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Litigation Guardians Are Not Immune From "Loser Pays" Costs Consequences

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 20, Uncategorized.

Update September 25, 2013 – The below decision was upheld by the BC Court of Appeal in reasons released today
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I’ve written many times about the BC Supreme Court’s “loser pays” system which generally requires a losing litigant to pay for the winner’s costs and disbursements.  If a lawsuit is started on a child’s behalf and on reaching adulthood they take over the claim themselves can the former litigation guardian still be exposed to loser pays costs consequences?  The answer is yes as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (McIlvenna v. Viebeg) a lawsuit was commenced on behalf of an infant plaintiff in 2003.  By 2009 the Plaintiff was an adult and took over the prosecution of his claim himself by filing an affidavit of attainment of majority.  The matter proceeded to trial and the claim was ultimately dismissed.  The Defendant was awarded costs.  An issue arose as to whether the Plaintiff or the previous litigation guardian were liable to pay these.  The Court held that the Litigation Guardian was liable for costs up until the Plaintiff reached the age of majority and the Plaintiff was liable from that point onward.   Mr. Justice Sigurdson provided the following reasons:
[17]         Although Bird J.A.’s comments on the liability of litigation guardians for costs in Miller were dicta, they were considered dicta.  Bird J.A. concluded that an infant ratifying the action after attaining the age of majority does not inherit and replace the litigation guardian’s liability for costs.  I have seen nothing in the authorities that lends support to the position that a defendant’s possible entitlement to costs from a litigation guardian disappears when the infant reaches majority.  I expect that subsequent to Miller, litigation guardians starting actions (and filing affidavits at the time) understood their potential liability for costs and the fact that it continued at least up to the infant’s majority.  Rule 20-2(12) and (13) do not suggest that the filing an affidavit upon attaining the age of majority removes any possible past liability of the litigation guardian for costs. 
[18]         While it is true that a possible adverse costs order may deter a person from suing as a litigation guardian, there are also policy reasons that support awarding costs in favour of successful defendants.  In any event, I think the underlying law has been clear for more the 50 years that a litigation guardian assumes potential liability for costs if he or she starts an action as a litigation guardian and is not successful. 
[19]         Accordingly, my conclusion is that Shawne McIlvenna, the plaintiff’s former litigation guardian, is responsible for the costs that I have already ordered, up to February 27, 2009, when the plaintiff filed his affidavit of majority. ..

Parties Cannot Rely on Opposing Litigant's Jury Notice Under The New Rules of Court

Written by admin on . Posted in BCSC Civil Rule 12, Jury Trials, Uncategorized. 60 Comments on Parties Cannot Rely on Opposing Litigant's Jury Notice Under The New Rules of Court

Reasons for judgement were released this week by the BC Supreme Court, Cranbrook Registry, concluding that under the New Rules a Plaintiff “is not entitled to have a jury trial by paying the jury fees associated with the jury notice filed by the Defendant“.
In this week’s case (Moll v. Parmar) the Plaintiff was injured in a 2006 collision.  The case had a complex pre-trial history that cannot easily be summarized but in short the matter was set for trial with only one live jury notice in place which was filed by the Defendant.  As trial neared the Defendant elected not to rely on the Jury Notice.  The Plaintiff brought an application allowing him to piggy-back on the Defendant’s Jury Notice.  Mr. Justice Abrioux held that this was not allowed and dismissed the application.  The court did, however, grant the Plaintiff leave to file a jury notice of their own.
In concluding that one party cannot rely on another’s Jury Notice under the New Rules the Court provided the following reasons:
 [1]             The plaintiff seeks to have the trial of this action heard by the court with a jury. The application was heard on July 12, 2012. It raises the issue as to whether under the Supreme Court Civil Rules, which came into effect on July 1, 2010, a party which did not file a jury notice may, nonetheless, rely on a jury notice filed by another party and secure a trial by jury by paying the required fees. In light of the pending trial date being August 13, 2012, I am delivering these oral reasons for judgment today. I reserve the right to edit these reasons although that process will not involve a change in the decision or in the reasoning…
[19]         The plaintiff’s submission is predicated on the word “and” at the conclusion of Rule 39(26)(a) not being present at the end of Rule 12-6(3)(a)(ii). The plaintiff submits the inclusion of “and” at the end of Rule 39(26)(a) formed the basis of William J.’s conclusion in Folk. It was only the party that issued the jury notice who was entitled to pay the jury fees associated with that notice.
[20]         I agree with the plaintiff that the word “and” at the end of Rule 39(26)(a) was an important factor in Folk. I do not agree, however, that its omission in Rule 12-6(3)(a)(ii) changes the state of the law. Rule 12-6(3) states, “a party may require that the trial of an action be heard by the court with a jury by doing the following”. Although “and” is not present, the words “by doing the following” were added in the introductory wording of the present subrule.
[21]         In accordance with Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, I read the subrule in its entire context “in its grammatical and ordinary sense harmoniously” with the Supreme Court Civil Rules. In doing so, I am of the view the words “by doing the following” had the effect of replacing the word “and” which appeared in Rule 39(26)(a).
[22]         Accordingly, as would have been the case under Rule 39(26), the plaintiff in this case is not entitled to have a jury trial by paying the jury fees associated with the jury notice filed by the defendant.

