Update September 25, 2013 – The below decision was upheld by the BC Court of Appeal in reasons released today
I’ve written many times about the BC Supreme Court’s “loser pays” system which generally requires a losing litigant to pay for the winner’s costs and disbursements. If a lawsuit is started on a child’s behalf and on reaching adulthood they take over the claim themselves can the former litigation guardian still be exposed to loser pays costs consequences? The answer is yes as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (McIlvenna v. Viebeg) a lawsuit was commenced on behalf of an infant plaintiff in 2003. By 2009 the Plaintiff was an adult and took over the prosecution of his claim himself by filing an affidavit of attainment of majority. The matter proceeded to trial and the claim was ultimately dismissed. The Defendant was awarded costs. An issue arose as to whether the Plaintiff or the previous litigation guardian were liable to pay these. The Court held that the Litigation Guardian was liable for costs up until the Plaintiff reached the age of majority and the Plaintiff was liable from that point onward. Mr. Justice Sigurdson provided the following reasons:
 Although Bird J.A.’s comments on the liability of litigation guardians for costs in Miller were dicta, they were considered dicta. Bird J.A. concluded that an infant ratifying the action after attaining the age of majority does not inherit and replace the litigation guardian’s liability for costs. I have seen nothing in the authorities that lends support to the position that a defendant’s possible entitlement to costs from a litigation guardian disappears when the infant reaches majority. I expect that subsequent to Miller, litigation guardians starting actions (and filing affidavits at the time) understood their potential liability for costs and the fact that it continued at least up to the infant’s majority. Rule 20-2(12) and (13) do not suggest that the filing an affidavit upon attaining the age of majority removes any possible past liability of the litigation guardian for costs.
 While it is true that a possible adverse costs order may deter a person from suing as a litigation guardian, there are also policy reasons that support awarding costs in favour of successful defendants. In any event, I think the underlying law has been clear for more the 50 years that a litigation guardian assumes potential liability for costs if he or she starts an action as a litigation guardian and is not successful.
 Accordingly, my conclusion is that Shawne McIlvenna, the plaintiff’s former litigation guardian, is responsible for the costs that I have already ordered, up to February 27, 2009, when the plaintiff filed his affidavit of majority. ..
Further to my previous posts addressing this topic, two sets of reasons for judgment were released recently by BC Courts addressing the law of adverse inference in the failure of parties testifying in their own injury claim.
In a recent Court of Appeal decison (O’Connell v. Yung) the Plaintiff suffered a serious brain injury as a result of a 2007 tractor-trailer collision. The consequences of her injury caused her to “lack insight into her difficulties”. At trial the Plaintiff did not take the stand with counsel explaining that this choice was made because “she was an unreliable historian and could not add anything to the truth of the evidence she would be giving”. The Plaintiff’s case instead consisted of medical evidence and that of collateral witnesses.
The Plaintiff was awarded significant damages at trial. The Defendants appealed arguing the damage awards were too high and further that the trial judge erred in not drawing an adverse inference from the Plaintiff’s failure to testify.
The Court of Appeal, while somewhat reducing the damages awarded for cost of future care, found that no error was made in not drawing an adverse inference. Madam Justice Kirkpatrick provided the following reasons:
 I first observe that this Court stated in Jones v. Trudel, 2000 BCCA 298 at para. 34, 185 D.L.R. (4th) 193, that the failure to address the question of whether an adverse inference should be drawn is not, in and of itself, reversible error: per Southin J.A. Mr. Justice Lambert agreed that the trial judge made no reversible error and stated, at para. 52:
In particular, it is my opinion that the trial judge was neither obliged to draw an adverse inference from the plaintiff’s failure to call the witnesses named by the appellants, nor to give reasons for not doing so. If a trial judge is asked to draw an adverse inference from a failure to call a particular witness, then whether the trial judge ought to deal with that point in her reasons must depend on an assessment of the significance of the point in the case, and on the trial judge’s concern to deal with all the points that might be thought to be significant by the losing party. I do not think that any more general rule than that is desirable.
