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Injury Trial Adjourned Due to Delayed Medico-Legal Report

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


Reasons for judgement were recently published by the BC Supreme Court addressing the adjournment of a personal injury trial where the Plaintiff’s independently retained physician failed to author a medico-legal report in a timely fashion.
In the recent case (Barlow v. Smoch) the Plaintiff was injured in a 2006 collision.  He was the passenger in a vehicle which collided with a dump truck-trailer.  He apparently suffered serious injuries including a “severe traumatic brain injury with left sided hemiparesis“.
In the course of the lawsuit the Plaintiff hired a variety of independent experts to provide medico-legal opinion evidence at trial.  One of the experts was a physiatrist who assessed the Plaintiff.  The Plaintiff requested a report however no report was provided within the timelines required by the Rules of Court.  The Plaintiff’s other experts required the physiatrist’s report in order to finalize their opinions.  Because the physiatrist did not author the report in a timely fashion the Plaintiff was unable to adequately prepare his case for trial.
The Plaintiff brought an adjournment application.  The Defendant opposed, arguing an adjournment would be prejudicial.  Master Caldwell ultimately granted the adjournment finding that neither party were to blame for the need of the adjournment and that keeping the current trial date would result in prejudice to the Plaintiff.  In granting the adjournment the Court had the following critical comments for the Plaintiff’s expert:

[20]         The determination I have to make now is whether the plaintiff would be so prejudiced by having this matter proceed to trial, in light of all of the circumstances, or whether the defendant would be prejudiced to the extent that there would be some waning of the memory of the defendant Hilborn.

[21]         Remembering of course that the plaintiff is a severely brain?injured individual with hemiparesis, it would behoove me ultimately to weigh the prejudice in favour of the plaintiff and make a determination that the trial ought to be adjourned, not through any fault of counsel or the parties, but more I think because there is an unexplained failure to provide a report following a medical assessment by a medical professional.

[22]         When I say unexplained, I do not say that meaning plaintiff’s counsel has not explained it; I mean (the physiatrist) has not explained her lack of attention to requests for the report following her assessment of the plaintiff on the 31st of May last, which I think is unacceptable.

[23]         I say parenthetically that this may be a matter that counsel and the parties should be taking up with the College of Physicians and Surgeons, because in this case it is, without a doubt, in my view, (the physiatrist’s) lack of production of the document requested that has ultimately resulted in the adjournment of the trial.

[24]         As for costs, there is not a lot of blameworthy conduct here over which costs could be assessed.  I think every party has had a legitimate rationale for having the positions they have taken with respect to the particular application, which I find to be somewhat unique in the circumstances.  So I will say that I think each party should bear its own costs of this application.

More on the "Harsh" Reality of Part 7 Benefits Deductions in ICBC Tort Claims

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Two Judgements were recently released by the BC Supreme Court discussing the “harsh” reality of Part 7 Benefits Deductions in ICBC Injury Claims.
As previously discussed, if you are entitled to receive Part 7 Benefits under your policy of insurance and don’t pursue these a Defendant who is responsible for injuring you in a BC Motor Vehicle Collision can reduce the amount of damages that they have to pay you by the amount of benefits you should have received from your own insurance coverage.  Often after trial ICBC will argue that some of the awarded damages should be reduced for this reason.  The first of the two recent judgments demonstrates that these deductions could operate in a punishing way for Plaintiffs.
In the first case released this week (Kirk v. Kloosterman) the Plaintiff suffered “catastrophic and tragic” injuries in a motor vehicle collision.  The Plaintiff, who had a learner’s licence to operate a motorcycle, failed to obtain a full licence at the end of his probation period and for this reason was considered uninsured by ICBC.  He was struck by a vehicle operated by the Defendant and suffered serious injuries.  He became paralyzed from near the waistline down.  His spinal cord became infected while in hospital and this “literally chewed up a further portion of the spinal cord so that he has lost a great deal of his thoracic capacity and now his arms and shoulders must bear his weight and provide all his strength“.
A jury found the Plaintiff 15% at fault for the collision and the Defendant 85% at fault.   Damages of nearly $4 million were awarded less 15% to reflect the Plaintiff’s liability.   Following verdict the Defendant (who was insured with ICBC) applied to have some of these damages reduced because the Plaintiff was allegedly in breach of his no-fault plan with ICBC.   Mr. Justice Crawford granted the motion and reduced the damages by approximately $200,000.  In doing so the Court noted that while this was “harsh and even punitive” a Plaintiff who disentitles himself to his own ICBC coverage can be faced with a statutory deduction in their tort claim.  Mr. Justice Crawford provided the following reasons:

[]           Ms. Kloosterman says the law is clear and settled: if the plaintiff acts so as to disentitle himself, then the Court must calculate and apply the deduction. She argues that Mr. Kirk would have been entitled to benefits under Part 7, had he possessed a valid driver’s licence.

