In a speech given at a Canadian Bar Association BC Branch conference earlier this week Robert Bauman, the Chief Justice of the BC Supreme Court warned that government underfunding has caused a “gradual, insidious process of incremental damage” which has threatened BC’s Court system.
You can click here for a link to the full text of the speech.
Adding to this growing database of caselaw considering the relationship of Rule 7-6 and Rule 11-6(4), reasons for judgement were recently released by the BC Supreme Court, Chilliwack Registry, demonstrating that “responding” independent medical exams will not be granted as a matter of course.
In the recent case (Godfrey v. Black) the Plaintiff was injured in a motor vehicle collision. She sued for damages. Her pleadings specifically identified an alleged TMJ Injury. In the course of the lawsuit the Plaintiff was examined for discovery with respect to her TMJ pain. She also served an expert report addressing this injury in compliance with the time-lines set out in the Rules of Court.
The Defendant brought an application for the Plaintiff to be assessed by a TMJ specialist of their choosing. Their application was brought after expiry of the 84 day expert report service deadline They argued an exam was necessary in order to obtain a responding report under Rule 11-6(4). Master Caldwell disagreed and dismissed the motion finding no sufficient evidence was tendered to explain the need for a physical exam. In doing so the Court provided the following reasons:
[2] I am told that the pleadings, when they were issued, specifically identified among other things injury to the temporomandibular joint (“TMJ”). That, it is said, and I agree, put the defence on specific notice that there was an issue relating to the jaw and the TMJ…
[9] There is no evidence before me to indicate why this particular dental expert believes it necessary for him to do a physical examination of the patient. In fact, the instruction letter from counsel specifically asks for among other things a critique of the report of the first dentist. Many of those bullets which appear in the letter which I will not make further reference to appear able to be done on the basis of a criticism of methodology or findings as opposed to requiring an independent examination of the person of the plaintiff…
[13] I have been referred to several cases, but the one which I find the most helpful is the case of Wright v. Brauer, 2010 BCSC 1282 a decision of Mr. Justice Savage in similar circumstances where he was dealing with a trial date in the near future and an examination such as this where there was no medical evidence as to why a physical examination was necessary in order to provide a truly rebuttal or critical report…
[15] In my view, the same reasoning applies in this case…
[18] This application comes late in the day, a year after the defence was well aware that TMJ was an issue that should be looked into. Had they wished to get a full report, they were well able to make that application or the request earlier. I am not satisfied on the material that there is a basis for me to infer from the submissions of counsel or the material filed that an independent medical examination of the person of the plaintiff is required in order for this dentist to provide a truly rebuttal report.
These reasons are unpublished but as always I’m happy to share a copy with anyone who contacts me and requests these.
As discussed many times, the BC Supreme Court operates on a “loser pays” system generally requiring a losing litigant to pay the winner’s costs and disbursements. These costs awards can quickly add up to tens of thousands of dollars and can easily exceed a litigant’s ability to pay.
Although the BC Supreme Court has the ability to require a Plaintiff to pay security for costs ahead of trial, for the obvious reason of ensuring access to justice this discretion is rarely exercised. This was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Hughes v. Hughes) the Plaintiff sued her parents for various harm she claims she suffered due to their actions many years ago. The Defendant brought a motion to dismiss the lawsuit arguing that it was an abuse of process. The Court dismissed this motion finding that while the allegations may have been somewhat unique they “essentially amount to battery, breach of trust and fraud, all of which are well-recognized causes of action“.
The Defendant further argued that the case was bound to fail due to limitation issues and requested Security for Costs. The Court agreed that while the case may be limitation barred that was an issue for trial. In dismissing the application for costs security Mr. Justice Smith provided the following reasons:
[18] The defendants seek, in the alternative, an order that the plaintiff post security for costs. They say she has no history of steady employment and would not likely be able to pay costs if the action is dismissed. The plaintiff says in an affidavit that she is employed as a pre-school teacher, but gives no particulars of that employment.
