Tag: Master Shaw

Firing a Personal Injury Lawyer Part 2 – What Happens When There is no Contract?


Earlier this year I discussed some matters clients should consider prior to firing a personal injury lawyer who was hired on a contingency fee basis.  What if you’ve hired a lawyer but never signed a fee agreement?  What, if anything, would you owe your lawyer if you fire them in these circumstances?  Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, discussing this topic.
In this week’s case (Baxter v. Mary Fus Law Corporation) the Plaintiff was injured in a motor vehicle collision.  He hired the Defendant law firm to represent him but never signed a fee agreement.   The lawyer started a BC Supreme Court lawsuit.  Prior to trial the client decided to switch lawyers.  The original lawyer issued two bills asking the client to pay just over $13,000 for services rendered.  The client took issue with these accounts and asked the Court to review them.
The Court ultimately reduced the bills by approximately 25%.  Prior to doing so Master Shaw made the following useful comments about fee obligations when a lawyer is hired and fired without a fee agreement being signed:

[20]         The issues in this review are:

1)    what is a fair fee for the work provided to the client by the lawyer?

2)    what are the disbursements that can be charged by the lawyer to the client?

[21]         In Nathanson, Schachter & Thompson v. Inmet Mining Corp., 2009 BCCA 385, the court for the majority of the Court of Appeal, at para. 46, state:

In the absence of an express agreement concerning payment, it is obviously an implied term of a retainer that the solicitor will be remunerated for his or her work. In this province, the contractual gap created by a failure of the parties to agree specifically on the terms of payment is filled by s. 71(4) of the Act, which stipulates that in the absence of an express agreement, the solicitor’s fee will be assessed on the basis of the factors enumerated therein, i.e., on what has come to be called a “fair fee” basis.

[22]         That statement applies to this case. The lawyer and client never reached an express agreement concerning payment. The lawyer’s fee is to be assessed on the basis of a “fair fee” by consideration of the factors set out in s. 71(4) of the LPA.

[23]         Section 71(4) of the LPA states:

(4) At a review of a lawyer’s bill, the registrar must consider all of the circumstances, including

(a) the complexity, difficulty or novelty of the issues involved,

(b) the skill, specialized knowledge and responsibility required of the lawyer,

(c) the lawyer’s character and standing in the profession,

(d) the amount involved,

(e) the time reasonably spent,

(f) if there has been an agreement that sets a fee rate that is based on an amount per unit of time spent by the lawyer, whether the rate was reasonable,

(g) the importance of the matter to the client whose bill is being reviewed, and

(h) the result obtained.

ICBC Tort Claims, Part 7 Benefits and Multiple "Independent" Medical Exams


As I’ve previously written, ICBC can typically arrange an ‘independent’ medical exam (IME) in one of two ways.  The first is when an ‘insured’ applies for first party no-fault benefits.  Section 99 of the Insurance (Vehicle) Regulation gives ICBC the power to compel an IME in these circumstances.  The second is under Rule 7-6(1) of the BC Supreme Court rules which allows the court to order an independent exam to “level the playing field” in an injury lawsuit.
As a monopoly insurer ICBC often has one adjuster assigned to look after a person’s claim for no-fault benefits and at the same time look after the defendant’s interests in the Plaintiff’s tort claim.  Often times ICBC will obtain a no-fault benefits medical exam and then once a tort claim is launched seek a second exam with a different physician pursuant to the BC Supreme Court Rules.  Can ICBC do this?  The answer is sometimes yes but is highly factually dependent and reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with this area of law.
In today’s case (Imeri v. Janczukowski) the Plaintiff was injured in a motor vehicle collision in 2005.  The Plaintiff and Defendant were insured with ICBC.  The same ICBC adjuster was looking after the Plaintiff’s no-fault benefits claim and acting on behalf of the defendant in the tort claim.  ICBC sent the Plaintiff for an IME with an orthopaedic surgeon (Dr. Boyle) as part of the no-fault benefits application process.  In the course of the tort claim the Defendant then sought an order sending the Plaintiff for an IME with a different orthopaedic surgeon (Dr. McGraw).  The Plaintiff opposed this motion and argued that if ICBC is entitled to a second exam it should be with the the same doctor.  Master Shaw sided with the Plaintiff.  In doing so the Court provided the following useful reasons:

[17]        Rule 7-6(1), which is the new Rule 30, provides as follows:

Order for medical examination

(1) If the physical or mental condition of a person is in issue in an action, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order under this subrule, the court may also make

(a) an order respecting any expenses connected with the examination, and

(b) an order that the result of the examination be put in writing and that copies be made available to interested parties of record.

[18]        In Stainer v. Plaza, 2001 BCCA 133, Finch J.A. (as he then was) said at para. 8:

… the purpose of Rule 30 is to put the parties on an equal footing with respect to medical evidence.

[19]        Although the first question would be whether the defence needs an IME of an orthopaedic specialist to put the parties on an equal footing with respect to medical evidence, counsel for the plaintiff did not oppose the plaintiff attending a defence IME with an orthopaedic specialist as long as it was Dr. Boyle. The plaintiff agrees to go back to Dr. Boyle for the IME.

[20]        The plaintiff’s submission is that the plaintiff has already attended a first IME for tort purposes with Dr. Boyle and, if a further IME is appropriate, it should be a follow-up with the original expert for the defence.

