Last month the BC Supreme Court released reasons indicating that parties ought to use Form 32 to provide the Court with “full disclosure of the argument to be made in chambers”. It is good practice to do so because Rule 8-1(16) of the New Rules prohibits written arguments (other than those set out in Form 32) from being relied on in Chambers Applications estimated to take less than 2 hours. Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, demonstrating this prohibition in action.
In today’s case (Lebrecque v. Tyler) the Plaintiff was involved in three motor vehicle collisions. The Defendant brought a motion for an ‘indepdendent‘ medical exam but this was dismissed. During the course of the application the Defendant’s lawyer provided the Court with a written outline of argument. The Court refused to consider this outline citing the new prohibition in the Rules of Court. Master Bouck provided the following useful reasons: Prior to July 1, 2010, provision of a written argument was recognized as good practice and often encouraged by the court — even for applications consuming less than 2 hours. Since July 1, 2010 and pursuant to Rule 8-1(16), a written argument may only be presented to the court if the application consumes more than two hours. There is no discretion under the Rule to receive written argument in other circumstances. This application was estimated to be heard in 35 minutes but took one hour. Thus, no written argument can or should have been considered by the court. These observations should not be seen as a criticism of defence counsel whose efforts were no doubt intended to assist the court. However, it seems worthwhile to remind litigants of the provisions of Rule 8-1(16) so that in the future, the time and expense of preparing a separate written argument is avoided.
As of today’s date the Labrecque decision is not yet publicly available but, as always, feel free to contact me and request a copy and I’ll be happy to provide one.
When ICBC requests a Plaintiff to attend an ‘independent’ medical exam they often pick physicians in the Lower Mainland for these assessments. One of the obvious reasons for this is that the Lower Mainland has the highest concentration of physicians who provide these consultations to ICBC. Is it reasonable to object to such an appointment on the basis of location? The answer is usually not and reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dealing with this area of law.
In today’s case (Parsons v. Mears) the Defendant was involved in an incident where he became trapped in an overturned tractor trailer. The Plaintiff “allegedly suffered various injuries when attempting to rescue the Defendant“. The Plaintiff sued for damages and in the course of the lawsuit the Defendant requested that the Plaintiff attend a Vancouver based medical exam. The Plaintiff agreed to the assessment but insisted it take place in Victoria. The parties could not reach agreement on this issue and an application was brought. Master Bouck ordered that the Plaintiff attend and in doing so provided the following summary of the law:
The following principles are applicable to this discussion:
a. The purpose of an independent medical examination is to put the parties on a basis of equality. It is not for the plaintiff to decide which doctor can examine him or her on behalf of the defendant: Sinclair v. Underwood, 2002 BCSC 354 at para. 5;
b. Nonetheless, an independent medical examination is an examination conducted by a person appointed by the court. The convenience of the plaintiff is to be considered in appointing such a person: Willis v. Voetmann,  B.C.J. No. 2492 (S.C.) at para. 5;
c. Convenience to the plaintiff is but one of several factors for the court to consider in exercising its discretion under Rule 7-6: Adelson v. Clint (1993), 16 C.P.C. (3d) 209 (B.C.S.C.) at para. 17; and
d. It may be appropriate for the court to consider appointing a specialist other than the proposed examiner but only where the plaintiff demonstrates, on a preponderance of evidence, sufficient grounds to justify the court in concluding that its discretion should not be exercised in favour of the appointment of the defendant’s nominee: Sinclair v. Underwood and Adelson v. Clint, supra.
In terms of convenience to the plaintiff, I do not understand the authorities to say that an independent medical examination should, or even might preferably, take place at the examinee’s town or city of residence. Nor do I understand those authorities to say that all things being equal, the defence should be required to schedule an examination with a specialist practicing near the examinee’s residence. For example, the court in Willis v. Voetmann, supra, deemed it reasonable for a resident of Port McNeil to travel to Victoria or Vancouver for an examination.
It is almost always an inconvenience to a plaintiff to attend an independent medical examination. An employed person might miss a day’s pay; a homemaker with young children might be required to pay for childcare. However, that inconvenience can be remedied at trial by an award of damages for this suggested loss.
