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The Significant Role of Expert Evidence in Personal Injury Trials

Written by admin on . Posted in BCSC Civil Rule 11, ICBC Brain Injury Cases, ICBC Head Injury Cases, Uncategorized.

When presenting a claim at trial dealing with future loss it is vital to have appropriate expert evidence to justify sought damages.  Failure to do so can result in a dismissal of the sought damages even if they are unopposed.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry highlighting the importance of medico-legal evidence in personal injury trials.
In this week’s case (Moore v. Briggs) the Plaintiff suffered a fractured skull (fractured left temporal bone) and a brain injury in a 2003 assault.

The Plaintiff sued those he claimed were responsible for the assault.  One of the Defendant’s did not respond to the lawsuit and the Plaintiff obtained default judgement against him.  The Plaintiff asked the Court to award substantial damages including an award for diminished earning capacity.  Despite the Plaintiff’s assessment of damages being unopposed the Plaintiff was only awarded a fraction of his claimed damages and he received nothing for future loss.
In assessing non-pecuniary damages at $40,000 and dismissing the claim for diminished earning capacity Madam Justice Dillon provided the following reasons:

[11] As a result of the assault, the plaintiff continues to have some problem with memory. This has improved over time such that it does not interfere with work or enjoyment of life, but still lingers. He also has difficulty with attention span and focus. He continues to have almost daily headaches. These often interrupt his sleep. He noticed that eye near the indentation in his temple was “lazy”, a couple of times a week at first and now hardly noticeable.

[12] For about four years after the assault, the plaintiff had problems with balance such that he could not walk a straight line and was dizzy when he looked down. He wanted to obtain employment as a greenhand on the log booms but did not consider that he could do the job. This would have increased his hourly pay to $24. Few details were provided about this job prospect. There was no medical evidence to support this inability and the plaintiff testified that any problems with balance had now resolved…

[17] Here, there is evidence of a small depressed comminuted fracture of the left temporal bone that resulted in some memory and motor impairment. From the testimony of the plaintiff, it appears that the motor impairment has resolved over time. There continue to be memory problems, the exact nature of which has not been assessed on a current basis. There are also some continuing headaches that are attributed to the fracture in 2003. The plaintiff lost about two months work and has successfully resumed his career and achieved advancement. His social life appears stable and normal. Any present loss of enjoyment of activities is because of lack of interest as opposed to ability…

[22] After consideration of these authorities and in consideration of the plaintiff’s description of his injury, and given the lack of medical information, non-pecuniary damages are assessed at $40,000…

[24] The plaintiff also claims loss of future earning capacity because of inability to obtain employment on the log booms. He calculated this amount based upon expectations of work life to age 65 at the remuneration rate that he said he would have received as a greenhand. This is contrary to the capital asset approach which has been adopted in this Court (Parypa v. Wickware, 1999 BCCA 88 at para. 63). However, the evidence on this aspect of the claim is scant and unsupported by any medical or actuarial evidence. Further, the plaintiff had successfully advanced in his work at present and said that this is his employment of choice. Further, there was no evidence that his employment aggravated his symptoms. The plaintiff must establish that there is a real and substantial possibility that his earning capacity has been impaired to some degree as a result of the injuries sustained in the assault (Romanchych v. Vallianatos, 2010 BCCA 20 at para. 10). In my view, there is little likelihood of any substantial possibility of an actual income loss in the circumstances here. There is nothing to suggest that the plaintiff will be unable to perform the tasks required in his work of choice. Nothing is awarded under this head of damage.

