Tag: Jury Trials

I Want a Jury Trial, Wait a Minute, No I Don't

Reasons for judgement were transcribed yesterday and released on the BC Court’s website dealing with an interesting issue, specifically can a party who elected trial by jury change their mind once the trial starts.
In this case (Chapelski v. Bhatt) the Plaintiff was involved in a 2004 BC Car Crash.  In the course of the lawsuit the defence lawyer filed a Jury Notice and paid the Jury Fees.  On the first day of Trial the Jury was empaneled and the Plaintiff’s lawyer made his opening statement.  The next day the Defence Lawyer advised the Court that he intended to proceed with the trial without the Jury.
Mr. Justice Hinkson ruled that once the Jury was empanelled it was too late for the Defendant to re-elect the mode of trial to that of Judge alone and that the Defendant would have to continue to pay the Jury Fees for the duration of the trial.
Mr. Justice Hinkson’s reasoning was set out in paragraphs 17-20 which I reproduce below:

[17] The reference by Williams J. to Rule 39(26) is significant.  Based upon his reasoning, a party who has served a Notice Requiring Trial by Jury can elect not to proceed with that mode of trial at least until the required jury fees are paid.  But that reasoning does not address a point in time past the point of payment of the required fees.  The reasoning implies that once the point has been passed “the issue of whether a trial is going to be heard by a jury would be conclusively settled”.

[18] I do not take the reference by Williams J., to “late in the day”, to extend past the empanelment of the jury nor the commencement of trial, nor do I accept that it should.  Once empanelled, a civil jury are the triers of fact.

[19] I conclude that absent misconduct of a party, a witness, or a juror once a civil trial has begun without the consent of the opposing party, it is not open to a party who has filed a Notice Requiring Trial by Jury pay the required fees pursuant thereto and participate in the selection of the jury to opt out thereafter for trial by judge alone.

[20] To permit such a re-election smacks a forum shopping and cannot be permitted.  I need not and I do not decide if a jury on a civil trial can be discharged absent misconduct of a party, a witness, or a juror once a civil trial has begun even with the consent of all parties.

ICBC's Trial Policy Gets Judicial Attention

It used to be that when ICBC claims went to trial ICBC would only require the people they insure to participate at trial as necessary.  For example if fault was at issue the defendant would testify as to how the crash happened or if the Plaintiff seemed uninjured at the scene the Defendant would share his/her observations with the court.
More recently, ICBC has created a policy where the people they insure have to get extensively involved in the trial even if they have no vital role to play.   Reasons for judgement were released today by the BC Supreme Court discussing this ICBC trial policy.
In today’s case (Coates v. Marioni) the Plaintiff was injured 2006 car crash.  The at fault driver was insured by ICBC.  In the lawsuit the issue of fault was admitted leaving the court to only deal with the issue of the value of the ICBC claim.  The matter went to jury trial.  Just before trial ICBC made an offer to settle.  The Victoria jury returned a verdict just below ICBC’s formal settlement offer.  The trial judge was asked to decide what costs consequences should follow under Rule 37B since ICBC beat their formal offer (click here to read my previous posts about Rule 37B in ICBC Claims).
Madam Justice Gerow, who presided over this jury trial, refused to give the Defendant their costs despite beating their formal offer.  The Plaintiff was awarded costs through trial.  2 factors leading to this decision were the late delivery of ICBC’s formal settlement offer and the fact that the jury award was very close to the formal offer.
In asking that the Plaintiff be deprived of trial costs the lawyer hired by ICBC noted that the Plaintiff attended fewer days of the trial than the Defendant.  The court rejected this argument and in doing so discussed ICBC’s policy of forcing their insured defendants to sit through trial even if they have nothing to add to the evidence at trial.  Below are the highlights of this discussion:

[53] The defendant also argues that the plaintiff should be deprived of her costs because the defendant attended all of the trial and the plaintiff did not.  However, the defendant chose to attend the trial.  Although she testified, her evidence was very brief as liability had been admitted.  There was no requirement that the defendant attend throughout the trial, particularly in circumstances where she had to take time off work and travel to Victoria.

