuit for damages following a criminal conviction related to the same incident.
In today’s case (McCaffery v. Arguello) the parties were involved in a road rage incidence during which the Defendant “proceeded to intervene in the fight between Mr. McCaffery and Mr. Segundo by repeatedly striking Mr. Mccaffery with the baseball bat, causing him serious but non-life-threatening injuries to his head and wrist.”
The Defendant was criminally convicted of assault with a weapon and assault causing bodily harm. The Plaintiff sued for damages and the Defendant denied liability. In summarily finding the Defendant civilly liable Mr. Justice Sewell provided the following reasons: [33] Mr. Arguello’s counsel submits that as provocation may affect the quantum of damages It will still be necessary to hear viva voce evidence about the circumstances leading up to the assault at the assessment. That may be so. But the evidence will have no bearing on liability. I am also of the view that evidence restricted to the limited issue of provocation will not materially lengthen or complicate the assessment process. [34] I am also satisfied that I should grant judgment on liability notwithstanding the fact that this amounts to a severance of the issues of liability and assessment. Rule 9-7(2) permits a party to apply for judgment on an issue or generally. In my view this is an appropriate case to dispose of liability before assessing damages. Mr. Arguello clearly has no defence on the issue of liability. There is no reason to require him to re-litigate that issue. [35] Finally, I conclude that there is no merit in the argument that judgment cannot be granted in the absence of the defendant Mr. Segundo. I was not referred to any authority for the proposition that the plaintiff is not permitted to pursue judgment against one defendant in an assault case. If Mr. Arguello wishes to pursue a claim against Mr. Segundo for contribution, he is at liberty to do so. However I see no reason why that possibility should delay the plaintiff’s claim against him. [36] Accordingly I find that the plaintiff is entitled to judgment finding the defendant liable for his injuries, with damages to be assessed.
Typically the BC Supreme Court rules allow examinations for discovery to last up to 7 hours unless a case is put into the fast track Rule 15 in which case examinations are capped at 2 hours. What happens when a case is prosecuted and discoveries take place under the fast track and then the case shifts into conventional litigation? Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such a scenario.
In this week’s case (Brown v. Dhariwal) the Plaintiff was injured in a 2008 collision. She sued under Rule 15 and a discovery of under 2 hours was conducted which was adjourned subject to requests. The matter then was removed from the fast track and a further discovery was sought. The parties disagreed on the timelines and entitlement to further discovery. In concluding that the appropriate time was 7 hours of total examination counting the time already spent Madam Justice Fleming provided the following reasons: [20] The question then becomes did the Master err in concluding the defendants did not have a right to a further seven hours of discovery in the circumstances? In my view he did not and decided this aspect of the application correctly. The Rules of Court do not specify what happens when a case is removed from fast track. Any reconvening or continuation of the first discovery, however, would have to occur pursuant to Rule 7-2. There is no dispute that both Rules 7-2 and 15-1 provide a party to an action with a right to one examination for discovery of a party adverse in interest. [21] The import of the defendants’ argument that they are entitled to seven hours as a right, is that in every case where an action moves from fast track to regular and discoveries have been adjourned as opposed to finished, parties are then entitled to an additional seven hours of discovery. [22] Bearing in mind the object of the Rules and the implications of such an interpretation for parties who begin under the regular track, I cannot agree with this interpretation. What the defendants are entitled to is a continuation of the adjourned discovery without the constraint of the two-hour time limit that applies in the fast track.
It pays to take reasonable efforts to get better. Not only does it make good sense to take all reasonable steps to recover from injury for the sake of your well being but failing to do so can strip significant damages from a personal injury award. Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with a “textbook” example of this.
