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Document Disclosure Photocopy Expenses Ordered at $0.30 Per Page

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized. 51 Comments on Document Disclosure Photocopy Expenses Ordered at $0.30 Per Page


Rules 7-1(16) and (17) deal with producing relevant documents to opposing litigants and costs associated with doing so.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with the rate of reasonable photocopy charges.
In last week’s case (Perone v. Baron) the Plaintiff was involved in a motor vehicle collision.  In the course of his lawsuit ICBC requested copies of relevant documents agreeing to pay $.30 per page for photocopy expenses.  The Plaintiff agreed to produce the documents but insisted that $.35 should be paid per page.  The difference was ultimately resolved via Court Application with Master McDiarmid providing the following reasons:

33] I accept what Esson J.A. wrote, namely that photocopying charges under Rule 7(1)(16) are more closely akin to what would be allowed in a solicitor-client costs review. I also note, though, that at the time Giulianiwas decided, just over 14 years ago, the registrar’s rate was only 60% of what it is now.

[34] After reviewing the facts before me and the law presented to me, I consider that the rate of 30¢ per page is appropriate. I order the production of the documents by the respondent on the terms sought. Paragraphs 1 and 2 of the application are granted.

BC Court of Appeal Confirms Non-Disclosure of HIV Status Can Vitiate Consent to Sexual Contact

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized. 117 Comments on BC Court of Appeal Confirms Non-Disclosure of HIV Status Can Vitiate Consent to Sexual Contact


The BC Court of Appeal released reasons for judgement today (R v. Nduwayo) confirming that failure to disclose HIV positive status can vitiate consent to sexual contact thereby making an otherwise consensual sexual encounter a criminal assault (or a matter that can give rise to a civil claim for damages).   It is worth noting that the Supreme Court of Canada is expected to deliver reasons for judgements in the fall addressing this same topic in other litigation.
The BC Court of Appeal provided the following summary of the legal framework:

Legal Framework for Consent Obtained by Fraud in Sexual Offences

[47] The question of when fraud will vitiate consent in the context of sexual acts was considered and determined in R. v. Cuerrier, [1998] 2 S.C.R. 371. In three concurring judgments, the Court agreed, on the facts in that case, that deceit as to HIV-positive status that induces consent constitutes fraud in sexual offences.

[48] Mr. Cuerrier, who knew he was HIV-positive, was charged with aggravated assault in relation to two women with whom he had sexual intercourse without disclosing his HIV status. Both said they would not have consented to sexual intercourse with him had they known his condition. Neither contracted HIV from Mr. Cuerrier. He was acquitted at trial, and the acquittals were upheld by the Court of Appeal.

[49] The first element in s. 273(1), whether Cuerrier’s acts “endangered the life of the complainant”, was found to be satisfied by all three levels of court. In the majority reasons, Cory J. said this:

[95]      … There can be no doubt the respondent endangered the lives of the complainants by exposing them to the risk of HIV infection through unprotected sexual intercourse. The potentially lethal consequences of infection permit no other conclusion. Further, it is not necessary to establish that the complainants were in fact infected with the virus. There is no prerequisite that any harm must actually have resulted. This first requirement of s. 268(1) [now 273(1)] is satisfied by the significant risk to the lives of the complainants occasioned by the act of unprotected intercourse.

[50] The Court then examined the question of consent and fraud. Major changes to the legislation in relation to sexual offences occurred in 1983. Mr. Justice Cory concluded that these amendments encompassed changes to the definition of consent obtained by fraud.  He found that the definition was no longer limited by requiring that the fraud had to relate to the nature and quality of the act. He concluded, at para. 108, that the law in relation to economic fraud could, with appropriate modifications, be applied.

[51] After examining the leading cases in which criminal fraud was defined (R. v. Olan, [1978] 2 S.C.R. 1175; R. v. Théroux, [1993] 2 S.C.R. 5; R. v. Zlatic, [1993] 2 S.C.R. 29), Cory J. concluded, at para. 116, that “the essential elements of fraud are dishonesty, which can include non-disclosure of important facts, and deprivation or risk of deprivation”.