On a very rare occasion, the court may order that the defendant’s nominee travel to the plaintiff’s town or city of residence to conduct the independent examination or assessment. Such an order might be appropriate where the examination or assessment is requested so late in the day that travel time would unduly interfere with the plaintiff’s trial preparation. The alternative to such an order would be to deny the defendant’s entitlement to an examination altogether: White v. Gait, 2003 BCSC 2023.
In this case, there is no objection to the qualifications of either Dr. Leith or the proposed evaluator at Progressive Rehabilitation. The plaintiff can obviously travel although the defendant may need to offer special accommodations for that travel.
In short, convenience to the plaintiff is one of several factors for the court’s consideration on this application. It is not the predominant factor and in itself does not provide justification for denying the defendant’s entitlement to the order sought.
Two of the changes in the new BC Supreme Court Civil Rules are the requirement under Rule 8-1(4) that pre-trial applications be brought using Form 32 and that parties are generally prohibited from providing the Court with written arguments during applications. Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing how much detail parties should include when filling out Form 32.
In today’s case (Zecher v. Josh) the Plaintiff was injured in a motor vehicle collision. The Defendant brought a motion asking the Plaintiff to produce a Pharmanet Printout, monthly statements from his student line of credit, and particulars of his wage loss claim. The applications were dismissed “largely due to the inadequacy of the material presented”. For this reason the judgement does not go far in addressing the substance of such applications under the new Civil Rules. However, in dismissing the applications Master Bouck provided the following helpful reasons guiding litigants when preparing Form 32:
 Form 32 of the SCCR lends itself to providing both the opposing party and the court with full disclosure of the argument to be made in chambers. Parties should put in as much thought to the necessary content of that Form as is done when preparing the supporting affidavits. When a party is represented, responsibility for that content lies with counsel.
 No doubt the Lieutenant Governor-in-Council intended Part 3 of Form 32 to contain more than a cursory listing of the Rules that might support the particular application. For example, common law authorities can and should be included as well as a brief legal analysis. Such an analysis is particularly helpful given that parties are not able to present a separate written argument in civil chambers unless the application is scheduled to take two hours or more of court time.
 In my experience and observation, a comprehensive legal analysis can easily be included in a 10-page notice of application. As well, Rule 8-1 (4) allows the parties to include a list of authorities in the application record.
 By providing an effective analysis of the legal basis for (or against) making the order, the parties may well be able to resolve the application without attending court.
Precedents addressing whether an independent medical exam can be ordered to permit a Defendant to obtain a ‘responding‘ report are still being worked out by the BC Supreme Court. (You can click here to read my archived posts addressing this topic) Reasons for judgement were released today by the BCSC, Victoria Registry, further addressing this issue.
In today’s case (Hamilton v. Demandre) the Plaintiff was involved in 2 separate motor vehicle collisions. She claimed she was injured in the first and that those injuries were aggravated in the second crash. Both lawsuits were set for trial at the same time. One of the alleged injuries was “visual vestibular mismatch with associated dizziness, motion sickness, balance problems and double vision“.
The Plaintiff submitted to medical exams with a neurologist and an orthopaedic surgeon at the request of the Defendant in the first crash. The Plaintiff also attended an examination with a psychiatrist at the request of the Defendant in the second crash.
In support of her claim, the Plaintiff served reports from various experts including an ENT specialist. These reports were served in compliance with the time lines set out in the Rules of Court. The Defendant in the second crash then asked that the Plaintiff attend a further exam with an ENT of their choosing. The examination was to take place less than 84 days before trial.
The Defendant argued that this exam was necessary in order to obtain a ‘responding‘ report. The Plaintiff opposed arguing a further exam was not necessary. Master Bouck agreed with the Plaintiff and dismissed the application. In doing so the Court provided the following useful reasons:
 In a nutshell, the defendant submits that an ENT examination is required to rebut the opinion that the plaintiff’s ocular vestibular problems have worsened as a result of the second accident.
 Dr. Longridge’s report predates the second accident; as such, it is not of assistance to the defendant’s argument. If anyone were to rely on this report to obtain a rebuttal examination, it would be the defendants in the First Action.
 In any event, the complaints of ocular vestibular problems are of longstanding. This is not a case of a new diagnosis or even a suggestion that a referral to such an ENT specialist is medically required. Dr. Ballard merely opines that a referral to such a specialist is a possibility if the plaintiff’s symptoms continue. Moreover, Dr. Moll, whose opinion was clearly available to the defendant for some time, discusses these symptoms in his report of January 21, 2009.
