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Getting to Peruvian Guano

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized. 153 Comments on Getting to Peruvian Guano

Yesterday morning I was teaching as a guest instructor at PLTC (the BC Bar Exam Course) overseeing a Courtroom skills exercise.  During the mock court application I asked the soon to be lawyers under what circumstances the Pervuian Guano test applied for document production.  Little did I know my  question was being answered just across town by Master Bouck who released reasons for judgement addressing this topic at length.
As previously discussed, the New BC Supreme Court Rules replaced the Peruvian Guano test for document production with the narrower test of documents that “prove or disprove a material fact”.  However, the rules allow for the Peruvian Guano test to kick in through the second tier of document production set out in Rules 7-1(11),(12) and (13).  Master Bouck addressed exactly what’s necessary to get to the Peruvian Guano stage.
In yesterday’s case (Przybysz v. Crowe) the Plaintiff was injured in a motor vehicle collision.  ICBC’s lawyer brought an application for the production of various records.  The application was largely unsuccessful however before dismissing it the Court provided the following useful feedback about the requirements necessary to get to the Peruvian Guano stage of document disclosure:

[27] …this application is, in fact, brought pursuant to Rules 7-1(11), (12) and (13). Those Rules contemplate a broader scope of document disclosure than what is required under Rule 7-1(1)(a) Indeed, the two tier process of disclosure (if that label is apt), reflects the SSCR’s objective of proportionality. In order to meet that objective, the party at the first instance must put some thought into what documents falls within the definition of Rule 7-1(1)(a)(i) but is not obliged to make an exhaustive list of documents which in turn assists in the “train of inquiry” promoted in Compagnie Financiere du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 at pp. 62-63(Q.A.).

[28] Only after a demand is made under Rule 7-1(11) for documents that relate to any or all matters in question in the action and the demand for productions is resisted can a court order production under Rule 7-1(14). It should be noted that in this case, the demand (and indeed order sought) is for production of additional documents, not simply a listing of such documents: seeRules 7-1(1) (d), (e) and (f).

[29] The court retains the discretion under Rule 7-1(14) to order that the party not produce the requested list or documents. Again, the court must look to the objectives of the SCCR in exercising this discretion.

[30] As to the form and substance of the request, it has been suggested by Master Baker that:

… there is a higher duty on a party requesting documents under … Rule 7-1(11) … they must satisfy either the party being demanded or the court … with an explanation “with reasonable specificity that indicates the reason why such additional documents or classes of documents should be disclosed” …

Anderson v. Kauhane and Roome (unreported, February 22, 2011, Vancouver Registry No. M103201) at para. 4

[31] A similar higher duty or burden rests with the party rejecting the request under Rule 7-1(12): see Conduct of Civil Litigation in B.C (2nd edition), Fraser, Horn & Griffin @ p. 17-7. In my view, the burden is not met by stating that documents will not be produced simply because of the introduction of the SCCR.

[32] The objective of proportionality might also influence the timing of requests for broader document disclosure. The court has observed in More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166, that under the SCCR:

… the duty to answer questions on discovery [is] apparently broader than the duty to disclose documents.

para. 7.

And further:

… if the court is to be persuaded that the broader document discovery made possible by rule 7-1(14) is appropriate in a particular case, some evidence of the existence and potential relevance of those additional documents will be required. The examination for discovery is the most likely source of such evidence.

para. 8.

[33] Nevertheless, neither the court nor the SCCR require that an examination for discovery precede an application under Rules 7-1(13) and (14). Depending on the case, proportionality and the existing evidence might support pre-examination document disclosure so that the examination can be conducted in an efficient and effective manner….

[40] It is suggested by the learned authors of Conduct of Civil Litigation in B.C. that authorities decided under former Rule 26(11) may be applicable to an application for broader disclosure of documents under Rules 7-1(11) – (14): p. 17-7. That suggestion is not inconsistent with Master Baker’s ruling. Again, the questions for the court will be what evidence is presented and does an order for production achieve the objective of proportionality?