[]           It is plain that the legislative intention is to prevent double recovery, that is, to prevent a plaintiff from recovering the same amount of monies both by way of the defendant through a tort action and by way of no-fault insurance coverage. Given the legislative intention, it seems harsh and even punitive to not only deny a plaintiff, who has been found substantially not at fault in a motor vehicle collision and awarded damages for losses sustained, no-fault benefits but also to deduct the amount of his or her potential entitlement to Part 7 from the tort award. However, the case law is binding on me, and can only be construed differently by the Court of Appeal:  see Baart v. Kumar, (1985), 66 B.C.L.R. 1 (C.A.); Si v. Enns, , 2001 BCSC 1120.

[]           Accordingly, I accept the defendant’s submissions on this issue and find that there must be a deduction.

In the second case released this week (Gignac v. Rozylo) the result was not nearly as harsh but the case still demonstrates the reality that applications for statutory deductions can be made following vehicle collision cases.
In Gignac the Plaintiff was injured in a 2004 motor vehicle collision.  Following trial Mr. Justice Wilson awarded damages including $15,000 for ‘special damages‘ and just over $115,000 for ‘costs of future care‘.  (UPDATE August 17, 2012 – the BC Court of Appeal reduced the cost of future care award by about $40,000.  Their reasons can be found here) ICBC then argued that these awards should be reduced by $25,000 to account for the fact that the Plaintiff can obtain money from ICBC for these expenses under their own policy of insurance.
Mr. Justice Wilson largely rejected ICBC’s arguments and made a modest deduction of $2,000 of the awarded damages.  In doing so the Court provided the following useful comments about the “level of abstraction” of ICBC’s permissive benefits scheme:

[23]        As I understand Ms. Lewko, if a benefit is not “specifically listed”, then, an insured’s entitlement to the benefit is dependent upon “ICBC claims handling procedures”, or “ICBC claims handling policies”, or “ICBC policy”.

[24]        Legislative support for this approach is s. 88(2)(f), the “other” category, referred to above.

[25]        The statute does not direct me to determine entitlement to benefits pursuant to ICBC policy; the direction is to determine entitlement pursuant to the plan.

[26]        Section 88(2)(f) is subject to the opinion of the corporation’s medical advisor that an expenditure is likely to promote the rehabilitation of an insured.

[27]        The opinion of that medical advisor is a necessary condition before resort may be had to s. 88(2)(f) of the Regulation.  Absent the necessary condition, the corporation is not authorized to pay benefits.

[28]        Rehabilitation means restoration.  This plaintiff’s debilitating condition is chronic pain.  Current medical science has no cure for this condition.  I find it improbable that a medical advisor would opine that any of the goods and services contained in the assessment of future care costs, would promote the rehabilitation of this plaintiff.  Those goods are services were recommended by the occupational therapist as necessary to enable this plaintiff to maintain an optimum level of functioning, now and in the future, and to maximize independence and prevention of further disability.

[29]        Alternatively, if I am wrong in my interpretation of the legislation, and ICBC policy is a relevant factor, then the applicant has not persuaded me that it is more likely than not that this plaintiff is entitled to the benefits in controversy.  The scales are evenly balanced.  Policy may authorize the benefit or it may not.  According to Ms. Lewko:

11.       It is ICBC policy that the exercise of discretion for permissive benefits must be rationally connected to the relevant factors governing an objective assessment of the entitlement to the benefit.

That is a level of abstraction which does not allow for a determination of entitlement on a balance of probability.

[30]        In result, the cost of future care assessment is reduced by $2,000.

BC Court of Appeal Gives Broad Interpretation to ICBC's Fire Loss Coverage

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Reasons for judgement were released this week by the BC Court of Appeal discussing the extent of ICBC’s comprehensive coverage for vehicle fire damage under the former section 132 of the Insurance (Vehicle) Regulation.
In today’s case (Swailes v. ICBC) the Plaintiff leased a Corvette.   The Plaintiff purchased insurance with ICBC which included “comprehensive coverage” for vehicle damage.  This coverage included loss caused by fire.
Shortly after leasing the vehicle the Plaintiff “spun the car’s tires excessively, causing the left rear axle ‘U’ joint to break and immobilize the vehicle. ”  This in turn caused the vehicle to catch fire “by the resulting build-up of heat in the rear tire wells“.  The damage was extensive and the vehicle was written off.
ICBC refused to provide coverage to the Plaintiff relying on a clause excluding “loss or damage..caused by mechanical fracture, failure or breakdown of any part of a motor vehicle“.  The Plaintiff sued although the case was dismissed with the Trial Judge holding that the loss was excluded as it was caused by mechanical breakdown.
The Plaintiff appealed and succeeded.  The BC Court of Appeal overturned the trial judgement and in doing so provided the following useful reasons giving a broad interpretation to ICBC comprehensive fire loss coverage:

[24]         While Jeffrey was ultimately decided on other grounds, I agree with Mr. Justice Oliver’s view of the exception for loss or damage caused by fire created by s. 132(1). While the provision is clumsily worded, its meaning is clear. If the loss or damage was caused by mechanical fracture, failure or breakdown the exclusion will ordinarily apply, unless that loss or damage was caused by fire. Here, while the trial judge found the broken axle caused the fire, the exception permits fire to supercede that finding as to cause and allows Mr. Swailes to recover indemnity for loss of the vehicle due to fire.

[25]         The respondent maintains that such an interpretation renders the exclusion meaningless. That is only the case, however, in situations where the loss being claimed is caused by fire, theft, or malicious mischief. This interpretation of the exception is consistent with the comprehensive coverage defined in s. 1 of the Regulation, which includes loss or damage arising from those causes. I am satisfied the intent of the exception in s. 132(1) is to preserve that coverage in cases where the exclusion would otherwise apply.

[26]         I am satisfied that the “loss or damage” at issue here is the loss of the vehicle, and the trial judge erred in defining that term too narrowly and restricting it to the types of damage in s. 132(1)(a), (b), and (c).

[27]         I would accordingly allow the appeal, set aside the order dismissing Mr. Swailes’ claim, and remit the matter to the Supreme Court for damages to be assessed.

ICBC Hit and Run Injury Claims: A Detailed Discussion of the "Reasonable Efforts" Obligation

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I’ve written many times about ICBC Injury Claims involving unidentified drivers.  In short, individuals injured by unidentified motorists can sue ICBC directly for compensation but there are statutory requirements that need to be complied with to succeed with such a claim.  The most litigated issue in these claims is whether the Plaintiff took “all reasonable efforts” to identify the at fault motorist as required by section 24(5) of the Insurance (Vehicle) Act.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing this obligation and usefully setting out many of the legal principles behind what amounts to a ‘reasonable effort’.
In today’s case (Morris v. Doe) the Plaintiff was injured in a 2006 collision.  She was a passenger in her husband’s vehicle.  They were stopped at a red light and were rear-ended by an unidentified motorist.  The force of the crash caused the Plaintiff’s vehicle to collide with a stationary vehicle in front of them.  Following the crash the Plaintiff’s husband exited the vehicle and looked towards the at fault vehicle.  He motioned for the rear motorist “to pull his vehicle off to the side of the road into (a) parking lot”.  Following this the Plaintiff and front motorist pulled into the parking lot and the rear motorist drove away.
The Plaintiff sued ICBC for damages under section 24.  The case was dismissed with Madam Justice Ker finding that the Plaintiff failed to make all reasonable efforts to identify the at-fault motorist.  Prior to reaching this conclusion the Court provided the following useful summary of past cases addressing ‘reasonable efforts’ in ICBC hit and run injury claims:

[55]         An examination of the jurisprudence on what constitutes reasonable efforts reveals the following principles:

a.       depending on the plaintiff’s condition at the scene of the accident, it may not be realistic to expect the plaintiff to obtain particulars as to the identity of the offending driver particularly where the plaintiff is in shock or confused or injured: Tessier; Hocaluk; Ingram v. ICBC (1994), 45 B.C.A.C. 218 [Ingram]; Holloway v. ICBC, 2007 BCCA 175, at para. 14; Larsen v. Doe, 2010 BCSC 333 [Larsen]; Becker v. ICBC, 2002 BCSC 1106 [Becker], at para. 20; Nelson at paras. 19-20

b.       failure to record a licence plate number at the time of the accident when the plaintiff has the opportunity to do so or obtain information as to the driver’s identity, either personally or through the assistance of others, but does not take advantage of the opportunity amounts to a failure to take reasonable steps at the time of the accident: Burley at paras. 23-24;Watson v. Insurance Corporation of British Columbia, 2004 BCSC 1695 [Watson]; Cannon v. ICBC, 2005 BCSC 602;

c.       simply notifying the police of the accident may not be sufficient to satisfy the requirements of s. 24(5): Tessier at para. 17; Becker at para. 18;

d.       the Act does not put the responsibility to find the unidentified driver on the police; rather the responsibility lies with the plaintiff: Becker at para. 17

