Tag: Mr. Justice Smith

Late Defence Medical Report Inadmissible For Going Beyond Responsive Evidence Exception

Written by admin on July 7, 2011. Posted in BCSC Civil Rule 11, ICBC Spine Injury Cases, independent medical exams, Uncategorized. 53 Comments on Late Defence Medical Report Inadmissible For Going Beyond Responsive Evidence Exception

When the New Rules of Court were introduced last year changes were made to the timelines to exchange expert reports. An 84 day deadline was set out in Rule 11-6(3) and a shorter 42 day deadline is set out in Rule 11-6(4) for “responding reports“. The first reasons for judgement that I’m aware of were released today by the BC Supreme Court, New Westminster Registry, addressing whether to admit a late report under the “responsive evidence” exception.
In today’s case (Crane v. Lee) the Plaintiff was injured in a 2005 motor vehicle collision. The Defendant ran a stop sign and admitted fault for the crash. The Plaintiff’s expert provided evidence that she suffered from soft tissue injuries and a herniated disc. The Defendant obtained an expert report which contradicted this finding and served this report less than 84 days before trial. The Defendant argued that the report was responsive and should be admitted. Mr. Justice Smith disagreed finding the report went beyond the narrow circumstances permitted in Rule 11-6(4). In excluding the report the Court provided the following reasons:

[21] At the opening of the trial, counsel for the plaintiff objected to and sought a ruling on the admissibility of a medical report that the defendant intended to rely upon. The report had not been served within the 84 days required by Rule 11-6 (3) of the Supreme Court Civil Rules, B.C. Reg. 168/2009. Counsel for the defendant relied upon rule 11-6 (4), which reads:

(4) Unless the court otherwise orders, if a party intends to tender an expert’s report at trial to respond to an expert witness whose report is served under subrule (3), the party must serve on every party of record, at least 42 days before the scheduled trial date,

(a) the responding report, and

(b) notice that the responding report is being served under this rule.

[22] Rule 11-6 (4) is intended to apply only to evidence that is truly responsive or in rebuttal to specific opinion evidence tendered by the opposite party. It is not intended to provide defendants with a general exemption from the basic time limit for serving expert reports that is set out in Rule 11-6 (3). Defendants who delay obtaining or serving expert evidence until after the plaintiff’s opinions have been received, then attempt to introduce all of their expert evidence as response, do so at their peril.

[23] In this case, I found that the report was not limited to true responsive evidence. It stated the author’s opinion on the nature and cause of the plaintiff’s injury?the central issue that both sides had to address from the outset?and was based upon a review of all the medical records, including some not referred to by Dr. Field in his report. As such, I considered it to be a free-standing medical opinion that ought to have been served pursuant to Rule 11-6 (3). I ruled the report inadmissible, with the result that there was no expert evidence before me to contradict Dr. Field’s opinion.

The Court accepted the evidence from the Plaintiff’s expert and in assessing non-pecuniary damages of $100,000 Mr. Justice Smith provided the following reasons:
[33] On review of all the evidence, I find that the accident for which the defendant has admitted liability caused soft tissue injuries to the plaintiff’s neck and upper back, which eventually resolved, and a herniated disc in the lower back that continues to cause pain and limitation. To the extent that the accident may have aggravated a pre-existing condition, I find that in the years immediately preceding the accident that condition was minimally symptomatic and there is no evidence that it would likely have become worse but for the accident. I accept the uncontradicted evidence of Dr. Field that the plaintiff’s current pain is likely to be permanent…
[45] The injury the plaintiff suffered has had a significant impact on her enjoyment of life. She has back pain on a daily basis, fluctuating according to her activities. She has lost what was formerly a very active lifestyle, giving up some activities that she formerly enjoyed, while continuing some others on a reduced level, accepting the trade-off of increased pain. The only medical evidence before me is that this condition is likely to be permanent. She also suffers severe anxiety while driving, particularly in situations similar to those that gave rise to the accident, although there is no evidence that this condition is necessarily permanent…
[49] Taking into account the effect of the plaintiff’s injuries on her lifestyle, the permanent nature of her pain and the psychological impact, including her driving anxiety, and considering the cases cited, I assess the plaintiff’s non-pecuniary damages at $100,000.

