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ICBC Review Report Released – ICBC Rate Hike Approved

Written by admin on . Posted in Tort Reform, Uncategorized.


Earlier this year the BC Government transferred responsibility of ICBC to BC’s Minister of Finance, Kevin Falcon.
Today, Kevin Falcon outlined proposed overhauls at ICBC.  You can find the Government News Release here.  The full ICBC Review Report can be accessed here.  In the wake of this announcement it was also revealed that ICBC CEO Jon Schubert will be stepping down as of November 15.  In conjunction with the Government Press Release ICBC has provided the following public response.
And last but not least, today the BC Utilities Commission released their report approving ICBC’s requested Rate Hike.

Litigation Privilege Claim Fails Due to the 'Two Hats' of ICBC

Written by admin on . Posted in Civil Procedure, ICBC No-Fault (Part 7) Benefits, Uncategorized. 45 Comments on Litigation Privilege Claim Fails Due to the 'Two Hats' of ICBC

(Update February 12, 2015 – the below decision was overturned in reasons for judgement released today by the BC Court of Appeal)
_________________________
I previously discussed the Two Hats of ICBC and suggested fixing the conflict of interest this creates.  Reasons for judgement were released earlier this year by the BC Supreme Court, Vancouver Registry, demonstrating this conflict of interest in action in the context of a litigation privilege claim.
In the recent case (Raj v. Khosravi) the Plaintiff was involved in a motor vehicle collision.  He was insured with ICBC and met with an adjuster to advance his claim.  After the initial meeting the ICBC adjuster commissioned the services of a private investigator who produced a report.
In the course of his lawsuit the Plaintiff requested a copy of this report but ICBC refused to provide it arguing it was subject to litigation privilege.  The plaintiff argued that the report was commissioned in the ‘investigative stage’ following the collision and further that even if the report was in part prepared for the purpose of defending subsequent litigation, it was also commissioned in the context of his claim for Part 7 benefits.  Mr. Justice Groves agreed and ordered the report to be disclosed.  The Court provided the following reasons:
[29] It is clear there were two distinct purposes for this investigative report.  That is conceded by the Defendant.  The question then becomes, was the dominant purpose litigation?  And has the defendant met the onus of satisfying the court that in fact the dominant purpose was litigation?…
[49]  I am also of the view that the defendant’s claim for privilege must fail, in regards to a dominant purpose analysis.  Again, assuming that we’ve gotten over the litigation privilege hurdle, here this investigation, by the adjuster’s own admission, had more than one purpose.  As such, the onus of claiming and eliminating the competing purpose rests on the defendant.
[50]  I agree with the submission of the plaintiff that, during the entirety of the evidence of the adjuster, both in affidavit and during his cross-examination on his affidavit, there is a strong suggestion, a clear suggestion, that the purpsoe of this investigative report was a true dual purpose report.
[51]  Again, the information obtained by the adjuster, at his interview with the plaintiff on November 14, 2006 was information necessary to potentially adjudicate a tort claim, and potentially adjudicate a Part 7 claim.  In discovery, the adjuster confirmed that he had retained the investigator during the meeting with the plaintiff, that “the intention is to get information that is going to contradict what I was told in the initial appointment”.
[52]  What he was told in his initial appointment related to both Part 7 claims as well as tort claims.  The adjuster seemed to draw no distinction in the investigation, as to which of those two claims is to be covered or emphasized.  As such, the onus of showing that the dominant purpose of the report was litigation cannot be met, on the evidence.
[53]  Based on what I have said, I will allow the appeal of the master in regards to the report of the investigator, dated December 15, 2006 and order that it be disclosed.
To my understanding this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

ICBC Hit and Run Claims, Reasonable Efforts and Estoppel

Written by admin on . Posted in Uncategorized. 68 Comments on ICBC Hit and Run Claims, Reasonable Efforts and Estoppel