 As submitted by the plaintiff, the defendant chose to pursue a psychiatric, rather than ENT opinion, knowing that the ocular vestibular complaints formed a significant part of the plaintiff’s claim.
 As for the other opinions offered, the experts are in agreement that the plaintiff’s condition has worsened, but that treatment may yet alleviate or reduce those symptoms.
 The defence clearly has a theory: the plaintiff is malingering and/or suffers a somatoform disorder. To have the plaintiff examined by an ENT specialist for an assessment that will either be diagnostic in nature and thus not true rebuttal; or merely to prove a negative, that is to confirm that there is no physiological cause for the balance and visual disturbances, would be inconsistent not only with the authorities cited to me, but also with the purposes of Rule 7?6 and 11?6 (4).
 On the material before me, I conclude that any report forthcoming from Dr. Bell would be fresh opinion evidence masquerading as answer to the plaintiff’s reports.
 In short, the defendant has failed to meet the necessary evidentiary threshold which might support an order for the examinations requested. The application is thus dismissed with costs in the cause.
Despite the many changes in the New BC Supreme Court Civil Rules, one area that has not appeared to change relates to transferring a lawsuit from the BC Supreme Court to the BC Provincial Court (Small Claims Court). The reason for this is that the authority to make such a transfer is not in the Supreme Court Rules, but rather in Supreme Court Act which was not overhauled in the recent transition.
Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, demonstrating that authorities developed prior to the Rules overhaul remain good law.
In today’s case (Madill) the Plaintiff sued the Defendant following a commercial transaction. The lawsuit, if successful, would have resulted in damages below $25,000 and could have been brought in Small Claims Court.
The Defendant set down a motion to dismiss the Plaintiff’s claim and seeking costs. Prior to this motion proceeding the Plaintiff brought her own motion to move the claim to Provincial Court. Master Bouck granted the Plaintiff’s motion and awarded each party tariff costs for various steps taken while the claim was in the Supreme Court. Prior to arriving at her decision Master Bouck set out the following test for transfer applications under section 15 of the Supreme Court Act.
 Applications to transfer proceedings from the Supreme Court to the Provincial Court are somewhat commonplace. The test to be met is set out in Squamish Ford Sales Ltd. v. Doll,  B.C.J. No. 1562 at paras. 16 and 17:
16 Reference has been made to the decision of Master Chamberlist in Manley v. Burns Lake Community Development Assn.  B.C.J. No. 2236. Smithers Registry No. 8953, where the learned master considers some factors which may be applicable on such applications:
 In Hiebert v. Brown,  B.C.J. No. 2015, in dealing with a similar application, I stated that the court in exercising its powers under s. 13.1, must determine whether in all the circumstances it would be just and convenient to order a transfer to Provincial Court after balancing the prejudices to the respective parties.
 Examples of considerations the court has taken into account in balancing these prejudices include, but are not limited to, the following considerations:
(a) lateness in making the application for transfer;
(b) availability of Supreme Court pre-trial procedures;
(c) number of witnesses and the complexity of the case; and
(d) potential quantum of damages.
17 The plaintiff refers to the decision of Master Horn in Martin v. Tom  B.C.J. No 2342, I turn for assistance to the decision of Master Powers in Long v. Jackson (1994) 88 B.C.L.R. (2d) 46. In that judgment he set forth a number of matters which required consideration in relation to an application to transfer to the Provincial Court. I will not repeat all those considerations. The considerations which most affect me are these:
1) There will likely be no delay in this matter coming for trial if the action is transferred to the Provincial Court.
2) While this is a proper case for the consideration of a jury, being an issue of quantum of damages only, a jury trial would be far more expensive and lengthy.
3) Discoveries have been completed and so neither party will be prejudiced by the paucity of discovery procedures in the Provincial Court.
4) The application is brought well before the trial date.
 In this case, the application is brought early in the proceeding; neither party wishes to utilize the Supreme Court pre-trial processes; and there is no evidence of any delay in having the matter adjudicated in Provincial Court.
Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, addressing whether the new Civil Rules require Petitioners to disclose and produce documents.
In today’s case (Fern Castle Holdings Corp. v. Stonebridge Village Residence Ltd.) the Petitioner sought relief arguing that the Respondents took action that was ‘oppressive to the petitioner‘. In the course of the proceeding the Petitioner sought an order requiring the Respondents to produce a List of Documents pursuant to Rule 7-1. The Respondents opposed arguing that this requirement does not apply to Petitions but only to “an action“. Master Bouck agreed and dismissed the motion. In doing so the Court provided the following reasons with respect to the application of Rule 7-1:
 Rule 7-1(1) of the Supreme Court Civil Rules provides as follows:
7-1(1) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period,
(a) prepare a list of documents in Form 22 that lists
(i) all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and
(ii) all other documents to which the party intends to refer attrial, and
(b) serve the list on all parties of record.
 While this Rule has changed the scope of document disclosure, it has not changed the general rule that such disclosure is not required on a proceeding brought by petition.
 On a plain reading of Rule 7-1(1), it is impossible to import or apply document disclosure processes to this proceeding, even with the parties consent. The Rule can only apply to an “action” which is defined as a “proceeding started by a notice of civil claim”: Rule 1-1. Furthermore, the reference to the use of documents at trial confirms that the Rule does not apply to petitions.
 The Application Respondents suggest that the relief sought on this application can only be pursued when or if the petition is converted to an action. I agree. However, the petitioner did not specifically seek that relief in its application and I am reluctant to make an order converting the petition on my own motion.
As I’ve previously written, litigation privilege is a principle which allows parties not to share relevant documents with the other side in a lawsuit in limited circumstances. Despite this principle, the BC Courts seem to be favouring the trend of disclosure making it more difficult for parties not to disclose documents after lawsuits get underway. Reasons for judgement were released last week demonstrating this trend.
In last week’s case (Beer v. Nickerson) the Plaintiff was injured in 2008 as a result of a slip and fall incident at a Pharmasave in Victoria, BC. The Plaintiff alleged the fall occurred as a result of the Defendant’s “negligent operation of her scooter in the store“.
The Defendant contacted her insurance company after the incident. The insurance company conducted an investigation and in the process of this obtained a statement from the Defendant, a drawing of the store prepared by the Defendants daughter, and photographs of the location of the incident.
After the lawsuit started the Defendant’s lawyer refused to provide these documents arguing they were protected by “litigation privilege“. Master Bouck of the BC Supreme Court disagreed and ordered that these documents be produced. In reaching this conclusion the Court reasoned that the documents were not privileged because a lawsuit was not a ‘reasonable prospect‘ when these documents were created and further that they were not created for the ‘dominant purpose‘ of use in a lawsuit. Before reaching her verdict Master Bouck provided the following useful summary of the law:
 The legal principles to be applied on this application are well-settled and set out in Hamalainen (Committee of) v. Sippola (1991), 62 B.C.L.R. (2d) 254, and Stevanovic v. Petrovic, supra. Those principles are as follows:
1. The party withholding disclosure bears the onus of establishing a claim for privilege over a document.
2. The test for considering whether litigation privilege is established is two-fold:
(a) Was litigation a reasonable prospect at the time the document in dispute was created?
(b) If so, was the dominant purpose of the document’s creation for use in litigation? (commonly known as the “dominant purpose” test.)
3. Litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all the pertinent information including that particular to one party or the other, would conclude that it is unlikely that the claim for loss will be resolved without it.
4. However, the prospect of litigation alone is not sufficient to meet the claim of privilege. Nor does the denial of liability alone mean that all documents produced thereafter are subject to a claim for privilege. As stated by the court in Hamalainen v. Sippola:
Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.
6. It is not incumbent upon the court to accept without question the opinion of either deponent on one of the very issues that is to be decided. Whether or not litigation was a reasonable prospect is a matter for the court to decide on all the evidence.
 To these principles I would add that the dominant purpose test is consistent with “the more contemporary trend favouring increased disclosure”: Blank v. Canada (Department of Justice), 2006 SCC 39 at paras. 60-61.
This case is helpful in permitting Plaintiffs to obtain more fulsome disclosure early in a lawsuit. Our Courts have made it clear that if documents are gathered by an insurance company for the purpose of investigating a claim (as opposed to defending a potential lawsuit) then these documents will have to be disclosed under the BC Supreme Court Rules.