e.       where a plaintiff does notify the police of the accident, it is not reasonable for them to simply assume the police will make the necessary inquiries without following up with the police and checking to see if there was an investigation and if so what progress was being made in it: Becker at paras. 17-18; Tessier at para. 17; Goncalves at para 23;

f.        simply reporting the matter to the police and ICBC, without more, has led to the dismissal of a plaintiff’s action for failure to comply with the requirement of taking all reasonable steps to ascertain the identity of the driver: Meghji v. ICBC, [1998] B.C.J. No. 3107 (P.C.) (QL);

g.       where the police attend the scene of the accident and take witness statements and indicate they are investigating the hit and run accident, it may not be necessary for the plaintiff to take any additional steps, depending on the circumstances: Hough v. Doe, 2006 BCSC 1450 [Hough], at paras. 16-17 & 21; Ingram at para. 13;

h.       a plaintiff placed in a position of danger at the time of the accident cannot be expected to remain in that position to obtain details of a licence plate and movement to a position of safety before trying to obtain any licence information does not constitute a failure to take reasonable steps at the scene of the accident: Nelson at paras. 19-20;

i.        posting signs in the area of the accident and/or advertising in local newspapers in an effort to find witnesses within a reasonable time after the accident where the accident occurs at a busy intersection is a reasonable and expected step as it is possible that someone present at the time of the accident could be of assistance in ascertaining the identity of the driver of the vehicle that left the scene: Johal v. ICBC (1992), 9 C.C. L.I. (2d) 172 [Johal]; Fan v. Doe, 2009 BCSC 568 [Fan]; Nelson at paras. 21-22; Godara at paras. 51-54;Tessier at para. 17; Halfyard v. ICBC (1993), 26 C.C.L.I. (2d) 320 [Halfyard];

j.        failing to post signs at the scene of the accident or place advertisements in the newspaper in a timely manner or in a manner that provides insufficient detail where it is possible that there were potential witnesses who may have information about the accident will result in a denial of coverage under s. 24 of the Act: Johal; Fan; Burley; Becker; Nelson at paras. 21-22; Jennings v. ICBC, 2002 BCSC 341;

k.       repeatedly canvassing regular patrons of the business where the plaintiff’s vehicle was damaged in the parking lot of the business may constitute reasonable steps to ascertain the identity of the driver: Janzen v. Insurance Corporation of British Columbia, 2004 BCPC 437;

l.        posting signs and advertising in local newspapers may not be a reasonable step where the accident occurs on a high speed area of highway or a on highway in an area that is undeveloped and sparsely populated: Hough at para. 24; Goncalves at para. 16-21;

m.      once it is found that a plaintiff acted reasonably in believing they had the information that would be required, such as a licence plate number, there is no onus cast upon them to undertake a highly speculative further investigation upon being advised they have the wrong license plate number: Smoluk v. ICBC (1993), 26 B.C.A.C. 23 [Smoluk]; Walker v. Farnel (1995), 36 C.C.L.I. (2d) 312, at para. 24;

n.       a plaintiff will not be foreclosed from pursuing ICBC as the nominal defendant in a hit and run case where they rely upon information provided by the offending driver that subsequently turns out to be untruthful: Mudrie v. Grove, 2010 BCSC 1113, at paras. 33-36;

o.       failure to follow up on directions to take additional steps such as posting signs for witnesses or advertising, once advised the recorded licence plate number is incorrect will result in a denial of coverage under s. 24 of the Act: Watson;

p.       failing to make a timely report to the police and failing to follow up on available information from the scene of the accident such as information in the possession of ambulance personnel who attended the scene will result in a denial of coverage under s. 24 of the Act: Johal;

q.       the failure of ICBC adjusters to advise the plaintiff that other steps to try and ascertain the identity of the driver should be undertaken does not relieve a plaintiff of the obligation to take all reasonable steps to ascertain the unknown driver’s identity: Tessier at para. 19.

[56]         As the jurisprudence demonstrates, what constitutes reasonable steps varies with the circumstances of each case. However, where it was not reasonable to obtain information that would assist in ascertaining the identity of the driver at the time of the accident, taking no steps at the second stage in the days or weeks after the accident, cannot amount to discharging the clear onus placed upon a plaintiff to take reasonable steps to ascertain the identity of the unknown driver.

