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Damages Awarded in "No Impact" Motor Vehicle Incident

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


As previously discussed, given the right circumstances a lawsuit for damages following a motor vehicle incident can succeed even if there is no impact between vehicles.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this reality.
In this week’s case (Pang v. Dhalla) the Defendant made a lane change into the Plaintiff’s lane of travel.  This was done negligently forcing the Plaintiff to bring his vehicle to an abrupt stop.   The Plaintiff alleged the incident caused a disk injury although this claim was rejected.  Despite this the Court found the Plaintiff did suffer some modest soft tissue injuries due to the Defendant’s negligence and assessed non-pecuniary damages at $5,000.  In finding the Defendant liable for damages caused in a ‘no-impact’ incident Madam Justice Dillon provided the following reasons:

[7] Based upon this evidence, the plaintiff has not proven that there probably was an impact or collision between the vehicles. At best, the plaintiff hard braked to avoid an accident after the defendant turned into his lane. From the actions of the plaintiff in slowing as it became apparent that the defendant was moving her vehicle into his lane and from the evidence of the defendant, I conclude that the defendant signalled her lane change. It cannot be determined that Ms. Lee was in a position to see or not to see a signal.

[8] However, the defendant was negligent in changing lanes before ascertaining that it could be made safely without affecting the travel of another vehicle, in this case, the plaintiff’s vehicle. The defendant had to hard brake to avoid an accident. If the defendant had looked at her blind spot, she would have determined that she could not safely enter the curb lane. Her failure to do so caused the plaintiff to hard brake….

[20] In my view, the plaintiff has not proven that the braking of his vehicle to prevent an accident caused anything other than a minor exacerbation of pre-existing pain in his neck, shoulder, and lower back. Because of his failure to fully inform both doctors, their opinions about the accident causing a disc injury are seriously undermined. The minor nature of the injuries is supported by the fact that the plaintiff’s neck and shoulder symptoms resolved within a few months, the plaintiff did not take time off work, and he needed little medication. The effect on lifestyle was minimal.

[21] The defendant provided a range of damage for non-pecuniary loss of $2,500 to $5,000. The plaintiff described a range of $20,000 to $40,000. Having considered the cases provided, I conclude that an award of $5,000 is appropriate.

The "Loser Pays" System: Rule 14-1(9) and Principles of Costs Consequences

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized. 100 Comments on The "Loser Pays" System: Rule 14-1(9) and Principles of Costs Consequences

Rule 14-1(9) of the BC Supreme Court Rules typically requires a losing party to pay costs to a successful party unless the Court “otherwise orders“.   Useful reasons for judgement were released last week by the BC Supreme Court discussing this Rule and the legal principles in play when a Court should deviate from the default “loser pays” result.
In last week’s case (LeClair v. Mibrella Inc.) the Plaintiff sued the Defendant for damages.  The lawsuit was ultimately unsuccessful and dismissed at trial largely because the court “did not accept the plaintiff’s evidence”.   The Plaintiff asked the Court to deviate from the usual costs result.  The Court found that the usual ‘loser pays‘ result should apply although the costs the Defendant was entitled to should be reduced by 50% to take into account some “improper” behaviour of the Defendant in the course of the lawsuit.  In discussing the principles behind Rule 14-1(9) Mr. Justice Voith provided the following useful summary:

[10] The following legal principles are relevant:

i)          Costs represent an important instrument by which courts can either promote or, conversely, sanction given conduct. Rule 14-1(9) provides one means of achieving this overarching object. The broad role served by cost awards is captured in the following statements:

a)         In Houweling Nurseries Ltd. v. Fisons Western Corporation (1988), 49 D.L.R. (4th) 205 at 226, 37 B.C.L.R. (2d) 2 (C.A.) at 25, leave to appeal ref’d, [1988] 1 S.C.R. ix, McLachlin J.A., as she then was for the courts, said:

… Parties, in calculating the risks of proceeding with a particular action or defence, should be able to forecast with some degree of precision what penalty they face should they be unsuccessful.

b)         In Karpodinis v. Kantas, 2006 BCCA 400 at para. 4, Hall J.A., for the court, said:

