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BC Injury Law Podcast: Non-Pecuniary Damages

Written by admin on . Posted in BC Injury Claims Media Archives, Uncategorized.


This is the first in what I intend to be a series of podcasts discussing topics of interest involving ICBC and other BC personal injury claims.
Today’s topic is valuing a person’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) as a result of injuries caused by the fault of another.  To listen simply click on the following link:  bc-injury-law-podcast-non-pecuniary-damages
The case discussed in this Podcast is Stapley v. Hejslet, 2006 BCCA 34 and can be found by clicking here.

BC Court of Appeal: No Litigation Privilege During Investigative Stage

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


As I’ve previously written, litigation privilege is a principle which allows parties in a law suit to keep evidence from the other side.  In order to successfully take advantage of litigation privilege the document not only has to have been created in the reasonable contemplation of a lawsuit but also for the ‘dominant purpose‘ of use in such a lawsuit.
If a document was made for multiple reasons (ie – investigating a potential claim and defending against a potential claim) the law will likely require disclosure.  Today the BC Court of Appeal released useful reasons summarizing this area of law.
In today’s case (Mathew v. Delta School District #37) the Plaintiff ‘slipped and fell on some ice at a school’.  Shortly after the incident the school’s principal, a teaching assistant and a custodian made notes documenting what occurred.  The Plaintiff started a lawsuit and asked for these.  The Defendant refused to produce these claiming they were privileged.  The dispute made it all the way to the BC Court of Appeal who found that the documents were not privileged as they were made during the ‘investigatory stage‘.  The BC High Court provided the following very useful reasons:

[11] The investigatory stage to which the master referred is well recognized in the authorities. In Hamalainen at para. 24, the following was quoted from a speech in Waugh v. British Railways Board, [1980] A.C. 521 at 541, attributing it to what Lord Denning had said in that case:

If material comes into being for a dual purpose – one to find out the cause of the accident – the other to furnish information to the solicitor – it should be disclosed, because it is not then “wholly or mainly” for litigation. On this basis all the reports and inquiries into accidents – which are made shortly after the accident – should be disclosed on discovery and made available in evidence at the trial.

[12]         The investigatory stage was discussed in Hamalainen as follows:

[26]      Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

[13]         It was, on the evidence, open to the master to regard the notes as being made in the investigatory stage as opposed to the later litigation stage. They were made directly following Mr. Mathew’s accident. I recognize it may be argued that, in the circumstances, there was little in the way of an investigatory stage here. But that is a matter to be determined on the peculiar facts of each case and I am unable to accept that the evidence foreclosed the significance the master appears to have attached to the notes being made as quickly as they were in relation to the incident.

Cyclist Injured In Collision With Cement Truck Loses at BC Court of Appeal

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


Earlier this month the BC High Court dismissed an appeal by a cyclist who sustained serious injuries when he collided with a cement truck in 2004 (Sivasubramanian v. Franz).
The cyclist was travelling on the right hand shoulder of a roadway.  As he approached an intersection there was a cement truck ahead of him signalling to turn right.  The truck then started its turn and the cyclist collided into the midsection of the truck.  The Plaintiff sued the cement truck driver.  The case was dismissed at trial (you can click here to read my summary of the trial Judge’s findings).
The Plaintiff appealed arguing that the trial judge was wrong to dismiss the claim because the motorist should have seen the cyclist before the collision and should not have turned when he did.  The BC Court of Appeal disagreed and dismissed the case.  In dong so the Court made the following comments:

[24]         In the case at bar, the respondent truck driver was in the midst of a lawful turn to the right from the curb lane when the appellant rode his bicycle heedlessly into the mid-section of the truck. I agree with the trial judge’s conclusion that it would be unreasonable for Mr. Franz to assume that the appellant, or indeed any other user of the highway, would ignore his indication to turn right, and that by the time the appellant reached the intersection, Mr. Franz was well into his turn and could not have avoided the collision.