New Rules Caselaw Update: More on Contested Applications at TMC's and CPC's

Written by admin on April 27, 2011. Posted in BCSC Civil Rule 12, BCSC Civil Rule 5, Uncategorized. 63 Comments on New Rules Caselaw Update: More on Contested Applications at TMC's and CPC's

Late last year reasons for judgment were released by the BC Supreme Court finding that Trial Management Conferences and Case Planning Conferences “are not generally the forum to determine contested applications.” . Reasons for judgement were released this week by Mr. Justice Smith taking a less restrictive view of this issue.
In today’s case (Jurczak v. Mauro) the Plaintiff was injured in a motor vehicle collision. As trial neared the Plaintiff brought an application for an adjournment and this was granted in order to give the Plaintiff time to gather appropriate medico-legal evidence. The Court was specifically asked whether it was permissible for contested applications to be heard at TMC’s. Mr. Justice Smith held that such practice was permitted under the Rules. The Court provided the following reasons:

[1] At a Trial Management Conference (TMC) on March 31, 2011, I made an order adjourning the trial in this matter, which had been set for May, 2, 2010. I indicated that I would provide written reasons because the application raised a procedural question about the circumstances under which a judge at a TMC may hear and rule upon a contested adjournment application.

[2] The TMC was created by the new Supreme Court Civil Rules, B.C. Reg. 168/2009 that came into effect on July 1, 2010. Rule 12-2 (9) sets out a broad range of orders that can be made by the presiding judge at a TMC “whether or not on the application of a party.” These include, at subparagraph (l), an order adjourning the trial. However, Rule 12-2 (11) prohibits a TMC judge from hearing an application for which affidavit evidence is required…

[7] I do not understand Vernon to be suggesting that a judge at a TMC can never order an adjournment if one party objects. No such restriction appears in Rule 12-2. The Rule prohibits hearing applications that require affidavit evidence. It is for the judge to decide whether a particular application requires affidavit evidence and whether any affidavits that have been tendered are relevant.

[8] The orders permitted by Rule 12-2 (9) are, broadly speaking, procedural in that they deal with the conduct of the trial, including how certain evidence is to be presented, the length of the trial and, in subparagraph (q), “any other matter that may assist in making the trial more efficient.”

[9] Rule 12-2 (3) requires the parties to file trial briefs in Form 41 identifying the issues in dispute (which, by that stage, may not be all of the issues raised in the pleadings), listing the witnesses, including experts, to be called and estimating the time necessary for the evidence of each witness. The trial brief is an unsworn statement of counsel or the self-represented party. The Rule clearly contemplates that the judge will make orders based on the information contained in the trial briefs, as supplemented by what is said at the TMC. That is the only basis on which the orders permitted by the Rule could be made.

[10] In some cases where an adjournment, or any other order is sought, a judge may decide that supporting information is not adequate. That was the situation in Vernon, where Goepel J. was presented with an affidavit of the plaintiff setting out the prejudice that would flow from an adjournment. That evidence had to be weighed against any evidence of prejudice to the defendant if the adjournment was not granted. Once the plaintiff’s affidavit was found to be relevant, evidence in proper form was required from the defendant and counsel’s statements, standing alone, were not acceptable.

[11] However, there are situations where the need for an adjournment can be clearly assessed on the basis of information provided at the TMC and affidavit evidence would be of no assistance. For example, a judge may be able to determine simply from the trial briefs that the trial cannot possibly be completed in anything close to the estimated time, or that the number of pre-trial matters still to be dealt with shows that the case is not ready for trial. If the judge could not order an adjournment in those circumstances, a large part of Rule 12-2’s purpose would be defeated….

[18] In summary, the fact that the adjournment application was contested would not, in itself, have prevented me from hearing and deciding it at the TMC. In the circumstances, affidavit evidence was not necessary. I had jurisdiction to consider the adjournment application on the basis of information in the trial briefs and the statements of counsel at the TMC and I would have made the same decision had the matter proceeded on that basis.

