Tag: Master Baker

Rule 15-1 and Pre Trial Settlement Costs

Written by admin on July 18, 2011. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 15.

Useful reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, addressing costs consequences when fast track cases settle prior to the first day of trial. In short the Court held that the rules operate to fix lump sum costs of $6,500 in these circumstances.
In today’s case (Gill v. Widjaja) the Plaintiff was injured in a collision. The Plaintiff sued pursuant to Rule 15. ICBC made a formal settlement offer of $34,800 plus assessable costs and disbursements. Following this the parties could not agree on some of the disbursement items. The matter was ultimately put before the Court and in adjudicating the dispute Master Baker confirmed that costs under Rule 15 are set via lump sum. Specifically the Court provided the following useful reasons:

[16] Tariff amount and Rule 15-1. The real question is: how much should the fee mandated by Rule 15-1, when the matter is settled without trial, be further affected by preparation or lack thereof? Counsel agree that the starting sum is $8,000.00 and that, since no trial proceeded, there should be a reduction of one day’s costs ($1,500.00). After that they disagree. Mr. Cope says there should be the equivalent of one-half day’s trial cost added back in for trial preparation. Ms. Tonge says $2,000.00 should be further deducted. Certainly, the Rule permits departure from the indicated amount, as it is prefaced with “Unless the court otherwise orders…”.

[17] I start with the assumption that, once the portion attributed to the first day of trial is deducted, the balance is allocated to preparation. It would take compelling facts and circumstances to depart from that simple principle. And that simple principle should be applied when one recalls that the costs provisions of Rule 15-1 are intended to be summary in nature and to avoid assessments such as this. Counsel referred me to other authorities considering and, in effect, parsing pre-trial proceedings, but those cases seem to apply to situations where Rule 37 or 37B offers were made and either accepted or refused. In those cases, of course, it became important to mark the point in the proceedings when the offer was made and to then invoke the Rules’ effects on costs for the proceedings thereafter. In such a case it would require that some assessment be made of the degree of preparation done at the point of the offer. This is not that case.

[18] Mr. Cope argued that Ms. Gill was due some allowance for preparation, yet the tariff items in his bill included Item 17 “All process and correspondence associated with retaining and consulting all experts…” and Item 18 “All process and correspondence associated with contacting, interviewing and issuing subpoenas to all witnesses”. While the items do not apply per se, as Rule 15-1(15)’s omnibus cap does instead, Mr. Cope obviously considered all of that to include most, if not all, of the usual allowable stages of preparation. His draft in the form presented is a tacit admission of that. Moreover, as Ms. Tonge pointed out, there is no evidence of any unusual preparation having occurred before the offer was made and accepted.

[19] Similarly, there is no basis to take the reverse view and conclude that, given the matter settled seven weeks before trial, that no, or substantially no, preparation would have taken place. Quite the contrary: it is clear that Mr. Cope took the usual steps to obtain and organize the evidence he would need to that point and that those preparations were sufficient that he and Ms. Gill were prepared to settle.

[20] In the end there is no basis for any intervention by me, either to deduct or add in, respecting preparation costs. The only deduction from the fast track capped cost will be $1,500.00 representing the first day of trial.

[21] In sum, then, the fee portion of Ms. Gill’s bill of costs is fixed at $6,500.00

Joint Experts and the New Rules of Court

Written by admin on April 14, 2011. Posted in BCSC Civil Rule 11, BCSC Civil Rule 5, independent medical exams, Uncategorized. 84 Comments on Joint Experts and the New Rules of Court

Can the BC Supreme Court order that parties use a joint expert in a personal injury trial against the wishes of one of the parties? Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing this question.
In today’s case (Benedetti v. Breker) the Plaintiff was involved in a 2005 collision. He was 17 at the time and allegedly sustained a brain injury with psychiatric consequences. The Plaintiff brought an application asking that the Court order that Dr. O’Shaugnessy be appointed as a joint expert in the lawsuit. The Defendant objected to having a joint expert. Master Baker dismissed the motion and in doing so found that the Rules of Court do not permit a joint expert to be appointed over the objection of a party unless its done at a Case Planning Conference. The Court provided the following reasons:

[11] Jointly appointed experts are not new to litigation in British Columbia. In the family law context section 15 of the Family Relations Act has, for over 30 years, provided for the appointment of experts to investigate and prepare custody and access reports. Realty appraisers are also often jointly appointed and instructed in family proceedings. It is not all that unusual to encounter jointly-instructed experts in construction disputes. But the new Rules clearly have brought greater focus and emphasis to the appointment of joint experts and invite the wider application of that process.

