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Firing a Personal Injury Lawyer Part 2 – What Happens When There is no Contract?

Written by admin on . Posted in Uncategorized. 53 Comments on Firing a Personal Injury Lawyer Part 2 – What Happens When There is no Contract?


Earlier this year I discussed some matters clients should consider prior to firing a personal injury lawyer who was hired on a contingency fee basis.  What if you’ve hired a lawyer but never signed a fee agreement?  What, if anything, would you owe your lawyer if you fire them in these circumstances?  Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, discussing this topic.
In this week’s case (Baxter v. Mary Fus Law Corporation) the Plaintiff was injured in a motor vehicle collision.  He hired the Defendant law firm to represent him but never signed a fee agreement.   The lawyer started a BC Supreme Court lawsuit.  Prior to trial the client decided to switch lawyers.  The original lawyer issued two bills asking the client to pay just over $13,000 for services rendered.  The client took issue with these accounts and asked the Court to review them.
The Court ultimately reduced the bills by approximately 25%.  Prior to doing so Master Shaw made the following useful comments about fee obligations when a lawyer is hired and fired without a fee agreement being signed:

[20]         The issues in this review are:

1)    what is a fair fee for the work provided to the client by the lawyer?

2)    what are the disbursements that can be charged by the lawyer to the client?

[21]         In Nathanson, Schachter & Thompson v. Inmet Mining Corp., 2009 BCCA 385, the court for the majority of the Court of Appeal, at para. 46, state:

In the absence of an express agreement concerning payment, it is obviously an implied term of a retainer that the solicitor will be remunerated for his or her work. In this province, the contractual gap created by a failure of the parties to agree specifically on the terms of payment is filled by s. 71(4) of the Act, which stipulates that in the absence of an express agreement, the solicitor’s fee will be assessed on the basis of the factors enumerated therein, i.e., on what has come to be called a “fair fee” basis.

[22]         That statement applies to this case. The lawyer and client never reached an express agreement concerning payment. The lawyer’s fee is to be assessed on the basis of a “fair fee” by consideration of the factors set out in s. 71(4) of the LPA.

[23]         Section 71(4) of the LPA states:

(4) At a review of a lawyer’s bill, the registrar must consider all of the circumstances, including

(a) the complexity, difficulty or novelty of the issues involved,

(b) the skill, specialized knowledge and responsibility required of the lawyer,

(c) the lawyer’s character and standing in the profession,

(d) the amount involved,

(e) the time reasonably spent,

(f) if there has been an agreement that sets a fee rate that is based on an amount per unit of time spent by the lawyer, whether the rate was reasonable,

(g) the importance of the matter to the client whose bill is being reviewed, and

(h) the result obtained.

Indivisible Injuries in Action

Written by admin on . Posted in ICBC Brain Injury Cases, Uncategorized. 59 Comments on Indivisible Injuries in Action


As I recently discussed, the law in British Columbia requires a Defendant to compensate a Plaintiff for any indivisible injury caused by their wrongdoing.  If a subsequent event contributes to or aggravates the injury a defendant cannot reduce the amount of compensation the Plaintiff is entitled to.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, demonstrating this principle of law.
In this week’s case (Fillmore v. McKay) the Plaintiff was involved in 2005 motor vehicle collision.  The Plaintiff was riding his bicycle when he was struck by the Defendant’s vehicle.  The Defendant initially denied being at fault but during trial admitted that the collision was indeed a result of her negligence.  The Plaintiff suffered various soft tissue injuries and a traumatic brain injury.
At trial the Defendant argued that some of the Plaintiff’s injuries were made worse during a subsequent fall and that this should reduce the compensation the Plaintiff should receive.  Mr. Justice Truscott rejected this argument and provided the following useful comments demonstrating the law relating to indivisible injuries in BC:

[145]     The plaintiff took a fall at work on July 9, 2005 when he says in his note that he aggravated his neck and shoulder. The defendant submits that this was a new incident not caused by him that should serve to reduce the plaintiff’s personal injuries for which he has liability from the motor vehicle accident. The defendant even submits that it may have been this incident of July 9, 2005 that caused the plaintiff’s back injury because his first complaint to Dr. Buie was not until after that.

[146]     I have already concluded that the plaintiff’s back injury occurred in the motor vehicle accident and not subsequently by this bike accident. The plaintiff does not say in his note that he aggravated his back on July 9, 2005, but only his neck and shoulder.

[147]     As to the possible aggravation of his neck and shoulder injuries, Athey v. Leonati, [1996] 3 S.C.R. 458, makes it clear that the defendant remains liable where his negligence caused or contributed to the injuries and that liability is not reduced by any non-tortious contributing causes.

[148]     Accordingly, even if the plaintiff’s neck and shoulder injuries were aggravated by this non-tortious incident, the defendant is still fully responsible for the full extent of those injuries because his negligence caused them in the first place and thereby contributed to the extent of the injuries.

