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Rule 68 Denied for Historic Personal Injury Case

Written by admin on . Posted in Civil Procedure, Uncategorized. 47 Comments on Rule 68 Denied for Historic Personal Injury Case

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, deciding whether a case that was filed before Rule 68 applied could later be brought into the scope of the Rule.
In today’s case (Sahota v. Sandulo) the Plaintiff sued as a result of personal injuries from a BC Car Crash.  The case was filed in New Westminster in 2005, a time when Rule 68 did not apply to that Court Registry.  The matter was set for Jury Trial.  As trial neared the Plaintiff brought an application to move the case into Rule 68 which would have a number of implications including getting rid of the defendants right to have the matter heard by a Jury.
Mr. Justice Holmes dismissed the application holding that “where an action is commenced before the introduction of Rule 68, the Court has no jurisdiction to make an order bringing the action within the Rule over the objection of one of the parties” In reaching this conclusion he agreed with the reasoning of Mr. Justice Macaulay in a case called Servos v. ICBC where the Court held as follows:

9          The plaintiff argues that any existing proceeding, regardless of the stage it is at, can be transferred into the pilot project if the parties consent.  In written argument, he says that the rule is silent on whether the court may order the transfer in the absence of consent and that, accordingly, the court has “the discretion to make any order, which it considers the circumstances require, particularly where it tends to prevent the misuse of the process”.  He does not suggest that the defendant is misusing the process in withholding consent in this case.  The plaintiff relies on Bell v. Wood, [1927] 1 W.W.R. 580 (B.C.S.C.), considered in MacMillan Bloedel Ltd. v. Galiano Conservancy Assn., [1994] B.C.J. No. 2477 (C.A.), for the proposition set out above.

10        With respect, I do not agree that the principle set out applies here.  In Bell, the court addressed its discretion to make orders regarding procedure as the circumstances may require “when the Rules are silent on the subject and especially when it tends to prevent misuse of the process” at (para. 6).  The particular question was whether an affidavit could be filed on an application for trial by jury when the rules were silent on the question.  MacMillan Bloedel addressed the court’s jurisdiction to permit the continuation of an examination for discovery on the issue of whether special costs should be ordered against a plaintiff that applied to discontinue the action five weeks before trial.

11        I read those decisions as affirming the court’s inherent jurisdiction to craft procedural rules when necessary because the rules do not anticipate the particular problem, but not as anything more.  Once a statute covers a matter, it is well understood that inherent jurisdiction cannot be relied on except to fill a functional gap or vacuum:  Unity Insurance Brokers (Windsor) Ltd. v. Unity Realty & Insurance Inc., [2005] O.J. No. 1069, 251 D.L.R. (4th) 368 (Ont. Div. Ct.).  It represents the reserve or fund of powers which the court may draw on as necessary when it is just or equitable to do so, but it is not unlimited and cannot be exercised contrary to any statutory provision. See Glover v. Minister of National Revenue (1980), 29 O.R. (2d) 392, 113 D.L.R. (3d) 161 (Ont. C.A.), aff’d [1981] 2 S.C.R. 561.

12        There is no gap in the present circumstances.  Rule 68 expressly requires the consent of the defendant.  It follows that my inherent jurisdiction does not extend to overriding the defendant’s lack of consent and directing the transfer of the proceeding into the pilot project.

This case will be a relatively short lived precedent, however, as Rule 68 is coming to an end as of July 1, 2010.  (Click here to read my previous post discussing Rule 68’s replacement with the New BC Supreme Court Civil Rule 15).

ICBC Injury Claims and the "Volenti" Defence

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Jury Trials, Uncategorized. 112 Comments on ICBC Injury Claims and the "Volenti" Defence

Volenti Non Fit Injuria is a Latin phrase which generally means that a plaintiff cannot sue a defendant where the Plaintiff has consented to or willingly accepted the risk of harm.   The Volenti Doctrine, when used successfully, can be a complete defence to a personal injury lawsuit.
The Volenti defence has been raised many times in ICBC Injury Claims where a passenger rides with a knowingly impaired driver who then loses control and injures the passenger.  Our Courts have severely limited the effectiveness of this defence over the years and reasons for judgement were released today demonstrating the difficulty is successfully arguing this defence.
In today’s case (Shariatmadari v. Ahmadi) the Plaintiff was severely injured when the driver of her vehicle lost control in Stanley Park, left the roadway and hit a tree.  The Defendant was drinking prior to losing control.  The claim went to Jury Trial and ICBC, on behalf of the Defendant, tried to raise the Volenti Defence.
Madam Justice Fenlon refused to put the defence to the jury finding that the evidence required for the defence to succeed was not present in the case at hand.  In coming to this conclusion she summarize the Volenti Defence in impaired driving cases and applied it as follows:

[3] The third party, Insurance Corporation of British Columbia (“ICBC”), who is defending this case on behalf of the deceased driver, wished to lead evidence of excessive drinking by the plaintiff, defendant, and mutual friends several nights a week for some time prior to the accident. ICBC also sought to lead evidence of the plaintiff occasionally driving following such evenings or letting the defendant drive her vehicle. They argued that this evidence, in conjunction with the fact that the plaintiff and defendant had a close personal relationship and were both driving impaired before the accident, will support a finding by the jury of a tacit agreement between the parties to assume any risk that might arise in relation to such driving – a finding which would support the defence of volenti non fit injuria.

[4] Counsel for the plaintiff offered to have the plaintiff testify on a voir dire to permit counsel for ICBC to argue the appropriateness of putting the volenti defence to the jury based on the actual evidence that could be elicited from the plaintiff. The third party was of the view, with which I agreed, that they could argue the appropriateness of putting the defence ofvolenti non fit injuria to the jury based on their “best case scenario”. I heard argument on that basis.

