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BC Court of Appeal Finds It Is Not "Misleading" To Use Competitors Names in Paid KeyWord Search

Written by admin on . Posted in Uncategorized.


Interesting reasons for judgement were released today by the BC Court of Appeal addressing professional regulation of paid keyword searches.  This of course has nothing to do with Injury Law, however, as very few professions spend more money on keyword advertising than injury lawyers I thought this decision would be of interest to some of my readers.
In today’s case (Private Career Training Institutions Agency v. Vancouver Career College (Burnaby) Inc.) the respondents “paid Internet search engines such as Google or Yahoo for the use of competitors’ names as a keyword“.
The respondent was precluded from engaging in “deceptive or misleading” advertising by virtue of Bylaw 29(1) of the Private Career Training Institutions Act.  The Appellant was the regulator in charge of this act and sought an injunction preventing this practice.   At trial the judge refused to grant the injunction finding this practice was not deceptive.  The BC Court of Appeal agreed and in doing so provided the following reasons:

6]             Internet search engines commonly sell the use of keywords to the highest bidder for a period of time on the basis that the purchaser’s name will appear at the top of a list of names or in a special section on the first page that appears when a user searches the Internet using the competitors’ name.  The purchaser’s listing may be identified as a “sponsor”, an “ad” or not at all.  Other names appear in an organic list below the purchasing company’s name in an order of priority developed by the search engine.

[7]             For example, a Google search of “Sprott-Shaw Community College” produced a page with a box at the top right of the page containing a list of “sponsored links”– the first one of which was the respondent Vancouver Career College.  Sprott-Shaw also appeared on the page.  A Google search of the term “vanarts” produced a page on the top of which was the name Vancouver Art College, the internet address of which was the respondent Vancouver College of Art and Design.  This was identified as a sponsored link.  The respondent’s competitor, Van Arts school, was listed next below the respondent….

[38]         It is important to understand what this case concerns.  It is not a dispute over intellectual property and the result should not be considered in that context.

[39]         The application before the chambers judge was for an injunction.  The burden was on the appellant to satisfy the judge that there were reasonable grounds to believe that the respondents’ use of keyword advertising was actually or potentially misleading.  He found as a fact that the appellant had not established that the respondents’ keyword advertising was actually or potentially misleading.  He stated that the appellant had not persuaded him that the respondents’ use of its competitors’ names in keyword advertising “could…lead a student astray or into making a harmful error of judgment”.  There was evidence to support those findings.

[40]         In my view, that evidence and the judge’s findings show that he was not satisfied that there were reasonable grounds to believe that the respondents contravened Bylaw 29(1).  There is no basis on which this Court should or could interfere.

Examination For Discovery and Continuations – A "Heavy Onus"

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure, Uncategorized.


One of the welcome developments in the New BC Supreme Court Rules is a cap on the length of examinations for discovery.   Examinations in conventional lawsuits are capped at 7 hours under Rule 7-2(a) and limited to 2 hours in Fast Track trials.  The Court has a general power to permit lengthier examinations in appropriate circumstances.
When parties conclude an examination for discovery there are typically requests for further information and parties usually agree to a follow up discovery to address matters arising from the further disclosure.  When a party wishes to further explore a topic already covered, however, they are usually not permitted to have a continuation of the discovery.  Reasons for judgement were released today addressing this area of law.
In today’s case (Lewis v Lewis) the Plaintiff was involved in a 2005 motor vehicle collision.  The Plaintiff alleged injury.  The Defendant denied that she was injured and alleged that her injuries were pre-existing.  In the course of the lawsuit the Plaintiff provided various medical records including pre-accident records.
The Plaintiff attended a discovery and was examined with respect to her injury claim.   After concluding the discovery the Defendants requested a continuation to further explore the issue of the Plaintiff’s pre-accident health.  The Plaintiff opposed arguing that she had already been examined with respect to this topic.  Mr. Justice Harvey agreed with the Plaintiff and dismissed the application for a further discovery.  In doing so the Court provided the following useful reasons:

[8]             The case law stands for the proposition that where a further examination for discovery is sought, there is a heavy onus on the applicant to justify that further examination, and that to justify same they must demonstrate that the complexion of the case has materially changed as a result of the passage of time, new heads of damage are being advanced, or intervening events having occurred since the last discovery, which would materially alter the prosecution of the case and the defence of it.