Master Bouck also released a second set of reasons (Baldertson v. Aspin) with this further useful feedback of the intent of Rule 7-1(11):

[29] The intent of Rule 7-1(11) is to inform the opposing party of the basis for the broader disclosure request in sufficient particularity so that there can be a reasoned answer to the request. TheRule allows the parties to engage in debate or discussion and possibly resolve the issue before embarking on an expensive chambers application. Whether this debate or discussion was had verbally in this case is not clear on the record.

[30] Nor does it appear that any written request was made to the plaintiff to list documents relating to the 2001 motor vehicle accident. Again, the Rules appear to have been ignored as a matter of expediency.

[31] Nevertheless, the plaintiff did not seek an adjournment of the application so that the process under Rules 7-1(10), (11) and (12) could be followed. The parties proceeded on the basis that the plaintiff declined the defence’s requests for additional document disclosure and/or the listing of those additional documents. In this particular case, the objectives of the SCCR are met by dealing with the merits of the application rather than rejecting the application on procedural grounds.

BC Court of Appeal Discusses Forseeability Limits With Psychiatric Injuries

Written by admin on . Posted in ICBC Head Injury Cases, ICBC Psychological Injury Cases, Uncategorized. 52 Comments on BC Court of Appeal Discusses Forseeability Limits With Psychiatric Injuries


Reasons for judgement were released this week by the BC Court of Appeal succinctly highlighting some of the limits of the forseeability defence to personal injury lawsuits.
In today’s case (Hussack v. Chilliwack School District No. 33) the Plaintiff sustained a concussion when struck in the head with a field hockey stick as he approached another player.  He was a student in grade 7 at the time and the game was being supervised by a PE teacher.  Madam Justice Boyd of the BC Supreme Court held that the School District was responsible for this event because the teacher permitted the Plaintiff to play before he “learned any of the basic skills or even how to play the game” and that doing so breached the standard of care that the school should have exercised.
The Plaintiff developed serious psychological issues following his concussion.   At trial the Plaintiff was awarded  just over $1.3 million for his injuries and loss.
The School District appealed for many reasons but were largely unsuccessful.  The BC Court of Appeal made some modest reductions to the wage loss awards but left the trial judgement largely intact.  One of the Defendant’s arguments was that the Plaintiff’s severe psychiatric dysfunction was not a forseeable consequence of the event.  The BC Court of Appeal rejected this argument and in doing so provided the following useful reminder of the limits of the forseeability defence:
[71] It is not necessary for the plaintiff to show that the precise injury or the full extent of the injury was reasonably foreseeable.  What he must show is that the type or kind of injury was reasonably foreseeable:  Hughes v. Lord Advocate, [1963] UKHL 1; Jolley v. Sutton London Borough Council, [2000] UKHL 31; Ontario (Minister of Highways) v. Côté, [1976] 1 S.C.R. 595….
[74] The principle of reasonable foreseeability in relation to psychiatric injury is subject to a qualification:  where the psychiatric injury is consequential to the physical injury for which the defendant is responsible, the defendant is also responsible for the psychiatric injury even if this injury was unforeseeable.  See White v. Chief Constable of South Yorkshire Police, [1999] 2 A.C. 455 at 470, Varga v. John Labbatt, [1956] O.R. 1007, 6 D.L.R. (2d) 336 (H.C.);  Yoshikawa v. Yu (1996) 21 B.C.L.R. (3d) 318, 73 B.C.A.C. (C.A.);  Edwards v. Marsden, 2004 BCSC 590; Samuel v. Levi, 2008 BCSC 1447.