ICBC Uninsured Motorist Claims and the Deductibility of WCB Benefits

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If a person is injured by the actions of an uninsured motorist in BC they can seek compensation directly from ICBC under section 20 of the Insurance (Vehicle) Act.
There are certain limitations to section 20 claims and one of these was that ICBC could deduct Workers Compensation Benefits.  This changed by the new section 106 of the Insurance (Vehicle) Regulation which came into force on June 1, 2007.  The new regulation changed the definition of an ‘insured claim‘ that ICBC could deduct as follows:

106 (1)  In this section, “insured claim” means any benefit, compensation similar to benefits, right to indemnity or claim to indemnity accruing to a person entitled to benefits, compensation or indemnity or to the personal representative or guardian of the person, and includes a benefit, compensation, right or claim

(a) under the Workers Compensation Act or a similar law or plan of another jurisdiction, unless

(i)  the insured elects not to claim compensation under section 10 (2) of the Workers Compensation Act and the insured is not entitled to compensation under section 10 (5) of that Act, or

(ii)  the Workers Compensation Board pursues its right of subrogation under section 10 (6) of the Workers Compensation Act

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing whether ICBC could deduct WCB benefits paid when a crash occurred prior to June 1, 2007 but the uninsured claim against ICBC was still on-going after the new Regulation came into force.  In short the Court held that the date of the crash itself does not decide the issue, rather the date that the section 20 claim against ICBC is crystallized does.
In this week’s case (Hicks v. Bieberbach Estate) the Plaintiff was injured in a 2005 collision.  The opposing motorist was operating a stolen vehicle and was killed in the collision.  Motorists in stolen vehicles are deemed to be uninsured motorists by ICBC.  The Plaintiff initially obtained some compensation from WCB.  The Plaintiff then re-elected his route of compensation and brought a tort claim (apparently with WCB’s approval) against the uninsured motorist’s estate.
ICBC took the position that all the funds paid by WCB were non-recoverable as the crash happened prior to June 1, 2007.  Madam Justice Adair disagreed and found that since the CL-42 (the statutory declaration claimiants need to sign to seek section 20 benefits from ICBC) was not signed until after June 1, 2007 the new regulation applied and ICBC could not deduct the WCB payments from their section 20 obligations.  In reaching this decision the Court provided the following reasons:

[44]         A claimant who is injured by an insured driver and who wishes to make an application to ICBC for damages must do so in the prescribed form:  s. 20(2).  The form prescribed is a statutory declaration, where an applicant must verify facts as if under oath or on affirmation.  I do not see anything in s. 20 to suggest that ICBC “may pay” without having fundamental facts relevant to the claimant’s claim verified by solemn declaration,  as prescribed by the legislation.  On the contrary, the clear implication of s. 20(9) is that it is necessary for a claimant to submit a declaration in Form CL-42 before ICBC “may” pay.  The significance of the word “may pay” (rather than “must pay”) is that, even when a claimant has complied with s. 20 and the regulations, ICBC is notobligated to pay:  see Buxton v. Tang, at para. 7.

[45]         In my view, ICBC’s correspondence dated February 7, 2007, indicates that ICBC requires plaintiff’s counsel to comply with the service and default requirements of s. 20 (see in particular ss. 20(5)(b), (6) and (7)), and, more generally, indicates that ICBC expected Roy Hicks to comply with the section and the regulations before any amount would be paid to him.  This is entirely consistent with s. 20(9).  One of the requirements was that Mr. Hicks complete and submit a CL-42.  Unlike s. 24 of the Act, which requires a claimant to give ICBC notice of a claim within 6 months after the accident but does not specify any form in which the notice must be given, s. 20 specifies the form of notice of a claim, but does not fix a deadline…

[52]         In my opinion, in this case and reading s. 20 as a whole, ICBC was not in a position where it at least “may” pay, until Roy Hicks submitted his CL-42 statutory declaration.  That was the final step Mr. Hicks needed to complete (since service of the writ and defence of the claim by ICBC had been addressed in the fall of 2007) as claimant.  Since the CL-42 statutory declaration was submitted in February 2008, s. 106 of the New Regulation applies…

[54]         In summary, the question posed on the special case is:

Does the Insurance Corporation of British Columbia have the legal authority to deduct Workers’ Compensation Board benefits paid to the Plaintiff from any amount to be paid to the Plaintiff for damages, as a result of settlement or judgment in this matter, taking into account Section 20 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 and regulation 106 of the Insurance (Vehicle) Act Regulations, or the predecessor to these sections which were repealed on June 1, 2007?

My answer is no.  Section 106 of the New Regulation applies in respect of the plaintiff’s claim.