[5] Counsel for ICBC candidly acknowledged that in cases involving a plaintiff riding with an impaired driver, volenti is a difficult defence to prove in light of recent cases on the issue. In Hall v. Hebert, [1993] 2 S.C.R. 159 at 207, 101 D.L.R. (4th) 129, Cory J. in concurring reasons noted that the maxim volenti non fit injuria “stands for the proposition that no injury is done to one who consents.”  He stated the following at 207-208:

In order for the doctrine of volenti to apply, there must be either an express or implied assumption of the risk of the activity which caused the damage. That is to say, both parties to the activity must have agreed that they would participate in it regardless of the risk of injury and give up their right to sue should injury occur as a result of the agreed upon activity. It must be observed that the consent goes to the legal as opposed to the physical risk of harm (see Lehnert v. Stein, [1963] S.C.R. 38).

…

The volenti defence acts as a complete bar to recovery. Although it has not been the subject of legislation, it has been very severely limited in its application. Perhaps the judicial limitation was well merited in light of the harsh academic criticism of the defence. See Prosser, supra, at p. 454. Before it can operate as a defence, the plaintiff must not only consent to accept the risk of harm but also must bargain away his or her right to sue for injuries that may result from the dangerous activity. The doctrine will only be applied where it can truly be said that there is an understanding on the part of both parties that the defendant assumed no responsibility to take care for the safety of the plaintiff and the plaintiff did not expect him or her to do so. Clearly, the volenti defence will only be applicable in a narrow range of cases.

[6] In Joe v. Paradis, 2008 BCCA 57, 290 D.L.R. (4th) 556, the plaintiff had persuaded the defendant to drive him to a pub to obtain beer. Both parties were heavily intoxicated and the defendant drove off the road, injuring the plaintiff. The plaintiff’s action for damages was dismissed by a jury on the basis of the volenti defence. The issue before the British Columbia Court of Appeal was whether the defence of volenti non fit injuria should have been put to the jury. At para. 13, Mackenzie J.A. writing for the Court said:

[13]      There is no evidence of any express agreement between Mr. Joe and Mr. Paradis to absolve the latter from legal liability for negligent driving. The first issue is whether there was evidence from which a properly instructed jury could find an implied agreement to that effect. The first and third issues are inter-related: if there was no evidence to support the defence, the jury verdict is unsupported by evidence and therefore perverse.

[7] He noted further at paras. 16-22:

[16]      Commentators are generally critical of the volenti doctrine, particularly its application to passengers in motor vehicle accident cases: see, for example, G.H.L. Fridman,The Law of Torts in Canada, 2nd ed. (Toronto: Carswell, 2002); Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: Butterworths, 2002); Lewis N. Klar, Tort Law, 3rd ed. (Toronto: Carswell, 2003); John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998); and Clerk & Lindsell on Torts, 19th ed. (London: Sweet & Maxwell, 2006). Clerk & Lindsell on Torts points out that volenti’s complete bar to recovery is inconsistent with comparative negligence statutes which allow the apportionment of responsibility and “a more finely adjusted justice between parties” (at §3-103). Professor Klar observes that the nominal standard of an implied waiver of legal liability will rarely be met, if taken seriously. He adds: “It is not realistic to impose this implied agreement upon parties who are frequently unaware of the legal niceties surrounding these types of events, and who are not deliberating upon the physical or legal risks of dangerous conduct” (at 482). It would be hard to find parties who better fit Professor Klar’s description than Mr. Joe and Mr. Paradis.

…

[20]      Interjecting the volenti defence short circuits the process and invites the jury to use the defence as a subterfuge to assign all responsibility for the accident to Mr. Joe notwithstanding that the theoretical basis of the doctrine, an implied agreement to waive legal liability, may be unsupported by the evidence. Unless the courts are prepared to condone the manipulation of the volenti doctrine to avoid the comparative fault regime of the Negligence Act, volenti should not be invoked unless there is evidence that the parties put their minds to the question of legal liability and expressly or tacitly made an agreement to waive liability that could be supported on basic contract law principles.

[21]      The weight of Supreme Court of Canada jurisprudence and the critical commentaries support restricting the doctrine to cases where an agreement can be supported by the evidence. This case was not one of them.

[22]      The question left with the jury failed to clearly distinguish between the physical and legal risk of harm. The judge’s charge attempted to explain the distinction, but essentially in a vacuum as to evidence supporting acceptance of the legal risk of injury in contrast to the physical risk. Voluntary acceptance of the physical risk without acceptance of the legal risk is a contributory negligence issue and not volenti. [Emphasis added]

[8] In my view, even assuming the defendant’s best case scenario on the evidence elicited at trial, there is no evidence to support the plaintiff’s waiver of her legal right to sue for injuries, as distinct from evidence to support a willingness to assume the risk of injury itself. There is no evidence that the plaintiff and defendant turned their minds to the question of legal liability, and either expressly or tacitly made an agreement to waive liability that could be supported on basic contract law principles.

[9] In conclusion on this point, there is no evidence to support the defence of volenti; therefore that defence should not be put to the jury.

The Court did, however, go on to permit the Jury to hear evidence of the Plaintiff’s level of intoxication finding that “ here the evidence establishes that the plaintiff and defendant were together drinking over the evening and consuming roughly the same number of drinks (the evidence in this case), the level of the plaintiff’s intoxication is also relevant to her awareness of how intoxicated the defendant was at the time she let him drive her car.”.  Madam Justice Fenlon held this evidence was relevant in deciding whether the Plaintiff was ‘contributorily negligent‘ for riding as a passenger with a driver who had been drinking.