Rule 20-2: Disabled People Must Use a Lawyer to Sue in the BC Supreme Court

Written by admin on . Posted in BCSC Civil Rule 20, Uncategorized. 119 Comments on Rule 20-2: Disabled People Must Use a Lawyer to Sue in the BC Supreme Court


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing the requirement that disabled people must be represented by a lawyer (or the Public Guardian and Trustee) when suing in the BC Supreme Court.  In short the Court held that despite some minor changes in language, the current Rule 20-2 is to be applied identically to the former Rule 6(4).
In today’s case (Sahyoun v. Ho) the plaintiff was “incapable of managing himself or his affairs” and his father was appointed as his committee.  Shortly after this the committee started a complex lawsuit on the Plaintiff’s behalf against numerous defendants.  He did not hire a lawyer to assist with the process.   Some of the Defendants brought a motion seeking directions as the lawsuit was not brought in compliance with Rule 20-2.  Mr. Justice Voith found that the Court has no discretion to deviate from Rule 20-2 and ordered that the lawsuit be stayed.  In doing so the Court provided the following reasons:

[13] Rule 20-2 of the Rules of Court deals with persons who labour under a legal disability. The relevant portions of the Rule provide:

Start of proceedings by person under disability

(2) A proceeding brought by or against a person under legal disability must be started or defended by his or her litigation guardian.

…

Lawyer must be involved

(4) A litigation guardian must act by a lawyer unless the litigation guardian is the Public Guardian and Trustee.

…

Committee as litigation guardian

(6) If a person is appointed committee, that person must be the litigation guardian of the patient in any proceeding unless the court otherwise orders.

[14] Rule 20-2(4) is very similar to R. 6(4) of the former Rules of Court. Arguably, the wording is now stronger. Formerly, R. 6(4) stated that the litigation guardian “shall act by a solicitor…” R. 20-2(4) now states that the litigation guardian “must act by a lawyer…”. Both “shall” and “must” are, however, defined in s. 29 of the Interpretation Act, R.S.B.C. 1996, c. 238 as “imperative”.

[15] Rule 22-7(2) sets out the powers of this court when there has been non-compliance with the Rules:

Powers of court

(2) Subject to subrules (3) and (4), if there has been a failure to comply with these Supreme Court Civil Rules, the court may

(a) set aside a proceeding, either wholly or in part,

(b) set aside any step taken in the proceeding, or a document or order made in the proceeding,

(c) allow an amendment to be made under Rule 6-1,

(d) dismiss the proceeding or strike out the response to civil claim and pronounce judgment, or

(e) make any other order it considers will further the object of these Supreme Court Civil Rules.

[16] This court has interpreted the requirement that a litigation guardian “act by a lawyer” as set out in R. 20-2(4), and formerly under R. 6(4), very strictly. In Daniel v. ICBC, 2002 BCCA 715,  the plaintiff had sustained a brain injury in a car accident as child. When he was 23 years of age his mother sought to act on his behalf as his committee under the Patients Property Act, R.S.B.C. 1996, c. 349.

[17] She was not able to afford to retain a lawyer. Southin J.A. (in Chambers) did not permit her to proceed and stated:

[3] As I see the present situation, Mrs. Daniel has no status whatever in this Court on her own to sue on behalf of her son even if the Style of Cause here were to be amended accordingly.

[4] Since, obviously, the Daniels are not able to afford solicitors to act for them, this action cannot be brought in Mrs. Daniel’s name. To put it another way, as this action was intended to be on behalf of Attila, either he must bring the action or his guardian ad litem must bring the action, but a guardian ad litem must act through a solicitor and not in person. Those are the rules. The only other suggestion I can give is that Mrs. Daniel see the Public Trustees Office and see whether anything can be done….

…

[28] I have decided to stay the action. I do not believe it would be appropriate, at this stage, to strike the plaintiffs’ claim. It may be that the plaintiffs will be able to find a lawyer to assist them. In saying this, I am mindful that the continued existence of the action, notwithstanding the fact that it has been stayed, is a source of some difficulty for the Defendant Physicians.

