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New Rules of Court Update: Discontinued Lawsuits and Third Party Costs

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized. 58 Comments on New Rules of Court Update: Discontinued Lawsuits and Third Party Costs


Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, interpreting and applying Rule 9-8(5) for what I believe is the first time.  (It’s worth pointing out, however, that this rule reads almost identically to the former Rule 36(5)).  This rule deals with the entitlement of a Third Party to costs when a Plaintiff discontinues a lawsuit.
In today’s case (Patterson v. Williams) the Plaintiff sued two Defendants for personal injuries sustained when a dog knocked her over.  The Defendants denied fault and issued Third Party Proceedings against another dog walker seeking contribution and indemnity.
Ultimately the Plaintiff settled the claim, signed a release in favour of the Defendants and discontinued the lawsuit.  The Third Party then brought a motion asking that the Defendants pay the Third Party’s costs.  The Third Party relied on Rule 9-8(5) which reads as follows:
(5)  If a plaintiff discontinues the whole or any part of an action in which a person has been joined as a third party, the third party, if the discontinuance disposes of the claim against the third party, is entitled to costs and may apply to the court for a direction as to who should pay them.
Mr. Justice Sigurdson dismissed the motion finding that a discontinued lawsuit does not automatically dispose of Defendant claims against a Third Party.  The Court provided the following reasons:

[11]         The third party says that the notice of discontinuance disposes of the third party claim, as it was for contribution and indemnity only and did not include an independent claim. This was so, in the third party’s submission, because the specific wording of the third party notice made the third party claim conditional both on the plaintiff not being contributorily negligent and on the defendant being found liable. According to the third party, these conditions cannot now be satisfied because of the discontinuance.  Mr. Nossal also argues that there is no ongoing claim against the third party because the terms of the Release are on so-called “B.C. Ferry Agreement terms” (British Columbia Ferry Corp. et. al. v. T&N plc. et .al. (1993), 86 B.C.L.R. (2d) 353 (S.C.); (1995), 16 B.C.L.R. (3d) 115 (C.A.)) that prevent recovery from a third party.

[12]         I think that this application for costs must fail.  While the Release may limit the liability of the defendants and prevent successful third party proceedings against them, the notice of discontinuance itself does not prevent the defendants from continuing third party proceedings against Ms. Parker.

[13]         I do not think it can be said that the filing of the notice of discontinuance by the plaintiff disposes of the claim against the third party by the defendants.

[14]         The claim for contribution is a substantive right that continues to exist notwithstanding a settlement: see A.R. (Al) Smith Ltd. v. Turner, [1984] B.C.J. No. 3107, [1985] 2 W.W.R. 424 (B.C. Co. Ct.), and Canada v. Foundation Co. of Canada, [1980] 1 S.C.R. 695.

[15]         Moreover, I do not think that the precise terms of the third party notice can be determinative of this application, as the defendants are at liberty to apply to amend the terms of the third party notice.

[16]         Even if the terms of the Release do prevent the defendant from continuing third party proceedings against the third party, which I question, that is a matter of the interpretation of the Release, not something that flows from the filing by the plaintiff of the notice of discontinuance itself.

[17]         Accordingly, the application by the third party for costs is dismissed, with costs.

BC Injury Claims, Pre-Trial Discovery and "Mental Incompetence"

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure, ICBC Brain Injury Cases, Uncategorized. 119 Comments on BC Injury Claims, Pre-Trial Discovery and "Mental Incompetence"


When suing for damages as a result of personal injuries the BC Supreme Court Rules generally permit Defendants to compel Plaintiffs to participate in pre-trial examinations for discovery.  There are a few exceptions to this and one of these relates to mentally incompetent Plaintiffs.  If a Plaintiff is mentally incompetent they can only be examined with permission from the Court.  Reasons for judgement were released earlier this week by the BC Supreme Court, Vancouver Registry, dealing with this area of law.
In this week’s case (DeMerchant v. Chow) the Plaintiff sustained a serious brain injury during a fall from a ladder in 2007.  The Plaintiff started a lawsuit in the BC Supreme Court through a litigation guardian.  During the course of the lawsuit the Plaintiff refused to participate in a discovery.  The Defendant brought a motion seeking an order that he be forced to participate.  The Plaintiff opposed this and relied on medical evidence which opined that the Plaintiff “could not reliably answer questions put to him” and that he “does not have the capacity to give testimony in court“.
Ultimately Master Taylor dismissed the motion and refused to grant the defendant permission to examine the Plaintiff.  This is the first case I’m aware of applying the new BC Supreme Court Rule 7-2(9) which deals with discovery of mentally incompetent parties.  Master Taylor provided the following reasons in dismissing the application:

[2]             The application is made pursuant to Rule 7-2(9) of the new Rules which was formerly Rule 27(11) of the old Rules.  The wording of both rules is similar, but the new Rule has changed the wording somewhat.  The new Rule provides:

7-2(9) If a party to be examined for discovery is a mentally incompetent person, his or her litigation guardian and his or her committee may be examined for discovery, but the mentally incompetent person must not be examined without leave of the court.

…

[34]         The question to be determined, therefore, is whether the evidence before me is sufficient to find that court approval should be granted to allow the plaintiff to be examined for discovery.

[35]         In Penn v. Secord (1979), 16 B.C.L.R. 48, [1980] 1 W.W.R. 464, 106 D.L.R.(3d) 9 Ruttan, J. said the onus for showing that a party is competent to be examined rests on the party seeking his examination. In the case at bar, the onus rests on the defendants.

[36]         The Rule in question uses the term, “a mentally incompetent person”.

[37]         It has been assumed up to now that Mr. DeMerchant is a mentally incompetent person because he has a trustee and a litigation guardian.  As well, the very nature of the application assumes the plaintiff is a mentally incompetent person since the application seeks leave of the court to examine him.

[38]         According to section 29 of the Interpretation Act, a “mentally incompetent person” is a “person with a mental disorder as defined in section 1 of the Mental Health Act”.

[39]         Reference to the Mental Health Act reveals the definition of a “person with a mental disorder” as “a person who has a disorder of the mind that requires treatment and seriously impairs the person’s ability (a) to react appropriately to the person’s environment, or (b) to associate with others”…

[45]         In the case at bar, there is medical evidence which conflicts, however I am satisfied that Drs. Bogod and  Lu have provided sufficient medical evidence  to suggest that the plaintiff does confabulate and would be unreliable as a witness.

[46]         I am also satisfied that the evidence of Drs. Bogod and Lu establish that the plaintiff meets both tests set out in the definition of a person with a mental disorder.

[47]         Accordingly, I determine that the applicants have not met the onus imposed upon them in seeking an order that the defendants be granted leave to examine the plaintiff at discovery.  It should also go without saying that I do not find the plaintiff to be competent to give evidence on his own behalf in these proceedings.

[48]           Consequently, I dismiss the defendants’ applications with costs to the plaintiff in any event of the cause.

More on ICBC Claims and Accelerated Vehicle Depreciation

Written by admin on . Posted in Uncategorized. 57 Comments on More on ICBC Claims and Accelerated Vehicle Depreciation


As I’ve previously written, when a vehicle is involved in a crash and is then repaired it is generally worth less than it would be had it not been in the crash.  The reason for this is quite simple, when a buyer is looking to purchase a vehicle, those that have previously been damaged and repaired carry a stigma.  This stigma generally results in a lower resale value.
The law recognizes this lost value.  If your vehicle was damaged due the the actions of others you can sue to recover your damages for “accelerated depreciation“.  Reasons for judgement were released today discussing this area of law.
In today’s case (Signorello v. Khan) the Plaintiff owned at Mercedez-Benz SL65 AMG.  The vehicle cost $210,000.   On route to a business trip in 2007 he left the vehicle with a valet service.  The valet crashed the vehicle causing $26,000 of damage which was ultimately repaired.
The Plaintiff then claimed damages for accelerated depreciation.  The Defendant argued that the vehicle was repaired properly and to the highest standard therefore there was no accelerated depreciation.  Mr. Justice Grauer disagreed and found that, despite the sufficient repairs, the vehicle was now left with a reduced value and awarded the Plaintiff $16,000 for this loss.  In reaching this verdict Mr. Justice Grauer gave the following reasons:

[11]         In British Columbia, a person wishing to sell a used motor vehicle that has sustained damage in an accident costing $2,000 or more to repair must declare that to any potential buyer.  Other matters that must be declared include whether the vehicle has been leased or rented, whether it has been used as an emergency vehicle, and whether it has been registered out of province.

[12]         Since any person considering the purchase of Mr. Signorello’s Mercedes would presumably investigate further and thereby become aware of its history and the cost of its repairs, Mr. Signorello maintained that the market value of his vehicle has been reduced, a phenomenon known as accelerated depreciation.