Keep it to Yourself! Solicitor-Client Privilege and Unintended Waiver

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As previously discussed, the law in Canada permits people to seek confidential legal advice.  Confidential communications between a lawyer and client are a “fundamental civil and legal right“.  This right permits individuals to not only get the advice they need but also to claim ‘privilege‘ over these discussions and to not disclose them in the course of a lawsuit.
This privilege can be waived, however, if the person receiving the advice chooses to discuss the nature of the privileged communications.  This was demonstrated in interesting reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Biehl v. Strang) the Plaintiff apparently advanced the Defendant Mr. Strang $1.6 million.  The lawsuit involved allegations of unjust enrichment and whether there was an enforceable contract as between the parties.  The Plaintiff sued two individual and two corporate defendants.
In the course of the lawsuit one lawyer prepared a statement of defence on behalf of Mr. Strang and the corporate defendants.  Eventually a new lawyer was brought on to represent the corporate defendants.  Mr. Strang, by the time he attended examination for discovery, was self represented.
At his discovery Mr. Strang was asked if he agreed with the contents of the Statement of Defence.   He disagreed with some of the contents.  He was then asked whether he was “giving instrucitons (to his then lawyer) about the drafting of the statement of defence“.   He did not object to this question and replied that he did not give instructions as to the contents of the defence.
The Plaintiff’s lawyer then brought a motion for access to the former lawyer’s records arguing that the Defendant’s lack of objection in discussing this topic constituted a waiver of privilege.   Madam Justice Arnold-Bailey agreed and ordered limited production of otherwise privileged documents.   The court reviewed the law of solicitor-client privilege and waiver at length at paragraphs 31-68 of the reasons for judgement.  In concluding that privilege had been waived the Court provided the following reasons:

[69]    To summarize, in the present case Mr. Strang and the corporate defendants jointly retained Mr. Johnson to represent them.  In the course of doing so, Mr. Johnson prepared and filed a joint statement of defence.  Mr. Strang, by his answers to questions at examination for discovery, denied that he had provided instructions to Mr. Johnson as to the statement of defence and impliedly waived solicitor-client privilege in relation to instructions provided to Mr. Johnson regarding the preparation of the statement of defence.  I have found that Mr. Strang waived his own privilege but not that of the corporate defendants.  However, the corporate defendants will waive privilege as to the preparation of the statement of defence if they call Mr. Johnson.  They seek to do so for the limited purpose of determining whether Mr. Strang approved the statement of defence.

[70]    The position of the plaintiff is that he is entitled to all the material in the possession of Mr. Johnson and his law firm that is relevant and material to the preparation and content of the statement of defence.

[71]    The position taken by the corporate defendants is too narrow; the position taken by the plaintiff is too broad.  The somewhat unusual facts in this case dictate a very cautious and considered approach.  The record is clear that as of the June 2010 discovery of Mr. Strang, he and the corporate defendants no longer jointly retained Mr. Johnson, the lawyer with whom they had privileged communications.  This speaks to a waiver of privilege by Mr. Strang that is very limited in scope.  Mr. Strang ought not to be considered to have waived solicitor-client privilege over anything more than the matters he spoke directly about.

For a more in depth look at this topic you can review the Canadian Bar Associations recently released paper on Solicitor Client Privilege in Canada.

More on the Real Consequences of Insurance Fraud

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Last month I wrote about why I hate insurance fraud.   A quick look at comments following stories of personal injury claims in the news provides insight into the harsh judgments personal injury claimants face by some members of the public.

Although the cynicism and doubt cast on legitimate claims is the most unfortunate consequence of insurance fraud , there are more well recognized effects of fraud and these are the costs to the public at large.  Fortunately the civil consequences for being caught in a fraudulent scheme can be high and this was demonstrated in reasons for judgement released last month by the BC Supreme Court, New Westminster Registry.
In last month’s case (ICBC v. Wiese) the Defendant was insured with ICBC.   Between 1997 and 2005 ICBC alleged that “there were an ongoing series of fraudulent acts and representations by Mr. Wiese to ICBC, both directly asserting certain facts to be true regarding his residence and also providing statements and other updated information though which that pretence was maintained” Over the years the Defendant was apparently involved in “14 separate accidents involving seven different vehicles…resulting in payments out from ICBC of $102,855.48“.
ICBC sued for damages and succeeded.  Mr. Justice Schultes awarded ICBC not only the cost of the claims paid out but a further $70,000 in punitive damages to punish the defendant for his repetitive “fraud on the public“.
If you ask a Plaintiff who has unfairly had their credibility called into question by an insurance defence lawyer they will tell you that insurance fraud causes harm to others beyond insurers.  Cases such as the above serve as a stark and welcome reminder that the cost and consequences of insurance fraud are high.

Case Planning Conferences and Transcripts of Proceedings: Uncontested Applications

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As recently discussed, one of the changes in the new BC Supreme Court Civil Rules is the introduction of Case Planning Conferences (CPC’s).   Rule 5-2(7) states that “proceedings at a case planning conference must be recorded, but no part of that recording may be made available to or used by any person without court order“.  The first reasons for judgement  that I’m aware of addressing the issue of a court’s discretion to order a transcript of proceedings following a CPC were released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Shen v. Klassen) the plaintiff was involved in a motor vehicle collision and sued for damages.  In the course of the lawsuit a CPC was held.  The Defendant wrote the Court requesting a copy of a transcript following the CPC.  The plaintiff took no position with this request.  Despite this the Master refused to make a transcript available stating that “I see no basis upon which to accede to the request“.
The Defendant appealed.  The Plaintiff again took no position.  Madam Justice Beames allowed the appeal and permitted the Defendant to obtain a copy of the CPC transcript stating that “there is no compelling reason, in my view, for the court to refuse to order a transcript of a CPC where one party seeks the transcript and the other party does not object“.
The Court was invited by the Defendant to set out guidelines to be applied in future cases addressing the circumstances when CPC transcripts should be released.  Madam Justice Beames refused to do so noting that it would be inappropriate to do so when the Court only heard one party’s submissions on this issue.
I will continue to follow the Judicial development of this rule and write about relevant cases as they come to my attention.  If anyone is familiar with other cases addressing the Court’s discretion to order the release of CPC transcripts I invite you to bring them to my attention.

$55,000 Non-Pecuniary Damages Assessment for Bimalleolar Ankle Fracture

Written by admin on . Posted in ICBC Ankle Injury Cases, Occupier's liability claims, Uncategorized.


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the issues of fault and value of injuries sustained in a 2005 slip and fall accident in Vancouver, BC.
In today’s case (Druet v. Sandman Hotels, Inns & Suites Ltd.,) the Plaintiff was visiting Vancouver, BC and was staying at a hotel operated by the Defendant company.  As she entered the hotel she slipped on the floor and fractured her ankle.  The injury requires surgical correction.
The Court found that both parties were equally at fault for the incident.  The Defendants were found at fault for having unreasonably slippery tiles in their lobby knowing how often patrons tracked water into the lobby.  The Plaintiff was found partly at fault for failing to take reasonable care for her own safety.  Paragraphs 14-62 are worth reviewing for the Court’s discussion of fault.
In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000 Mr. Justice Savage made the following findings with respect to the severity of the Plaintiff’s injury:

[11]        Druet suffered a bimalleolar ankle fracture.  She had open reduction surgery.  The break was fixed with metal screws.  The metal screws were removed by a further operation.  She had ongoing complaints of stiffness and lack of range of motion.  She had a lack of dorsiflexion and could not invert or evert her right hindfoot very well.  In June 2008 she had scar tissue surgically debrided and a gastrocnemius recession was performed.

[12]        By 2009 Druet’s condition was stabilized, but she had stiffness and arthrofibrosis of her right ankle, related to her bimalleolar ankle fracture.  She is not considered at high risk for future injuries, provided she stays within reasonable restrictions.

[13]        She walks with a slight limp and can no longer run as she once did, but can walk significant distances, which she does with walking partners.  She has some concerns about the work she does as a nurse, but is still able to perform the work required to the satisfaction of her current employer…

[66]        I have described the injuries above.  As a result of those injuries the plaintiff had three surgeries, although two were in succession.  She had implantation of a plate, a rod and surgical screws in March 2005 which were removed in September 2005.  Her ankle was debrided in June 2008.

[67]        Druet missed a total of three months of work as a licenced practical nurse arising from the injuries and surgeries.  She walked with crutches for a short time after the Accident while recuperating.  She had limited physiotherapy in 2005 but not since.  She wears orthotics.

[68]        Druet has substantially resumed her previous activities, except running.  She now walks two miles a day, five days a week.  She did substantial walking during a vacation to Europe in 2006 and a holiday in New York in 2008.  She can walk five kilometres.  She participates in 5K walks and completes them 10 to 15 minutes slower than when she ran. ..

In my opinion non-pecuniary damages fall between the two parties’ positions.  I award $55,000 under this head.