BC Rules of Court Update: The Adverse Witness Rule

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


The Rules of Court permit parties to a lawsuit to force opposing parties to take the stand during the course of a lawsuit.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing this power under the New BC Supreme Court Civil Rules.
In today’s case (Dawson v. Tolko) the Plaintiffs were current and former employees of Tolko Industries.   Tolko Industries amended a pension plan it offered it’s employees.  During the course of this occurring another Defendant in the lawsuit, Mr. Mercier, assisted and advised Tolko Industries on issues relating to the offer made to the employees to change from a defined benefit pension plan to a defined contribution plan.
The Plaintiff’s sued Tolko and Mercier alleging that they did not act in good faith during this period.  Prior to trial the Plaintiffs lawyer examined Mr. Mercier extensively.  During the course of the trial the Plaintiffs wished to put Mr. Mercier on the stand.
The Defendant objected arguing that this was not necessary as he would take the stand in the defence and could be cross-examined at that time and further that the Plaintiff could read his discovery evidence in at trial.
Mr. Justice Butler rejected the Defendant’s argument and ordered that he take the stand.  In doing so the Court canvassed the power of litigants to put adverse parties on the stand in the BC Supreme Court.  In doing so the Court found that authorities developed under the former Rules remain helpful.  Specifically Mr. Justice Butler held as follows:

[6]             The Rules provide that the plaintiff may call an adverse party as a witness for cross-examination as part of the plaintiff’s case.  This may be done either by delivering the notice (as was done in this case), issuing a subpoena, or calling the adverse party as a witness if he or she is in the courtroom.

[7]             In my decision in Canadian Bedding Company Ltd. v. Western Sleep Products Ltd., 2008 BCSC 1444, I considered an application to set aside a notice delivered under the provisions in the former Rules in circumstances that were very similar to the circumstances in this case.  I dismissed the defendant’s application to set aside the notice.  In doing so, I examined the three different ways in which an adverse party could be called as a witness in the plaintiff’s case and the differences in the provisions for setting aside the notice or subpoena.  The provisions in the current Rules are, with one exception, the same and so my analysis is relevant to the current Rules…

[16]         I agree that the natural unfolding of the narrative can be impacted by use of the adverse party witness rule and that the use of the rule may unnecessarily prolong the trial.  However, I do not agree that the adverse party witness rule was intended to be limited to situations where the evidence sought to be elicited cannot be satisfactorily tendered in any other way.  The use of an adverse party witness may, in certain circumstances, be an effective way to prove a party’s case.  Counsel should not be deprived of that option when the language in the adverse party witness rule does not contain that limitation.

[17]         I have arrived at this conclusion on the basis of my analysis of the former Rules set out in Canadian Bedding.  In my view, the differences in the discretion given to a trial judge depending on how the adverse party witness is called to be a witness are important and cannot be ignored.

[18]         The Rules establish a hierarchy of discretionary considerations depending on how the adverse party witness is compelled to testify.  When a notice has been properly served pursuant to Rule 12-5(21), the witness and counsel have ample time to prepare for the cross-examination and design a trial strategy to deal with the fact that the defendant will be an adverse party witness.  Accordingly, the court is given a limited jurisdiction to set aside the notice.  It is only where the “evidence of the person is unnecessary” that the court can set aside the notice.  I cannot read Rule 12-5(23)(b) as equivalent to Rule 12-5(39), which states that a subpoena may be set aside where “compliance with it is unnecessary.”  The wording of Rule 12-5(39) must encompass a broader range of considerations including a consideration of the steps already taken in the case and whether compliance with the subpoena is necessary for the proper conduct of the trial.

[19]         Further, as I noted in Canadian Bedding, the discretion granted to the court must be exercised with restraint.  In De Sousa v. Kuntz (1988), 24 B.C.L.R. (2d) 206 (C.A.), Wallace J.A. cautioned that it was only in a clear case that a judge should exercise his discretion to set aside a subpoena on the ground of necessity.  He emphasized, at 214, the need for a judge to be acutely aware that if he sets aside a subpoena:

… he is substituting his view for that of counsel as to the need to subpoena a certain witness and that he will seldom have as complete an appreciation as counsel does of the benefits – both tactical and substantive – that a litigant may derive from calling a certain witness.

That caution applies with equal force in relation to the adverse party witness rules.  If plaintiff’s counsel decides to utilize the adverse party witness rule in order to satisfy the onus of proof borne by the plaintiff, the court should be reluctant to interfere.

[20]         In arriving at his conclusion in Strother, I also note that Lowry J.A. specifically stated at para. 43 that he intended “no imposition of any procedural limitation.”  If I were to accede to Mr. Mercier’s interpretation of the adverse party witness rule, it would add a gloss that does not appear in the current Rules.  It would impose a procedural limitation which does not appear in the adverse party witness rule.