[54] The plaintiff argues the fact that the defendant attended more of the trial than the plaintiff is not a factor to be considered in assessing whether the plaintiff should be deprived of her costs.  The plaintiff points to an ICBC claims bulletin dated June 13, 2008 outlining a policy that requires defendants to attend the trials from start to finish.  In the bulletin it sets out that:  “This policy applies even if they will not be testifying.  The intent of the new requirement is to present a ‘face’ for the defendant to the court.  Defence counsel will be instructed to have the defendant sit at counsel’s table if possible.”  In the circumstances, I do not accept the defendant argument that her attendance at the trial is a factor that should favour depriving the plaintiff of her costs.

[55] Having considered the factors set out in subrule 6, including the relationship between the offer and the award, I have concluded that this is not an appropriate case in which to exercise my discretion to deprive the plaintiff of her costs on the basis of the offer to settle.

If you are insured with ICBC and are at fault for a car crash and injure another do you think there is any value in being forced to trial even if you have nothing to add?  Does giving a ‘face to the defendant’ make any sense when the lawsuit is an insured claim?  As always, feedback is welcome.

Lawyers Opinions, Mistrials and ICBC Injury Claims

US Trial Lawyer Elliott Wilcox recently wrote a great article on why “I” is one of the most dangerous words for a lawyer to utter in court during a jury trial.  The short answer is because it is inappropriate for lawyers to share their personal opinion as to the merits of a case.  When a lawyer uses the word “I” there is a good chance a personal opinion is going to follow.
Reasons for judgement were released today by the BC Court of Appeal demonstrating the repercussions of counsel sharing their opinions during jury trials.
In today’s case (Joy v. Atkinson) the Plaintiff’s lawyer made several comments during his opening statement to the jury which the ICBC defence lawyer took objection to.  After hearing submissions in the absence of the jury the trial judge granted a motion for a mistrial (click here to read my previous post about the trial judgement).
In dismissing the appeal the BC Court of Appeal said the following about lawyers sharing their personal opinion of the merits of the case in jury trials:

[20]          Whether the plaintiff’s argument is otherwise sound need not be decided because there is a further aspect of counsel’s opening that is of particular concern.  Counsel expressed his personal belief in the strength of the plaintiff’s case when he told the jury “we had to satisfy ourselves that Mr. Joy’s injuries are real, serious, and permanent” and that “Geno Joy has and will continue to suffer real harms and losses now and into the future”.  In my view, there is no doubt this was clearly an improper statement.  Counsel acknowledged that to be the case in submissions on the application for a mistrial.  He was in effect giving evidence, albeit inadmissible evidence that could never be challenged, about the plaintiff’s injuries and his losses. 

[21]          Counsel’s suggestion before the judge was that any damage done could be corrected by a jury instruction or what he referred to as a “rebuke”.  But no meaningful suggestion as to what that instruction might be was made nor is one advanced now.  I am unable to see what instruction the judge could have given the jury that would have afforded the defence any confidence counsel’s expression of his satisfaction with the plaintiff’s claim would be ignored.  The jury had been told counsel had satisfied himself – he knew, apparently by investigation – the injuries suffered which the defence was challenging were real, serious, and permanent and they had caused, and would in the future cause, real losses.  That was not an assertion each member of the jury could be expected to completely ignore no matter what they were told, and it bore directly on the fairness of the trial.

[22]          The judge did not refer to this part of the opening statement in the reasons he gave for declaring a mistrial but, in my view, it is fatal to the success of this appeal.  It cannot now be said there was no sound basis for a mistrial.