[52] Mr. Justice Cory then considered the type of fraud or fraudulent conduct that would vitiate consent in cases of sexual assault. He examined previous cases in which non-disclosure of a sexually transmitted disease either amounted to fraud (R. v. Bennett (1866), 4 F. & F. 1105, 176 E.R. 925; R. v. Sinclair (1867), 13 Cox C.C. 28; State v. Lankford, 102 A. 63 (Del. Ct. Gen. Sess. 1917)) or did not (R. v. Clarence (1888), 22 Q.B.D. 23). He considered the “deadly consequences” that non-disclosure of the risk of HIV infection can have and concluded at para. 124:

[124]    In my view, it should now be taken that for the accused to conceal or fail to disclose that he is HIV-positive can constitute fraud which may vitiate consent to sexual intercourse.

[53] In order to establish that consent was obtained by fraud, the Crown first has to establish dishonesty. This is established on an objective standard. Dishonesty may be established either by an accused’s deliberate act of deceit in relation to his or her HIV status or by passive non-disclosure of the status. The Court concluded at para. 127, on the evidence before it, that true consent could not be obtained without the disclosure of HIV status. The second aspect of fraud vitiating consent is deprivation, which can be shown by actual harm, which is more than trivial, (Cuerrier at para. 128) or the risk of significant serious bodily harm.

[54] The mens rea for fraud is that the accused must knowingly be dishonest and aware that deprivation could result from that dishonesty (Cuerrier at para. 114).

[55] The Crown must also prove that the complainant would not have consented had he or she known the accused was HIV positive (Cuerrier at para. 130).

Lawyer's Fabrication of Evidence Conviction Upheld by BC Court of Appeal

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Reasons for judgement were released today by the BC Court of Appeal upholding the convictions against a former BC personal injury lawyer relating to “fabrication of evidence“.
Today’s case (R v. Zoraik) involved a personal injury lawyer who lost a claim on behalf of a client before a judge and jury.  Following the jury decision dismissing the claim an envelope was found at the local courthouse stating that one of the jurors was “offered money for her vote in court“.  Ultimately the accusation made in this letter was found to be baseless and its creation was attributed to the Plaintiff’s lawyer.
The lawyer was criminally convicted of public mischief, obstruction of justice and fabrication of evidence.  The BC Court of Appeal upheld the convictions concluding the verdict was “firmly grounded in compelling evidence, which, when accepted by the judge, formed a solid evidentiary basis for the convictions on the three counts“.  The Court of Appeals reasons for judgement can be found here.

$100,000 Non-Pecuniary Assessment for Shoulder and Knee Injury

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

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a knee and shoulder injury sustained in two motor vehicle collisions.
In last week’s case (Wong v. Hemmings) the 36 year old Plaintiff was injured in two collisions, the first in 2006 and the second in 2008.  These caused a fairly serious shoulder injury which, despite extensive therapy, did not fully recover and was expected to pose ongoing problems in the Plaintiff’s vocation as a server into the future.  In addition to this, the Plaintiff suffered a knee injury which also lingered on.  In assessing non-pecuniary damages at $100,000 Mr. Justice Fitch provided the following reasons:

[111] In assessing non-pecuniary damages, I have had regard to the following considerations. The plaintiff is a young woman. She has endured 5 1/2 years of significant shoulder and, to a lesser extent, knee pain as a consequence of the two accidents.

[112] She has undergone two injections of anesthetic and corticosteroids into her shoulder and has tried a number of different types of therapeutic interventions to obtain pain relief. Her pain is undoubtedly exacerbated by the weight bearing demands of her position. Despite this, the plaintiff has continued to work as a server because that position affords her the best opportunity to provide for herself and for her daughter.

[113] In October, 2010 plaintiff underwent arthroscopic subacromial decompression surgery on her left shoulder in addition to an arthroscopic procedure designed to reduce pain associated with her biceps tendon. That procedure was conducted as a result of Dr. Regan’s fear that if no intervention was tried, the plaintiff was going to be left with a permanent partial disability that could limit her ability to continue in the workforce given the demands of her job. Dr. Regan was frank in his pre-surgical assessment that if she did not benefit from these procedures, she would likely suffer long-term consequences, including permanence of her pain pattern affecting her shoulder which would limit her from doing repetitive above shoulder height activities or repetitive lifting activities. While the subacromial bursal excision provided the plaintiff with some relief, she continues to experience pain over the biceps tendon which is likely aggravated by her work duties. Dr. Regan concluded that while her left shoulder was improved from its pre-operative status, it would not improve in the future. One further surgical procedure could be performed on the plaintiff’s shoulder but this would require her to be off work for between three and four months. Dr. Regan testified that he would only undertake this procedure if the plaintiff continued to suffer pain associated with the activities of daily living despite quitting her job. Although the arthroscopic surgery was a partial success, the fears expressed by Dr. Regan prior to the surgery have now largely come to pass.

