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$104,500 Non-Pecuniary Damages Awarded for TOS

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases, ICBC Wage Loss, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry (Hooper v. Nair) awarding damages for a 2003 motor vehicle collision.
The Plaintiff was struck while walking lawfully in a marked crosswalk in Burnaby, BC.  She suffered various injuries including Thoracic Outlet Syndrome (TOS).
Madam Justice Russell awarded the Plaintiff $104,500 for her non-pecuniary damages.  In valuing the plaintiffs pain and suffering the Court summarized the Plaintiff’s injuries and their effects on her life as follows:

[50] There are a number of factors that affect the plaintiff’s entitlement to non-pecuniary damages.  With respect to the duration of the pain, the plaintiff’s pain has become chronic in nature.  She continues to experience pain particularly in her neck, left shoulder and arm nearly six years since the onset of symptoms. The chronic nature of her pain means that she will have to deal with and manage the pain from her underlying TOS for the foreseeable future.  She has tried many different modalities of treatment with limited success.  There is some improvement but the pain is still present.  Further, the injuries led to the development of sleeping problems which cause the plaintiff to feel tired in the morning.   She can hope for some improvement over time with a regular exercise programme.  But overall, the prognosis for a full recovery is unclear and it appears that she will continue to be affected by the injuries indefinitely and will likely have to live, at a minimum, with background pain.

[51] The plaintiff’s lifestyle has been adversely affected in a number of ways.  She is determined to resume her jogging programme and to re-enter the Sun Run with her husband.  However, her early attempts to run resulted in a flare-up of neck and back pain.  Drs. Travlos and Salvian suggest that jogging may not be an activity she can do.  Dr. Travlos states she will have to pre-medicate for any activity which causes an exacerbation of her back pain.  Certainly golfing, an activity she enjoyed, will not be an activity she can participate in without pain.

[52] Both doctors also point out that the plaintiff is susceptible to further episodes of TOS should she have any increased neck injury or strain.  Dr. Salvian says that such increased neck strain could be caused by something as simple as “sleeping in a poor position or driving for long periods”.

[53] The plaintiff’s professional life was impacted by the Accident.  She has been able to cope fairly well with the duties of her job by minimizing the use of her left arm.  Luckily, she is right hand dominant.  But her evidence was clear that she maintained the earnings she had only by pushing through the pain and carrying on as best she could.  She gave evidence of struggling to carry on, taking her work home because she could not sit any longer in her office, and feeling tired and overwhelmed.  Because of her pain and fatigue, she believes she could not “court” clients as effectively at a time in her career when she was in a start-up mode and needed to do so.

[54] The Accident also caused emotional difficulties for the plaintiff which were no doubt situational and due to the chronic pain and resulting fatigue.  Fortunately, these problems have not continued and she appears to be coping well at this point.

[55] The plaintiff’s relationship with her husband was in some difficulty due to his business problems and their financial crises prior to the Accident but had improved by October 2005.  Mr. Hooper stated that her sleep difficulties meant she would often leave the marital bed and their relationship was negatively affected.  However, the plaintiff’s evidence about the effect of her injuries on her marital relations with her husband was not as clear.  But I accept his evidence that the plaintiff was irritable, fatigued and distant after the Accident and that her frustration with the slow progress of her recovery affected the happiness of the household.

[56] At the time of the Accident in December 2003, the plaintiff’s son was six years old.  She enjoyed skating with him.  She was not able to take part in active sports with him after the Accident and even cuddling him was painful for her for some time following the Accident.

[57] The plaintiff faced the difficulty of juggling many activities in her busy life:  she had a job which required time and concentration and some extra activities she needed to do as part of her marketing, she was the chief breadwinner for the family, and she had a young son at home and a house to care for.  Even before the Accident she was very busy but with the overlay of pain caused by the Accident, the plaintiff could not keep up her usual standard of housekeeping.  She relied on her older son and her husband to help but this was not always successful and caused friction in the family.  Vacuuming caused her intense pain as did reaching up to dust or clean above her shoulder.  This remains the case today.  She cannot vacuum, wash windows, or dust high corners.

[58] While Dr. Travlos suggests she use Noritryptiline to pre-medicate if she wants to do housework which would otherwise cause her pain, this is not always a practical solution and I accept that her inability to do housework has an impact on her life.

In addition to this case’s value as a precedent in Thoracic Outlet Syndrome cases the court discusses the thin skull and crumbling skull legal principles at paragraphs 59-66 and contains a very useful discussion of claims for past wage loss for commissioned sales-persons who are injured but not totally disabled as a result of accident related injuries.