Jury Instructions For ICBC Injury Claims With Multiple Years of Past Wage Loss

Written by admin on . Posted in Civil Procedure, ICBC Wage Loss, Jury Trials, Uncategorized. 47 Comments on Jury Instructions For ICBC Injury Claims With Multiple Years of Past Wage Loss

If you have an ICBC Injury Claim heading for a Jury Trial reasons for judgement were released today demonstrating an effective ‘charge‘ to the Jury where multiple years of past income loss are at issue.
Section 98 of the BC Insurance (Vehicle) Act limits past income loss awards to ‘net’ income loss in negligence claims stemming from BC motor vehicle collisions (Click here to read my previous post on this topic for some background).   This limitation in law can significantly reduce a Plaintiff’s damages in a BC Injury Claim and reasons for judgement were released today demonstrating this.
In today’s case (Wittenberg v. Ellis) the Plaintiff sued for damages as a result of a 2005 car crash.  After a jury trial damages of over $2 Million dollars were awarded which included an award for $1,420,000 in past income loss.  The court was asked to make the appropriate deduction under s. 98 of the Insurance (Vehicle) Act and ultimately decided that the past wage loss had to be reduced by $594,774 in order to comply with the legislation.
In a recent case by the BC Court of Appeal (Lines v. Gordon) the Court clarified how past income awards by juries will be taxed to comply with section 98.  Specifically the Court of Appeal held that “There will be a wide variety of circumstances facing trial judges.  In each case, the trial judge will have to decide whether it is appropriate in the circumstances before him or her to calculate net income loss on the basis of one period, calendar-year periods or other multiple periods.  In making a decision in this regard, the trial judge should consider all of the circumstances and apply s. 98 in a manner that is most consistent with the principles of damage assessment to which I have referred. ”
Today’s case demonstrates keen trial skills by the Plaintiff’s lawyer as he asked the judge to instruct the Jury to focus on the claimed income loss on a year by year basis.  The Jury did indeed award damages on a year by year basis.  As a result Madam Justice Boyd was able to assess the income tax consequences for each year.  If the Plaintiff’s lawyer was not savvy enough to get this instruction the Jury could have awarded the past income loss as a lump sum and the award could have been taxed as if the money was all earned in one tax year.  This would have resulted in a significantly greater reduction for the Plaintiff.
This case also addressed whether a personal plaintiff can use a corporate tax rate when there is evidence that the past income claimed would have been earned through a corporation.  Madam Justice Boyd held that s. 98 does not permit this and Plaintiff’s need to have past income taxed based on personal tax rates, specifically she held as follows:

[39] I agree with the defence submission that this is the exact result which would occur if the plaintiff at bar is permitted to rely on a corporate tax rate for the bulk of his income loss award.  Like the RRSP deduction, corporate tax rates offer the deferral of the personal tax burden, but only until the owner/shareholder withdraws the corporate funds for personal use, at which time personal income tax must be paid on the funds.  As the award for net income loss will be paid to Mr. Wittenberg and not to his corporation, in effect, it will be as if earnings had been withdrawn from the corporation and taken into Mr. Wittenberg’s personal income.

[40] Permitting the plaintiff to rely on corporate tax rates for part of his income loss award in this case would enable him to avoid entirely his statutory obligation to pay personal income tax rates on personal income theoretically drawn from the corporation.  The result would be over-compensation.  Such an outcome would consequently place Mr. Wittenberg in a better position than he would have been in if he had not been injured.  In my view, this result is impermissible under the Insurance (Vehicle) Act, income tax legislation, and the general principles of damage assessment noted above.

[41] The correct approach is for the jury award for past income loss to be taxed at the personal income tax rate, as required by s. 95 of the Act.

Scope of Neuropsychological Evidence in BC Brain Injury Cases Discussed

Written by admin on . Posted in Civil Procedure, ICBC Brain Injury Cases, Uncategorized.


Reasons for judgement were published today on the BC Supreme Court website dealing with the scope of permissible neuropsychological opinion evidence in BC Brain Injury Cases.
When ICBC or other BC brain injury cases go to trial a neuropsychologist is a common type of expert witness called by both Plaintiff and Defence Lawyers.  Neuropsychologists are extensively trained with respect to the cognitive and behavioural consequences of brain injuries and for this reason their evidence is often vital in the prosecution of brain injury claims.
In today’s case (Meghji v. Lee) the Plaintiff alleged she suffered a traumatic brain injury.  In support of her case the Plaintiff sought to have a neuropsychologist give opinion evidence with respect to the cognitive and behavioural sequelae of brain injuries and also with respect to whether the Plaintiff suffered from organic tissue to her brain.  The Defence lawyer objected claiming the latter opinion is outside of the scope of a neuropsycholgists permissible expert opinion.  Mr. Justice Johnston agreed with the defence objection and summarized and applied the law as follows:

[27] Counsel for the plaintiff wants Dr. Malcolm to be permitted to give an opinion on whether Ms. Meghji has had an injury to her brain. I looked briefly at Dr. Malcolm’s written reports, and in his first report, the one of February 1, 2007, Dr. Malcolm provides an overview of the place of psychometric testing in his overall task in this way. He says:

Once the test results are determined to reflect the person’s neuropsychological status with acceptable accuracy, the question remains as to whether clinically significant test results reflect organic damage, or stem from other factors, such as psychological causes. The neuropsychological process considers all of these possibilities in reaching diagnostic conclusions. The conclusions reached are based on a balance of probability, the strength of which is indicated where possible.

[28] At the risk of appearing to be overly semantic about this analysis, I take it that what counsel want Dr. Malcolm to be able to do is to testify by way of opinion about whether or not there has been some form of harm or damage to the tissues of the brain of Ms. Meghji as opposed to some form of harm or damage to the mind or emotions or personality of Ms. Meghji. Whether there is a distinction between the brain as an organ of the body, on the one hand, and the mind and personality of the person in whose body the brain is found, on the other, is a metaphysical question that I hope I never have to answer in a court of law. I am going to confine myself to what I think is in issue, and that is Dr. Malcolm’s qualifications as a neuropsychological and whether they permit him to provide the ready-made inference through opinion on whether there has been physical harm or damage to the brain as an organ of the body, and in my view, they do not.

