Uncategorized – Page 99

Expanded Articled Student Role Now In Force

Written by admin on September 1, 2011. Posted in Uncategorized.

Just a brief reminder to all you BC articled students (and let’s not forget employers of BC articled students) that the Law Society’s Rule 2-32.01 is now in force which provides the following expanded role for services which Articled Students can provide:

LEGAL SERVICES BY ARTICLED STUDENTS

2-32.01 (1) Subject to any prohibition in law, an articled student may provide all legal services that a lawyer is permitted to provide, but the student’s principal or another practising lawyer supervising the student must ensure that the student is
(a) competent to provide the services offered,
(b) supervised to the extent necessary in the circumstances, and
(c) properly prepared before acting in any proceeding or other matter.
(2) An articled student must not
(a) appear as counsel without the student’s principal or another practising lawyer in attendance and directly supervising the student in the following proceedings:
(i) an appeal in the Court of Appeal, the Federal Court of Appeal or the Supreme Court of Canada;
(ii) a civil or criminal jury trial;
(iii) a proceeding on an indictable offence, unless the offence is within the absolute jurisdiction of a provincial court judge,
(b) give an undertaking unless the student’s principal or another practising lawyer supervising the student has also signed the undertaking, or
(c) accept an undertaking unless the student’s principal or another practising lawyer supervising the student also accepts the undertaking.

[added 05/2011, effective 09/2011]

Expert Report Excluded For "Advocacy" and Other Short-Comings

Written by admin on August 30, 2011. Posted in BCSC Civil Rule 11, Uncategorized. 45 Comments on Expert Report Excluded For "Advocacy" and Other Short-Comings

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, excluding an expert report from evidence for multiple short-comings. The Court’s criticism included the fact that the report failed to properly set out the expert’s qualifications, offended the ‘ultimate issue‘ rule, failed to list documents relied on in forming the expert’s opinion and lastly for being ‘advocacy‘ in the guise of opinion.
In this week’s case (Turpin v. Manufacturers Life Insurance Company) the Plaintiff purchased travel insurance with the Defendant. While on a trip to California she fell ill and required medical treatment. Her expenses quickly grew and exceeded $27,000. The Defendant refused to pay relying on a pre-existing condition exclusion in the policy. The Plaintiff sued and succeeded.
In the course of the trial the Defendant tried to introduced a report from a doctor of internal medicine to “provide an opinion as to whether (the Plaintiff’s) medical treatment between October 5, 2007 and October 9, 2007 was the result of a pre-existing condition as defined in the Travel Insurance Policy“.
Mr. Justice Wilson ruled that the report was inadmissible for multiple reasons. The case is worth reviewing for the Court’s full discussion of the shortcomings of the report. In my continued effort to highlight expert reports being rejected for ‘advocacy’ I reproduce Mr. Justice Wilson’s comments on the frowned upon practice of experts using bold font to highlight portions of their opinion:

[29] Finally, the plaintiffs object that the report is advocacy on behalf of the defendants.

[30] This objection is based, in part, upon the author’s use of bold font and italicized portions of the report.

[31] In Warkentin v. Riggs, this court was faced with an expert’s report which adopted “… a particular format”:

He uses bold font to highlight words and phrases which benefit the plaintiff’s claim and support his diagnosis. This is apparent in his review of Ms. Warkentin’s history and medical reports. That which is contrary to the plaintiff’s claim or does not support his diagnosis is either omitted or presented in non-bolded font. This emphasis in support of the plaintiff’s claim and the exclusion of contrary matters is advocacy.

I adopt those comments as applicable in this case.

[32] This use of emphasis is not a practise to be encouraged. In this case, it may have been introduced by counsel’s letter of instructions, which suggested that the author may “indicate the relative degree of importance of any particular fact or assumption”.

[33] If the author of the report regards a factor as a major premise leading to the conclusion, then it should be so stated. Not left to unexplained emphasis in the body of the report.

[34] It was for those foregoing reasons that I ruled the report inadmissible.