2008 Lawyer and Doctor ICBC Billings Revealed

Written by admin on . Posted in Uncategorized.

Further to my previous posts on this topic (click here and here to read these) ICBC has now published their ‘statements and schedules of financial information’ for 2008 which reveals, amongst other things, the amount of money ICBC has paid to ‘suppliers for goods and services for the year ended December 31, 2008.’
Suppliers of Goods and Services include doctors who perform ‘independent’ medical exams for ICBC.   When ICBC sends and injured person to an independent medical exam these financial statements can be checked to see just how much money any given physician was paid by ICBC in a calendar year.
Another provider of ‘services’ revealed in these financial statements are law firms who do ICBC defence work. I have previously posted that some lawfirms and lawyers work both sides of the fence, that is on some cases they work for ICBC and in other cases they work for injured plaintiff’s suing someone insured by ICBC. According to the BC Law Society there is nothing wrong with this but these lawyers need to let their clients know if they signed the ICBC defence contract (known as the SAA) which restricts the lawyers ability to make claims against ICBC.  This is required so clients can make an informed decision when choosing to hire their lawyer.
If you hired a lawyer to advance your ICBC injury claim and are curious if your lawyer also works for ICBC you can check these annual reports to see just how much money any given lawfirm is paid by ICBC in each calendar year.

An Interesting but Short Lived Rule 37B Precedent

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Jury Trials, Uncategorized.

Reasons for judgement were transcribed today by the BC Supreme Court giving a new and interesting interpretation to Rule 37B.
In today’s case (Oliver v. Moen) the the Plaintiff sued for personal injuries as a result of a BC Car Crash.  The matter proceeded to trial by Jury.
Leading up to the trial the Plaintiff made a formal offer to settle under the now repealed Rule 37 for $400,000.  The Defendant countered with a formal offer of $100,000.  The Plaintiff then delivered a formal offer under Rule 37B for $185,000.  After 12 days of trial the Jury awarded approximately $14,000 in total damages for the Plaintiffs injuries and losses.
More often than not, when a defendant beats a formal settlement offer at trial they are entitled to costs under Rule 37B and in today’s case the defendant brought an application for such an order.  In an interesting twist, however, Mr. Justice Joyce of the BC Supreme Court declined to award the Defendant costs finding that when the Plaintiff made the formal counter offer of $185,000 this constituted a rejection of the Defendant’s offer.  A rejection of an offer, at common law, takes the offer off the table.  Mr. Justice Joyce held that since this occurred the Defendant did not have a valid offer to settle in existence from the time of the Plaintiff’s offer to settle onward thus the offer ‘cannot be considred under Rule 37B when deciding the issue of costs’
Specifically the Court reasoned as follows:

[12] Satanove J. noted that Rule 37(10) had been repealed when the counteroffer was made and Rule 37B did not contain an analogous provision. Accordingly, the common law rule relating to contract applied. At paras. 8 and 9 Madam Justice Satanove said:

8          Turning then to the common law of contracts, it is trite to say that a counteroffer constitutes non-acceptance of a previous offer. The previous offer must be revived in order to be accepted after a counteroffer has ensued. (United Pacific Capital v. Piché, 2004 BCSC 1524; Cowan v. Boyd (1921), 49 O.L.R. 335 (C.A.)).

9          Applying these principles to the chronology of facts in this case, when the plaintiffs issued the counteroffer of January 6, 2009, they were communicating non-acceptance of the Rule 37B offer of November 28, 2008 from the defendants, and this latter offer was no longer extant. [emphasis added]

[13] On the authority of More Marine, I am driven to conclude that when the plaintiff made its offer of January 30, 2009 that counteroffer constituted non-acceptance of the defendant’s offer of February 25, 2008 and rendered the earlier offer no longer extant because the saving provision of Rule 37(10) was no longer in effect.

[14] As the defendant’s offer was no longer in existence and therefore no longer capable of acceptance it cannot be considered under Rule 37B when deciding the issue of costs. This may seem a harsh result but it is one that, in my opinion, follows from the failure to preserve the saving effect of the former Rule 37(10) in Rule 37B.