What's All This Then? ICBC's Transformation 2014 Program

Written by admin on . Posted in Tort Reform, Uncategorized. 61 Comments on What's All This Then? ICBC's Transformation 2014 Program

Recently I’ve heard a lot of talk about an ICBC program called Transformation 2014.   I’ve been keeping my eye out for information on this project and last week it hit the mainstream media with CBC News breaking a story about it.
ICBC took issue that CBC had some facts wrong in their reporting with the following tweet:

In any event, shortly after this ICBC released an explanatory announcement on their website and further a 13 page document titled “Our Journey: building the new ICBC” to better explain what ICBC’s Transformation 2014 is all about.
This weekend I had a chance to review this document.  In short there is not much detail about how this transformation is going to take place or specifics of changes that will be made.  I posted the following question and thoughts on my twitter stream:

If anyone is aware of further details or has specifics regarding ICBC’s 2014 Transformation plan please don’t hesitate to contact me.

BC Government Shielded From Liability in "Shaken Baby" Lawsuit

Written by admin on . Posted in BCSC Civil Rule 9, Shaken Baby Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, discussing when a government authority can be pursued for damages for the negligent excercise of their powers.
In last week’s case (Sivertson (Guardian ad litem of) v. Dutrisac) the infant Plaintiff was brain injured allegedly “while in the care of…a licensed daycare ‘Kare Bare Child Care’ “.  The Plaintiff sued various Defendants including the Capital Health Region “CHR” who were responsible for licensing the Daycare in question.
The CHR brought an application to dismiss the lawsuit against them arguing that even if they inadequately exercised their duties the lawsuit could not succeed because the CHR did not owe the Plaintiff a ‘private law duty of care‘.  Madam Justice Boyd agreed and dismissed the lawsuit against the CHR.  In doing so the Court provided the following reasons:
[51] The overall statutory scheme governing the licensing of daycare facilities provides an efficient framework to ensure the operation of community care facilities “in a manner that will maintain the spirit, dignity and individuality of the person being cared for “(s. 4(1)(a)(i)). …

[57] As in the Cooper decision, the CHR and its inspectors must balance a myriad of competing interests when dealing with the licensing and inspection of daycares, including the daycare owner’s interest in the continued operation of her business and the parents’ and the public’s interest in the protection of children in the care of the daycare owner.

[58] In my view, this balancing of interests is inconsistent with the imposition of a private duty of care.  Thus, on a review of all of the authorities, and a consideration of the legislation in issue, I reject the notion that any private law duty of care was owed by the CHR (and its employees) to the infant plaintiff and his family.

[59] If however I am in error, and it is found that such a private duty of law does arise in the circumstances of this case, then I nevertheless find that the application of the second stage of theAnns test yields no different result.  As the Ontario Court of Appeal held in Williams v. Canada (Attorney General), 2009 ONCA 378, at para. 17, at the second stage :

…the court considers whether there are “residual policy considerations” that militate against recognizing a novel duty of care.  …These are policy considerations that “are not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally”.

[60] In my view, any private law duty of care which may arise in this case would be negated for overriding policy reasons as in the Cooper case.  This is because (i) the licensing officers were exercising both policy and quasi-judicial functions such that any decision required the balancing of both public and private interests.  The Director must act fairly or judicially in removing an operator’s license and this is potentially inconsistent with a duty of care to children and families; (ii) the Director must make difficult discretionary decisions in an area of public policy.  His decisions are made within the limits of the powers conferred on him in the public interest; and (iii) if there was a private duty of care owed by the Director to the children and parents, it would effectively create an insurance scheme for all those children attending licensed daycares within the Province, at great costs to the taxpaying public.  As the Court held in Edwards, there is no indication here that the Legislature intended that result.  Indeed the statutory immunity from liability provision suggests the contrary.

Theft/Fire Loss Claims and ICBC "Examinations Under Oath"

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 22, Uncategorized.