[9]             Alternatively, a party could produce evidence to show that full and frank disclosure was not made at the first discovery.

[10]         Here that is not the case. Here the defendant, together with its medical advisor, failed to see what was there to be seen. Specifically, each failed to note and act upon the references to previous shoulder complaints in clinical records that were in the hands of both the medical practitioner and the solicitor conducting the discovery.  I am not satisfied that the heavy onus that is set forth in the decisions I have been referred to, one of which was Sutherland (Public Trustee of) v. Lucas, has been met.

[11]         Accordingly the application for a further discovery by the defendant is dismissed.

The Shortcomings of "Occupant Dynamics" Expert Evidence

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 51 Comments on The Shortcomings of "Occupant Dynamics" Expert Evidence


Accident reconstrucion experts routinely give evidence during BC personal injury lawsuits when fault for a motor vehicle crash is at issue.  One subset of such expert evidence is “occupant dynamic” evidence which seeks to explain how a passenger would be thrown around following a collision.  While this evidence can have some value at trial it is accompanied with certain shortcomings.  These were discussed in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Byer v. Mills) the Plaintiff was one of two occupants in a vehicle which was involved in an at-fault collision.  The central issue at trial was who the driver of the vehicle was.  The Plaintiff was badly injured and had no recollection of who was driving.  The second occupant of the vehicle died shortly following the crash.  There were no independent witnesses addressing who was driving at the time of the crash and the Court had to decide this issue relying on circumstantial evidence.
In the course of the trial the Court heard evidence from an ‘occupant dynamic‘ expert.   Ultimatley Mr. Justice Harris dismissed the Plaintiff’s lawsuit finding that, on a balance of probabilities, he was likely the driver therefore he was at fault for his own injuries.  This decision was most influenced by lay witness evidence and the occupant dynamic expert testimony was of little value in this particular case.  Mr. Justice Harris provided the following short but useful comment addressing the shortcomings of occupant dynamic evidence:
[54] The principles of occupant dynamics are helpful up to a point. Certainly, they assist in identifying the principal direction of force exerted on occupants. They are also helpful in identifying the point at which an occupant might be expected to make initial contact with the interior of the passenger compartment. In my view, in the circumstances of this collision, the predictive value of principles of occupant dynamics rapidly diminishes once the movement of the passengers is affected by contact with the interior of the compartment and with each other. At that point the situation becomes inherently dynamic and fluid. There are far too many variables involved to make accurate predictions of how the occupants and parts of their bodies would move once they start hitting each other. It must be remembered that if unrestrained an occupant would be traveling within the compartment at a speed of about 55 km/h. I am sceptical that any reliable prediction of how the occupants would interact with each other, with the interior of the passenger compartment and move within it can be undertaken.

New Rules of Court Update: Contested Applications At CPC's and TMC's

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 5, Uncategorized. 47 Comments on New Rules of Court Update: Contested Applications At CPC's and TMC's


(Note: this area of law is still developing, for a further case addressing this issue click here)
Two of the biggest changes under the New Supreme Court Rules are the introduction of Case Planning Conferences and mandatory Trial Management Conferences (CPC’s and TMC’s).
The New Rules give the Court significant powers to make various orders with respect to the conduct of lawsuits at these hearings.  Interesting reasons were recently brought to my attention addressing the limit of the Court to address contested matters at CPC’s and TMC’s.
In the recent case (Vernon v. British Columbia (Liquor Distribution Branch)) the Plaintiff sued the Defendant for wrongful dismissal.  As the lawsuit progressed the parties attended a Trial Management Conference.  At the TMC the Defendant asked for various orders including an adjournment of the upcoming trial and a partial publication ban of the trial.  These applicaitons were contested by the Plaintiff.  Mr. Justice Goepel dismissed the applications finding that TMC’s and CPC’s were inappropriate forums for contested applications.  The Court provided the following reasons:

[21]        The issue in this case is whether counsel’s statements provide a sufficient evidentiary foundation for the orders that the defendant seeks. The applications for an adjournment and a publication ban both require the exercise of judicial discretion to consider competing interests. In the case of the adjournment, the contest is between the defendant’s need for additional time to prepare its case and the potential prejudice to the plaintiff if the case is adjourned. With regard to the publication ban, the court must weigh the salutary effect

[22]        The adjournment and publication ban applications both require a proper evidentiary foundation. Statements of counsel alone are not sufficient. To paraphrase Lambert J.A. in Nichols, where statements of counsel stand alone, it will be a rare case that such statements will be sufficient to justify a finding of fact that would permit the exercise of judicial discretion. This is not such a case.

[23]        While CPCs and TMCs have a role to play in the orderly progress of litigation, they are not generally the forum to determine contested applications. Such applications will usually require affidavit evidence and pursuant to the provisions of Rule 12-2(11) and 5-3(2) applications requiring affidavit evidence cannot to be heard at such conferences. In this case affidavit evidence is necessary to determine the defendant’s applications for an adjournment and a publication ban. Those applications cannot be heard at a TMC.

[24]        This is not to say that a judge cannot make orders at a CPC or a TMC. Clearly, a judge can. Many of the orders contemplated at such a conference will not require applications or affidavit evidence. The Rules allow a judge to make an order absent an application. Many of the orders suggested in the respective rules are procedural in nature and more in the nature of directions. Such orders can be based on the representations of counsel. An example is the present application concerning the order of proceedings at trial.

Why I Hate Insurance Fraud (and why you should too)

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Recently Canadian Underwriter reported that insurance fraud costs Canadian insurers over $540 million annually.  The article highlights the fact that “Insurance companies around the world are reporting a higher number of bogus claims from cash-strapped motorists, homeowners and other con artists“.
Insurance companies, however, are not the hardest hit victims of insurance fraud.  Legitimately injured people are.
This is the reason why I hate insurance fraud.  It’s not just that fraud costs ICBC and other insurers money.  It’s not just that fraud compensates undeserving people.  It’s not even that insurance fraud is a crime.  The main reason why I hate insurance fraud is that it casts doubt on legitimate claims.
When insurance companies process thousands of claims, a few fraudulent ones will appear.  If an adjuster deals with enough of these it’s natural to develop a level of skepticism.  This skepticism can then go on to skew the way legitimate claims are perceived.  This in turn results in some deserving individuals being denied their needed insurance benefits.
When insurance companies suspect fraud they have significant resources to pursue claims for damages, claimants who are denied disability or other insurance benefits are not always so fortunate.  When statistics are published about insurance fraud remember that deserving claimants are the greatest victims of this crime.

Court Finds Abuse of Process for Liability Denial After Careless Driving Conviction

Written by admin on . Posted in BCSC Civil Rule 9, Civil Procedure, Uncategorized. 111 Comments on Court Finds Abuse of Process for Liability Denial After Careless Driving Conviction


Useful reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, finding that it is an ‘abuse of process‘ pursuant to Rule 9-5(1)(d) for a Defendant to deny the issue of liability in a personal injury lawsuit after they have been convicted of careless driving as a result of the same collision.
In this week’s case (Ulmer v. Weidmann) the Plaintiff’s husband was killed when his motorcycle was struck by a vehicle operated by the Defendant.  The Plaintiff sued for damages pursuant to the Family Compensation Act.
Following the collision the Defendant was charged with “driving without due care and attention” under section 144(1)(a) of the BC Motor Vehicle Act.  He contested this charge but ultimately was found guilty following trial in the BC Provincial Court.
The Defendant then denied fault for the crash in the Wrongful Death lawsuit and claimed the Plaintiff was partly responsible.  Mr. Justice Truscott rejected this argument and found the Defendant solely responsible for the fatal collision.  The Court went further and found that while a party convicted under s. 144(1)(a) of the Motor Vehicle Act can argue an opposing motorist is partly to blame for a crash, it is an abuse of process for the convicted party to outright deny the issue of fault.  The Court provided the following useful reasons:

[83]         In my opinion the finding of driving without due care and attention in Provincial Court was akin to a finding of negligence against Mr. Weidmann, because his manner of driving was found to have departed from the standard of a reasonable man and he failed to avoid liability by proving he took all reasonable care in the circumstances.

[84]         I agree with plaintiff’s counsel that it was an abuse of process for the defendants to deny full liability in their statement of defence as this constituted an attempt to re-litigate the findings of the Provincial Court that were necessary for Steven Weidmann’s conviction of driving without due care and attention. This was an attempt to undermine the integrity of the adjudicative process which is not to be allowed.

[85]         I do not conclude however that the findings essential to Mr. Weidmann’s conviction in Provincial Court prevented Mr. Weidmann from alleging contributory negligence against Mr. Ulmer in this action…

[91]         While I have decided that there was no negligence on Mr. Ulmer contributing to the collision, based upon the evidence that I have accepted, I cannot say that this was a defence advanced in bad faith for the ulterior purpose of emotionally disturbing the plaintiff and putting pressure on her to settle at a figure favourable to the defendants.

[92]         Although I have concluded that it was an abuse of process by the defendants to deny liability completely, they were not guilty of an abuse of process in maintaining the defence of contributory negligence of Mr. Ulmer at all times.

The Plaintiff was ultimately awarded damages for her accident related losses and these included $10,000 for ‘nervous shock’.  Paragraphs 97-215 of the Reasons for Judgement are worth reviewing for Mr. Justice Truscott’s thorough review of the law of nervous shock claims.

Production of Documents, Forced Authorizations and the New Rules of Court

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized. 67 Comments on Production of Documents, Forced Authorizations and the New Rules of Court


As previously discussed, the BC Supreme Court Rules require parties to give discovery of relevant documents in their possession or control.  Often times there are relevant documents that are not in the Plaintiff’s possession or control but the Plaintiff has the ability to easily get these documents.  (For example medical records documenting accident related injuries.)  Such records are commonly referred to as “Third Party Records”.
It has been a matter of much judicial debate whether the BC Supreme Court could order a Plaintiff to sign an authorization to consent to the release of Third Party Records with Mr. Justice Hinkson recently finding that the Court did not have this power under the Former Rules.
The first case I’m aware of dealing with issue under the New Rules of Court was released today by the BCSC , New Westminster Registry.   Keeping the uncertainty on-going, Mr. Justice Williams found that the Rules do authorize a Court to force a party to sign authorizations for the release of Third Party Records
In today’s case (Nikolic v. Olsen) the Plaintiff was involved in a motor vehicle collision.  The Defendant brought a motion to compel the Plaintiff to sign various authorizations.  The Plaintiff opposed arguing that the Court lacked the authority to make such an order.  Mr. Justice Williams disagreed.  The Court provided a lengthy review of the relevant authorities and ultimately provided the following reasons addressing this issue:
[11] There are conflicting judicial authorities respecting the issue raised in this application. The line of jurisprudence which holds that the court cannot make an order requiring a litigant to authorize third party production is, in my view, troubling. For the reasons that follow, I conclude that this Court can make an order requiring a litigant to authorize a third party, whether within or outside this province, to produce records relating to him or her to another litigant. The jurisdiction to do so is based on the Rules of Court…

[93]         In British Columbia, relevant non-privileged documents are compellable in a civil action. Full and complete disclosure between or among litigants prior to trial is essential to the truth-seeking function of the litigation process and proper administration of justice.