[19] The law governing security for costs was summarized by Goepel J. in Bronson v. Hewitt, 2007 BCSC 1751. Although the court has inherent jurisdiction to order an individual resident in the jurisdiction to post security for costs, that jurisdiction should be exercised cautiously, sparingly and only under very special or egregious circumstances.
[41] …For good reason, individual and corporate plaintiffs have always been treated differently. Absent special circumstances, corporate shareholders are entitled to avail themselves of the protection of a limited liability company to avoid personal exposure for costs: P.G. Restaurant Ltd. v. Northern Interior Regional Health Board et al., 2006 BCSC 1680. An order for security for costs prevents the principals of a corporate plaintiff from hiding behind the corporate veil and, as noted by McGarry V.C. in Pearson, protects “the community against litigious abuses by artificial persons manipulated by natural persons.”
[42] With individuals, the fundamental concern has always been access to the courts. Access to justice is as important today as it was in 1885 when Lord Bowen declared in Cowell that “the general rule is that poverty is no bar to a litigant”. Individuals, no matter how poor, have always been granted access to our courts regardless of their ability to pay a successful defendant’s costs. Only in egregious circumstances have individuals been ordered to post security for costs.
[20] Examples of such special or egregious circumstances include situations where the plaintiff is or has been a party in multiple other actions (Louie v. Louie, [1998] B.C.J. No. 2097), or where the plaintiff has been unable to produce any evidence in support of his claim many years after commencing the action (Rotvold v. Rocky Mountain Diesel Ltd., [1997] B.C.J. No. 1758). No comparable special circumstances have been shown to exist here and the evidence as to the plaintiff’s alleged impecuniosity is entirely speculative.
[21] The application for security for costs must therefore be dismissed.
[22] The plaintiff seeks an order striking out the statement of defence because the defendants failed to attend an examination for discovery. At the time, the defendants were requesting production of certain documents. Those documents had not been received and, until shortly before the scheduled examination for discovery, counsel for the defendants understood that the former counsel for the plaintiff was still assembling them.
Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for motor vehicle related injuries.
In yesterday’s case (Kardum v. Asadi-Moghadam) the Plaintiff was involved in 2 collisions. He was not at fault for either. The Plaintiff’s physicians provided evidence that he suffered from chronic soft tissue injuries as a result of these crashes. ICBC’s expert (Dr. Grypma) provided evidence minimizing the Plaintiff’s injuries. Mr. Justice Armstrong preferred the Plaintiff’s physicians and concluded that the collisions were responsible for the Plaintiff’s ongoing pain. In assessing non-pecuniary damages at $70,000 the Court made the following findings:
[112] I conclude that Mr. Kardum suffered a chronic soft tissue injury to his neck, shoulder, and upper back region caused in the accidents of 2007 and 2009. In addition to those injuries Mr. Kardum suffers ongoing chronic headaches and disrupted sleep secondary to his neck pain. His prognosis is guarded and it is unlikely that he will become symptom free. The intensity of these symptoms will vary over time and he will likely achieve some improvement over the next one to two years. The measure of that improvement is unknown but may be a function of his efforts in pursuing the recommendations of Dr. Caillier…
[161] I conclude that Mr. Kardum suffers from chronic pain involving his left posterior lateral neck, his posterior shoulder, and upper back region. He continually has headaches and disrupted sleep secondary to the pain involving his neck. He has some prospect of improvement in symptoms but will likely have a measure of pain or discomfort for the balance of his life…
[173] I have concluded that the nature of Mr. Kardum’s injuries coupled with the duration of symptoms that are likely to be permanent will diminish his lifestyle and affect his social relationships. There may be improvement but there will be a permanent reduction in his enjoyment of a lifestyle that was, before the accidents, unbounded by any physical limitations. He has been resilient to the point of maintaining an active physical exercise routine but will continue to have the nagging discomfort and inconvenience of the symptoms he now complains about. He is a young man and will have these symptoms over many years; his will be a different life because of the accident.
[174] I conclude that Mr. Kardum is entitled to non-pecuniary damages of $70,000.
