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Plaintiff's Lawyer Allowed to "Charge" ICBC For Records Reimbursement Under Legal Profession Act

Written by admin on . Posted in Uncategorized.


Interesting reasons for judgement were released today by the BC Supreme Court, Prince George Registry, finding that a Plaintiff’s lawyer could use the Legal Profession Act to resolve a dispute for failure of the Defendant’s insurer to reimburse the cost of providing clinical records in the course of litigation.
In today’s case (Garth A. Wright Law Corporation v. ICBC) the Lawyer represented a Plaintiff in a personal injury action.  In the course of the claim ICBC requested various records from the lawyer and indicated that “We confirm that once we are in receipt of the records, our office will forward a cheque reimbursing your firm for costs incurred in obtaining same“.
The lawyer provided the records to ICBC and issued an account for their production.  ICBC did not pay the account.  The lawyer took the unusual turn to force payment of the Account using the mechanisms available under the Legal Profession Act.
ICBC argued that the Legal Profession Act could not be used as ICBC was not the Plaintiff’s lawyer’s client.  Master Baker disagreed and found that the Court did have jurisdiction to resolve this dispute.  In dismissing ICBC’s challenge to the Court’s jurisdiction Master Baker provided the following reasons:

[9] Mr. Wright submits a narrow point, that this court has jurisdiction under ss. 69(1) and 70(3)of the LPA to consider the account.  Those sections read:

69  (1) A lawyer must deliver a bill to the person charged.

and

70 (3) Subject to subsection (11), a lawyer may obtain an appointment to have a bill reviewed 30 days or more after the bill was delivered under section 69.

He argues that a party need only conform to the very narrow definition of “person charged” to be subject to the provisions and process of the LPA, and need not be the solicitor’s client per se.  He likens the whole issue to a simple contract; Ms. Reynolds requested/offered, he accepted, and thereby a contract, of sorts, arose.  He does not specifically claim a contractual right in this transaction but simply uses the analogy and submits that “the person charged” need not be a client, but need only be a party that has agreed to pay for whatever service has been requested. ..

[17] First, there is no question that a conventional solicitor/client relationship need not be established to bring a matter within ss. 69(1) and 70(3)…

[21] Even so, and notwithstanding Mr. Wright’s argument that he does not have to prove that complying with Ms. Reynolds’ request was giving a legal service, I think it was.  There is absolutely no doubt that the process of obtaining and forwarding medical records includes purely clerical acts, but it would be a mistake to ignore other aspects that include legal expertise and judgment.  Ms. Aviss’ evidence is that Mr. Wright routinely reviews the records on receipt and prior to forwarding copies.  It is the responsibility of all litigation counsel to review documents for relevance, privilege, and, occasionally, privacy.  Medical records, in particular, routinely cause disputes as to the proper form of production; should they be produced unedited (in British Columbia the so-called Jones format), or should they be redacted (the Halliday format)?  The only way for that to proceed is for counsel to exercise legal skills and judgment.  That’s a legal service.

[22] I do not consider the court constrained in this proceeding by the definitions contained in the Social Service Tax Act.  The definitions and exclusions in that Act are for specific application of the purpose of that Act; i.e. the taxation of various goods and services.  They cannot have such a broad application that they trench on or restrict another statute.

[23] There is no doubt that there was an agreement between ICBC and Mr. Wright but, as in Walker and Wilson, I have the same question to answer as did Master Horn.  What did the parties agree to?  I have concluded that the parties agreed that ICBC would pay Mr. Wright’s reasonable costs of the process, and that the costs were not restricted either solely to indemnifying the doctor’s charges for the copies, nor to eventual party and party tariff costs/disbursements.  As with Walker and Wilson, if there was misunderstanding it was on Ms. Reynolds’ part.  I conclude that all elements in the context of this transaction lead to the conclusion that what was reasonably intended was reimbursement of both payment to the medical office and a photocopying charge by Mr. Wright’s office…

[26] Mr. Wright’s account to ICBC for obtaining, photocopying, and forwarding the records of a non-party is a charge properly brought by appointment under the LPA.