ICBC Snooping in Jurors Records, Apologies and the Privacy Act

BC Personal Injury Lawyers have been abuzz lately with the news that ICBC intentionally snooped into jurors claims histories while conducting the defence in a recent ICBC Injury Trial.
I have been following this story since it first came to my attention a few weeks ago.  It was reported by Ian Mulgrew of the Vancouver Sun and more recently by the Louise Dickson of the Victoria Times Colonist.  In a nutshell the facts behind the story are as follows:  
The Plaintiff was injured in 2 motor vehicle collisions.  She sued for damages.  The trial for both claims were to be heard at the same time.  ICBC chose to have both matters heard by Jury Trial.  At the beginning of trial the Plaintiff brought an application to strike the jury and have the matter proceed by Judge alone.  Mr. Justice Macaulay, the presiding judge, dismissed this motion and let the jury trial begin.  (click here to read the reasons denying the motion to strike the jury).
A few days into the trial a settlement was reached.  At the same time ICBC admitted to improper conduct, particularly snooping in the jurors private ICBC records.   This breach of privacy was apparently initiated by ICBC’s defence lawyer who asked an ICBC adjuster to provide her with the juror’s claims histories.  This admission concerned the presiding judge who discharged the jury and ordered that the ICBC defence lawyer and ICBCs’ corporate counsel appear before him for a subsequent hearing to shed some light on why the jurors claims histories were improperly disclosed to ICBC’s defence lawyer.
The following hearing took place today in the BC Supreme Court.  One thing that I and many other personal injury lawyers had hoped for was that some information would have come to light about the frequency with which this snooping has occurred in the past.  Particularly has ICBC improperly accessed jurors, plaintiffs or witnesses ICBC claims histories in other cases?  Unfortunately these important questions were left unanswered.  
Mr. Justice Macaulay held that the behaviour that came to his attention fell short of contempt of court however that it was improper and left serious concerns about the administration of justice in BC.  The Times Colonist reported that ” The justice again emphasized he had serious concerns that the unauthorized disclosure of the two claims history impacts the administration of justice.  Macaulay said it was not the responsibility of the court to investigate alleged breaches of the Information and Privacy Act, nor was it the function of the court to decide whether the lawyer’s conduct falls short of professional standards. Macaulay said he was concerned about fairness. If the plaintiff had called for a mistrial, Macaulay said he likely would have granted one.”
According to the Times Colonist “Macfarlane (ICBC’s corporate counsel) said ICBC had sent letters of apology to five of the eight jurors, but had been unable to contact the remaining three. Macaulay told him ICBC would not have the assistance of the court in contacting them.”
I wonder if ICBC’s letters of apology to the jurors make any mention of the BC Privacy Act and the fact that “it is a tort, actionable without proof of damage, for a person, willfully and without a claim of right, to violate the privacy of another“.  I hope that ICBC’s letters contain more than a mere apology but proper compensation for this improper use of the jurors records.  I further hope that this is an isolated incident and some sort of objective proof can be had to verify if this is the case.  
The concerns about this behaviour and its impact on the administration of justice are serious ones.  I commend the individuals at ICBC who came clean about this breach of Privacy but given the vast records that ICBC have in their database regarding British Columbians and the relative ease with which these can be accessed by ICBC adjusters this story should not end until there is a proper and verifiable assurance from ICBC that this is an isolated incident and that the jurors whose privacy was breached are properly compensated for this wrong. 

ICBC Injury Claims, Video Surveillance and Mistrials

Reasons for judgment were released today by the BC Supreme Court ordering a mistrial following a trial by jury.
In today’s case (Oberreiter v. Akmali) the Plaintiff sued for injuries after she was struck by a vehicle while riding her bicycle in North Vancouver in 2004.  Fault was not at issue, rather the trial focused solely on quantum of damages (value of the ICBC Injury Claim).  Following trial the jury awarded the Plaintiff approximately $118,000 in damages.  Prior to having the judgement entered the Plaintiff applied for a mistrial.  
The key facts giving rise to the application for a mistrial are as follows:

              After the trial was completed and the jury had been discharged, the plaintiff’s counsel discovered that the DVD contained approximately ten minutes of video which had not been shown to the jury.  Through an unintentional error in editing, the DVD which was marked as an exhibit contained images which had not been shown to the jury; had not been seen by counsel or myself; and had not been admitted into evidence. 

[7]                The issue is whether the plaintiff is entitled to a mistrial because material not admitted into evidence was inadvertently included in an exhibit available to they jury during its deliberations.