[29] The statutory regime does not, in my view, go any further than to allow testing, assessment, diagnosis of, and therefore opinions on the abilities, aptitudes, interests, et cetera, or the behaviour, emotional, or mental disorders, that is, disorders of the mind. These conditions may arise with or without damage to the structure or tissues of the brain. They may be associated with or flow from injury or damage to the brain itself. They may arise from or flow from other causes. It does not necessarily follow that because Dr. Malcolm is permitted by statute to test, assess, or diagnose behavioural, emotional, or mental disorder that he must therefore be permitted to give in evidence his opinion that the cause of any of these conditions stems from an injury to the tissues or structures of the brain.

[30] In my view, Dr. Malcolm’s qualifications do not go so far as to permit that opinion.

[31] That does not say that Dr. Malcolm cannot give, in evidence, his opinion based upon the results of his testing, nor does it prevent Dr. Malcolm from giving an opinion on whether the test results as evaluated by him are of a nature, kind, or quality seen in people who have been diagnosed as having had organic brain injuries.

[32] In my view, the distinction drawn by Mr. Justice Clancy in Knight remains appropriate, and that is, Dr. Malcolm is qualified to give his opinion on the cognitive and behavioural sequelae of brain injuries and to indicate the relative likelihood of any cognitive and behavioural abnormalities being the consequence of a traumatic brain injury, but to paraphrase Mr. Justice Clancy, it does not permit him, that is, Dr. Malcolm, to diagnose physical injury and the manner in which it was incurred.

[33] It therefore follows that Dr. Malcolm will not be permitted to give his opinion on whether Ms. Meghji has had an injury to the tissues of her brain or, obviously, as to the cause of any such injury, but he will be permitted to testify as I have indicated.

$45,000 Non-Pecuniary Damages for Soft Tissue Injury of Foot

Written by admin on . Posted in ICBC Foot Injury Cases. 45 Comments on $45,000 Non-Pecuniary Damages for Soft Tissue Injury of Foot

Reasons for judgement were released today (Lutz v. Lim) awarding a Plaintiff just over $64,000 in total damages as a result of 2 BC motor vehicle collisions.
Fault was admitted for both crashes leaving the court to deal with the issue of damages.  The Plaintiff suffered a complicated soft tissue injury to his right foot as a result of the first crash.  The Plaintiff’s doctors gave the following opinion with respect to the Plaintiff’s foot injury:
In summary, Mr. Lutz continues to experience significant pain in his right foot, in spite of orthotics and custom-made workboots. He is able to function at work but finds that, after he has been on his feet for more than two hours at a time, the pain in his foot increases. I believe he has a permanent partial disability as a result of the initial motor vehicle accident of April 26th, 2005, when a car ran over his right foot….

Because of the change of foot position, the increased metatarsalgia, and the swelling that occurred around the time of the accident, I think that the accident has given him significant change in his foot shape and deterioration in his foot function as it existed prior to this point.

I think, with regard to the future, he will require custom orthotics and shoes to maintain his employment…

I also think that this would help him improve his recreational activities.

I think that there will be ongoing disability from this injury. He is unlikely to be able to take employment that requires a greater degree of loading of the forefoot than he presently has. His job is well-suited to his various musculoskeletal injuries, but if he has to take part in a job that requires a greater degree of physical activity, I suspect that his foot will become the most rate-limiting area. Therefore, a job more strenuous than he presently has would be inappropriate unless further reconstructive surgery was done to his foot.

In awarding the Plaintiff $45,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for his foot injury Mr. Justice Verhoeven summarized the severity of the injury and the effects on the Plaintiff’s life as follows:

[101] Doing the best I can on the evidence, I conclude that the plaintiff has suffered a substantial amount of damage to his foot in the MVA. I conclude, as well, that the MVA has caused a permanent disability in his foot. I conclude that the risk of surgery being required is caused by the MVA injuries. On the evidence, I am unable to find that there was a measurable risk of surgery being required prior to the MVA injuries….

[110] In my view, and adopting the language used by Major J. in Athey v. Leonati, the plaintiff’s foot injury is more in the nature of a “thin skull” case than it is of a “crumbling skull”. The plaintiff’s prior foot injury left him vulnerable to future injury. There is little more than speculation to suggest that his current complaints and his ongoing need for treatment would have or might have occurred in any event. There is therefore insufficient evidence to allow me to reduce the award based upon such a contingency…

[124] In summary, the plaintiff now has had foot pain steadily for the past four-and-a-half years. He has a permanent partial disability with ongoing discomfort in relation to the foot. There is some restriction on his work activities, although he has not made a claim for loss of earnings or earning capacity. He was 38 years of age at the time of the first MVA. He is now 42. There is a significant risk of surgery being required as a result of the accident injury. Although he has not lost any time from work and for the most part he has carried on with his pre-MVA activities, I take into account his stoical nature. He has had to wear orthotics in his footwear and this will continue indefinitely. He suffered a minor injury to the right hand as well.

[125] I accept the submission of plaintiff’s counsel that an appropriate compensation for non-pecuniary loss arising out of MVA No. 1 is $45,000.

