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Negligent Commercial Bus Driver Escapes Liability Due to Waiver of Liability; Legislative Intervention Required?

Written by admin on . Posted in Uncategorized.


 
UPDATE  – April 30, 2014 – The below decision was overturned by the BC Court of Appeal
I have previously discussed the real world consequences of waivers of liability and the fact that these can strip people seriously injured through the fault of others of meaningful legal recourse.   Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, creating a troubling precedent allowing such a waiver to stand in the context of a motor vehicle collision claim.
In today’s case (Niedermeyer v. Charlton) the Plaintiff embarked on a tour to Whistler  BC to participate in various activities including a zip lining experience.  Transportation to and from Whistler was provided the by the Defendant.   During the return trip the bus driver “allowed the bus to get too close to the edge of the road and…the bus went off the road and over the edge“.  The Plaintiff suffered severe injuries including a fractured neck, ribs and vertebra.
Prior to the trip the Plaintiff signed a waiver agreement which covered activities such as ziplining but also included a clause covering “travel to and from the tour areas”.  The Defendant was, like most BC motorists, insured with ICBC and the Plaintiff sued for damages.  The Defendant admitted he was negligent but the waiver was upheld dismissing the plaintiff’s claim.  In doing so Mr. Justice Armstrong provided the following reasons:
[80]         In my view, the Release is a clear and relatively easy to read document. Although some of the print is small, large capitalized portions of the Release draw attention to the important features of safety, assumption of risks, release of liability and waiver of claims. A reasonable person would recognize the purpose and extent of the document, including the connection between the release and travel to and from the tour site.
[81]         I have concluded that the defendants were not obliged to point out the waiver clauses, with specific reference to the bus transportation to and from the tour site. There were no distinct features of the bus trip as opposed to the other zip line activities that should have been brought to the plaintiff’s attention…
[93]         I have considerable sympathy for the plaintiff due to the injuries sustained in the accident. The plaintiff is entitled to some benefit as an insured person under Part VII of the Act. However, the plaintiff is not entitled to recover damages due to the defendants’ negligence because she surrendered that right when agreeing to the waiver and release of all claims as a condition of being permitted to use the defendants’ zip line facility.
This is a troubling finding and can pave the way for commercial vehicle operators requiring customers to sign waivers of liability in essence shielding these operators in the face of negligently caused injuries.  Mr. Justice Armstrong held such a result “is not contrary to public policy“.  In reaching this conclusion the Court provided the following reasons:
92]         However, in this case, the Release does not impact public policy or the statutory automobile insurance scheme. This Release deals only with the plaintiff’s right to recover damages from the defendants caused by the defendants’ negligence. The statutory scheme is not engaged until there has been a determination, or settlement, of a complainant’s entitlement to money as compensation for injury suffered as a result of the negligence. In my view, the plaintiff’s argument does not engage a debate about public policy.
I understand the decision is being appealed and I will author a follow up post after the Appellate Court addresses this issue.
Assuming, however, that this result is correct it is one which clearly calls out for legislative intervention.  If the law requires motorists to carry Third Party liability coverage to ensure those injured through their carelessness have recourse to damages the law should not permit waivers to apply to strip innocent individuals of this statutorily required protection.

Can I Get Fees With That? Law Firm Unsuccessfully Seeks Fees From Their Own Insurer's Negligence Payout

Written by admin on . Posted in Uncategorized. 53 Comments on Can I Get Fees With That? Law Firm Unsuccessfully Seeks Fees From Their Own Insurer's Negligence Payout