This decision is also worth reviewing for the Court’s comments on the various expert witnesses that testified. In rejecting ICBC’s independent medical examiner Mr. Justice Armstrong provided the following reasons:
[111] Dr. Grypma is an orthopaedic surgeon. He is not a specialist in rehabilitation medicine. His opportunity to observe and examine Mr. Kardum was restricted to a single 1.5 hour examination on January 31, 2011. He confirmed that Mr. Kardum did not demonstrate any nonorganic symptoms. He was not aware of the amount of damage to the defendant’s vehicle in the first accident. He did not make the same observations of Mr. Kardum’s physical symptoms noted by Drs. Caillier and Schukett. Where there are conflicts between his opinions and the evidence of Drs. Caillier and Schukett, I accept the opinions of the latter two doctors.
If two or more events cause a single “indivisible injury” a Defendant who in part contributes to the injury can be held accountable for the entire loss. This legal principle was concisely summarized in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Estable v. New) the Plaintiff was injured in a 2003 motor vehicle collision. She suffered previous and subsequent trauma. The Court found that while not the sole cause, the collision was a cause of the Plaintiff’s various soft tissue injuries. The Plaintiff was compensated for these and in doing so Madam Justice Gropper provided the following short and helpful summary of the law of indivisible injury compensation:
[53] Divisible injuries are those which are capable of being separated out, such as injuries to different body parts or injuries to which the defendant has not contributed: Bradley, at para. 20; see also Athey, at paras. 22-25. Whether damage derived from multiple sources is divisible for the purpose of determining the extent of the liability of one defendant is a question of fact: Hutchings v. Dow, 2007 BCCA 148 at para. 13.
[54] If the injuries are divisible, the devaluation approach from Long v. Thiessen (1968), 65 W.W.R. 577 at 591 (B.C.C.A) is the appropriate method for determining the amount of damages that can be attributed to the defendant. This was discussed in Bradley at para. 33:
[33] The approach to apportionment in Long v. Thiessen is therefore no longer applicable to indivisible injuries. The reason is that Long v. Thiessen pre-supposes divisibility: Long requires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial. Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.
[emphasis in original]
[55] Indivisible injuries are those that cannot be separated, such as aggravation or exacerbation of an earlier injury, an injury to the same area of the body, or global symptoms that are impossible to separate: Bradley, at para. 20; see also Athey, at paras. 22-25.
[56] If the injuries are indivisible, the court must apply the “but for” test in respect of the defendant’s act. Even though there may be several tortuous or non-tortuous causes of injury, so long as the defendant’s act is a cause, the defendant is fully liable for that damage: Bradley, at paras. 32-37; see also Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 19-23.
In assessing the Plaintiff’s non-pecuniary damages at $30,000 the Court made the following findings with respect to her injuries:
[60] I find that Ms. Estable’s remaining complaints were aggravated or exacerbated by the October 2003 injuries. These complaints include: pain in her neck, pain in her left and low back, and pain in her left anterior shoulder. They also include the injury to her sternum, although I find, based on the medical evidence, that this injury was a soft tissue injury and not a fracture.
[61] Applying the principles from Bradley, Ms. Estable has a claim against Mr. New for these complaints because they are indivisible; Mr. New’s negligence aggravated or exacerbated those injuries. While the post accident injury producing events may also have had a similar effect, Ms. Estable can recover her damages entirely from Mr. New. There may be other tortfeasers who are jointly liable, but Mr. New’s right to apportionment among them does not affect Ms. Estable’s right to claim the entire amount from him…
[77] Applying the enumerated factors, Ms. Estable is now 56 years old. She suffered soft tissue injuries of the cervical and lumbar spine and to the left shoulder. She suffered a chest contusion and the possibility of sternal fractures or rib fractures. Her injuries have caused her to change her lifestyle; she is unable to engage in performance art or yoga…
[81] I assess Ms. Estable’s non-pecuniary damages at $30,000.
Reasons for judgement were published this week demonstrating that while the BC Supreme Court has discretion to permit a Plaintiff to tape record a Court-ordered medical exam, this discretion is rarely exercised.