In granting the mistrial, Mr. Justice Kelleher of the BC Supreme Court gave the following reasons:

 

[10]            Where an irregularity such as the inadvertent inclusion of non-admitted material in exhibits left with the jury occurs, it is usually identified during the course of the trial.  When that occurs, the court must consider all possible actions to remedy potential prejudice before ordering a mistrial.  It may be that such an irregularity could be corrected with an instruction to the jury: seeGemmell v. Reddicopp, 2005 BCCA 628, 48 B.C.L.R. (4th) 349.

[11]            Where the irregularity cannot be cured and the trial judge is satisfied that it may have a prejudicial effect impacting the result of the trial, a mistrial is the appropriate remedy: see de Araujo v. Read, 2004 BCCA 267, 29 B.C.L.R. (4th) 84.  In that case, Mr. Justice Thackray observed at para. 68:  “…a new trial may be ordered where trial irregularities may have influenced the verdict or award of the jury… “.

[12]            Here, of course, there was no opportunity to correct the irregularity.  Neither of the parties was aware of the inadvertent inclusion of material not admitted as evidence in the exhibit until the trial had ended and the jury had been discharged. 

[13]            It may be that the irregularity and any resulting prejudice could have been corrected easily if it had been noticed before the jury’s deliberations had come to an end.  Perhaps the jury could have been instructed not to have regard to the footage. 

[14]            It is not known what the jury viewed.  What is certain is that the jury was provided with material relevant to the case that was not evidence and was not led in court.  This raises concerns about trial fairness and potential prejudice to the plaintiff.  An important factual issue in the trial was the extent and severity of the plaintiff’s injuries.  Thus, the video surveillance footage is highly relevant and potentially prejudicial.

[15]            Notwithstanding the general principles of respect for jury secrecy, there is jurisdiction to make some inquiries of a jury: see R. v. Pan, 2001 SCC 42, [2001], 2 S.C.R. 344.  However, I am not persuaded that asking the foreperson to appear in court and to advise the court whether the jury viewed the DVD is appropriate.  Many weeks have passed since the trial.  Recall of a juror for these purposes is impractical and of questionable reliability.

[16]            It is clear that a trial judge has the power to order a mistrial if the judge concludes there is no other option to remedy an irregularity.  After the jury has been discharged, I am satisfied there is nothing further that can be done by the court.

[17]            Both parties are entitled to have the jury decide the case solely on the evidence properly admitted during the trial.  That is fundamental to a fair trial.  It is my duty as a trial judge to ensure that this is safeguarded.  Here, it is accepted by both parties that there was extraneous material made available to the jury that was not evidence admitted during the trial.  This material is relevant to the issues in the trial and is potentially prejudicial.  Since this irregularity cannot be corrected I conclude it would be unjust and unfair to let the verdict stand. 

[18]            A mistrial is appropriate where necessary to ensure that justice is done between the parties: see de Araujo v. Read.  The plaintiff’s application for a mistrial is allowed.

More on ICBC, Rule 37B and Costs

I have previously blogged about the new Rule 37B (here and here) which deals with formal offers of settlement and the costs consequences of trial.
The first case that I’m aware of dealing with Rule 37B in an ICBC claim was released today.
In this case both fault and quantum were at issue.  The Plaintiff alleged that the Defendant was at fault for the car accident and claimed over $1million in damages.  The case was presented for over one week in front of a Vancouver jury.
The case was dismissed on the issue of liability meaning that the Jury found the Plaintiff was responsible for this collision thus making her entitlement to tort damages $0.
In this case ICBC (on the defendant’s behlaf) made a pre-trial offer to settle for $35,000.  This offer was made in compliance with Rule 37B.
The court refused to look at the fact that the Defendant was insured when considering ‘the relative financial circumstances of the Parties’ and concluded that the Defendant was entitled to Double Costs from the time the offer was made through trial.
I reproduce the court’s key analysis below:

a)         Ought the Defendants’ Offer to Have Been Accepted?