[13]         The plaintiff’s claim under this heading was supported by expert evidence from Mr. Garry Cogbill of C/S Automotive Appraisals.  It was his conclusion that the loss amounted to 15% of the vehicle’s value at the time of the collision, varying between $12,500 and $18,000 depending upon whether one takes wholesale or retail.

[14]         The defendants’ contention that the plaintiff has suffered no loss in this regard was supported by expert evidence from Mr. Tom Cino of T.C. Consultants.  Mr. Cino expressed the view that so long as a vehicle damaged in an accident has been repaired properly, as this one clearly was, then there is no loss due to accelerated depreciation regardless of the amount of the damage.

[15]         Having read their reports and listened to the evidence of both experts, I find that I prefer the evidence of Mr. Cogbill to that of Mr. Cino…

[19]         The issue is whether, in the marketplace, people prepared to pay a six-figure sum for an exotic performance motorcar such as Mr. Signorello’s are likely to pay less for one that they learn has sustained $26,000 worth of damage, then they would for one that had never been in an accident, all else being equal.

[20]         The thrust of Mr. Cino’s opinion seems to be that a reasonable person who is as knowledgeable about motor vehicles as he most certainly is, would not think that a car that had been properly repaired is worth less than a like vehicle that has never been damaged.  That does not answer the question of what is likely to happen to this car in the marketplace, where reason does not necessarily prevail, and where few have his depth of knowledge.

[21]         Mr. Cino further based his opinion in part on the proposition that the majority of the repair work performed on Mr. Signorello’s Mercedes was to repair cosmetic damage rather than mechanical damage or damage to the frame.  He included in his description of “cosmetic damage” damage that could be repaired by the removal and replacement of the damaged part.  Mr. Cogbill, on the other hand, described most of the damage as other than cosmetic.  I prefer Mr. Cogbill’s approach.

[22]         To my mind, to be of significance in this context, cosmetic damage must mean damage that pertains only to the vehicle’s appearance, and need not be repaired in order for the vehicle to operate properly.  On that basis, I can well imagine that a potential buyer’s approach to a vehicle that had suffered $20,000 worth of cosmetic damage would be different from his approach to a vehicle that had suffered $20,000 worth of damage of a type that had to be repaired in order for the vehicle to be operable.  In this case, it is clear that the majority of the damage to the SL 65 was of the latter type, even if it consisted largely of the removal and replacement of mechanical parts.  I therefore found Mr. Cino’s approach in this regard to be less than convincing.

[23]         Finally, Mr. Cino sought to support his opinion by making a comparison to people purchasing very expensive vintage collector car, such as a 1967 Plymouth Barracuda, that has had all kinds of work put into it to restore what was a rusted hulk to like-new status.  With the greatest respect, that is not an apt comparison to a discriminating purchaser considering a near-new exotic luxury sports car….

[29] The law does not require that the plaintiff demonstrate the loss precisely by having sold the vehicle.  It is enough for him to establish, as I find that he has, a reduction in its value:  seeCummings v. 565204 B.C. Ltd., 2009 BCSC 1009.  I accept Mr. Cogbill’s conclusion in that regard, and doing the best that I can with his figures, I assess the reduction at $16,000.

Another interesting part of this judgement was the Court’s award of costs.  Usually when a Plaintiff is awarded less than $25,000 they are deprived their costs because they could have sued in Small Claims Court.  Despite this usual result, Mr. Justice Grauer awarded the Plaintiff costs finding it is reasonable to bring accelerated depreciation lawsuits in the BC Supreme Court even if the claim is worth below $25,000.  The Court provided the following useful reasons:

[52] On the matter of costs I am satisfied, in all of the circumstances of this case, that it was appropriate to commence this action in Supreme Court.  It was subject to former Rule 66, indicating an attempt to reduce expense.  It concerned an area that is not well traversed in fact or in law, particularly given the rarity and unusual nature of this motor vehicle.  Therefore, I find that the plaintiff is not limited to disbursements only, as though the action should have been brought in Provincial Court.  He is entitled to costs in the ordinary way under the Supreme Court Rules.