[21]         Mr. Mercier cannot show that his evidence is “unnecessary”.  Mr. Poulus’s undertaking to call him as a witness and the fact of the extensive examination for discovery is not relevant to that consideration.  Accordingly, I decline to set aside the notice pursuant to Rule 12-5(23)(b).

The Important Role of Independent Witnesses in Motor Vehicle Collision Lawsuits

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


When a crash happens its not unusual for the parties involved to have different versions of who is to blame.  When this occurs determining who will be found at fault in a subsequent lawsuit can be a difficult task.  When there are impartial and independent witnesses, however, the task of picking between differing versions can become easier.  This was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Hough v. Dyck) the Parties were involved in a 2007 motor vehicle collision.  The Plaintiff’s pick up truck was rear-ended by the Defendant’s car.  The Plaintiff sued alleging the Defendant was at fault for driving carelessly.  The Defendant disagreed arguing that the Plaintiff cut in front of him and “abruptly stopped” leaving him without adequate time and space to safely bring his vehicle to a halt.
An independent witness to the collision came forward and provided the Court with her account as to what occurred.  She verified the Defendant’s evidence that the Plaintiff cut the Defendant off and then slammed on his brakes.  Ultimately the Court preferred the Defendant’s version of events and dismissed the lawsuit.  In doing so Madam Justice Baker provided the following comments:
[18] (The independent witness) Ms. Maynes testified that near the bottom of the hill, as traffic was approaching 92nd Avenue, she saw Mr. Hough’s vehicle pull across the double solid centre lines into the northbound lane, pass Mr. Dyck’s vehicle, swerve back into the southbound lane and then slam on its brakes.  She saw the brake lights of Mr. Dyck’s vehicle come on and saw the collision.  She said it was a minor impact, because of the relatively slow speed of travel due to heavy traffic….

[21]        I find Mr. Dyck to be a credible witness and I accept his testimony.  I consider Mr. Hough’s testimony to be inaccurate and unreliable.   The testimony of Ms. Maynes supports Mr. Dyck’s testimony that Mr. Hough caused the accident by first passing Mr. Dyck’s vehicle when passing was prohibited, as evidenced by a solid double centre line and then abruptly pulling back into Mr. Dyck’s lane and equally abruptly slamming on his brakes, for no good reason, and when it was foreseeable that a collision would result.  In doing so, he was negligent, and his negligence was the sole cause of the accident.

[22]        I am not persuaded that anything done or omitted to be done by Mr. Dyck caused or contributed to the accident.  He was cut off when Mr. Hough pulled back into his lane of travel and then stopped abruptly.

[23]        It follows that the action must be dismissed.  Mr. Dyck shall have his costs, payable by Mr. Hough, on Scale B.

The lesson motorist should take from this case is that independent witnesses can be vital to the success or failure of a personal injury lawsuit where fault is contested.  Following a collision, if possible, it is a good idea to take down the names and contact information of witnesses to the event prior to leaving the scene of the crash.

"Proportionality" and Multiple Independent Medical Exams

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 7, independent medical exams, Uncategorized. 55 Comments on "Proportionality" and Multiple Independent Medical Exams


One of the biggest changes in the New BC Supreme Court Civil Rules is the requirement that the court secure the determination of a proceeding in ways that are “proportionate to the amount involved in the proceeding, the importance of the issues in dispute, and the complexity of the proceeding“.
Reasons for judgement were released today considering this concept in relation to ICBC’s request for multiple independent medical exams in an injury lawsuit.
In today’s case (Kim v. Lin) the Plaintiff was injured in a 2006 BC collision.  She sued for damages and ICBC defended as statutory third party.  The Plaintiff gave evidence at her discovery that she suffered from pain in numerous areas in her body including “problems with her eyes, ringing in her ears, neck pain, problems with her shoulders and shoulder blades, her upper back, her hip, her lower back, bruising to her hips, leg, knee and ankle pain, as well as headaches, dizziness, hair loss, weight problems and a variety of emotional problems, including impaired memory and concentration, sleep, fatigue and decreased energy levels“.
In the course of the claim the Plaintiff attended two medical appointments arranged by ICBC, the first with a neurologist, the second with a psychiatrist.   ICBC had also secured reports from two of the Plaintiff’s treating physicians.  ICBC wished to have the Plaintiff assessed by an orthopaedic surgeon but the Plaintiff refused arguing such an application was not necessary.  Mr. Justice Voith ultimately decided that this assessment was necessary in order to ‘balance the playing field’ and ordered that the Plaintiff attend.
In reaching this decision the Court considered the role that proportionality plays when a defendant asks a plaintiff to attend multiple independent medical exams.  Mr. Justice Voith provided the following useful discussion:

[28]        Finally, I turn to the relevance of the severity of the plaintiff’s injuries and the alleged impact of those injuries on Ms. Kim. These issues are also germane to the plaintiff’s submission that “proportionality” should influence the outcome of this application. While R. 1-3(2) establishes that “proportionality” is an over-arching consideration which informs the interpretation and implementation of the Rules, its significance, however, is greater for some Rules then for others.

