In recent months both ICBC and the Provincial Government have been vocal in criticizing the use of medico-legal reports in injury litigation resulting in rule changes restricting the rights of litigants in relying on such evidence. In reality ICBC has no reservations seeking out numerous expert reports when it suits their interests in litigation. This inconsistency resulted in critical comments today from the BC Supreme Court.
Tag: Master McDiarmid
Although the recent ICBC and BC Government narrative attempts to paint injury claimants in an unreasonable light in reality ICBC often refuses reasonable settlement offers only to be ordered to pay far more at trial. Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, demonstrating such a result.
In the recent case (Moreira v. Crichton) the Plaintiff was injured in a 2013 collision. The Defendant admitted fault. The crash resulted in chronic pain with a poor prognosis. This in turn resulted in real disability and significant past and future medical costs and wage loss. The Plaintiff made a formal settlement offer of $480,000. ICBC refused to pay and the matter proceeded to trial where the Plaintiff’s claim was valued over $800,000. ICBC was ordered to pay double costs for refusing the Plaintiff’s reasonable settlement efforts.
Today the Court assessed these costs at $33,264 and ordered that ICBC pay this over and above the value of the claim. Unreasonable positions by litigants have consequences. Here ICBC was ordered to pay a substantial penalty for refusing to treat the plaintiff fairly. In reaching this assessment of costs Master McDiarmid provided the following reasons:
 This is an assessment of costs following a trial before Mr. Justice Betton. The trial was heard in late January and early February 2018; Betton J.’s Reasons for Judgment were rendered on July 31, 2018 cited at Moreira v. Crichton, 2018 BCSC 1281. The total judgment was $804,914.48.
 The plaintiff had offered to settle for $480,000.00 by way of a formal offer to settle on May 23, 2017. In a subsequent hearing in front of Betton J. on December 18, 2018, he ordered that the plaintiff was entitled to costs, including double costs after May 23, 2017…
 That totals 270 units at $110.00 per unit for a subtotal of $29,700.00, plus 7% PST of $2,079.00 and 5% GST of $1,485.00 for a total of tariff item costs, inclusive of taxes, of $33,264.00. The disbursements on a Bill of Costs should reflect my decision, together with the effect of my decision on applicable taxes on disbursements.
 The disbursements on that Bill of Costs should reflect my decision, together with the effect of my decision on applicable taxes.
 If required, plaintiff’s counsel may submit to me a revised Bill of Costs and certificate, in accordance with these reasons.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, granting an adjournment application in the face of uncertain medical evidence addressing prognosis.
In today’s case (Gee v. Basra) the Plaintiff was injured in a 2011 collision for whcih the Defendant accepted liability. The Plaintiff had chronic headaches and the Plaintiff’s physicain was uncertain as to her prognosis noting that a course of Botox injections may prove helpful with the following evidence –
Jodene [the plaintiff] is now four years post injury and has fully participated in the range of therapy offered to her. She continues to experience significant headache, which interferes with her ability to perform at work, at home with household duties, and fully participate in social activities. Headache which is resistant to therapy after such a prolonged period of time has a low probability of recovery, but I feel I could not fully comment on prognosis until she has had a trial of Botox injections. I would recommend Botox, 200 units, every three months for a minimum of three cycles following the pre-empt Chase The Pain [sic] protocol.
The Plaintiff sought an adjournment on the basis of this evidence with the Defendant opposing noting the trial was set to commence in one week. Master McDiarmid granted the adjournment noting that while the application was brought very late in the process an uncertain prognosis could lead to an unfair trial. In granting the application the Court provided the following reasons:
 I conclude that this is not a situation similar to Sidoroff. All questions affecting the justice of the case will not be before the trial judge. He will not know whether Botox is effective to ameliorate the headaches. The judge will not even be able to have estimates of the chance of the Botox working. No such evidence is in the materials, and in fact in the passage I previously cited from Dr. Spacey, she cannot fully comment on prognosis until the plaintiff has undergone a trial.
 That prejudice caused to the plaintiff if she cannot undergo the treatment and assess its results significantly outweighs prejudice to the defendants, who, as noted, have admitted liability. The prejudice to the defendants can be ameliorated largely in costs.
 Accordingly, I grant the adjournment with the following terms:
1) The defendant is entitled to costs thrown away, which I am going to assess summarily at $1,000. That is for trial preparation. They are also entitled to full reimbursement for the cost for arranging videoconferencing testimony of Dr. Richards. Those costs are to be set off from any amount recovered by the plaintiff; in other words, they are not payable forthwith;
2) The defendant is entitled to a further independent medical examination of the plaintiff by a specialist of its choosing; and
3) The defendant is entitled to a further half day discovery.
Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, finding that “it makes little sense to require a plaintiff to be continuously updating past wage loss and special damages claimed”.
In today’s case (Campbell v. Bouma) the Plaintiff was injured in a collision and sued for damages. The claimed losses included past wage loss and special damages. ICBC demanded that the Plaintiff provide particulars of “any claim of loss of earnings to date” and “of her out of pocket expenses”.
In dismissing these requests Master McDiarmid found that the Plaintiff was cooperative in the litigation and that it made little sense to require such claims to be particularized in the earlier stages of litigation. The Court provided the following reasons:
 The way the demand for particulars is framed, it seeks particulars in relation to past wage loss and ongoing or future wage loss. Future wage loss is usually awarded as a loss of capacity claim, unless there is a specific determinable actual future wage loss, such as known time off for future surgery.
 It is trite, of course, that “past wage loss” is determined as of the date of trial. In this case, no trial date has been set.
 Cases require trial management conferences. It is typical for the presider at a trial management conference to order particularization of wage loss and an updated particularization of special damages, so that the defendant is aware of those claims close to the trial date.
 Applying proportionality principles, it makes little sense to require a plaintiff to be continuously updating past wage loss and special damages claimed; those claims should be disclosed as they are known to enable an efficient examination for discovery, but often do not require formal particularization, such that they become part of the pleadings, until close to the trial date…
 The particularization sought respecting specials resulted in plaintiff’s counsel providing a document listing specials; virtually all of those listed specials appear to have been disclosed by the plaintiff in her June 17, 2014 list of documents.
 The particularization sought respecting “wage loss” was actually for “loss of earnings both past and prospective.” An order for past wage loss particularization can be appropriate; as quoted by Walker J. in Mansoorciting Cullen J., at para. 19:
…Here the defendant is necessarily seeking particulars of the ongoing effect of the injuries on the ability of the plaintiff to earn income … Those are matters of evidence and logical reasoning and inference not amendable to particulars.
 Unlike the situation in Mansoor, the defendant in this case has some wage information that was available between the date of the accident, September of 2011, and March 14, 2012. The evidence before me is that plaintiff’s counsel has written to the employer and, no doubt will be providing updated information when received. There was nothing communicated to the plaintiff or her counsel of any particular urgency; they were working under the assumption that information and resulting disclosure were required to enable the defendant sufficient time to prepare for an examination for discovery scheduled for November 3, 2015.
 Exercising my discretion after considering all of the circumstances in this case and applying proportionality, as I am required to do, the orders sought for particulars in paragraphs 1 and 2 of the notice of application are dismissed.
Reasons for judgement were released today (Schroeder v. Sweeney) by the BC Supreme Court, Kelowna Registry, addressing a practice point. Where are examinations for discovery to take place if the parties can’t agree? Master McDiarmid ruled that the default is the lawyer’s office of the party being examined. The court provided the following reasons:
 Subrule 7-2(11) needs a bit of analysis. It provides, firstly, that you are to find a Registry closest to where the party to be discovered resides in British Columbia and then you are to find a location within 30 kilometres of that registry. It does not say that the discovery is to take place at the registry, although in the past that is where discoveries did take place. All of the larger registries had rooms where examinations for discovery occurred. It is true that often the most convenient location is the place where the court reporters carry on their business.
 However, I have always understood the default position (for parties resident in B.C.) to be that if the parties could not agree, the party would be discovered at that party’s counsel’s office.
 There are reasons why that is convenient to the party. One reason is that the full documents in the possession of that party will be available. A second is that the party being examined is in a surrounding where that party’s counsel practises and so the party is presumably somewhat more comfortable there.
 In responding to this particular application, I reviewed some comments — and not unreasonable comments by the plaintiff, where he deposes basically, that yes, he could go to the court reporter’s office, but he does depose to some issues with parking. That does, to some extent, impact on his convenience. It seems to me though that the — what I am going to call the default provision which was certainly the provision I understood as counsel was that if parties could not agree, the discovery should take place at the office of the counsel representing the party to be discovered. The matter is somewhat of an important practice point.
 I am dismissing the application and ordering that the discovery take place at the office of the plaintiff’s counsel. The part of the application that the plaintiff attend Okanagan Court Reporters is dismissed and instead of that, the order is that the plaintiff attend at examination for discovery at the offices of his counsel.
While the law in BC presently does allow interest on disbursements to be recoverable in the right circumstances, a prerequisite for recovery is an evidentiary foundation proving that it was necessary to incur the interest claimed. Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry (Babb v. Doell) rejecting such a claim due to a lack of evidence. In reaching this decision Master McDiarmid provided the following reasons:
 A claim for interest by a party entitled to costs might in some circumstances be characterized as necessary, for example, in a situation where the incurring of disbursements such as filing fees or daily hearing fees could only be done by obtaining some funding. Interest could also be a proper disbursement when it was reasonably incurred in the conduct of the proceeding even if, strictly speaking, avoidable. In Franzman, evidence was led which satisfied me that the disbursement interest which the plaintiff agreed to pay to her lawyers as part of a fee agreement was proper and I allowed, as a disbursement, the amount of interest calculated at 6%.