Cost considerations are meant to guide counsel and litigants in the choices and strategies they pursue in litigation. …

c)         In Skidmore v. Blackmore (1995), 122 D.L.R. (4th), 2 B.C.L.R. (3d) 201 (C.A.), Cumming J.A., speaking for a five member panel of the court, said:

[28] … the view that costs are awarded solely to indemnify the successful litigant for legal fees and disbursements incurred is now outdated. A review of Rule 37, which deals with offers to settle, reveals that in certain circumstances a party may be entitled to costs, or double costs, or to no costs at all. One of the purposes of the costs provisions in Rule 37 is to encourage conduct that reduces the duration and expense of litigation, and to discourage conduct that has the opposite effect. Thus, although it is true that costs are awarded to indemnify the successful litigant for legal fees and disbursements incurred, it is also true that costs are awarded to encourage or to deter certain types of conduct.

[Emphasis added.]

d)         Recently, in Catalyst Paper Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16, Hall J.A., in the context of addressing Rule 57(9), said:

[15] In the recent case of Bedwell v. McGill, 2008 BCCA 526, a case dealing with a particular aspect of costs not relevant to this appeal, Newbury J.A., for the court, at para. 33, noted the purpose of former R. 37(24) as being “aimed at encouraging litigants to settle wherever possible, thus freeing up judicial resources for other cases.”

[16] It seems to me that the trend of recent authorities is to the effect that the costs rules should be utilized to have a winnowing function in the litigation process. The costs rules require litigants to make careful assessments of the strength or lack thereof of their cases at commencement and throughout the course of litigation. The rules should discourage the continuance of doubtful cases or defences. This of course imposes burdens on counsel to carefully consider the strengths and weaknesses of particular fact situations. Such considerations should, among other things, encourage reasonable settlements.

ii)         The onus is on the person who seeks to displace the usual rule that costs follow the event: Grassi v. WIC Radio Ltd., 2001 BCCA 376 at para. 24.

iii)        Though Rule 14-1(9) conveys a discretion to the court, that discretion is to be exercised in a “principled way”: Rossmo v. Vancouver Police Board, 2003 BCCA 677 at para. 59; or on “sound principle”: Brown v. Lowe, 2002 BCCA 7 at para. 147.

iv)        The exercise of discretion must be connected to the conduct (or misconduct) of a party in the litigation: Lawrence v. Lawrence, 2001 BCCA 386 at paras. 31-32; Smith v. City of New Westminster, 2004 BCSC 1304 at para. 9.

v)         The conduct in question can arise either at trial or at some earlier stage in the proceeding. For example, conduct that has been held to justify a denial of costs includes giving false evidence on discovery: Brown at para. 149-150. It also includes a failure to make timely and thorough production of relevant documents; Forsyth v. Pender Harbour Golf Club Society, 2006 BCSC 1108 at para. 72.

vi)        Costs are not to be used to sanction a party whose evidence was exaggerated or who gave evidence in error: Brown at para. 149. Where the appropriate dividing line lies was explained in each of Roberts v. Wilson (1997), 10 C.P.C. (4th) 188 (B.C.S.C.) at para. 25; Cardwell v. Perthen, 2007 BCSC 366 at para. 13; Noyes v. Stoffregen, [1995] B.C.J. No. 73 at paras. 79-80.

vii)       Where a court concludes that a party has intentionally or deliberately sought to mislead the court that party will normally be deprived of its costs: Medeiros v. Vuong, 2001 BCSC 326 at para. 12.

[11] I would add the following additional comments. First, Rule 14-1(9) is not intended to provide an unsuccessful party with an opportunity to parse through the litigation conduct of the opposing party searching for behaviour that might be criticized. I do not say that the discretion which is conferred in Rule 14-1(9) is limited to exceptional cases. The Rule is not, however, intended to address imperfect or less than optimal conduct. It is generally not intended to address questionable judgment. Instead it provides the court with an objective means of communicating its censure in relation to conduct that manifestly warrants rebuke.