[15] The defendant submits that More Marine is distinguishable because in that case the offer in question was made under Rule 37B whereas the defendant’s offer in this case was made under Rule 37 and at a time when the saving provision of Rule 37(10) was in effect. It is my view, however, that one must consider the law as it was when the counteroffer was made on January 30, 2009. At that time there was no enactment in place to alter the common law principle that the defendant had to revive his offer in order to give it effect once again.

[16] The defendant argues, in the alternative, that where no formal offer exists, s. 3 of the Supreme Court Act gives the Court a broad discretion over costs and that in the exercise of that discretion I should award the plaintiff costs up to the date of the defendant’s offer and award costs to the defendant from the date of that offer. The defendant relies on British Columbia v. Worthington (Canada) Inc., [1988] B.C.J. No. 1214 (C.A.). That case was concerned with the discretion of a trial judge to order a party who was successful in the action as a whole to pay the costs of an issue in the action to the party who was successful in that issue but who lost the entire action. That issue does not arise in this case. This case does not concern success on separate issues. Mr. Oliver was successful in his action but the jury saw fit to award him only modest damages.

[17] The usual rule as set out in Rule 57(9) is that the “costs of and incidental to a proceeding shall follow the event unless the court otherwise orders”. Having concluded that there is no offer by the defendant that can be considered under Rule 37B, the defendant has not persuaded me that there is any other circumstance that should cause me to depart from the usual rule.

[18] I therefore award the plaintiff the costs of the entire proceeding at scale B.

As far as I am aware this is a novel interpretation of Rule 37B.

Interesting as this case may be, and whether or not it is a correct interpretation of Rule 37B, the case’s value as a precedent will be short lived.  This case, although transcribed today, was pronounced in June, 2009.   As of July 1, 2009 Rule 37B has been amended adding a subrule which specifically states that “An offer to settle does not expire by reason that a counter offer is made.”   which in effect addresses the courts concerns about the short comings of this rule.

More on ICBC Injury Claims, Past Wage Loss and Tax Consequences

Written by admin on . Posted in ICBC Wage Loss, Uncategorized.

When advancing a personal injury claim against another as a result of a BC Car Crash claims for past wage loss are limited to wage loss less income tax.  This is so because of s. 98 of the Insurance (Vehicle) Act which reads as follows:
Despite any other enactment or rule of law but subject to this Part, a person who suffers a loss of income as a result of an accident or, if deceased, his or her personal representative, is entitled to recover from designated defendants, as damages for the income loss suffered after the accident and before the first day of trial of any action brought in relation to it, not more than the net income loss that the person suffered in that period as a result of the accident.
Over the years there was some uncertainty as to how this section of the Insurance (Vehicle) Act operated with respect to claims for past wage loss that extended for multiple years.  For example, if a person suffered 2 years of wage loss of $25,000 per year how would tax be calculated?  Would it be the tax payable on $25,000 per year or would it be the tax payable on the whole $50,000 as if it was earned on the date of trial or settlement?  In March, the BC Court of Appeal released reasons for judgement clarifying this section stating in essence that if income loss can be attributed to any given year then the taxes payable on that income for that year should be deducted.
There is one scenario, however, that has not been clarified by the BC Court of Appeal and that is what income taxes are payable when the amount of past wage loss for any given year is so small that the figure would be tax exempt but when added up with the other income earned by the Plaintiff the gross figure would be taxable?
Reasons for judgement were released this week by the BC Supreme Court dealing with this issue.  In this week’s case (Laxdal v. Robbins) the Plaintiff was involved in a 2006 BC Car Crash.  Madam Justice Gerow found that the Plaintiff suffered a past wage loss of $3,306.24 in 2006.  ICBC’s lawyers argued that this amount should be further reduced to reflect the income taxes payable when adding this figure to the Plaintiff’s total 2006 earnings.  In rejecting this argument the Court held as follows:
“In my view, the authorities support the conclusion that where the gross award is at or below the amount exempt from taxation, there would be no tax payable so that the net past income loss would be the same as the gross past income loss….Accordingly there will be no deduction for income tax as the amount of past wage loss is below the personal exemption.”
This is a great result for BC Plaintiff’s injured in car crashes who suffer a modest past wage loss as it permits the gross amount to be recovered so long as the award fall below the personal income tax exemption for any given calendar year.  I imagine ICBC is not as pleased as Plaintiff’s are with this interpretation and perhaps this issue will go up to the Court of Appeal for consideration.  If it does I will be sure to write about the result.