Amending Pleadings and the New Rules of Court

Written by admin on March 25, 2011. Posted in BCSC Civil Rule 6, Uncategorized. 44 Comments on Amending Pleadings and the New Rules of Court

The first case that I’m aware of dealing with amendments of pleadings under the New Rules of Court was released earlier this week. In short the Court held that the new Rules don’t change the law with respect to the Court’s discretion in permitting amendments.
In this week’s case (BRZ Holdings Inc. v. JER Envirotech International Corp.,) the Plaintiff sued various defendants for losses caused by alleged fraudulent or negligent misrepresentation. As trial approached the Plaintiff sought significant amendments to their pleadings. The Defendant opposed these arguing the changes would cause prejudice. Mr. Justice Smith ultimately allowed most of the proposed amendments and in doing so provided the following useful reasons confirming the New Rules did not alter the law with respect to amendments of pleadings:
6] Amendments to pleadings are now governed by Rule 6-1 of the Supreme Court Civil Rules, B.C. Reg. 168/ 2009 [Rules], which is similar to the former rule 24 in that amendments at this stage of the proceedings require leave of the court. Cases decided under the former rule make clear that amendments will usually be allowed unless the opposite party can demonstrate actual, as opposed to potential, prejudice, or unless the amendments would be useless: Langret Investments S.A. v. McDonnell (1996), 21 B.C.L.R. (3d) 145 (C.A.) at paras. 34 and 43. The court’s discretion is “completely unfettered and subject only to the general rule that all such discretion is to be exercised judicially, in accordance with the evidence adduced and such guidelines as may appear from the authorities” [emphasis added]: Teal Cedar Products v. Dale Intermediaries Ltd. (1996), 19 B.C.L.R. (3d) 282 (C.A.) at para. 45. Nothing in the new Rules suggests any change in the court’s approach.

Scope of Discovery Under the New Rules of Court

Written by admin on February 14, 2011. Posted in BCSC Civil Rule 1, BCSC Civil Rule 7, Uncategorized. 100 Comments on Scope of Discovery Under the New Rules of Court

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the scope of both discovery of documents and examinations for discovery under the new Rules of Court.
In today’s case (More Marine Ltd. v. Shearwater Marine Ltd) the Plaintiff companies sued the Defendant alleging the breach of marine insurance policies. The Plaintiff was self represented. He examined an insurance adjuster that worked for the Defendant. At discovery the Defendant raised numerous objections including an objection to questions addressing “general practices in the insurance industry“. A motion was brought seeking guidance addressing whether these questions were permissible.
Mr. Justice Smith held that this line of questioning was appropriate and ordered that a further discovery take place. In doing so the Court provided perhaps the most extensive judicial feedback to date about the changes with respect to discovery obligations under the New Rules of Court. Mr. Justice Smith gave the following useful reasons:

[3] The scope of proper questioning on an examination for discovery is set out in Rule 7-2 (18) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules]:

Unless the court otherwise orders, a person being examined for discovery

(a) must answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action, and

(b) is compellable to give the names and addresses of all persons who reasonably might be expected to have knowledge relating to any matter in question in the action.

[4] The new Rules came into effect on July 1, 2010, but the language in rule 7-2 (18) is identical to the former rule 27 (22). As Griffin J. said in Kendall v. Sun Life Assurance Company of Canada, 2010 BCSC 1556 [Kendall] at para. 7 “the scope of examination for discovery has remained unchanged and is very broad.” In Cominco Ltd. v. Westinghouse Can Ltd. (1979), 11 B.C.L.R. 142 (C.A.) [Cominco], an early and leading case under the former rule, the Court of Appeal said at 151 that “rigid limitations rigidly applied can destroy the right to a proper examination for discovery.” The court in Cominco also adopted the following statement from Hopper v. Dunsmuir No. 2 (1903), 10 B.C.R. 23 (C.A.) at 29:

It is also obvious that useful or effective cross-examination would be impossible if counsel could only ask such questions as plainly revealed their purpose, and it is needless to labour the proposition that in many cases much preliminary skirmishing is necessary to make possible a successful assault upon the citadel, especially where the adversary is the chief repository of the information required.