[12] Second, the Rules of Court and the rules of evidence apply equally to both parties who are represented by counsel and to those who are self-represented. Self-represented litigants are not insulated from these requirements or the obligations they create. Nevertheless, depending on the nature of the concern expressed, some greater flexibility or tolerance may be accorded a self-represented litigant. For some issues, the need for honesty being the clearest example, no different standard can or does apply to a lay litigant. The requirement that parties be forthright is readily understood by all and is inflexible.

[13] In other cases, some increased measure of lenience will be appropriate and necessary. For example, a well-intentioned lay litigant’s imperfect understanding of relevance may cause that litigant to fail to produce certain documents, or to ask unnecessary questions of a witness or to object to what are proper questions. So long as that litigant acts properly once alerted to the deficiencies in his or her conduct, little is achieved in seeking to sanction the earlier conduct. There is no intentional conduct or abuse of the court’s process that warrants sanction.

Can the BC Supreme Court Order a Plaintiff to Travel Out of Province for an Independent Medical Exam?

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 7, independent medical exams, Uncategorized. 71 Comments on Can the BC Supreme Court Order a Plaintiff to Travel Out of Province for an Independent Medical Exam?


Further to my post discussing court ordered medical exams and travel, I’ve recently had the opportunity to review whether the current Supreme Court Rules place limits on Court ordered travel for independent medical examinations.  The line, it seems, is drawn at out of Province “medical practitioners“.
While I’m not aware of any cases addressing this issue under the current rules, the issue was addressed by the BC Court of Appeal under the former Rule 30(1) which reads almost identically to the current Rule 7-6(1).
In the leading case under the former rules (Hewitt v. Buell) the BC Court of Appeal held that orders for medical examinations are to be limited to BC physicians because “the phrase (medical practitioner)…as it appears in Rule 30(1) can have no meaning other than one entitled to practice in British Columbia.  This is what the chambers judge concluded and in my view he was right. ”
The BC Court of Appeal went on to hold that applications for out of Province examinations with “other qualified persons” (ie- experts other than medical practitioners), can be ordered in rare circumstances.
I’ve now had the opportunity to cross reference this judgement with the new Rules of Court.  It appears that the out of Province restriction for exams with “medical practitioners” remains in place.  The reason being is that Rule 7-6(1) reads almost identically to the former Rule 30(1).  Additionally, the current Rules of Court do not define “medical practitioner” requiring the Court to turn to Rule 1-1(2) which states that “Unless a contrary intention appears, the Interpretation Act and the interpretation section of the Supreme Court Act Apply to these Supreme Court Civil Rules“.
“Medical Practitioner” is defined at section 29 of the BC Interpretation Act as “a registrant of the College of Physicians and Surgeons of British Columbia entitled under the Health Professions Act to practice medicine and to use the title ‘medical practitioner’.”
So, if an out of Province medical exam is contested, a good place to start in opposing a defence application is to review whether the out of Province physician is a registrant of the BC College of Physicians and Surgeons.

Can Lawyers Swear Affidavits In Support of Their Clients Interlocutory Applications?

Written by admin on . Posted in BCSC Civil Rule 22, Uncategorized. 73 Comments on Can Lawyers Swear Affidavits In Support of Their Clients Interlocutory Applications?


In British Columbia the short answer is yes.  Useful reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this topic at length.
In last week’s case (The Los Angeles Salad Company Inc. v. Canadian Food Inspection Agency) the Plaintiff’s lawyer filed an affidavit in support of two applications of the Plaintiff.  The Defendant objected to this arguing that it was an improper practice and breached the principles set out in the Canadian Bar Association’s Code of Professional Conduct and the BC Professional Conduct Handbook.  Mr. Justice Harris disagreed and provided the following helpful reasons:

[15] No authority was cited to me in that establishes a binding general rule that solicitors cannot not swear affidavits in interlocutory proceedings in which they or their firm are counsel. To the contrary, even the professional guidelines support such a practice within limits. The case law also indicates that counsel is legally competent to swear an affidavit, even in relation to matters in dispute, although that practice is to be discouraged: see, National Financial Services Corporation v. Wolverton Securities Ltd. (1998), 52 B.C.L.R. 302 (S.C.) at para. 7.