$15,000 Non-Pecuniary Damages for "Minor Aggravation" of Pre-Existing Knee Injury

Written by admin on . Posted in ICBC Knee Injury Cases.

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for an aggravation of a pre-existing knee injury.
In yesterday’s case (Everett v. Solvason) the Plaintiff “blew out his left knee” while playing softball in the summer of 2008.  The following month he was involved in a motor vehicle collision.  The crash aggravated his knee pain.  Following the crash the plaintiff had an MRI which revealed “a complex tear to the medial meniscus and a probable partial tear of the ACL”

At trial the main issue was what relationship the collision had to these injuries.  The Court ultimately found that these injuries were caused by the softball injury but sustained a “minor aggravation” in the collision.  In awarding damages of $15,000 Mr. Justice Jenkins provided the following reasons:
[21] The defence called Dr. Brian Day, an orthopaedic surgeon, who never did examine Mr. Everett but did review a great many reports and other documents including medical records which were in evidence at this trial. He concluded that the softball injury of July 30, 2009 was responsible for the injury to the left anterior cruciate and medial meniscus, i.e. the left knee injuries. In cross examination Dr. Day was clear that the accident of September 3, 2009 was not the cause of the knee injuries, in that he said that these kind of knee injuries are the result of a significant rotational movement in which the knee pops, swells, bleeds and would be the main complaint of the injured party. According to Dr. Day, the plaintiff having planted his left foot in anticipation of the impact from the vehicle behind would not likely have caused these injuries. The nature of the left knee injury is, however, consistent with the plaintiff’s description of the softball incident. It is clear to me, especially from Dr. Day’s evidence, that the cause of the knee injury was the softball incident. However, he did say that the accident could have resulted in a further tear of the medial meniscus originally torn in the softball incident. In the circumstances, I find that the plaintiff likely suffered a minor aggravation to the knee injury as a result of the September 3, 2009 accident…
[39] …I find a reasonable award for general damages for pain and suffering is in the amount of $15,000.

Document Production Obligations and the New Supreme Court Civil Rules

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized. 160 Comments on Document Production Obligations and the New Supreme Court Civil Rules


One of the goals of the New Rules of Court was to make litigation “just, speedy and inexpensive” and to simplify the process.  One area where the Rules have fallen short of this goal is the area of pre-trial document disclosure obligations.  Under the former Rules parties were bound by one consistent (but arguably over-broad) test.  Now parties are met with a host of obligations which were well summarized in reasons for judgement released this week by the BC Supreme Court, Victoria Registry.
In this week’s case (Edwards v. Ganzer) the Plaintiff was injured in a motor vehicle collision.  A dispute arose with respect the Plaintiff’s disclosure obligations.  In resolving the dispute Master Bouck provided the following reasons summarizing the legal disclosure obligations (and dispute process) under Rule 7-1:

[39] Biehl v. Strang is the seminal decision of Punnett J. addressing (mostly) the primary obligation of document disclosure under Rule 7-1(1) (a). The remaining decisions touch upon, if not directly address, the document disclosure obligations under both Rule 7-1(1)(a) and Rule 7-1(14) of the SCCR.

[40] In addition, Master Baker has recently discussed the application of Rule 7-1 in Burgess v. Buell Distribution Corp., 2011 BCSC 1740.