In this week’s case (Maltese v. Pratap) the Plaintiff was involved in a 2008 collision. The Defendant admitted fault. The Plaintiff was injured which continued to cause problems by the time of trial and were expected to continue in the future. The court noted that the Plaintiff received “remarkably similar” treatment advice which he unreasonably refused to follow. The Court reduced the awarded damages by just over $100,000 and further stripped the Plaintiff of future care costs on the basis that “it is entriely unlikely” that the Plaintiff would follow the recommended treatments. In reaching this conclusion Mr. Justice Kelleher provided the following reasons: [55] The facts of this case represent a textbook example of a failure to mitigate. There is a consensus among the professionals who assessed and treated the plaintiff that Mr. Maltese needed to undertake a program of physical rehabilitation and fitness with a kinesiologist or personal trainer. Their recommendations are remarkably similar. Mr. Maltese has chosen to ignore them… [59] I am satisfied that the first stage of the test in Gregory has been met: I have no difficulty concluding that Mr. Maltese, having all the information at hand that he possessed at the time, ought reasonably to have undergone the recommended treatment of active rehabilitation through a kinesiologist or personal trainer. [60] Among other reasons, Mr. Maltese submitted that because he felt worse after attending physiotherapy, he made a decision to not pursue an active rehabilitation program. I cannot accede to this argument. The medical evidence taken as a whole also establishes that, on a balance of probabilities, there would have been a significant improvement in the plaintiff’s condition or a reduction in his damages. [61] On such a clear case, a reduction of 30% in the awards for non-pecuniary damages, wage loss after his return to work and loss of future earning capacity is appropriate… [77] In this regard, the plaintiff relies on the fact that Drs. Travlos, le Noble, Chan and Kokan all recommended an active rehabilitation program. The plaintiff argued that there is a consensus among these physicians that he needs to recondition himself and would benefit from the assistance of a kinesiologist or personal trainer. [78] But there must be a likelihood that a plaintiff will incur costs before an award can be made under this head of damages. I conclude that it is entirely unlikely that Mr. Maltese will avail himself of these services in the future. After all, the plaintiff has been advised by medical professionals on numerous occasions to engage in active reconditioning. He has not done so. I conclude an award for cost future care costs in these circumstances is inappropriate: Izony v. Weidlich, 2006 BCSC 1315 at para. 74.
While passengers can be found contributorily negligent for riding in the box of a pick-up truck such a finding will depend on the circumstances. Reasons for judgment were released this week by the BC Supreme Court addressing this.
In this week’s case (Tataryn v. Browne) 14 temporary farm workers were being transported from a rural farm to downtown Kamloops. Many of the workers were unrestrained in the box of the pick up truck. The motorist drove negligently leaving the road tumbling down an embankment rolling over several times before coming to a stop.
The driver argued the Plaintiffs were contributorily negligent by agreeing to ride in the box of the truck. Madam Justice Hyslop disagreed finding that the worker’s had little choice in the circumstances but to agree to the ride. In reaching this conclusion the Court provided the following reasons: [282] I think it is obvious that the purpose of the box of the pickup is to carry cargo and not people…. [284] I have dealt with the circumstances and backgrounds of each of the thirteen workers, I have come to the following conclusions: 1) Sunshine sought workers who were residing in shelters by posting notices of the work. This was not the first time that they relied on such individuals; 2) Mr. Goossen, the manager of Sunshine, was familiar with homeless people. He thought that in hiring these people, he was doing a kindness; 3) Mr. Goossen and his family worked alongside these workers. On the evening of November 17, 2006, Annie, Mr. Goossen and Ms. Ebl performed the same tasks as the plaintiffs, and at the same rate of pay; 4) The farm on which the work was done was in an unincorporated area, having no public transportation, no street lights, or sidewalks; 5) On the evening of November 17, 2006, when the workers were to return home, it was late (after 11 p.m.) and dark and cold; 6) The workers were poor. Most were homeless, on social assistance, and addicted to drugs or alcohol, or both. One plaintiff had a mental health condition for which he was medicated…. 296] Annie controlled the workers’ transportation and she called the shots. [297] The workers were poor, homeless, and sick. They were told by Annie if they did not get in the truck they would have to walk home. Walking home was not an option. It was 15 kilometres to the NLM. It was dark. It was cold. There were no sidewalks, and no public transportation. Some, if not all of the workers, were not properly clothed and Mr. Moore needed his medication. [298] By necessity, the workers had no option but to be passengers in the truck without seatbelts, either in the cab or the box of the pickup truck. [299] These thirteen men and one woman were facing conditions more severe than those facing the plaintiffs in Iannone, Bissky, Massey and Fraser. [300] Based on the circumstances facing each of these workers, I conclude that not one of them was contributorily negligent.
In another example of social media posts being used in personal injury litigation reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, where a Facebook post impacted the trial of the 52 year old plaintiff.
