Uncategorized – Page 85

Document Production Obligations and the New Supreme Court Civil Rules

Written by admin on February 1, 2012. Posted in BCSC Civil Rule 7, Uncategorized. 160 Comments on Document Production Obligations and the New Supreme Court Civil Rules

One of the goals of the New Rules of Court was to make litigation “just, speedy and inexpensive” and to simplify the process. One area where the Rules have fallen short of this goal is the area of pre-trial document disclosure obligations. Under the former Rules parties were bound by one consistent (but arguably over-broad) test. Now parties are met with a host of obligations which were well summarized in reasons for judgement released this week by the BC Supreme Court, Victoria Registry.
In this week’s case (Edwards v. Ganzer) the Plaintiff was injured in a motor vehicle collision. A dispute arose with respect the Plaintiff’s disclosure obligations. In resolving the dispute Master Bouck provided the following reasons summarizing the legal disclosure obligations (and dispute process) under Rule 7-1:

[39] Biehl v. Strang is the seminal decision of Punnett J. addressing (mostly) the primary obligation of document disclosure under Rule 7-1(1) (a). The remaining decisions touch upon, if not directly address, the document disclosure obligations under both Rule 7-1(1)(a) and Rule 7-1(14) of the SCCR.

[40] In addition, Master Baker has recently discussed the application of Rule 7-1 in Burgess v. Buell Distribution Corp., 2011 BCSC 1740.

[41] I understand the principles outlined in these various decisions, together with the applicable Rules, to be as follows:

a. The initial production obligation under Rule 7-1 (1) (a) (i) is limited to what is required to prove or disprove a material fact: Biehl v. Strang at para. 14;

b. Rule 7-1(10) allows the opposing party to issue a written demand requiring the listing party to amend the original list and produce documents that should have been disclosed under Rule 7-1(1)(a)(i);

c. In addition, Rule 7-1(11) allows the opposing party to issue a written demand requiring the listing party to amend the list and produce documents which ought to be disclosed under a test “close to” that set out in Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Company (1882), 11 Q.B.D. 55 at 63, (the “Guano test”): Global Pacific at para. 9;

d. The distinction between the two types of disclosure provided for under Rule 7-1 is stated in Global Pacific as follows:

The question is whether a document can properly be said to contain information which may enable the party requiring the document either to advance his own case or damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, or if it may have either of those two consequences. Therefore, it is acknowledged that the initial disclosure under Rule 7-1(1) relates to a materiality requirement, but that a party can apply to the court, as the defendant did here, for broader disclosure pursuant to Rule 7-1(14).

(my emphasis.)

Para. 9

e. Both the demand by the requesting party and the response of the opposing party should be set out in writing addressing the terms and criteria used in Rule 7-1. Whether the demand and response provide sufficient particularity is a matter of the court’s discretion;

f. If an application is brought under Rule 7-1(13) for the listing or production of documents, the court may either order compliance with the demand, excuse full compliance, or order partial compliance: Rule 7-1(14);

g. The objectives of the SCCR, including proportionality, may be taken into account by the court when exercising its discretion under Rule 7-1(14). The proportionality rule can be applied to either expand or restrict the required production of documents: Global Pacific citing Whitcombe v. Avec Insurance Managers Inc., 2011 BCSC 204.

[42] Interestingly, a party may be excused from compliance with Rule 7-1(1) generally, but the court is not given the specific power to order compliance with a demand made for the listing and production of the so-called “materiality” documents. Rule 7-1(14) only specifically allows for an order requiring compliance with a broader disclosure demand under Rule 7-1(11): Global Pacific; Burgess v. Buell Distribution Corp. Whether this distinction is an oversight or intentional is difficult to say. It might well be the former, given that Rule 7-1(13) contemplates a compliance order by the court if a demand for the “material” documents is issued. The distinction is more fully canvassed in Burgess v. Buell Distribution Corp. at para. 15.

Mitigation of Damages and "Sincerely Held Religious Beliefs"

Written by admin on January 31, 2012. Posted in Uncategorized. 49 Comments on Mitigation of Damages and "Sincerely Held Religious Beliefs"

As previously discussed, if a person fails to take reasonable steps to mitigate their damages following a personal injury the compensation they are entitled to is reduced accordingly.
There are some clear examples where a person will not be penalized for failing to mitigate their damages such as when they are financially unable to follow their doctor’s advice. But what about pre-existing religious views? Can a person be penalized by a damage reduction for failing to follow medical advice where their refusal to do so was based on a religious belief? Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing this interesting topic.
In this week’s case (Abdalle v. British Columbia (Public Safety and Solicitor General)) the Plaintiff suffered a head injury when he was struck at an intersection by an RCMP cruiser. Fault for the crash was admitted.
In the course of recovery the Plaintiff failed to follow various suggestions made by his medical practitioners. The Plaintiff argued his damages should not be reduced as this failure was based on religious beliefs. Madam Justice Ross did not address the issue head on as she was not satisfied that the Plaintiff’s decisions were based on “sincerely held religious or spiritual objection“. Despite this finding the Court made the following observation about this little tested area of law:

[71] In addition, counsel submits that Mr. Abdalle has spiritual and religious objections to drug use. Counsel submits that adherence to a sincerely held religious belief should not be considered a failure to mitigate damages. In counsel’s submission this should be an application of the principle of tort law that the tortfeasor takes the victim as he finds him.

[72] The medical evidence establishes that the recommended treatments would likely have assisted Mr. Abdalle, that there were no contraindications in his case and that the risks were minimal. Accordingly, unless Mr. Abdalle’s spiritual objections provide a reason to refuse treatment, I conclude that Mr. Abdalle’s refusal to follow the recommendations of his physicians was unreasonable…

[75] It appears that the particular question of whether pre-existing religious beliefs would constitute a reasonable basis for a refusal of medical treatment has not been addressed in this jurisdiction. Jamie Cassels and Elizabeth Adjin-Tettey wrote in Remedies: The Law of Damages, at pp. 292 and 393 that “there is little authority on this issue”, and cite two American decisions as guidance. Neither of these cases have been cited in Canadian jurisprudence. Moreover, from Janiak it is clear that the American position on this issue takes subjective attributes into consideration to a greater degree than in Canada (Janiak, p. 160). Cassels and Adjin-Tettey opine at p. 392 that:

According to the Janiak test, where a medical treatment is otherwise obviously required, religious or ethical objections would not provide an excuse from mitigating unless those objections rendered the plaintiff incapable of choice or could be assimilated to ‘pathological’ conditions.

[76] Ken Cooper-Stephenson also explored this topic in Personal Injury Damages in Canada and expressed a different view. He stated at p. 876 that:

[l]f a pre-existing religious belief or cultural practice inhibits or prevents the plaintiff’s capacity to choose a certain form of treatment…then it is almost certain that the plaintiff will not be adjudged unreasonable in the refusal… Defendants take their plaintiffs as they find them with respect to their religion, their culture, and their socio-economic setting.

He does not, however, provide any Canadian authority in support of this proposition.

[77] Professor Cooper-Stephenson also argues that there is a move towards subjectivism, with one approach including religious belief and cultural practice within the notion of “capacity” fromJaniak. He says, at p. 879, that as for religious belief and cultural practice:

…their recognition as fundamental constitutionally-protected interests in the Canadian Charter of Rights and Freedoms almost certainly requires that they be respected in post-action choices for the purposes of the duty to mitigate.

[78] There are two questions to be addressed in relation to this issue. The first is whether, to what extent, and under what circumstances a religious or cultural belief will be taken into consideration in addressing the plaintiff’s duty to mitigate. As noted above, it appears that the answer to this question may not be settled in Canadian jurisprudence. The second question is whether in the particular case, the plaintiff’s failure to follow a recommended course of treatment is the result of adherence of a religious or cultural belief or practice.