Justice Harris Discourages Deposition Evidence Absent "Pressing Reasons"

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 7, Uncategorized. 118 Comments on Justice Harris Discourages Deposition Evidence Absent "Pressing Reasons"


Rule 7-8(1) of the BC Supreme Court Rules allows parties to a lawsuit to, by consent, record evidence of witnesses prior to trial by way of Deposition.  Deposition evidence can then be admitted at trial as authorized by Rule 12-5(40).
When evidence is taken prior to trial it is accompanied by certain shortcomings as compared to live courtroom testimony.  Mr. Justice Harris discussed these at length in an Appendix to reasons for judgement released earlier this month.
In this recent case (Byer v. Mills) the Plaintiff was seriously injured in a motor vehicle collision.  In the course of the lawsuit the parties agreed to record much of the evidence by way of pre-trial deposition.  Ultimately the Plaintiff’s lawsuit was dismissed.  Mr. Justice Harris shared some concerns about the shortcomings that can be created by deposition evidence at trial and suggested that counsel only agree to pre-trial depositions when there are ‘pressing reasons to do so‘.  The Court provided the following feedback to BC litigants:

a)    The majority of the defence evidence of fact was taken by deposition before trial began. This was done by consent as the Civil Rules permit. I presume it was done to convenience the witnesses, most of whom live in or near Quesnel and to save the expense of bringing witnesses to testify “live” before the court in Vancouver.

b)    During the course of one deposition, I expressed some reservations about using depositions in this way. What follows are some reflections triggered by the use of this practice, and are not comments directly arising from the way counsel in the case before me conducted the depositions. They are also not complete, but merely illustrative of the kind of problems that arise by taking evidence by deposition.

c)     It is well settled in our trial practice that the basic rule is that witnesses should testify live before the court. This proposition is reflected in Civil Rule12-5 (27) and in the many cases in which our courts have considered the basis on which to exercise their discretion to make an order that evidence be taken by deposition.

d)    In this case, the defence evidence was taken before trial and therefore before the plaintiff had led any evidence at all. In my view, there are good reasons why in a conventional trial a plaintiff is required to lead evidence first on matters on which he or she bears the burden of proof. The defence is then required to respond to the plaintiff’s case, including leading evidence on any matters on which it carries the burden. This provides an orderly framework for the receipt of evidence by the court. It helps keep the relevance of evidence in focus.

e)    Taking defence evidence first carries with it risks and potential inefficiencies. First, there is the risk that a defendant may not correctly anticipate what the plaintiff’s evidence turns out to be at trial. The defence evidence may not be properly responsive to the plaintiff’s case. Evidence may be taken that is unnecessary. Issues may not be adequately addressed in the defence case, creating the risk that a party may need to apply to have a witness who has been deposed supplement his or her evidence. It seems to me to be generally undesirable to take trial evidence out of the normal order.

f)      There are further difficulties inherent in taking evidence by deposition. The evidence is not taken live and its receipt as trial evidence is not controlled by the trial judge as the evidence is being given. Objections may be made, as occurred in this case. Inevitably, the objection is made and left on the record. The witness then provides the evidence to which there is an objection, subject to a later ruling.

g)    This seems to me to be unsatisfactory. It is preferable that objections be ruled on before the evidence is given for a number of reasons. First, if the objection is upheld, a witness does not spend time answering improper questions. Where several witnesses are testifying about the same matter, a ruling at the outset will limit the scope of the evidence of all the subsequent witnesses. Secondly, it is not uncommon for counsel to frame questions in an objectionable manner, even though there are ways properly to elicit the evidence counsel is seeking. It is far better for the court to have the opportunity to ensure that questions are properly framed and evidence properly received than to try to “unscramble an omelette” after the fact. This is not just a practical issue. Often the way in which evidence is elicited can affect the weight it is entitled to receive. There is a risk of substantive prejudice to the parties if the trial judge is denied the opportunity at the time it is given to ensure that evidence is properly received.

h)    Finally, the trial judge has an important additional role to play in controlling the trial process. It is not uncommon for a trial judge to be called on during cross-examination, either at the request of counsel or on his or her own initiative, to control the conduct of the cross-examination. For example, it may be necessary to decide how much of a prior allegedly inconsistent statement ought properly to be put to a witness. That is a decision that should be made at the time the witness is confronted with the statement. Taking evidence by deposition necessarily deprives the trial judge of an essential judicial function. Doing so is fraught with risks to the trial process and risks substantive prejudice to the parties.

i)       I appreciate the Civil Rules permit depositions to be taken by consent. In my view, the purpose of allowing this to occur by consent is to obviate the need for an order where it is clear that the circumstances exist that would lead a court to make an order. Generally, the party applying to take evidence by deposition has a burden to meet to justify departing from the general rule that evidence be given live. I will not rehearse the law on this point. But I do not think the drafters of the Civil Rules intended to encourage a practice that is inconsistent with conventional trial practice.

j)      It follows from my comments above that I would discourage counsel from electing to resort to taking depositions by consent unless there are pressing reasons to do so. If there are legitimate concerns about cost and convenience, there are provisions permitting taking evidence by video conference. At least then the evidence is taken live.