[16] The Canadian Bar Association Code of Professional Conduct qualifies its statement of principle about lawyers swearing affidavits by referring to local rules or practice authorizing lawyers to do so. In British Columbia it is the practice for counsel to swear affidavits, on occasion, particularly in respect to uncontroverted matters or matters relevant to the interlocutory issue before court. The practice obviously carries risks, not least that a solicitor may be cross-examined on the affidavit, waive privilege or may succeed inadvertently in putting his or her credibility in issue. There are many good reasons for counsel to take great care in swearing affidavits in cases in which they are counsel.

[17] Nonetheless, there are occasions when the use of counsel affidavits is justified as a matter of practice. Sometimes, at least in respect of interlocutory matters, the evidence of counsel may be the best evidence available. It may often be economical and timely to have counsel swear an affidavit in support of interlocutory application. Introducing a legal rule that upset this practice would defeat the object of the Supreme Court Civil Rules to secure the just, speedy and inexpensive determination of every proceeding on its merits including conducting the proceeding in ways proportionate to the amount involved in the proceeding, the importance of the issues in dispute and the complexity of the proceeding.

[18] Equally, the fact that the affidavit contains some evidence on information and belief provided to the affiant by Mr. Sanderson who then commissioned the affidavit and argued the matter in court does not in itself compel the conclusion that the affidavit is inadmissible. I was not taken to any particular examples of information provided by Mr. Sanderson that gave rise to a concern that counsel were merely attempting to circumvent the professional guideline that counsel should not speak to their own affidavits, particularly if the subject matter is contentious.

[19] In my view, it would be a mistake to recognize or create a special rule requiring the rejection of affidavits sworn by counsel if those affidavits contain both admissible and inadmissible evidence. Insofar as admissibility is concerned, solicitors’ affidavits are governed by the same rules as any other affidavit. Inadmissible content may be ignored or formally struck, but the affidavit as a whole need not be rejected.

New Rules Caselaw Update: More on Contested Applications at TMC's and CPC's

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 5, Uncategorized. 63 Comments on New Rules Caselaw Update: More on Contested Applications at TMC's and CPC's


Late last year reasons for judgment were released by the BC Supreme Court finding that Trial Management Conferences and Case Planning Conferences “are not generally the forum to determine contested applications.” . Reasons for judgement were released this week by Mr. Justice Smith taking a less restrictive view of this issue.
In today’s case (Jurczak v. Mauro) the Plaintiff was injured in a motor vehicle collision.  As trial neared the Plaintiff brought an application for an adjournment and this was granted in order to give the Plaintiff time to gather appropriate medico-legal evidence.  The Court was specifically asked whether it was permissible for contested applications to be heard at TMC’s.  Mr. Justice Smith held that such practice was permitted under the Rules.  The Court provided the following reasons:

[1] At a Trial Management Conference (TMC) on March 31, 2011, I made an order adjourning the trial in this matter, which had been set for May, 2, 2010.  I indicated that I would provide written reasons because the application raised a procedural question about the circumstances under which a judge at a TMC may hear and rule upon a contested adjournment application.

[2] The TMC was created by the new Supreme Court Civil Rules, B.C. Reg. 168/2009 that came into effect on July 1, 2010.  Rule 12-2 (9) sets out a broad range of orders that can be made by the presiding judge at a TMC “whether or not on the application of a party.”  These include, at subparagraph (l), an order adjourning the trial.  However, Rule 12-2 (11) prohibits a TMC judge from hearing an application for which affidavit evidence is required…

[7] I do not understand Vernon to be suggesting that a judge at a TMC can never order an adjournment if one party objects.  No such restriction appears in Rule 12-2.  The Rule prohibits hearing applications that require affidavit evidence.  It is for the judge to decide whether a particular application requires affidavit evidence and whether any affidavits that have been tendered are relevant.

[8] The orders permitted by Rule 12-2 (9) are, broadly speaking, procedural in that they deal with the conduct of the trial, including how certain evidence is to be presented, the length of the trial and, in subparagraph (q), “any other matter that may assist in making the trial more efficient.”