Further to my previous posts discussing legal obligations when seeking compensation following an unidentified motorist collision in BC, interesting reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, suggesting that in the right circumstances estoppel could be used to overcome a ‘failure to take reasonable efforts to identify the Defendant’ defence after a collision has been reported to ICBC.
In this week’s case (Springer v. Kee) the Plaintiff was injured in a 2008 collision.  The at fault driver fled the scene before the plaintiff could identify them.  The plaintiff reported the claim to ICBC and to the police but did not take any steps after this to try and identify the at fault motorist.
The plaintiff brought an action seeking compensation from ICBC pursuant to Section 24 of the Insurance (Vehicle) Act.  ICBC brought an application to dismiss the lawsuit arguing the plaintiff failed to take all reasonable steps to identify the motorist after reporting the claim.  Mr. Justice Armstrong agreed and dismissed the claim.  Before doing so, however, the Court criticized ICBC’s actions and suggested that if estoppel was plead the outcome may have been different.  The Court provided the following reasons:

[92] I accept the view that ICBC was not obliged to warn the plaintiff of his ongoing obligations in the immediate aftermath of his reporting the accident to ICBC; ICBC was, in my view, remiss in their duty to inform the injured party about the steps necessary to perfect his claim, particularly in light of the conversations with the adjuster indicating that his claim had been accepted by the corporation. It seems to me that ICBC’s communications with an injured person ought to include a warning about the prerequisites of the claim against an unidentified motorist.

[93] In my view, although not obliged to advise people of their obligations under s. 24(5), ICBC ought to recognize the risks that laypeople will rely on remarks made by adjusters suggesting settlements can be expected without warning that the claim will be denied if s. 24(5) is not complied with. Regrettably, I also note that the “Helping You with Your Hit and Run Claim” pamphlet published by ICBC that was given to the plaintiff by the adjuster does not mention the implications of s. 24(5) of the Act.

[94] Counsel for the plaintiff mentioned the concept of waiver, but did not argue this as a case of estoppel and the pleadings do not advance any claim against ICBC except as nominal defendant.

[95] Section 24(5) does not permit me to consider the actions of ICBC in the assessment of the plaintiff’s obligations under the Act. That may be the subject of a waiver or estoppel, which is outside of the scope of this application.

[96] For the reasons given by Barrow J. in Tessier, I am unable to conclude that the actions of ICBC excuse Mr. Springer’s inaction in the weeks following the accident. Therefore, I would dismiss the argument of the plaintiff in this case; I cannot grant judgment because he did not take all reasonable steps to ascertain the identity of the unknown driver as required under s. 24(5) of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231.

$100,000 Non-Pecuniary Assessment for Triggering Early Onset of Arthritic Symptoms

Written by admin on . Posted in ICBC Hip Injury Cases, ICBC Knee Injury Cases, Occupier's liability claims, Uncategorized. 51 Comments on $100,000 Non-Pecuniary Assessment for Triggering Early Onset of Arthritic Symptoms

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for the triggering of arthritic symptoms in pre-existing asymptomatic degenerative joints.
In the recent case (Witt v. Vancovuer International Airport Authority) the Plaintiff was a fire-truck salesman.  Chalking this up to the ‘you learn something everyday’ category, this is apparently a lucrative career with the Plaintiff earning approximately $740,000 per year.  While at the Vancouver Airport the Plaintiff fell through metal plates “that were not secured by the long stakes that should have been used to secure the plates” creating “voids below the plates which allowed the plates to shift as vehicle traffic went over them“.  The Defendant was found fully liable for the incident.
The fall triggered symptoms of pain in the Plaintiff’s back, knee and hip.  He had pre-existing arthritis in these areas with the fall accelerating these conditions resulting in long-standing pain.  In assessing non-pecuniary damages at $100,000 Mr. Justice Burnyear provided the following reasons:

[59] Based on the conclusions reached by the medical experts, on the testimony of Mr. Witt and Ms. Witt, and on the testimony of those who knew him well, I conclude that Mr. Witt has considerable and continuing pain as a result of the Fall and that the pain that he has suffered has made his life less enjoyable.  I find that his inability to walk long distances, his inability to enjoy golfing, hiking and tennis, and his reduced sleep and energy levels have come as a result of the Fall.  I am satisfied that Mr. Witt should be compensated for that pain and suffering.