[41] I understand the principles outlined in these various decisions, together with the applicable Rules, to be as follows:

a. The initial production obligation under Rule 7-1 (1) (a) (i) is limited to what is required to prove or disprove a material fact: Biehl v. Strang at para. 14;

b.  Rule 7-1(10) allows the opposing party to issue a written demand requiring the listing party to amend the original list and produce documents that should have been disclosed under Rule 7-1(1)(a)(i);

c.  In addition, Rule 7-1(11) allows the opposing party to issue a written demand requiring the listing party to amend the list and produce documents which ought to be disclosed under a test “close to” that set out in Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Company (1882), 11 Q.B.D. 55 at 63, (the “Guano test”): Global Pacific at para. 9;

d.  The distinction between the two types of disclosure provided for under Rule 7-1 is stated in Global Pacific as follows:

The question is whether a document can properly be said to contain information which may enable the party requiring the document either to advance his own case or damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, or if it may have either of those two consequences. Therefore, it is acknowledged that the initial disclosure under Rule 7-1(1) relates to a materiality requirement, but that a party can apply to the court, as the defendant did here, for broader disclosure pursuant to Rule 7-1(14).

(my emphasis.)

Para. 9

e.  Both the demand by the requesting party and the response of the opposing party should be set out in writing addressing the terms and criteria used in Rule 7-1. Whether the demand and response provide sufficient particularity is a matter of the court’s discretion;

f.  If an application is brought under Rule 7-1(13) for the listing or production of  documents, the court may either order compliance with the demand, excuse full compliance, or order partial compliance: Rule 7-1(14);

g.  The objectives of the SCCR, including proportionality, may be taken into account by the court when exercising its discretion under Rule 7-1(14). The proportionality rule can be applied to either expand or restrict the required production of documents: Global Pacific citing Whitcombe v. Avec Insurance Managers Inc., 2011 BCSC 204.

[42] Interestingly, a party may be excused from compliance with Rule 7-1(1) generally, but the court is not given the specific power to order compliance with a demand made for the listing and production of the so-called “materiality” documents. Rule 7-1(14) only specifically allows for an order requiring compliance with a broader disclosure demand under Rule 7-1(11): Global Pacific; Burgess v. Buell Distribution Corp. Whether this distinction is an oversight or intentional is difficult to say. It might well be the former, given that Rule 7-1(13) contemplates a compliance order by the court if a demand for the “material” documents is issued. The distinction is more fully canvassed in Burgess v. Buell Distribution Corp. at para. 15.

Interest on Disbursements Disallowed in Personal Injury Claim

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

Update November 17, 2014 – in Reasons released today the BC Court of Appeal overruled the below decisions and found interest on disbursements cannot be recovered.
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Update – May 17, 2013 – the below decision was overturned on Appeal.  You can click here to read about this development
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A very uncertain area of the law relates to recovery of interest on disbursements.  Last year the BC Court of Appeal declined to resolve this uncertainty.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, further weighing in on this inconsistent area of law finding that interest on disbursements is not recoverable.
In today’s case (MacKenzie v. Rogalasky) the Plaintiff was injured in a motor vehicle collision.  In the course of the lawsuit the Plaintiff borrowed $25,000 to finance the disbursements in his case. Following trial the interest on this loan was over $11,000.  The Plaintiff sought to recover this interest but Registrar Sainty declined to allow this claim.  In doing so the Court provided the following reasons:

[33]Based on all of the matters that I have considered — and I have had this matter under consideration for some time; I reviewed all of the submissions before coming here today and then today I have heard even more comprehensive submissions from counsel — I find that I am not bound by the decision of Mr. Justice Burnyeat in Milne. None of the decisions cited to me in favour of awarding interest, including Milne, are on all fours with the facts before me. Milne arose in the context of settlement of an action. Here, the matter was decided following a trial. Further, I find that Mr. Justice Burnyeat’s comments in Milne were obiter and are not binding on me. The case before me is also distinguishable from the decision of Registrar Cameron in Chandi as, in that case, counsel told the Learned Registrar that he was bound by Milne. His Honour was not given the benefit of the submissions I have had regarding the nature of that decision; nor of the impact of theCourt Order Interest Act on his decision. On that basis I may distinguish his reasons.