Joint Expert Witness Appointed Despite "Vigorous" Defendant Opposition

Written by admin on August 29, 2011. Posted in BCSC Civil Rule 11, BCSC Civil Rule 5, Uncategorized. 115 Comments on Joint Expert Witness Appointed Despite "Vigorous" Defendant Opposition

Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, appointing a joint expert witness against the wishes of a Defendant in an on-going legal dispute. Although this recent case is not a personal injury claim I summarize the findings because it is the first case I’m aware of appointing a joint witness in a contested application under the ‘new’ BC Supreme Court Civil Rules.
In the recent case (Leer and Four L. Industries v. Muskwa Valley Ventures Ltd.) the Plaintiff and Defendants had a falling out in their commercial dealings. The Plaintiff sued seeking an order that the Defendant “purchase his shares at fair market value“. At a Case Planning Conference the Plaintiff sought an order that a joint business valuator be appointed to value the shares. The personal Defendant “vigorously oppose(ed)” the idea of a joint expert.
Ultimately Master Scarth granted the order and in doing so provided the following useful comments of general interest in applications for joint experts:
[4] Rule 5-3(1)(k)(i) provides that at a case planning conference, a judge or master may order that expert evidence on any one or more issues be given by one jointly-instructed expert. Given the prohibition in Rule 5-3(2)(a) against hearing an application supported by affidavit evidence at a case planning conference, the court is required to rest any exercise of discretion on the pleadings and submissions to the extent that they do not require recourse to affidavit evidence: Przybysz v. Crowe, 2011 BCSC 731 at para. 59; Vernon v. British Columbia (Liquor Distribution Branch), 2010 BCSC 1688; and Jurezak v. Mauro, 2011 BCSC 512 – considering Rule 12-2(11)…
[14] Rule 11-3 was recently considered in Benedetti v. Breker, 2011 BCSC 464. Master Baker noted that while joint experts are not new to litigation in British Columbia, the new rules clearly have brought greater focus and emphasis to the appointment of joint experts and invite wider application of that process: paragraph 11…
[18] The personal defendants object to paying for expert evidence which is part of the plaintiffs’ case. Why should they pay for a report which the plaintiffs require? The answer is because it is a proportionate way to conduct this proceeding.

[19] Read together with Rule 1-3 which sets out the object of the rules, Rule 11-3, like joint expert rules in other jurisdictions, is intended to reduce litigation costs and promote the conduct of a proceeding in ways consistent with the amount involved. While in this case, the amount at issue is not yet resolved and will not be until an opinion has been obtained, the buyout of Royer in 2009 gives some indication that the amount is likely modest. In such circumstances, proportionality suggests that an effort should be made to avoid duplication of the costs of obtaining an expert report which is the likely outcome if a joint report is not ordered.

[20] It follows that the parties are required to share the cost of the expert, at least at the outset. The ultimate determination as to costs is for the trial judge.

[21] I will add that a report as to value may benefit all parties in another way. The value of Leer’s shares has been an issue and a topic of discussion between the parties since 2009, when the personal defendants offered him a buyout. A valuation will provide the parties with the information required to settle this longstanding dispute, and may promote that result.

[22] I conclude that it is appropriate to exercise my discretion in favour of the plaintiffs and to make the order set out in Rule 5-3 that expert evidence as to valuation of Leer’s shares be given by a jointly appointed expert.

Intention to Work From Home Strips Plaintiff of Right to Sue After Collision

Written by admin on August 26, 2011. Posted in Uncategorized.

As previously discussed, Section 10 of the Worker’s Compensation Act operates to generally strip you of your right to sue if you are injured in the course of your employment by someone else in the course of their employment. One of most litigated issues with respect to this bar arises when people are in collisions commuting to and from work. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing such a scenario.
In this week’s case (Franzke v. Workers’ Compensation Appeal Tribunal) the Plaintiff was injured while driving home from her usual place of employment. She was employed in the insurance industry. Her job required her to have a Driver’s Licence and to occasionally work away from the office.
On the day of the collision the Plaintiff left her office early in the face of an expected snow storm. She took files home with her with an intention of working from home for the balance of the day and depending on road conditions perhaps for some time beyond that.
In the course of her lawsuit the Defendants argued that these circumstances brought the commute within the “course of employment” stripping her of the right to sue. The matter was put before the Workers Compensation Appeal Tribunal (WCAT) who agreed. While WCB’s Policy 18 states in part that “the general position is that accidents occurring in the course of travel from the worker’s home to the normal place of employment” is not an activity in the course of employment here the Plaintiff’s intention to work from home was crucial with WCAT finding that “the intention of the worker was given significant weight and was determinative“.
The Plaintiff asked the BC Supreme Court to review this decision arguing that it was patently unreasonable. Madam Justice Ross disagreed and refused to disrupt WCB’s decision. In doing so the Court reached the following conclusion:
[132] I have concluded that the Original Decision was not patently unreasonable and that the hearing was fair with no denial of natural justice. In addition, I have concluded that the decision of the Reconsideration Panel to dismiss the application for reconsideration was correct. In the result, the petition is dismissed.