In today’s case (Raikou v. Spencer) the Plaintiff was involved in a 2011 T-bone collision. The Defendant admitted fault. The Plaintiff suffered various soft tissue injuries and had complaints lingering at the time of trial. The court found some of these were related to the collision and some of these were due to pre-existing factors. The Court also noted that the Plaintiff “had a tendency to overstate or exaggerate her condition somewhat“. This finding was due in part to a Facebook update where the Plaintiff discussed “partying“. In illustrating the use of this quote Mr. Justice Skolrood provided the following reasons: 3] Before turning to that issue, I should note that while I found Ms. Raikou generally to be a credible witness, in my view she had a tendency to overstate or exaggerate her condition somewhat. This is particularly so in her description of her pain as being constant and unremitting. [54] By way of example, Ms. Raikou travelled to Greece in July and August of 2011. When she returned, she posted the following entry on her Facebook page on August 20, 2011: From the airport to Eleni’s and Nick’s wedding. Missed the ceremony but made it to the reception. From the airport home to change and off to the reception. Made it through and had an awesome time. 48 hours without sleep, jet lagged and still partying. [55] I agree with counsel for Ms. Raikou that caution must be applied when considering the relevance and import of Facebook entries in that they are but a mere “snapshot in time” and do not necessarily shed light on a person’s overall condition or ongoing complaints: see Guthrie v. Narayn, 2012 BCSC 734 at para. 30. [56] Nonetheless, this particular snapshot is inconsistent with Ms. Raikou’s testimony that her pain condition is continuous and unrelenting and that it has effectively precluded her from enjoying any of her pre-accident activities.
It is well established that failure of an ‘independent medical examiner’ to physically examine a patient is not, in and of itself, a reason for an expert report to be inadmissible in the BC Supreme Court. However, when a litigant relies on such a report the weight the court attaches to it is often negatively impacted. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Johal v. Meyede) the Plaintiff was injured in a 2010 rear end collision. Fault was admitted by the Defendant. The Plaintiff suffered injuries which were ongoing at the time of trial and expected to effect her well into the future. In the course of defending the claim ICBC retained a neurologist who did not examine the Plaintiff and provided a more conservative opinion with respect to the plaintiff’s limitations and care needs. In placing less weight on this opinion, in part for failing to examine the plaintiff, Mr. Justice Funt provided the following reasons: [47] The defendants also called Dr. F. Kemble as an expert witness. He had been retained to provide a responding medical-legal report. He was qualified, without objection, to provide expert evidence with respect to neurology. Dr. Kemble concluded his October 22, 2013 report saying: I do not feel that there is any indication for any thoracic outlet surgery. Ultimately, the probability is that she will be able to work full time although she will probably have minor difficulty in terms of using her arm and moving her neck. I am optimistic, that with the measures outlined by Dr. Travlos and Dr. Caillier, that the pain will significantly reduce. [48] For two reasons, I have given less weight to Dr. Kemble’s report and testimony than the other medical experts. First, he did not meet or examine the plaintiff. Second, in cross-examination, Dr. Kemble conceded that the basis for his report could be incorrect to the extent it was based on the assumption that the plaintiff’s symptoms would become intermittent.
Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, allowing a Defendant in a tort action to gain access to a Plaintiff’s examination for discovery transcript from a related Part 7 action.
In the recent case (Gill v. Gill) the Plaintiff was injured in a 2009 collision and sued for damages. She also sued ICBC for allegedly denying benefits owing under her own policy of insurance. ICBC defended both actions but appointed separate lawyers to do so. The Plaintiff was examined for discovery in both lawsuits. Subsequent to this the Defendant in the tort action applied for a copy of the transcript from the Part 7 action discovery. Madam Justice Adair held it was appropriate to lift the implied undertaking of confidentiality and ordered disclosure. In doing so the Court provided the following reasons: [20] Ms. Simon is correct that the underlying causes of action in the Tort Action and the Part 7 Action are different. In that sense, the issues are different. She also points out, correctly, that the two actions cannot be consolidated for trial or heard together by virtue of s. 83(4) of the Insurance (Vehicle) Act, and Part 7 benefits are not to be referred to at the trial of the Tort Action. Moreover, a determination with respect to entitlement to Part 7 benefits does not bind the court in the Tort Action. [21] However, there are, without any doubt, overlapping factual issues in the two actions, including: (a) was Ms. Gill injured in the accident and, if so, what injuries did she sustain as a result; (b) was Ms. Gill unable to work as a result of the injuries sustained in the accident; and (c) has Ms. Gill incurred expenses in relation to medical and rehabilitative treatment as a result of injuries sustained in the