[34]That, of course, does not end the matter because the fundamental question still remains to be answered: Is this a disbursement that is recoverable by the plaintiff? I think that it is not on the basis of the arguments made by Mr. Parsons, most particularly those related to the impact of the Court Order Interest Act on claims of this nature.

[35]Firstly, a successful party’s right to claim disbursements does not actually arise until the action itself has been determined and so, until the judgment has been rendered, no entitlement arises to recover any costs or any disbursement. Accordingly there can be no right to claim any disbursement until the determination of the action.

[36]The decision in Milne was made without the benefit of the extensive argument that was before me, particularly the argument based on the application of the provisions of the Court Order Interest Act. That Act makes it clear that the legislature did not intend that interest be recoverable on disbursements.

[37]Nor can it be said that the object of costs (as compared to damages for a tortious act) is to return a party to his pre-litigation status and thus interest ought not to be recoverable. Costs are not intended to provide full indemnity to a successful party and the successful party is only entitled to recover necessary or proper disbursements at a reasonable amount. In my view it cannot be said that interest on disbursements is a necessary and proper adjunct of litigation. It is simply one of those unfortunate matters that arose in the circumstances of this particular plaintiff and I find it is not reasonable that the plaintiff recover it.

[38]So, for all of these reasons, I am going to disallow the plaintiff’s claim for interest paid to the third party lender in respect of the loan to fund the disbursements.

Mitigation of Damages and "Sincerely Held Religious Beliefs"

Written by admin on . Posted in Uncategorized. 49 Comments on Mitigation of Damages and "Sincerely Held Religious Beliefs"


As previously discussed, if a person fails to take reasonable steps to mitigate their damages following a personal injury the compensation they are entitled to is reduced accordingly.
There are some clear examples where a person will not be penalized for failing to mitigate their damages such as when they are financially unable to follow their doctor’s advice.  But what about pre-existing religious views?  Can a person be penalized by a damage reduction for failing to follow medical advice where their refusal to do so was based on a religious belief?  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing this interesting topic.
In this week’s case (Abdalle v. British Columbia (Public Safety and Solicitor General)) the Plaintiff suffered a head injury when he was struck at an intersection by an RCMP cruiser.  Fault for the crash was admitted.
In the course of recovery the Plaintiff failed to follow various suggestions made by his medical practitioners.  The Plaintiff argued his damages should not be reduced as this failure was based on religious beliefs.  Madam Justice Ross did not address the issue head on as she was not satisfied that the Plaintiff’s decisions were based on “sincerely held religious or spiritual objection“.  Despite this finding the Court made the following observation about this little tested area of law:

[71] In addition, counsel submits that Mr. Abdalle has spiritual and religious objections to drug use. Counsel submits that adherence to a sincerely held religious belief should not be considered a failure to mitigate damages. In counsel’s submission this should be an application of the principle of tort law that the tortfeasor takes the victim as he finds him.

[72] The medical evidence establishes that the recommended treatments would likely have assisted Mr. Abdalle, that there were no contraindications in his case and that the risks were minimal. Accordingly, unless Mr. Abdalle’s spiritual objections provide a reason to refuse treatment, I conclude that Mr. Abdalle’s refusal to follow the recommendations of his physicians was unreasonable…

[75] It appears that the particular question of whether pre-existing religious beliefs would constitute a reasonable basis for a refusal of medical treatment has not been addressed in this jurisdiction. Jamie Cassels and Elizabeth Adjin-Tettey wrote in Remedies: The Law of Damages, at pp. 292 and 393 that “there is little authority on this issue”, and cite two American decisions as guidance. Neither of these cases have been cited in Canadian jurisprudence. Moreover, from Janiak it is clear that the American position on this issue takes subjective attributes into consideration to a greater degree than in Canada (Janiak, p. 160). Cassels and Adjin-Tettey opine at p. 392 that:

According to the Janiak test, where a medical treatment is otherwise obviously required, religious or ethical objections would not provide an excuse from mitigating unless those objections rendered the plaintiff incapable of choice or could be assimilated to ‘pathological’ conditions.