[9] Rule 12-2 (3) requires the parties to file trial briefs in Form 41 identifying the issues in dispute (which, by that stage, may not be all of the issues raised in the pleadings), listing the witnesses, including experts, to be called and estimating the time necessary for the evidence of each witness.  The trial brief is an unsworn statement of counsel or the self-represented party.  The Rule clearly contemplates that the judge will make orders based on the information contained in the trial briefs, as supplemented by what is said at the TMC.  That is the only basis on which the orders permitted by the Rule could be made.

[10] In some cases where an adjournment, or any other order is sought, a judge may decide that supporting information is not adequate.  That was the situation in Vernon, where Goepel J. was presented with an affidavit of the plaintiff setting out the prejudice that would flow from an adjournment.  That evidence had to be weighed against any evidence of prejudice to the defendant if the adjournment was not granted.  Once the plaintiff’s affidavit was found to be relevant, evidence in proper form was required from the defendant and counsel’s statements, standing alone, were not acceptable.

[11] However, there are situations where the need for an adjournment can be clearly assessed on the basis of information provided at the TMC and affidavit evidence would be of no assistance.  For example, a judge may be able to determine simply from the trial briefs that the trial cannot possibly be completed in anything close to the estimated time, or that the number of pre-trial matters still to be dealt with shows that the case is not ready for trial.  If the judge could not order an adjournment in those circumstances, a large part of Rule 12-2’s purpose would be defeated….

[18] In summary, the fact that the adjournment application was contested would not, in itself, have prevented me from hearing and deciding it at the TMC.  In the circumstances, affidavit evidence was not necessary. I had jurisdiction to consider the adjournment application on the basis of information in the trial briefs and the statements of counsel at the TMC and I would have made the same decision had the matter proceeded on that basis.

$60,000 Non-Pecuniary Damage Assessment for SI Joint Ligament Injury

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, Uncategorized. 7 Comments on $60,000 Non-Pecuniary Damage Assessment for SI Joint Ligament Injury


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic Sacroiliac Joint Ligament Injury as a result of two motor vehicle collisions.
In today’s case (Keenan v. Fletcher) the Plaintiff was involved in 4 separate collisions.  She sued for damages and all four claims were heard together.  The Court found that the Plaintiff suffered no injuries in the first two crashes and dismissed those lawsuits.
The Court did, however, find that the Plaintiff suffered injuries in the third and fourth collision, most notably a chronic ligamentous injury to the right sacroiliac joint.  Non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) were assessed at $60,000 although this assessment was then reduced by 20% to take into account various other factors which contributed to the Plaintiff’s difficulties.  In assessing damages Mr. Justice Gaul provided the following reasons:

[98] Under the heading “Diagnosis”, Dr. Hershler opined:

The history and physical findings are consistent with an injury to the right sacroiliac joint. The injury is probably primarily ligamentous, however there is evidence of mechanical malalignment and increased tightness and tenderness in the right paraspinal, as well as increased tightness in the right leg secondary to this injury….

[119] The injuries to Ms. Keenan’s neck and shoulder have resolved themselves to a considerable degree. To a lesser extent, the injury to Ms. Keenan’s lower back has also improved. I find that the improvement in Ms. Keenan’s physical condition is directly attributable to her intense drive and will to get better. I also find that it was though this sheer determination that Ms. Keenan has been able to manage and limit the impact of these injuries on her life.

[120] Given the passage of time since the injuries developed and the fact that Ms. Keenan continues to experience low level pain and discomfort in her back on a reasonably regular basis and the occasional episode of intense pain, I am persuaded the injury to Ms. Keenan’s back is the key and principal injury that has resulted from MVA #3 and MVA #4. As I have noted, Ms. Keenan is a determined person and I have no doubt that her strength of character has been and will continue to be one of the reasons why she manages so well in spite of the discomfort she experiences in her back.

[121] In my opinion, the evidence supports the conclusion that Ms. Keenan will most likely experience the occasional severe flare-up of her back pain which will likely have a negative impact upon her ability to perform her police duties, including voluntary overtime….

