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Tag: Mr. Justice Blair

Costs Threats Against Expert Witnesses An Abuse of Process

In the first case I have seen addressing this issue, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, striking out language in correspondence between lawyers as an abuse of process.
In today’s case (Walker v. Doe) the Plaintiff objected via letter sent to Defence counsel to the admissibility of Defense expert reports, and as part of the “boilerplate” objections Plaintiff’s counsel noted that “we shall seek sanctions personally against [expert’s name], including but not limited to special costs“.
In finding that the Rules of Court allow a Judge to strike out language in such a letter Mr. Justice Butler reasoned as follows:
[7]             Letters sent by counsel to provide notice of objection to the admissibility of an expert report are required to be served pursuant to R. 11-6(10). The notice must set out “any objection to the admissibility of the expert’s evidence that the party receiving the report … intends to raise at trial.” The notice required by the Rule is a document mandated by the Rules in which a party must set out their position for trial.
[8]             Rule 9-5(1) is not limited to pleadings but also applies to petitions and “other documents”. Document is defined in R. 1-1(1) in broad terms. There is no doubt the notice required under R. 11-6(10) is a document pursuant to that definition. However, the word must be interpreted ejusdem generis in the context of the phrase, “pleading, petition or other document”. Applying that aid to interpretation, I conclude that “other document” refers to documents which are required by the Rules to formally set out a party’s position, claim or defence. The notice under R. 11-6 (10) is such a document.
In finding the costs threat amounted to an abuse of process the Court provided the following reasons:
[15]         In conclusion, expert witnesses play an important role in the litigation process. When an expert is properly qualified within an area of expertise and the expert’s opinion evidence, which is not otherwise excluded, meets the essential criteria of relevance and necessity in assisting the trier of fact, it can be admitted to assist the court: R. v. Mohan, [1994] 2 S.C.R. 9. The Rules establish a process which provides adequate notice of expert opinions and sets up a way to challenge admissibility. There is no need to introduce into the process, by way of boilerplate language in notices under R. 11-6(10), threats of claims against experts for special costs. As I have already noted, it is entirely unnecessary. Further, it has the potential to frustrate the litigation process because it may discourage the participation of expert witnesses. In addition, and contrary to the intent of the new Rules, it would seem to place the expert in an adversarial position.

$30,000 Non-Pecuniary Damage Assessment for "Moderate" Soft Tissue Injuries

Adding to this site’s ICBC claims pain and suffering database, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a moderate soft tissue injury.
In today’s case (Olianka v. Spagnol) the Plaintiff was injured in a 2008 collision.  Fault was admitted.   The evidence was not particularly contested and the trial proceeded summarily.  The Court found the Plaintiff suffered moderate soft tissue injuries that were temporarily disabling with symptoms that were expected to linger into the future.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $30,000 Mr. Justice Blair provided the following reasons:

[21] Mr. Olianka suffered what Dr. Neumann describes as a moderate soft tissue injury to the neck, a moderate soft tissue injury to the mid-back and a mild soft tissue injury to his lower back. I accept Mr. Olianka’s evidence with respect to his collision-related injuries and that these injuries precluded him from working for a four-month period. I also accept that Mr. Olianka continues to experience intermittent pain in his neck and upper back which is expected to last for some unknown period. Dr. Neumann opined that by January 14, 2011, Mr. Olianka had made a significant recovery from his injuries and concluded that his residual pain should gradually subside in intensity and frequency. He did not expect Mr. Olianka to suffer any permanent consequences from his collision-related injuries.

[22] Nevertheless, the optimism expressed by Dr. Neumann and reflected in Mr. Olianka’s increased activity level does not overshadow Mr. Olianka’s difficulties for the 27-month period between the collision and Dr. Neumann’s report dated January 14, 2011. In that period, Mr. Olianka, due to his injuries, was unable to work for four months and subsequently those injuries compromised his ability to fully perform his work as he had done prior to the collision. In addition, he was unable to enjoy the leisure activities in which he had participated prior to the collision. This 27-month recovery period must be considered when ascertaining the non-pecuniary damages award to which Mr. Olianka is entitled. I accept that he continues, to some lesser degree, to suffer intermittent pain from his collision-related injuries as described by both Mr. Olianka and Dr. Neumann…

[28] Based on the authorities and the unique evidence found in this case, I find that the appropriate award for Mr. Olianka’s non-pecuniary damages is $30,000, taking into account all contingencies, given the extent of the soft tissue injuries to his neck and back, the disability period of 27 months post-collision, as well as the lingering and ongoing aspect of his injuries, the limitations that the injuries imposed, not just on his ability to work, but also on his ability to partake in those physical activities which occupied his life prior to the collision and which he has only recently been able to resume albeit to a limited extent.