[114] With respect to her left knee, Dr. Regan concluded that the plaintiff was continuing to suffer pain associated with an injury caused by the first accident to her peroneal nerve. He is of the opinion that a cortisone injection is unlikely to help the situation at this time. If the plaintiff’s symptoms worsen over time, a further surgical procedure with a six to eight week recovery period is the only treatment option available to her.

[115] With respect to the plaintiff’s myofascial pain, Dr. Regan expressed the view that while the condition will likely settle, the plaintiff’s recovery will be prolonged and she may be left with chronic pain in the left side of her neck and the trapezius, levitator scapula and paraspinal muscles in her neck and back.

[116] Dr. Anton similarly opines that while the plaintiff had a reasonably good outcome from her shoulder impingement surgery, she is not pain free and has essentially exhausted surgical and non-surgical options for her left shoulder. He concludes that the prognosis for further improvement of her left shoulder is poor as long as she continues in her current work. In fact, he concludes that so long as the plaintiff continues in her current position, she will experience shoulder pain. Even if the plaintiff finds suitable alternative employment, Dr. Anton is of the view that she will probably be at increased risk for episodes of pain in her left shoulder indefinitely. With respect to her left knee, Dr. Anton is of the view that the plaintiff continues to have irritation of the peroneal nerve and that the prognosis for improvement is uncertain.

[117] In short, the injuries suffered by the plaintiff in the two accidents are serious, have caused long-term and ongoing pain which may, insofar as the myofascial pain is concerned, be chronic in nature. Those injuries have not been resolved by various types of surgical and non-surgical treatment. The plaintiff will continue to suffer pain in the future which will be aggravated by the repetitive, weight bearing demands of her job as a server.

[118] Prior to the accidents, the plaintiff was a vigorous, energetic and physically active person who participated in a broad range of sporting activities. Constant pain and sleep deprivation have made her less energetic and much less inclined to participate in the kinds of sporting activities she enjoyed before the accidents. The plaintiff’s continuing symptoms have significantly affected her lifestyle. For an individual who uses physical activity to promote good mental health, the loss to the plaintiff in this regard has been significant.

[119] Perhaps even more significantly, the accidents and the symptoms that the plaintiff continues to experience have caused her to become more socially withdrawn. She is moodier and less patient with others, including with her daughter, Brooke. I find that the accidents have resulted in a significant loss of enjoyment of life and some impairment of the plaintiff’s social relationships.

[120] The plaintiff’s injuries have also taken an emotional toll. The plaintiff has carried the burden of supporting herself and her daughter as a single mother. She continues to work through pain because she feels she has no choice to do otherwise. She faces the stress of an uncertain medical and financial future with the possibility of additional surgical interventions in relation to her left shoulder and left knee.

[121] The accidents have significantly impacted the plaintiff in physical, emotional and social ways. They are likely to have that impact into the future and will certainly persist as long as the plaintiff continues to work as a server.

[122] In all the circumstances, I assess non-pecuniary damages at $100,000.00.

An Example of the Hefty Price of "Loser Pays"

Written by admin on . Posted in Uncategorized.

As previously discussed, the BC Supreme Court operates on a “loser pays” system typically requiring a losing litigant to pay the winner’s costs and disbursements.  This reality goes a long way towards discouraging frivolous lawsuits and encouraging pre-trial settlement.  The Loser Pays system can create hefty consequences as was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Pearlman v. Critchley) the Plaintiff was involved in litigation with a “lengthy and tortuous history“.  His various claims had been “in one form or another, dismissed at the trial level” and the Court went further declaring that the Plaintiff was a vexatious litigant.
The Plaintiff was ordered to pay special costs after having his claims dismissed.  Today’s case dealt with assessing these and ultimately Registrar Sainty ordered that the Plaintiff pay costs of $42,977 providing an expensive lesson of BC’s loser pays system in action.