accident. [22] Although the causes of action are different, key factual issues will be the same in both actions. Ms. Gill must establish injury, causation and loss arising out of the same event, namely, the accident on April 5, 2009. If, in stating that “the issues are sufficiently different and discrete,” the Master was referring to factual issues in each action, then, in my opinion, the Master was clearly wrong, because many factual issues in the two actions are obviously very closely related, if not identical. [23] Ms. Gill, as the plaintiff in both actions, can be compelled to testify in both the Tort Action and the Part 7 Action about the same factual issues, so there is no privacy issue that needs to be protected. [24] On the other hand, there is a compelling public interest in getting at the truth. As Mr. Justice Hood observed in Scuzzy Creek Hydro & Power Inc. v. Tercon Contractors Ltd. (1998), 62 B.C.L.R. (3d) 366 (S.C.), 1998 CanLII 5684, at paragraph 22: [I]t is the possibility of there being inconsistent statements which triggers the special reason for the production of the discovery transcript. The test over the years . . . has never been higher than “lets see what the witness had to say under oath before with regard to these or related matters”. What [the witness] has said may be relevant to the evidence [the witness] gives in the second action. [25] Accordingly, here, the defendant has demonstrated the existence of a public interest of greater weight than the values (privacy, and the efficient conduct of litigation) the implied undertaking is designed to protect… [31] In summary, the defendant’s appeal is allowed and the defendant’s application to use the discovery transcript from the Part 7 Action in this action is granted.
Reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, ordering that the name and statement of a witness be disclosed in the course of litigation.
In this week’s case (Derksen v. Canada Safeway Limited) the Plaintiff alleged injury following an incident on the Defendant’s premises. She sued for damages. In the course of the claim a liability claims examiner retained by the Defendant obtained a statement from a witness who “claimed to have information regarding the plaintiff and her claim“. The Defendant did not share this document claiming litigation privilege. Master Caldwell disagreed finding the statement, along with the name of the witness, needs to be disclosed. In reaching this conclusion the Court provided the following brief reasons: [14] The remaining issue involves a statement provided to Ms. Freestone by an unnamed individual on April 11, 2012. According to Ms. Freestone, she was contacted by this person who claimed to have information regarding the plaintiff and her claim. An interview was arranged and a transcript created. The defence now claims that the interview was done and the statement created solely for the purpose of litigation. [15] There is no property in a witness, particularly a lay witness. Based upon the material before me, the individual has potentially relevant, potentially controversial information, about the plaintiff and her claim. The statement provided by this lay witness may well form an important part of cross examination. Failure to disclose such a statement denies plaintiff the opportunity to investigate the allegations contained therein and to challenge the veracity and motives of the informant. [16] No authority was cited to me to support the defence position of privilege as regards the statement and the identity of the witness. [17] The defendants are ordered to produce to counsel for the plaintiff an unredacted copy of the statement dated April 11, 2012 which has been listed as privileged item 4.3 of the defendants’ List of Documents.
Adding to this site’s archived posts addressing the recoverability of interest on disbursements, reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, canvassing the evidence necessary to recover these expenses.
In last week’s case (Bodeux v. Tom) the Plaintiff was injured in a collision and the claim settled however the parties could not agree on various disbursements. The Court concluded that the majority of claimed disbursements were reasonable along with interest charged on these. In reaching this decision Master McDiarmid provided the following reasons addressing disbursement interest: [68] The defendants say that the plaintiff has not provided sufficient evidence for me to determine that interest was either necessary or proper. They submit that detailed financial information, such as was provided to me in a review of the plaintiff’s bill of costs in Franzman v. Munro, 2013 BCSC 1758, is required before I can conclude that interest is a disbursement which has been necessarily or properly incurred in the conduct of the proceeding. They point to the evidence presented to Registrar Cameron in Chandi v. Atwell, 2013 BCSC 830, where, in an appeal from the decision of Registrar Cameron, Mr. Justice Savage, at para. 14, summarizes a relevant fact as follows: …In preparing for litigation, the plaintiff incurred disbursements in order to obtain necessary evidence on liability, the extent of injuries, and the quantification of damages. As the plaintiff and his family were of limited means, they required assistance in order to fund the disbursements. [69] Similarly, in the appeal from the decision of Registrar Sainty in MacKenzie v. Rogalasky, 2012 BCSC 156, Savage J. summarized the relevant facts in paras. 