[5] In Day v. Hume, 2009 BCSC 587 this court said at para. 20:

The principles emerging from the authorities are clear. An examination for discovery is in the nature of cross-examination and counsel for the party being examined should not interfere except where it is clearly necessary to resolve ambiguity in a question or to prevent injustice.

[6] While Rule 7-2 (18) is the same as its predecessor, the new Rules create a distinction that did not previously exist between oral examination for discovery and discovery of documents. The former rule 26 (1) required a party to list all documents “relating to every matter in question in the action.” Although disclosure in those terms may still be ordered by the court under Rule 7-1 (14), the initial disclosure obligation is set out more narrowly in Rule 7-1(1):

(1) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period,

(a) prepare a list of documents in Form 22 that lists

(i) all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and

(ii) all other documents to which the party intends to refer at trial, and

(b) serve the list on all parties of record.

[7] Under the former rules, the duty to disclose documents and the duty to answer questions on oral examination were therefore controlled by the same test for relevance. Under the newRules, different tests apply, with the duty to answer questions on discovery being apparently broader than the duty to disclose documents.

[8] Although that may appear to be an anomaly, there are at least two good reasons for the difference. One reason is that if the court is to be persuaded that the broader document discovery made possible by rule 7-1(14) is appropriate in a particular case, some evidence of the existence and potential relevance of those additional documents will be required. The examination for discovery is the most likely source of such evidence.

[9] The second reason relates to the introduction of proportionality as a governing concept in the new Rules. Rule 1-3 (2) states:

(2) Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a) the amount involved in the proceeding,

(b) the importance of the issues in dispute, and

(c) the complexity of the proceeding.

[10] The former rule governing discovery of documents was interpreted according to the long-established test in Compagnie Financière du Pacifique v. Peruvian Guano Company (1882), 11 Q.B.D. 55 at 63 (C.A.):

It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may — not which must — either directly or indirectly enable the party … either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable the party … either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences…

[11] The new Rules recognize that application of a 19^th century test to the vast quantity of paper and electronic documents produced and stored by 21^st century technology had made document discovery an unduly onerous and costly task in many cases. Some reasonable limitations had become necessary and Rule 7-1 (1) is intended to provide them.

[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.

The Limits of Clinical Records in Injury Litigation

Written by admin on February 3, 2011. Posted in Civil Procedure, Uncategorized. 96 Comments on The Limits of Clinical Records in Injury Litigation

(Update March 8, 2012 – the below reasoning was upheld by the BC Court of Appelal in reasons for judgement released today. You can find the BC Court of Appeal’s Reasons here)
When an injury claimant attends examination for discovery or trial they are usually subjected to an extensive cross-examination with respect to matters contained in clinical records. These records contain a host of information including dates of doctors visits, complaints made, diagnoses given, treatments recommended and the course of recovery of injuries.
Despite this volume of information clinical records do have limitations with respect to their use at trial. Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing these.
In today’s case (Edmondson v. Payer) the Plaintiff was involved in a 2005 BC motor vehicle collision. The Plaintiff sustained various soft tissue injuries involving her neck with associated headaches. The Defendant argued that the injuries were minor and that the Plaintiff lacked credibility. In support of their argument the Defendant relied heavily on various entries contained in the Plaintiff’s clinical records.
Mr. Justice Smith rejected the Defendant’s argument and awarded the Plaintiff $40,000 for non-pecuniary damages (money for pain and suffeirng and loss of enjoyment of life). In doing so the Court provided the following useful reasons addressing the use of clinical records in injury litigation:
[23] Much of the defendant’s submission on the plaintiff’s credibility flows from what is, or is not, found in the clinical records of doctors the plaintiff has seen. It is therefore important to review the limited purposes for which clinical records are admissible. It is easy to lose sight of those limitations in cases of this kind, where the time spent parsing a single note made by a doctor often far exceeds the length of the medical appointment that the note records…

[34] The difficulty with statements in clinical records is that, because they are only a brief summary or paraphrase, there is no record of anything else that may have been said and which might in some way explain, expand upon or qualify a particular doctor’s note. The plaintiff will usually have no specific recollection of what was said and, when shown the record on cross-examination, can rarely do more than agree that he or she must have said what the doctor wrote.