$100,000 Non-Pecuniary Damage Assessment For Chronic Pain and Depression

Written by admin on August 24, 2011. Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, Uncategorized.

(Update: June 11, 2012 – With the exception of a modest decrease in the damage award for Cost of Future Care, the below decision was upheld by the BC Court of Appeal in reasons for judgement released today)
Adding to this site’s chronic pain non-pecuniary damages archives, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain and depression.
In this week’s case (Tsalamandris v. MacDonald) the Plaintiff was involved in two collisions, the first in 2004 and the second in 2006. The Defendants admitted fault in both claims. The Plaintiff suffered from “chronic pain and a depressive disorder which is quite debilitating“. The cause of the Plaintiff’s disability was the main focus of trial with the Plaintiff arguing the collisions were responsible while the Defendants pointed to other explanations.
Ultimately the Court found that the the collisions were responsible for the Plaintiff’s injuries. These were expected to be largely disabling for the duration of the Plaintiff’s career. In assessing non-pecuniary damages at $100,000 Madam Justice Griffin provided the following reasons:
[223] I therefore conclude that but for the Accidents, the plaintiff would not have suffered the chronic pain and depression she suffered following the Accidents and continuing to this day and into the future. The plaintiff has proven that the Accidents caused her conditions of chronic pain syndrome and depression…

[332] The plaintiff had an active lifestyle prior to the Accidents, did many outdoors things with her husband and got along well with others. The minor discomfort she experienced on occasion stemming from the 2001 accident did not interfere with her activities.

[333] The changes she has gone through since the 2004 and 2006 Accidents have been dramatic. Her chronic pain and chronic depression mood have had a very negative impact. She has said very hurtful things to her mother and her husband. She has not been able to properly take care of her children and she does not get the same joy out of life as she used to do…

[336] The plaintiff cites a number of cases that suggest that an award of damages for loss of enjoyment of life and pain and suffering (non-pecuniary damages) in similar circumstances should be in the range of $85,000.00 to $125,000.00: Beaudry v. Kishigweb, 2010 BCSC 915; Eccleston v. Dresen, 2009 BCSC 332; Kasidoulis v. Russo, 2010 BCSC 978; Poirier v. Aubrey, 2010 BCCA 266; Zhang v. Law, 2009 BCSC 991; and, MacKenzie v. Rogalasky, 2011 BCSC 54 (the latter cited by the defendants for other reasons).

[337] The authorities can only serve as general guidelines.

[338] Given the plaintiff’s age, the stage of her life when she was injured, as a young mother, the ongoing and severe nature of her injuries which negatively affect every aspect of her daily life and her relationships with those around her, including with her children, her husband and her parents, I conclude that a fair and reasonable award for the loss of her enjoyment of life and her pain and suffering is $100,000.00.