[79] In my view, this is not the case to make a determination with respect to the first question because I have concluded that the factual foundation is simply not made out for the Court to conclude that the reason for the refusal of treatment was a sincerely held religious or spiritual objection on the part of Mr. Abdalle…

[81] In the result, I am satisfied that Mr. Abdalle’s refusal to take the Nortriptyline prescribed by Dr. Dhawan and his failure to follow the recommendation to take facet block injections was not the product of a religious or spiritual objection. In addition, I find Mr. Abdalle’s failure to continue with swimming, to become more active, to attend a further course of physiotherapy, to take the Nortriptyline as prescribed and the facet block injections as recommended was unreasonable in all the circumstances and in breach of his duty to mitigate.

$75,000 Non-Pecuniary Damage Assessment for Chronic Soft Tissue Injuries and PTSD

Written by admin on January 31, 2012. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, assessing damages arising from injuries sustained a motor vehicle collision.
In last week’s case (Smith v. Williams) the Plaintiff was a young veterinarian. She was involved in a 2009 collision. The Defendant crossed the centre-line and caused a head-on collision. The Plaintiff sustained chronic soft tissue injuries and Post Traumatic Stress Disorder (PTSD). The Plaintiff’s symptoms were on-going at the time of trial. In assessing non-pecuniary damages at $75,000 Mr. Justice Betton provided the following reasons:

[33] The plaintiff indicated that the accident has left her with a feeling of vulnerability. She is very anxious in a motor vehicle, especially on highways, envisioning accidents unfolding. There are occasional panic attacks. She gets a tingling and pain down her right arm that is aggravated by repetitive motion and particular movements or positions. One of these, I note, was holding her child while breastfeeding. Others relate to her work as a vet.

[34] She spoke of how the physical and psychological injuries have adversely affected her enjoyment of her wedding and her regret for how she reacted to the stresses associated with the wedding toward her husband. For her part, the plaintiff indicates that she simply battles through her restrictions. She says that the more physically demanding her day, the greater the consequences in symptoms…

[43] This plaintiff is a young professional, early in her career. She has historically been a high-achiever, endowed with intelligence, motivation and physical ability. The motor vehicle collision came as she was planning her wedding and the purchase of a business. Her wedding, as described by her, was not the enjoyable experience that she, as a young woman, had dreamed of.

[44] The purchase of the business completed, and she has been able to live up to the work demands of that practice, facilitated in part by the fact that it is less demanding than work she did prior to acquiring the practice. In addition, her absence for maternity leave coincided with her rehabilitation. She has actively engaged in rehabilitation during all of the significant developments in her life, including being a new mother. The Post Traumatic Stress Disorder symptoms linger and also influence the enjoyment of an activity which is part of everyday life, that is, driving…

[53] Taking what one can from those authorities and applying the general principles, as referenced in Stapley, it is my conclusion that an appropriate award for general damages is $75,000.

The Blunder of No-Fault Insurance

Written by admin on January 30, 2012. Posted in Tort Reform, Uncategorized.

One of the foundations of our tort-system is accountability. Those harmed at the hands of others careless or criminal actions deserve compensation. Those who act carelessly and cause harm ought to be held accountable by providing the compensation. This goes to our basic understandings of fairness.
When governments decide to strip people of their right to sue and instead create no-fault systems of compensation accountability is removed from the picture. This can lead to absurd results as demonstrated in a story published last week by the Globe and Mail.
Accountability matters. At its most basic level no-fault insurance takes away compensation rights of victims and redistributes these to those that cause harm. Examples such as the one pointed out by the Globe and Mail should act as a reminder to Government that removing accountability from the Civil Justice System is a fundamentally flawed policy.

Are BC Taxpayers Getting Short Changed When it Comes to Subsidizing Medical Malpractice Insurance?

Written by admin on January 27, 2012. Posted in Uncategorized. 51 Comments on Are BC Taxpayers Getting Short Changed When it Comes to Subsidizing Medical Malpractice Insurance?