[60] Regarding the particular complaints of Mr. Witt, I make the following findings.  I find that Mr. Witt now suffers from chronic pain as a result of the Fall.  I also find that, as a result of the chronic pain, there have been negative changes to his disposition, a considerable reduction in his physical activity and capacity, and a significant negative effect on his marriage.

[61] Regarding the back pain experienced by Mr. Witt, I find that some but not all of the back pain experienced by Mr. Witt as a result of the Fall settled by the summer of 2010.  However, I also find that he is now more susceptible to develop spinal stenosis as a result of the Fall.

[62] Regarding the right hip of Mr. Witt, I find that he continues to have severe pain from time to time and discomfort when sitting.  As a result of the Fall, I find that osteoarthritis has become systematic and that this has become the case earlier than what would have occurred but for the Fall.  While I find that there was a degree of degenerative spondylosis and arthritis prior to the Fall, I find that the Fall produced severe pain in the right hip that would not have been experienced by Mr. Witt but for the Fall and which has produced early onset of degenerative spondylosis and arthritis.

[63] As a result of the Fall, I find that the pain and weakness being experienced by Mr. Witt in his right knee has accelerated the existing degenerative arthritis so that Mr. Witt now requires surgery.  I find that the presence of degenerative arthritis in the right knee of Mr. Witt was accelerated by the Fall…

[68] Taking into account the injuries caused by the negligence of the Defendants, the duration of the pain and suffering produced by the negligence, the likely future pain and suffering caused by the Fall, and by the early onset of arthritic problems caused by the Fall, I set the non-pecuniary damages available to Mr. Witt at $100,000.00.

The Court went on to note that the ongoing injuries and expected medical interventions will interfere with the Plaintiff’s career and assessed damages for diminished-earning capacity at $600,000.

More on Responsive Opinion Evidence Admissibility

Written by admin on . Posted in BCSC Civil Rule 11, Uncategorized. 51 Comments on More on Responsive Opinion Evidence Admissibility

Reasons for judgement were published recently by the BC Supreme Court, Vancouver Registry, addressing responsive expert reports and the discretion of the Court to adjourn a trial to permit late expert evidence to be introduced.
In the recent case (Lennox v. Karim) the Plaintiff was injured in a 2003 collision.   87 days prior to trial the Plaintiff served a medico-legal report diagnosing the Plaintiff with a meniscal tear.  The Defendant obtained a report addressing this injury and served it on the Plaintiff.  This report was served in less than 84 days before trail.  The Plaintiff objected arguing this report was late and that it was not truly responsive.  Mr. Justice Armstrong disagreed and admitted the report finding that it was responsive, and if not, the trial should be adjourned to allow admission of the report to address the relatively late disclosure of the meniscal tear.  The Court provided the following reasons:

[38] In this case, Mr. Lennox failed to alert the defendant to the central issue of a torn meniscus. His pleadings indicated an injury of both knees without any reference in specific to the torn meniscus. This is significant in this case, because the plaintiff was under the obligation to obtain a court order to permit Dr. Stewart to testify and if that order had been applied for, the defendant would have been put on notice at an earlier time as to the issue which became central to this case.

[39] In my view the Leith report, in the words of Smith J., is not a freestanding medical opinion that ought to have been served under Rule 11-6(3). It is in its entirety a responsive opinion directed solely to one opinion of Dr. Stewart relating to the plaintiff’s medical condition, that being the torn meniscus…

[42] If I am wrong in this decision, it would have also been my further opinion that in the circumstances of this case the defendant would have otherwise been entitled to an adjournment of the trial to secure the medical report of Dr. Leith if it was not otherwise admissible under 11-6(4). It seems to me that 11-1(2) is purposely directed at requiring the plaintiff and defendant to avoid the last minute introduction of medical evidence in cases which may have proceeded for many years on a different track or a different theory. I note that neither of the experts described in the CPC report have been or are going to be called as witnesses in this case, but I am not required to deal with that issue.

[43] It seems to me that Dr. Leith’s report can simply be admitted and I can ignore those provisions which in my view are not appropriate.

No Liability For Motorist Struck While Stopped on Painted Stop Line

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering sections 129 and 186 of the Motor Vehicle Act and liability for a crash based on the positioning of a stopped vehicle at an intersection.
In this week’s case (Eissfeldt (Guardian ad litem of) v. Eissfeldt) the Defendant was stopped “on..the painted stop line” in a desginated left hand turn lane at an intersection.

An intersection collision occurred between other motorists propelling one of the vehicles into the stopped Defendant’s truck.  The Plaintiff, a passenger in one of the other vehicles, sued the drivers of all three vehicles arguing all were to blame.  The Plaintiff argued that the Defendant truck driver was negligent in improperly stopping his vehicle “on rather than behind the painted stop line” arguing that this was in breach of section 186 of the Motor Vehicle Act.
Mr. Justice McEwan disagreed and dismissed the claim against the motorist.  In doing so the Court found that section 186 was limited only to stop sign controlled intersections (as opposed to traffic light controlled intersections) but in any event the Defendant’s actions were not negligent.  The Court provided the following reasons:

[18] …. Section 186 applies to intersections controlled by stop signs, not traffic control signals. The duty outlined in s. 129 is to stop before the marked crosswalk. There is no question that Mr. Brown did so, as can be seen in the photographs. There is no suggestion in the Act, and none of the case law supports the notion that where stop lines are painted in the left turn lane ahead of a crosswalk, there is a duty to stopbefore rather than on them, as long as the vehicle does not enter the marked crosswalk. In this regard Mr. Brown’s acknowledgment that he intended to stop before the line may mark a slight deviation from the standard he meant to achieve, but it is not evidence that obliges the court to impose a higher standard on Mr. Brown than that set out in the section. It is not at all clear that the stop lines are anything more than guides to ensure that vehicles do not encroach the crosswalk and the intersection, which are the duties imposed by the section.

[19] As the cases show, statutory duties have been superimposed on the common law duty of care and may create a modified standard in the circumstances to which they pertain. The context remains important, however. The concern of a motor vehicle operator at an intersection controlled by a traffic signal is for pedestrians and traffic lawfully crossing or turning in the intersection. The assessment of risk begins with the premise that one may rely on other drivers to obey the rules of the road, subject to the qualifications set out in the cases. (See paras. 8 and 9 herein).

[20] The occurrence of a random event precipitated by the failure of others to obey the rules of the road (I do not know which of the other defendants this may be or to what degree they may share liability), is not the sort of harm that could be described as foreseeable by Mr. Brown. In the circumstances it is obvious that he was in no position to react as the collision transpired.

[21] There is simply no basis, in my view, for a finding that Mr. Brown failed in his statutory duty, which was to avoid the crosswalk and the intersection at the red light. That duty did not extend to anticipating the possibility that a vehicle might suddenly lose control as a result of a collision and veer into his path, obliging him to guess where to place his vehicle in order to avoid such a contingency.

[22] Giving full consideration to the fact that the court must be very careful not to permit litigating in slices and the risk of embarrassing consequences as a result of ruling on an incomplete view of the case, I consider this to be an example of a circumstance where it is appropriate to apply Rule 9-7(15). Mr. Brown was not in breach of the relevant statutory duty found in s. 129. Section 186 of the Motor Vehicle Act does not apply. Whether or not the impact with his vehicle contributed in any respect to the plaintiff’s claims, Mr. Brown’s vehicle was not where it was as a result of any negligence on his part.