Reasons for judgement were released  this week by the BC Supreme Court, Vancouver Registry, addressing whether a lawfirm that negligently failed to file a lawsuit before the expiry of a limitation period can then seek fees from their clients for the payout the client’s receive in successfully pursuing the lawfirm for damages stemming from their negligence.  Not surprisingly the answer was no.
In this week’s case (Taylor v. Brozer) the clients were injured in a 2006 Washington State collision.  The crash was caused by an underinsured motorist.  They had ICBC Underinsured Motorist Protection coverage and retained the lawfirm to represent them in their UMP Claim. They did so on a contingency basis.  The lawfirm “failed to file a writ in Washington State and missed the limitation period thus denying the clients their rights to seek UMP protection/damages from ICBC“.
The clients hired a new lawyer to sue the former firm.   Ultimately the former firms insurer paid out a $200,000 settlement “based on the clients’ expected recovery under UMP“.
The initial lawfirm then sought over $25,000 in fees from their former clients “in respect of the work it did for the clients” arguing that the work they did before missing the limitation period “was of value and the lawfirm ought to be compensated“.  Registrar Sainty dismissed the claimed fees finding they could not be recovered.  In reaching this decision the court provided the following reasons for judgement:
[49]         There is no dispute between the parties that these solicitors were retained by these clients for a single purpose: “to handle the client’s claim for damages arising from injury suffered in the [Accident]” (paragraph 1 of the retainer agreement). The retainer agreement between them is therefore an “entire contract” in accordance with the holdings in Ladner Downs v. Crowley (supra).
[50]         Since it is an “entire contract”, unless the solicitors had “good cause” to withdraw from acting for the clients, they are not entitled to any fees for the work done by them for the clients up to the time the retainer contract was terminated (Maillott and Morrison Voss v. Smith, 2007 BCCA 296).
[51]         Did they have “good cause” to withdraw? There is no doubt that it was their negligence (in missing the limitation period) that terminated the retainer. After realising their negligence, the solicitors were bound to withdraw and they could no longer act for the clients.
[52]         Can the solicitors own negligence constitute “good cause” as submitted by the law firm or must it be said that as the solicitors “caused” the termination (by their own negligence) therefore must be found not to have had good cause to withdraw (as submitted by the clients)?
[53]         In my view, the solicitors cannot be found to have “good cause” to withdraw. It is simply not proper to hold that a lawyer may find “good cause” for withdrawal in his own negligence and thus be entitled to claim a fee for work done for his clients before his negligence was discovered but may not find “good cause” for withdrawal in something completely beyond his control (e.g., an appointment to the bench, nonpayment of practice fees, death or the like) and lose his entitlement to claim a fee for work done up to the time of the involuntary act. My view is supported by the decision of District Registrar Blok (as he then was) in McVeigh v. Ewachniuk, 2003 BCSC 1328) wherein it was held that a solicitor’s disbarment was not “good cause” for terminating an entire contract retainer.
[54]         Even if I am wrong in this analysis, I find that the work performed by the law firm was of no value to the clients and therefore the clients should not be required to pay the law firm for any of that work. The failure of the law firm to file the action in Washington State defeated the whole purpose of the retainer. But for the assistance of New Counsel and the intervention of the law firms’ insurer, the clients were left with no remedy against the underinsured motorist and thus the work done by the solicitors must be said to have been of no value. Any value was lost once the limitation period was missed and the personal injury action became doomed to fail.

$85,000 Non-Pecuniary Assessment for Bilateral Carpal Tunnel Syndrome and Chronic Soft Tissue Injuries

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, ICBC Wrist Injury Cases.


Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing non-pecuniary damages for a host of injuries including a broken nose, bilateral carpal tunnel syndrome requiring surgery and chronic soft tissue injuries.
In this week’s case (Mayervich v. Sadeghipour) the 72 year old Plaintiff was injured in a 2007 crash.  Liability was admitted by the Defendant.   The Plaintiff suffered chronic injuries in the crash with symptoms persisting to trial.  While there was some room for further improvement some symptoms were expected to last indefinitely   In assessing non-pecuniary damages at $85,000 Mr. Justice Grauer provided the following reasons:
[57]         In my mind, the significant features of this case are these: 
·                 As a result of the accident, Mrs. Mayervich suffered a constellation of injuries, the most significant of which has been myofascial injury in the neck and back resulting in a chronic pain condition accompanied by a major depressive order and cognitive difficulties. 
·                 Included the constellation were a deviated septum (broken nose), and injuries to the arms and hands that culminated in bilateral carpal tunnel syndrome.  Both of these conditions required surgical intervention and both have resolved.  There was additional discomfort from injuries to the abdomen and chest. 
·                 These injuries have had a significant impact on Mrs. Mayervich’s quality of life.  The myofascial injuries in particular continue to interfere with her activities of daily living and recreation and have impaired her ability to interact with her husband, her daughters, and her grandchildren. 
·                 Mrs. Mayervich has already experienced nearly 5½ years of physical pain, depression, emotional upheaval and cognitive difficulty as a result of the accident. 
·                 It is likely Mrs. Mayervich will experience real improvement if she undertakes a program such as that recommended by Dr. Posthuma; full recovery however is unlikely, and a real possibility remains that she will experience no significant recovery. 
[58]         In my view, these features bring Mrs. Mayervich’s situation closer to the cases cited by counsel by the plaintiff than those cited by counsel for the defendants.  The award of $125,000 approved by the Court of Appeal in the Rizzolo case was to a considerably younger man who had suffered debilitating chronic pain affecting all aspects of his life but who had been able to return to his pre-accident employment.  In Hsu, on the other hand, the most recent of the three cases relied on by the defence where the award was $30,000, the plaintiff suffered from chronic neck and back myofascial disorder but this was an aggravation of pre-existing soft tissue conditions from a previous accident that had already given rise to chronic pain. 
[59]         Each case must of course be decided upon its own facts.  Considering all of the facts discussed above, I assess Mrs. Mayervich’s non-pecuniary damages at $85,000.