ICBC Claims and Default Judgement – A Seldom Pursued Remedy

Written by admin on . Posted in BCSC Civil Rule 3, Uncategorized. 52 Comments on ICBC Claims and Default Judgement – A Seldom Pursued Remedy


Default Judgement is a step under Rule 3-8 of the BC Supreme Court Rules which lets a Plaintiff win their lawsuit if a Defendant fails to file a response in the time-lines set out in Rule 3-3.
Default judgement, however, is not a remedy that’s typically used in ICBC claims.  The reason being that in addition to serving the Notice of Civil Claim on Defendants personally, Section 22 of the Insurance (Vehicle) Act requires that “Every person commencing an action for damages caused by a vehicle in BC must serve (ICBC) with a copy of the originating process….and file proof of the service in the court in which the action is pending…A further step in the action must not be taken until the expiration of 8 days after the filing“.
What this means is that if a Defendant fails to respond to a BC motor vehicle collision lawsuit in time you cannot successfully obtain default judgement unless you also served ICBC with the documents and they failed to respond.
Even if you’ve taken the above steps Default Judgement is not granted automatically and this was demonstrated in reasons for judgement published today by the BC Supreme Court, Vancouver Registry.
In today’s case (Sandhu v. ICBC) the Plaintiff sued for injuries apparently sustained in a 2002 motor vehicle collision.  He filed and served the documents to start a lawsuit but ICBC did not file a defence in the time required by the Rules of Court.  The Plaintiff then brought an applicaiton for judgment.  Mr. Justice Voith refused to grant default judgement and noted that the Court had discretion with respect to these applicasitons.  Specifically the Court held as follows:

9]             I am advised by Mr. Schroeder, though there are no materials before me, that the plaintiff was injured in a car accident in the late 1990s and that his claim was settled in January of 2002. Furthermore and importantly, Mr. Schroeder confirms that because of the passage of time, his file has been destroyed, and that he has made inquiries with ICBC whose own file in relation to the matter has also, for the most part, been destroyed.

[10]         Mr. Schroeder requires these materials to properly respond to Mr. Sandhu’s claims.

[11]         I am not going to issue judgment. What I am going to do is adjourn the matter because of the following series of factors.

[12]         First, the primary focus of Mr. Sandhu’s application is one that deals with Mr. Schroeder’s lack of compliance with time requirements. I have some flexibility or discretion with respect to such issues and, under the circumstances where Mr. Schroeder was endeavouring to ascertain what had happened in the past and to retrieve relevant file materials, I would be hesitant to award judgment.

While delay is rarely welcome in Injury Lawsuits sometimes it is part of the process.  Very few ICBC claims are won by default judgment.  It is always preferable for claims to be dealt with by their merits.

As a courtesy most plaintiff lawyers grant ICBC defense lawyers a little extra time if necessary to put in their formal defense.  If you’re faced with this situation you’ll want to consider whether an application for default judgement has a meaningful chance of success prior to spending time and effort on a seldom used motion.

New Rules of Court Update – The Transition Rule

Written by admin on . Posted in BCSC Civil Rule 24, Uncategorized.

Reasons for judgement were released today interpreting and applying Rule 24 (the transition rule).
In today’s case (Willard v. Mitchell) the Plaintiff was injured in a motor vehicle collision.  The Defendant brought a motion to compel the Plaintiff to produce various medical and business records.  The lawsuit was commenced under the former rules of court.  The motion for production was also filed under the former rules but judgement was not delivered until October, 2010.
Mr. Justice Brooke ordered production of the documents the Defendant requested.  Prior to doing so the Court stated that the former Rules of Court applied to applications filed prior to July 1, 2010.  Specifically Mr. Justice Brooke held as follows:

[24]         Both the present action and application were filed before July 1, 2010, when the new Supreme Court Rules came into effect. Rule 24?1 of the new civil rules provides that a proceeding started before that date will proceed under the new rules, with this exception:

Step in ongoing proceeding

(14)  If a step in a proceeding is taken before July 1, 2010, the former Supreme Court Rules apply to any right or obligation arising out of or relating to that step if and to the extent that that right or obligation is to have effect before September 1, 2010.

[25]         In my view, the defendant’s application for discovery of documents constitutes a step in a proceeding that was taken before July 1, 2010, and the right or obligation will have effect before September 1, 2010. Accordingly, the former Supreme Court Rules, and specifically Rule 26 governing the discovery and inspection of documents, continue to apply to this application.