In this week’s case (Colby v. Stopforth) the Plaintiff and her litigation guardian were ordered to attend a series of medical exams. The Plaintiff sought permission to tape record these. Madam Justice Dardi refused to allow this and in doing so provided the following comments:
[18] However, that is not the end of the analysis. I must next consider whether in the unique circumstances of this case the plaintiff has nonetheless adduced cogent evidence that the use of an audiotape would advance the interests of justice.
[19] The plaintiff forcefully argues that the audio recordings are required to protect Mr. Rogers. The plaintiff’s overarching concern is the potential for an evidentiary conflict between Mr. Rogers and an examiner, particularly given that Mr. Rogers is a key witness whose credibility will be a central issue at trial. Mr. Rogers also asserts that he requires this procedural safeguard because of his status as Ms. Colby’s committee—as a fiduciary he is required to act in her best interests.
[20] The court in Wong observed that a medical examination, although part of the discovery process, is quite different in nature from statements made to an independent medical examiner and cannot be equated with the statements taken under oath on an examination for discovery: Wong at paras. 27-29.
[21] As I mentioned in my earlier ruling, I am not persuaded that the potential for an evidentiary conflict between Mr. Rogers and the examiners is, in itself, a cogent reason for ordering an audio recording. Plaintiffs routinely answer questions at independent medical examinations, as they are required to do under the Rules, when their credibility is at issue.
[22] Nor upon careful consideration am I persuaded on the evidence that Mr. Rogers’ status as a committee, in itself, is a sufficiently compelling or cogent reason to warrant the use of an audio recording. To permit the use of audio recording here would be to place Mr. Rogers in a preferred or advantageous position to that of a plaintiff who attends an independent medical examination on his or her on behalf. There may be cases where it is appropriate that a litigation guardian or committee should be permitted the opportunity to have the independent medical examination audio recorded, but on the evidence adduced this is not one of them.
[23] In summary, the evidence in this case falls short of establishing that the use of an audiotape recording would advance the interests of justice. Based on the reasoning articulated by the Court of Appeal in Wong, I cannot conclude on any principled basis that the plaintiff has met the onus in the circumstances of this case for showing that the use of an audiotape recording at the independent medical examinations will advance the interests of justice. I therefore decline to make any orders in this regard.
For more on this topic you can click here to access my archived posts discussing recording what transpires at independent medical exams.
Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, dismissing an ICBC application to transfer a Plaintiff’s lawsuit to Small Claims Court.
In this recent case (Kooner v. Singh) the Plaintiff was injured in a 2009 collision. He sued for damages in the BC Supreme Court. Following examinations for discovery the Defendant applied to transfer the claim to Small Claims Court. Mr. Justice McEwan dismissed the application. He reiterated some concerns he voiced earlier this year and provided the following reasons generally discouraging these types of applications:
[3] I have commented on other occasions about these applications. They amount to the Supreme Court being asked to summarily determine that damages could not possibly exceed $25,000 and also to accept that a trial in Provincial Court is the most expeditious way to deal with the action. On the basis of the material before me, it is not possible to say that the case could not exceed $25,000. The plaintiff wishes to have the matter heard in Supreme Court, and it would only be on the clearest basis that the court would act to deprive a person who wished to be heard in the Supreme Court of the right to do so.
[4] I am not prepared, on the basis of the material, to summarily find that there is no possibility of the trial establishing damages in excess of $25,000, nor am I in a position to assess whether or not the liability aspect of the claim would foreclose the possibility of such damages. It seems to me that the defence must be seeking the limitation of $25,000 because there is very little else that would suggest a motivation for such claims. It is not, as it may once have been, obvious that the Provincial Court is equipped to hear these matters more expeditiously or more cheaply, particularly given the point at which this application is brought, post-discoveries, after most of the expenses that go into a Supreme Court trial have been incurred. My understanding of the current state of hearing day fees, as such, is that there are none for the first three days of trial. So that is not a factor. There was a suggestion before me that the informality of the Provincial Court is an advantage, but unless that informality is tied to reduced time in court, which is not at all clear, I fail to see how that, in itself, results in any particular economy.
[5] I think it should be clear that parties have a right to elect the court in which they bring their actions and that, in doing so, if they persist, they run certain risks. Those risks, in the case of a plaintiff’s action brought in Supreme Court that should have been brought in Small Claims Court, include the penalty of not receiving costs in the case of success, and also include the hazard, if an offer to settle is made, of double costs in accordance with the Rules setting out those penalties. It appears from the vantage of the bench that it is much more in the defence interest that the matter remain in Supreme Court than that this application succeed, unless, as I have said, what is really sought is a summary assessment of the case on the basis of very limited information, to bring the matter in under $25,000. Given the hazards (which the plaintiff is aware of), I am of the view that the plaintiff is entitled to bring the matter in this Court if that is what the plaintiff wishes to do.
[6] I have said as much on the previous occasion of Chang v. Wren in oral reasons given June 10, 2011. I see no reason to stray from the outcome in that case which was to the effect that unless the court were persuaded that damages could not possibly exceed $25,000 the plaintiff should not be deprived of the opportunity to convince a court that their damages exceed that amount. I considered it most unsafe to summarily decide a case on the basis of descriptions that do not include the actual evidence of the parties. Courts certainly have the experience of being persuaded that cases that did not appear to be worth a great deal turn out to be worth much more once they have been heard. I will also say, as I said in Chang v. Wren, that I am absolutely not persuaded by any efficiency or cost-saving argument, particularly where, as here, the application is brought at a point post-discovery. There is very little process to avoid at this point and, for the reasons I have already indicated, it is not at all clear that there are cost savings to be realized.
[7] Accordingly, I dismiss this application.
Earlier this week I had the pleasure of being briefly interviewed by Gordon Hoekstra of the Vancouver Sun who was authoring a story on waivers of liability for sports organizations. In short the article emphasized the need for organizations to clearly bring liability waivers to the attention of those signing them otherwise there is risk that the waivers will be ineffective.
For those of you who are visiting this site looking for more information addressing this topic you can click the following link to access my archived posts discussing waivers of liability in BC Injury Claims.
Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, finding that a waiver of a Plaintiff’s right to sue was not enforceable where the agreement was set out in a “very faint small red type“.
In this week’s case (Arndt v. The Ruskin Slo Pitch Association) the adult Plaintiff joined a recreational soft ball league. Prior to playing the Plaintiff filled out and signed a roster. At the bottom of the roster was a clause stating “I agree to waiver” the terms of which were set out on the back of the roster.
The Plaintiff was injured in the course of one of her games. She sued for damages. The Defendant applied to dismiss the claim relying on the waiver arguing that “the Plaintiff cannot escape from the consequences of the waiver merely by stating that she thought she was signing a roster and did not appreciate it was also a waiver“.
Madam Justice Humphries disagreed and found in these circumstances the waiver should not be enforceable. In dismissing the Defendant’s motion the Court provided the following reasons:
[36] On the affidavit and discovery evidence before me, I accept that the plaintiff thought she was signing a team roster and that she did not know it was a waiver of liability. However, the defendants are correct in stating that that is not the end of the enquiry. ..
[44] The document, looked at on its face, does not appear to be a waiver. It appears to be a roster. The attention of the person asked to sign it as a roster would inevitably be drawn to the lines in the box for the team signatures and information. While there is red type above the box requiring the person to “READ AND UNDERSTAND BACK OF PAGE BEFORE SIGNING” there was, on the evidence on this application, no direction or information given by the coach who presented the document attached to a clipboard, to be handed around and signed by the team at the first practice. The words “I agree to waiver” on the signature lines are so faint as to almost undetectable. Unlike the waivers that have been held to be enforceable in the cases referred to above, the release is not a separate sheet and the waiver and signature are not on the same page. The back of the form requires the coach to advise the people on the list that they are fully responsible for any damages “incurred by them”. That was not done, nor was any step taken by the defendants to ensure it had been done.