[94]         This Court has the authority under the former Rules to compel production and to specify the mechanics of its production orders. Rule 26(1.1) permits the court to order a litigant to list documents in his or her power, which may include those held by foreign non-parties. Rule 26(10) empowers the court to order a litigant to produce a document for inspection and copying in the manner it thinks just. Furthermore, R. 1(12) grants the court wide discretionary powers, in the making of orders, to impose terms and conditions and give directions as its thinks just. Read collectively, a master or judge of this Court has the jurisdiction to create the mechanisms by which relevant non-privileged documents in a litigant’s “power” will be produced, including the jurisdiction to order him or her to execute the necessary documentation allowing a record-holder, whether residing in or outside British Columbia, to effect the release of those documents.

[95]         In my view, the following excerpt from para. 110 of Hood J.’s reasons in Lewis is apt:

There is also no doubt that the Court has substantive jurisdiction or power pertaining to the discovery and inspection of documents under Rule 26, particularly the compelling or ordering of production of documents. … In my opinion, the manner in which production is achieved is for the Court. The Court’s substantive jurisdiction or power to compel the production of documents includes the jurisdiction or power to create the mechanisms or the means by which production is made.

[96]         As expressed in the jurisprudence, there are, no doubt, potentially unwieldy implications of a court order compelling authorization of third party production. Given these concerns, such orders should not be granted lightly. In this respect, L. Smith J. in McKay v. Passmore, 2005 BCSC 570, [2005] B.C.J. No. 1232 (QL), offers worthwhile guidance. That was a personal injury case arising from a motor vehicle collision. An application was brought for an order that the plaintiff execute an authorization allowing the defendants to obtain records held by the Manitoba Workers Compensation Board. Her Ladyship held, at para. 36, that while the court has jurisdiction to grant such an application, there was insufficient basis on the evidence to do so. She concluded, at para. 40, that the circumstances of the case before her did not warrant the order sought in light of the R. 26(11) criteria provided by the Court of Appeal in Dufault, which she outlined at para. 38:

1.         The applicant must satisfy the court that the application is not in the nature of a “fishing expedition.”

2.         He or she must show that a person who is not a party to the action has a document or documents in his or her possession that contains information which may relate to a matter in issue.

3.         If the applicant satisfies those criteria, the court should make the order unless there is a compelling reason not to make it (i.e. because a document is privileged or because grounds exist for refusing the application in the interests of persons not parties to the action who might be affected adversely by an order for production and the adverse affect would outweigh the probative value of the document.)

[97]         Obviously these criteria, among other relevant factors, ought to be considered by a court considering an application for an order compelling a litigant to authorize production of documents held by a third party whether located within or outside British Columbia.

[98]         For two examples as to how the McKay/Dufault criteria may apply, see Distinctive Photowork Co. v. Prudential Assurance Co. of England Property and Casualty (Canada) (1994), 98 B.C.L.R. (2d) 316, [1994] B.C.J. No. 3231 (QL) (S.C. Chambers); and Tetz v. Niering, [1996] B.C.J. No. 2019 (QL), 1996 CarswellBC 1887 (S.C. Chambers).

[99]         These cases, although they raise slightly different issues, do not detract from, but rather inform, the basic proposition that where a litigant is under an obligation to make disclosure of documents, then that obligation must be honoured. Where such documents are in the hands of third parties, the usual format will entail the litigant voluntarily agreeing to provide a document authorizing the record holder to release the material, and that will resolve the matter. However, in other cases, where consent is refused, litigants are entitled to seek relief and the court has jurisdiction to enforce the disclosure obligation, specifically by making an order whereby the party whose records are being sought will “consent” to their release. While the wording is unfortunate and has engendered a regrettable state of controversy, the underlying concept is, in my view, straightforward.

[100]     The Olsons have a legitimate interest in obtaining the requested records and I am satisfied that their application is not in the nature of a fishing expedition. I also find that the third parties named by the defendants in their application possess the requested records which relate to a matter or matters in this case. By way of obiter dicta, I note that the common law test for relevance under the former Rules is broader than what seems to be provided by the wording of the current Rules. There are, furthermore, no compelling reasons why the order sought should not be made.