A Suggested Change at ICBC To Benefit British Columbians

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits, Tort Reform, Uncategorized. 71 Comments on A Suggested Change at ICBC To Benefit British Columbians


Whether you are a plaintiff lawyer, a defence lawyer, an adjuster or someone insured with ICBC I think we can all agree that there is one ICBC practice that could change to better serve British Columbians.  I’m talking about the practice of assigning the same adjuster to deal with Tort and No-Fault Benefit claims.
As I’ve previously discussed, ICBC usually fulfills two roles in the context of injury claims.  The first is that they insure people for “no-fault” benefits.  If you are insured, whether or not you are at fault for a collision ICBC provides some basic coverage for medical/rehabilitation expenses and a modest wage loss benefit in the event of total disability.  If you are seeking coverage ICBC assigns an adjuster to process your claim no-fault benefits.
At the same time ICBC usually provides coverage to the at fault party for any claims made against them.  When a faultless party is injured and wishes to be compensated for the full extent of their damages they make a tort claim.  ICBC assigns an adjuster to process these tort claims.  The difficulty, however, is that ICBC typically assigns the same adjuster to deal with the faultless parties claims for no-fault benefits and to process the tort claim made against the at fault party.
As a business decision ICBC’s policy makes sense.  Why assign two people to look after various claims being advanced as a result of a single event?  It is more cost effective to get one adjuster to learn about the crash, the parties involved, the various injuries and the claims being advanced.  As a practical matter, however, one person cannot fulfill both these roles in a completely impartial way.
In reality adjusters processing a no-fault benefits claim have a very different duty compared to an adjuster processing a tort claim.  In a no-fault benefits claim the adjuster owes a duty to the injured party to provide them with their insurance benefits.  If therapies are required these should be covered.  If disability occurs wage loss benefits should be provided.
In tort claims, however, the adjuster owes a duty to the at fault party.  If claims are being advanced the at fault party will want those settled for as little as possible as the funds are paid from their coverage.  It is difficult to imagine how one adjuster can fulfill these competing duties fairly and impartially.  The conflicting duties create an inherent conflict of interest.  (You can click here to read an article providing a real world example of how this conflict can play out to harm the interests of a person injured through no fault of their own).
After reading this you may be asking yourself whether ICBC’s practice is lawful.  Unfortunately, the answer is yes.  This practice has been brought before the Courts and is tolerated.
However, just because a practice is accepted does not make it right.  Since the Courts are not able to correct this practice the ability to change is in the hands of ICBC.
The solution is simple.  ICBC can assign separate adjusters to deal with tort and no-fault claims.  Once done ICBC can set up internal ‘walls’ to prevent the adjusters from accessing each others files.  This would add more fairness to the application process for no-fault benefits.  This would also help ensure that information shared by a party with their insurer to receive medical treatment is not automatically disclosed to the agent of the person responsible for causing the injuries.  This is a proposed change, I hope, we could all agree on.
As always, feedback is welcome on this forum and I’d appreciate views from others about this topic, particularly views from people who feel these proposed changes would not be beneficial.

Conflicting Duties? Treating Doctors Duties to Their Patients and to the Court

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


As previously discussed, one of the biggest changes in the New BC Supreme Court Civil Rules is an overhaul to the requirements for admissibility of expert opinions.  These changes have created some tension in personal injury claims.
In no area of law are expert opinions used more frequently than in personal injury lawsuits.   The opinions of treating physicians are often crucial in the success of a personal injury claim.  In fact, if a plaintiff fails to call their own doctor in support of their case the Court could draw an ‘adverse inference‘ and assume the doctor will say something negative.
One of the changes imposed by the New Rules is a requirement that experts certify that their duty is to “assist the court and not to be an advocate for any party“.  In reality, this requirement always existed although it was not specifically spelled out in the former rules.   Despite this, some treating physicians have been concerned with this new explicit requirement and refuse to provide expert opinions on the basis that they feel they are ethically required to be advocates for their patients.
Fortunately, the BC College of Physicians and Surgeons has squarely addressed this concern and informed their members that the New Rules of Court are not inconsistent with doctors duties to their patients.  Specifically, in the September 2010 issue of the College’s quarterly publication physicians were advised as follows:
The College does not view the New BC Supreme Court Civil Rules to be in conflict with the Canadian Medical Association Code of Ethics, including the fundamental responsibility to consider first the well being of the patient.  With respect to the duty imposed under Rule 11-2 the College has always expected physicians providing expert reports to be fair, objective, and provide opinions that are supported by available information.
This expectation applies equally to physicians whether they are appointed by the plaintiff, defence, jointly or by the Court.  Additionally, whether physicians are acting as experts in the capacity of treating physicians or independent medical experts, they still must provide balanced and objective reports.   The College does recommend that, when asked to provide an expert opinion, treating physicians discuss with their patients the physician’s duty to assist the court and not be an advocate for any party.
The truth of the matter is that treating doctors should be advocates for their patients health.  They should not be advocates for their patients personal injury claims or other legal matters.  The above clarification will hopefully assist physicians who have felt conflicted from providing opinions under the New Rules of Court.