Contingency Fees and Catastrophic Infant Claims Discussed

Written by admin on . Posted in Shaken Baby Cases, Uncategorized.

Section 40 of the BC Infants Act requires judicial approval of injury claim settlements involving infants with claims settled at over $50,000.  The approval of legal fees is part of the judicial scrutiny process.  Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing such a settlement and further setting out a useful chart summarizing previous judicially approved fees.
In this week’s case (E.B. v. Basi) the infant plaintiff was catastrophically injured while in foster care during an alleged intentional “shaken baby” assault.  This resulted in severe traumatic brain injuries requiring one-to-one care on a daily basis for the duration of the child’s life.
A settlement of $13,000,000 was judicially approved.  The decision is worth reviewing in full for Mr. Justice Macaulay’s careful analysis of the factors that need to be considered when approving fees in such claims given the non-binding nature of infant contingency fee agreements.  At the conclusion of the reasons for judgement the Court set out the below useful chart of previously approved infant settlements.


Case

Nature of
Claim

Settlement Amount

Settlement Timing

Legal Fee Sought

Hours Estimated


Fee Awarded

Harrington v Royal Columbia
1995 CanLII 2345 (BCCA)

Medical malpractice

$1.5 million and  costs

3 days < trial

$500,000

Estimate of 800 hours not accepted by
trial judge; 280 hours accepted

$175,000

Richardson v Low
1996 CanLII 571

Medical malpractice (birth case)

$2.27 million

Settled well before trial

$897,750

Court says no basis to estimate time but must be less than 260 hours

$325,000

Cook v
Mission
1996 CanLII 1394

Medical malpractice

$2.6 million

Settled on 1st day of trial

$850,000

Non recorded

$650,000

Adams v Emmott
1997 CanLII 746

Medical malpractice (birth case)

$3 million

Settled Thursday before
Tuesday trial

$725,000

300 hours estimate by Court

$600,000

Chong v
Royal
Columbia
1997 CanLII 4362

Medical malpractice (birth case)

$2.5 million

After 1 week of trial

$750,000

2131.2 hours
for counsel
and 654.9 for paralegals and students

$750,000

Renaerts v Korn
1998 CanLII 4979

Medical malpractice (birth and abandonment; intentional infliction of harm)

$8 million
and
$500,000
costs

Settled weekend before trial (numerous pretrial motions and limitation defence)

$2.2 million

Hours for 3 counsel
valued at $825,000

$1.8 million

Duchene v Woolley
2002 BCSC 1878 (CanLII)

Medical malpractice (birth case)

$3.6 million

Settled 2 days before trial although defendants did not serve liability reports

$1.244 million

167 hours estimated but Court notes more was probably spent

$900,000

Bizove v
Cornish
2003 BCSC 1615 (CanLII)

Medical malpractice (birth case)

$3.566 million

3 days before trial

$750,000

740 hours (3 senior counsel)

$750,000

Makowsky v
Jaron
2004 BCSC
419 (CanLII)

Medical malpractice (birth case)

$3.2 million

4 months before trial but liability ceased to be issue several months before trial

$900,000

136 hours recorded but Court suggests they must have exceeded 200 hours

$600,000

Strachan v
Winder
2005 BCSC 59
(CanLII)

Medical malpractice (birth case)

$4 million

2nd day of 2 week trial

$862,500

Recorded time for 3 senior counsel 484 hours

$800,000

Delaronde v.
HMTQ
2000 BCSC
1626

MCFD shaken baby case

$5.448 million

Settled after 4 weeks of evidence and 3 days of submissions

$1.347 million

None mentioned

$1.347 million

B.M.
(Guardian ad
Litem of)
v R.M.
2011 BCSC 64

MCFD shaken baby case

$5.35 million

Liability trial (8 days) and appeal then settled several months before trial

$1.7 million

Hours valued at $607,320

$1.475 million

Punishing Costs Orders Should Not "Unduly Deter" Meritorious but Uncertain Actions

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized.