[101]     Accordingly, I order the respondent/plaintiff, Mr. Nikolic, to provide signed authorizations allowing the applicants/defendants, Josiah Olson and Joel Olson, to obtain from the third parties named the records listed in clauses (c), (d), (e) and (f) of the proposed order reproduced at para. 3 of these reasons.

Driver Partly At Fault For Failing to Engage Turn Signal in Timely Fashion

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 47 Comments on Driver Partly At Fault For Failing to Engage Turn Signal in Timely Fashion


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, deciding the issue of fault for a two vehicle collision.
In today’s case (Tang v. Rodgers) the Plaintiff was travelling on West 33rd Avenue in Vancouver when he was struck by the Defendant’s vehicle.  There was one lane in the Plaintiff’s direction of travel at the scene of the collision.  The Plaintiff attempted a right hand turn into the driveway to his residence.  At this time the Defendant was attempting to pass the Plaintiff’s vehicle on the right and a collision occurred.
There was conflicting evidence at trial but ultimately the Court found that both motorists were to blame.  The Defendant was faulted for passing on the right when it was unsafe to do so.  The Plaintiff was found 25% at fault for failing to engage his right hand turn signal in a timely fashion.  In arriving at this apportionment Madam Justice Brown provided the following reasons:

[21]         Section 158 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, prohibits passing to the right in most circumstances.  Mr. Rodgers was negligent in passing on the right without ensuring that it was safe to do so.  Mr. Tang was moving slowly in the travel lane when Mr. Rodgers decided to pass.  Mr. Rodgers did not know what Mr. Tang was doing and thought he was confused.  Mr. Rodgers took a significant risk.

[22]         Mr. Tang was also negligent.  Section 167 of the Motor Vehicle Act provides that a driver of a vehicle must not turn the vehicle to the right from a highway at a place other than an intersection unless the driver causes the vehicle to approach the place as closely as practicable to the right hand curb or edge of the roadway.  Mr. Tang did not do so.  Rather, as some drivers do, he placed his vehicle to the left before turning right.  His vehicle was not as close as practicable to the right hand curb or edge of the roadway.  Second, Mr. Tang did not shoulder check or look to his right before turning right.  Finally, Mr. Tang only turned his right turn signal on immediately before the accident, which was too late to give warning to those behind him.

[23]         The circumstances of this case are very similar to the circumstances that were before Mr. Justice Curtis in Boyes v. Mistal, [1990] B.C.J. No. 1755, 1990 CanLII 528 (SC), aff’d 1992 CanLII 1954 (BCCA).  There Mr. Justice Curtis said:

Mrs. Boyes did not give sufficient warning when she signalled.  Like many drivers she signalled and turned almost simultaneously, too late to warn Mr. Mistal.  Nor did Mrs. Boyes turn from as close as practicable to the right hand edge of the roadway, she turned when there was more than a car width to her right – thereby risking the sort of collision that did occur.  Mrs. Boyes is at fault in the collision for these reasons.

I find Mr. Mistal’s fault to be the greater.  Mrs. Boyes was occupying the only lane of travel, she never left her lane, and had a right to be there.  Mr. Mistal chose to pass Mrs. Boyes when she slowed down on the basis of what he assumed was happening.  She had not signalled and Mr. Mistal should have known that in choosing to pass a vehicle which was obviously intending some maneuver not yet signalled, in its own lane, he was taking a significant risk.  I find Mr. Mistal to be 75% at fault and Mrs. Boyes 25%.

[24]         I, too, conclude that Mr. Rodgers’ fault was the greater.  I find Mr. Rodgers 75% at fault and Mr. Tang 25% at fault.