 The application of that general rule is dispositive of this ground of appeal. I will nonetheless address the arguments raised in this case as they are important to the ultimate outcome of the appeal…
 In my opinion, the adverse inference advocated by the appellants cannot fairly be drawn in the circumstances of this case. First, the defendants at trial did not ask that an adverse inference be drawn. Second, the medical evidence supports the judge’s conclusion that Ms. O’Connell had limited ability to testify. Further, the evidence suggests that had Ms. O’Connell testified she may have left a false impression as to the extent of her severe brain injury. As Dr. Hirsch noted, [AB V. 4, p. 573] “On the surface, she looks fine and she has intact social skills, however, she would not be able to look after her needs properly.” Similarly, Dr. Anderson testified that Ms. O’Connell is “easily influenced by others” and tends to say whatever they want to hear. In my view, Ms. O’Connell’s limited ability to testify would have complicated rather than aided in the assessment of her claims.
 The judge recognized the difficulty presented by Ms. O’Connell not testifying but accepted the explanation given by her counsel. Her decision would obviously be informed by her assessment of all the evidence.
 In these circumstances, I consider the explanation given to be adequate and would reject the submission that the judge erred in not drawing an adverse inference from Ms. O’Connell’s failure to testify.
Also of note is a recent BC Supreme Court decision (McIlvenna v. Viebig) wherein the Plaintiff was seriously injured in a collision with a vehicle. At trial neither the Plaintiff nor the Defendant testified. Both parties asked the Court to draw an adverse inference from the opposing side’s failure to testify. Mr. Justice Sigurdson refused to draw such an inference and in doing so set out comprehensive reasons addressing this area of the law at paragraphs 68-74 of the reasons for judgement which are worth reviewing in full.
As I’ve previously discussed, BC Supreme Court Judges have discretion to re-open a trial after all parties closed their case. This is so even after judgement is given (so long as a final order has not been entered). Judges must exercise this discretion with caution but there is flexibility in doing so as was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (McIlvenna v. Viebig) the Plaintiff was injured in a 1995 incident when the bicycle he was riding collided with a motor vehicle driven by the defendant. The Plaintiff was 7 years old at the time. One of the matters at issue at trial was the Defendant’s ability to operate his vehicle safely. In pre-trial discovery the Defendant gave evidence that his health was “like a grizzly bear” at the time of the crash. When asked about having difficulty with sight he did not mention having any eye problems.
The trial ended and while both parties were waiting for the Court’s reasons the Plaintiff obtained the Defendant’s MSP printout. This documented some health care visits with billings relating to “disorders of the optic nerve and visual pathways” as well as “retinal disorders or eye tests” not long before the collision. On the strength of this the Plaintiff applied to re-open the trial so further evidence could be called addressing these issues. The Defendant opposed arguing that the Plaintiff was not diligent enough in exploring these issues pre-trial.
Mr. Justice Sigurdson took a more practical approach and adjourned the application ordering that the defendant obtain and produce further medical records relating to these health care visits. In demonstrating the flexibility trial judges have to ensure a fair trial occurs Mr. Justice Sigurdson provided the following useful reasons:
 Mr. Battista in reply suggested an alternative approach to his motion, which I think is the just manner in which to deal with the application. I have decided to adjourn the application of the plaintiff to re-open its case pending production of the records sought if they are available. I think that it is relevant to the question of whether to adjourn the application pending such production that the plaintiff sought production of the MSP records prior to trial but they were unable to be produced until after the trial was heard. Accordingly, I direct that the records of the doctors that I have described be produced to counsel for the defendant, Ms. Wright. I direct that they produce the records for what appears to be the relevant period, 1994 to 1997, if they are available. Once produced, Ms Wright will review them for relevancy and, if relevant, produce them to counsel for the plaintiff. The plaintiff will pay forthwith the reasonable costs incurred in the production of these records by the doctors. Given Mr. Viebig’s apparent mental condition at the present time, I make the order requiring production by the doctors without an authorization signed by him. As this order for is made without prior service on the doctors involved, they will have liberty to apply on two days’ notice to the parties’ counsel to set aside the order.
 For clarity, the doctors whose records are to be produced that relate to the defendant are for the doctors that I have referred to above that I listed from the MSP printout as well as those of Dr. Shier, the general practitioner for the defendant during that period of time.
 Once the documents are produced to the defendant’s counsel and then to the plaintiff’s counsel, counsel for the plaintiff will forthwith advise counsel for the defendant if he intends to set down the adjourned application to re-open the case. If not, I will then complete and issue my reasons for judgment after trial. Because of the age of this matter and to ensure there is no further unnecessary delay, I ask the parties to fix a case management conference with me within the next six to eight weeks to report on the status of this matter.