Further to my previous posts detailing the potential costs consequences following trials with formal settlement offers in place, reasons for judgement were released last week addressing this topic finding that costs consequences should be applied in an “even-handed” way and further should not unduly deter Plaintiff’s from bringing meritorious, but uncertain claims “because of the fear of a punishing costs order“.
In last week’s case (Currie v. McKinnon) the Plaintiff sustained soft tissue injuries in a collision which substantially recovered within one year.  Prior to trial ICBC made a formal settlement offer of $40,000.  The Plaintiff rejected this offer and proceeded to trial where he was awarded $22,000 in damages.
ICBC applied for double costs from the time of the offer onward.  Madam Justice Adair found that such a result was unwarranted and instead stripped the Plaintiff of post offer costs and disbursements.   In doing so the Court provided the following sensible comments:

[18] I think it certainly can be argued that if a defendant who has made an offer to settle in an amount higher than the amount awarded to the plaintiff at trial (and that is what has been done in this case) was then awarded double costs, this would skew the procedure in favour of defendants and unfairly penalize and pressure plaintiffs.  This is because a plaintiff who rejected an offer to settle would potentially risk a triple cost penalty if he or she were to win at trial an amount less than the offer.  The plaintiff would suffer loss of the costs that he or she would normally receive on obtaining judgment at trial, and face double costs payable to the defendant.

[19] In my view, there is a good reason to apply Rule 9-1 in a way that is even-handed, or more even-handed, as between plaintiffs and defendants.  I would say for this reason one would expect to see double costs awarded to a defendant, using the offer to settle procedure, in exceptional circumstances only, such as a situation where the plaintiff’s claim was dismissed all together after a plaintiff rejected an offer to settle.

[20] That is not the case here.  In my view, Mr. McKechnie, despite his able arguments, simply did not identify for me how the circumstances here were so exceptional as to justify an award of double costs against Mr. Currie.  While the purpose of the Rule is to encourage reasonable settlements, parties should not be unduly deterred from bringing meritorious, but uncertain, claims because of the fear of a punishing costs order…

[36] Having considered all of the factors in this case, I am not satisfied that it would be appropriate to award the defendants double costs as sought by Mr. McKechnie.  I have discussed earlier in these reasons my concerns about how that can have the effect of skewing the procedure in favour of defendants and unfairly pressurize and penalize plaintiffs, and I think that would be the result in this case.  Liability was admitted by the defendants.  Mr. Currie’s case was not dismissed.  Rather, he recovered judgment for non-pecuniary damages in an amount that was greater than what the defendants argued at trial he should recover.

[37] However, in my view, the defendants’ offer to settle cannot be ignored.  That would undermine the purpose behind the rule…

[39] In my view, therefore, the double costs sought by the defendants are neither a fair nor just result.  However, in my view, it is not a fair or just result for Mr. Currie to recover costs after he had had a reasonable opportunity with his counsel to review and consider the defendants’ offer to settle.  I would say that by November 30, 2011, Mr. Currie and his counsel had had a reasonable opportunity to review and consider the defendants’ offer and ask any questions they deemed necessary if they thought clarification was necessary.

[40] In my view, the defendants should not have to pay Mr. Currie’s costs after November 30, 2011.  However, I do not think it a fair result that Mr. Currie should have to pay the defendants’ costs after November 30, 20011, given his success ultimately at trial.

[41] My order then, with respect to costs, is that Mr. Currie will recover his costs and disbursements up to and including November 30, 2011, and that each side bear their own costs thereafter.