[76] Ken Cooper-Stephenson also explored this topic in Personal Injury Damages in Canada and expressed a different view. He stated at p. 876 that:

[l]f a pre-existing religious belief or cultural practice inhibits or prevents the plaintiff’s capacity to choose a certain form of treatment…then it is almost certain that the plaintiff will not be adjudged unreasonable in the refusal… Defendants take their plaintiffs as they find them with respect to their religion, their culture, and their socio-economic setting.

He does not, however, provide any Canadian authority in support of this proposition.

[77] Professor Cooper-Stephenson also argues that there is a move towards subjectivism, with one approach including religious belief and cultural practice within the notion of “capacity” fromJaniak. He says, at p. 879, that as for religious belief and cultural practice:

…their recognition as fundamental constitutionally-protected interests in the Canadian Charter of Rights and Freedoms almost certainly requires that they be respected in post-action choices for the purposes of the duty to mitigate.

[78] There are two questions to be addressed in relation to this issue. The first is whether, to what extent, and under what circumstances a religious or cultural belief will be taken into consideration in addressing the plaintiff’s duty to mitigate. As noted above, it appears that the answer to this question may not be settled in Canadian jurisprudence. The second question is whether in the particular case, the plaintiff’s failure to follow a recommended course of treatment is the result of adherence of a religious or cultural belief or practice.

[79] In my view, this is not the case to make a determination with respect to the first question because I have concluded that the factual foundation is simply not made out for the Court to conclude that the reason for the refusal of treatment was a sincerely held religious or spiritual objection on the part of Mr. Abdalle…

[81] In the result, I am satisfied that Mr. Abdalle’s refusal to take the Nortriptyline prescribed by Dr. Dhawan and his failure to follow the recommendation to take facet block injections was not the product of a religious or spiritual objection. In addition, I find Mr. Abdalle’s failure to continue with swimming, to become more active, to attend a further course of physiotherapy, to take the Nortriptyline as prescribed and the facet block injections as recommended was unreasonable in all the circumstances and in breach of his duty to mitigate.

$75,000 Non-Pecuniary Damage Assessment for Chronic Soft Tissue Injuries and PTSD

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

Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, assessing damages arising from injuries sustained a motor vehicle collision.
In last week’s case (Smith v. Williams) the Plaintiff was a young veterinarian.  She was involved in a 2009 collision.  The Defendant crossed the centre-line and caused a head-on collision.  The Plaintiff sustained chronic soft tissue injuries and Post Traumatic Stress Disorder (PTSD).  The Plaintiff’s symptoms were on-going at the time of trial.  In assessing non-pecuniary damages at $75,000 Mr. Justice Betton provided the following reasons:

[33] The plaintiff indicated that the accident has left her with a feeling of vulnerability. She is very anxious in a motor vehicle, especially on highways, envisioning accidents unfolding. There are occasional panic attacks. She gets a tingling and pain down her right arm that is aggravated by repetitive motion and particular movements or positions. One of these, I note, was holding her child while breastfeeding. Others relate to her work as a vet.

[34] She spoke of how the physical and psychological injuries have adversely affected her enjoyment of her wedding and her regret for how she reacted to the stresses associated with the wedding toward her husband. For her part, the plaintiff indicates that she simply battles through her restrictions. She says that the more physically demanding her day, the greater the consequences in symptoms…

[43] This plaintiff is a young professional, early in her career. She has historically been a high-achiever, endowed with intelligence, motivation and physical ability. The motor vehicle collision came as she was planning her wedding and the purchase of a business. Her wedding, as described by her, was not the enjoyable experience that she, as a young woman, had dreamed of.