Rule 15 Costs Cap Applied to Settlement of a Non-Rule 15 Claim

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Further to my previous posts on this topic (which can be found here and here), reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding that the Rule 15 costs cap can apply to a personal injury claim litigated outside of the fast track when a settlement below $100,000 is achieved.
In the recent case (Varga v. Shin) the Plaintiff was injured in a 2006 collision.  The plaintiff initially sought significant damages over $422,000 and the case was prosecuted in the usual course.  It was never put into the fast track rule.  Prior to trial the case settled for $65,000 plus costs “to be assessed or agreed“.  The parties could not agree on the costs consequences with the defendant arguing that the Rule 15 cap should apply.  Registrar Sainty agreed and in doing so provided the following reasons:
[27]         I prefer Ms Taylor’s submissions in relation to the application of the costs provisions of R. 15-1. In my view, this action, even though it was not declared to be a “fast track” action, is subject to the costs provisions of R. 15-1(15). I agree with Ms Taylor’s submissions that R. 15-1(1) is exclusive and not inclusive. In my opinion, if a matter settles for less than $100,000, R. 15-1(15) applies to the costs of the action. This is made clear, in my view, by the addition to the Rules of R. 14-1(1)(f). That subrule effectively fast tracks actions that were not fast tracked but should have been (see Axten, supra, and Affleck v. Palmer, 2011 BCSC 1366). The cases cited by Mr. Warnett (listed above) were all, in my view, decided per incuriam: without reference to either R. 15-1(1) or 14-1(1)(f) in relation to the issue of costs.
[28]         This interpretation is in keeping with the object of the Rules: “to secure the just, speedy and inexpensive determination of every proceeding on its merits” 
(R. 1-3(1)) and the proportionality provisions set out in R. 1-3(2).
[29]         Finally, I note that Mr. Warnett also suggested that, if the defendants wished the provisions of R. 15-1(15) to apply to the action, they ought to have applied to place it into fast track and as they did not do so, they should not be allowed to limit the plaintiff’s costs to the costs allowed under R. 15-1(15). This suggestion cuts both ways however. Just as it was open to the defendants to seek an order bringing the matter into fast track, it was also open to Mr. Warnett to seek an order (even at the trial management conference) that R. 15-1 not apply to the action. He did not do so and as the action is by operation of the Rules a fast track action, it attracts costs per R. 15-1(15).
[30]         As I have found that the action falls within the provisions of R. 15-1(15), thus the plaintiff is entitled to some proportion of the $6,500 “cap” available (see Duong v. Howarth, 2005 BCSC 128; and Anderson v. Routbard, 2007 BCCA 193 [Anderson]). In order to avoid a re-attendance before me (or some other registrar) to determine how much of that cap the plaintiff may claim, I am going to employ some “rough and ready justice” (see Anderson, at paragraph 49 and Cathcart v. Olson, 2009 BCSC 618 at paragraph 19) to this matter. I will set the amount at the full $6,500, plus tax. This matter settled some 15 days before trial. Likely a good deal of the trial preparation had occurred up to the settlement. It is therefore appropriate that the plaintiff receive the full amount of the cap: see Gill v. Widjaja, 2011 BCSC 951 (Registrar), aff’d 2011 BCSC 1822.

Double Costs Awarded Following Liability Trial With Formal Settlement Offer In Place

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, ICBC Liability (fault) Cases.


One issue that was unclear under the new BC Supreme Court Rules was weather a formal settlement offer could trigger costs consequences following a liability only trial with quantum of damages still outstanding.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, answering in no uncertain terms that this was possible.
In this week’s case (Pike v. Dandiwal) the Plaintiff was injured in a 2007 collision.  Liability was disputed.  A liability only trial was heard and ultimately the Defendant was found wholly at fault for the crash.  Prior to trial the Plaintiff issued a formal settlement offer addressing the liability issue.  The Defendant provided a global settlement offer with a specific quantum.  Having succeeded on the issue of liability the Plaintiff sought double costs.
The Defendant argued that “costs should not be determined until after the assessment of damages because if Mr. Pike does not beat the dollar amount of the defendants’ offer, he should be denied his costs not only in respect of that (second) trial but this trial in which he was successful.“.  In rejecting this submission the Court noted that “no caselaw has been provided in support of this submission“.  In awarding double costs Mr. Justice Walker provided the following reasons:
[38]         In my view, double costs should be awarded to Mr. Pike. I find it most troubling that defence counsel has not brought me any case law to support his submissions. We are now at 5:05 p.m. I am going to impose a stay on the operation of my judgment for costs for 48 hours to allow the defendants the opportunity to find case law that supports their position, because the last thing I wish to do is commit an error in law.
[39]         If the defendants find that case law and wish to seek to have me reconsider my decision, I will hear it, so long as I receive advice of that by next Wednesday at noon through Trial Scheduling. Otherwise, the order will stand that the defendants pay double costs to Mr. Pike.
The Court then confirmed this result in supplementary reasons once no case-law was produced with the following reasons:
[1]             In my oral Reasons for Judgment dated October 5, 2012, I awarded double costs to the plaintiff.  I allowed counsel for the defendants 48 hours to provide me with case law supportive of their costs submissions.  On October 11, 2012 counsel for the defendants advised me through Trial Scheduling that no case law was located.  Accordingly, the plaintiff is entitled to an award of double costs.

Cyclist Found 15% at fault For Collision While Riding in Cross-Walk

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 71 Comments on Cyclist Found 1571 at fault For Collision While Riding in Cross-Walk

In my continued efforts to document BC decisions addressing fault for vehicle/cyclist collisions, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing an crosswalk collision involving such an incident.
In last week’s case (Callahan v. Kim) the Defendant motorist stopped at an intersection on a red light.  He intended to make a right hand turn.  At the same time the Plaintiff cyclist approached on the sidewalk to the motorist’s right.   The Defendant failed to see the Plaintiff who entered the intersection on his bicycle as the Defendant commenced his right hand turn.  The Court found both to blame with the motorist shouldering 85% of the fault.  In coming to this decision Madam Justice Fenlon provided the following reasons:
[10]         As for Mr. Kim’s vehicle, I find that he stopped at the stop line on Riverwood Gate, intending to make a right turn north onto Coast Meridian. He looked quickly to his right and failed to notice the plaintiff who at that time was either at the pedestrian control button or approaching it. Thereafter, as Mr. Kim admitted, he was looking to his left and then ahead and did not check right again before moving into the crosswalk and colliding with Mr. Callahan…
[18]         In assessing whether Mr. Kim failed to meet his duty of care, a number of considerations come into play. First, Mr. Kim was proceeding against a red light. Second, Mr. Callahan was in a marked crosswalk with both a green light and a pedestrian walk sign in his favour. I find that, even though Mr. Kim acted within the law in making a right turn on a red light, he had a clear duty to give way to a user of the crosswalk. While Mr. Callahan contravened s. 183(2)(b) by not dismounting and walking his bicycle across the street as required by the Motor Vehicle Act, and therefore did not have the statutory right-of-way, he was nonetheless a user of the crosswalk. A crosswalk is precisely where other users of the roadway are expected to be, especially when the traffic signals are in their favour.
[19]         I conclude that Mr. Kim departed from the standard of care he owed in these circumstances when he failed to check again to his right before setting his vehicle in motion to start his right turn. Mr. Kim’s failure to do so was a direct cause of the accident…
[33]         In my view, the case before me is far more like Dobre. In that case, the plaintiff cyclist approached the intersection by riding on the wrong side of the street but stopped before entering the marked crosswalk, looked left and right and pushed the button to activate the pedestrian warning light. He was pedalling slowly across the intersection and was close to the centre of the road when the defendant’s car struck the rear wheel of his bicycle. As in the case at bar, the plaintiff in Dobre checked to his left and observed a car approaching but assumed it posed no hazard to him. In that case, N. Brown J. apportioned liability 85% to the driver and 15% to the cyclist.
[34]         I find Mr. Kim’s conduct in failing to observe the plaintiff in the crosswalk and in starting a turn without looking to his right to be far more blameworthy than Mr. Callahan’s failure to make eye contact. Taking into account all of the circumstances in the case before me, I conclude that liability should be apportioned 85% to Mr. Kim and 15% to Mr. Callahan.

