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Tag: Mr. Justice Groves

Court Criticizes ICBC “Failure” To Pay For Necessary Treatments Highlighting Shortcomings of their so called “Care Based” Model

Written by ERIK MAGRAKEN on . Posted in Uncategorized.

ICBC and the Provincial government have been working overtime trying to persuade British Columbians that stripping collision victims of the right to go to court to be fairly paid for their injuries is a good idea.  They claim that by taking away these rights ICBC will treat victims fairly under a so-called ‘care based’ model.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, demonstrating that ICBC can be anything but fair when it comes to meeting their obligations to pay for long term injury treatments.

In today’s case (Del Bianco v. Yang) the Plaintiff sustained life long injuries in a collision.  At trial he was awarded damages which included payment for future care for massage therapy and kinesiology.  Despite being ordered to pay this money ICBC refused saying they will pay that portion of the judgement from the Plaintiff’s ‘no fault’ insurance with them over the years as the treatments are incurred.  An ICBC adjuster swore an affidavit declaring payments would be made.

The Court did not accept that ICBC would make payments, however, noting that they refused to pay the mandated no-fault benefits in the years prior to trial leaving little confidence that they would fairly meet their future obligations.  In refusing to deduct the vast majority of the awarded future care costs Mr. Justice Groves provided the following criticism of ICBC’s handling of the claim and their unexplained “failure” to pay past benefits they were obliged to:

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Disputed Injury Diagnosis – Six of One, Half a Dozen of the Other…

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, making the common sense finding that the debate over diagnosis is not nearly as important in a personal injury lawsuit as whether symptoms are tied to the indicent in question.
In today’s case (Tan v. Mintzler) the Plaintiff was injured in a 2012 collision and experienced chronic cognitive symptoms.  At trial a debate arose about whether the symptoms were due to a head injury from the collision or secondary to chronic pain.  The Court found the Plaintiff did indeed suffer a head injury however noted the debate was largely insignificant as whatever the diagnosis the symptoms were linked to the trauma of the collision.  In basically saying ‘six of one, half a dozen of the other’ Mr. Justice Groves provided the following reasons:

[54]         For the plaintiff, Drs. Weiss, Cameron, and Kaushansky gave evidence that they believed Ms. Tan had suffered an MTBI.  Dr. Weiss recommended Ms. Tan be referred to a neurologist to confirm her suspicion, a recommendation that was followed with her visit to Dr. Cameron.

[55]         One of the most significant factors in diagnosing the MTBI was Ms. Tan’s evidence that she has no recall of the Accident after hearing the initial sound of the impact.  The next thing she remembers is the policeman, Cst. Upshall, knocking on her car window.  It was also Ms. Tan’s evidence that she has a spotty memory of the events which transpired after she returned home from the hospital that day.  It was also relevant to the MTBI diagnosis that Ms. Tan was diagnosed as having a concussion at the hospital the day after the Accident and by Dr. Fong for several months after the Accident.  The doctors also relied on an MRI brain scan which showed an abnormality in the plaintiff’s left parietal lobe which Dr. Cameron testified “probably occurred” at the time of the Accident.

[56]         As I have said, Dr. Dost strongly disagreed with the MTBI diagnosis and with the methodology of the other three doctors.

[57]         The reality is that there is little disagreement regarding the symptoms Ms. Tan experiences and the psychological difficulties she is struggling with.  The distinction between whether Ms. Tan’s psychological injuries and cognitive difficulties were caused by an MTBI or by Ms. Tan’s chronic pain and sleep disturbances is relevant only to the quantum of general damages and to Ms. Tan’s prognosis going forward.

In going on to assess non-pecuniary damages at $210,000 the Court provided the following reasons:

[73]         Ms. Tan is 56 years of age.  I have found that she suffered an MTBI during the accident and that she suffers from depression, anxiety, and mild PTSD.  She has no residual capacity to work and is unemployable due to the cognitive issues caused by the accident, including her mood swings, poor stamina, and memory issues.  I have also found that Ms. Tan suffers from chronic pain on her left hand side and in her face and jaw.  The prognoses for Ms. Tan’s physical and psychological conditions were generally guarded or poor with the exception of the pain in her face and jaw, which may lessen with treatment.  I do note that several experts indicated that Ms. Tan may see some improvement with psychological treatment.

[74]         I also accept that the plaintiff’s personal and intimate relationships have been affected.  She now socializes very little and her relationship with her husband has deteriorated as a result of the injuries caused by the accident.  She is fearful of travel by car and has not driven since the accident.