The above image was taken from the BC Government Website where they recently launched a “budget calculator” permitting the public to play around with various tax revenues and expenditures. The calculator is far from complete, however, leaving many expenses out of bounds. One expense which is absent is the CMPA fee subsidy.
I recently wrote how BC taxpayers subsidize the defence of doctors in medical malpractice lawsuits. This issue has also received media scrutiny by legal reporter and former lawyer Alan Shanoff. I questioned the propriety of this given the long term under-funding of legal aid and BC’s Justice System.
It seems that Ontario taxpayers will be receiving a break from this subsidy in 2012. A longstanding reader of my blog who does not care to be named notes that taxpayers in Ontario will not be on the hook for CMPA fees for 2012.
The CMPA reports that “The payment of medical liability protection costs in Ontario is guided by two agreements. Firstly and as is the case in other provinces, Ontario physicians benefit from a program that reimburses them for a portion of their CMPA membership fees…For members, the substantial reduction in total CMPA fees translates into individual fees for 2012 that are at, or below, 1986 levels. As the reimbursement program is based on a 1986 threshold, the program will be suspended for 2012 while members “out-of-pocket” costs will remain consistent with previous years. ”
As things stand BC taxpayers will not get the same benefit with the public continuing to subsidize CMPA membership fees despite the CMPA “holding $572 million in unrestricted net assets”. I again ask who is a better beneficiary of the $50 plus million dollars the BC Government has used to subsidize liability insurance dues, the CMPA with half a billion dollars in unrestricted net assets, or BC’s poorest who require legal aid to gain access to justice?

$45,000 Non-Pecuniary Damages for Chronic Soft Tissue Injuries

Written by admin on January 27, 2012. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 43 Comments on $45,000 Non-Pecuniary Damages for Chronic Soft Tissue Injuries

Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, assessing damages for injuries sustained from two motor vehicle collisions.
In last week’s case (Parker v. Lemmon) the Plaintiff was injured in two separate crashes, the first occurred in late 2008 the second the following month. Fault was admitted by the Defendants for both collisions. The crashes caused an overlapping indivisible injury and damages were assessed globally.
The Plaintiff’s injuries included a Grade 2 Whiplash Associated Disorder in her upper and lower back long with her neck muscles and ligaments. This injury persisted and caused the Plaintiff a partial disability in her job as a care-aid with restrictions associated with “repetitive reaching and pulling and pushing…as well as the repetitive bending with regards to her lower back“.
In assessing non-pecuniary damages at $45,000 Mr. Justice Savage provided the following reasons:

[27] In considering non-pecuniary damages in this case I am also cognizant of the Supreme Court of Canada’s summary of the purpose of non-pecuniary damages as set out in Lindal v. Lindal, [1981] 2 S.C.R. 629 at p. 637:

Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual’s loss is the key and the “need for solace will not necessarily correlate with the seriousness of the injury” (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada(1981), at p. 373). In dealing with an award of this nature it will be impossible to develop a “tariff”. An award will vary in each case “to meet the specific circumstances of the individual case” (Thornton at p. 284 of S.C.R.).

[28] Such awards will vary in each case to meet specific circumstances. A specific circumstance here is the plaintiff’s overall health condition. That said, I accept that her injuries have significantly impacted her enjoyment of life, including her work, family and social life…

[36] In Fata, the injuries were found to be such that they would not have prevented a return to full-time employment, although with discomfort. Some of the sequelae were resolved at the time of trial, although there was some lingering shoulder pain that would likely not resolve. The Court awarded $45,000 non-pecuniary damages. The factual circumstances are not in all respects similar to the case at bar, but in my view the award in Fata most appropriately approximates what is appropriate here. I note in that case the Court found that the plaintiff could have returned to work but chose not to. In this case the plaintiff did return to her former employment, which her specialist physician opined she could, but she ultimately chose to discontinue that employment and is considering retraining.

[37] In my opinion the appropriate award for non-pecuniary damages in this case is $45,000.

"Gold-Plated" Cost of Future Care Report Judicially Criticized

Written by admin on January 26, 2012. Posted in Cost of Future Care Cases, Uncategorized.

(Update June 18, 2013 – the below judicial scrutiny survived review by the BC Court of Appeal)
Following recent judicial criticism of overly robust requests for future care costs, reasons for judgement were released last week by the BC Supreme Court, criticizing a “gold-plated” expert report.
In last week’s case (Jarmson v. Jacobsen) the Plaintiff was involved in a motorcycle accident. Although he sustained serious injuries and was awarded significant damages at trial, his claimed damages for cost of future care was met with skepticism. In criticizing the expert evidence on this point Mr. Justice Meiklem gave the following reasons:

[115]The defendant’s closing submission listed 20 items recommended by Ms. Landy that the defendant argued were not medically supported by any evidence at trial. I agree with that submission. Many of those items would require very significant outlays, for example, a van with a lifting device to transport an anticipated power mobility device.

[116]Mr. Hemmerling made other vigorous submissions challenging Ms. Landy’s impartiality and objectivity and her reliance on facts and opinions not in evidence, and criticizing her for travelling to Dubai to interview witnesses already interviewed by counsel, knowing that Mr. Jarmson would soon be relocating. I would not go so far as to agree that Ms. Landy became an advocate specifically for the plaintiff in this case, but it is a fair comment that she seemed to advocate an expansion of the types of items and services claimable as future care costs under the law.

[117]Ms. Landy did rely on facts, opinions and assumptions not in evidence, and in some instances her costing displayed a discomforting lack of care. An example of the latter is her costing of Dragon Naturally Speaking voice recognition software and instruction at $2,500 when that software and an instructional disc are readily available for $99, as advertized on the distributor’s website.

[118]Ms. Landy acknowledged during cross-examination that she would defer to the contrary views of Dr. Travlos or other doctors in respect of some of her recommendations, such as recommending laser eye surgery to avoid the problem of dropping or damaging contact lenses due to hand tremors which Dr. Travlos cannot attribute to his injuries.

[119]Ms. Landy’s Life Care Plan is not just a Cadillac; it is a gold-plated one, which goes far beyond what is reasonable. For example, her recommendation of one-to-one rehabilitation support for 10 hours weekly, (essentially to replicate what his wife, who has been his constant workout partner, has always done) is unsupported by medical opinions other than her own, and would cost $21,600 per year. The present value of that expense alone is over $338,000. With all its shortcomings, I cannot accord Ms. Landy’s recommendations very much weight in my assessment, other than to provide a checklist for comparison and thoroughness.

Clinical Experience and the "Novel Science" Objection to Expert Evidence

Written by admin on January 25, 2012. Posted in BCSC Civil Rule 11, independent medical exams, Uncategorized. 54 Comments on Clinical Experience and the "Novel Science" Objection to Expert Evidence

One of the recognized objections to the introduction of expert opinion evidence in a personal injury trial relates to the opinion relying on novel or untested scientific theory. Reasons for judgement were released last week by the BC Court of Appeal addressing this objection and taking a practical view of the benefits of experts providing opinions based on their years of experience in a clinical setting.
In last week’s case (Cassells v. Ladolcetta) the Plaintiff was injured in a 2005 collision. He suffered from a pre-existing condition, namely psoriatic arthritis. The Plaintiff presented evidence that this condition was aggravated due to the trauma of the collision. This evidence was accepted at trial and damages were assessed accordingly.
The Defendant appealed arguing the medical opinion was based on novel science. The BC Court of Appeal disagreed finding the foundation for an expert opinion can be laid based on clinical experience. In dismissing the Appeal the Court provide the following reasons:

[13] The defendants challenged reliance on Dr. Gladman’s evidence on essentially the same basis at trial as they do now. Their contention was and remains that her opinion was based on what they say is novel science: no scientific data established, beyond mere speculation, that her “theory” was valid. They say that at most the theory is an unproven hypothesis. They cite the criteria for evaluating the soundness of novel science found in R. v. Mohan, [1994] 2 S.C.R. 9, 89 C.C.C. (3d) 402, as drawn from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), and discussed in Taylor v. Liong, 2007 BCSC 231, [2007] 7 W.W.R. 50.