ICBC 'Third Party' Settlement Ends Tort Litigation Despite Defendant Protests

Written by admin on . Posted in Uncategorized. 60 Comments on ICBC 'Third Party' Settlement Ends Tort Litigation Despite Defendant Protests

When a motorist is in breach of their insurance ICBC has the right to intervene in a lawsuit against them and settle any tort claims arising from a collision pursuant to the powers given to them under sections 76 and 77 of the Insurance (Vehicle) Act.  ICBC is further given the power to recover the amount of the settlement from the breached motorist provided the settlement was entered into in good faith and further that appropriate notice is given to the breached motorist.  This remedy is available to ICBC even where the ‘breached’ motorist disputes fault for the collision as was demonstrated in reasons for judgement released last week by the BC Supreme Court, Nanaimo Registry.
In last week’s case (Chandler v. Gomez) the plaintiff was injured in a collision and sued the defendant for damages.  The defendant was insured with ICBC but the insurer alleged the defendant was in breach of their coverage. ICBC joined the lawsuit as a statutory Third Party and eventually settled the plaintiff’s claim for $112,000.  ICBC sought recovery of this amount from the defendant.  The defendant argued that she was not at fault for the crash and the tort matter should proceed to trial on that issue.  Mr. Justice Greyell disagreed and found that the tort claim was concluded with the settlement despite the defendant’s protests. In doing so the Court provided the following reasons:

[14] Section 21(6) of the Act (s. 77(2) of the new Act) provides that ICBC has the right to recover any amount paid under or by way of a settlement or other payment, and I refer to this section which provides that:

. . . if the corporation has paid an amount to a person under this section, by way of settlement or otherwise, that it would not otherwise be liable to pay, and has personally delivered or forwarded by registered mail to the last known address of the insured a demand for reimbursement of that amount, the insured is liable to reimburse the corporation that amount, and the corporation may enforce the right [of] action in court.

[15] Accordingly, s. 21 provides ICBC with the right to defend the action, to settle the action, and to recover any amount paid under that settlement from an insured.  In essence, ICBC stands in the place of such defendant when it makes itself a third party to the action, as it has in this case, under s. 21.

[16] The necessary result of a combined reading of ss. 21(2), (6), (7), and (8) is that, upon settlement, the tort action has been concluded.  ICBC has acted pursuant to its statutory authority as insurer to settle the action.

[17] As stated by Madam Justice Gray in Insurance Corp. of British Columbia v. Schmidt, 2004 BCSC 1786, a case which raises similar issues to those present in this case:

[22]      ICBC’s third party notice is an unusual form of pleading.  It does not purport to make a claim against Mr. Schmidt.  Instead, it denies liability for indemnity and claims the right to defend the action as well.  It does not constitute a claim by ICBC for payment from Mr. Schmidt.

[23]      In fact, no claim against Mr. Schmidt under s. 21(6) could have arisen at the time of the third party notice.  Such a claim can arise only after payment and after delivery of the demand for reimbursement as required.

[24]      The issues in this litigation, a form of lawsuit sometimes termed a “recovery lawsuit,” are whether ICBC has met the terms of the statute giving it a right to recover, and whether the settlement was reasonable and effected by the insurer in good faith.  See the discussion of the respective issues in ICBC v. Doyle, [1984] B.C.J. No. 889, a decision of Judge Boyle when he was a County Court judge.

…

[26]      Bearing in mind this articulation of the issues in any recovery action, the issue before me is whether ICBC’s settlement was reasonable and made in good faith.  If ICBC had paid money to Mr. Neumann following the entry of a dismissal order, it is likely that any payment by ICBC would have been unreasonable.  But I must judge the reasonableness of ICBC’s conduct at the time that settlement was achieved.  At that time, the consent dismissal order had not been made.