SFU Parking Fines Challenged in BC Class Proceedings Lawsuit

Written by admin on . Posted in Uncategorized. 58 Comments on SFU Parking Fines Challenged in BC Class Proceedings Lawsuit

(Reposted from the British Columbia Class Action Law Blog)
Fresh on the heels of the recent Class Proceedings Claim launched against UVic challenging the validity of parking fines collected by the University over the years, On June 22, 2009 a claim under the BC Class Proceedings Act (a Class Action lawsuit) was filed in the BC Supreme Court (Victoria Registry) against Simon Fraser University seeking repayment of  parking fines collected by the University.
The Claim was filed on behalf of a Plaintiff seeking to have the claim certified on behalf of Those people from whom fines were collected by the Defendant for violations of traffic and parking regulations.  You can click here to read the Statement of Claim.  In short, the Claim alleges that Parking Fines collected by Simon Fraser University (SFU) were collected unlawfully in that the University lacked the power to enact and collect parking fines.
As I previously posted, I normally don’t write about cases that I and my firm are directly involved in, however, Class Action lawsuits are by definition public and getting the word out to the potential class is essential.
If you or anyone you know paid a parking fine to the University of Victoria, Simon Fraser University (SFU) or the University of Northern BC (UNBC) and are interested in learning more about these claims you can click here to contact me.

More on Serious Psychological Injury Cases in BC

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, Uncategorized. 62 Comments on More on Serious Psychological Injury Cases in BC

(Note: The below case was varied slightly on Appeal. Click here to access the BC Court of Appeal’s reasons)
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding just over $1.3 million in total damages as a result of serious and disabling psychological injuries.
While today’s case (Hussack v. School District No. 33) is not an ICBC claim or even a motor vehicle claim it is a case that is worth reviewing as it is only one of a handful of cases addressing serious psychological injuries that proceed to trial in any given year in BC.
In today’s case the Plaintiff sustained a concussion when struck in the head with a field hockey stick as he approached another player.  He was a student in grade 7 at the time and the game was being supervised by a PE teacher.  Madam Justice Boyd of the BC Supreme Court held that the School District was responsible for this event because the teacher permitted the Plaintiff to play before he “learned any of the basic skills or even how to play the game” and that doing so breached the standard of care that the school should have exercised.
The Plaintiff developed serious psychological issues following his concussion.  In awarding $125,000 for the Plaintiff’s non-pecuniary damages (pain and suffering) the court summarized the injuries as follows:

[194]     For much the same reasons as I noted earlier in addressing the causation issue, I am unable to isolate the symptoms directly related to the mild concussion injury from the somatic symptoms which followed.  As Dr. Foti noted, even in the immediate post-accident phase, it is difficult here to unravel the post-concussion symptoms from the somatic symptoms since they are essentially intertwined.  As I have chronicled earlier in these reasons, the immediate mild headache evolved and morphed over a brief period to include continuing headaches, head pain, photophobia, shaking and tremours, temperature control issues, and generalized joint pain.

[195]     As I have already noted earlier, I reject the notion that Devon’s somatic complaints all pre-dated the accident, and that regardless of the injuries suffered in the accident Devon would have developed the somatoform disorder from which he now suffers.  In my view he is entitled to full compensation for same.

[196]     While Devon returned to school following the accident, he was unable to cope in a regular Grade 8 setting and attempted to complete his studies first in a Hospital Homebound program and later by way of distance education.  Despite his obvious intellectual abilities he has never progressed beyond a Grade 9 or 10 schooling level.

[197]     While he initially ventured outside the home to meet with friends, he has gradually become more and more isolated and for the last several years has spent the majority of his time at home, primarily on the second floor of the house where a large den/games room has been set up to meet his needs.  As Dr. O’Shaughnessy describes in his report of June 12, 2008, Devon lives a lifestyle which is entirely antithetical to what one would hope for an individual managing chronic pain:

He basically has no structure or set pattern to his day.  He will never rise or go to bed at any set pattern and eating habits are variable day to day.  He engages in virtually no activity or exercise.  His only exercise appears to be going on the treadmill once every two weeks for anywhere from two to ten minutes duration.  He rarely leaves the home and claims that even walking up the block is too demanding.  At this point, his father quite literally waits on him 24 hours a day to the degree where his father does all the cooking, cleaning, shopping, etc and prepares (Devon’s) food and brings it to him.  Father and son indicate this pattern has been going on for some time as they feel (Devon’s) joints get too sore when he climbs down stairs to obtain food and/or his tremor limits him from carrying any liquids or pouring liquids etc.  …He has become extremely deconditioned which by itself could lead to some of the complaints of pain described…..