[14] The judge said the criteria pertain to the admissibility of expert evidence. Admissibility requires the weighing of threshold reliability. No issue had been taken with the admissibility of Dr. Gladman’s opinion which it was evident is consistent with a widely held belief in the scientific community. Quoting from R. v. Terceira (1998), 38 O.R. (3d) 175, 123 C.C.C. (3d) 1 (C.A.), aff’d [1999] 3 S.C.R. 866, to the effect the threshold test of reliability must adapt to changing circumstances, the judge said that, in the face of studies that did reflect a wide provisional acceptance of Dr. Gladman’s hypothesis, the lack of a conclusive study should not be fatal to either the admissibility or the weight of her opinion.

[15] Unlike instances where, as in Taylor, the opinion of an expert which is shown to be no more than uncertain theory has been ruled inadmissible, here, as the judge said, Dr. Gladman expressed her opinion on the basis of what she said she had seen in response to trauma among her patients with psoriatic arthritis. What is said to be the inconclusive literature she referenced was, as the judge said, not the only foundation for the opinion she held. It was an opinion based on thirty years of her experience.

[16] The judge reached the ultimate conclusion he did concerning the aggravation of the respondent’s psoriasis and psoriatic arthritis relying on the evidence of the various physicians whose opinions he had to consider. Dr. Gladman’s opinion on the effect of trauma on psoriatic arthritis is consistent with the other opinion evidence which the judge found acceptable, as well as with the evidence of the respondent’s medical condition and, for that matter, the deterioration in his life after the accident. I do not consider there to be any sound basis on which it can now be said the judge made an overriding and palpable error in concluding the respondent’s psoriasis and psoriatic arthritis were aggravated by trauma and stress attributable to the accident by relying on Dr. Gladman’s opinion.

City Not Vicariously Liable For Alleged Sexual Abuse by Police Officer

Written by admin on January 24, 2012. Posted in Sexual Assault Civil Cases, Uncategorized.

With more victims of historic childhood sexual abuse prepared to come forward and have their claims heard we have the benefit of more decisions being published by the BC Courts addressing the circumstances when an institution will be held vicariously liable for sexual abuse by their employees. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, further addressing this area of law.
In last week’s case (R.G. v. Vancouver Police Board) the Plaintiff alleged to be the victim of historic sexual abuse at the hands of the Defendant police officer. (its worth noting the Court made no findings about whether the abuse actually took place).
In his childhood the Plaintiff “alternated between living with his parents….and living with Mr. Hughes“. They formed what was described as a father-son relationship. The Plaintiff alleged he was abused in the course of this relationship. The Defendant was a member of the Vancouver Police Department at the time.
The Plaintiff sued the personal defendant and also the City of Vancouver arguing they were vicariously liable for the abuse. Mr. Justice Burnyeat disagreed and dismissed this portion of the Plaintiff’s claim. In finding no employer vicarious liability should arise in these circumstances the Court provided the following reasons:

[27] The Plaintiff submits that society teaches children from an early age to trust police officers and that makes children and young people particularly vulnerable to the abuse of power by police officers. In the circumstances, the Plaintiff submits that the City “has sufficient control, either directly or indirectly through its constant presence on the Board, to be vicariously liable for Hughes’ wrongdoing”, and that the City “had sufficient power over him through his extracurricular activities – pistol shooting competitions and fishing derbies, during which his abuse of … [the plaintiff] continued that it should be held vicariously liable”.

[28] If I could conclude that Mr. Hughes was an employee of the City, I could not conclude that his wrongful acts were sufficiently related to conduct authorized by the City. I can find no “significant connection”. I can only find that there were incidental connections between the abuse that occurred and the location of the abuse. Many of the alleged abuses took place in VPD vehicles. However, the power that was exerted by Mr. Hughes was the power flowing from the “father-son” relationship which had grown and not any relationship between the Plaintiff and Mr. Hughes as a police officer. As well, the fact that Mr. Hughes was granted access to a VPD police vehicle did not afford any particular ability for Mr. Hughes to abuse his power.

[29] In rejecting the submission made on behalf of the Plaintiff, I cannot conclude that the wrongful acts of Mr. Hughes are sufficiently related to conduct authorized by the City to justify the imposition of vicarious liability. There is not a significant connection between any promotion by the City and by society in general to promulgate the message that children should be taught from an early age to trust police officials and the significant wrongs that are alleged to have occurred.