Self Represented Litigant Awarded $30,000 Non-Pecuniary Damages for Neck and Back Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding just under $50,000 in total damages for injuries and loss from a 1999 motor vehicle collision.
In today’s case (Foo v. Masardijian) the Plaintiff was involved in a rear-end crash on April 27, 1999.  Fault was admitted by the rear motorist.  The trial involved an assessment of damages.
The Plaintiff represented himself.  He was seeking “an award of one-half to one million dollars“.  He sought this figure apparently on the basis that his accident related injuries were ongoing by the time of trial.  This was rejected by the Court which held that some of the Plaintiff’s perceptions about his injuries were “completely mistaken“.
Madam Justice Baker had issues with respect to the Plaintiff’s reliability as a witness as he testified to a series of post accident events which were “sufficiently bizarre and inherently improbably to cast doubt on the accuracy of (the Plaintiff’s) perceptions.”
Ultimately Madam Justice Baker awarded the Plaintiff $18,000 for past loss of income and $30,000 for his non-pecuniary damages.  In justifying this figure the Court summarize the Plaintiff’s accident related injuries as follows:

54] Mr. Foo did experience pain and discomfort, particularly in the first 18 months following the accident and some intermittent neck and lower back pain after that time.  Although I am not persuaded that the disability perceived by Mr. Foo after September 2000 can fairly be attributed to the accident injuries, Mr. Foo did experience discomfort and some degree of disability for a period of about 18 months with some lingering intermittent symptoms after that time.

[55] It does not appear that Mr. Foo engaged in many recreational activities before the motor vehicle accident as he was working 7 days a week in his restaurant.  He did testify that driving long distances caused some discomfort and this applied to driving to Seattle on some Saturday afternoons to attend a Buddhist temple there.  Mr. Foo eventually began attending a temple in the Lower Mainland where he now volunteers at least one day a week as a cook.

[56] This case does have some unique aspects, as Mr. Foo has developed certain perceptions about his injuries and about certain treatment he has received that I am persuaded are completely mistaken.  I am not satisfied that the defendant can be held to be responsible for these mistaken perceptions and therefore include no compensation for the injuries or slights Mr. Foo believes were visited upon him by the defendant’s insurer.

[57] Considering all of the circumstances, I award Mr. Foo the sum of $30,000 for damages for pain, discomfort and loss of enjoyment of life.

BC Supreme Court Confirms Mandatory Nature of Rule 68

Written by admin on . Posted in Civil Procedure, Uncategorized. 56 Comments on BC Supreme Court Confirms Mandatory Nature of Rule 68

Further to my previous posts on this topic reasons for judgement were released today by the BC Supreme Court, Vancouver Registry discussing the mandatory nature of Rule 68,
Although previous cases have addressed this point, today’s case is important because it is the first such case that I am aware of from a BC Supreme Court Judge (the previous cases were decisions of Masters).
In today’s case (Berenjian v. Primus) the Plaintiff sued for injuries as a  result of a BC Car Crash.  The claim was set for trial in December, 2009.  The Defendants set the matter for Jury Trial.  The Plaintiff then brought a m motion to move the case into Rule 68 which would have the effect, amongst others, of eliminating the possibility of trial by Jury.
The Plaintiff pointed to the fact that this case was worth less than $100,000 and argued that Rule 68 was mandatory.  The Defendants opposed the motion.  After hearing submissions Mr. Justice Punnett agreed with the Plaintiff and held as follows:
[22] Subrule (9) contemplates an action becoming an expedited action after it has been commenced…

[35] I do not agree that Rule 68 cannot be invoked once the pleadings are closed. If the rule is mandatory then the logic of Rule 68(7) is consistent. That is, the rule is a mandatory rule and, as such, no provision is required for the court to order that the rule does apply to a particular action. However, because it is mandatory, a provision was needed to remove actions from the rule.  The absence of the endorsement is simply an irregularity in actions which meet the criteria of Rule 68(2).

[36]         In my view Rule 68 places no time limit for it to be brought into play…

[45]         As noted above the principal of proportionality pervades Rule 68. Rule 68(13) requires that “[i]n considering any application under this rule, the court must consider what is reasonable in relation to the amount at issue in the action” (emphasis added).

[46]         As in Uribe, a jury trial is pending. Given the amount involved (and the defendants do not allege that the claim is worth an amount over $100,000), I am of the opinion that the matter should proceed under Rule 68. It is not reasonable that a claim in the range of $25,000 should proceed to a jury trial for the reasons noted earlier in Uribe. To do so would defeat the purpose of Rule 68.

[47]         Neither party has brought an application under Rule 68(7) for an order that Rule 68 does not apply. The plaintiff seeks an order transferring the proceeding to Rule 68. The defendants oppose that application. Given the mandatory nature of Rule 68, the question of whose obligation it is to bring the action formally under the rule raises an interesting issue that may well have relevance to any claim for costs arising from the late date of this application.

[48]         The plaintiff’s application is granted. There will be an order allowing for the the style of cause to be amended to read “Subject to Rule 68”. The trial currently set for December 7, 2009, shall proceed under Rule 68 without a jury. The plaintiff has tendered two expert reports pursuant to Rule 40A and the defendants one expert report. The parties have leave to call a total of three expert witnesses, namely  Dr. Wright, Dr. Mamacos and Dr. Leith.

This interpretation will likely remain good law under the New BC Supreme Court Rule 15 (the fast track rule which comes into force on July 1, 2010) as it also incorporates principles of proportionality, has the same mandatory tone of language and contemplates actions commenced outside of the fast track be brought into the fast track by filing :”a notice of fast track action” as contemplated by Rule 15-1(2).