[35] Further difficulties arise when a number of clinical records made over a lengthy period are being considered. Inconsistencies are almost inevitable because few people, when asked to describe their condition on numerous occasions, will use exactly the same words or emphasis each time. As Parrett J. said in Burke-Pietramala v. Samad, 2004 BCSC 470, at paragraph 104:

…the reports are those of a layperson going through a traumatic and difficult time and one for which she is seeing little, if any, hope for improvement. Secondly, the histories are those recorded by different doctors who may well have had different perspectives and different perceptions of what is important. … I find little surprising in the variations of the plaintiff’s history in this case, particularly given the human tendency to reconsider, review and summarize history in light of new information.

[36] While the content of a clinical record may be evidence for some purposes, the absence of a record is not, in itself, evidence of anything. For example, the absence of reference to a symptom in a doctor’s notes of a particular visit cannot be the sole basis for any inference about the existence or non-existence of that symptom. At most, it indicates only that it was not the focus of discussion on that occasion.

[37] The same applies to a complete absence of a clinical record. Except in severe or catastrophic cases, the injury at issue is not the only thing of consequence in the plaintiff’s life. There certainly may be cases where a plaintiff’s description of his or her symptoms is clearly inconsistent with a failure to seek medical attention, permitting the court to draw adverse conclusions about the plaintiff’s credibility. But a plaintiff whose condition neither deteriorates nor improves is not obliged to constantly bother busy doctors with reports that nothing has changed, particularly if the plaintiff has no reason to expect the doctors will be able to offer any new or different treatment. Similarly, a plaintiff who seeks medical attention for unrelated conditions is not obliged to recount the history of the accident and resulting injury to a doctor who is not being asked to treat that injury and has no reason to be interested in it.

[38] The introduction of clinical records cannot be used to circumvent the requirements governing expert opinion evidence set out in Rule 11-6 of the Supreme Court Civil Rules, B.C. Reg. 168/ 2009 [Rules]. A medical diagnosis?and the reasoning that led to the diagnosis?is a matter of expert opinion. Clinical records are admissible for the fact that a diagnosis was made, but the court cannot accept the diagnosis as correct in the absence of proper opinion evidence to that effect. Depending on the facts and issues in a particular case, the mere fact that a diagnosis was made may or may not be relevant.

[39] Clinical records may provide the assumed facts on which an expert may offer an opinion, including diagnosis. For example, statements made by the plaintiff and recorded in clinical records at various times may be relied on by a defence expert in concluding that the plaintiff’s current symptoms are the result of a condition that pre-dated the accident. That does not mean that the court can itself use clinical records to arrive at a medical diagnosis in the absence of expert opinion.

[40] Some of the defendant’s submissions must now be considered in light of these principles.

We Don't Need Your Consent! – ICBC Claims and Medical Reports

Written by admin on December 1, 2010. Posted in ICBC Privacy Issues, independent medical exams, Uncategorized. 112 Comments on We Don't Need Your Consent! – ICBC Claims and Medical Reports

If you’re involved in a BC motor vehicle collision and have your injuries treated by a “medical practitioner” ICBC can compel the medical practitioner to provide them with a report documenting your injuries. This is so even if you are not insured with ICBC and even if you don’t consent. Reasons for judgement were published this week on the BC Supreme Court’s website discussing this area of law.
In today’s case (Pearlman v. ICBC) the Plaintiff was involved in collision in 2004. He was insured with a carrier from Washington State. The other motorist was insured with ICBC. The Plaintiff initially contacted ICBC and signed an authorization permitting ICBC to obtain medical information relating to his injuries. About a year later the Plaintiff hired a lawyer and cancelled the authorization. Despite this ICBC contacted a physician who treated the Plaintiff after the accident (Dr. Lubin) and requested “a narrative medical report“.
Ultimately the Plaintiff’s lawsuit against the other motorist was dismissed at trial. The Plaintiff then sued Dr. Lubin arguing that the physician breached the Plaintiff’s confidence by providing ICBC a medical report when the Plaintiff withdrew his consent for ICBC to obtain his medical information. The Plaintiff also sued ICBC directly arguing that ICBC improperly requested the medico-legal report. Both of these lawsuits were dismissed with the BC Supreme Court finding that whether or not ICBC has written authority, section 28 of the Insurance (Vehicle) Act permits ICBC to obtain reports from treating medical practitioners and that practitioners have “no legal choice” other than to comply with such requests.
In the claim against Dr. Lubin Madam Justice Morrison stated as follows about the mandatory nature of section 28 of the Insurance (Vehicle) Act:
[] Dr. Lubin was obligated to provide ICBC with the report as requested. Dr. Lubin had no legal choice other than to comply with the mandatory request to submit a medical legal report to ICBC. This did not amount to a breach of confidentiality as alleged by the plaintiff.
In the claim against ICBC Mr. Justice Smith found that it would be an ‘abuse of process‘ to permit the Jury in that action to make findings contrary to Madam Justice Morrison’s previous decision. Mr. Justice Smith held as follows:

[14] The plaintiff also sued Dr. Lubin, alleging a number of causes of action, including negligence and breach of confidence. That action went to trial before Madam Justice Morrison and was dismissed in reasons for judgment dated March 11, 2009. Madam Justice Morrison held that when ICBC requested the report, Dr. Lubin was obliged to provide it. She found that obligation arose out of s. 28 of the Insurance (Vehicle) Act, which reads:

If any of the following persons attends to, diagnoses, treats or is consulted by a person injured in a motor vehicle accident in British Columbia, he or she must, whenever the corporation requests, provide the corporation, as soon as reasonably practicable, with a report of the injuries and their diagnosis and treatment and a prognosis, in the form the corporation prescribes …

The persons then listed include a medical practitioner….

[20] Madam Justice Morrison’s findings regarding Dr. Lubin’s conduct were made on the same or very similar evidence that is before the Court in this case, and I conclude it would indeed be an abuse of process to invite this jury to make contrary findings.

The Plaintiff appealed Madam Justice Morrison’s decision. In the course of the Appeal the Plaintiff was ordered to post security for costs in the event he lost the appeal. In reviewing this decision the BC Court of Appeal made the following comments on the matter of ICBC ordering reports not in the ‘prescribed form‘:

[19] Even if Mr. Pearlman were to succeed in his argument that the judge erred in finding that Dr. Lubin was required to provide the report under statute – I note, in that regard, that the report was not prepared in form CL 19, which is ICBC’s prescribed form under s. 28 of theInsurance (Vehicle) Act) – it is difficult to see how his appeal could succeed given the trial judge’s clear finding that Dr. Lubin did not cause him any loss.

These decisions illustrate ICBC’s power to get medical reports even absent patient consent. It can be argued that the Court of Appeal’s comments can leave individuals with little recourse if ICBC goes further than ordering a CL-19 and in fact obtains a full medico-legal report. A solution, at least insofar as tort claims are concerned, is for plaintiffs to bring this power to the Courts attention when ICBC insured defendants try to obtain independent medical exams in order to ‘level the playing field‘ under the BC Supreme Court Rules.

Defendant Refused Costs at Trial For Failing to Consent to Small Claims Court Transfer

Written by admin on September 21, 2010. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 9, Uncategorized.

Reasons for judgement were released today addressing whether a Defendant who beat a formal settlement offer should be awarded costs.
In today’s case (Cue v. Breitkruez) the Plaintiff was involved in a rear-end collision. He sued the rear motorist for damages. Prior to trial the Defendant made a formal settlement offer for $1. With liability being hotly contested the Plaintiff proposed that the case be transferred to Small Claims Court. The Defendant refused to consent stating that “such a transfer would result in greater delay“.
At trial the Plaintiff’s case was dismissed with a finding that the Plaintiff was responsible for the collision. (You can click here to read my summary of the trial judgement). The Defendant then applied to be awarded double costs pursuant to Rule 9-1(5) because they beat their formal offer at trial.
Mr. Justice Smith dismissed the application noting that since Rule 14-1(10) generally restricts Plaintiff’s awarded an amount within the small claims court jurisdiction from being awarded trial costs that the Defendant should be refused costs for not agreeing to have the case heard in Provincial Court. Specifically Mr. Justice Smith noted as follows:

7] The matter remained in this court subject to an agreement to still limit the claim to what could be awarded in Provincial Court. Had my liability decision been different and the matter proceeded to an assessment of damages, Rule 14-1(10) would have been a bar to an award of any costs, other than disbursements, in favour of the plaintiff. In my view, fairness requires that the same limitation apply to the successful defendant, particularly as the defendant did not agree to the proposed transfer to Provincial Court.