[20]            In her submissions, the plaintiff referred to the position that she said was taken by an unnamed ICBC adjuster respecting the responsibility for the collision.  That view was apparently a preliminary one, the basis for which is unexplained; it was not before the jury in this case, and, in any event, the conclusion would certainly not be binding on the jury or the court.

[21]            The plaintiff also referred in her submissions to the fact that she had offered to settle her claim for $160,000 plus her costs, a sum considerably less than her counsel sought from the jury.

[22]            Based upon her offer compared to the position taken by her counsel at trial, the plaintiff was clearly prepared to take a considerable gamble to achieve a significant award.  While it was open to the jury to make a sizeable award, in the event there was a finding of liability against the defendants, the discount the plaintiff was prepared to accept in order to settle the claim does not support the conclusion that she had confidence in the likelihood of securing a sizeable award at trial.  That, in my view, is one of the factors against which the reasonableness of her refusal to accept the defendants’ offer to settle must be assessed.

[23]            As I have said above, it was clearly open to the jury to dismiss the plaintiff’s claim by finding no liability against the defendants, but equally open to them to find some or even complete liability against the defendants.

[24]            While the defendants argued that the jury’s verdict proves that the plaintiff ought to have accepted their offer to settle, I do not read Rule 37B as inviting that sort of hindsight analysis.  Under Rule 37, an offer to settle was revoked once trial began.  Although Rule 37B contains no such provision, the defendants in this case stated in their offer that it was open for acceptance “at any time before 4:00 pm, Pacific Time, or the last business day prior to the commencement of the first day of trial”.  In my view, the reasonableness of the plaintiff’s decision not to accept the defendants’ offer to settle must be assessed, under that offer, only prior to the last date that the offer could be accepted, and in any case, under Rule 37B, prior to the delivery of the jury’s verdict, but not thereafter.

[25]            Weighing these factors, I am unable to say that it was unreasonable for the plaintiff to have rejected the defendants’ offer to settle.

b)         Relationship between the Offer and the Final Judgment

[26]            Implicit in the defendants’ position on costs is the argument that the complete dismissal of the plaintiff’s claim obviates a consideration of subrule 37B(6)(b).  I do not accept that that is an appropriate reading of that subrule.

[27]            With respect to this subrule, the plaintiff argues that the jury’s verdict was not one that ought to have been “seriously contemplated” by the plaintiff.  The difficulty with this position is that counsel for the plaintiff took no objection to the charge, which instructed the jury that it was open to them to dismiss the plaintiff’s claim if they were not satisfied that the plaintiff had established liability on the part of the defendant Priscilla C. Jang.  The jury’s verdict could not in these circumstances be said to be perverse, as counsel for the plaintiff argued before judgment was entered.

[28]            I do not accept the plaintiff’s submission that the jury’s verdict is difficult to accept on the evidence before it.

c)         Relative Financial Circumstances of the Parties

[29]            The plaintiff asserts by affidavit that her annual income is between $33,000 and $34,000 per year, and that her share of the expenses in the apartment she shares with a friend together with her own monthly expenses amount to approximately $2000 per month.

[30]            The plaintiff lists a debt to her lawyers of some $29,000 as well as other debts of a further $35,000, and swears that “If I am obliged to pay ICBC’s defence costs for this trial, I will be unable to meet my ongoing expenses and debts.”  I have no evidence of the extent to which the plaintiff could arrange financing to address her position, but I do not accept that her present debts or even greater financial obligations could not be accommodated by financing.  While the defendants argue that the plaintiff’s obligations to her counsel are a result of her refusal to accept their offer to settle, I do not see that the cause of the plaintiff’s debts is a relevant consideration.  The fact is that she is indebted to her counsel.

[31]            There are, however, two difficulties with the plaintiff’s position on this factor.  First, she argues that her financial circumstances are difficult.  This alone is insufficient to meet Rule 37B(6)(c).

[32]            Second, she places her financial position against that of ICBC, as opposed to that of the defendants.