[44] The purchase of the business completed, and she has been able to live up to the work demands of that practice, facilitated in part by the fact that it is less demanding than work she did prior to acquiring the practice. In addition, her absence for maternity leave coincided with her rehabilitation. She has actively engaged in rehabilitation during all of the significant developments in her life, including being a new mother. The Post Traumatic Stress Disorder symptoms linger and also influence the enjoyment of an activity which is part of everyday life, that is, driving…

[53] Taking what one can from those authorities and applying the general principles, as referenced in Stapley, it is my conclusion that an appropriate award for general damages is $75,000.

The Blunder of No-Fault Insurance

Written by admin on . Posted in Tort Reform, Uncategorized.


One of the foundations of our tort-system is accountability.  Those harmed at the hands of others careless or criminal actions deserve compensation.  Those who act carelessly and cause harm ought to be held accountable by providing the compensation.  This goes to our basic understandings of fairness.
When governments decide to strip people of their right to sue and instead create no-fault systems of compensation accountability is removed from the picture.  This can lead to absurd results as demonstrated in a story published last week by the Globe and Mail.
Accountability matters.  At its most basic level no-fault insurance takes away compensation rights of victims and redistributes these to those that cause harm.  Examples such as the one pointed out by the Globe and Mail should act as a reminder to Government that removing accountability from the Civil Justice System is a fundamentally flawed policy.

Fault For Rear End Collision Following Lane Change Discussed

Written by admin on . Posted in ICBC Liability (fault) Cases. 118 Comments on Fault For Rear End Collision Following Lane Change Discussed

Reasons for judgement were released last week discussing fault for a rear-end motor vehicle collision which occurred after the Plaintiff made a lane change into the Defendant’s lane of travel.
In last week’s case (Perry v. Ismail) the Plaintiff was driving in “bumper to bumper” traffic in the right lane of a highway.  There were few vehicles in the left lane as it was closed to traffic ahead further up the roadway.  The Plaintiff made a lane change into the left hand lane and shortly after he was rear-ended by the Defendant.

Although collisions such as these can be caused by the fault of both motorists in last week’s case the Court determined that the Defendant was fully at fault for the crash for failing to keep a proper lookout.  In assessing the Defendant 100% liable Madam Justice Hyslop provided the following reasons:

[25] Before making his lane change, Mr. Perry shoulder checked and put on his signal light indicating his intention to change lanes. He concluded and I accept he could make the lane change safely. I do not accept Mr. Perry’s evidence that he actually recalls independently at the time of trial doing all of those checks before making the lane change. I do accept that he signalled, looked in his mirrors, did a shoulder check and decided that it was safe to change lanes.

[26] Mr. Perry had completed his lane change and was travelling at least 40 kilometres per hour, accelerating, and had not reached his intended speed when the rear end collision occurred.

[27] Mr. Ismail occupied the left lane and was he aware that vehicles might change lanes given the traffic conditions in the right lane.

[28] As Mr. Ismail drove in the left lane there was nothing to obscure his vision. He did not see the Perry vehicle until the very last moment when he slammed on his brakes, colliding with the rear of the Perry vehicle. He did not see the Perry vehicle’s signal, nor the change of lanes. I find that Mr. Ismail came upon Mr. Perry who was about four to five car lengths ahead of the Kelly vehicle and accelerating. Mr. Ismail should have seen the Perry vehicle signal and should have seen the lane change and should have seen the Perry vehicle ahead of him. He did not see any of these events.

[29] I conclude that Mr. Ismail was negligent in that he was not paying attention and failed to keep a proper lookout for other vehicles as he drove in the left lane on Lougheed Highway. When the Perry vehicle was finally seen by him it was too late. He slammed on his brakes and struck the Perry vehicle.

[30] I find all the witnesses to the accident to be truthful and they did their best to recall the events. Mr. Ismail did not attempt to explain away the accident. He was transparent, despite the fact there may be consequences to him from his employer.

Are BC Taxpayers Getting Short Changed When it Comes to Subsidizing Medical Malpractice Insurance?

Written by admin on . Posted in Uncategorized. 51 Comments on Are BC Taxpayers Getting Short Changed When it Comes to Subsidizing Medical Malpractice Insurance?