Who to Sue? ICBC Claims, Fault and Increased Insurance Premiums

Written by admin on . Posted in Uncategorized. 138 Comments on Who to Sue? ICBC Claims, Fault and Increased Insurance Premiums


When collisions occur in BC typically ICBC is the insurer for all involved.  After the collision ICBC internally decides who to blame and apportions the parties respective degree of fault.  Depending on the decision some of the motorists insurance premiums may rise.  If this happens to you and you disagree with ICBC who do you sue?
The conventional route is to sue the motorist alleged to be at fault for the crash.  The theory being that if another motorist is found at fault in a negligence claim they will be ordered to pay the faultless party’s accident related expenses including increased insurance premiums.  When an injury lawsuit is started its easy to add this additional damage to the claim.  In practice ICBC will honour a court decision respecting fault and overturn their internal decision if its inconsistent with the Court finding.
What if you are not making an injury claim and your only dispute is with ICBC and their apportionment of fault?  Is the offending motorist the only party you can sue to address ICBC’s decision?  The answer, apparently, is no and this was recently discussed by the BC Court of Appeal in reasons for judgement released earlier this year.
In the recent case of Innes v. Bui the Plaintiff sued the Defendant for injuries.  The case made it’s way to the BC Court of Appeal.  The appeal did not focus on increased insurance fees rather it concentrated on the legal doctrine of ‘res judicata’ (You can click here to read my previous article discussing this issue and giving more background on the case).   Despite the alternate focus of the case, Mr. Justice Low provided the following commentary about the proper parties to a lawsuit over increased ICBC insurance premiums:
[6] In her hand-written Notice of Claim, Ms. Bui, with the assistance of a translator, described the collision from her point of view and added, in understandably inexact English, “later ICBC had decided that my fault but they didn’t let me know until I renew my insurance, I think ICBC was unfair when they state that I at fault and I want to [contest against?] this decision”.  The claim was stated to be for “Extra money I had to pay for ICBC” and “return my 40% discount from my insurance – $1095”.  Ms. Bui later amended the Notice and pleaded that “… ICBC put the fault on me, as the result my insurance was up.  I wish to recover the money which ICBC made me pay”.  In completing the portion of the form which requires quantification of the claim, she wrote “Money I paid for ICBC – $1095”….

[31]         The reasons of the Small Claims judge fell well short of deciding the negligence question.  That issue remains alive in the Supreme Court action.  The res judicata arguments of both parties fail.

[32]         The above is enough to allow this appeal.  However, I would like to add a few more observations.

[33] In the Small Claims action, Ms. Innes was the wrong defendant.  She certainly was not a necessary defendant.  That action was not based in tort.  It was either in contract or under statute, or both, and the only issue raised by the pleadings was whether ICBC acted properly or reasonably in administratively assigning responsibility for the collision to Ms. Bui alone.  That was an issue only between Ms. Bui and ICBC.

Scope of Pre-Trial Document Production Under the New BC Supreme Court Rules Discussed

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 7, Uncategorized. 99 Comments on Scope of Pre-Trial Document Production Under the New BC Supreme Court Rules Discussed


As I’ve previously discussed, one of the biggest changes under the New BC Supreme Court Civil Rules is the test relating to pre-trial document production.  Under the former rules parties had to disclose documents “relating to every matter in question in the action“.  Under the new rules this test has been changed to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“.
This new test is supposed to be narrower in scope than the old one.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, interpreting the new test for the first time.
In last week’s case (Biehl v. Strang) the Plaintiff sued the Defendants claiming damages for breach of contract.  The alleged contract between the parties was based in part on an a verbal agreement and partly based on the parties actions over the years.   The events in dispute occurred over a 4 year period.  The Plaintiff was alleged to have a history of illicit drug use during part of this period.  The Defendants challenged the reliability of the Plaintiff’s recollection and argued that this was hampered due to drug use.
The Defendants wished to further explore this issue and brought an application to force production of the Plaintiff’s personal diary as this apparently made reference to some of the Plaintiff’s illicit drug use.  The Defendant argued that this was material evidence because the reliability of the Plaintiff’s memory is a central issue in the lawsuit.  The Plaintiff opposed arguing that his diary is not material in the action.  Mr. Justice Punnett ultimately granted the motion for production.  In doing so the Court defined what “Material Fact” means under the new Rules of Court.  Mr. Justice Punnett provided the following reasons:

What is a Material Fact?