Purpose of Rule 37B in Injury Litigation Discussed

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

(Update: December 14, 2011 – the below decision was modified somewhat by the BC Court of Appeal in reasons for judgement released today)
____________________________________
Precedents with respect to costs consequences under Rule 37B are still developing as this rule is slowly being molded into place.  The one clear pattern under Rule 37B is that of varying results which is a welcome relief from the strict and sometimes harsh costs results that flowed to litigants who could not beat a formal offer under the old Rule 37.
Today, reasons for judgement were released by the BC Supreme Court, Vancouver Registry, discussing the purpose of Rule 37B in Personal Injury Litigation.
In today’s case (Fan v. Chana) the Plaintiff sued as a result of alleged disability flowing from a motor vehicle collision which occurred in 2000.  The Plaintiff’s claims were largely rejected at trial with Mr. Justice McEwan finding that the crash caused nothing more than an “unexceptional soft-tissue injury” and that the litigaiton was “driven largely by parents…and a series of medical interventions premised on their representations, which were significantly at odds with certain basic information“.  In the end Mr. Justice McEwan awarded the Plaintiff just over $31,000 in damages.  (click here to read my blog post on the trial judgement)
Before trial the Defendant made a formal offer of $75,000 plus costs.  Since the Defendant beat their formal offer they brought an application for costs under Rule 37B.  Illustrating just how expensive personal injury litigation can be the Plaintiff’s costs and disbursements totaled over $85,000 and the Defendants totaled over $43,000.
In making a rather conventional award giving the Plaintiff most of her costs and disbursements up to the time of the formal offer and awarding the Defendant their costs and the disbursements from the time of the offer forward Mr. Justice McEwan made the following useful observations about Rule 37B:

[14] I agree that it is very difficult to see how the plaintiff’s guardian ad litem could have accepted the offer given the medical evidence at hand.  I doubt that the public trustee would have considered it prudent.  Nor do I see how a pre-trial judge could have made a sensible suggestion without hearing the evidence.

[15] The circumstances of this case illuminate a difficulty that arises with some kinds of personal injury cases.  Those with evident injuries and predictable consequences can usually be located within a range that allows for informed discussion.  Some soft tissue injuries, however, sometimes take a course that includes poorly founded medical opinions that seem to verify claimants’ beliefs that they have been seriously harmed.

[16] I have observed in other cases that it is not part of doctors’ function to cross-examine their patients.  On the other hand, I do not think it asks too much of medical professionals who know their reports are going to be used in forensic contexts, that matters that can be verified by objective evidence be verified.  The cogency of medical reports erodes pretty quickly when, for example, someone who plays on the school basketball team is otherwise described as seriously limited in his or her physical capacities.  There were several examples of such difficulties in this case.

[17] It is disturbing to find that a matter has come to trial on a costly series of opinions, founded on premises that a rudimentary effort at fact checking would reveal to be dubious.  It is not asking experts to trespass the fact-finding responsibilities of the court to ask that they take some responsibility for the soundness of the premises on which they proceed.  It may be that disbursements for such reports ought to be more carefully scrutinized for value, when bills of costs are taxed.

[18] Rule 37B is relatively recent.  I do not say new, because it amounts to a restoration of a broad discretion which had been curtailed by a series of rules amendments, the last of which occurred in 1999.  Even then, the court retained its inherent jurisdiction until that was essentially eliminated with respect to costs by appellate rulings (see: Cridge v. Harper Grey Easton, 2005 BCCA 33, 37 B.C.L.R. (4th) 62; Bedwell v. McGill, 2008 BCCA 526. The results were sometimes hard on parties who had guessed wrongly about their claims. The recent history of the costs rule is briefly, and helpfully, set out by Goepel J., in A.E. v. D.W.J., 2009 BCSC 505.

[19] The reintroduction of judicial discretion in costs certainly serves the ends of justice. Costs should be a penalty for unreasonable conduct in the litigation, not a penalty for failing to guess the outcome. In this regard, Courts must, I think, extend some leeway to litigants holding honest but, ultimately, mistaken views of their claims. It is generally better that such expectations be disposed of at law, rather than discouraged.  The public should not be given the impression that there is no reasonable access to a legal resolution.  It must be recognized that some people will only be comfortable if they “hear it from the judge.” This should be a valid option for those who seek it, not a form of deemed unreasonableness.  As such, inducements to settle, and to avail oneself of alternate dispute resolution, ought to complement rather than obstruct judicial determinations…

[21] The obstacle to the acceptance of a reasonable settlement offer in this case was clearly a belief that, by the alchemy of endorsement by experts, a set of facts that was or should have been assessed as dubious would be accepted by the trier of fact.

[22] These factual weaknesses should have been evident by the time the offer was made, but by then, a great deal had been invested in medical and other reports.  It seems likely that that investment contributed to an unreal expectation on the part of the plaintiff’s guardian.

[23] I am of the view that the fairest disposition of costs in the circumstances is to allow the plaintiff’s costs and disbursements to the date of the offer, and the defendant, its costs and disbursements thereafter, with the exception that I would disallow from the plaintiff’s disbursements the reports of Dr. Hahn, and the disallowed report of Dr. Kuttner.  Dr. Kuttner’s report was not proper opinion evidence.  Dr. Hahn’s reports should not be disbursements that the defendants should pay either before or after the tender of the offer to settle.

Joining 2 Separate ICBC Claims for Trial at the Same Time

Written by admin on . Posted in Civil Procedure, Uncategorized. 123 Comments on Joining 2 Separate ICBC Claims for Trial at the Same Time

If you are involved in 2 separate car accidents and start 2 separate Injury Claims in the BC Supreme Court is it possible to have the trials heard at the same time?
The answer is yes and such applications are governed by BC Supreme Court Rule 5(8) which states that “proceedings may be consolidated at any time by order of the court or may be ordered to be tried at the same time or on the same day“.
Today reasons for judgement were released by the BC Supreme Court (Miclash v. Yan) considering an application under Rule 5(8).  In granting the Plaintiff’s request to have multiple claims heard at the same time Master Keighley concisely set out the principles to be considered in these applications.  The Court summarized the law as follows:

[15] The application is brought pursuant to Rule 5(8) of the Rules of Court…

[16] The order sought is discretionary.

[17] Exercise of this discretion is governed by the principles set out in the decision of Master Kirkpatrick, as she then was, in the case of Merritt v. Imasco Enterprises Inc. (1992), 2 C.P.C. (3d) 275 at para. 18 and 19:

18.       None of the submissions of counsel address the real issue to be determined. That is, are the issues raised by the pleadings sufficiently similar to warrant the order sought and will the order make sense in the circumstances? An application to have actions tried at the same time thus requires an examination of circumstances which may be of a more general nature than is made under R. 27 or 19.

19.       I accept that the foundation of an application under R. 5(8) is, indeed, disclosed by the pleadings. The examination of the pleadings will answer the first question to be addressed: do common claims, disputes and relationships exist between the parties? But the next question which one must ask is: are they “so interwoven as to make separate trials at different times before different judges undesirable and fraught with problems and economic expense”? Webster v. Webster (1979), 12 B.C.L.R. 172 at 182, 10 R.F.L. (2d) 148, 101 D.L.R. (3d) 248 (C.A.). That second question cannot, in my respectful view, be determined solely by reference to the pleadings. Reference must also be made to matters disclosed outside the pleadings:

(1)        Will the order sought create a saving in pre-trial procedures, (in particular, pre-trial conferences)?;

(2)        Will there be a real reduction in the number of trial days taken up by the trials being heard at the same time?;

(3)        What is the potential for a party to be seriously inconvenienced by being required to attend a trial in which that party may have only a marginal interest?; and

(4)        Will there be a real saving in experts’ time and witness fees?

This is in no way intended to be an exhaustive list. It merely sets out some of the factors which, it seems to me, ought to be weighed before making an order under R. 5(8).

[18] To these considerations, Master Joyce, as he then was, added two more in the case of Shah v. Bakken, [1996] B.C.J. No. 2836, 20 B.C.L.R. (3d) 393, at para. 15:

Other factors which in my view can be added to the foregoing list are:

(5)  Is one of the actions at a more advanced stage than the other? See: Forestral Automation Ltd. v. RMS Industrial Controls Inc. et al. (No.2), unreported, March 6, 1978, No. C765633/76, Vancouver (B.C.S.C.).

(6)  Will the order result a delay of the trial of one of the actions and, if so, does any prejudice which a party may suffer as a result of that delay outweigh the potential benefits which a combined trial might otherwise have?

In my continued effort to cross reference civil procedure cases with the new BC Supreme Court Rules which will take effect on July 1, 2010 Rule 5(8) is replicated in full under the New Rules and can be found at Rule 22-5(8).  Accordingly, the principles set out above will likely continue to be useful in considering similar applications once the new rules come into force.

More on ICBC Injury Claims and Pre Trial Discovery – XFD's and Requests for Particulars

Written by admin on . Posted in Civil Procedure. 1 Comment on More on ICBC Injury Claims and Pre Trial Discovery – XFD's and Requests for Particulars

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry dealing with 2 types of pre-trial discovery procedures utilized in the Supreme Court, the scope of examination for discovery questions and requests for particulars.
In today’s case (Gulamani v. Chandra) the Plaintiff alleged injury from 2 motor vehicle collisions some 10 years apart.  The Defendant put together a rather ‘boilerplate’ statement of defence which alleged, amongst other things that the Plaintiff was injured in previous and/or subsequent incidents, that the Plaintiff failed to follow medical advice, that the Plaintiff failed to take appropriate medications and that the plaintiff  did not return to work when she reasonably could have.
The Plaintiff’s lawyer brought an application that the Defence lawyer provide better particulars of these allegations (these types of boilerplate allegations are very typical in Statements of Defence filed in BC Personal Injury Actions).
In granting the Plaintiff’s request for further particulars Madam Justice Arnold-Bailey summarized and applied the law as follows:

[27] The court has the discretion, under Rule 19(16), to order a party to deliver better and further particulars of a matter stated in a pleading, provided that the party seeking that order has demanded them in writing from the other party, as required by Rule 19(17).

[28] It is clear from the case law that the decision to order particulars is extremely discretionary and heavily fact dependent.

[29] Considering the cases provided by counsel on this issue, my view is that the request for particulars is very similar to the previously granted request for further particulars made by counsel for the plaintiff of the Chandra defendants.  Here, as in that motion, what has been provided is so broadly worded and generic that it tells the plaintiff virtually nothing as to the true nature of the case she has to meet with regards to her alleged congenital defects or diseases prior to or post-accident, or regarding aspects of her alleged failure to mitigate.  Such broadly worded statements are particularly problematic in the present case because of the plaintiff’s extensive history of medical treatment over the past 12 years, since the injuries allegedly sustained in the first accident are said to overlap with the injuries sustained in the second accident with the defendant.

[30] I do not find the decisions in Fireside or Hoy provided by counsel for the defendant to be of assistance in this case.  While they are both examples of cases in which particulars were not ordered, they are both easily distinguishable from the case at bar.  Hoy deals with specifics on standard of care in a class action matter, where significant particulars had already been provided.  Fireside was a case where more than a generic particular had already been provided to the plaintiff.  In the case at bar there have been no particulars provided at all with regard to the broad claims contained in the statement of defence.

[31] The Court of Appeal clearly stated the function of particulars in Cansulex Ltd. v. Perry, [1982] B.C.J. No. 369 (C.A.) [Cansulex], where Lambert J.A., for the court, described their use at para. 15:

(1)        to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;

(2)        to prevent the other side from being taken by surprise at the trial;

(3)        to enable the other side to know what evidence they ought to be prepared with and to prepare for trial;

(4)        to limit the generality of the pleadings;

(5)        to limit and decide the issues to be tried, and as to which discovery is required; and

(6)        to tie the hands of the party so that he cannot without leave go into any matters not to be included.

[32] I now turn to the specific point set out in para. 15 of Cansulex that particulars are designed “to inform the other side of the nature of the case they have to meet”.  In my view, the statements made in the statement of defence are not sufficient to enable the plaintiff to know the case she must meet.

[33] Considering further the points contained in para. 15 of Cansulex, in this case I find that if further and better particulars are not provided by the defendant as to how to the plaintiff failed to mitigate her losses generally as claimed and with regards to her alleged failing to take reasonable steps to return to work, failing to follow medical advice and failing to follow exercise advice, then if there is any substance to these claims, it is likely she will be taken by surprise at trial.  The same may be said with regards to any other incidents or congenital defects or diseases that the defendant alleges caused the plaintiff’s injuries.

[34] I turn to additional points set out at para. 15 of Cansulex, requiring that the particulars must “enable the other side to know what evidence they ought to be prepared with and to prepare for trial”.  Based on what has been provided to date to the plaintiff, I do not see how proper trial preparation could be done.

[35] With regards to the further points from para. 15 of Cansulex regarding the purpose of particulars, “to limit and generality of pleadings” and “to limit and decide the issues to be tried”, once apprised of her alleged failure to mitigate the plaintiff will be able to take steps to collect the relevant evidence with regard to the specific failures or conduct alleged.  As indicated, the alleged overlap between the plaintiff’s injuries from the first accident in June 1997 to the alleged injuries from the second accident in July 2007, add considerable additional factual complexity.

[36] Regarding the final point in Cansulex at para. 15, that particulars serve to “tie the hands of the party so he cannot, without leave, go into any matters not included”, I find that there is considerable benefit to all parties in these actions to be tried together in the upcoming 30 day trial to properly identify and limit such claims.

[37] When considering an application for the delivery of further and better particulars, Bouck J. made a comment in Cominco Ltd. v. Westinghouse Can. Ltd. (1978), 6 B.C.L.R. 25 at 27 (S.C.). at paras. 7-8, which I consider to be relevant to the present application, namely:

Occasionally parties can get caught up in the fascination of the interlocutory process and lose sight of the fact that some day the matter must go to trial even though a “perfect” framework does not exist for its presentation.  Sometimes as well one side or the other is merely replying to the overzealousness of his opponent and motions or their opposition are meant to let one another know it will be a long hard fight.

I mean no criticism of counsel by these remarks.  They are honestly trying to pursue every recourse for the benefit of their respective clients.  That is their right and their duty.

[38] For these reasons the plaintiff’s application for further particulars is granted.

The second pre-trial procedure dealt with in today’s case was the scope of examination for discovery questions.  On examination the Plaintiff’s lawyer asked the Defendant to provide his cell phone records (to help prove or disprove that he was on the phone at the moment of impact), to provide the names of “liability and damage witnesses and contact information”.  In holding that these are proper discovery questions Madam Justice Arnold Bailey applied and summarize the law as follows:

[39] With respect to question (a) and the demand for cellular phone records, Rule 27(20) states that “a person to be examined for discovery… shall produce for inspection on the examination all documents in his or her possession or control not privileged, relating to the matters in question in the action”.

[40] Liability is at issue and the potential for the cellular phone records to indicate whether the defendant was using his phone at the time of the accident does exist.  Although not referred to any authorities by counsel, I note that there are several cases where cellular phone records have been referred to as to whether a person was using the cellular phone at the time of the accident.  One such case is Abay v. Keung, 2006 BCSC 1236, in which the plaintiff testified that the defendant had been using a cellular phone at the time of the accident, and the defendant denied doing so.  The defendant there had also refused to divulge his cellular phone records on examination for discovery.  There is no record of a demand being made for those records.  In that case, Cohen J. found, at para. 73, “although I find that the defendant had a cell phone in his vehicle, I cannot conclude that the defendant was talking on the cell phone at the time of the collision, as there is strongly conflicting evidence on this point”.  Cohen J. did not comment on the lack of records as affecting credibility or believability of the defendant.

[41] Conversely, in Zubko v. Ezaki, 2002 BCSC 1894, the defendant produced her cellular phone records to prove conclusively that she was not speaking on her phone at the time of the accident, as was alleged by the plaintiff.

[42] While I agree with the submission on behalf of the defendant that the phone records will not necessarily show with certainty whether the defendant was talking on the phone at the time of the accident, it seems that those records are within the scope of Rule 27(20) insofar as they relate to the matters in question in the action, namely liability for the motor vehicle accident.  It is entirely possible that the records will prove to have little weight at trial, but that is irrelevant to what is required by Rule 27(20).  Accordingly, I order the defendant to provide the answers to questions 68 – 71 of the examination for discovery, including providing his cell phone records for the day of the accident.

[43] With regard to question (b) and the names and contact information of liability and damage witness names, I agree with the reasoning in Sovani, at para. 3, where Paris J. held “Rule 27(22) means just what it says, namely, that the names and addresses of such persons must be disclosed if requested and the fact that a person’s knowledge relates only to the issue of damages does not safeguard the names from disclosure”.  Accordingly, I order the defendant to answer question 276 and as posed on p. 63 of the examination for discovery.

Lastly, since this is a case dealing with Civil Procedure, it is my practice to check if this case will remain a useful precedent when the new BC Supreme Court Civil Rules come into effect in July, 2010.  The answer is probably yes as the current Rule 19(16)(17) which the court relied on in its order for further particulars remains intact under the new rules and can be found at Rule 3-7(22).

With respect to the order addressing examinations for discovery, this case relied on Rule 27(20) which remains largely intact under the new Supreme Court Rules and can be found at Rule 7-2(16).  While the new rule seems to have some restrictions to it not present in the current rule the same result should arguably apply as the rule for production of relevant documents at the discovery will continue to apply to “a person for whose immediate benefit an action is..defended” as set out in Rule 7-2(6).