The Limits of Clinical Records in Injury Litigation

Written by admin on . Posted in Civil Procedure, Uncategorized. 96 Comments on The Limits of Clinical Records in Injury Litigation


(Update March 8, 2012 – the below reasoning was upheld by the BC Court of Appelal in reasons for judgement released today.  You can find the BC Court of Appeal’s Reasons here)
When an injury claimant attends examination for discovery or trial they are usually subjected to an extensive cross-examination with respect to matters contained in clinical records.  These records contain a host of information including dates of doctors visits, complaints made, diagnoses given, treatments recommended and the course of recovery of injuries.
Despite this volume of information clinical records do have limitations with respect to their use at trial.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing these.
In today’s case (Edmondson v. Payer) the Plaintiff was involved in a 2005 BC motor vehicle collision.  The Plaintiff sustained various soft tissue injuries involving her neck with associated headaches.  The Defendant argued that the injuries were minor and that the Plaintiff lacked credibility.  In support of their argument the Defendant relied heavily on various entries contained in the Plaintiff’s clinical records.
Mr. Justice Smith rejected the Defendant’s argument and awarded the Plaintiff $40,000 for non-pecuniary damages (money for pain and suffeirng and loss of enjoyment of life).  In doing so the Court provided the following useful reasons addressing the use of clinical records in injury litigation:
[23] Much of the defendant’s submission on the plaintiff’s credibility flows from what is, or is not, found in the clinical records of doctors the plaintiff has seen.  It is therefore important to review the limited purposes for which clinical records are admissible.  It is easy to lose sight of those limitations in cases of this kind, where the time spent parsing a single note made by a doctor often far exceeds the length of the medical appointment that the note records…

[34]         The difficulty with statements in clinical records is that, because they are only a brief summary or paraphrase, there is no record of anything else that may have been said and which might in some way explain, expand upon or qualify a particular doctor’s note.  The plaintiff will usually have no specific recollection of what was said and, when shown the record on cross-examination, can rarely do more than agree that he or she must have said what the doctor wrote.

[35]         Further difficulties arise when a number of clinical records made over a lengthy period are being considered.  Inconsistencies are almost inevitable because few people, when asked to describe their condition on numerous occasions, will use exactly the same words or emphasis each time.  As Parrett J. said in Burke-Pietramala v. Samad, 2004 BCSC 470, at paragraph 104:

…the reports are those of a layperson going through a traumatic and difficult time and one for which she is seeing little, if any, hope for improvement. Secondly, the histories are those recorded by different doctors who may well have had different perspectives and different perceptions of what is important. … I find little surprising in the variations of the plaintiff’s history in this case, particularly given the human tendency to reconsider, review and summarize history in light of new information.

[36]         While the content of a clinical record may be evidence for some purposes, the absence of a record is not, in itself, evidence of anything.  For example, the absence of reference to a symptom in a doctor’s notes of a particular visit cannot be the sole basis for any inference about the existence or non-existence of that symptom.  At most, it indicates only that it was not the focus of discussion on that occasion.

[37]         The same applies to a complete absence of a clinical record.  Except in severe or catastrophic cases, the injury at issue is not the only thing of consequence in the plaintiff’s life.  There certainly may be cases where a plaintiff’s description of his or her symptoms is clearly inconsistent with a failure to seek medical attention, permitting the court to draw adverse conclusions about the plaintiff’s credibility.  But a plaintiff whose condition neither deteriorates nor improves is not obliged to constantly bother busy doctors with reports that nothing has changed, particularly if the plaintiff has no reason to expect the doctors will be able to offer any new or different treatment.  Similarly, a plaintiff who seeks medical attention for unrelated conditions is not obliged to recount the history of the accident and resulting injury to a doctor who is not being asked to treat that injury and has no reason to be interested in it.

[38]         The introduction of clinical records cannot be used to circumvent the requirements governing expert opinion evidence set out in Rule 11-6 of the Supreme Court Civil Rules, B.C. Reg. 168/ 2009 [Rules].  A medical diagnosis?and the reasoning that led to the diagnosis?is a matter of expert opinion. Clinical records are admissible for the fact that a diagnosis was made, but the court cannot accept the diagnosis as correct in the absence of proper opinion evidence to that effect.  Depending on the facts and issues in a particular case, the mere fact that a diagnosis was made may or may not be relevant.