[148] I am satisfied that this pain has on occasion had a reasonably pronounced impact upon Ms. Keenan’s ability to enjoy all facets of her life. In the period of time immediately after MVA #4, the pain was practically constant and debilitating. Over time the pain has become more tolerable and manageable. The medical evidence points to the fact that this back pain has decreased with the passage of time; however, there is a real possibility that it will continue to flare-up and cause Ms. Keenan significant difficulties for her at work as well as at home…

[151] I am satisfied that an award of $60,000 appropriately compensates Ms. Keenan for the non-pecuniary damages she has suffered as a result of MVA #3 and MVA #4. Applying the 20% discount for the contingencies I have previously noted, I award Ms. Keenan $48,000 for her non -pecuniary damages.

Sanderson and Bullock Orders: Rule 14-1(18)

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized. 105 Comments on Sanderson and Bullock Orders: Rule 14-1(18)

(Please note that the BC Court of Appeal granted leave to Appeal the below discussed decision.)
When a Plaintiff sues 2 parties and succeeds only against one the Court had a discretion under former Rule 57(18) to order that the unsuccessful defendant pay the successful defendants costs.  Depending on the way a court goes about doing this will label the result a “Sanderson Order” or a “Bullock Order“.  This rule has been reproduced in the New Rules of Court at Rule 14-1(18) and the first judgement I’m aware of considering this discretion under the New Rules was released last week by the BC Supreme Court, Nanaimo Registry.
In last week’s case (Brooks-Martin v. Martin)  the Plaintiff was injured in a 2005 collision in Saanich, BC.  The Plaintiff was travelling in the “C” position behind a motorcycle operated by her husband who was travelling in the “A” position.   Her husband unexpectedly cut in front of her.  In trying to avoid a collision with her husband she lost control, fell down onto the road and was injured.

(Accident Reconstruction Software courtesy of SmartDraw)
At trial Mr. Justice Halfyard found the Defendant 70% at fault and the Plaintiff 30% at fault.  The Plaintiff also sued another Defendant although they were found faultless.  The Plaintiff asked for a Sanderson order to minimize her costs consequences following trial although this application was dismissed.  Prior to doing so Mr. Justice Halfyard provided the following test required to get a Sanderson or Bullock order:

[6] The court’s power to make the order sought by the plaintiff is set out in Rule 14-1(18), which states:

(18)  If the costs of one defendant against a plaintiff ought to be paid by another defendant, the court may order payment to be made by one defendant to the other directly, or may order the plaintiff to pay the costs of the successful defendant and allow the plaintiff to include those costs as a disbursement in the costs payable to the plaintiff by the unsuccessful defendant.

[7] In order to justify the exercise of discretion in his or her favour, a plaintiff must establish two elements, namely:

a) that it was reasonable for the plaintiff to have sued the successful defendant together with the unsuccessful defendant; and

b) that there was some conduct on the part of the unsuccessful defendant (such as asserting that the successful defendant was the culprit in the case or committing some act or acts which caused the plaintiff to bring the successful defendant into the litigation) which makes it just to require the unsuccessful defendant to pay the costs of the successful defendant.

See Grassi v. WIC Radio Ltd. 2001 BCCA 376 at paras 32-34; Davidson v. Tahtsa Timber Ltd. 2010 BCCA 528 at paras 53-54.

[8] The first element is a threshold requirement for the exercise of the court’s discretion. This question is looked at mainly from the perspective of the plaintiff. But if the plaintiff has alleged independent causes of action against the two defendants and if these two causes of action are not connected, the plaintiff will not be able to meet the threshold test. See Robertson v. North Island College Technical and Vocational Institute (1980), 26 B.C.L.R. 225 (C.A.) at paras 23-24; Davidson v. Tahtsa Timber Ltd. at para. 52.

You're Fired! Changing Lawyers During a BC Supreme Court Lawsuit

Written by admin on . Posted in BCSC Civil Rule 22, Uncategorized. 79 Comments on You're Fired! Changing Lawyers During a BC Supreme Court Lawsuit

(photo taken by  Gage Skidmore)
As previously discussed, sometimes lawyers and clients have irreparable differences and it’s necessary to move on either by getting a new lawyer or representing yourself.  Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, discussing the different formal steps that could be taken under the Rules of Court  during an active lawsuit when a client and a lawyer have a parting of ways.
In this week’s case (Sandhu v. Household Reality Corporation Limited) the Plaintiffs and their lawyer had a falling out in the course of a lawsuit.  An application was brought to declare that the lawyers were no longer the “lawyers of record for the plaintiffs“.  In granting the application Mr. Justice Barrow provided the following concise and useful summary of the application of the Rules of Court when a fracture in the lawyer/client relationship occurs during an active BC Supreme Court lawsuit:

[7] The Rules of Court set out what amounts to a code governing how lawyers may cease to be the lawyer of record and their office the address for delivery in an action. There are essentially three ways that can be accomplished. The first and most common way is by the client filing a notice of intention to act in person or hiring another lawyer who files a notice of change of lawyer, the second is by the retiring lawyer filing a notice of intention to withdraw, and the third is by court order. The second method is intended to avoid an unnecessary court application in circumstances where, for one reason or another, the lawyer-client relationship has fractured but the client has not retained another lawyer or filed a notice of intention to act in person. It has the effect of putting the onus on the client to either object to the lawyer’s withdrawal or acquiesce in that result, in which case the address for delivery becomes the client’s address as set out in the notice.

[8] In addition to providing the method for changing lawyers, the rule operates such that the party whose lawyer is retiring will always have an address for delivery so that opposing parties, who have no interest in becoming embroiled in disputes that have nothing to do with them, are able to proceed with the litigation. That is the regime. It is set out in Rule 22-6. In the vast majority of cases, it works well. Mr. Merchant ignored this regime in this case.

The New Rules of Court and the Prohibition of Expert Advocacy

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


While expert ‘advocacy‘ has always been prohibited, Rule 11-2 of the BC Supreme Court Civil Rules expressly imposes a duty on expert witnesses “to assist the court” and “not to be an advocate for any party“.  Experts need to specifically acknowledge that they are aware of this duty, author reports in compliance with this duty and testify in conformance with this duty.
Despite this expert advocacy still exists as was demonstrated in reasons for judgement released this week in the BC Supreme Court.
In this week’s case (Jampolsky v. Shattler) the Plaintiff was involved in 4 seperate collisions.  He sued for damages with his most serious allegation being a Traumatic Brain Injury (TBI).  Ultimately the TBI claim was dismissed with Mr. Justice Harvey finding that the Plaintiff’s chronic complaints were more plausibly explained by factors other than brain trauma.  Prior to doing so, however, the Court made the following critical findings of the expert retained by ICBC in the course of defending the claims:

[251] Dr. Rees is a neurologist. Since approximately 2004 his practice has been largely comprised of examining persons with suspected brain injuries on behalf of defendants, principally ICBC.

[252] In that period Dr. Rees had not examined a litigant whom he found to have suffered an MTBI where the symptoms lasted beyond two years. He opined that the plaintiff had not sustained an MTBI in the first accident or any of those which followed in August 1999…

[257] Dr. Rees initially testified that a Tesla 1.5 MRI could provide imaging of an area as small as 100 neurons in the human brain. I am satisfied that Dr. Rees was in error in this regard. Although counsel suggested, and Dr. Rees ultimately adopted, 126,000,000 as being the smallest grouping of neurons visible on the Tesla 1.5, counsel subsequently advised the Court of his own mathematical error resulting in agreement that the actual number was 126,000. While the difference between these numbers is significant, it still appears that Dr. Rees was outside his area of expertise and was “guessing” at the degree of resolution.

[258] Dr. Rees was also reluctant to acknowledge that brain trauma could occur without contact between the head and some other source. Although he acknowledged that an acceleration/deceleration injury could result in brain trauma, he confined such instances to situations where there as a concussive blast, such as that which was experienced by troops in Afghanistan when an I.E.D. exploded. He was resistant to the notion that an acceleration/deceleration injury of the type commonly seen in motor vehicles accidents could cause an MTBI

[259] A major difference in the opinion of Dr. Rees and Dr. Ancill is whether or not the plaintiff experienced a “credible event” which would account for brain trauma. During vigorous cross examination Dr. Rees acknowledged that he could not offer an opinion on the tensile strength of brain matter, and that an acceleration/deceleration impact could damage muscle tissue which he acknowledged is denser than brain matter.