[25]         The appellant’s submission that he was so close to the intersection as to constitute an immediate hazard to which Mr. Franz had sufficient time to react and take evasive action is not supported by the trial judge’s findings of fact.

[26]         Second, the appellant’s argument that the trial judge erred in finding that even if Mr. Franz had seen the appellant he would have been justified in making the right hand turn is supportable. Given the trial judge’s findings I see no error in her conclusion.

[27]         I would not accede to the appellant’s arguments. Notwithstanding Mr. Thomas’ able submissions, cases such as this are fact-driven. As in Trac v. Sangra (1995), 17 B.C.L.R. (3d) 92, “this is a case that could be won, if at all, only at trial. For us to interfere would require us in effect to retry this case and to take a different view of the facts from that of the trial judge. That we are most reluctant to do.”

[28]         In my opinion, the appeal should be dismissed with costs to the respondents.

This case demonstrates one of the most basic principles in personal injury lawsuits (tort claims); in order to successfully sue for personal injuries the other party must be at least partially at fault otherwise the result will be dismissal at trial.

Court Finds Health Care Costs Recovery Act Does Not Apply to Actions Commenced before April 1, 2009

Written by admin on . Posted in Civil Procedure, Tort Reform, Uncategorized. 51 Comments on Court Finds Health Care Costs Recovery Act Does Not Apply to Actions Commenced before April 1, 2009

(Please Note:  I’ve been advised by a colleague that the case discussed in this post is under appeal and I will update this post once the BCCA’s decision is released)

As readers of this blog know, on April 1, 2009 the BC Health Care Costs Recovery Act came into force which required Plaintiffs to, in certain circumstances, advance claims on behalf of the government to recover MSP health care costs in their personal injury claims.
Today Mr. Justice Sewell released two sets of judgements addressing whether the Act applies to cases filed in Court before April 1, 2009.
In today’s cases (Fong v. Deglan and Gosselin v. Shepherd) the respective Plaintiff’s were injured in non ICBC insured cases.  Their injuries occurred before April 1, 2009 and their lawsuits were also filed before this date.  Prior to the trial the Plaintiffs applied to amend their pleadings to advance the BC Governments claim under the HCCRA.
Lawyers for the Attorney General of BC intervened and argued that these amendments should be allowed.  The Defendants opposed these applications arguing that the HCCRA does not apply to lawsuits filed before April 1, 2009.  Mr. Justice Sewell agreed with the Defendants and dismissed the applications and in so doing made the following findings:

[37]        My review of the Act leads me to conclude that it is not clearly and unambiguously intended to apply to actions commenced before the Act came into force.  The presumption against retrospectivity set out in the cases referred to above together with the internal indications in the Act itself lead me to conclude that s. 2 of the Act has no application to actions commenced prior to the Act coming into force.

[38]        I therefore conclude that the amendment sought discloses no reasonable cause of action and dismiss the application for the amendment on that ground.

[39]        I would also dismiss the application to amend on the grounds that it is not just and convenient to permit such a claim to be advanced.  It is clear that Ms. Gosselin will obtain no benefit from advancing the claim and has no legal obligation to do so.  In these circumstances I consider the amendment to be useless and unfair to the defendants.

[40]        In Langret Investments S.A. v. McDonnell (1996), 21 B.C.L.R. (3d) 145 (C.A.) the court held at p. 153:

• Rule 24(1) of the Rules of Court in British Columbia allows a party to amend an originating process or pleading. Amendments are allowed unless prejudice can be demonstrated by the opposite party or the amendment will be useless. The rationale for allowing amendments is to enable the real issues to be determined. The practice followed in civil matters when amendments are sought fulfils the fundamental objective of the civil rules which is to ensure the just, speedy and inexpensive determination of every proceeding on the merits. See McLachlin and Taylor, British Columbia Practice (2nd Ed.) pp. 24-1 to 24-2-10, and the (7 decision of this Court in Chavez v. Sundance Cruises Corp. (1993), 15 C.P.C. (3d) 305, 309-10.

[41]        In my view the proposed amendments to the statement of claim are useless in that they provide no personal benefit to the plaintiff since any amount recovered by the plaintiff as a result of the amendments would be held in trust and ultimately paid to the government.

[42]        Ms. Gosselin feels that she has a moral obligation to pursue a claim to recover the health care services costs.  However I do not consider it to be appropriate for the Court to impose moral obligations on defendants.  The legislature has set out the circumstances in which the government is entitled to recover the cost of health care services.  I do not consider it to be just to the defendants to put them uniquely in the position of being exposed to a claim that others in the same situation will not be required to answer.

[43]        The application to amend is therefore dismissed.

Clarity is always welcome when a new law comes into force.  I will continue to post about further cases interpreting and shaping this legislation.  You can click here to read my archived posts discussing the HCCRA.

Jury Delivers "Shockingly Unreasonable" Award in BC Injury Claim

Written by admin on . Posted in ICBC Chronic Pain Cases, Jury Trials, Uncategorized. 2 Comments on Jury Delivers "Shockingly Unreasonable" Award in BC Injury Claim


Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, in what the trial judge described as a ‘shockingly unreasonable‘ verdict by a Jury.
In today’s case (Evans v. Metcalfe) the Plaintiff was injured in a BC motor vehicle collision.  Fault was admitted by the other motorist.  The case went to trial before a Jury with Mr. Justice Romilly presiding as the trial judge.
The Plaintiff led evidence that, as a result of her accident related injuries, she was disabled from working and sought damages accordingly.  The Plaintiff’s out of pocket expenses for alleged accident related treatments exceeded $25,000.
The Jury largely rejected the Plaintiff’s claim and assessed total damages at $17,300 which included $1,000 for pain and suffering, $6,000 for special damages and $10,300 for past loss of income.  The Jury then reduced this award by 15% for ‘failure to mitigate‘ for a total award of $14,705.
The Defendant asked the Judge to enter Judgement based on the Jury’s award.  The Plaintiff argued that the Jury’s award was “unreasonable” and that the verdict should be set aside with a new trial ordered.
Mr. Justice Romilly agreed that the Jury was wrong in reducing the damages by 15% for failure to mitigate but concluded that other than increasing the judgement to the original $17,300 any changes to the Verdict should be left to the Court of Appeal.
Jury’s in BC do not give any reasons for their award and they cannot be contacted after they are discharged to gain insight into their deliberations.  Accordingly it difficult for the Court of Appeal to know how a Jury reaches a particular verdict and feedback from the trial judge is welcome.  Anticipating that this matter would be appealed Mr. Justice Romilly voiced disagreement with the Jury’s findings and provided the following criticism:

[51]        Although it has not been specifically requested of me, I feel it necessary to comment on the reasonableness of the jury’s verdict.  In doing so I am taking in mind both the utility of such comments expressed by Southin J.A. in Johnson, and the limits to them as stated by Garson J.A. in Boota.

[52]        In my opinion, as a long-time member of the bench, the jury’s award in this case has surpassed the level of “shockingly unreasonable”.  The amount of damages awarded for non-pecuniary damages represents a fraction of what was sought.  Whatever the reason, the jury felt the need to punish Ms. Evans in a way that does not accord with the law.  In my judgment I have already discussed some failures of the jury to appropriately apply the law to the actual evidence; I believe that these failures (and more) are further manifest in their wholly disproportionate award.  No jury reviewing the evidence as a whole and acting judicially could have reached the verdict issued in these proceedings; the evidence cannot support the verdict.

Getting Your Time Estimate Right For Trial

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


Ask any Judge or Lawyer whose spent time in the BC Court System and they’ll tell you that it is important not to underestimate the amount of time you’ll need to have your matter heard in Court.  If you do you will run the risk of having your case struck off the list and reset for a later date.  Sometimes the matter can be put off well into the future, be it a trial or a chambers application.  Reasons for judgement were published this week on the BC Supreme Court website demonstrating this.
In this week’s case (Smith v. Bregt) the Plaintiff was injured in a motor vehicle collision.  She elected to prosecute her case under the BC Supreme Court Fast Track Rule.  One of the current requirements of the current fast track rule (rule 66) is that the trial must be completed within two days.  As the trial got underway it became clear that it could not be completed in two days.  The Defence lawyer brought a motion seeking to have the case removed from the Fast Track.  Madam Justice Dorgan granted the motion, declared a mistrial and ordered that the trial be reset for a later time.  In reaching this conclusion the Court gave the following reasons:

[10] By the endorsement of her pleadings, the plaintiff opted for the Rule 66 trial process.  That signals that the case is suitable to be tried within 2 days.  It is then incumbent upon the plaintiff to tailor its case to fit into the 2–day estimate.  The defendant has relied on the endorsement.  So has the administration in that the endorsement impacts the timing of other trials.

[11] If I order that the rule no longer applies, I assume the plaintiff will not get a trial date for some time.  Neither counsel has given me any information from the trial co-ordinator’s office as to what dates are available.  The plaintiff is geared up.  She has given her evidence-in-chief.  Trial preparation is completed.  She clearly wants this matter resolved.  She wants to proceed, to continue, and I can appreciate that.

[12] On the other hand, the defendants submit the plaintiff has taken her own case out of the provisions of Rule 66 by the first witness called, and the defendants argue that the court must enforce the rule with an eye to its purpose.  And, as Mr. Penner pointed out, by a plaintiff’s Rule 66 endorsement a defendant loses his/her right to a trial with a jury.

[13] Because the whole trial agenda timetable is completely out of whack, people will be inconvenienced whether or not the trial proceeds under Rule 66.

[14] Having considered this carefully, I am of the view that the purpose of the rule will be thwarted entirely if the application of the defendants is dismissed.  The interests of justice and fairness to the parties require that a plaintiff, who elects to proceed pursuant to Rule 66, must put its case in within 2 days, barring consent of the parties or reasonably unforeseeable circumstances arising since the trial agenda was filed and leave of the court.

[15] The defendants do not consent to the trial now continuing to completion, which I conclude will require at least 2 more days.  No reasonably unforeseen circumstances have emerged. The endorsement by the plaintiff is the plaintiff’s chance to proceed under Rule 66.  The manner in which the plaintiff has proceeded or the way the case has unfolded leads me to conclude that the case is inappropriate for Rule 66.

[16] In conclusion, pursuant to Rule 66(8), I order that Rule 66 ceases to apply to this action.  I declare a mistrial and order that the trial be placed on the trial list and that I am not seized.

As my readers know, Rule 66 is being abolished as of July 1, 2010, and is being replaced with a new Fast Track Rule known as Rule 15. Rule 15 appears to be mandatory for all personal injury claims with a trial time estimate of 3 days or less.  Like Rule 66 it limits time for discovery to 2 hours and takes away the parties right to a Jury Trial.

The rule relied on in the above case permitting a Court to remove a trial from the Fast Track remains in place under the New Rules and is reproduced at Rule 15-1(8).  Accordingly this case will likely continue to remain a useful precedent under the New Rules and lawyers and litigants themselves should be cautioned to err on the side of overestimating the length of their trials to avoid a result like this one.

The "New" New BC Supreme Court Civil Rules

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

Regular visitors to this site undoubtedly know that the New BC Supreme Court Civil Rules come into force on July 1, 2010.  These will effect every ICBC and other Personal Injury Claim prosecuted in the BC Supreme Court.
The rules are being tinkered with before they come into force and earlier this month the Lieutenant Governor in Council approved Order No. 243 which makes some changes to the New Rules of Court.  On quick review these appear to be very minor.  Kristina Oldenburg of the Courthouse libraries of BC was kind enough to provide me with a link to a PDF document containing the actual amendments.
It is rumoured that there may be a further transitional provision addressing expert witness reports commissioned under the current rules for cases that will go to trial under the new rules.  This would be a welcome development because many expert reports that comply with the current rules will not comly with the new rule addressing expert opinion evidence.  It is not an understatement to say that it will cost tens of millions of dollars to update all of these reports.  This seems like an unnecessary and fixable expense.
I will continue to address this topic as further changes are made to the New Rules.

Setting Aside an Unfair Settlement in an ICBC Injury Claim

Written by admin on . Posted in Settlement Law, Uncategorized. 58 Comments on Setting Aside an Unfair Settlement in an ICBC Injury Claim


As I’ve previously written, typically when an ICBC claim is settled and a “full and final release” is signed the agreement is binding and can’t be undone.
BC Courts can, however, set aside ‘grossly unfair‘ agreements.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dealing with this area of the law.
In today’s case (McIsaac v. McIsaac) the Plaintiff was injured in a single vehicle car crash.  Her husband was driving and was the at fault party.   The Plaintiff’s injuries were serious enough to require hospitalization.
In the months that followed the collision ICBC approached the Plaintiff on a number of occasions and eventually a settlement was reached to resolve her claims for $22,000.  The agreement was ‘somewhat low‘ given the severity of her injuries.  She regretted finalizing her claim and retained a lawyer.   She commenced a lawsuit and asked the settlement to be set aside.  ICBC argued that it was a binding contract and should not be undone.  Mr. Justice Wong agreed with ICBC but before dismissing the lawsuit the Court set out the following useful summary of the law:

[17] I agree with defendant’s counsel’s submission that there are two alternative tests to assess the validity of the settlement.  Also, to have a settlement set aside or voided, the insured must have been unfairly induced to accept the settlement or release, and that the settlement or release must also be grossly unfair or grossly inadequate.  Settlement and release of a claim may not be set aside where the parties are not on equal footing if the insurer can demonstrate that the settlement is fair and reasonable.

[18] There are two alternative tests to determine the validity of a settlement.  Whether, when the settlement is looked at in the light of the knowledge of the adjuster at the time the settlement was entered into, the bargain was fair, just and reasonable, and whether the transaction seen as a whole is not sufficiently divergent from community standards of commercial morality that it should be rescinded.  See McCullogh v. Hilton (1998) 63 B.C.L.R. (3d) 272 (B.C.C.A.) and see also Gindis v. Brisbourne (2000) 72 B.C.L.R. (3d) 19 (B.C.C.A.), particularly at paragraphs 42 to 44.

[19] A settlement with an unrepresented claimant will not necessarily be invalid simply because all of the symptoms stemming from any injuries have not been fully resolved.  Again, see McCullogh.

[20] There is no evidence that the injuries sustained by the plaintiff were, at the time of settlement, any worse than what was understood by the plaintiff and the adjuster, nor is there any evidence that the plaintiff’s injuries have become any worse since the settlement was entered into.

[21] Quite apart from any alleged inequality of bargaining power, the plaintiff and the adjuster had a complete picture of the plaintiff’s medical condition at the time of the settlement directly from the plaintiff’s medical caregivers.

[22] Clearly on the evidence, the plaintiff relied on and trusted the ICBC adjuster and their bargaining power were unequal, but the ultimate question is whether viewed objectively, the agreement was unconscionable and offended applicable standards of commercial morality.

[23] I am satisfied on the evidence that it cannot be said that the plaintiff was taken advantage of by ICBC.  The plaintiff, upon receiving the offer to settle at $22,000, could have consulted with a lawyer before accepting the offer, but for reasons of her own chose not to.

[24] Counsel for the plaintiff now submits the adjuster relied on outdated 12 to 18 year case law authorities as guidance on damage quantum range, and did not make any adjustment for interim inflation.  Be that as it may, the amount offered likely also factored in some discount for contributory negligence by the plaintiff in not being seat belted at the time of the accident.

[25] I might consider the amount settled by the parties in this case to be somewhat low, but taking into account all of the outlined factors related earlier, I cannot say the bargain struck was grossly unfair and unconscionable.  In order to maintain consistency and predictability in commercial transactions, public policy requires court enforcement of contracts not found to be unconscionable.

BC Court of Appeal Clarifies Discretionary Costs Awards in Fast Track Trials

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Uncategorized. 50 Comments on BC Court of Appeal Clarifies Discretionary Costs Awards in Fast Track Trials

As I’ve previously written, when a person wins in a lawsuit in the BC Supreme Court they are usually entitled to ‘costs‘.
The normal amount of costs a successful litigant is entitled to are set out in a tariff as an appendix to the Rules of Court (appendix B).  However, in fast track trials, the amount of costs a person is entitled to is capped under Rule 66.  A judge has discretion to waive this cap and award a litigant more.  Today, the BC Court of Appeal released reasons for judgement dealing with the extent of that discretion.
In today’s case (Majewska v. Partyka) the Plaintiff was injured in a 2007 BC car crash.  ICBC admitted that the driver was at fault.  The lawsuit focused on the value of the Plaintiff’s claim.  The Plaintiff made a formal offer to settle her case for $50,000.  ICBC made a formal offer for $25,000.  The trial judge ultimately awarded just over $62,000 in damages.
The Court went on to award the Plaintiff double costs under the ‘usual tariff‘.  ICBC argued that while the Court did have discretion to award costs above the capped amount set our in Rule 66(29) the Judge was wrong in awarding them under the ‘usual tarriff’ and should have used the limited amounts set out in Rule 66 as guidance for the increased costs award.  The BC Court of Appeal agreed and set out the following principles:
[29] Thus, Anderson established two principles. First, it confirmed that there is discretion to award costs beyond the limits in R. 66(29) if there are special circumstances. Second, where such an award is justified, it affirmed that costs should be calculated using those limits as reference points, rather than under the usual tariff…

[31] I appreciate that Anderson dealt only with a settlement offer, whereas there were additional special circumstances in this case. The trial had run for three and a half days, and there was an issue of some complexity. However, the approach in Anderson can easily be adapted to calculate costs for extra days of trial by adding a further $1,600 for each day, based on the present figures of $5,000 and $6,600 in R. 66(29). This was the approach used by Gerow J. in Park, where the R. 66 trial had taken three days.

[32] Using the amounts in R. 66(29) as a basis for awarding increased costs because the issues were complex is not as straightforward. I am persuaded, however, that theAnderson approach could be adapted effectively to accomplish this, again by using those amounts as the basis for calculations.

[33] This approach brings desirable consistency and predictability to costs awards following fast track litigation. The varied approaches that have developed under R. 66 have led to uncertainty with respect to both exposure to and recovery of costs under the rule. Having opted into the R. 66 process, fast track litigants should be able to reliably assess their potential costs liability or recovery in making decisions about the conduct of the case….

[37] I would conclude that the discretionary nature of R. 66(29) is circumscribed by the objectives of R. 66: to provide a speedier and less expensive process for relatively short trials. Those objectives are best served by awarding lump sum costs, calculated by reference to the amounts in R. 66(29).

[38] I acknowledge there may be situations that justify a departure from such costs. I anticipate these would be “exceptional” circumstances rather than “special” circumstances, and might include situations deserving of special costs or solicitor client costs, however, such matters must be left for another day.

[39] I would therefore allow the appeal, and calculate costs under R. 66(29) as follows. Under the present limits of $5,000 and $6,600 I take the pre-trial portion of costs to be $3,400, and $1,600 as representative of each day of trial. The plaintiff’s offer to settle was delivered only six days before trial. Thus, she is not entitled to double costs for trial preparation. She is, however, entitled to double costs for three and a half days of trial, calculated at $3,200 per day. Total costs are thus $14,600 ($3,400 plus $11,200) before disbursements and taxes.

Despite winning the appeal, the BCCA ordered that ICBC pay the Plaintiff’s costs of the appeal because this was a ‘test case‘ and but for that reason ICBC would not have proceeded with the appeal.  The Court stated as follows:

[42] In my view, an order that each party bear its own costs would not be appropriate. The amount in issue is not so significant that the parties would have undertaken the appeal of their own accord. Because the defendant’s insurer chose to use it as a test case, the plaintiff was put to the expense of responding to the appeal. The defendant’s late and unsuccessful attempt to raise a second ground of appeal increased that expense, as the plaintiff had to reply to the new ground as well. In Patterson v. Rankel (1998), 166 D.L.R. (4th) 574 (B.C.C.A.), Southin J.A. described the same insurer’s agreement to pay the plaintiff’s costs in a “test case” as “a very proper thing to do”, and ordered costs in those terms. I agree that is the appropriate result in such a case.

I should point out that Rule 66 is being taken off the books as of July 1, 2010 and being replaced with Rule 15.  However, today’s case ought to retain value as a precedent under the new rule because Rule 15-1(15) has language almost identical to Rule 66(29).

Back to Basics – BC Injury Trials and "Relevant" Evidence

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

If evidence is not relevant it is not admissible at trial.  So what exactly is relevant evidence in a personal injury lawsuit?  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, providing a concise and useful definition.
In today’s case (Beazley v. Suzuki Motor Corporation) the Plaintiff was injured while involved in a single vehicle accident involving a Geo Tracker.  The lawsuit focused on whether the Tracker was safely designed.   In support of her case the Plaintiff wished to put hundreds of documents into evidence.  The Defendants objected to some of these arguing that they were not relevant.
Mr. Justice Goepel went through the objections one by one and ruled that some of the documents were relevant and some were not.  Before reaching his decisions Mr. Justice Goepel provided the following useful definition of relevant evidence:

[15] To be admissible, evidence must be relevant to the facts in issue and not subject to exclusion under any other rule of law or policy.  Evidence is relevant “where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than the proposition would appear to be in the absence of that evidence” ( D.M. Paciocco & L. Stuesser, The Law of Evidence (Toronto: Irwin Law,1996) at 19).

[16] In a civil case, the facts in issue are established by the pleadings.  Evidence unrelated to the issues as disclosed in the pleadings is not admissible.

[17] Not all relevant evidence is admissible.  The court must also balance the cost to the trial the process of admitting the evidence.  The judge’s task was described by Sopinka J. in R. v. Mohan, [1994] 2 S.C.R. 9 at 20-21:

Relevance is a matter to be decided by a judge as question of law. Although prima facie admissible if so related to a fact in issue that it tends to establish it, that does not end the inquiry. This merely determines the logical relevance of the evidence. Other considerations enter into the decision as to admissibility. This further inquiry may be described as a cost benefit analysis, that is “whether its value is worth what it costs.” See McCormick on Evidence (3rd ed. 1984), at p. 544. Cost in this context is not used in its traditional economic sense but rather in terms of its impact on the trial process. Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability. While frequently considered as an aspect of legal relevance, the exclusion of logically relevant evidence on these grounds is more properly regarded as a general exclusionary rule (see Morris v. The Queen, [1983] 2 S.C.R. 190). Whether it is treated as an aspect of relevance or an exclusionary rule, the effect is the same.

[18] While the above passage was written in the context of the admissibility of expert evidence, the same principles must be considered in determining the admissibility of any form of evidence.