$60,000 Non-Pecuniary Assessment For Lingering Soft Tissue Injuries and Recovered Head Injury

Written by admin on . Posted in ICBC Brain Injury Cases, Uncategorized.

Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, addressing damages for lingering soft tissue injuries and a recovered mild traumatic brain injury.
In yesterday’s case (Hardychuk v. Johnstone) the Plaintiff was injured in a 2006 collision.  Fault was admitted focusing the trial on damages.  The Plaintiff alleged that she suffered a permanent brain injury which resulted in significant incapacity seeking damages well over 2 million dollars.  While the Court rejected much of this claim Madam Justice Dickson was satisfied that the Plaintiff suffered lingering soft tissue injuries and a recovered traumatic brain injury in the crash.  In assessing non-pecuniary damages at $60,000 the Court provided the following reasons:
[162]     I have found that Ms. Hardychuk suffered soft tissue injuries to her neck, shoulders and back in the accident.  After a two-year process of gradual recovery, these injuries left her with residual symptoms of back discomfort, occasional flaring pain and periodic headaches.  Ms. Hardychuk also suffered post-traumatic stress disorder and a mild traumatic brain injury as a result of the accident.  The symptoms of her post-traumatic stress disorder are well encapsulated, resolving and non-debilitating.  The mild traumatic brain injury caused Ms. Hardychuk to suffer cognitive deficits for several months but those symptoms have now fully resolved.
[163]     As a result of her ongoing soft tissue injury symptoms Ms. Hardychuk experiences pain, frustration, and fatigue, but not a mood disorder or cognitive deficits.  Her vocational, home and recreational activities have been somewhat modified, but she has not been rendered sedentary or unemployable.  As discussed below, her decision to leave her cabinetmaking job in 2010 is not causally related to the accident, nor is her state of depression.  The prognosis for further improvement in her ongoing accident-related symptoms is good, but she may never recover fully.
[164]     Before the accident, Ms. Hardychuk was an extraordinarily athletic and physically-oriented young woman.  Vigorous, enthusiastic, unimpeded physical activity in her work and recreational pursuits was, for her, a major pleasure in life.  For this reason the compromise to her physical state and activities caused by her ongoing symptoms, while not highly debilitating, represents an unusually significant loss for which she is entitled to be fully compensated.  That being said, her loss is not nearly of the nature or magnitude of those addressed in the cases cited by her counsel.  It is, however, somewhat greater than those addressed in the cases cited by counsel for the defence.
[165]     All things considered, I conclude that an award of $60,000 in non-pecuniary damages is appropriate in the circumstances of this case.

Some Thoughts on Section 173 of the Motor Vehicle Act

Written by admin on . Posted in ICBC Liability (fault) Cases.

Although the BC Motor Vehicle Act specifcally addresses the right of way at intersections controlled with and without yield signs, the legislation does not specifically address the right of way when vehicles approach and stop at a 4 way stop-sign controlled intersection at the same time.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this.
In last week’s case (Demarinis v. Skowronek) the Plaintiff and Defendant approached an intersection at approximately the same time.  Ultimately the Court found that the Defendant approached first and had the right of way.  Before getting to this conclusion the Court addressed the commonly held notion that the driver to the right enjoys the right of way at 4 way intersections.  The Court provided the following reasons:

[26]The plaintiff argues that since both parties entered the “intersection” almost simultaneously, because the plaintiff was to the right of the defendant, she had the right-of-way. Accordingly, the defendant had a corresponding obligation to yield the right-of-way to her.