…

[33]      While s. 21(2) permits ICBC to compromise or settle the claim at any stage, Mr. Straith argued that once ICBC becomes a third party in a tort lawsuit, the issues between ICBC and the driver over liability ought to be resolved in that lawsuit.  Mr. Straith suggested that if ICBC wanted to be able to proceed against Mr. Schmidt, ICBC ought to have reserved its rights, or proceeded to trial, or obtained an assignment from Mr. Neumann of his claim against Mr. Schmidt, or compromised with a judgment against Mr. Neumann and obtained an assignment of that judgment.

[34]      There is nothing in s. 21 which restricts ICBC to proceed under only one of the subsections, or requiring it to proceed as suggested by Mr. Straith.  Section 21(6) and the case law provide adequate protection for a driver who is denied indemnity by ICBC.  Any compromise ICBC enters into can be recovered from the driver only if the settlement were reasonable and entered into in good faith.

[18] The decision of Madam Justice Gray sets out a clear distinction between the tort action or the issues in the tort action which are between plaintiff and defendants, and ICBC pays out funds pursuant to s. 21.

[19] The lis between the parties in the tort action has been resolved by way of the settlement.  Whether the settlement was reasonable and whether it was effected in good faith is not a subject matter for determination in this case.  That issue must be determined when ICBC seeks to recover the amount it has paid by way of settlement.  The issue as stated is then between ICBC and Ms. Gomez as to whether that settlement was effected reasonably in all the circumstances of the case…

[22] I accept counsel for ICBC’s interpretation of the issue remaining to be determined between the third party ICBC and the defendant Ms. Gomez.  The forum for determination of that issue is in what is commonly referred to as a recovery action by ICBC.  It is not in these proceedings.

Undeclared Income Compensation and the Reality of Trial Testimony

Written by admin on . Posted in ICBC Wage Loss, Uncategorized.


As previously discussed, while income loss from ‘under the table’ earnings can be recovered in a personal injury claim in BC, doing so often requires testifying to untruthful past tax filings with respect to past earnings.  The papertrail this creates puts plaintiffs with undeclared earnings in a difficult position if they seek to recover damages for their full losses as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Wong v. Hemmings) the Plaintiff was injured in two collisions.  She worked as a server for the Fairmont Hotel.  As with many servers, her income was derived from wages and tips.  Her injuries impacted her vocational abilities and damages were awarded for past and future diminished earning capacity.  In presenting her case the Plaintiff presented evidence as to her actual earnings which differed from her declared earnings to Revenue Canada.  Mr. Justice Fitch summarized this evidence as follows and provided the following comments with respect to her undeclared earnings:

[75] It is noteworthy that the plaintiff was informed by the Fairmont, in writing, in early 2011 that her gratuities from credit card sales alone for 2010 were $30,652.82. The plaintiff was advised by her employer that, “this information may be helpful to you when you are preparing your 2010 tax return”.

[76] The plaintiff testified that she makes about $63,000.00 a year. She said it is her practice to declare about $5,000.00 in tip income each year. She is aware that she is obliged to declare all income, including tips and gratuities, on her tax return. She testified that she was, “following industry standard” in not declaring the full amount of her tips and gratuities. She testified that she does not know anyone in the restaurant service industry who declares the full amount of their tips. Having said that, the plaintiff admitted knowing that failing to declare all of her tips and gratuities was wrong. She testified that she could not have supported herself and her daughter had she declared and been taxed on the full amount of her income. She testified that, consistent with her past practice, it was not her intention to declare the full amount of her tip income on her 2011 tax return…

[125] The defendants assert that the plaintiff should not be granted a past wage loss award that includes undeclared tips. They assert this position to preserve an ability to argue the issue in another forum as counsel for the defendants otherwise concedes that this Court is bound by Iannone v. Hoogenraad (1992), 66 B.C.L.R. (2d) 106 (C.A.), leave to appeal dismissed [1992] S.C.C.A. No. 185, which holds that failure to declare tip income is no bar to the recovery of undeclared tips as past wage loss.

[126] The defendants also submit that the plaintiff has failed to establish what she would have earned in gratuities on her cash sales. As noted above, the Fairmont’s records reflect only the total amount of the plaintiff’s cash sales as a server. Any tip received by a server on a cash sale would be known only to them. The defendants point out that in 2006, for example, and assuming an average 12% tip on cash sales, the tips received by the plaintiff on cash sales represented 8.6% of her total tip earnings. Using this as a baseline, the defendants argue that the plaintiff’s past tip loss should be discounted by 8.6% to reflect the amount of cash tips allegedly lost but not proven.