The above image was taken from the BC Government Website where they recently launched a “budget calculator” permitting the public to play around with various tax revenues and expenditures.  The calculator is far from complete, however, leaving many expenses out of bounds.  One expense which is absent is the CMPA fee subsidy.
I recently wrote how BC taxpayers subsidize the defence of doctors in medical malpractice lawsuits.  This issue has also received media scrutiny by legal reporter and former lawyer Alan Shanoff.  I questioned the propriety of this given the long term under-funding of legal aid and BC’s Justice System.
It seems that Ontario taxpayers will be receiving a break from this subsidy in 2012.  A longstanding reader of my blog who does not care to be named notes that taxpayers in Ontario will not be on the hook for CMPA fees for 2012.
The CMPA reports that “The payment of medical liability protection costs in Ontario is guided by two agreements. Firstly and as is the case in other provinces, Ontario physicians benefit from a program that reimburses them for a portion of their CMPA membership fees…For members, the substantial reduction in total CMPA fees translates into individual fees for 2012 that are at, or below, 1986 levels. As the reimbursement program is based on a 1986 threshold, the program will be suspended for 2012 while members “out-of-pocket” costs will remain consistent with previous years. ”
As things stand BC taxpayers will not get the same benefit with the public continuing to subsidize CMPA membership fees despite the CMPA “holding $572 million in unrestricted net assets”. I again ask who is a better beneficiary of the $50 plus million dollars the BC Government has used to subsidize liability insurance dues, the CMPA with half a billion dollars in unrestricted net assets, or BC’s poorest who require legal aid to gain access to justice?

What Happens if Your Judge Falls Ill After Trial But Before Judgement?

Written by admin on . Posted in BCSC Civil Rule 23. 126 Comments on What Happens if Your Judge Falls Ill After Trial But Before Judgement?


It is not uncommon for judges to reserve their reasons for judgment after a trial concludes.  Sometimes this can take many months.  What happens if a judge becomes ill or dies during this period of time?  Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, dealing with such a scenario.
In this week’s case (Walsh v. GMAC Leasco Corporation) the Plaintiff was injured in a motor vehicle incident.  After trial concluded the presiding judge reserved his reasons.  He fell ill and he could not render judgement.  As required by the BC Supreme Court Rules the Associate Chief Justice appointed a new judge to conclude the matter.   Complicating matters further the Plaintiff’s lawyer died before the new judge was appointed.
The parties could not agree on how best to finalize the matter.  The Plaintiff argued the new judge could review the transcripts from the trial and render a decision.  The Defendant argued a new trial was necessary.  Mr. Justice Johnston decided that the best resolution would be to review the transcripts and address the recalling of witnesses on an individual basis.  The Court provided the following reasons:

[11] Present Rule 23-1(10) is almost identical to former Rule 64(10) and any difference between present Rule 23-1(11) and former Rule 64(11) appears to be mostly in layout rather than substance.

[12] My primary concern is how best to do justice between the parties to this action. In the unusual circumstances of this case, the plaintiff’s stated desire to have the matter retried on the transcripts of the evidence and argument already given should be given greater weight in light of the fact that the counsel chosen by her to carry her case through trial is no longer available to act for her.

[13] The controversy surrounding the written opinion I expect will have been fully argued, that argument will be reproduced in the transcript, and I will be in an equally good position to identify portions of the opinion that are either inadmissible or to which little weight should be attached.

[14] I am persuaded that the appropriate exercise of my discretion under Rule 23?1(11) is to direct that the re-trial be on the official transcript of the evidence heard at the original trial, together with the exhibits filed. That transcript will contain the submissions of counsel on any issues that arose during the trial, together with opening and closing arguments.

[15] I give leave to the parties to apply to have the evidence of any witness reheard orally, but no such application can be made until the transcripts have been received and a suitable time has lapsed to permit reading of those transcripts.