Claim Dismissal For Failure To Comply With Rules A "Particularly Draconian" Remedy

Written by admin on . Posted in BCSC Civil Rule 22, Uncategorized. 51 Comments on Claim Dismissal For Failure To Comply With Rules A "Particularly Draconian" Remedy

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, demonstrating that having a Plaintiff’s claim dismissed for failing to discharge obligations under the BC Supreme Court Rules is a ‘draconian remedy‘ which will not lightly be granted in a personal injury action where liability is admitted.
In the recent case (Breberin v. Santos) the Plaintiff was injured in a 2007 collision.  Fault was admitted by the offending motorist.  In the course of the lawsuit the Plaintiff failed to provide “very basic information” to the Defendants, “refused to obey court rules” and had “been found in contempt of court“.
The Defendants applied to strike the Plaintiff’s claim.  Mr. Justice Willcock noted that, although this was a borderline case and a remedial costs order was appropriate to emphasise “the Court’s concern with respect to the conduct of the Plaintiff” outright dismissal of the claim was too harsh a result in the circumstances.  In dismissing the Defendant’s application the Court provided the following reasons:

[36] The Rules of Court are designed to permit parties to obtain full disclosure of relevant materials far in advance of trial so as to avoid unnecessary litigation, to make or seek admissions, and to settle claims that ought to be settled.  Despite numerous case planning conferences and previous orders in this case, the plaintiff at the most recent case planning conference appeared to appreciate for the first time that she is not entitled to hold medical information in her hands and to refuse to disclose it until she is satisfied with her diagnosis.  She appeared to understand for the first time that it is not open to her to produce only that portion of her medical file that corresponds with her own diagnosis or that which she prefers.

[37] It is difficult to determine whether the plaintiff’s suggestion at the most recent case planning conference that she only now appreciates the nature of her obligations is genuine.  On previous occasions when this Court directed Dr. Breberin to attend in Vancouver for an independent medical examination, gave explicit reasons for doing so, and noted that there was insufficient medical evidence to permit the Court to accede to her argument that she was unable to travel, Dr. Breberin later continued to question the Court’s jurisdiction to make such an order.  She continues to resist attempts to have her attend here for a medical examination. That resistance speaks of an unwillingness to accept the Court’s jurisdiction and authority.

[38] Having said that, I am of the view that dismissal of the claim would not be proportional to the nature of the ongoing default.  Dr. Breberin has now, finally, produced the authorizations for production of medical records and provided them to defence counsel.  She advised me during the course of submissions on May 22, 2012 that she was prepared to permit defence counsel to use the authorizations without attaching any conditions to their use.  She should be satisfied with the implied undertakings as to the confidentiality of evidence obtained on discovery. Defence counsel may now use those authorizations unimpeded by any undertaking or condition other than that implied by law.

[39] The Plaintiff is prepared to attend at a continuation of her examinations for discovery.  She should promptly make arrangements to attend at such an examination once the defendants have obtained the medical records they seek.

[40] She is right to say that there has been no previous order that she attend at an independent medical examination by an orthopedic surgeon.  Given the evidence she herself has filed with respect to the nature of her ongoing complaints, it is my view that it is appropriate for the defendants to seek that she be examined by an orthopedic surgeon, and there will be an order that she attend at an examination by an orthopedic surgeon in Vancouver, at a date to be selected by defence counsel.  If Dr. Breberin is unable to attend on the date selected by defence counsel, she should promptly notify defence counsel, and may apply, within seven days of receipt of the appointment, for an order adjourning the date of her examination to another date available to her.

[41] Once these measures are taken, the defendants will be in a position to more adequately assess the plaintiff’s claim.  The dismissal of an action where there has been an admission of liability, as in in this case, would be a particularly draconian remedy for the contempt that has delayed the defendants acquisition of evidence to which they are entitled. In my view, although this is a borderline case, such a measure would, now be disproportionate to the plaintiff’s conduct.

BC's Electronic Device in Courtroom Policy Soon to be in Force

Written by admin on . Posted in Uncategorized.


Next month the new policy addressing use of electronic devices in BC Courtrooms will come into force.  In short lawyers and “accredited media” will be permitted to “use electronic devices to transmit and receive text” in the BC Supreme Court and BC Provincial Court.
The Court of Appeal is more liberal allowing not just lawyers and media to have this privilege but extending it to “any person“.
You can click here to read the policy in full.