When you start a lawsuit in the BC Supreme Court you need to serve the filed Writ of Summons on all Defendants within one year. Failure to do so could result in a dismissal of your claim and reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, demonstrating this.
In today’s case (Mackie v. McFayden) the Plaintiff was involved in a 2005 BC Car Crash. The Plaintiff was allegedly injured in this crash and he sued the owner and driver of the other vehicle.
After the lawsuit was started the Plaintiff served the driver of the other vehicle. However, the Plaintiff never served the Writ of Summons on the Defendant owner. Some two years passed and still service was not affected. The Defendant owner brought a motion to dismiss the Plaintiff’s lawsuit. The Plaintiff brought a counter motion to renew the now expired Writ of Summons seeking permission to serve the document if renewed.
Master Bouck refused to renew the expired Writ of Summons and ordered that the lawsuit against the other vehicle owner be dismissed for “want of prosecution“. In doing so the Court summarized and applied the law relating to renewing an expired writ of summons as follows:
 The law regarding the renewal of the writ is relatively straightforward. Five factors are to be considered:
1. Whether the application to renew was made promptly;
2. Whether the defendant had notice of the claim before the writ expired;
3. Whether the defendant is prejudiced;
4. Whether the failure to effect service was attributable to the defendant; and
5. Whether the plaintiff, as opposed to his solicitor, is at fault.
Imperial Oil Ltd. V. Michelin North America (Canada) Inc. (2008), 81 B.C.L.R. (4th) 99 (C.A.).
 In this case, the application for renewal of the writ was not made promptly. The writ expired in April 2008; the application for renewal was made eighteen months later.
 There is no evidence to suggest that Ms. McFayden has had notice of this claim.
 Mr. Klear submits that there is prejudice to Ms. McFayden. While ICBC will defend the claim, it may seek indemnification for damages paid to the plaintiff.
 Whether or not that is the case, prejudice may be presumed simply by the passage of time without the defendant McFayden having to prove actual prejudice: Mountain West Resources Ltd. v. Fitzgerald (2005), 37 B.C.L.R. (4th) 134 (C.A.). In this case, the writ has been outstanding for nearly three years.
 There is no evidence that the failure to renew the writ is the fault of the defendant McFayden.
 On the other hand, it would appear that the plaintiff’s solicitors (as opposed to the plaintiff) neglected to proceed with the application to renew the writ. Importantly, no explanation whatsoever is offered for this delay. The plaintiff may have his own remedy in these circumstances: Skolnick v. Wood,  2 W.W.R. 649. However, given the defendant Olson’s position that there is no cause of action against Ms. McFayden, the plaintiff may not need to seek such relief.
 Balancing all of these factors, I am persuaded that the writ should not be renewed. Thus, the plaintiff’s motion is dismissed in its entirety.
The Court went on to hold that, even if this decision was wrong, the lawsuit against the vehicle owner should be dismissed for want of prosecution. In doing so Master Bouck noted as follows:
 The plaintiff has known since July 2007 that he required an order for substitutional service in order to proceed with the action. He did not pursue such an order for more than two years. Admittedly, the plaintiff attempted service (thanks to the defendant Olson’s information) in early 2009. However, by that time, the plaintiff (or at least his solicitor) should have been well aware that any application for renewal of the writ (and an order for substitutional service) must be pursued forthwith. Instead, such an application did not occur for another ten months. It is reasonable to infer that the plaintiff’s application for this relief is merely reactive to the defendant’s motion.
 There is no explanation or excuse offered for the delay.
 Prejudice is presumed. No evidence is presented to rebut that presumption.
 In the result, the action against Ms. McFayden is dismissed for want of prosecution.
The lesson to be learned from today’s case is that just because a lawsuit is filed within the appropriate limitation period doesn’t mean that the Plaintiff’s right to proceed with the lawsuit will continue indefinitely. If the lawsuit does not move forward with reasonable diligence a Plaintiff runs the risk of having their case dismissed.
Now to cross reference. As readers of this blog know the New BC Supreme Court Civil Rules come into force on July 1, 2010. Under the New Rules the “writ of summons” has been abolished. However, the originating document in a personal injury lawsuit still needs to be served on Defendants within one year and the Court’s ability to renew the document and to dismiss a claim for want of prosecution remain intact. Accordingly this case will likely retain its value as a precedent after the new rules come into force.
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.
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