[16]        In Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, The Law of Evidence in Canada, 3d ed. (Markham: LexisNexis Canada, 2009) at para. 2.50, relevance is distinguished from materiality:

§2.50   A distinction has also been drawn between relevance and materiality.  Evidence is material in this sense if it is offered to prove or disprove a fact in issue.  For example, evidence offered by a plaintiff in a conversion action to prove a loss of profit is not material since loss of profits cannot be recovered in such an action, and evidence that an accused charged with forcible entry is the owner of the land is immaterial since the offence can be committed by an owner.  This evidence may very well be immaterial, but it is also simply irrelevant.  This excluded evidence is no more required to make out the case than is evidence that the accused owns three other properties or owns a black dog for that matter.  There is no probative connection between the fact to be proved and the facts in issue as determined by the substantive law.  Little is added to the analysis by adding a concept of materiality, as different results do not depend on the distinction. The concept of materiality, however, requires the court to focus on the material issues in dispute in order to determine if the proffered evidence advances the party’s case.[Footnotes omitted.  Emphasis added.]

In other words, the requirement that the disclosure relate to a material fact limits the breadth of what is relevant.

[17]        The authors of The Law of Evidence in Canada define relevance at para 2.35:

§2.35   A traditionally accepted definition of relevance is that in Sir J.F. Stephen’s A Digest of the Law of Evidence, where it is defined to mean:

… any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.

Pratte J. in R. v. Cloutier accepted a definition from an early edition of Cross on Evidence:

For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other.  One fact is not relevant to another if it does not have real probative value with respect to the latter.

…

[18]        In January 2009, Rule 14.01(1)(a) of the Nova Scotia Civil Procedure Rules changed document production in Nova Scotia by requiring a judge to determine relevancy “by assessing whether a judge presiding at the trial or hearing of the proceeding would find the document … relevant or irrelevant”.

[19]        The Nova Scotia Supreme Court in considering the new rule in Halifax Dartmouth Bridge Commission v. Walter Construction Corporation, 2009 NSSC 403, 286 N.S.R. (2d) 179 at para. 18, stated:

[18]      … As to what is meant by relevancy, in Sydney Steel v. Mannesmann Pipe (1985), 69 N.S.R. (2d) 389 (S.C.T.D.), Hallett, J. (as he then was) stated, at paras. 14-18:

…

[17] In the Law of Evidence in Civil Cases by Sopinka and Lederman, at p. 14 the authors also make reference to the quotation from Stephen’s Digest as to the meaning of relevance and make the following statement that is applicable and worthy of consideration when assessing the relevancy of the documents that are before me on this application:

“The facts in issue are those facts which the plaintiff must establish in order to succeed together with any fact that the defendant must prove in order to make out his defence. It is seldom possible to prove a case or establish a defence solely by direct evidence as to the facts in issue and, therefore, the law admits evidence of facts, which, although not themselves in issue, are relevant in the sense that they prove or render probable the past, present or future existence (or non-existence) of any fact in issue.

“The facts in issue are controlled by the date of the commencement of the action. All facts essential to the accrual of a cause of action must have occurred prior to commencement of the action but evidence may be tendered as to facts occurring after the commencement of the action if they merely tend to prove or disprove the existence of the facts in issue. On the other hand any fact giving rise to a defence need not have occurred before the commencement of the action. An admission after the issue of the writ by one of the parties is admissible and conduct which is tantamount to an admission is equally admissible.

“The state of mind of a party may be proved as a fact in issue or as tending to prove or disprove a fact in issue. Thus the knowledge of a party may be directly in issue or relate to a matter directly in issue.” [emphasis by Hallett J.]

Is the Reliability of the Plaintiff’s Memory a Material Fact?

…

[25]        The defendants argue that the reliability of the plaintiff’s evidence, given the potential memory loss from drug use, is at issue in this case. The plaintiff asserts that reliability includes credibility and a line cannot be drawn between reliability and credibility. Therefore the information relates only to credibility and as such is a non-material collateral fact.