If you purchase Theft of Fire Damage coverage from ICBC and need to take advantage of this insurance can ICBC force you to provide a statement under oath before processing your claim?  The answer is yes and reasons for judgement were released this week by the BC Supreme Court, Nelson Registry, dealing with this area of the law.
In this week’s case (Cort v. ICBC) the Plaintiff had fire insurance coverage with ICBC.  On September 18, 2010 his vehicle was destroyed by fire.  He asked ICBC to pay his loss but ICBC refused to respond until he provided them with an “Examination Under Oath“.  He refused to do so and sued ICBC.  ICBC brought an application for various pre-trial relief including an order to ‘stay‘ the lawsuit until the Examination Under Oath was provided.  Master Keighley granted this order finding that the lawsuit could not move ahead until this ‘investigative’ step took place.  In doing so the Court provided the following reasons:

[28] Sections 6 and 8 of the Prescribed Conditions to the Insurance (Vehicle) Regulation B.C. Reg. 156/2010 read as follows:

6(1)      If required by the insurer, the insured must, on the occurrence of loss or damage for which coverage is provided by this contract, deliver to the insurer within 90 days after the occurrence of the loss or damage a statutory declaration stating, to the best of the insured’s knowledge and belief, the place, time, cause and amount of the loss or damage, the interest of the insured and of all others in the vehicle, the encumbrances on the vehicle, all other insurance, whether valid or not, covering the vehicle and that the loss or damage did not occur through any wilful act or neglect, procurement, means or connivance of the insured.

(2)        An insured who has filed a statutory declaration must

(a)        on request of the insurer, submit to examination under oath,

(b)        produce for examination, at a reasonable time and place designated by the insurer, all documents in the insured’s possession or control relating to the loss or damage, and

(c)        permit copies of the documents to be made by the insurer.

8(1)      The insurer must pay the insurance money for which it is liable under this contract within 60 days after the proof of loss or statutory declaration has been received by it or, if an arbitration is conducted under section 177 of the Insurance (Vehicle) Regulation, within 15 days after the award is rendered.

(2)        The insured must not bring an action to recover the amount of a claim under this contract unless the requirements of conditions 4, 5 and 6 are complied with and until the amount of the loss has been ascertained by an arbitrator under section 177, by a judgment after trial of the issue or by written agreement between the insurer and the insured.

(3)        Every action or proceeding against the insurer in respect of loss or damage for which coverage is provided under this contract must be commenced within 2 years from the occurrence of the loss or damage.

[29] Accordingly, says ICBC, since the insured may not commence an action to recover the amount of his claim until he has, inter alia, submitted to an examination under oath, at the very least he should be enjoined from proceeding with the claim…

[32] ….The purpose of an EUO, on the other hand is investigative. The insured is contractually bound to co-operate with his insurer by submitting to an examination which may assist the insurer in determining its response to the claim. The insured may not, as a matter of contract, seek to attach conditions to his attendance.

[33] In the circumstances the contract claim will be stayed until the plaintiff has complied with the requirements of the Prescribed Conditions. In the event that the parties cannot resolve the issue of compliance by agreement, they will have liberty to apply.

This case is also worth reviewing for the Court’s discussion of transfer of claims to Small Claims Court under section 15 of the Supreme Court Act and further the severance of bad faith claims from breach of contract claims pursuant to Rule 22-5(6) and 12-5(67) of the Supreme Court Rules.

Affidavits and Exhibits: Take Care To Review the Whole of the Evidence

Written by admin on . Posted in BCSC Civil Rule 22, BCSC Civil Rule 9, ICBC Liability (fault) Cases, Uncategorized.