[33]            While I accept that it is likely that most drivers in British Columbia are insured by ICBC, the wording of subrule 37B does not invite consideration of a defendant’s insurance coverage.  There may be good policy reasons for this.  Insurance coverage limits with ICBC are not universal, and will vary from insured to insured.  Certain activities may result in a breach of an individual’s insurance coverage, or the defence of an action under a reservation of rights by ICBC.  A plaintiff will not and likely should not be privy to such matters of insurance coverage between a defendant and ICBC.

[34]            The contest in this case was between the plaintiff and the defendants, and the insurance benefits available to the defendants do not, in my view, fall within the rubric of their financial circumstances, any more than any collateral benefit entitlement that a plaintiff may have would affect that person’s financial circumstances for the purpose of determining their loss.

[35]            There is no evidence before me as to the defendants’ financial circumstances.  What little I do know of the circumstances of the defendant Pricilla C. Jang is that, at the time of the accident, she was driving her mother’s motor vehicle, and that she was employed as a parts delivery person for a motor vehicle dealership.  That does not suggest to me that her financial circumstances are appreciably different from those of the plaintiff.

d)         Other Factors

[36]            No submissions were made by the plaintiff suggesting that there are other factors in this case that should influence the appropriate cost option to be employed in this case.

DISPOSITION

[37]            While I am not prepared to find that the plaintiff’s failure to accept the defendants’ offer to settle was unreasonable, I am equally unprepared to accept that the jury’s verdict was unreasonable.  I am also unprepared to conclude that there is any significant disparity in the financial circumstances of the parties so as to invoke subrule 37B(6)(c).

[38]            What then, of the function of the Rules to encourage or to deter the types of conduct referred to by Cumming J.A. in Skidmore?  As mentioned above, the plaintiff was prepared to take a considerable gamble to achieve a significant award.  Had she succeeded, she doubtless would have sought an order for double costs against the defendants following her offer to settle.

[39]            I conclude that the refusal of an award of double costs from August 11, 2008 would completely ignore the important deterrent function of the Rules.  The factors set out in subrule 37B(6) do not, in this case, persuade me that such a result would be appropriate.  I find that the defendants are entitled to an award of double costs beginning a reasonable period of time after which the plaintiff could consider their offer.  That period I find commenced on August 18, 2008, seven days after the defendants’ offer to settle.

[40]            The defendants are entitled to recover their taxable costs and disbursements of this action from its commencement until August 18, 2008 pursuant to Rule 57(9).  Those costs will be taxed at Scale B.

[41]            The defendants are entitled to double costs commencing August 18, 2008 and to their disbursements as incurred after August 18, 2008.  The disbursements will be allowed only in the amount incurred, and not at a double rate.

BC Court of Appeal Orders New Trial After Jury Dismisses ICBC Injury Claim

The BC Court of Appeal released reasons for judgement today ordering a new trial after a Jury dismissed a claim for damages as a result of a 2002 BC car accident. In doing so the BC Court of Appeal has made some helpful comments on the law relating to “adverse inference”.
When an ICBC claim is brought to trial various witnesses are called in support of the claim. Most importantly, expert witnesses (doctors and other specialists) are often called to give evidence with respect to the extent of the injuries caused by the car accident and their prognosis. If a Plaintiff fails to call one or more of his treating doctors, the ICBC lawyers can ask the judge (or jury) to draw an ‘adverse inference’. Basically, this means that the ICBC lawyer can ask the judge to draw a negative inference from the failure to call a witness who one would expect to have something relevant to say.
Typically, people injured in BC car accidents involved in ICBC claims see several different doctors. Most people have a GP, when the GP is not available they go to walk-in-clinics. Sometimes they are treated by emergency physicians and also referred to specialists by either their GP or such appointments can be arranged privately for litigation purposes.
It could be prohibitively expensive to bring an ICBC case to trial if one was required to bring every single doctor who assessed a plaintiff after a car accident to testify. Not only would this extend the length of the trial it would also add significantly to the expense as doctors are permitted to charge fees for their legal consultation services.
In this case the Plaintiff’s were a husband and wife. Their vehicle was rear-ended by a vehicle driven by the Defendant. Fault for the accident was admitted leaving the issue of damages.
At trial evidence was presented alleging that the Plaintiff’s suffered injuries to their neck, back, knees, shoulder, with headaches and other problems.
The jury outright dismissed the lawsuits, basically finding that neither of the Plaintiff’s suffered any compensable injuries in the BC car crash.
The Plaintiff’s appealed alleging that the trial judge made 4 errors in the course of the trial, namely that:

1) the trial judge erred in allowing the respondent to seek an adverse inference for failure of the appellants to call evidence from all their doctors;

2) the trial judge erred in not allowing the clinical records to go before the jury;

3) the trial judge erred in allowing the respondent to cross-examine extensively on collateral issues in regards to Mr. Buksh; and

4) the jury verdict is perverse in finding no injury to either appellant in the face of uncontradicted evidence to the contrary.
In respect of the adverse inference, here the ICBC defence lawyer argued that the jury should draw such an inference because the Plaintiff’s did not call all of the doctors who saw them after the crash. This included walk in clinic doctors and other physicians who had limited involvement in the treatment of the Plaintiff’s. The judge instructed the Jury that such an inference ‘may’ be drawn.
Our Court of Appeal ordered a new trial. In reaching this conclusion the Court of Appeal made some helpful comments about the law of adverse inference in ICBC claims in the last 10 paragraphs of the judgement which I reproduce below:

[32] It seems to me that the tactic of asking for an adverse inference is much over-used in today’s legal environment, and requires, at the least, a threshold examination by the trial judge before such an instruction is given to the jury.

[33] A judge trying a case with a jury is bound to instruct the jury as to the applicable law, and thereby to assist the jury in its consideration of the evidence and determination of the facts. Whether an adverse inference is drawn from failure to call a witness is a question for the trier of fact. In this case, I cannot say the trial judge erred in the content of the instruction she gave the jury on the matter of adverse inferences. However, it bears reminding that the delivery of medical care is not now as it was in 1964 when Mr. Justice Davey made his comments in Barker. There is, today, a proliferation of “walk-in” medical clinics where the role of the “walk-in” clinic physician may be more limited than was the role of a family physician in 1964. Further, even people who have a family doctor may attend one or more such clinics as a matter of convenience, but still rely upon their family physician for core medical advice and treatment. The proposition stated by Mr. Justice Davey does not anticipate this present model of medical care. Likewise, the discovery process available to both sides of a lawsuit is not now as it was in 1964 when, in explaining his view on the need to call all treating physicians, Mr. Justice Davey referred to the professional confidence between a doctor and the patient. Today, the free exchange of information and provision of clinical records through document discovery raises the possibility that an adverse inference may be sought in circumstances where it is known to counsel asking for the inference that the opinion of the doctor in question was not adverse to the opposite party.

[34] Taking the admonition of Mr. Justice Davey to the extreme in today’s patchwork of medical services raises the likelihood of increased litigation costs attendant upon more medical reports from physicians or additional attendances of physicians at court, with little added to the trial process but time and expense, and nothing added to the knowledge of counsel. Perhaps the idea that an adverse inference may be sought, on the authority of Barker, for the reason that every walk-in clinic physician was not called fits within the description of “punctilio” that is no longer to bind us, referred to by Mr. Justice Dickson in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, in a different context.

[35] In this environment, and bearing in mind the position of a lawyer bound to be truthful to the court, it seems to me there is a threshold question that must be addressed before the instruction on adverse inferences is given to the jury: whether, given the evidence before the court, given the explanations proffered for not calling the witness, given the nature of the evidence that could be provided by the witness, given the extent of disclosure of that physician’s clinical notes, and given the circumstances of the trial (e.g., an initial agreement to introduce clinical records that work contrary to the inference, or incorporation of that witness’s views or observations in the report of a witness called by the other side) a juror could reasonably draw the inference that the witness not called would have given evidence detrimental to the party’s case. Where, as here, the trial started on the basis that all records should be before the jury, and ended with a request for an instruction on adverse inferences, and when both counsel have explained the failure to call the witness or witnesses by referring to their own assessment of the utility or need for the evidence, the answer to the threshold question I have stated is not self-evidently affirmative. In this case, in my view, the judge herself should have heard the explanations, considered the degree of disclosure of that witness’s files and the extent of contact between the party and the physician, received submissions and determined whether a reasonable juror could draw the inference sought before giving the instruction to the jury for its consideration in its fact finding role. If not, the instruction had no place in her charge to the jury.