Servient Driver Found 100% at Fault for Intersection Collision

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

Reasons for Judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for an intersection collision.
In today’s case (Minosky v. Brar) the motorists were involved in a two vehicle collision.  They both claimed the other was at fault and both sued each other.  Both trials were heard at the same time.
The collision occurred at the intersection of 121st Street and 64th Avenue in Surrey, BC.  The Minosky vehicle was heading northbound on 121st.  He was faced with a stop sign.  The Brar vehicle was heading in the ‘fast’ eastbound through lane on 64th.  As the Minosky vehicle attempted to drive through the intersection he struck the Brar vehicle.

Madam Justice Brown found the Minosky vehicle 100% at fault for the collision for failing to yield the right of way and not complying with the duty set out in s. 175 of the Motor Vehicle Act.  In coming to this conclusion the Court provided the following useful reasons:

[8] I conclude that the Brar vehicle was much closer than Mr. Minosky believed it to be when he left the intersection.  It was an immediate hazard.  Ms. Brar was not speeding and was attending to traffic.  She had no opportunity to stop and avoid the collision.

[9] Mr. Minosky argues that, based on Ms. Brar’s estimates of speed and distance, Ms. Brar would have had ample opportunity to avoid Mr. Minosky’s vehicle if she saw him moving out from the stop sign.  Mr. Minosky argues that Ms. Brar said that she was some two to five car lengths from Mr. Minosky when she concluded that he wasn’t going to stop.  Had this been so, she would have travelled by Mr. Minosky before he had an opportunity to enter her lane of travel.

[10] This argument places too much weight on Ms. Brar’s estimates of distance.  When she first concluded that Mr. Minosky was not going to stop, it would have been an emergency situation.  She said she slammed on her brakes and honked, but was not able to avoid the collision.  In these circumstances, I do not expect that a person would be able to measure with precision the distance between her vehicle and the vehicle with which she was about to collide.  I give little weight to Ms. Brar’s estimates of distance.  Many people are poor judges of distance.  However, I do accept her evidence of how the collision happened.

[11] Section 175 of the Motor Vehicle Act places the burden on Mr. Minosky to yield to traffic that is approaching so closely that it constitutes an immediate hazard.  Mr. Minosky has not satisfied me that he yielded as required.  Rather, I have concluded that when he entered the intersection, the Brar vehicle was an immediate hazard.  I find that Mr. Minosky is 100% at fault.

Access to Discovery and Summary Trial "Sufficient Reason" to Sue in Supreme Court

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


As previously discussed, a litigant who receives less than $25,000 in damages following a Supreme Court trial is dis-entitled to costs unless they have ‘sufficient reason’ to sue in the Supreme Court.  Reasons for judgement were released today canvassing this area of law.
In today’s case (Mehta v. Douglas) the Plaintiff was injured in a motor vehicle collision.  He sued and following trial was awarded just over $18,000 in damages.  ICBC argued the Plaintiff should not be awarded costs because he did not have sufficient reason to sue in the Supreme Court.  Mr. Justice Harris disagreed and found that access to examinations for discovery and summary trials were were sufficient for commencing the lawsuit in the Supreme Court.  In awarding the Plaintiff costs the Court provided the following reasons:

[9] I accept the submissions of the plaintiff. In my view, the plaintiff required counsel to present her case. It would be unjust to deny her costs that would permit her partially to defray the expense of retaining counsel. Although it would have been difficult to predict at the outset whether this matter would prove to be suitable for summary determination, the availability of examinations for discovery and the possibility of summary trial are both factors that in the circumstances of this case are sufficient to justify starting the action in this court. The availability of these procedures and their potential to promote a proportionate and efficient use of resources is something that would be known at the outset. In my view, it would be unjust to deprive the plaintiff of costs in circumstances where knowing of those procedures she has subsequently used them efficiently.

[10] Although the plaintiff did not initially plead the injuries that ultimately formed the primary basis of the summary trial, I accept that it is appropriate to be cautious in assessing what could reasonably be predicted as the quantum for a damages claim when the action is started, particularly in the case of an infant. While on the facts that were known concerning the minor nature of the plaintiff’s soft tissue injuries and the speed with which they had resolved, it would have been unlikely that the award would exceed the small claims jurisdiction, but the exact value of the claim nevertheless could not be predicted accurately. Given the uncertainties facing the plaintiff at the time she started the action, it was not unreasonable to start it in this court.

[11] Taking all of these factors into account, I am of the view that the plaintiff had sufficient reason to start this action in this court and accordingly she is entitled to her costs in accordance with Schedule B.

$80,000 Non-Pecuniary Damages Assessment for L4-5 Disc Injury

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Spine Injury Cases, Uncategorized.


Reasons for judgement were released yesterday by the BC Supreme Court, assessing damges for non-pecuniary loss (pain and suffering and loss of enjoyment of life) for an L4-5 disk herniation.
In yesterday’s case (Doho v. Melnikova) the Plaintiff was involved in two seperate collisions.  Fault was admitted in both actions leaving the Court to assess damages.  The first collision caused a disk injury at the 4-5 level of the Plaintiff’s lower spine.  The second collision resulted in a minor aggravation of this.
The prognosis for recovery was poor and the Plaintiff was expected to experience ongoing pain and discomfort in his lower back as a result of the first collision.  In assessing non-pecuniary damages at $80,000 for the first collision Mr. Justice Rogers provided the following reasons:

[38] The first accident caused a significant injury to Mr. Doho’s lower back. He sustained a disk hernia at the L4-5 level of his spine. That hernia impinged on his spinal nerves and caused him severe pain for the first three or four months after the accident. He also suffered from headaches and a sore neck. Those latter symptoms resolved by three months after the accident. Mr. Doho’s leg pains dissipated by approximately four months after the accident, but he was left with ongoing low back discomfort. His pain is increased by lifting, playing sports such as golf, standing or sitting for lengthy periods of time. Because surgery is not an option at this point, I have concluded that Mr. Doho’s condition is permanent.

[39] I find that Mr. Doho’s non-pecuniary damages arising out of the November 2006 accident should be assessed at $80,000.

This case is also worth reviewing for the Court’s discussion of the principle of ‘failure to mitigate‘ at 49-53.

How Much Do British Columbians Love The Canucks?

Written by admin on . Posted in Uncategorized. 143 Comments on How Much Do British Columbians Love The Canucks?


OK, this is one of my rare off-topic posts.  As my frequent readers know, while my home-base is Victoria, I travel throughout BC prosecuting injury claims.  I happened to be in Vancouver during Game 1 of the 2011 Stanley Cup Finals and thought I’d show the following photos demonstrating how hockey crazy this Province is.
The Before picture was taken during the third period with downtown being a virtual ghost town with little more than buses and taxis occupying the normally busy streets.   The After picture is of Granville Street which erupted into a instant street party with tens of thousands of celebrants minutes after Raffi Torres’ game winning goal.  Go Canucks Go!

Wrongful Death Law Reform in BC Closer to Reality

Written by admin on . Posted in Tort Reform, Uncategorized. 61 Comments on Wrongful Death Law Reform in BC Closer to Reality


As previously discussed BC’s Family Compensation Act(the statute dealing with lawsuits for damages for wrongful death in BC) is out of date, inadequate and in need of reform.  I’ve had the unfortunate experience of fielding too many phone calls over the years explaining that the wrongful death of many people was seen as worthless in the eyes of the law.  Members of the Trial Lawyers Association of BC along with other organizations such as the BC Coalition of People With Disabilities have been working for years to persuade the government that reform is needed in this area of law.  It seems all of this effort is slowly but surely paying off.
West Vancouver MLA Ralph Sultan has introduced a Bill which seeks to amend BC’s outdated Family Compensation Act.   Mr. Sultan stated as follows when introducing the Bill “The Family Compensation Act Amendment Act would permit the court to award damages up to specified limits for grief, and loss of guidance, care, and companionship to spouses of deceased persons as well as parents and children…This amendment is a carbon copy of the statute currently on the books in Alberta granting the potential for the court to grant awards, within limits, for those who have suffered the tragedy of wrongful death. The Family Compensation Act Amendment Act is consistent with the families-first agenda of this government.“
The Bill is titled “The Family Compensation Act Amendment Act” and can be found here.  It is designed to provide greater accountability for those who take the life of another in BC and will bring better compensation rights for families who lose a loved one through the wrongful act of another.  Specifically it seeks to amend section 3 of the FCA by adding the following provision:


(10) If an action brought under this Act, the court, without reference to any other damages that may be awarded and without evidence of damage, shall award damages for grief and loss of the guidance, care and companionship of the deceased person of

(a) subject to subsection (3), $75,000 to the spouse ofthe deceased person,

(b) $75,000 to the parent or parents of the deceased person to be divided equally if the action is brought for the benefit of both parents, and

(c) $45,000 to each child of the deceased person.

(11) The courts shall not award damages under subsection 10 (a) to the spouse if the spouse was living separate and apart from the deceased person at the time of death.




I should point out that this new Bill is not law yet and likely won’t go beyond first reading before the Legislature’s Spring session closes on June 2, 2011.  The proposed amendment is a step in the right direction but can certainly go further in bringing meaningful compensation to those who lose a loved one through others actions.  I suggest all who support this much needed reform take a brief moment to contact Ralph Sultan and thank him for tabling this welcome legislation  along with making suggestions to improve these amendments before they become law.

Government Introduces Bill Giving ICBC Direct Access to Your Medical Records

Written by admin on . Posted in ICBC Privacy Issues, Tort Reform, Uncategorized. 55 Comments on Government Introduces Bill Giving ICBC Direct Access to Your Medical Records


Today Bill 13 (The Miscellaneous Statutes Amendment Act No. 2) received First Reading. I’ve had a chance to review some of these newly proposed laws and came across a potentially troubling section seeking to give ICBC significant powers to access the medical records of British Columbians.
Specifically, the Government is proposing to amend section 25 of the Motor Vehicle Act as follows:






Information-sharing agreement for Medicare Protection Act purposes

25.02 (1) The Insurance Corporation of British Columbia may enter into an information-sharing agreement with the Medical Services Commission under the Medicare Protection Act for the purposes of collecting, using and disclosing personal information necessary for the administration of

(a) section 25 (1.3) of this Act, and

(b) the Medicare Protection Act, as it relates to the enrollment and renewal of enrollment of beneficiaries under that Act.

(2) If the Insurance Corporation of British Columbia enters into an information-sharing agreement under subsection (1), the Insurance Corporation of British Columbia may, in accordance with the agreement, collect and use personal information from, and disclose personal information to, the Medical Services Commission.







This new power is being given to ICBC to help introduce a new Care Card which is designed to cut down on fraud.  While fraud protection is laudable its important not to exceed this goal by unnecessary erosion of the privacy rights of British Columbians.  A review of the proposed change does not seem to put any concrete limits on ICBC’s power to access medical records or the use these can be put to once obtained.
If you have concerns about this new proposed power I suggest you contact your local MLA or BC’s current Minister of Public Safety and Solicitor General (Shirley Bond) and voice these before this bill passes into law.