[75]         Finally, I accept that the plaintiff’s ability to maintain her home, including her ability to cook, garden, and do laundry, has been impaired as a result of the accident.  She has and will continue to suffer some loss of housekeeping capacity.  However, Ms. Tan continues to be able to do some light housekeeping and has been able to manage the family home while her husband has been away for extended periods with only minimal assistance from her daughter.  I have therefore chosen to address this head of loss as part of the plaintiff’s non-pecuniary damages, rather than as a separate claim; Johal v. Radek, 2016 BCSC 454 at paras. 59-60….

[89]         Having regard to the findings I made and the authorities reviewed, I consider that an award of $210,000 properly compensates Ms. Tan for her non-pecuniary losses.  This award also includes and recognizes that Ms. Tan has and will continue to suffer some diminution in her housekeeping capacity.

Motorist Faulted For Crash After Driving Too Fast In Foggy Conditions

Written by admin on . Posted in ICBC Liability (fault) Cases.

Reasons for judgment were released today by the BC Supreme Court, Kamloops Registry, assessing fault for a fatal collision which occurred during foggy conditions.
In today’s case (Roy v. McGinnis) the Plaintiff was driving a motor home which had stopped at a T intersection approaching a highway.  The Plaintiff attempted to turn left on the highway.  The area was covered in dense fog and visibility was poor.  The Plaintiff failed to appreciate that the Defendant was travelling down the highway as the Plaintiff entered the intersection.  Both motorists were found equally to blame for the crash, the Plaintiff for entering an intersection when it was unsafe to do so and the Defendant for failing to drive safely given the conditions.  In reaching a conclusion of equal blame Mr. Justice Groves provided the following reasons:

[30]         I conclude that on November 25, 2004, by operating his loaded tandem truck at a speed of at least 90 to 100 km/h when the visibility was limited to less than 100 feet due to dense fog, such that an operator driving reasonably for the road conditions would more likely have driven at close to 50 km/h, the defendant operated his vehicle in a negligent manner in that he breached the standard of care established by s. 144(1) of the Motor Vehicle Act by operating a vehicle at an excessive speed considering the visibility and weather conditions.  I further conclude that this negligence was at least a partial cause of the accident in that, but for the unreasonable and excessive speed at which McGinnis was operating his vehicle, McGinnis could have avoided the impact with Roy’s vehicle, just as Smith had avoided impact when travelling at 50 km/h.

[31]         In so concluding, I note the defendant’s argument and supporting case law that, as a servient driver turning into a lane where the defendant had a right of way, the plaintiff bears the onus of proving that a reasonable and skillful driver would have had sufficient opportunity to avoid a collision (Walker v. Brownlee and Harmon, [1952] 2 D.L.R. 450 at 461).  Here the collision occurred over a very short period of time; however, I have found above that a reasonable driver would have been travelling much slower and so would have had more time to perceive the danger.  I therefore find that the plaintiff has met his burden of proving that a reasonable and skillful driver would have had a sufficient opportunity to avoid the collision.

[32]         I also find that the plaintiff was negligent…

[36]         As such, I conclude that the plaintiff was negligent in that he failed to comply with s. 175(1) of the Motor Vehicle Act, when he entered a through highway and in doing so failed to exercise appropriate caution and to yield the right of way to traffic, traffic which was so close so as to constitute an immediate hazard.

[37]         However, based on the evidence before me, I cannot draw any particular conclusion as to the relative level of negligence of these two negligent drivers.  Better put perhaps, I cannot conclude based on the evidence before me which driver was more negligent.  On the one hand, the plaintiff was clearly the servient driver, but on the other hand, the defendant was, I find on the evidence which I accept, driving at a speed far in excess of what would have been safe for the road and weather conditions he encountered on that day.  

[38]         As such, relying on s. 1(2) of the Negligence Act, R.S.B.C. 1996, c. 333, I apportion liability between the plaintiff and defendant equally.  As such, the defendant is 50% responsible for the damages resulting from the accident and the plaintiff is 50% responsible for the damages resulting from the accident. 

Non Pecuniary Damages Assessed in Mild and Moderate Brain Injury Claims

Written by admin on . Posted in ICBC Brain Injury Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for two separate traumatic brain injury claims.
In this week’s case (Afonina v. Jansson) the Defendant lost control of his vehicle and was involved in a single vehicle collision.  Two of his passengers suffered traumatic brain injuries, one mild and one moderate, which resulted in long term complications.
In assessing non-pecuniary damages of $195,000 for one Plaintiff’s permanent mild traumatic brain injury Mr. Justice Groves provided the following reasons:
[65]         Alla suffered broken ribs, a pneumothorax, and a number of soft tissue and similar related type injuries as a result of the accident.  She was hospitalized for a short period of time and it took a number of months to recover from the significant soft tissue injuries.  Dr. Travlos’ report reported that her emotional health continues fluctuate and this impacts her overall functioning.  Most notably, she suffered a mild traumatic brain injury which, as per Dr. Travlos’ report, will affect her for the rest of her life. ..

[70]         Having reviewed the authorities provided by counsel for the plaintiff, I find them to be within the range of appropriate orders.  The numerous cases cited suggest a range of general damages in the amount of $200,000-$225,000.  A number of the plaintiffs are within eight to ten years of Alla’s age; however, the bulk of them are people who are completely non-employable, and I find that Alla has some modest residual work ability. 

[71]         In regards to those cases provided, I find Burdett v. Eidse, 2011 BCCA 191 and Young v. Anderson, 2008 BCSC 1306 most persuasive.  In Burdett, the Court of Appeal upholds a non-pecuniary award of $200,000 where a 58 year old, formerly high functioning contractor suffered severe cognitive impairments including an inability to focus, sleep or multitask as a result of the mild traumatic brain injury caused by his motor vehicle accident caused mild traumatic brain injury.  In Young, the court awards $200,000 where a 51 year old experienced a constellation of symptoms including a mild traumatic brain injury which rendered him unable to continue in his chosen profession.

[72]         In addition to the pain and suffering from the broken ribs and soft tissue injuries, most of which had resolved within six months of the accident, I note that there are a number of significant long term damages which Alla will suffer as a result of the accident.  Her mild traumatic brain injury is significantly disabling.  She was, as noted, a trained engineer with university training in the area of finances and accounting.  She now finds herself a somewhat confused and disoriented woman, someone with an inability to multi-task to any great degree.  She has to put mechanisms in place to remind herself about her responsibilities.  Although she still has good judgment, she lacks an ability to focus and to organize.  These are matters which will plague her for the rest of her life and will make the task of working and the task of providing for one’s basic physical needs, somewhat of a challenge.  Although there is only modest physical manifestations of her injuries at this stage, the fact that her brain is not functioning as it used to is considerably disabling. 

[73]         In all of the circumstances having reviewed the case authorities provided, I fix non-pecuniary loss at $195,000. 

In assessing non-pecuniary damages at $300,000 for the second plaintiff who sustained a permanent moderate brain injury the Court provided the following reasons:

[149]     Rather, I find that much of the difficulty Alissa finds herself in is as a direct result of the accident.  At that time, she was rendered unconscious and suffered seizures.  Alissa has sustained irreversible and permanent damage as a result of the moderate traumatic brain injury she suffered in the accident.  She was young at the time of the accident and her life has been irrevocable altered in a negative way.  She will not recover from the difficulties she currently has.  They will plague her for her entire life.  They are, to a great degree, vast and all encompassing.  They affect everything she does.  Absent the injuries, I have concluded that Alissa would have successfully completed some post-secondary education in her chosen field and by 2014 would have been in the work force in a full-time capacity.  Although I do note that she does have some limited capacity to earn a modest amount of income, her former goals and chosen field of work are no longer open to her. 

[150]     In all these circumstances, the appropriate award for non-pecuniary damages is an award close to the rough upper limit.  I have concluded that $300,000 is an appropriate assessment for non-pecuniary damages. 

"Nonsensical" Objection to Statistical Evidence Rejected

Written by admin on . Posted in ICBC Wage Loss.

Statistics have their place in trial.  When proving average earnings of certain occupations the shortcut of referencing statistical data can be of great value and save time and money.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing this.
In last week’s case (Smith v. Fremlin) the Plaintiff was injured in a 2009 collision.  She was a recent law school graduate at the time just entering her career in law.  It was found that, as a result of the injury, she likely could not compete in private practice and would have lifelong limitations in her working capacity.  The Plaintiff introduced statistical evidence of the present day value of a lifetime of earnings for legal professionals.  The Defendant objected to this arguing witnesses of fact instead should be called to address this.  In rejecting this “fundamentally flawed” objection Mr. Justice Groves provided the following reasons:
[43]         Counsel for the defendants took significant objection to the report of Robert Wickson.  At trial, I rejected their argument that the report should not be admitted as evidence.  The substance of that argument is worth considering in these Reasons. 
[44]         It was the position of the defendants that any report which attempts to provide evidence to the court as to average income of persons within certain employment designations is fundamentally flawed.  It was the position of the defendants that the court should require the plaintiff to produce evidence of persons, working as practicing lawyers, who could testify as to what they earn.  The suggestion was further made that these witnesses should be women practicing law in British Columbia. 
[45]         One must keep in mind that all parties appear to have agreed to this matter being litigated under the Fast Track model in three to four days.  It is nonsensical to require a party to prove a claim by calling a potentially large number of witnesses, in this case, female lawyers in British Columbia of the same age, to testify.  It is folly not only as to the time and cost, but also as to the possibility of finding this information in advance.  It would require people to willingly disclose their income.  Additionally, it is folly when one considers the number of persons that would have to be called to create any level of statistical reliability. 
[46]         What this Discovery Economic Consulting report shows is that for persons who fall within the NOC classification of ”Lawyers and Quebec Notaries”, the potential earning capacity is approximately $1.94 million over the course of their career.  Importantly, the persons that fall within this classification are a much larger body of persons then simply practicing lawyers.  Although numerous types of lawyers and notaries are included in this classification, it also includes judicial assistants, advisory counsel, articling students, advisors of law and corporate affairs, and a number of other job classifications which may not require law degrees, such as legal officers and legislative advisors. 
[47]         I accept that this report is evidence of lifetime capacity for someone with the career path that Ms. Smith was undertaking.  In fairness, however, the number should be increased as a number of persons falling within the classification are not lawyers and employed in occupations, likely to be earning less, such as articling students.  I find that working to age 69 is not unreasonable.  As such, I would find that a reasonable dollar figure for lifetime earnings for a lawyer is $2,000,000.

Litigation Privilege Claim Fails Due to the 'Two Hats' of ICBC

Written by admin on . Posted in Civil Procedure, ICBC No-Fault (Part 7) Benefits, Uncategorized. 45 Comments on Litigation Privilege Claim Fails Due to the 'Two Hats' of ICBC

(Update February 12, 2015 – the below decision was overturned in reasons for judgement released today by the BC Court of Appeal)
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I previously discussed the Two Hats of ICBC and suggested fixing the conflict of interest this creates.  Reasons for judgement were released earlier this year by the BC Supreme Court, Vancouver Registry, demonstrating this conflict of interest in action in the context of a litigation privilege claim.
In the recent case (Raj v. Khosravi) the Plaintiff was involved in a motor vehicle collision.  He was insured with ICBC and met with an adjuster to advance his claim.  After the initial meeting the ICBC adjuster commissioned the services of a private investigator who produced a report.
In the course of his lawsuit the Plaintiff requested a copy of this report but ICBC refused to provide it arguing it was subject to litigation privilege.  The plaintiff argued that the report was commissioned in the ‘investigative stage’ following the collision and further that even if the report was in part prepared for the purpose of defending subsequent litigation, it was also commissioned in the context of his claim for Part 7 benefits.  Mr. Justice Groves agreed and ordered the report to be disclosed.  The Court provided the following reasons:
[29] It is clear there were two distinct purposes for this investigative report.  That is conceded by the Defendant.  The question then becomes, was the dominant purpose litigation?  And has the defendant met the onus of satisfying the court that in fact the dominant purpose was litigation?…
[49]  I am also of the view that the defendant’s claim for privilege must fail, in regards to a dominant purpose analysis.  Again, assuming that we’ve gotten over the litigation privilege hurdle, here this investigation, by the adjuster’s own admission, had more than one purpose.  As such, the onus of claiming and eliminating the competing purpose rests on the defendant.
[50]  I agree with the submission of the plaintiff that, during the entirety of the evidence of the adjuster, both in affidavit and during his cross-examination on his affidavit, there is a strong suggestion, a clear suggestion, that the purpsoe of this investigative report was a true dual purpose report.
[51]  Again, the information obtained by the adjuster, at his interview with the plaintiff on November 14, 2006 was information necessary to potentially adjudicate a tort claim, and potentially adjudicate a Part 7 claim.  In discovery, the adjuster confirmed that he had retained the investigator during the meeting with the plaintiff, that “the intention is to get information that is going to contradict what I was told in the initial appointment”.
[52]  What he was told in his initial appointment related to both Part 7 claims as well as tort claims.  The adjuster seemed to draw no distinction in the investigation, as to which of those two claims is to be covered or emphasized.  As such, the onus of showing that the dominant purpose of the report was litigation cannot be met, on the evidence.
[53]  Based on what I have said, I will allow the appeal of the master in regards to the report of the investigator, dated December 15, 2006 and order that it be disclosed.
To my understanding this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

Trial Management Conferences and the Attendance Requirement

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 23, Uncategorized. 113 Comments on Trial Management Conferences and the Attendance Requirement


The first published reasons for judgement addressing Trial Management Conference attendance requirements pursuant to Rule 12-2(4) were released this week on the BC Supreme Court website.
In this week’s case (Luis v. Haw) the Plaintiff was involved in 4 separate motor vehicle collisions.   A lawsuit was started following each collision and these were set for trial at the same time.  All the Defendants were apparently insured with ICBC.
As the Trial Management Conference neared ICBC made an application requesting that “(the personal) defendants are exempt from attending the trial management conference; secondly, that Mr. Kevin Munt, who appears to be an adjuster at the Insurance Corporation of British Columbia, “represent” the defendants at the trial management conference, and that Kevin Munt be allowed to attend the trial management conference by telephone“.
The Court largely dismissed the application and in doing so Mr. Justice Groves provided the following useful comments about the attendance requirement for Trial Management Conferences:

[19] The first concern raised by the letter and the requisition is the request that Kevin Munt “represent” the defendants at the trial management conference. That is the language in the requisition.

[20] If this is a request for Kevin Munt, who is an adjuster, to appear and that counsel not appear, that is completely inappropriate. Trial management conferences are significant and they are a significant change to the rules. They are mandatory and no trial certificate is issued without the parties attending. Though interlocutory, trial management conferences cannot be done by Masters, who do not hear trials. In my view, this suggests the drafters of the rules have placed significant emphasis on the requirement of trial management conferences.

[21] Noting that, I also then note that there are a number of matters that can be discussed at trial management conferences, as set out in subrule 12?2(9), that require legal analysis and are clearly not within the knowledge of an adjuster representing an insurance company. These include:  (a) a plan as to how the trial was to be conducted; (c) amendments to pleadings within a fixed time; (d) admissions of fact at trial; (e) admission of documents at trial; (i) respecting experts’ reports and issues dealing with experts’ reports; (l) an adjournment of trial; and (m) directing the number of days reserved for trial to be changed.

[22] Without even considering the clear requirement that people are represented in court by counsel or by themselves, it is, from my reading of what is to transpire at a trial management conference, completely inappropriate to suggest that when a defendant has counsel, that someone else, in this case an adjuster, appear essentially as counsel at a trial management conference. It is impossible to imagine how the requirements of a trial management conference can be accomplished by an adjuster appearing on behalf of the defendants, as may be the request in this requisition.

[23] If, however, this is a request that the adjuster attend in substitution of the mandatory requirement of the defendants’ attendance, that is governed by Rule 12?2(5).

[24] Rule 12?2(5) clearly contemplates a circumstance, which may be present here, which is that an individual who has full authority to make decisions for a party in the action or an individual who has ready access to the person or group of persons who collectively have full authority to make decisions for a party to an action can attend in place of a party. It appears from the evidence before me that Kevin Munt may fall into this category. I will say, however, that it is not appropriate for an adjuster to attend on behalf of defendants, unless he or she has the real authority to make decisions for the defendants. It is not good enough to say, as has been said before me, “That exceeds my current authority”, “I have to go back to the committee and they won’t be meeting for another week”.

[25] That, in my view, defeats the whole purpose of Rule 12?2(5). Ready access, the words in the rule, means really that the adjuster has to have either authority to make decisions or the ability, while the court stands down, to make a phone call to get the instructions he requires to properly speak for the defendant at the trial management conference.

[26] This lack of authority cannot be used as an excuse that prohibits the proper conduct of court actions at trial management conferences, when it is such a representation that allows the representative of the defendant to attend in the first place. Clearly the rule contemplates letting those who represent defendants, such as insurance adjusters, attend in the place of defendants. Insurers may wish to not require their defendants to personally attend. I do note however that there appears to be an increasingly internal requirement that defendants attend at trial, even when liability is not at issue. The adjuster who does attend must have the ability to deal with all matters or have ready, immediate access to those who can so instruct…



[33] In conclusion, if the suggestion in this requisition is that Kevin Munt attend on behalf of the defendants, he is not counsel, he cannot attend without counsel.

[34] If this is a request that Kevin Munt attend in the place of the defendants themselves, which is permissible under the trial management conference rule, then I am satisfied, if Kevin Munt has the real authority or has ready access, and by that, immediate access to those who have authority, then he can attend pursuant to Rule 12?2(5).



This decision is also worth reviewing for Mr. Justice Groves discussion of Rule 23-5 and the circumstances when the Court should allow a party to attend a Court Proceeding via telephone.

It Ain't Over Till It's Over: Fresh Evidence After Judgement

Written by admin on . Posted in Civil Procedure. 95 Comments on It Ain't Over Till It's Over: Fresh Evidence After Judgement


As I’ve previoulsy discussed, a trial in the BC Supreme Court isn’t over until a formal Court Order is entered.  In limited circumstances a trial can be re-opened after the close of a case.  This can apply even after a Court gives judgement in a lawsuit as was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Graham v. Galaxie Signs Ltd.) The Plaintiff was an employee of the Defendant.  He claimed he was unlawfully dismissed from his employment and sued for damages.  His lawsuit appeared to succeed and in April, 2010 the BC Supreme Court gave judgement ordering that the Defendant pay the Plaintiff just over $44,000.
Prior to entering a Court order, the Defendant obtained further evidence and alleged that this new evidence “suggests that the plaintiff was less then forthcoming both at discovery and at trial about efforts he made to earn income during the relevant period of notice“.  The Defendant asked the Court to re-open the trial and to permit further evidence to be led.  Mr. Justice Groves agreed to take this unusual step and went further and ordered that the Plaintiff submit to another exaximation for discovery prior to having the trial resume.  In reaching this decision the Court provided the following useful reasons:

[6]             In Zhu v. Li, 2007 BCSC 1467, 2007 CarswellBC 2367 [Zhu], leave to appeal to British Columbia Court of Appeal dismissed, 2008 BCCA 239, 2008 CarswellBC 1153, this court stated at para. 20 that the following principles apply to an application to re-open a trial to adduce fresh evidence:

1.               Prior to the entry of the formal order, a trial judge has a wide discretion to re-open the trial to hear new evidence.

2.               This discretion should be exercised sparingly and with the greatest care so as to prevent fraud and abuse of the court’s process.

3.               The onus is on the applicant to show first that a miscarriage of justice would probably occur if the trial is not re-opened and second that the new evidence would probably change the result.

4.               The credibility of the proposed fresh evidence is a relevant consideration in deciding whether its admission would probably change the result.

5.               Although the question of whether the evidence could have been presented at trial by the exercise of due diligence is not necessarily determinative, it may be an important consideration in deciding whether a miscarriage of justice would probably occur if the trial is not re-opened.

[7]             In regards to the test set out in the Zhu case, it is of note here that the formal order has not yet been entered.

[8]             Additionally, the evidence appears credible.  There are before me emails as well as numerous documents that appear to be authored by the plaintiff during the notice period and related to the construction of the Cap-It sign.  All of these documents suggest that the plaintiff was working on the Cap-It sign.  Additionally, the affidavit of the plaintiff does not dispute the documentary evidence provided in the affidavit of John LeComte but states in his defence that he did not receive remuneration for the work that the documents confirm he did.

[9]             I find that the proposed fresh evidence is credible and tends to show that a miscarriage of justice would probably occur if the trial is not re-opened to deal with the issues raised by this evidence.

[10]         As suggested by Zhu, the defendant is obligated to exercise due diligence prior to trial to ensure that all issues are before the court and that all defences are raised so as to avoid unnecessary re-openings of trial.  With that said, I find that this defendant was diligent in their actions prior to trial in trying to uncover possible avenues of mitigation of this plaintiff.  In fact, the defendant has been so diligent that it has, in the past, received criticism from the court for some of their “diligence”.  That, coupled with what appears to be a prima facie denial at trial and at discovery by this plaintiff of work that the documents support he did, leads me to conclude that this defendant has exercised due diligence prior to and at trial in attempting to get all evidence in the area of mitigation before the court.

[11]         I direct that the trial of this matter be re-opened.  I further direct that the plaintiff be required to attend a further examination for discovery on the issue of mitigation during the relevant notice period as it relates to his relationships with Cap-It and Dickson’s Signs Ltd.  Additionally I direct that the defendant be permitted to call additional witnesses at trial on the issue of mitigation during the notice period as it relates to Cap-It and Dickson’s Signs Ltd.

Removing a Claim from Rule 68 – Criteria To Be Considered

Written by admin on . Posted in Civil Procedure, Uncategorized. 74 Comments on Removing a Claim from Rule 68 – Criteria To Be Considered


As readers of this blog know Rule 68 is a ‘proportionality‘ based rule which was brought in a few years ago and was intended to be mandatory to certain claims worth $100,000 or less in the BC Supreme Court.
Rule 68 has not been particularly successful and many injury lawyers have avoided this rule whenever possible due to its perceived shortcomings.  This rule is going to be wiped from the books when the New BC Supreme Court Civil Rules take effect on July 1, 2010.  Rule 68 will be blended with the New Rule 15 which really combines the best of our current alternative litigation rules.
Despite Rule 68’s mandatory nature, Rule 68(7) permits parties to get out of Rule 68 if a Court “so orders“.
So what factors will a court considering in removing a case from the rule?  Reasons for judgement were published today on the BC Supreme Court website dealing with this issue for what I believe is the first time.
In today’s case (The Board of Trustees of School District No. 41 v. Crane Canada Co.) the Plaintiff sued for damages as a result of allegedly faulty bathroom fixtures.  The case was worth less than $100,000 but the Defendant’s wanted it removed from Rule 68.  They applied for an order under Rule 68(7) and were successful.  In removing the case from Rule 68 Mr. Justice Groves provided a list of non-exhaustive factors that could be considered on such applications, specifically the Court held as follows:

14] Unfortunately, the criteria to apply to an application to remove a case from Rule 68 has not been effectively resolved by the case law as of yet.

[15] On these facts, a number of considerations are appropriately applied to the consideration of whether or not a case should be removed from Rule 68.

[16] The following discussion is not meant to be exclusive.  It is somewhat factual driven, as must all the cases be.  It is not the final word on or is it intended to be a definitive word on when Rule 68 is not appropriate to litigation.

[17] Of note first is that Rule 68 has the $100,000 cap.  That does not mean all case under $100,000 are appropriately litigated under Rule 68.  There are many types of cases which fall within the $100,000 cap and based on a simple analysis of complexity it may be inappropriate to allow a case to continue under Rule 68.

[18] Here is an example.  A motor vehicle case which is under $100,000 which involves only an assessment of non-pecuniary damages is clearly a case in which Rule 68 should apply.  That, I am probably going out on a limb here to say, is the type of case that Rule 68 was clearly designed to manage.  A straightforward piece of litigation.

[19] However, sticking within the $100,000 criteria and the motor vehicle scenario, there are cases in which a claim for damages from a motor vehicle accident might be under $100,000 but it would not be appropriate for them to continue under Rule 68.  That would be a case perhaps where both liability and damages are in dispute and expert evidence is required on both those issues.  Additionally, the damages may be under $100,000 but may involve non-pecuniary damages, past wage loss, cost of future care and future lost opportunity.  Though all those heads of damages may still work out to a grand total of damages of less than $100,000, that type of case with a liability and damage component is clearly one which is in my view too complex and requiring too many potential streams of evidence and expert evidence for it to logically continue under a Rule 68 model.

[20] A second consideration that the courts should take in determining whether or not Rule 68 still should apply is whether or not the issues between the parties are of interest only to them or whether or not there is some legal or juristic significance to the litigation.  Clearly a dispute between two people about a contract, a property dispute between two neighbours, a simple motor vehicle case, are cases in which the issues between the parties are of interest only to those parties and likely do not have any long-term legal or juristic significance.  Case which have long term consequences to litigants or far reaching juristic significance may not.

[21] Thirdly, a consideration about removal should be whether or not moving the case to the regular stream would have the effect of putting an end to the litigation because of cost and not allowing the parties to actually pursue their litigation because Rule 68 is not open to them.

[22] With those non-exclusive approach, I now turn to an analysis of this case…

While Rule 68 is being abolished soon this case may still retain some value as a precedent under the New BC Supreme Court Civil Rules as Rule 15-1(6) the ‘fast track’ rule contains a similar subrule about removing a case from fast track litigation if a Court ‘so orders‘