Further BC Supreme Court Criticism of Late Plaintiff Testimony in Injury Litigation

Written by admin on . Posted in Civil Procedure. 58 Comments on Further BC Supreme Court Criticism of Late Plaintiff Testimony in Injury Litigation


Recently I highlighted judicial criticism of the practice of not calling the Plaintiff as the first witness in an injury trial.  You can click here to read Madam Justice Humphries previous criticism of this practice and here for the comments of Mr. Justice McEwan.
Last week further reasons for judgement were released addressing this practice.  In last week’s case (Gustafson v. Davis) the Plaintiff was injured in a motor vehicle collision.  Several witnesses took the stand before the plaintiff testified.  In criticizing this practice Madam Justice Humphires echoed her previous comments and provided the following feedback:
[112]  Ms. Bartholomew, Ms. Hunter, Mr. Sivertson, Mr. Gustafson, a teaching colleague, and Ms. Gustafson’s family practitioner, Dr. Verbonac, were called before Ms. Gustafson went into the witness box. Much of their evidence was hearsay and consisted of subjective complaints and accounts by Ms. Gustafson to them. As the court mentioned several times to counsel for Ms. Gustafson, it would have been helpful to hear her first, before the substance of her evidence was given second hand by other witnesses while she listened to it and to the issues that arose during cross-examination.
[113]  Aside from their recounting of things Ms. Gustafson had told them, these witnesses also had their own observations to make. While their observations of Ms. Gustafson are not hearsay, that evidence was given without the benefit of Ms. Gustafson’s presentation and her first hand testimony, and was difficult to put into a meaningful context, not having heard her testify.
[114]  Counsel has the responsibility to present his case as he sees fit and the court understands if obstacles are created by scheduling difficulties for expert and out of town witnesses, or other unavailability. However, from the point of view of a trier of fact, it is not only frustrating and even confusing to listen to evidence without a context, it can have an impact on the value of all of the evidence.
[115]  The practice of calling the plaintiff first is longstanding and is a common theme in advocacy texts for reasons that resonate with, and are often written by, trial judges. I refer, for example, to § 25.8 of Fraser, Horn & Griffin, The Conduct of Civil Litigation in British Columbia, 2nd ed. (Markham, Ont: Lexis Nexis Canada Inc., 2007):
Unsurprisingly, if a plaintiff is called as the first witness for his case, he tends to have more credibility than if he is called as the last witness, because of his opportunity, in the latter situation, to tailor his evidence to the evidence of the witnesses who have gone before him.
and to s. 8.20 of the British Columbia Civil Trial Handbook, 2nd ed. (Vancouver: The Continuing Legal Education Society ofBritish Columbia, 2005):
In many cases the plaintiff will be called first, such as in a non-catastrophic injury case or a family case. One reason for this choice is that the decision­maker usually wants to see the plaintiff to get a sense of the case, and may pay less attention to other witnesses if impatiently awaiting the plaintiff.
and to Donald S. Ferguson, ed., Ontario Courtroom Procedure (Markham, Ont.: Lexis Nexis Canada Inc., 2007) at p. 815:
It is common for counsel to call their party as their first witness to avoid any submission that the party may have tailored his or her testimony to that of other witnesses.
[116]   If persuasion is the objective, and if it rests largely on the credibility of the plaintiff, counsel might give consideration to the practical and sensible course suggested by experience and this common sense advice.
Given the preference of some injury lawyers to follow this practice the Trial Lawyers Association of BC sent a request to Chief Justice Bauman asking if this was a ‘wide-spread concern‘ for trial judges and if so invited the Chief Justice to a professional development seminar to discuss the concern.   Mr. Justice Bauman responded “I have not heard it suggested that this is a matter of general concern among trial judges on this Court…I do not believe a general discussion of the issue at this time is warranted but I thank you for bringing the issue to my attention”.
I am happy to provide a copy of Mr. Justice Bauman’s letter  to anyone who contacts me and requests one.

$80,000 Non-Pecuniary Assessment for Aggravation of Pre-Existing Thoracic Outlet Syndrome

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases.