[127] The defendants are, at least in theory, on firmer ground on this issue. Iannone stands for the proposition that the plaintiff has the burden of leading evidence of past wage loss and that it will be a difficult burden to discharge where there is no confirmatory evidence, such as income tax returns, to establish that the amount claimed would, in fact, have been earned. In this case, however, I am satisfied that the plaintiff has met her burden of proof on this issue. The records of the Fairmont Hotel clearly establish the total of the plaintiff’s cash sales as a server. The plaintiff testified that she would receive, on average, a 12% tip on her cash sales. I accept her evidence on this point.

$125,000 Non-Pecuniary Assessment For Fractured Ankle and Psychological Injuries

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, assessing damages for physical and psychological injuries resulting from a motor vehicle collision.
In last week’s case (Verge v. Chan) the Plaintiff was injured in a 2006 head-on collision.  She was 34 at the time and lived a ‘farming lifestyle’ which required significant strenuous labour.  The Plaintiff suffered a fractured ankle and psychological injuries both of which lingered to the time of trial and impeded with her physical lifestyle.  In assessing non-pecuniary damages at $125,000 Mr. Justice Greyell provided the following reasons:

Ms. Verge suffered soft tissue injuries to her neck and back, a fractured right talus, bruising to and pain in her chest, and pain in her left shoulder, both knees, and hip.

[7] She continues to suffer from her ankle injury, sleep disturbance, headaches, stress, anxiety, including post-traumatic stress disorder (“PTSD”), depression and chronic pain…

[72] The injury she sustained in the accident of December 6, 2006, has had a significant effect on her physical and mental health.  She is left in virtually constant pain with an unstable ankle such that she can no longer perform the tasks she used to perform on the farm and about the house or enjoy the hobbies and recreational pursuits she used to enjoy pre-accident.  She has developed mental health issues, including PTSD and depression, which will require a significant course of treatment before she can return to work.  As a result of her injuries, the work opportunities which will be available to her are less than pre-accident.  She has lost the farming lifestyle she enjoyed and her family, marital, and social relationships have been impaired…

78] After considering the evidence, the factors enumerated by the Court of Appeal in Stapley, and the authorities cited by counsel, I award non-pecuniary damages in the amount of $125,000.

Court Criticizes Unilateral Discovery Scheduling Practices

Written by admin on . Posted in BCSC Civil Rule 22, BCSC Civil Rule 7, Uncategorized. 57 Comments on Court Criticizes Unilateral Discovery Scheduling Practices


Unilaterally scheduled discoveries, while technically permissible, are a frowned upon practice.  Reasons for judgement were published this week by the BC Supreme Court, Kelowna Registry, critically commenting on such a tactic.
In this week’s case (Morgan v. BC Transit) the Plaintiff sued for damages as a result of a motor vehicle incident.  In the course of the litigation issues arose with respect to scheduling the discovery of the Plaintiff.  The Defendant unilaterally set a discovery date which the Plaintiff indicated he could not attend.  After non-attendance the Defendant brought a motion seeking to dismiss the Plaintiff’s claim but eventually backed away from this harsh request and instead sought an order that the Plaintiff attend discovery on another date and further seeking costs.
The court directed the parties to get on with the discovery and reserved dealing with costs consequences until this took place.  Ultimately Mr. Justice Betton dismissed the Defendants application and ordered that costs be paid to the Plaintiff.  In doing so the Court provided the following comments regarding unilaterally set examinations for discovery:
[14]         Obviously, the system would be challenged if appointments were routinely taken out without consultation with opposing parties and applications for dismissal followed non-attendance at such appointments. There is a balance that requires considered utilization of Rule 22-7(5). Circumstances must justify the application. Those who have an obligation to submit to an examination for discovery must cooperate reasonably in allowing the examinations for discovery to occur. Indeed it is a relatively unusual application and quite rare that such a severe remedy is granted. The reasons for this are numerous and most are self-evident. Most parties are represented and counsel are well aware of their own and their clients’ obligations. They make accommodations appropriately and reasonably to assist in achieving the objectives of the Rules. Even those who are not represented understand that procedural rules exist, and are to be followed, and there are consequences for failing to do so.