[198]     Since Devon’s situation has continued for approximately 10 years, the experts all agree Devon’s prognosis is very guarded and that his present situation “will not easily change”  (Dr. O’Shaughnessy report, Exhibit 20, Tab 15) unless there is intensive, prolonged intervention.  Dr. Nairne Stewart has opined that even with prolonged and intensive treatment, there is only a “minor hope that (Devon) might again become functional”.  Even assuming such intervention, Dr. Krywaniuk believes it is possible that following the removal of his present support structure (ie. the belief that he is indeed brain damaged and has suffered true physical injuries), Devon may become significantly depressed and perhaps even suicidal.

[199]     In these circumstances and relying upon previous case authorities where awards in the range of $75,000–$100,000 have been made in the case of individuals suffering somatoform disorders, the plaintiff submits an appropriate award would be $135,000, thus accounting for Devon’s youth and the fact that he effectively faces a lifelong, life-altering disability (Edwards v. Marsden; Samuel v. Levi; Yoshikawa).

[200]     I agree that in the circumstances of this case, considering that Devon has been substantially disabled since the age of 13, and now faces a bleak prognosis, struggling to achieve any measure of a mentally and physically healthy life, the appropriate award ought to exceed that made in Edwards, Samuel, or Yoshikawa.  In the circumstances, I award the sum of $125,000 for non pecuniary damages.

The reasons delivered by Madam Justice Boyd go on for over 250 paragraphs but are worth reading in their entirety for anyone interested in psychological injury cases in BC.  The Court deals extensively with the law of causation, the thin skull principle, the crumbling skull principle, foreseeability, intervening causative forces and other interesting and sometimes complex issues that often come up in psychological injury litigation.

Special Costs and "Obviously Flawed Expert Reports"

Written by admin on . Posted in Civil Procedure, Uncategorized. 50 Comments on Special Costs and "Obviously Flawed Expert Reports"

When ICBC Claims proceed to trial in the BC Supreme Court the parties to the lawsuit frequently rely on the reports of ‘expert’ witnesses.  Usually these are medical doctors but other experts such as engineers, economists, functional capacity witnesses and others are common. If a party relies on a hired expert who authors an ‘obviously flawed report’ that party can be penalized by the judge with an order of ‘special costs’.  The BC Supreme Court summarized this principle of law in a 2003 decision by the name of Coulter v.  Ball as follows:

[75]   The use of obviously flawed expert reports is conduct that has been found by the Courts to warrant an award of special costs, see Heppner v. Schmand, supra.  In McKitrick v. Iskic, [1999] B.C.J. No. 1724, Madam Justice Bennett stated, although declining to order special costs on that basis in the case before her at para. 11:

There is no doubt that when a party bases a claim or defence on obviously flawed reports, or an unsubstantiated basis, special costs may be awarded.

In Coulter, the BC Supreme Court summarized the principles behind orders of special costs as follows:

The principle which guides the decision to award solicitor-and-client costs in a contested matter where there is no fund in issue and where the parties have not agreed on solicitor-and-client costs in advance, is that solicitor-and-client costs should not be awarded unless there is some form of reprehensible conduct, either in the circumstances giving rise to the cause of action, or in the proceedings, which makes such costs desirable as a form of chastisement. The words “scandalous” and “outrageous” have also been used. (citations omitted)

[10]   In Leung v. Leung,[1993] B.C.J. No. 2909 (S.C.), Chief Justice Esson, as he then was, clarified the meaning of reprehensible in this context as conduct that the Court finds worthy of rebuke.  At paragraph 5 he stated:

There is nothing in the conduct of Mr. Leung in relation to this matter which I would call “scandalous” or “outrageous”.  But “reprehensible” is a word of wide meaning.  It can include conduct which is scandalous, outrageous or constitutes misbehaviour; but it also includes milder forms of misconduct.  It means simply “deserving of reproof or rebuke”.

[11]   That broader meaning of reprehensible was endorsed in Garcia v. Crestbrook Forest Industries Ltd., [1994] B.C.J. No. 2486 (C.A.).  It was again confirmed in Heppner v. Schmand, [1998] B.C.J. No. 2843(C.A.) by Hinds J.A., speaking for the court, at paragraph 17:

In my view, there was evidence before Mr. Justice Shaw upon which he could found his conclusion that the conduct complained of was reprehensible and was deserving of rebuke.  While the conduct complained of may not have been scandalous or outrageous it was, nevertheless, reprehensible in the sense that it constituted a milder form of misconduct deserving of reproof or rebuke.  It was conduct from which the court sought to dissociate itself.