[27]Surprisingly, neither party was able to identify any case law which arose from circumstances similar to those in this case. The plaintiff argues, however, that the excerpts from the ICBC publication “Road Sense for Drivers, British Columbia Driving Guide”, which includes the following guidance for “four-way stops”, is of assistance:

four-way stops — when there are stop signs at all corners:

• The first vehicle to arrive at the intersection and come to a complete stop should go first.

• If two vehicles arrive at the same time, the one on the right should go first.

[28]In doing so, the plaintiff accepts that the Road Sense Guide does not contain “rules of law”, but submits that the Guide, in combination with other considerations, can inform the standard of care which is relevant in particular circumstances.

[29]I do not consider that the Guide advances the proposition that the plaintiff advocates. The foregoing language from the Guide, and in particular the words, “the first vehicle to arrive at the intersection and come to a complete stop should go first”, presupposes that the four stop signs at an intersection will be placed at the same distance from the intersection at issue. The excerpt from the Guide also treats the words “intersection” and “stop sign” synonymously. Were it otherwise, there would be no need for a vehicle to stop at the intersection. Instead, more properly or more precisely, the vehicle would be required to stop at the stop line.

From my perspective it appears litigants need not rely on the ICBC Driving Guide to establish the right of way analysis.  Looking at section 173  it states that:

“if 2 vehicles approach or enter an intersection from different highways at approximately the same time and there are no yield sign the driver of a vehicle must yield the right of way to the vehicle that is on the right of the vehicle that he or she is driving.”

A four way intersection controlled by stop signs is an intersection where “there are no yield signs” so the above section appears to be applicable.

Please feel free to comment if you have differing views on the subject.

Implied Undertaking of Confidentiality Set Aside For Health Care Costs Recovery Action

Written by admin on . Posted in Civil Procedure, Uncategorized.

Further to my previous posts addressing the implied undertaking of confidentiality, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing whether the undertaking for documents produced in a tort action should be set aside for a subsequent prosecution under the Health Care Costs Recovery Act.
In this week’s case (British Columbia v. Tekavec) the Defendant was found liable for damages after an individual fell from a balcony in a building owned by him.   He was ordered to pay over $322,000 in damages.  The BC Government then sued the Defendant seeking recovery of their Health Care Costs.
In the course of the lawsuit the Government requested production of certain documents which were created in the initial litigation such as examination for discovery transcripts.  The Defendant refused to provide these arguing they were subject to the implied undertaking of confidentiality.  The Court held that in these circumstances it was appropriate to order production.  In doing so Mr. Justice Williams provided the following reasons:
11]         It is a fundamental rule of the litigation model that information, both documentary and oral, obtained by a party through the discovery process is subject to an implied undertaking. It cannot be used by any other party (i.e. other than the originator) except for the purpose of the litigation in which it was produced. The undertaking is essentially perpetual: it survives the resolution of the litigation in which the discovery was made. The restriction can be modified only by court order or with the consent of the party with whom the material originates.
[12]         The principle is authoritatively articulated in Juman v. Doucette, 2008 SCC 8, and the underlying rationale is discussed there at some length. For the purpose of the present discussion, there is no point to delving into that.
[13]         Where a court order is sought to relieve against the implied undertaking, the applicant will have the onus of satisfying the court on a balance of probabilities that the interest to be advanced through the sought-after disclosure is greater than the values that underpin the rationale for the implied undertaking. Central to the analysis will be a careful consideration of any prejudice that will be caused to the party who initially provided the material at issue. Of course, it goes without saying that the material must be relevant to the issues in the action in which the disclosure is sought…
29]         In the matter at hand, it is my conclusion that the circumstances warrant an order overriding the protection of the implied undertaking. The basis for so deciding is that, while the applicant HMTQ was not a party to the original action, the principal issue in the present action is compellingly similar to the issue there: was Mr. Tekavec responsible for the injuries that were sustained by Mr. Jack? I note as well the following: Mr. Jack has apparently indicated that he has no objection to the materials being disclosed to the applicant. There would be no prejudice to Mr. Jack if the materials were to be disclosed. Finally, the same questions and topics that were canvassed with Mr. Tekavec in the examination for discovery at issue could be quite properly raised in his examination for discovery in the present action. In effect, disclosure of the materials represents a proper means of proceeding more efficiently.

Defence Medical Doctor Given "Very Little Weight" For Failing to Examine Plaintiff

Written by admin on . Posted in independent medical exams, Uncategorized.