 Most written retainer agreements contain provisions for payment of interest on unpaid accounts. Many retainer agreements contain provisions which are binding as between lawyer and client, for the payment of some disbursements at a rate higher than the rate allowed by registrars when assessing party/party costs. Even in contingency retainer agreements, plaintiffs often agree to and have the means to pay disbursements and do so.
 Unlike in Franzman and in Chandi (Guardian ad litem) v. Atwell, 2013 BCSC 830, the decision relied on by the plaintiff, there is no evidence before me to assist in me establishing either the necessity or the propriety of the plaintiff’s claim for interest.
 As noted above, the onus of proving either the necessity or propriety of disbursements is on the party claiming those disbursements. Absent such evidence, I am unable to make a determination that the interest claimed was either necessary or proper. Accordingly, the claim by the plaintiff for interest is denied.
One of the developing areas of law relates to whether interest charged on disbursements are recoverable under the BC Supreme Court rules. The BC Court of Appeal may weigh in on the subject but until that time, useful reasons for judgement were released noting that interest on disbursements can indeed be recovered.
In this week’s case (Franzman v. Munro) the parties could not agree on the reasonableness of many disbursements incurred in a personal injury claim which totaled approximately $90,000. The interest for financing these disbursements came to over $5,000. Although there was mixed success on some of the claimed disbursements the Court noted that the interest charged was a fairly claimed item. In reaching this conclusion Master McDiarmid provided the following reasons:
 I find that it was necessary for the plaintiff to incur significant disbursements in order to properly pursue her claim. I find as well that the arrangement she made with her lawyer was both necessary and proper.
 We are constantly hearing how difficult it is for ordinary people to afford access to our courts. The fee agreement entered into between the plaintiff and her lawyer facilitated her having access to the courts. The interest rate charged by the law firm, that being essentially the interest it was paying on its operating line of credit (a way in which many law firms finance their operations) is reasonable.
 Defendant’s counsel advised that Chandi is under appeal. Plaintiff’s counsel pointed out that the plaintiff has no ability to control whether that appeal will ever proceed, and the plaintiff should not be restricted from executing on its judgment, including costs, while awaiting the unknown result of an appeal.
 Savage J., at paras. 35 and 36, gave a succinct and accurate analysis of comity and the principles enunciated in Re Hansard Spruce Mills,  4 D.L.R. 590 (BCSC), as follows:
 In Re Hansard Spruce Mills, Wilson J., as he then was, was asked to give a ruling that was at direct variance with the ruling of a fellow judge of the Supreme Court. In refusing to contradict the ruling of a judge of the same court, Wilson J. said:
The Court of Appeal, by overriding itself in Bell v. Klein,  B.C.J. No. 152, has settled the law. But I have no power to overrule a brother Judge, I can only differ from him, and the effect of my doing so is not to settle but rather to unsettle the law, because, following such a difference of opinion, the unhappy litigant is confronted with conflicting opinions emanating from the same Court and therefore of the same legal weight. This is a state of affairs which cannot develop in the Court of Appeal.
Therefore, to epitomize what I have already written in the Cairney case, I say this: I will only go against a judgment of another Judge of this Court if:
(a) Subsequent decisions have affected the validity of the impugned judgment;
(b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered;
(c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority.
If none of these situations exist I think a trial Judge should follow the decisions of his brother Judges.
Re Hansard Spruce Mills at 592.
 Re Hansard Spruce Mills has been cited in over 460 cases (and counting). It has a lengthy history of application in British Columbia courts and has been described as the “dominant approach” to judicial comity in Canada: Debra Parkes, “Precedent Unbound? Contemporary Approaches to Precedent in Canada” (2007) 32 Man. L.J. 135 at 160.
 Chandi is binding on me. No restriction is placed on the award of interest as part of my assessment of costs. The interest claimed is both necessary and proper, and is claimed in a reasonable amount. It is allowed in full as claimed.
When a party serves an expert report in a BC Supreme Court lawsuit opposing parties are entitled to disclosure of any data compiled by the expert in relation to the report. When it comes to neuropsycholgoists reports, the raw test data compiled by neuropsychologists is relevant and disclosable. Sometimes it is difficult to obtain this data as neuropsycholgoists have ethical and contractual considerations limiting how and when such data is to be disclosed. Often neuropsychologists only wish to disclose the data directly to another neuropsycholgist.
Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry (Smith v. Rautenberg), addressing this and concluding that there is no reason why such data is exempt from disclosure under the BC Supreme Court Rules. In ordering the data to be disclosed directly to the litigant Master McDiarmid provided the following reasons:
 Appendix B to the report documents over 20 tests, particularizes the ability being assessed by some of the tests and gives a result under the heading “Classification” for each of the tests (except the last mood tests). Specific components of some of the tests are set out.
 A description of the tests in Appendix B are what I would characterize as quite technical. They are the sorts of tests which seem to me would require considerable expertise to both administer and interpret. Clinical psychologists, and in particular clinical neuropsychologists, would probably have the expertise to know whether the administered tests did in fact assess the ability which they purport to assess, and would be able to interpret the data to determine whether or not the interpretation placed on the assessment results by Dr. Pirolli was the proper interpretation. It seems unlikely that the test results could be intelligibly interpreted by persons who did not possess significant expertise in psychology and/or neuropsychology, just from the description of the tests…
 In making my decision, I agree with what was written by Southin J.A., namely that when an expert in one field in possession of documents says that someone from a different discipline is not competent to understand his work, that the court is to be slow to overrule his judgment. That is a very different thing from saying that the documentation could not be produced to counsel for the party seeking production. If that party choses to have the documents interpreted by someone not competent to understand them, lack of competence will be readily available to a trial judge and will work against the party who conducts litigation in that way.
 I also respectfully agree that courts must not run rough shod over those who are not parties to the proceedings. That is why the Rules require delivery of notices of applications to non-parties from whom documents are sought.
 The evidence before Master Horn in Davies was that there was an ethical restriction placed on the neuropsychologist to prevent disclosure. The actual evidence that was presented in that case is not before me.
 I had evidence before me of the current Code of Conduct. So long as Dr. Pirolli complies with the Code of Conduct, and in particular that portion of the Code of Conduct set out in subparagraph 1.2, reproduced above in para. 28, her ethical requirements are met.
 The other concerns raised by the plaintiff are dealt with by the litigation privilege which attaches to the documents.
Reasons for judgement were released last week by the BC Supreme Court, Kamloops Registry, addressing costs for witness preparation.
In last week’s case (Carson v. Henyecz) the Plaintiff was injured in a motor vehicle collision. She succeed at both a liability trial and subsequently at a quantum assessment. The Plaintiff was awarded costs. With the exception of experts, the Plaintiff was the only witness at trial. The Plaintiff sought costs for interviewing witnesses for both the Plaintiff and expert witnesses. ICBC argued this was not recoverable as item 18 of the Tarriff does not include parties nor experts. Master McDiarmid disagreed and allowed costs for these items. In doing so the Court provided the following reasons:
 The most significant dispute between counsel was with respect to item 18. The plaintiff submitted that the process associated with interviewing witnesses included interviewing those witnesses with respect to their attendance at trial. The plaintiff submitted that this included interviewing the plaintiff, who was of course a witness on her own behalf in both trials. It was also submitted by plaintiff’s counsel that item 18 would also permit units to be awarded for interviewing the experts with respect to their attendance at trial…
 Forms 20 and 21, the case plan proposal and case plan order, have separate sections for expert witnesses and contain provisions for providing a witness list. Form 41, the trial brief, has a heading entitled “Witnesses to be Called On,” which requires the parties to provide the names and addresses of the witnesses the filing party intends to call at trial, together with an estimate for the time each witness will need for giving direct evidence. There is no differentiation on a trial brief between witnesses who are parties, witnesses who are representatives of corporate parties, expert witnesses, or other witnesses.
 From this I conclude that a party can claim under item 18 with respect to all witnesses for all parties, including in this case the plaintiff and including expert witnesses.
Rules 7-1(16) and (17) deal with producing relevant documents to opposing litigants and costs associated with doing so. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with the rate of reasonable photocopy charges.
In last week’s case (Perone v. Baron) the Plaintiff was involved in a motor vehicle collision. In the course of his lawsuit ICBC requested copies of relevant documents agreeing to pay $.30 per page for photocopy expenses. The Plaintiff agreed to produce the documents but insisted that $.35 should be paid per page. The difference was ultimately resolved via Court Application with Master McDiarmid providing the following reasons:
33] I accept what Esson J.A. wrote, namely that photocopying charges under Rule 7(1)(16) are more closely akin to what would be allowed in a solicitor-client costs review. I also note, though, that at the time Giulianiwas decided, just over 14 years ago, the registrar’s rate was only 60% of what it is now.
 After reviewing the facts before me and the law presented to me, I consider that the rate of 30¢ per page is appropriate. I order the production of the documents by the respondent on the terms sought. Paragraphs 1 and 2 of the application are granted.