22-23 as follows: [22] However, due to his income loss, Mr. MacKenzie could not afford to pay for the expert reports and other trial expenses. He did not qualify for a loan from a bank or a similar institution, and his credit cards were maxed out. He had already borrowed from his family. The only source of funding available to him was a loan from Lexfund Management Inc. (“Lexfund”), a specialized disbursement lender. [23] Mr. MacKenzie obtained the loan from Lexfund on November 26, 2009, only two months before trial. The loan was for $25,000, plus a $1,250 underwriting fee, for a total of $26,250. Under the terms of the loan, Mr. MacKenzie could only use the funds to pay disbursements incurred in the course of litigation. The interest on the loan was 2% compounded monthly, representing an effective annual rate of 26.82%. The loan was secured by any proceeds of the litigation. [70] As is apparent from the materials I have reviewed, including the various medical/legal reports and the description of the accident contained in many of those reports and also contained in the affidavit of Mr. Yawney, this was a claim which, in order to be properly presented, required plaintiff’s counsel to obtain many expert reports. Those expert reports cost money. As I wrote in my decision in Franzman: [28] We are constantly hearing how difficult it is for ordinary people to afford access to our courts. The fee agreement entered into between the plaintiff and her lawyer facilitated her having access to the courts. … [71] Entering into a fee agreement in which the plaintiff’s lawyer agreed to incur the expense of necessary disbursements for the plaintiff and to finance them and charge the plaintiff for that result in the incurring by the plaintiff of a disbursement for interest which I find, on the uncontradicted evidence before me, to be both necessary and proper. [72] In Franzman, at para. 28, the balance of the paragraph is as follows: The interest rate charged by the law firm, that being essentially the interest it was paying on its operating line of credit (a way in which many law firms finance their operations) is reasonable. [73] In Franzman, interest on disbursements was calculated at six percent simple interest. [74] The mere fact that the plaintiff entered into a fee agreement which provided for charging disbursements at a rate appropriate to be charged between the client and her lawyer, does not mean that that amount of the disbursement should be automatically passed on to an unsuccessful litigant. [75] For example, retainer agreements often provide that the law firm will charge its client photocopies at an agreed upon rate. A photocopy rate allowed by registrars is usually less than the rate agreed to as between the law firm and its client. [76] I am charged with assessing and allowing a reasonable amount for disbursements. The six percent allowed in Franzman was a reasonable amount; economic times have not changed since that decision was rendered in September 2013. I, therefore, allow the disbursement at six percent of the amount claimed, reducing the $2,730.81 claimed to $1,638.49.
Reasons for judgment were published this week by the BC Supreme Court concluding that a trial court’s findings of liability are binding in subsequent Health Care Costs recovery prosecutions undertaken by the Province.
In the recent case (British Columbia v. Tekavec) the Defendant owned an apartment building. A guest fell from the balcony and sued for damages. The Defendant was found liable and ordered to pay damages. Prior to trial the Province initiated collateral proceedings under the HCCRA. They did not participate in the tort trial. After trial they continue the HCCRA prosecution against the Defendant. The Defendant brought an application to strike the Claim. Mr. Justice Bracken held that the action can continue and further that Defendant cannot re litigate the issue of liability as it was fully canvassed in the tort trial. In reaching this conclusion the Court provided the following reasons: [42] While the Province could have joined in the original action to fully advance its claim, it chose not to. Perhaps that decision resulted from the conclusion in Gosselin that the Act did not apply to the injuries Mr. Jack suffered before the Act came into force so the Province concluded it could not take an active role in the original action and had to proceed with an independent action. [43] Whatever the reason, it seems clear that the court in the original action thoroughly canvassed the issues the defendant has raised in its Response to Civil Claim filed in this action. I accept that the Province was sufficiently privy to the original action to engage the doctrine of issue estoppel. The Province had a right to participate with the plaintiff and had a participatory interest in the outcome. If the court had determined that the defendant was not negligent that outcome would have bound the Province for the purposes of this proceeding. [44] The defendant referred to MacIver v. The Queen, 2005 TCC 250, as support for its submission; however, that case is distinguishable on its facts and was not a case where conclusions were reached after a full trial on the very issues the defendant wishes to raise again in this action. It is not appropriate to allow the same issues to be canvassed again in this action. [45] The issues of liability and contributory negligence were fully dealt with and the defendant has exhausted any rights of appeal. I am satisfied that the defendant is prevented from raising any defence related to his liability or the plaintiff’s contributory negligence in this action.