[26]        “Reliable” is defined in the Concise Oxford English Dictionary, 11th ed., as the “able to be relied on.” Credibility relates to whether or not the court accepts or believes the evidence. In assessing credibility, the court may consider how reliable the evidence is.

[27]        In my view, the error in the plaintiff’s position is conflating reliability and credibility when the former is but part of the latter. The ability of the plaintiff to remember is, in my opinion, relevant to proof of a material fact, namely the existence of a contract based on oral terms.

[28]        Frequently courts take into account factual considerations, such as the ability of a witness to see or hear what occurred, in determining whether evidence is reliable and should be accepted. Surely, if an individual has suffered damage to his cognitive or memory functions, that is equally a relevant fact.

[29]        I am satisfied that, if otherwise admissible, the requested production is relevant and could prove or disprove a material fact. Rule 7-1 does not restrict production to documents that in themselves prove a material fact. It includes evidence that can assist in proving or disproving a material fact.

BC Supreme Court Finds Liability Can Follow Unreasonably Low Certification Standards

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(UPDATE October 27, 2011:  An appeal of the below decision was dismissed by the BC Court of Appeal on October 27, 2011. Despite upholding the trial result the BC Court of Appeal provided comments on the Duty of Care of CSA at paragraphs 58-61 differing from the below analysis.  The Court of Appeal concluded that “For policy reasons, CSA does not have a duty of care in negligence to hockey players who are injured while wearing certified hockey helmets“)

Earlier this week the BC Supreme Court, Victoria Registry, released reasons for judgement dismissing a lawsuit for compensation as a result of a traumatic brain injury sustained during a hockey game (More v. Bauer Nike Hockey Inc).
The incident occurred in 2004 when the Plaintiff was 17 years old.  He was playing an organized game of hockey.  He was wearing a helmet which was certified by the Canadian Standards Association (the “CSA”) and met all CSA standards.   During the game the Plaintiff fell into the boards and suffered a subdural hematoma.  This was apparently the only reported incident of a helmeted player sustaining a subdural hematoma while playing organized hockey in Canadian history.
The effects of the injury caused severe and profound disability in the Plaintiff.  The Plaintiff sued various Defendants including the manufacturer of the helmet and the CSA.  The Plaintiff alleged that the helmet was negligently manufactured and that the CSA was negligent in failing to adopt proper standards for helmet certification.  The Plaintiff’s claims were ultimately dismissed with the Court finding that the helmet was not defectively manufactured and that the standards set by the CSA were appropriate.
This case has received considerable press in Canada and abroad even gaining mention in the New York Times sports blog.  What interests me most about this case is not the ultimate result rather it was the Court’s discussion of the potential liability of institutions which set inadequate safety standards.
In the course of the lawsuit the CSA argued that even if their standards were unreasonably low they could not be sued because they did not owe the Plaintiff a duty of care.  Mr. Justice Macaulay disagreed and held that institutions that set certification standards for safety equipment can be sued in negligence if they set their standards too low.  Specifically the court held as follows:

212] I am satisfied that it was reasonably foreseeable that a hockey player and wearer of a mandatory certified hockey helmet might suffer harm if the CSA set the certification standard unreasonably low in the circumstances. On the question of proximity, I extrapolate from Cooper at paras. 32–34. Is the player, who must obtain and wear a certified helmet in order to participate in organized hockey, so closely and directly affected by the CSA decision respecting the adequacy of the certification standard that the latter ought reasonably to have the player’s legitimate interest in safety in mind? In my respectful view, the answer must be yes.

[213] By legislative definition, any hockey helmet that is not certified is a hazardous product and cannot be sold in Canada. No matter how well designed the helmet may, in fact, be, no manufacturer can offer it for sale unless it is certified. The consumer hockey player has no choice and buys, or otherwise obtains, the helmet for the purpose of self-protection in a game that has inherent dangers. Nonetheless, there is some reliance by the consumer on the fact of certification and an expectation that the risk of at least some injuries is reasonably reduced. Otherwise, there would be no need for any helmet at all.

[214] With the greatest of deference to the possibility that Hughes stands for a different outcome, I am satisfied that there is sufficient proximity in the present case for a prima facie duty of care.

In short, this decision means that if an institution sets certification standards for products to be sold in British Columbia that institution may be liable if their standards are set at an unreasonably low level.