More on the Steep Consequences of Part 7 Benefits Deductions in Tort Trials

Written by admin on August 23, 2011. Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized. 51 Comments on More on the Steep Consequences of Part 7 Benefits Deductions in Tort Trials

As previously discussed, if you are insured with ICBC and fail to pursue your own Part 7 benefits a Defendant can reduce their liability by the amount of the benefits you should have pursued. This can result in a very harsh damages deduction. This was again illustrated in reasons for judgement released last week by the BC Supreme Court, Kelowna Registry.
In last week’s case (Thomas v. Thompson) the Plaintiff was injured in a 2005 collision. The case went to trial in 2010 and the Plaintiff was awarded damages for various losses including the cost of future medical care. One of the future care items was the cost of Lyrica. The parties were invited to make further submissions regarding the future costs of this medication.
The Court accepted that the present day value of the Plaintiff’s future need for Lyrica totalled $147,939. This entire award was then deducted because the Plaintiff could have pursued payment for this directly under his no-fault benefits. In allowing this six figure damage reduction Mr. Justice Brooke provided the following reasons:

[4] The defendants say that rather than ordering the payment to the plaintiff of the present value of Lyrica as a cost of future care, the court must apply the provisions of s. 83(5) of the Insurance (Motor Vehicle) Act. This section in its entirety says this:

83

(a) within the definition of section 1.1, or

(b) that are similar to those within the definition of section 1.1, provided under vehicle insurance wherever issued and in effect,

but does not include a payment made pursuant to third party liability insurance coverage.

(2) A person who has a claim for damages and who receives or is entitled to receive benefits respecting the loss on which the claim is based, is deemed to have released the claim to the extent of the benefits.

(3) Nothing in this section precludes the insurer from demanding from the person referred to in subsection (2), as a condition precedent to payment, a release to the extent of the payment.

(4) In an action in respect of bodily injury or death caused by a vehicle or the use or operation of a vehicle, the amount of benefits paid, or to which the person referred to in subsection (2) is or would have been entitled, must not be referred to or disclosed to the court or jury until the court has assessed the award of damages.

(5) After assessing the award of damages under subsection (4), the amount of benefits referred to in that subsection must be disclosed to the court, and taken into account, or, if the amount of benefits has not been ascertained, the court must estimate it and take the estimate into account, and the person referred to in subsection (2) is entitled to enter judgment for the balance only.

[5] I am satisfied that the Part 7 benefits available to the plaintiff exceeded the present value of those benefits and judgment may not be entered for them.

For more information on the complexities of part 7 benefits and tort damage assessments you can click here to read my article “the two hats of ICBC“.

Negligent Medico-Legal Opinion? Dr. Ford Says Experts Should be Sued

Written by admin on August 22, 2011. Posted in Tort Reform, Uncategorized. 68 Comments on Negligent Medico-Legal Opinion? Dr. Ford Says Experts Should be Sued

Earlier this year I wrote about the UK Supreme Court decision stripping expert witnesses from immunity from lawsuits when they provide careless opinion evidence.
Some of my comments on this topic were picked up by the Law Times News where I exchanged my views that Canada should follow the UK’s example. These views must have the medical community up in arms, right? Surprisingly the answer appears to be no.
A follow up article published in the Law Times was recently brought to my attention where Dr. Michael Ford weighed in on the debate. Interestingly he agreed that these lawsuits should be allowed arguing that they would bring an important element of accountability to the medico-legal process. Specifically he stated as follows:
I like Britain’s approach because everyone, including expert witnesses, should be responsible for their actions.
That may seem simplistic, but if Canada adopted this approach, I would have no problem. It’s only fair. For example, if I assault someone on the street, I should pay the price.

By the same token, if I make an error or I provide care that’s below standard, I should be held responsible and I am. I don’t see why that responsibility should disappear because I’m now acting as an expert on the witness stand in court.
You can click here to read Dr. Ford’s full article. As always, I welcome comments from any other doctors and lawyers (or anyone interested in this topic). Feel free to weigh in on the debate.

Defendant Denied Second Medical Exam Despite Potential "Concerns" Of First Expert's Opinion

Written by admin on August 22, 2011. Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized.

(Update: The below decision was upheld on Appeal by Mr. Justice Smith on September 29, 2011)
Although Rule 7-6(2) of the BC Supreme Court Civil Rules permits multiple court ordered medical examinations, there is a general prohibition of multiple exams to comment on the same topic. Useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this in the context of a psychiatric condition which developed following a motor vehicle collision.
In this week’s case (De Sousa v. Bradaric and Borthwick) the Plaintiff was injured in a 2003 collision which allegedly caused physical and psychiatric consequences. In the course of the lawsuit the Defendants had the Plaintiff assessed by a psychiatrist of their choosing. This psychiatrist (Dr. Davis) concluded that there was “no psychosis“.
Shortly after this the Plaintiff was admitted in hospital on multiple occasions. She was ultimately diagnosed with “chronic paranoid schizophrenia” by her treating physicians. These records were shared with Dr. Davis but despite the diagnosis from treating specialists he “rigidly and categorically rejected any diagnosis of a psychotic conditions“.
In the face of this clear diagnosis from the treating physicians a second Defence Medical Exam was sought, this time with a different psychiatrist. The Court rejected the application despite potential “concerns….with the quality or reliability” of Dr. Davis’ opinion. In rejecting the application Master Baker provided the following helpful reasons:

[13] I am not satisfied at all that in these circumstances, with these facts and history, that a second IME is justified. It is easily as consistent in my mind that the defence now disagrees or is concerned about issues with Dr. Davis’ position and report. It is easily consistent, in my view, that the application aims to mediate or improve upon Dr. Davis’ opinions.

[14] Yes, Mr. McIvor is absolutely correct that the psychosis, if any, was at a fairly nascent stage in 2007 when Dr. Davis saw her and that it has apparently, if one takes the evidence of the plaintiff, become full-blown. Well, so be it. In my respectful view, Dr. Davis is a psychiatrist. He is an expert in psychiatric matters. He has been consulted on, I am told, many occasions. That is not denied. I would expect him to be alive to the issue. He certainly inquired of Ms. De Sousa and very soon after was advised of the psychotic overlay or potential for it and has absolutely rejected that.

[15] In all the circumstances, I just cannot see a basis for the second opinion. It is a multi-stage test, of course. There are aspects of this both counsel have properly put before the court, starting with as Mr. McIvor has pointed out the Chief Justice in Wildemann (1990), 50 B.C.L.R. (2d) 244 (C.A.). It must be an exceptional case that justifies the second IME or one that is required to place the parties on equal footing. I cannot see that in this particular case. What is, I think, concerning the defence, I infer, is concerns they have with the quality or reliability of a report obtained in this specific area of expertise.

[16] The court should be concerned according to McKay v. Passmore, 2005 BCSC 570, that the matter is something that could not reasonably be seen or anticipated or dealt with at the time. Well, again, I do not see that that applies in this case. There was a previous committal for psychotic reasons. Counsel called and advised that she had been to the hospital, possibly not for psychotic reasons, possibly as I said earlier for cognitive reasons; possibly he did not have in hand the medical records. He probably did not. It sounds to me like it was on an emergency basis, but surely that should have given rise to real concerns on the part of any inquiring professional such as Dr. Davis.

[17] The passage of time alone does not justify a second IME. That is true. However, that may be qualified, I suppose, when the passage of time allows for the development of a whole new area of concern or symptomology. Certainly, as I have said already a couple of times, her psychosis has really developed and become much more obvious, apparently. However, I do not think this aspect applies because it should have been evident to a reasonable inquiry at the time that there was a real issue about this…

[21] Yes, this may be developing into a major claim, but that does not change all of the other considerations that I have applied and taken from the cases, all of which lead me to conclude that the application should be dismissed, and it is.

Questionable Insurance Practices – Another Form of Insurance Fraud?

Written by admin on August 21, 2011. Posted in Tort Reform, Uncategorized. 48 Comments on Questionable Insurance Practices – Another Form of Insurance Fraud?

Alan Shanoff of the Toronto Sun recently authored an interesting piece questioning whether insurance company practices could be viewed as insurance fraud.
When insurers catch customers defrauding the system the stories tend to make headlines. That is a good thing. Fraud should be weeded out and publicly condemned. Alan suggests that these stories, however, may not be the only form of insurance fraud. If insurers use practices that result in their customers being wrongfully deprived of their insured benefits can that constitute insurance fraud? Should the media pay equal attention to stories of insurers short changing their customers?
As previously discussed, insurance fraud from either side of the fence deserves rebuke. When claimants are unlawfully deprived of their insurance benefits they don’t have the deep-pockets that insurers have access to in order to find a legal remedy. Alan makes some interesting observations in his article and I encourage anyone interested in the insurance fraud debate to review Alan’s article.