Adding this this site’s archived cases addressing non-pecuniary damages for thoracic outlet syndrome, reasons for judgement were released last month addressing such an injury.
In last month’s case (Rollheiser v. Rollheiser) the Plaintiff was injured in a 2008 collision.  She suffered from long-standing Thoracic Outlet Syndrome.  The crash caused an aggravation of this condition with the Court accepting the following medical evidence:
[24]         Dr. Flaschner, a specialist in physical medicine and rehabilitation, also provided a report, dated February 2, 2012. Dr. Flaschner initially saw Ms. Rollheiser on December 2, 2009. His diagnosis included exacerbation of pre-existing TOS and musculoligamentous injuries to the cervical and thoracic spine. He states:
Ms. Rollheiser has subsequently been seen on numerous occasions for symptomatic management. She has undergone various trials of medications, local anesthetic trigger point injections botulinum toxin injections and has also been receiving regular IMS therapy from her physical therapist. Her pain has evolved as well and the current diagnoses secondary to the motor vehicle collision would include:
1.   Thoracic outlet syndrome, exacerbation of pre-existing injury.
2.   Cervical WAD II injury with chronic regional myofascial pain syndrome.
3.   Thoracic musculoligamentous injury with chronic regional myofascial pain syndrome.
[25]         Dr. Flaschner considers that Ms. Rollheiser’s symptoms will continue indefinitely.
[26]         Dr. Flaschner’s report continues:
Further symptomatic management options for the chronic regional myofascial pain syndrome would include regular physical activity from a cardiovascular perspective as well as stretching and strengthening of the painful musculature, ensuring adequate restorative sleep, various manual therapies, medications as well as needle based therapies including acupuncture, IMS, local anesthetic  trigger point injections, botulinum toxin injections or potentially fluoroscopically guided facet based procedures. It should be noted that the treatments will be expected to provide some temporary relief and would not be expected to be curative.
In assessing non-pecuniary damages at $80,000 Madam Justice Gropper provided the following reasons:
[35]         In sum, Ms. Rollheiser’s injuries have reduced her enjoyment of life. There has been impairment of family, marital and social relationships as well as physical abilities.
[36]         As noted, the case authorities provide guidance only; no two cases are exactly alike.
[37]         I agree with the defendant that not all of Ms. Rollheiser’s symptoms are attributable to the accident. It appears that some of the plaintiff’s limitations are due to the rotator cuff as opposed to injuries from the accident.
[38]         Of the authorities provided, I find Kaleta v. MacDougall, 2011 BCSC 1259 (Kaleta) to be most instructive. Justice Truscott awarded a 28 year-old male plaintiff non-pecuniary damages of $80,000 for soft tissue injuries to the knee, back, arm, shoulder and neck. Like Ms. Rollheiser, Mr. Kaleta only missed a brief period from work, although he found it to be more difficult to resume work upon his return. Again, like Ms. Rollheiser, his moderate ongoing pain was probably chronic.
[39]         Accordingly, I assess Ms. Rollheiser’s non-pecuniary damages at $80,000.

"Fat Bottomed Girls": When Free Speech and Alleged Witness 'Victimization' Collide in the BC Supreme Court