[12] Having said that, I agree with Mr. Nugent that this application does not follow the correct procedure for such an appointment. He is correct in his analysis and that the only provision in the new Rules for the appointment of a joint expert over the wishes of one or both of the parties is in Rule 5-3(1)(k)(i), authorizing the presiding Judge or Master to order

that the expert evidence on any one or more issues be given by one jointly-instructed expert

Rule 11-3, he correctly argues, only permits the court to direct who that expert will be, or other terms ancillary to the appointment. Rule 11-3 assumes that either the parties have agreed to the concept of a joint expert, or that the court has already ordered one in a CPC. Neither of those assumptions apply in this case.

[13] It is not for me to theorize the reasons behind Rule 11-3’s current form, or why the only provision for the court, of its own volition, to appoint a joint expert is found in the CPC rule. Suffice it to say and conclude that the Attorney General’s Rules Revision Committee’s purpose and the legislative intent was to separate the aspects of the appointment accordingly and to leave the court appointment process in the less formal CPC procedure.

[14] Even if the authority did lie in Rule 11-3, however, I agree further with Mr. Nugent that it would not be an appropriate order in this case. This jurisdiction is blessed with a choice of numerous medical legal experts who could function as a joint expert in this matter. By no means is Dr. O’Shaughnessy the only suitable choice as joint expert. To appoint him, however, is to deprive the defence of a significant or potentially significant trial stratagem. Wilson, C.J.S.C. in Milburn et al v. Phillips long ago described the purpose of an IME: “…to put the parties on a basis of equality” or, as it is commonly offered in chambers, to level the playing field. The plaintiff has received treatment from at least two psychiatrists and has seen a neuropsychologist (par. 3, above). The former were, to be sure, treating physicians, but it is not clear whether the latter was for treatment or for medical-legal consultation. Given these facts, the defence should not be deprived of unilateral access to the one psychiatric expert that it chose and notified some 15 months before this application.

[15] The accompanying argument also has merit: should Dr. O’Shaughnessy’s conclusions not assist the defence, counsel can instruct him to not prepare a report. In such an instance Dr. O’Shaughnessy’s objective observations, test results, or the like may well be discoverable but he would not be obliged to give or disclose his opinion to the plaintiff. This is an important tool in the defence toolkit and should not be casually ignored.

[16] Finally, while proportionality is a laudable goal and should factor into all decisions under the Rules, in this case I doubt its applicability. With five medical reports (privileged to date, recall) with the plaintiff, it seems unlikely that proportionality will be served by directing that a sixth, that of Dr. O’Shaughnessy, be a joint report.

[17] For these reasons the application is dismissed.

Multiple Defence Medical Exams: The Prohibition of "Belt and Suspenders" Applications

Written by admin on April 6, 2011. Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized.

While the Rules of Court permit Defendants to compel a Plaintiff to attend multiple medical exams in certain circumstances, there is a general prohibition in having multiple exams to address the same topic. Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, dismissing an application in these circumstances calling it a “belt and suspenders application“.
In today’s case the Plaintiff was injured in a motor vehicle collision. In the course of the claim she attended numerous ‘independent‘ medical exams with physicians selected by the Defendant. Some of these physicians opined that the Plaintiff’s difficulties were not from the collision but due to “opioid dependencies“.
The Defendant asked that the Plaintiff attend a further exam with Dr. Baker, a so -called “addictionologist“. The Plaintiff refused and an application was brought. Master Baker dismissed the application noting the general prohibition of multiple exams to bolster a previous opinion. In dismissing the application the Court provided the following helpful reasons:

[7] To get back to the point, the defence’s position is that some or much of these difficulties relate to, they say, opioid dependencies that have arisen in advance of this motor-vehicle accident. This is denied or contradicted by the report of her family physician, Dr. Singhal.

[8] Dr. Baker a specialist, in this area, not just of addiction and addiction parameters or aspects of that, but also chronic pain management, I understand. Even the brief c.v. to which I was referred was impressive. His membership in various societies, the committees he serves on, all of which impressed me.

[9] Having said all that, I cannot see that this case is in any significant way distinct from that decided by Mr. Justice Voith, to which I just referred. With greatest respect, at least two specialists for the defence have commented on, concluded, and been quite specifically direct that they regard (the Plaintiff) as having been either habituated, as one — Dr. Smith, I think, said it — or dependent, euphemistically perhaps, addicted to opioids. This has had consequences for her recovery, or her response to the accident.