Once evidence is introduced at trial it is fair game for the finder of fact to rely on it even if the party that introduced it opposes this result.  Useful reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, illustrating this fact.
In this week’s case (Chow-Hidasi v. Hidasi) the Plaintiff was injured in a single vehicle accident.  She was a passenger and sued the driver claiming he was at fault for losing control for “overdriving the road conditions“.  The Defendant argued that he lost control because he experienced a sudden and unexpected mechanical failure and could not avoid the collision.  Ultimately this explanation was accepted and the Plaintiff’s lawsuit was dismissed.  Prior to reaching this conclusion the Court ruled on an interesting evidentiary issue.
The trial was a “summary trial” under Rule 9-7 in which the evidence is introduced through affidavits.  The Plaintiff’s lawyer’s legal assistant attached portions of the Defendant’s examination for discovery transcript as an exhibit to her affidavit.
The Plaintiff wished to only rely on portions of the reproduced transcript.  The Defendant decided to take advantage of other portions of his discovery evidence which was included in the affidavit.  The Plaintiff objected arguing that he introduced the evidence and only wished to rely on limited portions of it.  Mr. Justice Barrow rejected this argument finding once the evidence was introduced through the affidavit it was fair game for the defendant to rely on it.  The Court provided the following insightful reasons:

[6] The plaintiff objected to the admissibility of some of the examination for discovery evidence of Mr. Hidasi, evidence that Mr. Hidasi points to in support of his position. All of the impugned discovery evidence is exhibited to an affidavit of the plaintiff’s counsel’s legal assistant. As I understand the objection, it is that the questions in dispute were reproduced and exhibited to the legal assistant’s affidavit because they appear on pages of the transcript that contain other questions and answers which the plaintiff wishes to rely on. I pause to note that while that may be so, the affidavit itself does not contain a statement to that effect. On the first day of the hearing the plaintiff’s counsel provided the defendant with a list of specific discovery questions that he wished to rely on. The questions and answers to which objection is taken are not on that list.

[7] I am satisfied that the questions and answers are admissible, and that no prejudice inures to the plaintiff as a result. They are admissible because the plaintiff put them in evidence. As to the notice of the specific questions and answers the plaintiff wished to rely on, it does not alter of the foregoing. If it was intended to be a notice as contemplated by Rule 9-7(9), it was not filed within the time limited under Rule 8-1(8). It is therefore of no moment. As to the question of prejudice, the only reasonable inference to be drawn from the plaintiff’s notice of application is that the impugned evidence formed part of the plaintiff’s case. The defendant could have addressed the matters about which he gave evidence on discovery in his affidavit evidence. He may not have, I infer, because he concluded it was unnecessary given that the plaintiff had already put those matters into evidence. In any event, if the discovery evidence is excluded, fairness would require an adjournment to allow the defendant to supplement the evidence given the changed face of the evidentiary record he had reasonably thought would form the basis for the hearing. All that would have been accomplished in the result is that the evidence that is contained in the discovery answers would be before the court in the form of an affidavit.

This case is also worth reviewing for the Court’s discussion of the legal principle of ‘spoiliation’ at paragraphs 30-33 of the reasons for judgement.

$50,000 Non-Pecuniary Damages Assessment for Chronic Myofascial Pain

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases. 50 Comments on $50,000 Non-Pecuniary Damages Assessment for Chronic Myofascial Pain

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, dealing with non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for chronic soft tissue injuries.
In today’s case (Thauli v. Gill) the Plaintiff was injured in a 2005 motor vehicle collision.  It was a ‘t-bone’ crash.  The Plaintiff was a passenger at the time and the issue of fault was admitted by ICBC on behalf of the offending motorist.  The Plaintiff suffered a variety of soft tissue injuries which resulted in a chronic myofascial pain syndrome.  In assessing non-pecuniary damages at $50,000 Mr. Justice Crawford provided the following reasons:

[35] Pain is doubtless one of the discussion footballs in medical science.  It is subjective.  Many of us have seen people receive devastating injuries, bear with them stoically and sometimes recover in very short time.  We see the professional footballer or hockey player do that on a regular basis, but many cannot.  Many are built differently and respond differently to different injuries.  Dr. Sidhu said that he expected Ms. Kalsi, given her lifestyle, to have largely recovered in six or eight weeks from the car accident.  And as I noted, Dr. Chu said in his evidence perhaps the neural pathways are somehow compromised in some people and continue to send messages of pain to the head, and in fact the soft tissues are already recovered.

[36] In any event, I found Ms. Kalsi an honest and straightforward young lady.  The evidence of the witnesses recorded in consistent fashion how busy, vivacious and outgoing she was prior to the accident, how there had been a continuing complaint of pain to her upper left back area, as vague as that might be, and that had continued to be of a consistent concern to her and to her doctors…

[38] I am satisfied the plaintiff was injured in the car accident in May of 2005.  The injuries to her knee, neck and left upper back are consistent with being thrown over the restraining seat belt and extending the soft tissues in her upper back and neck on the left side.  It is likely those injured areas of her body have recovered.  It is also likely her ongoing complaints of pain in turn caused the depression, but that was well treated in 2007.

[39] Medically the pain is chronic and the symptoms have been collated under the heading myofascial pain.  That is real to Ms. Kalsi.  It is, on her own word to her doctors, largely moderated in 2007 and in my view there is a fair chance it will continue to improve, if not wholly, at least be well within her control.

[40] In sum, then, I award general damages at $50,000.

More on the Affidavit Evidence Prohibition At TMC's and CPC's

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 12, BCSC Civil Rule 5, Uncategorized. 53 Comments on More on the Affidavit Evidence Prohibition At TMC's and CPC's


Further to my recent post on this topic, the law regarding the Affidavit Prohibition at Case Planning Conferences and Trial Management Conferences appears to be taking shape.  Useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, taking a common sense approach to this prohibition.
In this week’s case (Enns v. Cahan) the Plaintiff sued for damages under the Family Compensation Act.  A trial management conference was held and the Defendant brought an application to strike the Plaintiff’s Jury Notice.  The Defendant did not provide any affidavits in support of his application relying only on the pleadings and an expert report which was intended to be introduced at trial.  The Defendant argued the case was too complex for a jury.
The application was dismissed with Madam Justice Gray finding that the case could appropriately be heard by a Jury.  Prior to making this finding the Court provided the following useful reasons about when it’s appropriate for a contested application to be heard at a TMC given the affidavit evidence prohibition:

[9] Rule 12-2(11) provides that:

(11)  A trial management conference judge must not, at a trial management conference,

(a) hear any application for which affidavit evidence is required, or

(b) make an order for final judgment, except by consent.

[10] Mr. Brun, Q.C., argued on behalf of Mr. Cahan that his application could proceed without affidavit evidence and on the basis of submissions by counsel alone. Mr. Brun provided the Court with a copy of the Bruce-Aldridge report and seeks to rely on that and the statement of claim as the basis for his application. Mr. LeBlanc argued on behalf of Mr. Enns that Mr. Cahan’s application requires evidence and that it is therefore one of the prohibited orders set out in Rule 12-2(11).

[11] The new Rules include Rule 1-3 as follows:

(1)  The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

(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.

[12] The new Rules have procedures which enable the court and the parties to design the procedure necessary to resolve a particular issue which is in question. The question of whether an application requires affidavit evidence will not always be determined by what remedy is sought. The question of what is in dispute will play a role, as well. In this case, Mr. Brun’s submissions are based on the Bruce-Aldridge report and the statement of claim. It is not necessary to require the parties to go to the trouble and expense of preparing affidavits when counsel can simply provide the court with a copy of the report in question and the pleadings.

[13] In my view, requiring affidavit evidence would not be consistent with the object of securing the inexpensive determination of every proceeding on its merits. Here, counsel agree that the Bruce-Aldridge report was tendered by Mr. Enns as a report he intends to rely on at trial as an expert report. As I have said, that report, together with the statement of claim, form the basis of Mr. Brun’s submissions. As a result, Mr. Cahan’s application can proceed as an application before the trial management judge.