[29]        Thus, for example, the former R. 26, which related to document production, imposed a uniform obligation to produce documents under the well-known Peruvian Guano standard, affirmed inFraser River v. Can-Dive, 2002 BCCA 219 at 12, 100 B.C.L.R. (3d) 146. Rule 7-1(1) has modified this uniform standard. Instead, Rules 7-1(11)-(14) dictate how and when the production of additional documents may be required. Within this regime, “proportionality” will no doubt have much influence.

[30]        In other cases or for other Rules, however, the reality is that “proportionality”, though not expressed in precisely those terms, has historically and inherently already played a significant role. The former R. 30(1) is an example of this. Under R. 30(1), courts routinely considered, as one of many factors, the severity of the plaintiff’s injuries and the potential magnitude of the plaintiff’s claim in addressing the appropriateness of further independent medical examinations.

[31]        Thus, for example, in Gulamani v. Chandra, 2008 BCSC, 1601 Madam Justice Arnold-Bailey, in addressing the factors that underlay her decision said, in part, at para.34:

…Third, the nature of some of the plaintiff’s claims in this case, including a thoracic outlet syndrome and chronic pain syndrome, and the plaintiff’s claim relating to her ongoing physical and mental disability such that she is unable to practice her profession and properly care for her family, make it a case of significant size and medical complexity.

[32]        Similarly, the former R. 68, regarding expedited litigation, engaged in very similar considerations, with its reference to “proportionality” in R.68(13) and its presumptive direction of “not more than one expert” in R.68(33).

[33]        Ms. Kim is a young woman. She says she suffers severely from multiple complaints. She asserts that many of these injuries are acute in terms of their severity and the ongoing difficulty they cause her. By way of example, and without addressing each of her injuries, Ms. Kim claims that she presently suffers from both headache and neck pain which she rates on a pain scale at an 8 or 9 out of 10, where 0 equates to no pain and 10 equates to such severe pain that it would cause one to seek emergency medical treatment. She has discontinued her studies. The report of Dr. Tessler at page 3 indicates that she now only works two days a week.

[34]        If it can be established that Ms. Kim’s present circumstances were caused by the Accident, the “amount involved” in her claim has the prospect of being quite significant, a relevant consideration under R.1-3(2)(a). Similarly, the “issues in dispute”, a relevant consideration under R.1-3(2)(b), are important for both parties.

[35]        Accordingly, I am satisfied that considerations of “proportionality” do not militate against the third party’s application but rather support the appropriateness of the medical examination before Dr. Kendall that it seeks. Further, I do not consider that the purpose of the report of Dr. Kendall can properly be said to either bolster the report of Dr. Tessler or to undermine its findings. Instead, I am satisfied that a further examination of Ms. Kim by Dr. Kendall is necessary to have the plaintiff’s concerns properly addressed by a physician with the requisite or appropriate expertise.

ICBC Tort Claims, Part 7 Benefits and Multiple "Independent" Medical Exams

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


As I’ve previously written, ICBC can typically arrange an ‘independent’ medical exam (IME) in one of two ways.  The first is when an ‘insured’ applies for first party no-fault benefits.  Section 99 of the Insurance (Vehicle) Regulation gives ICBC the power to compel an IME in these circumstances.  The second is under Rule 7-6(1) of the BC Supreme Court rules which allows the court to order an independent exam to “level the playing field” in an injury lawsuit.
As a monopoly insurer ICBC often has one adjuster assigned to look after a person’s claim for no-fault benefits and at the same time look after the defendant’s interests in the Plaintiff’s tort claim.  Often times ICBC will obtain a no-fault benefits medical exam and then once a tort claim is launched seek a second exam with a different physician pursuant to the BC Supreme Court Rules.  Can ICBC do this?  The answer is sometimes yes but is highly factually dependent and reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with this area of law.
In today’s case (Imeri v. Janczukowski) the Plaintiff was injured in a motor vehicle collision in 2005.  The Plaintiff and Defendant were insured with ICBC.  The same ICBC adjuster was looking after the Plaintiff’s no-fault benefits claim and acting on behalf of the defendant in the tort claim.  ICBC sent the Plaintiff for an IME with an orthopaedic surgeon (Dr. Boyle) as part of the no-fault benefits application process.  In the course of the tort claim the Defendant then sought an order sending the Plaintiff for an IME with a different orthopaedic surgeon (Dr. McGraw).  The Plaintiff opposed this motion and argued that if ICBC is entitled to a second exam it should be with the the same doctor.  Master Shaw sided with the Plaintiff.  In doing so the Court provided the following useful reasons:

[17]        Rule 7-6(1), which is the new Rule 30, provides as follows:

Order for medical examination

(1) If the physical or mental condition of a person is in issue in an action, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order under this subrule, the court may also make

(a) an order respecting any expenses connected with the examination, and

(b) an order that the result of the examination be put in writing and that copies be made available to interested parties of record.

[18]        In Stainer v. Plaza, 2001 BCCA 133, Finch J.A. (as he then was) said at para. 8:

… the purpose of Rule 30 is to put the parties on an equal footing with respect to medical evidence.

[19]        Although the first question would be whether the defence needs an IME of an orthopaedic specialist to put the parties on an equal footing with respect to medical evidence, counsel for the plaintiff did not oppose the plaintiff attending a defence IME with an orthopaedic specialist as long as it was Dr. Boyle. The plaintiff agrees to go back to Dr. Boyle for the IME.

[20]        The plaintiff’s submission is that the plaintiff has already attended a first IME for tort purposes with Dr. Boyle and, if a further IME is appropriate, it should be a follow-up with the original expert for the defence.

[21]        In Rowe v. Kim, 2008 BCSC 1710, Master Keighley at para. 14 states:

A party seeking to have a second examination preformed by a practitioner practicing in the same speciality or discipline as a practitioner who has already examined a person faces an uphill battle: Hothi v. Grewal, [1993] 45 B.C.L.R. (3d) 394 (SC); Hamada v. Semple, [1983] B.C.J. No. 1307 (SC). Successful applicants are those who are able to demonstrate that something has happened since the first examination which could not have been foreseen or which could not, for some other reasons, have been addressed by the first examiner. It also seems to me that material filed in support of the application should indicate why a further examination by the doctor who performed the original assessment is not appropriate.

[22]        The evidence submitted in this matter does not set out why it would not be appropriate to send the plaintiff back to Dr. Boyle. There was no evidence why Dr. McGraw should be preferred over Dr. Boyle.

[23]        The plaintiff does not resist seeing Dr. Boyle. It is not necessary to find sufficient reasoning for the further examination by Dr. Boyle.

[24]        I find the February 28, 2006 report of Dr. Boyle contains opinion relevant to both the Part 7 claim and the tort claim. The defence has not provided any evidence to explain the opinion content in the report relevant to the tort claim, other than the statement of the adjuster in her letter to the plaintiff setting the appointment that the IME is for the Part 7 claim purposes. It is not known what the request or instructions to Dr. Boyle were. Based on the content of the resulting report, there is opinion relevant to the tort claim. I find the IME by Dr. Boyle on February 28, 2006 is a first examination by an orthopaedic specialist in the tort claim as well as for a Part 7 claim.

New Formal Settlement Offer Rule Treated the Same as the Old

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized.


A further decision dealing with the consequences of formal settlement offers under the New BC Supreme Court Civil Rules was released today by the BC Supreme Court, New Westminster Registry.
In today’s case (Gregory v. ICBC) the Plaintiff was injured in a BC motor vehicle collision.  Prior to trial ICBC made a formal settlement offer of $164,000.  The Plaintiff rejected this offer and at trial was awarded just over $131,000.
ICBC brought an application seeking costs or double costs from the date of the offer onward.  Madam Justice Kloegman agreed that the Plaintiff ought to have accepted the formal settlement offer and accordingly deprived her of her costs and disbursements for the trial and awarded ICBC their costs and disbursements for steps taken shortly after delivery of the formal settlement offer.
In reaching this result the Court noted that Rule 9 (the New Formal Settlement offer rule) should be treated similarly to the old Rule 37B.  Specifically Madam Justice Kloegman noted that “The parties agree that it is likely that the new Supreme Court Rules apply to this application and, in any event, very little turns on whether or not the old or new Rules apply. ”
While ICBC was awarded post offer costs, they were not awarded double costs.  In reaching this decision the Court noted that ICBC’s financial ability to defend a lawsuit was “much greater than the (plaintiff’s) ability to prosecute” and that this factor must be taken into account in exercising judicial discretion under Rule 9.   In considering this factor Madam Justice Kloegman stated as follows “I will not order double costs to the defendant, which would be about $50,000, because the impact on the financial circumstances of the plaintiff and on the amount of her award at trial would be grievous. ”

Why Soft Tissue Injury Claims Should Not Be Judged by a Higher Legal Standard

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, Uncategorized. 65 Comments on Why Soft Tissue Injury Claims Should Not Be Judged by a Higher Legal Standard


From time to time BC Courts appear to scrutinize soft tissue injury claims more carefully than claims with objective injuries.  When doing so a very familiar quote from Mr. Justice McEachern is cited where he said “I am not stating any new principle when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery…”
This quote comes from the 1981 case Butler v. Blaylock and is often advanced by defence counsel in an effort to have a Court dismiss soft tissue injury claims.   This quote has been repeated many times in recent judgements and recently the BC Court of Appeal referenced this authority in Mariano v. Campbell.

However, what was not noted by the Court and should be next time a defence lawyer brings this quote to the Courts attention is that Mr. Justice McEachern’s decision is Blaylock was overturned by the BC Court of Appeal in 1983 where the Court held as follows:

12 With the greatest respect, I am of the opinion that there is no evidence upon which one could reasonably conclude that the appellant did not continue to suffer pain as of the date of the trial. After careful consideration of the expert testimony and the evidence of the appellant and his wife, I have reached the conclusion that the only finding open to the learned trial judge was that as of the date of trial the appellant continued to suffer moderate pain and in the words of Dr. Lehmann, his symptoms “will gradually subside with further time. Having been present for approximately two and a half years, it is doubtful that they will disappear completely.” (underlining mine).

13 There are three basic reasons which, in my view, support the conclusion that the plaintiff continued to suffer pain as of the date of trial. Firstly, the plaintiff testified that he continued to suffer pain. His wife corroborated this evidence. The learned trial judge accepted this evidence but held that there was no objective evidence of continuing injury. It is not the law that if a plaintiff cannot show objective evidence of continuing injury that he cannot recover. If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, the Plaintiff is entitled to recover damages. There is no suggestion in this case that the pain suffered by the plaintiff did not result from the accident. I would add that a plaintiff is entitled to be compensated for pain, even though the pain results in part from the plaintiff’s emotional or psychological makeup and does not result directly from objective symptoms.
14 Secondly, all of the medical reports support the view that the plaintiff continued to suffer pain and that it was not likely that his symptoms would disappear completely.

15 Thirdly, and of great importance, is the report of Dr. Lehmann, which was not before the learned trial judge for his consideration. In that report, Dr. Lehmann stated that there were degenerative changes in the cervical spine which pre-existed the accident. He said “they were probably asymptomatic before the accident but I think are probably contributing to his prolonged discomfort.” (underlining mine). In my view, as this evidence is uncontradicted, these objective findings cannot be disregarded and should be given great weight.
In addition to the above, a subsequent case from the Supreme Court of Canada made it clear that all civil cases, regardless of the allegations or the nature of a lawsuit, need to be judged with the same civil standard.  In F.H. v. McDougall the Canadian High Court stated as follows:
I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities.  Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences.  However, these considerations do not change the standard of proof…
[45] To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care implies that in less serious cases the evidence need not be scrutinized with such care.  I think it is inappropriate to say that there are legally recognized different levels of scrutiny of the evidence depending upon the seriousness of the case.  There is only one legal rule and that is that in all cases, evidence must be scrutinized with care by the trial judge.

I hope this ‘history lesson’ helps anyone confronted with an attack on Plaintiff credibility during a soft tissue injury trial.

Lawyer Ordered to Repay Legal Fees Collected During "Conflict of Interest"

Written by admin on . Posted in Uncategorized. 103 Comments on Lawyer Ordered to Repay Legal Fees Collected During "Conflict of Interest"


Lawyers owe their clients a duty of loyalty and cannot act if their personal interests or interests of other clients create a conflict of interest.  Where a conflict of interest arises a lawyer needs to obtain informed consent from a client to continue acting or sometimes stop acting for the client altogether.  If a lawyer fails to do so he/she can be exposed to various consequences including the loss of their right to claim fees for services rendered.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this area of law.
In last week’s case (Campbell v. Ragona) the Plaintiff was injured in a motor vehicle collision in Hong Kong in 1992.  He hired a Vancouver lawfirm to prosecute his claim.  The Vancouver firm retained a Hong Kong firm to assist in the prosecution.  A trial was held on the issue of fault in 1998 and a Hong Kong judge found that the motorist who struck the Plaintiff’s vehicle was at fault for the crash.     The ‘damages‘ portion of the trial did not proceed in a  timely fashion.   In 2004, some 12 years after the crash, the at fault driver brought a motion to have the lawsuit dismissed for ‘want of prosectution’ and succeeded.  The Plaintiff appealed this dismissal.  Prior to having the appeal heard the Plaintiff settled his lawsuit on a compromised basis with the at fault motorist and waived his right to sue the Hong Kong lawfirm that acted on his behalf.
The Vancouver lawfirm continued to act for the Plaintiff during the settlement negotiations.  After the claim was settled the Plaintiff sued his Vancouver lawyer and lawfirm arguing that they were negligent and that they continued to act on his behalf despite a conflict of interest.  Mr. Justice Pearlman agreed with the Plaintiff and found that the Vancouver lawfirm should have insisted that the Plaintiff obtain independent legal advice after the Hong Kong lawsuit was dismissed for want of prosectuion.
Mr. Justice Pearlman went on to award the Plaintiff the difference between the realistic trial value of his personal injury  lawsuit and the settlement amount.  The Court went on to order that the Vancouver firm ‘discourge‘ the legal fees collected for representing the Plaintiff.  In making this order Mr. Justice Pearlman made the following comments about a lawyer continuing to act after a conflict of interest arises:

[563]     The rationale for the duty of loyalty, including the duty to avoid conflict, was explained by Wilson J.A. (as she then was) in Davey v. Woolley, Hames, Dale & Dingwall (1982), 35 O.R. (2d) 599 (C.A.) at 602:

The underlying premise … is that, human nature being what it is, the solicitor cannot give his exclusive, undivided attention to the interests of his client if he is torn between the client’s interests and his own or his client’s interests and those of another client to whom he owes the self-same duty of loyalty, dedication and good faith….

[565]     The codes of conduct published by both the British Columbia Law Society and the Canadian Bar Association contain provisions requiring the withdrawal of a lawyer if the lawyer’s continued employment would place the latter in a conflict of interest.  The Canadian Bar Association Code of Professional Conduct Rule XII Commentary 4(c) provides:

Obligatory Withdrawal

4. In some circumstances the lawyer will be under a duty to withdraw …:

(c) if it becomes clear that the lawyer’s continued employment will lead to a breach of these Rules such as, for example, a breach of the Rule relating to conflict of interest (Chapter V).

[566]     Similarly, the Law Society of British Columbia’s Annotated Professional Conduct Handbook, Chapter 10, s. 1 states:

Obligatory withdrawal

1. A lawyer is required to sever the solicitor-client relationship or withdraw as counsel if:

(d) the lawyer’s continued involvement will place the lawyer in a conflict of interest, …

[568] Mr. Ragona knew, at the very latest, on June 9, 2004 that there was the potential for a claim for professional negligence against him and his firm.  Mr. Ragona told Mr. Campbell that he could or should get independent legal advice when they met at the offices of AHBL on June 23, 2004.  At that time, the plaintiff indicated that he did not wish to obtain independent legal advice, and Mr. Ragona did not insist that he do so….

[574]     Independent legal advice at this point would probably also have ensured that if Mr. Campbell chose to continue with AHBL’s representation, he would do so on the basis of an informed waiver of the conflict of interest.

[575]     A client must have a full understanding of the nature of the conflict in order to make an effective waiver. This may require independent legal advice: Moffat v. Weinstein (1996), 135 B.L.R. (4th) 298 (Ont.Gen.Div.).

[576]     In some cases, nothing short of the lawyer ceasing to act for the client will suffice to avoid subsequent liability for the consequences of breach of fiduciary duty: Davey v. Woolley, Hames,Dale & Dingwall (1982), 35 O.R.(2d) 599 (C.A.), leave to appeal to SCC refused, 37 O.R.(2d) 499. In my view, given the nature of the conflict, and AHBL’s role in the loss of Mr. Campbell’s right to maintain his action in Hong  Kong, this was a case where AHBL ought  either to have informed the plaintiff that they could no longer act, or they should have insisted that that the plaintiff take independent legal advice, at their expense, before they settled his claim. If AHBL did not withdraw, then they were under a duty to insist that Mr. Campbell obtain independent legal advice: Re A Solicitor (1995), 14 B.C.L.R. (3d) 100 (C.A.).  Because Mr. Ragona continued to act for Mr. Campbell and did not insist upon the plaintiff obtaining independent legal advice, he and AHBL must bear the consequences of their breach of the fiduciary duty to avoid conflicts of interest.

[577]     The defendants are responsible for the consequences flowing from their breach of fiduciary duty.  The plaintiff bears the onus of proving a causal relationship between a breach of fiduciary duty and any loss for which he claims compensation.  Here, by the time of the breach of the duty to avoid conflict of interest, which occurred upon dismissal of the Hong Kong action for want of prosecution, Mr. Campbell had already suffered the loss resulting from inordinate delay in the prosecution of his action, for which he claims damages in contract and tort.

[578]     In Strother v. 3464920 Canada Inc., [2007] S.C.R. 177 at paras. 75 and 76, Justice Binnie held that the remedy of disgorgement may be ordered for either prophylactic or restitutionary purposes.  The prophylactic purpose is served by appropriating “for the benefit of a person to whom the fiduciary duty is owed any benefit or gain obtained or received by the fiduciary in circumstances where there existed a conflict of personal interest and fiduciary duty or a significant possibility of such conflict, the objective is to preclude the fiduciary from being swayed by considerations of personal interest.” Strother at para. 75, citing Chan v. Zacharia (1984), 154 C.L.R. 178 (Aust H.C.) per Deane J., at p.108.

[579] The prophylactic purpose of disgorgement is intended to teach fiduciaries that conflicts of interest do not pay.  The plaintiff is not required to prove a loss in order to recover a gain or benefit received by the fiduciary as a result of its breach of duty: Strother, at para.77.

[580] Subsequent to the dismissal of Mr. Campbell’s action for want of prosecution, Mr. Ragona, in breach of the fiduciary duty he owed to avoid conflict of interest, accepted the plaintiff’s offer of hourly remuneration for work performed on the file. He did so in order to benefit himself and his firm, at the plaintiff’s expense. The plaintiff is entitled to disgorgement of all fees or benefits received by Mr. Ragona and AHBL in consequence of this breach of their fiduciary duty to avoid conflict of interest  : Strother at para. 83.

[581] There will be an order that AHBL disgorge and pay to Mr. Campbell’s estate the sum of $84,391.86, representing the full amount of the fees charged by AHBL in their account rendered to Mr. Campbell dated December 29, 2004.

BC Supreme Court Rules Update: Withdrawing an Admission of Fault

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized. 116 Comments on BC Supreme Court Rules Update: Withdrawing an Admission of Fault

Reasons for judgement were released today considering when a Defendant can withdraw an admission of fault in a personal injury lawsuit.
In today’s case (Surerus v Leroux) the Plaintiff was injured when he was struck by a vehicle operated by the Defendant.  He sued for damages and alleged the crash was the Defendant’s fault for a variety of reasons including that the Defendant drove a vehicle with defective brakes.  ICBC, the insurer for the Defendant, instructed the defence lawyer to admit fault.
In the course of the lawsuit the Defendant wished to withdraw the admission of fault.  The Defendant brought a motion asking the Court’s permission to do so.  Master Shaw dismissed the motion finding that the request was brought too late in the course of lawsuit.
The Court applied Rule 7-7(5) of the New BC Supreme Court Civil Rules (the rule dealing with withdrawing admissions).  This is the first case I’m aware of applying this rule however it’s worth noting that the rule’s language is almost identical to the old rule 31(5)(c) and the Court relies on precedents established under the old rule as being authoritative.  In dismissing the motion Master Shaw made the following comments:

[3]             Rule 7-7(5) reads as follows:

Withdrawal of admission

(5)  A party is not entitled to withdraw

(a) an admission made in response to a notice to admit,

(b) a deemed admission under subrule (2), or

(c) an admission made in a pleading, petition or response to petition

except by consent or with leave of the court.  …

[17]         This is not a case where the plaintiff’s pleadings set out a variety of allegations of possible negligence. The plaintiff made a specific allegation in his pleadings of poor mechanical condition and faulty brakes.

[18]         The defence says that there is an issue to be tried, and states that the defendant’s evidence will be that he had no prior knowledge of the brake issue before the accident.

[19]         In 374787 B.C. Ltd. v. Great West Management Corp., 2007 BCSC 582, Madam Justice Martinson states at para. 27:

27        As a general rule the Court must consider whether in the circumstances of the case the interests of justice justify the withdrawal of the admission. The following factors, which are not exhaustive are relevant: delay, loss of a trial date, a party is responsible for an erroneous admission, inadvertence in the making of the admission and estoppel. See Meisenholder v. Wikdahl, 2005 BCSC 630 and Hamilton v. Ahmed. A deemed admission can be withdrawn even where the failure to reply was deliberate: Linear S.R.L. c. CCC – Canadian Communications Consortium Inc. 2001 BCSC 682.

[20]         I am satisfied that the interests of justice do not justify the withdrawal of the deemed admission.

[21]         I have reviewed the factors set out by Madam Justice Martinson in 374787 B.C. Ltd. and affirmed by the Court of Appeal. This claim was filed October 6, 2008. It is almost four years since the date of the accident. There is a trial date scheduled for April 11, 2011. Discoveries have been conducted. The notice of motion was not filed until May 28, 2010, although the defence notified the plaintiff in September of 2009 that they were attempting to withdraw their admission of liability. I find that the delay of the defendant bringing this application, from the time of the accident to now, is a concern which cannot be overcome.

[22]         The trial date scheduled for April 11, 2011, is not imminent and, therefore, not necessarily at risk for losing the date.

[23]         There was no evidence put before this court with respect to the status of the vehicle. It is unknown if it is even available for inspection. The plaintiff specifically pleads in the statement of claim the condition of the brakes. That should have alerted the adjuster and defence. Even if the admission was inadvertent, there appears to be an element of simply not paying attention to the pleadings.

[24]         Withdrawing the admission at this late date would be prejudicial to the plaintiff. The plaintiff has acted to his detriment by relying on the admission.

[25]         I find that the interests of justice would not be served by allowing the withdrawal of the admission at this date.

[26]         In the result, I dismiss the application of the defendant. Costs will go to the plaintiff in any event of the cause.