[10] I agree entirely, with greatest respect, with Mr. Justice Voith and his impression of the case that he decided. I agree that there’s no doubt that Dr. Baker has greater expertise on that particular point.

[11] But as Mr. Justice Voith says, that’s not the measure of whether or not to direct an I.M.E. The phrase — I know it has a pejorative ring to it — but it was used at least a couple of times, once by me — that this is a “belt and suspenders application” by the defence. They already have expert opinion on the subject.

[12] They were met, from the plaintiff’s perspective, by opposition to Dr. Hashimoto opining on that aspect. The view, as taken by the plaintiff, that Dr. Hashimoto is not qualified to give this opinion that’s outside his expertise. They have not taken that perspective in respect of Dr. Smith.

[13] It doesn’t really matter to me whether they did or didn’t, because whether or not a second or subsequent I.M.E. should be ordered does not rely upon the plaintiff’s opinion as to the admissibility of an expert’s opinion, or in fact any other evidence. That is for the court to decide; and it is, with respect, for the defence to structure its case and its strategies.

[14] I am satisfied, on the circumstances and facts before me, that this does constitute a situation in which the defence is wishing to bolster the opinion of Dr. Smith at least, and possibly Dr. Hashimoto, with the further and yes, more focused opinion of Dr. Baker.

[15] The law in this area does not support that course. That is sufficient, in my respectful view, to decide the issue.

For the sake of convenience I should point out that the decision of Mr. Justice Voith that Master Baker referenced was Zawadzki v. Calimoso which was recently transcribed and can be found here.

More on ICBC Claim Adjournments: Discretion and Court Ordered Conditions

Written by admin on March 8, 2011. Posted in BCSC Civil Rule 12, Uncategorized. 7 Comments on More on ICBC Claim Adjournments: Discretion and Court Ordered Conditions

Rule 12-1(9) gives the BC Supreme Court the discretion to adjourn trials. When asked for an adjournment the Court must balance the interests of the parties. When adjourning a trial the Court can attach a variety of conditions which can even include damage advancements in personal injury lawsuits. Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing this area of law.
In today’s case (Kailay v. ICBC) the Plaintiff was injured in two separate motor vehicle collisions. The matter was set for trial previously but was adjourned following an application by ICBC.
The Plaintiff became pregnant shortly before the rescheduled trial and this apparently aggravated some of her accident related stress and psychological symptoms. ICBC argued a further adjournment was necessary as a result of this development. Master Baker agreed and granted ICBC a second adjournment, however, the Court attached several conditions to this order. In doing so Master Baker discussed the Court’s ability to attach terms to adjournments and provided the following reasons:
[12] Taking these various positions, I am satisfied of the following. First, the court’s jurisdiction to make an order for conditions of an adjournment that include advances, whether to meet specific costs and expenses, or as simple advances on likely general damages cannot be seriously disputed. ..
13] I do not accept that liability must be absolutely established before an advance can be ordered. The real issue, in such a case, is: in the event the plaintiff is unsuccessful, can the advance be recovered? I see no reason why that would not be the case here, particularly assuming that any advance would be accompanied by an undertaking from Ms. Kailay in that respect…

[19] As a consequence of the above, I direct that the conditions of the adjournment will be:

1. The defence will fund up to 30 further counselling sessions at up to $200.00 per session;

2. Ms. Kailay will receive $20,000.00 toward her general damages claim;

3. The defence will advance $10,000.00 toward Ms. Kailay’s costs incurred to date, including, of course, her experts’ fees;

4. Ms. Kailay will give her undertaking that, in the event her claim fails at trial or that advances to date (including the above) exceed the damages awarded by the court, she will repay the advances as required.

These are the conditions of the adjournment. If, for any reason, the defence does not acknowledge and accept them by March 7 the trial will continue on April 4 as currently scheduled.

[20] Costs of this application will be costs in the cause.

Wage Loss Claims, Document Disclosure and Proportionality

Written by admin on December 22, 2010. Posted in BCSC Civil Rule 1, BCSC Civil Rule 7, Civil Procedure, ICBC Privacy Issues, ICBC Wage Loss, Uncategorized.

As previously discussed, the new BC Civil Rules have changed the test of document production in the pre-trial discovery process. The test has been narrowed from documents “relating to every matter in question in the action“ to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“. In addition to this the Court must take the concept of ‘proportionality‘ into account when considering an order to produce third party records.
Reasons for judgement were released considering this narrower obligation in the context of an ICBC claim.
In today’s case (Tai v. Lam) the Plaintiff was involved in a 2006 motor vehicle collision. The Plaintiff was injured and claimed damages. The Defendant asked that the Plaintiff produce his bank statements from the date of the accident onward in order to “defend against (the Plaintiff’s) claim for loss of earning capacity” The Plaintiff refused to provide these and a motion was brought seeking production. Master Baker dismissed the motion and made the following useful comments about document disclosure obligations under the new rules and the concept of proportionality:

[5] I am not going to make the order sought. I agree entirely with Mr. Bolda’s view of this, which is that it is essentially one production too far, that the information and details sought goes beyond what is reasonable, even on a redacted basis. To ask that all the bank statements be produced is a broad, broad sweep.

[6] Sitting here listening, it struck me, it is as if a party who commences proceedings and says, “look, I have been injured and I have suffered financial losses” is inviting some kind of a Full Monty disclosure, that they are expected to produce all financial information they might ever have out there. Even if it is suggested or offered today that that be done on a redacted basis, it is still, in my respectful view, a requirement for production that is excessive.

[7] It certainly raises big issues about privacy and if one says, “well, redaction would fix that”, what does it take for counsel to sit down and patiently, carefully redact their client’s bank records for four and a half years? If that is not a question of confidentiality and privacy, it is a question of proportionality, which is just as concerning to me today as the other issues.

[8] The banking records. I am also persuaded by Mr. Bolda’s argument, and a common position taken today, that the judgment will be one of assessment, not calculation, that the trial judge will have multiple facets to consider and amongst them the gross income. And while it is for the defence to present and structure its case as it wishes, it seems to me that if it successfully attacks any of these claims for expenses it can only increase Mr. Tai’s income, and I cannot see the value in that perspective.

[9] I know that until recently the standard in this province was Peruvian Guano and locally Dufault v. Stevens, but that standard has changed. There has to be a greater nexus and justification for the production of the documents in a case, and I am satisfied that that standard has not been met here today, so that the application is dismissed.

ICBC Injury Claims, Trials and Adjournments – Let's Be Reasonable

Written by admin on February 26, 2010. Posted in Civil Procedure, Uncategorized. 105 Comments on ICBC Injury Claims, Trials and Adjournments – Let's Be Reasonable

Often times when a BC Supreme Court trial date approaches in an ICBC Injury Claim there are reasons why one party would like to adjourn the trial. Key witnesses can be unavailable, perhaps the case is not quantifiable due to ongoing medical investigations or maybe one side is simply not prepared.
Whatever the reason if the parties don’t consent an application can be brought to a Supreme Court Judge or Master requesting an adjournment pursuant to Rule 39(9) which holds that “The court may order the adjournment of a trial or fix the date of trial of an action or issue, or order that a trial shall take precedence over another trial“.
The legal test for adjournment applications has long been established and it is clear that courts have the discretion to adjourn a trial. In exercising this discretion the Court must take into account the “interests of justice”. The interests of justice are determined by ‘balancing the interests of the parties, which is a difficult and delicate matter requiring a careful consideration of all the elements of the case‘.
With this introduction out of the way that brings me to the topic of today’s post. What if a trial needs to be adjourned for very clear and obvious reasons but the opposing side does not consent? Unreported reasons for judgement came to my attention today dealing with such a scenario.
In this case (Davis v. Clark, BCSC Chilliwack Registry, June 8, 2009) the Plaintiff’s personal injury claim was set for trial. Fault was admitted leaving the court to only deal with the issue of damages (value of the personal injury claim). The trial date, unfortunately, was set on the same date that the Plaintiff’s lawyers daughter was being married. The Plaintiff was content to have the trial adjourned but the Defendant refused to consent. A motion was brought asking for an adjournment and it was granted. The Court went further, however, and ordered that the Defendants pay the Plaintiff $703 in costs ‘forthwith‘ for their unreasonable refusal to consent.
Master Baker had the following to say:
“Anyway, in the case before me, liability is not in issue. It is admitted. I just do not see there is any prejudice to the defence, but, with respect, it strikes me as just an eminently reasonable request on the part of the plaintiff to adjourn this. I wonder where litigation is going when someone says, “Look, my child is getting married and I want an adjournment,” and it is refused. I find that unacceptable. It frustrates and angers me, frankly. I just wonder where it is going…The order will go. Costs in any event payable forthwith.”
Sometimes there are legitimate reasons for an adjournment and sometimes there are not. This case, however, demonstrates that where there is a very reasonable request for an adjournment and it is unreasonably refused the Court can punish the unreasonable party with costs payable forthwith.
Note: Rule 39(9) will be kept intact when the New BC Supreme Court Rules come into force on July 1, 2010 and can be found at Rule 12-1(9).