As previously discussed, the failure of a doctor to examine a Plaintiff is not, in and of itself, a barrier to the physician from providing opinion evidence to the BC Supreme Court, however, often little weight is attached to a doctor’s opinion in such circumstances. This was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Rizzotti v. Doe) the Plaintiff suffered psychological injuries in a serious collision in which the offending motorist died. At trial the Plaintiff tendered expert evidence addressing the extent of her injuries. The Defendant tendered a report from a psychiatrist, Dr. Levin, who disagreed with the Plaintiff’s experts with respect to the extent of her accident realted psychological injuries.
Dr. Levin did not examine the Plaintiff prior to authoring his report and in the course of trial acknowledged that “that he could not do a proper assessment without interviewing the plaintiff“. The court accordingly provided little wieght on Dr. Levin’s opinion and provided the following reasons:
[27] Dr. Levin is a psychiatrist tendered by the defendants as rebuttal evidence to the opinion of Dr. Anderson. The plaintiff objected to the admissibility of Dr. Levin’s report during this trial. I declared a voir dire to allow the plaintiff to cross-examine Dr. Levin and make argument as to the admissibility of the report. I ultimately found that the report was admissible, however I initially told counsel that I would be putting very little weight on the report as Dr. Levin did not interview the plaintiff…

34] For the above noted reasons I ruled Dr. Levin’s report admissible and I ruled that his evidence on the voir dire would form evidence on the trial proper.

[35] I have already explained that I am putting little weight on Dr. Levin’s report because he did not interview the plaintiff. Dr. Levin himself testified that he could not do a proper assessment without interviewing the plaintiff.

Lessons From the Toothbrush Case: Setting Aside An Adverse Party Notice

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure, Uncategorized.


Last year I discussed the practice of calling a Defendant during the course of a Plaintiff’s case in chief using the adverse party provisions of the BC Supreme Court Rules.  Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, in the highly publicized ‘broken toothbrush’ trial, addressing these and the circumstances where the Court can set aside an Adverse Party Notice.
In the recent case (Alnoor v. Colgate-Palmolive Canada Inc.) the Plaintiff alleged she was injured while brushing her teeth with a toothbrush manufactured by the Defendant.  She alleged that the toothbrush was negligently designed and sued for “substantial damages“.
In the course of the lawsuit the Plaintiff attempted to examine the President of Colgate-Palmolive Canada for discovery.   These attempts were dismissed with the Court finding that the President was not an appropriate witness to be examined in the circumstances of the case.
As trial neared the Plaintiff served an Adverse Party Notice on the Defendant requiring the president to testify at trial.   Madam Justice Wedge exercised her discretion under Rule 12-5(23) to set aside this Notice finding again that this was an inappropriate witness to be compelled at trial.  In doing so the Court provided the following reasons:

29] The recent decision of Mr. Justice Butler in Dawson v. Tolko Industries Ltd., 2010 BCSC 1384, examines the meaning and effect of these provisions in detail. He observed at para. 18 that the Court is granted only limited jurisdiction to set aside an adverse witness notice. It is only where the evidence of the person is “unnecessary” that the Court can set aside the notice.

[30] Further, as the Court noted at para. 19, it is only in a clear case that a judge should exercise his or her discretion to set aside a subpoena on the ground that the evidence is unnecessary. That is because the Court should be very cautious about second guessing the litigants concerning the benefits they may derive from calling a particular witness.

[31] I agree with those comments. However, the Court is also granted discretion under subrule (24) which provides that where an application is made to strike an adverse witness notice, the Court may make any order it considers will further the objects of the rules.

[32] As I noted earlier, Ms. Alnoor first attempted over two years ago to issue an appointment to examine Mr. Jeffery for discovery. However, the Court ruled that Mr. Jeffery was not the appropriate representative on the basis that his position in the company is strictly managerial. He has no knowledge pertaining to any of the issues arising in the litigation. Ms. Alnoor has been clear that she wants to call Mr. Jeffery, not because he has any knowledge of the issues in the lawsuit, but because he is the person within the corporation who is ultimately responsible for the corporation’s actions, its consumer safety policies, and its recall policies. She points to the various mission statements on the defendant’s website, published over Mr. Jeffery’s signature.

[33] Ms. Alnoor wishes to question Mr. Jeffery about his statement that the defendant is committed to consumer safety, about his responsibility for product safety, and its recall policies. She wants to ask Mr. Jeffery why the company did not recall the toothbrush model in question before she purchased one. Because Mr. Jeffery is the president, submits the plaintiff, he must be the one ultimately responsible to recall products and warn consumers, and she wants to question him about those responsibilities.

