Tag: Mr. Justice Romilly

Pursuing "Unproductive Trains of Inquiry" Fatal in Request for Further Examination for Discovery

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing the Court’s discretion to allow a party to conduct an examination for discovery beyond the 2 hour cap called for in Fast Track proceedings.
In today’s case (Henneberry v. Humber) the Plaintiff sued for damages following a collision.  The Plaintiff was examined for discovery for the full two hours allowed under the fast track.  The Defendant brought an application for further time but the court dismissed this finding the examination that was conduced pursued “unproductive trains of inquiry“.  In reaching this conclusion Mr. Justice Romilly provided the following reasons:
[3]             Counsel for the defendant in this particular case indicates there are many reasons for that. It is a complicated case, liability is in issue, and the plaintiff refused to sign a notice to admit certain facts which could have shortened the length of this examination for discovery.
[4]             Counsel for the plaintiff has taken me through the examination for discovery and pointed out many instances where counsel for the defendant has squandered the opportunity to fully take advantage of this two-hour limit that was placed upon these proceedings.
[5]             Two of the leading members of our court, if I could say that, in civil matters, Madam Justice Susan Griffin and Mr. Justice N. Smith, have both written judgments on these new rules. In one case, the case ofMore Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166, Mr. Justice N. Smith, says this at paras. 12-13:
[12]      The new Rules also impose limitations on oral examination for discovery, but do so through a different mechanism.  Rule 7-2 (2) now limits an examination for discovery to seven hours or to any longer period to which the person being examined consents.  Although the test for relevance of a particular question or group of questions remains very broad, examining parties who ask too many questions about marginally relevant matters, who spend too much time pursuing unproductive trains of inquiry or who elicit too much evidence that will not be admissible at trial risk leaving themselves with insufficient time for obtaining more important evidence and admissions.
[13]      As Griffin J. said in Kendall, the time limit imposes a “self-policing incentive” on the party conducting the examination: at para. 14.  At the same time, the existence of the time limit creates a greater obligation on counsel for the party being examined to avoid unduly objecting or interfering in a way that wastes the time available. This interplay was described in Kendall at para. 18:
A largely “hands off” approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality, effective July 1, 2010.  Allowing wide-ranging cross-examination on examination for discovery is far more cost-effective than a practice that encourages objections, which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections.  It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial, rather than on examination for discovery.
[6]             In this particular case, counsel for the plaintiff has taken me to the transcript and I am satisfied that there was far too much time spent pursuing unproductive trains of inquiry. As a result, the two-hour limitation passed by without counsel for the defendant being able to deal with all the issues with which they wanted to deal.
[7]             I am not satisfied that this is a case where I should exercise my discretion to give any further time for further examinations for discovery. The application will be dismissed. Thank you.
 

Court Finds Dr. Koch "To Be More of An Advocate For ICBC"

Adding to this site’s archived posts highlighting judicially rejected expert witness evidence reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, criticizing the evidence of a defense medical opinion.
In last week’s case (Kristiansen v. Grewal) the Plaintiff was injured in a 2009 collision.  Fault was admitted.    The Plaintiff alleged a host of consequences from the crash.  Although the Court found that some of the Plaintiff’s difficulties originated from issues other than the collision the crash was causative of some of her difficulties.
In the course of the trial the Court heard from a variety of physicians.  Once expert, Dr. Koch, hired by ICBC, was found to be an advocate and his evidence was not accepted for this reason.  In rejecting his evidence Mr. Justice Romilly provided the following brief comments:
 [14]         Among the experts, I found that Dr. Koch’s report and his testimony in court seemed to lack objectivity. In fact, he seemed to be more of an advocate for the defendants and ICBC. I have difficulty accepting any of his evidence.
 

"Exaggerated" Injury Claim Dismissed by BC Supreme Court

Update March 10, 2015 – The below decision was overturned by the BC Court of Appeal which found that the trial judge made “palpable and overriding error” in the assessment of the evidence.  A new trial was ordered.
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Credibility plays a vital role when advancing a claim with subjective injuries.  Negative credibility findings can undermine such a claim as was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Pacheco v. Antunovich) the Plaintiff was involved in “a very minor” rear end collision in 2012.  The Court found that the Defendant was “travelling at a speed of no more than two kilometers per hour at the time of the collision“.   The Plaintiff alleged injury and sought over $100,000 in damages at trial.  The Court rejected the entirety of the claim and ordered the Plaintiff to pay the Defendant’s costs.  In reaching this decision the Court was critical of the Plaintiff’s credibility and provided the following reasons:
[10]         The credibility of the plaintiff is very important in a case like this where the foundation for most of the plaintiff’s complaints is subjective. Therefore, it is prudent for me to deal with the issue of credibility.
[11]         The plaintiff was cross-examined on her medical records for the period before the collision. It is clear from those records that the plaintiff attended her doctor on a very regular basis in the months and years preceding the collision. Although the plaintiff testified that she was active in sports before the collision, her medical records seem to indicate that she visited her doctor in relation to ongoing pain and repercussions she claimed she was still suffering from her previous injuries. In fact, one of these visits in which she complained of this type of pain occurred about a month before the collision.
[12]         Another result of the cross-examination of the plaintiff on her medical records was the fact that she previously complained of weight gain and hair loss in September 2010. This is exactly one of the claims she alleges in this action as a result of the collision.
[13]         Further, throughout the trial and at five or ten minute intervals, the plaintiff would stand up from her seat and continuously stretch so that I could “see” the pain she experiences when she sits in one position for a period of time…
[19]         I did not find the plaintiff to be a very credible witness at trial. Her testimony was not reasonable within the circumstances of the very minor “fender bender” in this case. I find that she had a strong penchant for gross exaggeration and, as such, I do not accept her evidence…
25]         I find that the plaintiff has failed to prove on a balance of probabilities that she suffered any injury as a result of the collision. The plaintiff’s action is therefore dismissed with costs.

Jury Delivers "Shockingly Unreasonable" Award in BC Injury Claim


Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, in what the trial judge described as a ‘shockingly unreasonable‘ verdict by a Jury.
In today’s case (Evans v. Metcalfe) the Plaintiff was injured in a BC motor vehicle collision.  Fault was admitted by the other motorist.  The case went to trial before a Jury with Mr. Justice Romilly presiding as the trial judge.
The Plaintiff led evidence that, as a result of her accident related injuries, she was disabled from working and sought damages accordingly.  The Plaintiff’s out of pocket expenses for alleged accident related treatments exceeded $25,000.
The Jury largely rejected the Plaintiff’s claim and assessed total damages at $17,300 which included $1,000 for pain and suffering, $6,000 for special damages and $10,300 for past loss of income.  The Jury then reduced this award by 15% for ‘failure to mitigate‘ for a total award of $14,705.
The Defendant asked the Judge to enter Judgement based on the Jury’s award.  The Plaintiff argued that the Jury’s award was “unreasonable” and that the verdict should be set aside with a new trial ordered.
Mr. Justice Romilly agreed that the Jury was wrong in reducing the damages by 15% for failure to mitigate but concluded that other than increasing the judgement to the original $17,300 any changes to the Verdict should be left to the Court of Appeal.
Jury’s in BC do not give any reasons for their award and they cannot be contacted after they are discharged to gain insight into their deliberations.  Accordingly it difficult for the Court of Appeal to know how a Jury reaches a particular verdict and feedback from the trial judge is welcome.  Anticipating that this matter would be appealed Mr. Justice Romilly voiced disagreement with the Jury’s findings and provided the following criticism:

[51]        Although it has not been specifically requested of me, I feel it necessary to comment on the reasonableness of the jury’s verdict.  In doing so I am taking in mind both the utility of such comments expressed by Southin J.A. in Johnson, and the limits to them as stated by Garson J.A. in Boota.

[52]        In my opinion, as a long-time member of the bench, the jury’s award in this case has surpassed the level of “shockingly unreasonable”.  The amount of damages awarded for non-pecuniary damages represents a fraction of what was sought.  Whatever the reason, the jury felt the need to punish Ms. Evans in a way that does not accord with the law.  In my judgment I have already discussed some failures of the jury to appropriately apply the law to the actual evidence; I believe that these failures (and more) are further manifest in their wholly disproportionate award.  No jury reviewing the evidence as a whole and acting judicially could have reached the verdict issued in these proceedings; the evidence cannot support the verdict.

Contra Proferentem Rule Applied to Court Order Interpretation


Contra Proferentem” is a rule courts use when interpreting contracts.  In plain English it means that if there is an ambiguous clause in a contract it will be interpreted against the party responsible for drafting the clause.   In an interesting use of this rule reasons for judgement were released today by the BC Supreme Court, Victoria Registry, applying this rule to a Court order.
Today’s case (Horne Coupar v. Velletta & Company) involved a dispute between two Victoria lawfirms.  A lawyer left the first firm (Velletta & Company) and joined the second (Horne Coupar).  A few months prior to leaving the first firm the lawyer renegotiated compensation terms with her employer from a salaried position to one which entitled her to a percentage of her “collected professional fees” on the files that she worked on.
Upon joining the second firm “a dispute arose as to what files and clients (the lawyer) would take with her and how (the first firm) would be reimbursed for loss of those files“.    Ultimately a Court motion was brought and the parties entered into a consent order with the direction that “(the second firm is) to pay over professional fees to (the first firm), on a proportionate basis for those hours which had accrued while the matter was under (the first firm’s) conduct“.  This consent order was prepared by the lawyer who left the first firm and joined the second.
The lawyer then “deducted 50% from the payments made by (the second firm) to (the first firm)” as money owing to her under the percentage clause she negotiated prior to parting company with the first firm.  The first firm disputed the propriety of this deduction arguing that the Court order that was agreed to left no such option.
Mr. Justice Romilly agreed with the first firm and ordered that money be paid to the first firm without this deduction.  In coming to this decision the Court used the Contra Proterentem doctrine.  Specifically the Court reasoned as follows:
[10] Contra proferentem is a rule of contractual interpretation which provides that an ambiguous term will be construed against the party responsible for its inclusion in the contract.  This interpretation will therefore favour the party who did not draft the term presumably because that party is not responsible for the ambiguity therein and should not be made to suffer for it.  This rule endeavours to encourage the drafter to be as clear as possible when crafting an agreement upon which the parties will rely.  This rule also encourages a party drafting a contract to turn their mind to foreseeable contingencies as failure to do so will result in terms being construed against them.  That there is ambiguity in the contract is a requisite of the application of this rule, however, once ambiguity is established, the rule is fairly straightforward in application.

[11] In my view the contra proferentem rule clearly applies in this case.  It was Ms. Newman who prepared the consent order signed by herself and Velletta.  As quoted above, that consent order directs inter alia:

…Horne Coupar to pay over professional fees to Velletta & Company, on a proportionate basis for those hours which had accrued while the matter was under Velletta & Company’s conduct…

[12] This provision provides only for payment, not for deduction of “fees” to which Ms. Newman feels she is entitled (and has since deducted).  Ms. Newman’s failure to include a provision or stipulation for deduction of her own fees has resulted in an ambiguity which is to be construed against her by application of the rule of contra proferentem.  Therefore, the clear interpretation of this provision (as against the drafter) is that fees are not deductible.  Horne Coupar is bound by the consent order to pay the professional fees to Velletta in accordance with this order and without deduction for work done by Ms. Newman.

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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.

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