More on Costs and Sufficient Reason to Sue in the BC Supreme Court

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


Earlier this year the BC Court of Appeal provided much needed clarity to the factors Courts can consider when deciding whether a Plaintiff has sufficient reasons to sue in the Supreme Court when considering costs consequences following trial.   Reasons for judgement were released today by the BC Court of Appeal further addressing this topic finding that while the Court can consider other issues, the value of the claim will be one of the most important factors.
In today’s case (Gehlen v. Rana) the Plaintiff was injured when she was a passenger involved in a rear-end car crash.  The Defendant admitted fault for the crash but denied liability to the Plaintiff claiming that the Plaintiff “was not present in the vehicle at the time of the accident“.  The Defendant made a formal offer to settle the Plaintiff’s claim for $22,000 plus disbursements.  The Plaintiff rejected this offer and went to trial.  After trial the Jury awarded the Plaintiff total damages of just over $13,000.
Despite this result the trial judge awarded the Plaintiff costs and found the Plaintiff has sufficient reason to sue in the Supreme Court.  The BC Court of Appeal found this was in error and in doing so provided these reasons addressing the issue of “sufficient reason” to sue in the BC Supreme Court in a personal injury claim:

[35] In Gradek, the Court interpreted the meaning of “sufficient reason” in Rule 57(10).  The Court acknowledged that the procedures available in the Small Claims Court will, in most cases, “enable the parties to proceed in a cost-efficient manner to a just result” (para. 18).

[36] The Court ultimately concluded that “sufficient reason” was not intended by the Legislature to be limited to the quantum as assessed at the outset of the claim.  However, the Court stated, at paras. 16 and 20:

[16]      The words “sufficient reason” are not defined in the Rules of Court.  In their ordinary and grammatical sense, they do not suggest a specific limitation in terms of application, although it is clear that “any reason” will not do.  The reason has to be “sufficient”, but there is nothing in the Rule to suggest that it has to be connected solely to the quantum of the claim.  On the other hand, the words do not connote the exercise of a discretion, with its attendant deferential standard of review.  That point was made by this Court in Reimann v. Aziz, 2007 BCCA 448, 72 B.C.L.R. (4th) 1, at para. 13:  …

…

[20]      I accept that the narrow interpretation of the words “sufficient reason” advocated by the appellant would provide greater certainty to litigants in knowing the consequences of proceeding in Supreme Court where the matter falls within the Small Claims monetary limit.  But I agree with the trial judge that if the Legislature had intended to limit the scope of the words “sufficient reason” to the extent suggested by the appellant, it could readily have done so.  While I am satisfied that the words, “sufficient reason” should not be interpreted in an expansive manner, but with restraint, I am also satisfied that they must be read in such a way that a trial judge is not forced to deny a party costs where he is satisfied, as here, that justice can only be achieved as between the parties by an award of costs to the successful party.

[37] As I understand the import of Gradek, it is that likely quantum, while perhaps the most important factor for determination of sufficient reason, is not the only factor that may be taken into account.  The Court in Gradek also accepted that there may be other circumstances that justify bringing an action in the Supreme Court despite the fact that the likely quantum will not exceed the Small Claims amount.  Thus, in Gradek the Court accepted the trial judge’s finding that Mr. Gradek, due to language difficulties, required the assistance of counsel and it would be unjust to require him to bring his claim in the Small Claims Court where he would be denied costs that would partially offset the expense of retaining counsel (para. 18).  However, it is clear from Gradekthat the burden is on the plaintiff to establish eligible circumstances that are persuasive and compelling to justify “sufficient reason”.

[38] In the case at bar, the plaintiff reiterated before us the 12 reasons submitted to the trial judge to establish sufficient reason to commence the action in the Supreme Court.  However, eight of those reasons were circumstances that arose after the commencement of the action and were thus irrelevant to the analysis (the defendant’s offer to settle; the defendant’s failure to apply to move the action to the Small Claims Court; the defendant’s denial of liability for the plaintiff’s injury; the insurer’s characterization of the collision as low impact; the exchange of 60 documents; the defendant’s motion for a Rule 66 hearing and eventual removal; a Rule 28 examination of a witness; and the absence of expert evidence tendered by the defendant).