[12]   Because special costs are awarded to penalize conduct from which the Court seeks to dissociate itself, the award will extend beyond indemnity.  The governing factors are punishment and deterrence, see Fullerton v. Matsqui (District), [1992] B.C.J. No. 2986 (C.A.).

[13]   The general rule is that where special costs are awarded, they will be for the entire proceeding, see Sammartino v. Hiebert, [1997] BCJ 2036 (S.C.).  However, there is discretion to award special costs for only a particular period of time related to the impugned conduct.  The factors which will be relevant in relation to this exercise of discretion included whether the impugned conduct was an isolated occurrence and its significance in terms of the conduct of the litigation, see Muncaster v. Nunnenmacher (1996), 76 B.C.A.C. 211 at paragraph 17 per Finch J.A., speaking for the court:

When one looks at the overall course of this litigation and at the reasons of the learned trial judge in their entirety, two things seem apparent with respect to the false document.  The first is that the learned trial judge viewed its creation as a matter which called for a sanction in costs.  The second is that the document did not play a major part in the disposition of the law suit.  It seems to me that in awarding special costs for the short period he did the learned trial judge was attempting to balance those somewhat conflicting factors.  The order limiting special costs to a brief period of the law suit is an unusual one.  Indeed, counsel were unable to find any case where a similar order had been made.  However, the learned trial judge had the unique advantage of having heard all of the evidence and having seen all of the witnesses, and the advantage of being able to assess the relative importance of the false document in the full context of this long, complex and obviously difficult lawsuit.

On Friday the BC Supreme Court released reasons for judgement dealing with this area of the law.  In Friday’s case (Henri v. Seo) the Plaintiff took her ICBC Claim to trial.  ICBC relied on an orthopaedic surgeon who is often retained in ICBC claims.  The Plaintiff argued that she should be awarded special costs because “the defendant and her insurer (ICBC) improperly relied on the report and the testimony of Dr. J. Schweigel – an orthopaedic surgeon whose evidence has been either rejected or not relied upon in a number of previous cases.  The plaintiff says that by way of an award of special costs this Court ought to express its disapproval of ICBC’s repeated use of what she characterizes as Dr. Schweigel’s “clearly flawed reports”.

Madam Justice Boyd rejected this argument and summarized and applied the law as follows:

[10] I entirely reject this submission.  Even if an award of special costs may be made in the case of an action under Rule 66 (which I do not necessarily accept), it remains that simply by virtue of being insured by ICBC the defendant does not thereby assume the corporate persona of the Insurance Corporation and therefore be subject to criticism concerning its prevailing policies or practices, whether as an insurer or as a litigant.  How ICBC goes about defending motor vehicle actions, including which experts it retains and relies upon, is not a matter to be addressed in costs in an action between the plaintiff and the defendant here.

[11] As to the merits of the argument, it remains that while the use of obviously flawed expert reports may be conduct which warrants an award of special costs (Coulter v. Ball, 2003 BCSC 1186; Heppner v. Schamnd [1998] B.C.J. No. 2843 (C.A.), this is not the case here.  The defence has referred to a number of different actions in which Dr. Schweigel’s opinion has either been accepted or preferred to that of other physicians.

Litigation Privilege and Solicitor-Client Privilege Explained

Written by admin on . Posted in Civil Procedure, Uncategorized. 99 Comments on Litigation Privilege and Solicitor-Client Privilege Explained

In BC Lawsuits one of the primary goals of the Rules of Court is to require document disclosure to put the parties on a level playing field with respect to the facts and to prevent trial by ambush.
Disclosure requirements, however, need to compete with the equally compelling doctrine of privilege which permits parties to lawsuits the right to refuse production of certain classes of otherwise relevant documents. Two categories of privileged documents which are not always clearly understood by litigants are those of ‘solicitor client privilege‘ and ‘litigation privilege’.
Today the BC Supreme Court released reasons for judgement explaining the difference between these classes of privileged documents.
In today’s case (Lougheed Estate v. Wilson) the Plaintiff sought access to certain documents which the Defendant refused to produce on the basis on litigation privilege.  In ordering that the documents be produced Mr. Justice Grauer did a great job in explaining the difference between solicitor-client and litigation privilege.  I reproduce this summary below:

(b) Solicitor-client privilege

[26] Solicitor-client privilege, or “legal advice privilege”, is conceptually different from litigation privilege.  One of the important differences is that solicitor-client privilege applies only to confidential communications between the client and his or her solicitor: Blank v. Canada, [2006] S.C.R. 319, 2006 SCC 39 at para. 28, citing with approval Professor R.J. Sharpe (now Sharpe, J.A.):  “Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of Upper Canada (1984), 163, at pp. 164-65.

[27] The documents over which Mr. Wilson asserts privilege that are at issue before me consist solely of correspondence between Mr. Wilson’s solicitor and counsel for Elections Canada.  They do not consist of confidential communications between Mr. Wilson and his solicitor.  Accordingly, I find that they are not eligible for the protection of solicitor-client privilege.

(c) Litigation privilege

[28] The nature of litigation privilege was thoroughly discussed by the Supreme Court of Canada in the Blank case, where Fish J. quoted further from Prof. Sharpe’s article as follows (loc. cit. supra):

Litigation privilege, on the other hand, is geared directly to the process of litigation.  Its purpose is not explained adequately by the protection afforded lawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege.  Its purpose is more particularly related to the needs of the adversarial trial process.  Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of the case for trial by the adversarial advocate.  In other words, litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect the relationship (namely, the confidential relationship between a lawyer and the client).

[29] Fish J. then went on to explore the limits of the privilege:

34        The purpose of the litigation privilege, I repeat, is to create a “zone of privacy” in relation to pending or apprehended litigation.  Once the litigation has ended, the privilege to which it gave rise has lost his specific and concrete purpose – and therefore its justification.  But to borrow a phrase, the litigation is not over until it is over.  It cannot be said to have “terminated”, in any meaningful sense of that term, where litigants or related parties remain locked in what is essentially the same legal combat.

35        Except where such related litigation persists, there is no need and no reason to protect from discovery anything that would have been subject to compellable disclosure but for the pending or apprehended proceedings which provided its shield….

36        I therefore agree with the majority in the Federal Court of Appeal and others who share their view that the common-law litigation privilege comes to an end, absent closely related proceedings, upon the termination of the litigation that gave rise to the privilege [citations omitted].

37        Thus, the principal “once privileged always privileged”, so vital to the solicitor-client privilege, is foreign to the litigation privilege.  The litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope nor permanent in duration.

38        As mentioned earlier, however, the privilege may retain its purpose – and, therefore, its effect – where the litigation that gave rise to the privilege has ended, but related litigation remains pending or may reasonably be apprehended….

39        At a minimum, it seems to me, this enlarged definition of “litigation” includes separate proceedings that involve the same or related parties and arise from the same or related cause of action (or “juridical source”).  Proceedings that raise issues common to the initial action and share its essential purpose would in my view qualify as well.

40        As a matter of principle, the boundaries of this extended meaning of “litigation” are limited by the purpose for which litigation privilege is granted, namely, as mentioned, “the need for a protected area to facilitate investigation and preparation of the case for trial by the adversarial advocates” (Sharpe, at p. 165).

Damaging Your Opponents Case at Trial Through Examinations for Discovery

Written by admin on . Posted in Civil Procedure, Uncategorized.

Examinations for Discovery in ICBC Claims are conducted for 2 primary reasons.  The first is to learn about your opponents claim, the second, and perhaps equally important reason is to get admissions which can be used against your opponent should the claim proceed to trial.
When a damaging answer from an examination for discovery is read into evidence at trial it can have the same impact as if the damaging fact was testified to live in court.  If a discovery answer contradicts evidence given at trial this can have an impact on credibility and can significanty effect the outcome of trial.
Rule 40(27) of the BC Supreme Court Rules addresses the use of discovery evidence at trial.  This Rule, however, imposes certain limits on the abilities of opponents to use transcripts at trial.  Specifically one limitation contained in the Rule states that the evidence is ‘admissible only against the adverse party who was examined…’

This limit should be kept in mind when suing multiple defendants and reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating this evidentiary limitation in an injury claim trial.

In today’s case (MacEachern v. Rennie) the Plaintiff sued multiple parties for damages as a result of serious injuries.  At trial the Plaintiff sought to read in portions of the Defendants examinations for discovery.   The Plaintiff sought to have some of this evidence ‘used not only against the party who was examined, but also against all the other defendants‘.  Mr. Justice Ehrcke rejected this argument and folowed the strict reading of Rule 40(27) limiting the use of the answers only against the defendants who gave them.  The Court summarized and applied the law as follows:

[13]         In any event it must be noted that the Rules of Court were amended in 1985 and again in 1992. The current form of Rule 40(27) is not the same as the rule upon which McEachern C.J.B.C. was commenting in Foote v. Royal Columbia Hospital. In 1982 there was nothing equivalent to the current Rule 40(27)(a).

[14] I find that the current law is correctly stated in Fraser and Horn, The Conduct of Civil Litigation in British Columbia, Vol. 1 looseleaf (Markham:  LexisNexis Canada Inc., 2006) at paragraph 18.10:

An amendment to Rule 40(27)(a) in 1992 re-affirmed the long-standing jurisprudence that the testimony of a party on discovery was not admissible against his co-party. In 1986 the traditional rule had been held to have been superceded as a result of a rule amendment in 1985. Because of the 1992 amendment, it is once again the law that the evidence of one person on an examination for discovery is not ordinarily admissible against a co-party.

[15] Accordingly, the questions and answers from the examination for discovery of Mr. Rennie requested by the plaintiff and the additional questions 396 and 397, along with their answers, shall be read into evidence at trial, but they do not constitute direct evidence against any of the defendants except Mr. Rennie.

This decision serves as a good reminder that when ICBC Injury Claims are prepared for trial care should be taken to ensure there is admissible evidence against all of the Defendants for all matters in issue.

Here We Go Again – Rule 37B Amended

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Uncategorized. 65 Comments on Here We Go Again – Rule 37B Amended

A year ago the BC Rule dealing with formal offers in the BC Supreme Court, Rule 37, was repealed and replaced with Rule 37B.   One of the primary differences between the rules was the greater discretion given to trial judges in awarding costs to litigants after beating a formal settlement offer at trial.
I have written about every Rule 37B case that came to my attention over the past year keeping track of the judicial development of this rule.  Now, after being in force for a short period of time, Rule 37B is being amended with the changes taking effect on July 1, 2009.
The new changes seem to be in direct response to a recent judgement of Mr. Justice Goepel where he decided that Rule 37B does not give judges the discretion to award Defendants their trial costs after beating a formal offer of settlement at trial.  This interpretation was great for Plaintiffs in personal injury claims because it diminished the financial risks for personal injury trials that did not proceed favorably.  I thought that the Court of Appeal would likely determine whether Mr. Justice Goepel’s interpretation was correct but this no longer will be necessary as the Rule amendment specifically addresses this point.
Interestingly, the new rule does not specifically address whether a Defendant being insured is a relevant factor for the court to consider when looking at the ‘financial circumstances of the parties’.  BC Courts have been inconsistent in determining whether this is a relevant consideration in ICBC Injury Claims.
As of July 1, 2009 the new Rule will read as follows:

Definition

(1) In this rule, offer to settle means

(a) an offer to settle made and delivered before July 2, 2008 under Rule 37, as that rule read on the date of the offer to settle, and in relation to which no order was made under that rule,

(b) an offer of settlement made and delivered before July 2, 2008 under Rule 37A, as that rule read on the date of the offer of settlement, and in relation to which no order was made under that rule, or

(c) an offer to settle, made after July 1, 2008, that

(i)  is made in writing by a party to a proceeding,

(ii)  has been delivered to all parties of record, and

(iii)  contains the following sentence: “The ….[name of party making the offer]…. reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has rendered judgment on all other issues in this proceeding.”

Offer not to be disclosed

(2) The fact that an offer to settle has been made must not be disclosed to the court or jury, or set out in any document used in the proceeding, until all issues in the proceeding, other than costs, have been determined.

Offer not an admission

(3) An offer to settle is not an admission.

Offer may be considered in relation to costs

(4) The court may consider an offer to settle when exercising the court’s discretion in relation to costs.

Cost options

(5) In a proceeding in which an offer to settle has been made, the court may do one or more of the following:

(a) deprive a party, in whole or in part, of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle;

(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

(c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;

(d)  if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

[am. B.C. Reg. 165/2009, s. 1 (a), (b) and (c).]

Considerations of court

(6) In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.

Costs for settlement in cases within small claims jurisdiction

(7) A plaintiff who accepts an offer to settle for a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

[en. B.C. Reg. 165/2009, s. 1 (d).]

Counter offer

(8) An offer to settle does not expire by reason that a counter offer is made.

[en. B.C. Reg. 165/2009, s. 1 (d).]