[260] Dr. Janke, the other defence expert, and Dr. Ancill were both of the opinion that a force far less than that described by Dr. Rees could result in an MTBI.

[261] Dr. Rees accepted, without question, the veracity of the plaintiff when it came to maters related by the plaintiff which tended to negate or be neutral as to the existence of a brain injury, but questioned, without proper foundation, the plaintiff’s truthfulness if his answer to a particular question came into conflict with Dr. Rees’ rigidly held views as to the length of time the sequalae from MTBI could persist and the extent to which an MTBI could interfere with what he called core skills. He referred to the plaintiff’s response to queries regarding whether he had undergone any sleep studies for his reported apnea as “disingenuous.”…

[316] I place little or no reliance on the opinion of Dr. Rees. He assumed, for much of his testimony, the role of advocate as opposed to that of a disinterested and detached expert.

As recently discussed, the UK Supreme Court stripped expert witnesses of immunity exposing them to the threat of lawsuits for negligent services.  The law in BC currently does not permit this making judicial criticism the strongest remedy for experts who ignore the duties set out in the Rules of Court,

Plaintiff Unsuccessfully Sues for Being Run Over By Car While Cleaning It

Written by admin on . Posted in ICBC Liability (fault) Cases, Occupier's liability claims, Uncategorized.


Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing a personal injury lawsuit with a fairly unusual fact pattern.
In this week’s case (Biggan v. Fall) the plaintiff by counterclaim was employed as a housekeeper.  She was asked to clean her employers car so it could be prepared for sale.  The circumstances of the incident were as follows:

[8] She parked the car on the driveway and said she felt the rear wheels come in contact with the rock or piece of firewood.  She put the manual transmission in first gear, applied the hand brake and got out.  The car has an alarm system which sounds if the keys are left in the ignition, and as a result of hearing the chimes, she reached in, took the keys from the ignition, and placed them on the seat of the car.  She then started to walk back to the house to get some cleaning equipment.  She walked behind the car and as she did so, she noticed it was starting to roll backwards.  She moved out of the way and the car continued rolling backwards down the driveway towards the road.  Ms. Fall does not recall anything that happened after that point.

[9] When the car reached the Shawnigan-Mill Bay Road, it collided with the vehicles driven by Biggan and Leask.  The Biggan and Leask vehicles then collided with each other.  Although Ms. Fall does not recall doing so, it is apparent she ran beside the Scott vehicle as it rolled down the driveway.  A witness to the accident, Mr. Brian Mellings, observed her running beside the car and saw her become involved in the collision.  She somehow ended up under the Biggan vehicle and she suffered serious injuries.

She claimed the vehicle owner was liable for the crash pursuant to the Occupiers Liability Act.  Mr. Justice Bracken disagreed and dismissed the claim.  In doing so the Court provided the following reasons:
[29] Ms. Fall says the Scotts, as occupiers of the premises, owed her a duty to take reasonable care to ensure she was reasonably safe in using the premises.  She argues the risk of the car rolling down the driveway and her action in running beside it in an attempt to gain control of the car was a foreseeable risk of moving the vehicle out onto the driveway in the first place.  Ms. Fall says the risk of the accident occurring as it did was a reasonably foreseeable risk that should have been anticipated by the Scotts and they are therefore liable for failing to warn her not to use or move the vehicle:  Rendell v. Ewert (1989), 38 B.C.L.R. (2d) 1 and Chretien v. Jensen, [1998] B.C.J. No. 2938…

[46] There is nothing to suggest either Lloyd Scott or Stewart Scott were aware of any defect in the motor vehicle, nor is there any evidence to establish that there was any defect in the vehicle that could have caused it to roll backwards down the driveway.  Finally, in reacting as she did by attempting to follow the vehicle down the driveway, she assumed all risk of the injury that in fact resulted.

[47] I am not able to find any breach of their duties under the Occupiers Liability Act by the Scotts and the action on Ms. Fall’s counterclaim is dismissed.  The Scotts are entitled to their costs.