[15]I note in this case, there is no evidence before me indicating that there was any particular urgency to having the examination for discovery of the plaintiff concluded by the end of December. The trial date, as I noted, is set for December of 2012. When the December 1 date was adjourned on November 8, there was some discussion, but nothing done to formally set the examination for discovery until November 28, approximately three weeks later, when the issues quite quickly emerged. In this case, it is of significance that plaintiff’s counsel advised on December 18, approximately one month before this application was filed, that he had become available to have the examination for discovery of the plaintiff concluded in early January 2012. That is now some two months ago.

[16]There are cases when parties with or without counsel either use the Rules or ignore them to frustrate another’s legitimate efforts to prepare their case. In my view, this is not one of those cases. There are also cases where the Rules are used in ways which serve to defeat the broader objectives as described in the Rules of having cases proceed in an efficient and fair way. In all of the circumstances, it is my conclusion that the defence in these circumstances was overly aggressive in its utilization of this Rule and making an application to have the action dismissed with costs to the defendants; pressing to set the date on December 15 without consultation or without agreement was not necessary. Of most significance is the fact that before this application was set, plaintiff’s counsel had advised that they were now available to accommodate the examination for discovery occurring in early January. That discovery would have long since been concluded, rather than now being set in March and this application having had to proceed.

[17]In all of the circumstances, I decline to grant any costs thrown away to the defence for the examination for discovery of December 15, 2011.

[18]With respect to the costs of this application, in the circumstances, the defence will not have its costs of this application. The plaintiff will have its costs.

BC Court of Appeal Confirms Solicitor's Liens Can Apply Retroactively

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Reasons for judgement were released this week by the BC Court of Appeal discussing the effects of a Solicitor’s Lien under the Legal Profession Act in the context of a personal injury claim prosecuted on a contingency basis.
In this week’s case (FitzGibbon v. Piters) the Plaintiff was injured in a collision.  She hired a lawyer to advance her claim for damages.  In the course of the claim a breakdown occurred in the relationship and the Plaintiff retained new counsel.  The claim eventually settled and the first firm sought payment from the settlement amount by way of solicitor’s lien.  No notice of this lien was given, apparently, until after settlement and disbursement of funds.  A dispute arose whether a solicitor’s lien could be attached retroactively to the settlement.  The Court of Appeal agreed that it could and that a valid lien existed in these circumstances.  In doing so BC’s high court provided the following reasons:

30] The nature of the charge arising may be described an “inchoate right”, the crystallization of which requires only the pronouncement of the court [see Re Tots and Teens Sault Ste. Marie Ltd., et al (1975), 65 D.L.R. (3d) 53 (Ont. H.C.J.)].  While the charge exists, by statute, upon the recovery of property as a result of the retained lawyer’s efforts, the charge only becomes enforceable upon declaration by the Court under s. 79(3).

[31] This analysis is consistent with the decision of the Supreme Court of British Columbia in Jenik v. Fearn, (1995) 130 D.L.R. (4th) 695 (B.C.S.C.), and in Chouinard.

[32] The decision of whether to make a declaration upon application is a discretionary one.  The judge must be satisfied that it would be “just and proper” to grant the order (see Wilson, King & Co. v. Lyall (Trustees of) (1987), 12 B.C.L.R. (2d) 353 (C.A.), and Cliffs Over Maple Bay Investments Ltd. (Re), 2011 BCCA 346, 21 B.C.L.R. (5th) 297).

[33] It is not an answer to the inchoate nature of the charge to say that the property it applies to has not been identified.  In Doyle v. Keats, (1990) 46 B.C.L.R. (2d) 54 (S.C.), the Court said:

It is my opinion that the words “any property” used in s. 79 of the Legal Profession Act are as well of the widest possible character, and include a chose in action. Further, I am of the view that the specific property need not be immediately ascertained. It is generally, but not exclusively, the client’s interest in the property which is subject to the charge: Walker v. Saunders, supra. The ascertaining of the extent of that interest may occur subsequent in time to the creation of the charge.

[34] In my respectful opinion, the argument that a charging order under s. 79 cannot have retrospective effect is not supported either by the language of the statute or by the relevant caselaw.