Want of Prosecution, Proportionality and the New Rules of Court

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 22, BCSC Civil Rule 9, Uncategorized. 125 Comments on Want of Prosecution, Proportionality and the New Rules of Court

One of the overarching changes in the current Suprene Court Rules is the introduction of the principle of ‘proportionality’.  When any applicaiton is brought before the Court the presiding Judge or Master must consider this concept in applying the Supreme Court Rules.  Reasons for judgement were released last week by the BC Supreme Court, Chilliwack Registry, discussing this in the context of a dismissal application.
In last week’s case (Ellis v. Wiebe) the Plaintiff sued various Defendants for alleged misrepresentation in the course of a purchase and sale agreement relating to property.   The lawsuit started in 2004 and by 2011 still had not been resolved.
The Defendant Wiebe brought an application to dismiss the lawsuit for want of prosecution (failure to prosecute in a timely fashion).  Madam Justice Bruce held that while the delay in the prosecution was inordenate and inexcusable there was no prejudice and did not dismiss the claim for this reason.  The Court did, however, go on to dismiss the claim on it’s merits.  Prior to doing so the Court made the following findings with respect to the application of the proporitonality principle in want of prosecution applications:
[8] The parties do not dispute the test to be applied by the court in determining whether an action should be dismissed for want of prosecution. The test is concisely summarized in Shields v. Nishin Kanko Investments Ltd., 2008 BCSC 36 at para. 25, wherein Mr. Justice Parrett cites the comments of Scarth J. at para. 3 of March v. Tam, 2002 BCSC 1125:

… I conclude that the principles of law which govern the exercise of the Court’s discretion in the circumstances of this case may in summary form be stated as follows: The defendants must establish that there has been inordinate delay and that this delay is inexcusable. If those two factors are established a rebuttable presumption of prejudice arises and the onus shifts to the plaintiff to prove on a balance of probabilities that the defendants have not suffered prejudice or that on balance justice demands that the action not be dismissed.

[9] The authorities also consistently hold that the court must look to the objects of the Supreme Court Rules as these relate to the particular circumstances of the case to determine whether an action should be dismissed for want of prosecution….

[10] When the Supreme Court Rules were amended in July 2010, a new subsection was added to Rule 1-3 to further refine the meaning of “just, speedy and inexpensive determination”. Rule 1-3 (2) provides as follows:

(2)   Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a)      the amount involved in the proceeding,

(b)      the importance of the issues in dispute, and

(c)      the complexity of the proceeding.

[11] In my view, Rule 1-3 (2), in part, reflects the approach adopted by our Court of Appeal to the issue of dismissal for inordinate delay; that is, the facts of each case have a significant impact on the outcome of any particular application for dismissal based on want of prosecution. While the principles of law are relatively straightforward, it is the application of these principles to widely varied fact situations that is critical. As noted in Rhyolite Resources Inc. v. CanQuest Resource Corp., 1999 BCCA 36, at para. 16:

Cases vary so infinitely that it is not always easy to apply to one factual situation the decision in another very different factual situation. However, it is the task of the court to seek to apply in a rational fashion the principles that have been laid down in the decided cases, always bearing in mind that the facts in each case are going to have a significant influence on the actual outcome of the individual application. I believe, with respect, that this approach or principle can be found well expressed in a case that was cited to us, Lebon Construction Ltd. v. Wiebe (1995), 10 B.C.L.R. (3d) 102 (C.A.), a recent decision of this court. That was a builder’s lien case and in that class of case, one would expect a swifter pace to the action than might be the case of say a personal injury case where a very serious injury and the course of recovery of a plaintiff must be assessed over time. Although it is always desirable to move on promptly with litigation, the simple fact is that in certain cases the interests of justice demand a rather more stately and measured pace than would be proper with regard to another class of action. Although it is desirable that all cases proceed with reasonable promptitude, the key word is reasonable and the ultimate consideration must always be: what are the interests of justice?

Back From Maui and Back to Blogging

Written by admin on . Posted in Uncategorized. 118 Comments on Back From Maui and Back to Blogging


If you’ve noticed the frequency of posts have been down over the past 10 days and the cases posted have been modestly dated, you’re right.  I was away in Maui with my family on a much enjoyed vacation.  I tried my best to leave work behind and that included this blog which I updated from archived posts while I was away.  I’m now back and look forward to continued blogging and growing this BC Injury Caselaw Database, Aloha!