[45] If the defendants wanted to ensure that they were released from liability it would be a simple matter to have individual release forms prepared and signed by each player. The defendants had no means of determining if the plaintiff understood the document because they did not present it to her, leaving its nature to be explained by coaches or managers who did not do so. The form of the document itself and the circumstances under which it was presented for signature are not such that a reasonable observer would understand its nature. I am unable to conclude that the defendants took reasonable steps to have the nature of the document as a waiver rather than a team roster brought to the plaintiff’s attention.
[46] I conclude, on the information before me, that the waiver is not enforceable against the plaintiff. It is not necessary to deal with the plaintiff’s additional arguments respecting consideration and the failure to date the document.
Paragraph 27 of this case is worth reviewing for the Court’s short and helpful summary of 8 other BC cases dealing with waivers.
Below is a brief article which was first published yesterday at Slaw.ca, one of Canada’s best read and most recognized legal blogs. For your convenience I republish the article here in its entirety. If you find this topic of interest I suggest you visit the original article and weigh in on the comments that follow.
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I’ve written many times that the phrase tort ‘reform‘ is often used in association with efforts to strip the rights of injury claimants. Reform, however, is a neutral concept in and of itself. Reform simply means change and the change could be for better or worse. With this in mind I’d like to share a tort reform idea for the better which recently crossed my mind. In short the idea is to add a pool of liquidity to rectify the injustice of dry judgement.
The thought crossed my mind as I was reading reasons for judgement released this week by the BC Supreme Court, New Westminster Registry. In this week’s case (Saether v. Irvine) the Plaintiff was injured when the Defendant battered him. The consequences were “profound and catastrophic” causing a brain injury that “severely compromised (the plaintiff) in virtually all facets of his life“. Damages of $1,075,000 were assessed to cover the Plaintiff’s anticipated future care costs alone. Given the fact that this case involves an intentional tort it is a safe bet that this judgement will be uninsured and likely (at least partially) dry.
Reading this reminded me of a 2005 case (Chow v. Hiscock) where the Court expressly recognized the injustice of dry judgement facing a plaintiff left “in a permanent semi-vegatative state” following a “brutal, unprovoked assault“. The Plaintiff’s future care costs were anticipated to exceed $4,000,000. Madam Justice Koensberg made the following comments hoping the Plaintiff would some day be able to receive some of these funds from the uninsured defendants:
[40] Can I say that this is still a case where punitive damages should be awarded? If I were to award punitive damages, it would be purely symbolic. I have heard nothing which indicates that the magnitude of this award or even some small part of it is likely to be payable by any of these three young men. One can hope that they find a straight path to earn a significant amount of money or that one even wins the lottery, so that the earnings could be available to increase Mr. Johnson’s quality of life.
The law recognizes that those harmed through the fault of others are entitled to reasonable compensation. When it comes to negligently caused harm defendants are often insured and plaintiffs can collect their judgements.
In cases where Defendants hold inadequate insurance examples can be found where legislatures have intervened to ensure victims can collect on their judgments. For example, in BC, Section 20 of the Insurance (Vehicle) Act provides a pool of $200,000 of available compensation from ICBC for damages caused by uninsured motorists. A further example is the requirement for BC motorists to purchase a minimum of one million dollars of under-insured motorist protection coverage.
When plaintiffs suffer harm through intentional torts, however, there often is no insurance to protect the wrongdoer or compensate the victim. This is an unfair reality in Canadian law. Victims harmed through assault, battery, sexual molestation and other intentional acts are often faced with dry judgments. When they seek legal advice they are often turned away being told that litigation may not be worth the effort unless the Defendant has deep pockets
There is no justification I can think of making it fair for a car crash victim to be able to collect their judgement from a pool of money created by the government when the victims of crime are left with dry judgments.
The financial well being of a defendant has no bearing on a victim’s right to damages. If the government has seen fit to create a pool of funds for victims of motor vehicle collisions to collect from surely a similar system can be created to allow victims of intentional torts facing dry judgments. This is a rough idea. Thoughts and feedback are welcome from lawyers and non-lawyers alike.