Mistrial Declared for Opening Statement that Went "Over the Line"

In March, 2008, Mr. Justice Cole declared a mistrial after he found that the Plaintiff’s lawyer went “over the line” in his opening statements. The judges oral reasons were released in writing today.
Negligence (fault for the accident) was admitted by the defence lawyers. The Plaintiff lawyer, in the opening address to the jury, stated that ‘the defendant must pay for breaching the rules of the road.’ and referred to the defendant as falling asleep at the wheel of his car, causing the accident‘. The court characterized the general theme of the opening comments “such as to create an atmosphere of sympathy for the Plaintiff.”
The court concluced that the Plaintiff lawyer ‘did go over the line‘ and that ordering a mistrial is the ‘only fair thing to do.’
The result of the mistrial is that the jury is dismissed and the matter has to be reset for trial on a later date. Such a result brings with it delay and expense, commonly referred to as the ‘twin evils’ in the BC civil justice system.
Reading this case made me wonder whether jurors would be inflamed by such opening statements. Personally I struggle in thinking that a reasonable jury would be inflamed to such a degree by this statement that their whole view of the case would be unjustly prejudiced.
Even the judge acknowledged that ‘no one can ever tell’ if this statement caused damage to the juries ability to fairly hear the case.
In BC it is improper for lawyers to talk to jurors after the fact and poll them about their decision.  Specifically, in 1967 the BC Court of Appeal stated that lawyers who poll jurors after verdict would be in contempt of court.  This has been severely critisized by many including fellow blogger and former BC Supreme Court judge John Bouck.
Since the jurors can’t be polled I thought I’d ask my readers. What do you think? If you were sitting on a jury involving an ICBC injury claim, and the plaintiff’s lawyer told you that the Defendant fell asleep at the wheel and ‘must pay for breaching the rules of the road’ would your judgment be compromised? Would your ability to fairly value the plaintiff’s injuries be compromised? Would you feel a need to punish the defendant by awarding the Plaintiff an overly generous amount of compensation?
Please feel free to leave comments or e-mail me privately.
Do you have questions about this case or an ICBC injury claim? If so click here to arrange your free consultation with Victoria ICBC claims lawyer Erik Magraken (services provided for ICBC injury claims throughout BC!)

Judge states that $184,000 jury award is "Inordinately low" for Chronic Pain Disorder

In reasons for judgment released today, the Honourable Madam Justice Loo stated that the jury’s verdict in a case involving serious injuries including concussion, neck and back injuries, depression and a chronic pain disorder, was ‘inordinately low’ and not supported by the evidene.
The plaintiff was a 28 year old corrections officer who sustained serious injuries in an October, 2003 motor vehicle collision when his vehicle was struck by a semi-tractor trailer that ran a red light.
The jury heard 10 days of evidence. During this time a series of unusual developments occurred (the details of which could be found in Madame Justice Loo’s judgment at paragraphs 12-16) which include a juror getting discharged as a result of an anxiety attack, a juror getting discharged for unusual behaviour which caused him to be hospitalized and the jury discussing the case prematruely and against an express caution from the trial judge not to do so.
After hearing all the evidence the jury awarded $32,550 for past income loss, $17,673.86 for special damages, $30,000 for pain and suffering and loss of enjoyment of life, $75,000 for future loss of earning capacity and $28,205 for future care costs.
Madame Justice Loo felt compelled to take the unusual step of commenting on the jury’s verdict and did so in detail. This was apparently done with a view towards assisting the British Columbia Court of Appeal in a judgment that very likely will be appealed. After pointing out that this jury spent no more than 2.5 hours in deliberations, Madame Justice Loo held that ‘no jury reviewing all of the evidence as a whole could have reached such a verdict’.

  • 1
  • 2

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer