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Catastrophically Injured Infant Ordered to Pay Public Trustee $79,000 in legal fees for legal fee review

Written by admin on . Posted in BC Supreme Court Costs Cases. 103 Comments on Catastrophically Injured Infant Ordered to Pay Public Trustee $79,000 in legal fees for legal fee review

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, discussing the circumstances when BC’s Public Guardian and Trustee can recover legal fees for their involvement in the scrutiny of the settlement of an injury claim involving an infant.
In this week’s case (E.B. v. Basi) the infant plaintiff was catastrophically injured while in foster care during an alleged intentional ”shaken baby” assault.  The incident led to profound lifelong disability requiring a lifetime of care needs.  A $13,000,000 settlement was ultimately reached and judicially approved.   The lawfirm involved sought contingency fess of over $3,000,000.  The Public Trustee, who was required by statute to weigh in on the matter, intervened and submitted that fees of $2,000,o00 were appropriate .  Ultimately the Court approved fees of $2.4 million.
The Public trustee incurred legal fees of over $79,000 in the process of intervening in the fee approval process.  They sought, pursuant to Section 10 of the Infants Act, to recover this from the infant’s lawyers or, in the alternative, from the infant’s estate.  Mr. Jutice Macaulay held that while the Public Trustee’s legal fees were “clearly high” they were ultimately reasonable.
The Court went on to hold that while section 10 of the Infants Act would technically allow for these fees to be payable from the Infants lawyers, absent ‘reprehensible conduct‘ by the lawfirm such an order would be inappropriate   The Court held that the infant’s estate was liable to pay the Public Trustee’s costs.  In finding that the fees should not be levied against the Plaintiff’s counsel the Court provided the following reasons:
[21]         I now turn to whether the Firm can be held partially responsible for this sum. As was noted earlier, indemnification of the PGT is governed by s. 10 of the Infants Act, which allows the court to direct that the PGT’s costs be paid out of either the estate of the infant or by “any other person who is a party to the proceeding.”
[22]         On its face, s. 10 does not appear to contemplate that the infant’s lawyer could be responsible for the PGT’s costs. However, returning to the analysis in Harrington, the Firm is properly characterized as a party in this proceeding. In Harrington, the Court of Appeal awarded special costs against the lawyer on the basis of that determination. The logical conclusion is that I have jurisdiction to make an award of ordinary costs against the Firm, although I am not aware of the court ever making such an award.
[23]         This case differs from Harrington in that there are no grounds here for an award of special costs. The Firm did not engage in reprehensible conduct deserving of rebuke (Garcia v. Crestbrook Forest Industries Ltd. (1994), 119 D.L.R. (4th) 740). In my view, the Firm took a position on time spent that was unreasonable, but I would not characterize it as reprehensible based on the continuum of behaviour discussed in Garcia and other cases. As such, the only remaining possibility is that the Firm be liable for an award of ordinary costs.
[24]         I have already discussed the potential dangers of shoehorning the traditional analysis for an award of costs to the present proceeding. I am not convinced that there is any “successful” party with regard to fee approval.
[25]         The process mandated by the Infants Act is intended to ensure that the amount of the fee is in the infant’s best interests. The PGT, on behalf of the infant, does not take an adversarial role against the infant’s lawyer. The Firm has an obvious self-interest in the outcome but is not opposing the best interests of the infant.
[26]         Absent any basis to award special costs, I decline to award costs against the Firm.

Non-Pecuniary Assessments for Athletically Active Individuals Discussed

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.


A common focus when assessing non-pecuniary damages deals with looking at recreational activities and how they have been curtailed as a result of physical injuries.  Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, addressing this in the context of lingering soft tissue injuries.
In last week’s case (Travelbea v. Henrie) the Plaintiff was injured in a 2008 collision.   Fault was admitted by the Defendant focussing the case on an assessment of damages.   The court found that the Plaintiff suffered a “mild to moderate soft tissue injury to her neck and upper back“.  Her symptoms remained “painful and limiting” at the time of trial and while there was room for further improvement the Court was satisfied that there would still be “residual pain and limitations“.
Prior to the crash the Plaintiff was very fit regularly training for and participating in endurance events.  The injuries had a “significant effect..(on the Plaintiff’s) reasonably demanding athletic endeavours“.  In assessing non-pecuniary damages at $50,000 Mr. Justice Barrow provided the following reasons addressing this loss:
[36]         From the foregoing I conclude the following. The plaintiff sustained a mild to moderate soft tissue injury to her neck and upper back. Now, some four years after the accident, it remains painful and limiting. I think it more likely than not that if she commits to the focused stretching that Dr. Laidlow recommended she will increase her level of functioning. I think it more likely than not that if she takes the course of medication, whether nortriptyline or Celebrex, that Dr. Travlos recommended, she will experience an even greater improvement in her functionality. She will, however, be left with residual pain and limitations. I think it unlikely she will ever be able to ride a road bicycle for any appreciable period of time. As a result both that training and triathlon racing will remain beyond her ability. She may be able to ride a bicycle that can be operated in a more upright posture. I think it more likely than not that she will be able to swim and run, albeit not at the level or for the distance she did previously. I think it also likely that with this improvement in function she will recover some of her self confidence and some of the depression which seems to have settled over her will lift.
[37]         Ms. Travelbea’s injuries have affected her much more significantly than they would someone whose life did not revolve around the kinds of athletic endeavours she and her husband enjoy. Ms. Travelbea enjoyed training and did it four, five or six days a week. She enjoyed training as much or more than competing. It was in the midst of athletic pursuits that she met her husband. Training was a significant part of their relationship. They trained together and often raced together. It was the focus of much of their social activity. Her ability to train and the level of fitness she was able to sustain as a result was an important aspect of her sense of self worth…
[54]         Taking all of the foregoing into account, and having regard to the non-exhaustive list of factors set out at paragraph 46 in Stapley v. Hejslet, I consider that an award of $50,000 is appropriate in this case. Included in this amount is $3,000 which I have determined is the appropriate compensation for the plaintiff’s lost capacity to perform housekeeping tasks.

New Brunswick Court of Appeal Finds Interest on Disbursements Recoverable in Injury Litigation

Written by admin on . Posted in Uncategorized. 50 Comments on New Brunswick Court of Appeal Finds Interest on Disbursements Recoverable in Injury Litigation


I have previously discussed the uncertainty about whether interest on disbursements is a recoverable item in the prosecution of BC personal injury claims.  I understand the BC Court of Appeal will have the opportunity to canvass this issue in the upcoming months in an appeal of the competing Chandi and McKenzie decisions.
In New Brunswick, fortunately, the law has just been clarified with the Court of Appeal of New Brunswick addressing the issue head on in reasons for judgement released last week.  In short the Court held that interest on disbursements could in fact be recovered.
In last week’s case (LeBlanc v. Doucet) the Plaintiff was injured in a motorcycle collision.  He could not finance his lawsuit for damages and approached a lender who provided over $26,000 in disbursement financing.  By the time of resolution the interest on the loans topped $14,000.  The New Brunswick Court of Appeal held that interest could be a recoverable item.  In reaching this conclusion the Court provided the following reasons:
   The appellant, Francis LeBlanc, lacked the means to finance his action in damages against the respondents. His impecuniosity compelled him to take out loans from an independent third party to cover litigation expenses, all for the purpose of securing access to justice. While no provision of the Rules of Court expressly allows interest on such loans as a “disbursement”, sub-para. 2(14) of Tariff “D” of Rule 59 fills the gap. It suffices that those loans were “necessarily incurred” to secure the just determination of the proceeding and that the interest rates were “reasonable”. The evidence shows that these conditions were met in the present case. Accordingly, the clerk was duty bound to allow, as a disbursement, the interest ($12,665.41) on the loans required to cover the other disbursements he had approved. In short, these are the reasons that caused me to join my colleagues in reversing the decision of the judge of the Court of Queen’s Bench, sitting on appeal, which upheld the clerk’s rejection of Mr. LeBlanc’s interest reimbursement claim.
While this judgement is not binding in BC it certainly may be influential when the BC Court of Appeal addresses the issue.

Permitting Late Expert Evidence in the Interests of Justice a Remedy to be Used "Sparingly"

Written by admin on . Posted in BCSC Civil Rule 11, Civil Procedure. 112 Comments on Permitting Late Expert Evidence in the Interests of Justice a Remedy to be Used "Sparingly"

Rule 11-7(6) discusses the circumstances when the BC Supreme Court can allow expert evidence to be introduced at trial which does not otherwise comply with the Rules of Court.  Reasons for judgement were released last week addressing this section.  In short the Court held that allowing non-compliant expert evidence to be introduced in the interests of justice is a discretion that “must be exercised sparingly, with appropriate caution, and in a disciplined way“.
In the recent case (Perry v. Vargas) the Plaintiff was injured in a collision.  On the last business day before trial the Plaintiff served a ‘supplementary report’ from her expert which bolstered the experts previous views, clarified statements made in the previous report, and lastly critiqued the defence medico-legal report.s
The Plaintiff argued the late report ought to be admitted as a ‘supplementary report’ pursuant to Rule 11-6(6) or in the alternative the Court should exercise its discretion to allow the non-compliant report in through Rule 11-7(6).  Mr. Justice Savage rejected both of these arguments and in doing so provided the following reasons:
[9]             Rules 11-6(6) (a party’s own expert) and 11-6(5) (a jointly appointed expert) are cognate provisions designed to deal with circumstances where an expert’s opinion “changes in a material way”. Rule 11-6(6) contains an election. In the case of one’s own expert, a party must determine whether it still seeks to rely on the expert report notwithstanding the material change. If it does so, the party must promptly serve a supplementary report.
[10]         Rule 11-6(6) was not intended to allow experts to add either fresh opinions or bolster reasons upon reviewing for the first time or further reviewing material under the guise of there being a material change in their opinion. To provide otherwise would surely defeat the purpose of the notice provisions contained in Rules 11-6(3) and 11-6(4) and the requirement of R. 11-7(1)…
[18]         Rule 11-7(6)(b) focuses on whether there is prejudice to the party against whom the evidence is sought to be tendered. Of course there are cases where reports are delivered a few days late where there is no prejudice. This is not such a case. Delivering a new expert report without any notice well outside of business hours on a Friday evening before a trial commencing Monday morning places the opposing party in obvious difficulties. In my view there is some prejudice to the defendants given the untimely delivery of the Late Report.
[19]         More generally, delivering expert reports on the eve of trial is antithetical to the purpose of the Rules regarding expert reports, which seek to ensure the parties have reasonable notice of expert opinions. Compliance with the Rules allows considered review of the expert opinions, the obtaining of important advice, and possible response reports. Under the former Rules, in Watchel v. Toby, [1997] B.C.J. No. 3150, 33 M.V.R. (3d) 115, Kirkpatrick J., as she then was, excluded in its entirety a late report delivered 12 days before trial where there was insufficient time to obtain any opinion evidence to answer the report.
[20]         Rule 11-7(6)(c) allows the court to admit expert evidence in the interests of justice. It is a separate provision so it can apply in circumstances where the relaxing provisions of Rules 11-7(6)(a) and (b) are not met. Effectively, it provides that the court retains a residual discretion to dispense with the other requirements of R. 11.
[21]         Context here is all important. This is the second scheduled trial. There was a trial management conference with comprehensive trial briefs prepared by both counsel.
[22]         In my view the discretion provided for in R.11-7(6)(c) must be exercised sparingly, with appropriate caution, and in a disciplined way given the express requirements contained in Rules 11-6 and 11-7. That is, the “interests of justice” are not a reason to simply excuse or ignore the requirements of the other Rules. There must be some compelling analysis why the interests of justice require in a particular case the extraordinary step of abrogating the other requirements of the Supreme Court Civil Rules. None was provided.
[23]         In the circumstances, the Late Report is not admissible.

Practice Tip From the Bench: Don't Unilaterally Schedule Hearing Dates

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While it is possible for litigants to unilaterally schedule matters under the BC Supreme Court Rules, such a practice is discourteous and not warmly received by the judiciary.  Earlier this year I highlighted judicial criticism of a unilaterally scheduled examination for discovery.  I have recently been provided with unreported reasons for judgement criticising this practice in the context of a scheduled summary trial.
In the recent case (Lumley v. Balilo) the Plaintiff was injured in a motor vehicle collision.  Prior to trial the Defendant scheduled a summary trial application with a unilaterally selected date.  The Plaintiff objected to this practice and further to the merits of the attempt to dispose of the claim summarily.  The Court ultimately dismissed the application on the merits but prior to doing so Madam Justice Dillon provided the following practice advice to counsel considering unilaterally set dates:
[14]  …I consider that the date was unilaterally set, it being the focus of this court under the new rules to encourage direct discussion between counsel with respect to such matters as setting dates and other things so that it does not come for argument as it has today before this court.  So that is a practice point to bring to the attention of counsel, which is certainly not determinative of my disposition of the matter today but as a matter of practice counsel should discuss between themselves available dates.
To my knowledge this recent case is not publicly available but as always I am happy to provide a copy to anyone who contacts me and requests one.

Plaintiff Stripped of Significant Costs and Disbursements for Pursuing "Inflated, Exaggerated or Unrealistic" Claims

Written by admin on . Posted in Uncategorized. 62 Comments on Plaintiff Stripped of Significant Costs and Disbursements for Pursuing "Inflated, Exaggerated or Unrealistic" Claims


(Update January 16,2013 – the Court of Appeal granted leave to appeal the below costs award.  Once the final decision is released I will further update this post).
(Update December 10, 2013 – today the BC Court of Appeal dismissed the appeal of the below decision)
I have spent much time highlighting costs consequences plaintiff’s face under BC’s loser pays system and perhaps even more time discussing the further costs consequences that can flow from failing to beat a defence formal settlement offer at trial.
A less judicially considered area of the law relates to costs consequences where a plaintiff is awarded damages at trial far below the recovery sought where no defence formal settlement offer was in place.  The starting point in such cases is that a Plaintiff is generally entitled to costs provided the awarded damages exceed $25,000.  The court retains a discretion, however, to move away from this default position in “relatively rare cases”.  Such a result was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Lee v. Jarvie) the Plaintiff was involved in a rear-end collision in 2004.  Fault for the crash was admitted.  At trial the Plaintiff sought substantial damages in the range of $800,000.  Much of the Plaintiff’s claim was rejected at trial but damages of just over $50,000 were assessed.
The Defendant apparently did not provide a pre-trial formal settlement offer.  As a result the default position of Rule 14-1(9) was triggered with the Plaintiff presumably being entitled to costs.  The Defendant argued that the Defendant was largely the victor at trial, at least insofar as the most substantial alleged damages were concerned, and that the Court should exercise its discretion to apportion costs pursuant to Rule 14-1(15).  Mr. Justice Gaul agreed it was appropriate to do so and stripped the Plaintiff of significant costs and disbursements.  In doing so the Court provided the following reasons:
[12]         The issues of apportioning costs between parties under Rule 57(15) of the former Rules of Court was addressed and considered in  British Columbia v. Worthington (Canada) Inc. et al(1988), 32 C.P.C. (2d) 166, 29 B.C.L.R. (2d) 145 (C.A) and more recently in Sutherland v. Canada (Attorney General), 2008 BCCA 27. From these cases, I have drawn the following guiding principles relating to the apportionment of costs:
1)    Applications to apportion costs should be the exception and not the norm in civil litigation, and they should be limited to “relatively rare cases”.
2)    The power to apportion costs is a discretionary one that “must be exercised judicially, not arbitrarily or capriciously”.
3)    The exercise of discretion must be connected to circumstances of the particular case “which render it manifestly fair and just to apportion costs”.
[13]         In addition to these principles, I am also guided by the test Finch, C.J.B.C. articulated in Sutherland at para. 31:
[31]      The test for the apportionment of costs under Rule 57(15) can be set out as follows:
            (1)        the party seeking apportionment must establish that there are separate and discrete issues upon which the ultimately unsuccessful party succeeded at trial;
            (2)        there must be a basis on which the trial judge can identify the time attributable to the trial of these separate issues;
            (3)        it must be shown that apportionment would effect a just result…
[38]         The apparent divergence of judicial approaches to the question of apportioning costs in personal injury cases appears to hinge on the determination of the degree of success the plaintiff enjoyed at trial and whether the trial was unnecessarily prolonged by the pursuit of inflated or unrealistic claims. Where the court finds the plaintiff was substantially successful at trial and there was no pursuit of exaggerated claims, then apportionment of costs will less likely be granted. However, where the court determines there was divided success, or finds there was a distinguishable portion of the plaintiff’s claim that was unrealistically pursued resulting in a more protracted proceeding, then subject to the guiding principles articulated in Worthington and Sutherland, apportionment of costs is a legitimate consideration…
[82]         In my opinion, the particular circumstances of this case permit the court to consider the plaintiff’s claims for loss of past opportunity to earn income, loss of future earning capacity and cost of future care as separate and discrete issues. Moreover, there is a clear basis upon which to calculate the amount of trial time, including argument, that was devoted to these issues. Finally, apportionment of costs would, given the divided success at trial and the plaintiff’s pursuit of inflated, exaggerated or unrealistic claims, affect a just result between the parties. I therefore find the case at bar falls into that category of “relatively rare cases” where apportionment of costs is appropriate.
[83]         What was to have been, and in my respectful view should have been, a 5?day trial, practically tripled in length, and much of that is attributable to the plaintiff and the nature of the evidence he led at trial. I rejected a significant portion of the plaintiff’s testimony. He was a poor historian of the facts and was at times deliberately evasive in answering questions. As I noted at para. 46 of my Reasons for Judgment, but for the detailed and probing cross-examination of the plaintiff, “…the court would have been left with an inaccurate impression and understanding of Mr. Lee’s situation and condition.” There were also significant deficiencies in the evidence of the plaintiff’s expert witnesses, Mr. Worthington-White, Ms. Quastel, Mr. Benning, Dr. Lee, Dr. Kokan and Dr. Hershler that only came to light during the course of extensive cross-examination.
[84]         The facts in the case at bar, as they relate to costs are, in my view, similar to those found in Bailey, Plackova, Berston, Shearsmith and Heppner, in that an inordinate and unreasonable amount of trial time was consumed by the plaintiff’s pursuit of exaggerated claims that were eventually rejected. The length of the trial was also made more difficult and prolonged as a result of the plaintiff’s credibility issues and his failure to fully and frankly disclose relevant information to his medical experts.

Advance Payment Orders and Adjournment Applications

Written by admin on . Posted in BCSC Civil Rule 13, Uncategorized. 52 Comments on Advance Payment Orders and Adjournment Applications

In 2009 the BC Court of Appeal made it clear that the BC Supreme Court has no authority to make a stand-alone order for an advance payment of damages and any advance payment order must piggy-back another order relying on Rule 13-1(19).
When faced with an order adjourning an injury trial where liability is admitted that is a good time to seek an advance payment order.  If, for whatever reason such an order cannot be spoken to at the time of adjournment, it is a good practice to seek leave that as part of the adjournment a plaintiff has permission to bring an advance payment application at a later time.  Such a practice was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Estey v. Bateson) the Plaintiff was injured in a 2008 collision.  The matter was set down for trial but was ultimately adjourned.  At the time the Plaintiff had the foresight to seek an order granting leave to apply for an advance as a term of the adjournment     Ultimately a $15,000 advance was ordered and the Court provided the following summary of the legal principles to be considered:
1]             The plaintiff applies for an advance of $35,000 on his claim for damages relating to a motor vehicle accident which occurred on August 16, 2008 and for costs thrown away as a result of the adjournment.
[2]             Liability has been admitted and the trial, which was set to commence on February 13, 2012 for 10 days, was adjourned on that date by Fitzpatrick J.; at the time of the adjournment leave was granted to the plaintiff to apply for an advance and for costs thrown away…
[5]             Master Keighley considered the issue of the jurisdiction to order an advance other than as a term of an adjournment in the case of Cikojevic v. Timm, 2007 BCSC 1689 and found that such jurisdiction does exist. In addition, I rely upon the order of Fitzpatrick J. which expressly granted the plaintiff liberty to make such application in this particular case.
[6]             The court has a discretionary authority to order that an advance be paid but such order should only be made in special circumstances and only if the judge or master is satisfied that there is no possibility that the ultimate award of damages will be less than the amount of the advance: see Serban v. Casselman, [1995] B.C.J. No. 254 (B.C.C.A.) and Cikojevic v. Timm, 2008 BCSC 74. Two of the considerations which the court must address are the length of time which will pass until trial and whether the delay will cause the plaintiff financial hardship: see O’Ruairc v. Pelletier, 2002 BCSC 1107 and Cikojevic.

Post Crash Alcoholism Claim Dismissed at Trial

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Last year I highlighted a claim which successfully advanced damages for alcoholism which developed following motor vehicle collision related injuries.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering a similar claim which was rejected at trial.
In this week’s case (Dennis v. Fothergill) the Plaintiff was injured in a 2007 rear-end collision.   She alleged that the injuries resulted in chronic pain which led to post collision alcoholism.  Madam Justice Bruce noted “serious reservations about the credibility of the plaintiff’s evidence overall” and dismissed the claim for post collision alcoholism.  In doing so the Court provided the following reasons:
87]         Turning to the superimposed illnesses of depression and alcoholism, I find there is insufficient, cogent evidence to establish a causal connection between these illnesses and the accident. While there is evidence that people who suffer from chronic pain can develop depression and alcohol dependence in response to the pain experience, there is a lack of evidence to establish a causal connection on the facts of this case. The plaintiff did not raise any concerns about her mood or her alcohol dependence with her physicians until December 2009 during an unrelated consultation with Dr. Zentner when asked about alcohol consumption and in December 2010, when she reported symptoms of depression to Dr. Swope. Thus there is a significant time gap.
[88]         Further, the only evidence of when and how the plaintiff began drinking to mask the pain subsequent to the accident is the plaintiff’s testimony, which is significantly inconsistent. The plaintiff’s disclosure to Dr. Zentner in December 2009 that recently her consumption of alcohol had increased to two or three glasses per day is not consistent with her testimony that since the accident she was consuming the same amount or more each night. The plaintiff’s testimony regarding the motivation for drinking is also inconsistent with her description of her past history with alcohol and her pre-accident injuries. The plaintiff testified that growing up with an alcoholic stepfather taught her to fear alcoholism and steeled her against becoming alcohol dependent as an adult. Prior to the accident she rarely drank and often abstained entirely. This positive attitude toward a healthy lifestyle and aversion to alcohol generally is quite inconsistent with a decision to immediately resort to drinking to lessen pain and improve sleep after the accident. Surely it would have taken some considerable time to break down a resolve to abstain from alcohol consumption that had sustained the plaintiff until she was 42 years old. The plaintiff’s description of how the drinking began is also inconsistent with a failure to develop alcohol dependence when faced with a similar history of chronic pain in her neck, shoulders and back prior to the accident. Lastly, the plaintiff’s evidence that she immediately began drinking alcohol for pain reduction after the accident is inconsistent with the fact that her neck pain was actually improving in early October 2007, just a few days after the accident.
[89]         I am also satisfied that there were many other stressors in the plaintiff’s life, apart from the injuries related to the accident, that are far more likely to be connected with her depression and alcoholism. The plaintiff had difficulties in her workplace; she left the Bee Hive because of disputes with clients that threatened the salon’s business. Had she not left voluntarily, Ms. White would have terminated her arrangement with the plaintiff. The plaintiff had significant financial problems. Her condominium leaked and she needed to raise $65,000 to pay for her share of the repairs. There was also an ongoing dispute with Visa over a $6,000 debt that led to a protracted lawsuit. She was behind on her mortgage, strata fees and income tax. It is significant that during the counselling sessions the plaintiff attended in 2011 and 2012, the subject of the accident never came up and pain was mentioned only once in the context of the plaintiff’s decision to go back to yoga for pain management. It was alcohol, relationships and financial problems that arose before the accident or were unrelated to the accident that formed the basis of her discussions with the counsellor. In addition, the plaintiff had a prior bout of depression in 2004 and 2005 that stemmed from financial worries and the troubling Visa lawsuit. She also had a significant family history of depression that created a risk for developing this illness.
[90]         While I find the evidence of Dr. Lu establishes that the plaintiff currently suffers from depression and alcoholism, I am unable to conclude on a balance of probabilities that these illnesses have a causal connection to the accident or to the injuries caused by the accident. Dr. Lu’s opinions about the causal connection to the accident are highly dependent upon the veracity of the plaintiff’s description of her chronic pain and its origins. As described above, the plaintiff has been dishonest with her physicians and has provided inconsistent evidence at trial. I found she was not a credible witness. Her explanations for these inconsistencies were neither candid nor reasonable. Dr. Lu agreed that alcoholics do not tell the truth about their drinking and try to appear functional when they are not. He testified that an alcoholic’s ability to work is the last to go. Thus the failure to call any corroborating witnesses outside of the workplace to describe the plaintiff’s drinking habits before the accident is a significant omission. I accept that the plaintiff may have lost contact with friends since the accident; however, this fact does not explain why she could not approach one of them to testify on her behalf about her pre-accident health and lifestyle. In all of the circumstances, it would be unsafe to accept the plaintiff’s description of her alcohol consumption as accurate either before or after the accident without some corroborating evidence. None of the collateral witnesses had any real knowledge of the plaintiff’s drinking habits because they did not socialize with her outside of the workplace. They could only say that she did not appear to come to work hung over. Ms. Hicks had no direct contact with her daughter until four years after the accident.
[91]         Accordingly, for these reasons I find that the plaintiff has failed to prove on a balance of probabilities that her current alcoholism and depression is causally related to the accident…

ICBC Denied Liability Withdrawal Following Examination for Discovery

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.

Reasons for judgement were recently shared with me by my colleague in Nanaimo addressing ICBC’s attempt to withdraw a formal admission of liability following examinations for discovery.
In the recent case (Smith v. Smith) the Plaintiff was injured while riding as a passenger in a vehicle involved in a 2008 roll-over collision.  ICBC initially took the position that the driver of this vehicle was negligent and responsible for the crash.  In the course of the lawsuit ICBC continued with this position and formally admitted liability.
Both the Plaintiff and Defendant were examined for discovery.  During these examinations evidence was adduced which made ICBC’s lawyer wish to raise the ‘inevitable accident‘ defence.  ICBC sought to withdraw their admission of liability arguing that ‘new information’ came to light through the discovery process.  Mr. Justice Greyell disagreed finding that the ‘new information’ was nothing more than the Defendant’s account of the collision and was available to ICBC all along.  In dismissing ICBC’s request for amended pleadings the Court provided the following reasons:
[28]  The evidence which was elicited at the examinations for discovery of the plaintiff and the defendant on February 21, 2012 was clearly available to ICBC had the adjuster chosen to request it.  There are, to use the words of Rholing at para. 18, no new facts which have come to the attention of the defendants which were not available when the admission was made.
[29]  What appears to have happened in this case is similar to what occurred in Boyd: counsel took a different view of the facts than did the adjuster when the matter was considered shortly after the accident.
[30]  Third, the plaintiff, in my view, would clearly be prejudiced should the Court allow the defendant to withdraw the admission at this late stage of these proceedings…
[31]  Accordingly, the interests of justice are not, in my view, served by permitting the defendant to withdraw his admission.
To my knowledge this recent case is not publicly available but as always I am happy to provide a copy to anyone who contacts me and requests one.

You Can't Be Forced to Show Your Hand: Litigation Privilege and Expert Reports

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Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, dealing with the limits of the Court’s power to order litigants to reveal which experts they may rely on at trial.
In the recent case (Amezcua v. Norlander) the Plaintiff was injured in two separate collisions.  The first took place some 14 years ago.  Commenting on the pace of litigation the Court noted that “the wheels of justice have ground so slowly that at times they stopped“.
The Defendant was apparently not aware of the nature of the injuries the Plaintiff was advancing.  An application was brought at a Case Planning Conference seeking the Plaintiff to “confirm which experts and expert reports it plans to rely on at trial“.  The Defendant argued that the Court can make such an order under Rule 5-3(1).
Master Baker noted that such an order would infringe on litigation privilege.  The Court did, however, order an accelerated date for the Plaintiff to serve his expert reports noting the slow pace of litigation.  Master Baker provided the following reasons:

[7]As I said above, the defendant Taylor asks for an order that the plaintiff “…confirm which experts and expert reports it plans to rely on at trial”.  In Galvon v. Hopkins, Kloegman J. declined to order that a party name a neurologist consulted by the party, along with the date of the appointment, or to advise of the names of subsequent experts or the dates of their appointments.  After considering several authorities, she concluded:

I do not see anything in Rule 5?3 governing case planning conferences that clearly, expressly, and specifically allows the presider to compel a party to provide another party with the details of any potential expert witnesses before that party has even consulted with the expert or made an election whether to call the witnesses’ evidence at trial.

Rule 5-3 does have clear and express provisions respecting experts: Rule 5-3(1)(k) permits the Court to direct the appointment of joint experts, to order that they consult, to limit the number of experts, to set dates for service of experts’ report (i.e. other than those set by Rules 11-6(3) and (4)), or to direct what issues upon which they may be called.  But none of these (other than by advancing the service date for reports) requires that a party disclose either the expert’s identity, or the area of his or her expertise before serving the report.

[8]Rule 5-3(1)(k) is not inconsistent, in my view, with the reasoning in Galvon.  The disclosure aspects of that Rule assume that evidence has been gathered, assessed, and considered essential to a party’s case.  The only question remaining then is when it will be disclosed, thus Rule 5-3(1)(k)(iv), permitting service dates other than those provided by Rule 11-6.  It is important and instructive to note the court’s reference to “potential” expert witnesses; it seems to me that Kloegman J. was concerned with protecting litigation privilege during the evidence-gathering phase, so that the party assembling his or her case is free to do so without the requirement of disclosing experts (or, I conclude, directions) that may prove fruitless and avoid adverse inferences.

[9]The defendant Taylor’s request, however, comes within Rule 5-3(1)(k) and does not ask the name or expertise of potential witnesses, but rather the details of the experts it will rely on at trial.

[10]This case, as I have mentioned, has an extraordinary aspect.  The first accident occurred approximately 13 years ago.  Such delays sometimes occur when, for example, the plaintiff is an infant.  That is not the case in this situation.  The defence is justified in its frustration and perplexity in not knowing, in any reliable way and after 13 years, the nature or extent of medical injuries suffered by the plaintiff.  That being the case, the plaintiff is ordered to deliver the reports of experts upon which she intends to rely at trial, no later than November 1, 2012.