[39]         Clinical records may provide the assumed facts on which an expert may offer an opinion, including diagnosis.  For example, statements made by the plaintiff and recorded in clinical records at various times may be relied on by a defence expert in concluding that the plaintiff’s current symptoms are the result of a condition that pre-dated the accident.  That does not mean that the court can itself use clinical records to arrive at a medical diagnosis in the absence of expert opinion.

[40]         Some of the defendant’s submissions must now be considered in light of these principles.

More on The New Rules of Court, IME's and "Responding" Medical Reports

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized.


Precedents addressing whether an independent medical exam can be ordered to permit a Defendant to obtain a ‘responding‘ report are still being worked out by the BC Supreme Court.  (You can click here to read my archived posts addressing this topic) Reasons for judgement were released today by the BCSC, Victoria Registry, further addressing this issue.
In today’s case (Hamilton v. Demandre) the Plaintiff was involved in 2 separate motor vehicle collisions.  She claimed she was injured in the first and that those injuries were aggravated in the second crash.  Both lawsuits were set for trial at the same time.   One of the alleged injuries was “visual vestibular mismatch with associated dizziness, motion sickness, balance problems and double vision“.
The Plaintiff submitted to medical exams with a neurologist and an orthopaedic surgeon at the request of the Defendant in the first crash.  The Plaintiff also attended an examination with a psychiatrist at the request of the Defendant in the second crash.
In support of her claim, the Plaintiff served reports from various experts including an ENT specialist.    These reports were served in compliance with the time lines set out in the Rules of Court.  The Defendant in the second crash then asked that the Plaintiff attend a further exam with an ENT of their choosing.  The examination was to take place less than 84 days before trial.
The Defendant argued that this exam was necessary in order to obtain a ‘responding‘ report.  The Plaintiff opposed arguing a further exam was not necessary.  Master Bouck agreed with the Plaintiff and dismissed the application.  In doing so the Court provided the following useful reasons:

[33] In a nutshell, the defendant submits that an ENT examination is required to rebut the opinion that the plaintiff’s ocular vestibular problems have worsened as a result of the second accident.

[34] Dr. Longridge’s report predates the second accident; as such, it is not of assistance to the defendant’s argument. If anyone were to rely on this report to obtain a rebuttal examination, it would be the defendants in the First Action.

[35] In any event, the complaints of ocular vestibular problems are of longstanding. This is not a case of a new diagnosis or even a suggestion that a referral to such an ENT specialist is medically required. Dr. Ballard merely opines that a referral to such a specialist is a possibility if the plaintiff’s symptoms continue. Moreover, Dr. Moll, whose opinion was clearly available to the defendant for some time, discusses these symptoms in his report of January 21, 2009.

[36] As submitted by the plaintiff, the defendant chose to pursue a psychiatric, rather than ENT opinion, knowing that the ocular vestibular complaints formed a significant part of the plaintiff’s claim.

[37] As for the other opinions offered, the experts are in agreement that the plaintiff’s condition has worsened, but that treatment may yet alleviate or reduce those symptoms.

[38] The defence clearly has a theory:  the plaintiff is malingering and/or suffers a somatoform disorder. To have the plaintiff examined by an ENT specialist for an assessment that will either be diagnostic in nature and thus not true rebuttal; or merely to prove a negative, that is to confirm that there is no physiological cause for the balance and visual disturbances, would be inconsistent not only with the authorities cited to me, but also with the purposes of Rule 7?6 and 11?6 (4).

[39] On the material before me, I conclude that any report forthcoming from Dr. Bell would be fresh opinion evidence masquerading as answer to the plaintiff’s reports.

[40] In short, the defendant has failed to meet the necessary evidentiary threshold which might support an order for the examinations requested. The application is thus dismissed with costs in the cause.