[21]        In Rowe v. Kim, 2008 BCSC 1710, Master Keighley at para. 14 states:

A party seeking to have a second examination preformed by a practitioner practicing in the same speciality or discipline as a practitioner who has already examined a person faces an uphill battle: Hothi v. Grewal, [1993] 45 B.C.L.R. (3d) 394 (SC); Hamada v. Semple, [1983] B.C.J. No. 1307 (SC). Successful applicants are those who are able to demonstrate that something has happened since the first examination which could not have been foreseen or which could not, for some other reasons, have been addressed by the first examiner. It also seems to me that material filed in support of the application should indicate why a further examination by the doctor who performed the original assessment is not appropriate.

[22]        The evidence submitted in this matter does not set out why it would not be appropriate to send the plaintiff back to Dr. Boyle. There was no evidence why Dr. McGraw should be preferred over Dr. Boyle.

[23]        The plaintiff does not resist seeing Dr. Boyle. It is not necessary to find sufficient reasoning for the further examination by Dr. Boyle.

[24]        I find the February 28, 2006 report of Dr. Boyle contains opinion relevant to both the Part 7 claim and the tort claim. The defence has not provided any evidence to explain the opinion content in the report relevant to the tort claim, other than the statement of the adjuster in her letter to the plaintiff setting the appointment that the IME is for the Part 7 claim purposes. It is not known what the request or instructions to Dr. Boyle were. Based on the content of the resulting report, there is opinion relevant to the tort claim. I find the IME by Dr. Boyle on February 28, 2006 is a first examination by an orthopaedic specialist in the tort claim as well as for a Part 7 claim.

BC Supreme Court Rules Update: Withdrawing an Admission of Fault

Reasons for judgement were released today considering when a Defendant can withdraw an admission of fault in a personal injury lawsuit.
In today’s case (Surerus v Leroux) the Plaintiff was injured when he was struck by a vehicle operated by the Defendant.  He sued for damages and alleged the crash was the Defendant’s fault for a variety of reasons including that the Defendant drove a vehicle with defective brakes.  ICBC, the insurer for the Defendant, instructed the defence lawyer to admit fault.
In the course of the lawsuit the Defendant wished to withdraw the admission of fault.  The Defendant brought a motion asking the Court’s permission to do so.  Master Shaw dismissed the motion finding that the request was brought too late in the course of lawsuit.
The Court applied Rule 7-7(5) of the New BC Supreme Court Civil Rules (the rule dealing with withdrawing admissions).  This is the first case I’m aware of applying this rule however it’s worth noting that the rule’s language is almost identical to the old rule 31(5)(c) and the Court relies on precedents established under the old rule as being authoritative.  In dismissing the motion Master Shaw made the following comments:

[3]             Rule 7-7(5) reads as follows:

Withdrawal of admission

(5)  A party is not entitled to withdraw

(a) an admission made in response to a notice to admit,

(b) a deemed admission under subrule (2), or

(c) an admission made in a pleading, petition or response to petition

except by consent or with leave of the court.  …

[17]         This is not a case where the plaintiff’s pleadings set out a variety of allegations of possible negligence. The plaintiff made a specific allegation in his pleadings of poor mechanical condition and faulty brakes.

[18]         The defence says that there is an issue to be tried, and states that the defendant’s evidence will be that he had no prior knowledge of the brake issue before the accident.

[19]         In 374787 B.C. Ltd. v. Great West Management Corp., 2007 BCSC 582, Madam Justice Martinson states at para. 27:

27        As a general rule the Court must consider whether in the circumstances of the case the interests of justice justify the withdrawal of the admission. The following factors, which are not exhaustive are relevant: delay, loss of a trial date, a party is responsible for an erroneous admission, inadvertence in the making of the admission and estoppel. See Meisenholder v. Wikdahl, 2005 BCSC 630 and Hamilton v. Ahmed. A deemed admission can be withdrawn even where the failure to reply was deliberate: Linear S.R.L. c. CCC – Canadian Communications Consortium Inc. 2001 BCSC 682.

[20]         I am satisfied that the interests of justice do not justify the withdrawal of the deemed admission.

[21]         I have reviewed the factors set out by Madam Justice Martinson in 374787 B.C. Ltd. and affirmed by the Court of Appeal. This claim was filed October 6, 2008. It is almost four years since the date of the accident. There is a trial date scheduled for April 11, 2011. Discoveries have been conducted. The notice of motion was not filed until May 28, 2010, although the defence notified the plaintiff in September of 2009 that they were attempting to withdraw their admission of liability. I find that the delay of the defendant bringing this application, from the time of the accident to now, is a concern which cannot be overcome.

[22]         The trial date scheduled for April 11, 2011, is not imminent and, therefore, not necessarily at risk for losing the date.

[23]         There was no evidence put before this court with respect to the status of the vehicle. It is unknown if it is even available for inspection. The plaintiff specifically pleads in the statement of claim the condition of the brakes. That should have alerted the adjuster and defence. Even if the admission was inadvertent, there appears to be an element of simply not paying attention to the pleadings.

[24]         Withdrawing the admission at this late date would be prejudicial to the plaintiff. The plaintiff has acted to his detriment by relying on the admission.

[25]         I find that the interests of justice would not be served by allowing the withdrawal of the admission at this date.

[26]         In the result, I dismiss the application of the defendant. Costs will go to the plaintiff in any event of the cause.

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!”
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