[34] The difficulty with Ms. Alnoor’s argument is that the evidence she seeks to elicit from Mr. Jeffery is not relevant to the proof of her claim. She has brought a negligence action against the defendant. She must establish that the defendant was negligent in the manufacture, design, and/or testing of the toothbrush such that it was defective, and that the defect caused the harm the plaintiff alleges she suffered when using it. Any acknowledgment by Mr. Jeffery that he is the person ultimately responsible for the defendant’s actions, including its recall policies, will not advance the plaintiff’s claim in any way.

[35] The identity of the person ultimately responsible and any acknowledgment by that person that he is ultimately responsible by virtue of his management position within the company is simply irrelevant to the negligence factors the plaintiff must prove in order to succeed in her claim.

[36] In the event that Ms. Alnoor does establish her claim, the corporation, not Mr. Jeffery or any other senior management person, will be held liable for the damages flowing from the corporation’s negligence. That is so whether or not Mr. Jeffery acknowledges the various responsibilities he has as the corporation president. The company will be liable whether or not Mr. Jeffery had any idea that his company was manufacturing a defective product.

[37] In short, the evidence Ms. Alnoor intends to elicit from Mr. Jeffery is not relevant to the issues in the lawsuit. Irrelevant evidence is not admissible. It is unnecessary evidence within the meaning of the Rule.

$60,000 Non-Pecuniary Assessment for "Not Serious" Lingering Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Spine Injury Cases, Uncategorized. 63 Comments on $60,000 Non-Pecuniary Assessment for "Not Serious" Lingering Soft Tissue Injuries

Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for longstanding, but not disabling, soft tissue injuries.
In this week’s case (Samson v. Aubin) the Plaintiff was injured in a 2007 collision.  The Defendant admitted liability for the T-bone intersection crash.  The Plaintiff suffered soft tissue injuries to his neck, back, knee and ankle which were characterised as long-standing but “not serious” by his physician.   After an initial period of disability the injuries improved but plateaued without full resolution.  They were expected to flare with physical activities such as prolonged standing and heavier lifting.  In assessing non-pecuniary damages at $60,000 Mr. Justice Gaul provided the following reasons:
[44] According to Mr. Samson he continues to suffer pain and discomfort in his right knee, right ankle and especially his lower back on account of the Accident. As a result, he has been forced to reduce his efforts at work and has had to retain and pay others to complete the renovation work on his home. He has also had to reduce his recreational activities, including those he engages in with his son…

[47] While I found Mr. Samson to be a poor historian of events, I do not find that he has inflated the magnitude of his injuries in an effort to obtain a greater award of non-pecuniary damages. The evidence of Mr. Samson’s father, Gerald, coupled with that of Mr. Gray, Mr. Manson and the medical evidence, satisfies me that the injuries Mr. Samson suffered as a result of the Accident and the consequential pain, discomfort and loss of enjoyment of life from those injuries, are more severe than those found in the cases cited by the defence.

[48] I find Mr. Samson will likely continue to have some pain and discomfort in his lower back, right knee and right ankle for the foreseeable future. However, I also find that Mr. Samson has not actively pursued his rehabilitation to the degree expected of him. Since the fall of 2007, Mr. Samson has not participated in any exercise program designed to address his injuries, notwithstanding the advice and recommendations he received from the various healthcare professionals who had treated him following his accident.

[49] In my view, having considered all of the evidence, a fair and reasonable award of general damages for Mr. Samson’s pain and suffering and loss of enjoyment of life is $60,000.

Examination For Discovery Evidence and Proper Procedure at Summary Trials

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 9, ICBC Liability (fault) Cases.

Update July 19, 2013 – the below decision was upheld in reasons for judgement released today by the BC Court of Appeal
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Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing the introduction of examination for discovery evidence at a summary trial.
In the recent case (Mawani v. Pitcairn) the Plaintiff was injured in a pedestrian/vehicle collision.  Fault was disputed and following a summary trial Mr. Justice Kelleher found both parties equally to blame.
In the course of the summary trial the Plaintiff tendered an affidavit which attached the transcript from the Defendant’s examination for discovery as an exhibit.   The Plaintiff’s application response clearly indicated that the Plaintiff was only relying on specific questions and answers from the examination.  Despite this the Defendant argued that the entire transcript was put in evidence by the Plaintiff therefore the Plaintiff was bound by the unhelpful answers.
Mr. Justice Kelleher rejected this argument finding that in circumstances where the Plaintiff clearly identifies the specific questions he is relying on such a harsh result is not justified.  The Court provided the following reasons:

[23]At the hearing before me, the defendant argued that the entire examination for discovery of the defendant is before me.  That is because of para. 46 of the earlier ruling:

[46]      … Neither the deposition evidence nor Mr. Pitcairn’s examination for discovery are tendered as part of Mr. Pitcairn’s case.  If they are before me at all, they are before me as part of Mr. Mawani’s case.  His evidence, as matters currently stand, includes both the entirety of the examination for discovery evidence, and an affidavit from Ms. Forrest disclosing those portions of the examination for discovery he intends to rely on.  It also includes the entirety of the deposition evidence, but as I already noted, the rules do not provide for the admissibility of the deposition on summary trial unless arguably the court makes an order for its admission.  As I have also noted, there has been no application yet made by any party for that deposition evidence to be received in whole or in part.

[24]I disagree with the defendant that the entire examination for discovery is before me.  Mr. Justice Harris went on to direct, at para. 69, that plaintiff’s counsel file an application response which sets out the material on which he relies as part of the evidence in his case.  Mr. Gourlay did that on February 29, 2012.

[25]Mr. Arvisais argues that the entire transcript is in evidence.  In a conventional trial, the transcript would not be an exhibit.

[26]The application response filed February 29, 2012, makes it clear that the plaintiff is relying on certain questions and answers only.  Despite Mr. Justice Harris’s statement at para. 46 of his reasons, which were published before the application response was filed, the plaintiff does now make clear what questions and answers are relied upon.  The attachment of the entire transcript of the examination for discovery is consistent with the “proper procedure” outlined by Burnyeat J. in Newton v. Newton, 2002 BCSC 14.

More Judicial Critisism of Delayed Plaintiff Testimony in Injury Litigation

Written by admin on . Posted in Civil Procedure, ICBC Fibromyalgia Cases, Uncategorized. 55 Comments on More Judicial Critisism of Delayed Plaintiff Testimony in Injury Litigation

Earlier this year I highlighted judicial comments criticising the practice of not having a Plaintiff testify as the first witness in their personal injury claim.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, echoing these comments.
In this week’s case (Charles v. Dudley) the Plaintiff was injured in a 2008 collision.  She advanced a case alleging chronic pain and fibromyalgia.  The Court found that these claims were not proven on a balance of probabilities and ultimately awarded damages for soft tissue injuries which the Court found “resolved within a few months of the accident“.  In criticizing the Plaintiff’s delayed testimony Mr. Justice McEwan provided the following reasons:

[2] The trial proceeded in a fashion I would have described as unorthodox until recently, with the medical evidence called before the plaintiff testified. Counsel advised that they understand this to be the preferred way to run a personal injury case. I do not know where they get this idea. If persuasion of the trier of fact is the objective, the practice of leading medical opinion unattached to any factual foundation is the most awkward way to go about it. I have observed elsewhere that doctors do not subject their patients to a forensic examination. They generally assume that what the patient tells them is true and attempt to treat their symptoms. Their observations are of assistance to the trier of fact to the degree to which they reasonably conform to the facts that have been established after the plaintiff’s assertions have been tested. It is very difficult to assimilate medical evidence provisionally, that is, with no means of sorting what matters from what does not. A trier of fact obliged to hear a trial this way must go back over such evidence to put it in context. This Court is not alone in making this point. In Yeung v. Dowbiggin, 2012 BCSC 206, Humphries J. said:

[27]     Since the plaintiff was one of the last witnesses called and was in the courtroom very rarely prior to her testimony, it was difficult to assess the evidence about the effects of the accidents as I listened to the various witnesses. I had no idea who the plaintiff was, had no sense of her, and had heard no evidence about the accidents as I listened to all these witnesses. I do not know if this was a tactical decision or whether it was necessitated by schedules, but it meant the evidence I heard was all without context.

[3] In any event, owing to gaps in the scheduling of the opinion witnesses, I persuaded counsel to call the plaintiff after the first medical witness had testified to fill out the court day. The case then proceeded with interruptions of the plaintiff’s evidence to accommodate the scheduled witnesses. While occasional scheduling issues may dictate such a course, plaintiffs in personal injury cases should generally be called first, if the point is to put across a coherent case.