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This is a little off topic but thought this may be of interest for my readers.
Trials are a matter of public record and Canada’s open-court principle can sometimes create legitimate privacy concerns for litigants.  The BC Supreme Court published reasons for judgement today addressing such a concern.
In today’s case (Mainstream Canada v. Staniford) a blog entry was posted during a trial referring to two witnesses who testified that “It is not clear if they both cycled to the courtroom – but there were echoes of Queen’s classic 1978 hit “Fat-Bottomed Girls” playing as they both took the stand.”
The Plaintiff’s lawyer brought an application for a direction that the Defendant “refrain from making postings referring to witnesses in any derogatory or disparaging fashion that may have the effect of victimizing a witness or witnesses who are testifying, or may have testified, at this trial.”  Madam Justice Adair refused to make such an order but in doing so provided the following reminder to the litigants:
[7]             I am going to quote from Lord Denning’s judgment in the case of Attorney-General v. Butterworth, [1962] 3 All E.R. 326 (C.A.).  This is a decision of the English Court of Appeal.  It is from 1962.  But in my view it is still well worth quoting, and well worth reminding counsel, parties and those present in this courtroom, concerning issues relating to the administration of justice and the appropriate and fair treatment of witnesses who come forward, often under the compulsion of a subpoena, to give evidence and perform their civic duty in a trial.
[8]             Lord Denning says (in the context of ruling on an application that individuals be found in contempt of court), at p. 329:
For there can be no greater contempt than to intimidate a witness before he gives his evidence or to victimize him afterwards for having given it.  How can we expect a witness to give his evidence freely and frankly, as he ought to do, if he is liable, as soon as the case is over, to be punished for it by those who dislike the evidence he had given?  After he has honestly given his evidence, is he to be liable to be dismissed from his office, or to be sent to Coventry [a reference that perhaps had more resonance in 1962 than it does now, but essentially meaning banished or punished] simply because of that evidence which he has given?  I decline to believe that the law of England permits him to be so treated.  If this sort of thing could be done in a single case with impunity, the news of it would soon get round.  Witnesses in other cases would be unwilling to come forward to give evidence, or, if they did come forward, they would hesitate to speak the truth, for fear of the consequences.
[9]             Further down at p. 329, Lord Denning says:
I have no hesitation in declaring that the victimization of a witness is a contempt of court whether it be done whilst the proceedings are still pending or after they have finished.
[10]         In my view, it is clear from Lord Denning’s remarks that the court takes the intimidation or the victimization of a witness extremely seriously and is willing to use its contempt powers to punish that conduct.
[11]         Having said that, in the light of the submissions made by Mr. Sutherland concerning the live issues in this case relating to the conduct of Mr. Staniford – his conduct of the case inside and outside the court – I am not going to give the direction sought by Mr. Wotherspoon.  However, my expectation is that the parties and those present in this courtroom will take very seriously Lord Denning’s comments which I have read out and which I adopt.
 

"Silence Does Not Mean Consent" – Examination for Discovery Caselaw Update

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure, Uncategorized. 157 Comments on "Silence Does Not Mean Consent" – Examination for Discovery Caselaw Update


 
Adding to this site’s archived caselaw addressing examination for discovery, useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, making the following points:
1. silence (or even agreement) to a discovery request does not compel a party to comply with it
2. the court has no power to order that answers to questions outstadning at an examination for discovery be put in writing
3.  the narrower scope for document production requirements is not circumvented simply by asking for production of documents at an examination for discovery
In this week’s case (LaPrarie Crane (Alberta) Ltd. v. Triton Projects Inc.)Master Bouck provided the following reasons addressing these points:
[32]         As for the outstanding requests from the examinations, Triton submits that  when there is no objection to production on the record — or indeed, where a positive response from the examinee is made — such requests must be answered : Winkler v. Lower Mainland Publishing Ltd., 2002 BCSC 40 at para. 17. In other words, the party being examined is not able to reflect upon requests unless counsel states on the record that the request will be taken under advisement or an objection is raised. Nor can a party have a change of mind upon reflection, or upon taking legal advice.
[33]         The principle that a party should not be permitted to subsequently revoke agreements made at an examination for discovery is laudable. However, silence does not mean consent: Gellen v. British Columbia (Public Guardian and Trustee of), 2005 BCSC 1615 at para. 17 (S.C.). Furthermore, it is difficult to see how the principle enunciated in Winkler can be applied after the introduction of time limited examinations for discovery: Rule 7-2 (2).
[34]         If counsel is expected to pause and consider the relevancy of every question asked of the witness, the time allotted for a party’s examination might well be consumed by objections, interventions and even argument. In recent decisions, the court has strongly discourage such intervention at examinations for discovery: see More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166 at para. 13 foll’g Kendall v. Sun Life Assurance Co. of Canada, 2010 BCSC 1556 at para. 18. Given this change in procedure, I decline to follow Winkler.
[35]         If a person declines to provide the additional information requested, the examining party is not without a remedy: Rules 7-2 (22)-(24). This appears to be the remedy pursued on this application. Nonetheless, the court has no power to order that answers to questions outstanding at an examination for discovery be put in writing: Diachem Industries Ltd. v. Buckman (1994), 91 B.C.L.R. (2D) 312 at p. 314 (S.C.) [my emphasis].
[36]         Finally, it is acknowledged that under the SCCR, the duty to answer questions at an examination is broader than the duty to produce documents: More Marine Ltd. v. Shearwater Marine Ltd., supra, at para. 7. However, a party does not get around the application of Kaladjian v. Jose principles by asking for the documents at these examinations: Maxam Opportunities Fund (International) Ltd. Partnership v. 893353 Alberta Inc., 2012 BCSC 553.