[39] The strongest reason for bringing the action in the Supreme Court related to the plaintiff’s alleged injuries, but that must be closely examined in light of her pre-existing condition.  While minor impacts do not necessarily preclude serious injuries, it must have been apparent to the plaintiff that after this minor collision her pre-existing condition was only modestly aggravated and would not attract a significant award of damages.

[40] In my opinion, the plaintiff has not identified a compelling circumstance that meets the sufficient reason test in Rule 57(10) as interpreted by Gradek.

[41] In my view, this was a case where it was plain and obvious at all material times that this was a proper action to be tried in the Small Claims Court.

Jury Notice Struck in Complex "Shaken Baby" Case

Written by admin on . Posted in BCSC Civil Rule 12, Shaken Baby Cases, Uncategorized.


Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, striking a Jury Notice in a complex “shaken baby” case.
In this week’s case (Sivertson (Guardian ad litem of) v. Dutrisac) the Plaintiff claimed damages “for a brain injury suffered on June 11, 2001 while in the care of the defendant Dutrisac who was the owner and operator of a licensed daycare… The plaintiffs allege that the defendant Dutrisac was negligent in her care of the infant plaintiff, resulting in his fall to the floor where he struck his head and suffered a brain injury.  They claim that following the initial injury, Dutrisac further exacerbated that injury when she allegedly shook or jostled the infant so as to have him remain conscious.  The plaintiffs’ claim against the CHR is that it was negligent in its ongoing inspections of the daycare facility and in continuing to license that facility notwithstanding a number of complaints made by various parents over the weeks and months preceding the infant plaintiff’s injury.”
The Defendants brought an application pursuant to Rule 12-6(5) to strike the Plaintiff’s Jury Notice.  Madam Justice Boyd agreed that the case was not appropriate for a Jury to preside over and granted the application.  In doing so the Court provided the following reasons:

[16] Having considered the submissions of counsel and having reviewed the many expert reports which have been filed, I find that there are a plethora of elements in this case which raise issues of both complexity and intricacy.  The trial will be long.  It will involve two sets of defendants, each involving different standards of care.  The CHR defendants’ duty of care will be particularly complex to determine, given the statutory scheme and whether or not that scheme negates any private duty of care.

[17] However most complex of all will be the issues concerning the causation of the infant plaintiff’s brain injury, whether there was any pre-existing brain injury, and what damages may be attributed to the pre-existing brain injury, if any.  The determination of these issues will require that the jury consider and weigh the conflicting and highly complex evidence of a number of different medical experts from a number of different specialties.

[18] At the heart of this debate will be the central theme of the “shaken baby syndrome”, since, even on the basis of the plaintiffs’ expert’s amended opinion, the acceleration/deceleration theory of injury is advanced regarding the jostling of the child, following the initial fall.  As Mr. Lindsay has pointed out, the Shaken Baby Syndrome or the acceleration/deceleration mechanism of injury remains one of the most highly debated areas in the field of forensic pathology.  The debate continues to rage in the medical and scientific community concerning these types of injuries in infant children.  In this regard, I take particular note of the comments of Chief Judge Crabtree of the British Columbia Provincial Court in British Columbia (Director of Child, Family and Community Service v. Z.B., 2011 BCPC 0072.

[19] I must note that while I have treated this application to strike the jury notice as a joint defence application, in fact, in my companion ruling I have already dismissed the action against the CHR.  In my view this does not result in any different ruling regarding the striking of the jury notice.

[20] On a consideration of all of these issues, but most particularly the medical and scientific evidence to be weighed, I find it is completely unrealistic to believe that even a well instructed, intelligent jury would be able to cope with the determination of all the issues here.  Thus I exercise my discretion under the rule and order that the jury notice be struck in this case.