[8] I therefore decline to award any costs to the defendant, other than disbursements. There is therefore no need to consider the offer to settle because there are no costs to double.

ICBC Ordered to Pay "Double Costs" In Breach of Insurance Case; Timing and Finances of Parties Considered

Written by admin on June 18, 2010. Posted in BC Supreme Court Costs Cases, Uncategorized. 60 Comments on ICBC Ordered to Pay "Double Costs" In Breach of Insurance Case; Timing and Finances of Parties Considered

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering ICBC to pay ‘double costs‘ after losing a breach of insurance claim.
In today’s case (Barsaloux v. ICBC) the Plaintiff was the owner of a vehicle that was stolen and subsequently recovered. It was damaged beyond repair. The Plaintiff had insurance with ICBC and applied for coverage. ICBC refused to pay stating that the Plaintiff was in breach of his policy of insurance for making a false declaration about the identity of the vehicle’s principal operator.
The Plaintiff successfully sued ICBC and was awarded $13,850 in damages. Prior to trial, the Plaintiff made a formal settlement offer of $13,700. The Plaintiff applied to Court to be awarded double costs under Rule 37B.
ICBC objected arguing that the offer was made only two days before trial and therefore there was no reasonable opportunity to consider it. Mr. Justice Smith disagreed and awarded the Plaintiff double costs. In doing so the Court made the following useful comments about two notable issues under Rule 37B, timing of settlement offers and the financial disparity between the parties:

[17] I stress that ICBC was directly a party to this action. That distinguishes this case from Bailey v. Jang, 2008 BCSC 1372, where Hinkson J. declined to consider the relative financial positions of the plaintiff and ICBC where ICBC’s involvement was in its capacity as insurer for the named defendant.

[18] The unequal position of the parties is not determinative because, as counsel for ICBC points out, the same situation will exist in any case where there is a coverage dispute between the corporation and a policy holder. However, I am also of the view that, in this case, ICBC used its position of strength to maintain what it should have known was an untenable, or at least an insufficiently considered, position…

[22] In the circumstances, ICBC should have realized the weakness of its position well before trial. The offer to settle was the only means the plaintiff had to exert additional, although modest, pressure and to provide ICBC with a further opportunity to re-assess and reconsider its position in light of the evidence that existed. I find that it was an offer that ought reasonably to have been accepted.

[23] That conclusion is not altered by the fact that the revised offer to settle was delivered only two days before trial. ICBC relies on Bailey, where the court said seven days was a reasonable period of time to consider an offer and ordered double costs for the period beginning seven days after delivery of the offer.

[24] I do not read Bailey as stating anything more than what was a reasonable period for consideration of an offer on the facts of that case. Rule 37B sets no time limit for delivery of a settlement offer. In that regard, it differs from the former Rule 37, where an offer delivered less than seven days before trial attracted different consequences than one delivered earlier. In fact, Rule 37B(6)(a) specifically refers to an offer that ought reasonably have been accepted “either on the date that the offer to settle was delivered or on any later date” (emphasis added).

[25] In the circumstances of this case, including the issues involved, the delivery date of the offer gave ICBC sufficient time to consider its position before trial. As said above, ICBC should have known well before the offer was delivered that it could not prove an essential part of what it was alleging. I find the plaintiff is therefore entitled to double costs for the trial of this action.

As readers of this blog are likely aware, Rule 37B will be replaced with Rule 9 on July 1, 2010 when the new BC Civil Rules come into force. The new rule uses language that is almost identical to Rule 37B which will likely have cases such as this one retain their value as precedents moving forward.

Bus Driver Found 50% Responsible For Collision With Cyclist Riding in Crosswalk

Written by admin on June 18, 2010. Posted in ICBC Liability (fault) Cases. 56 Comments on Bus Driver Found 5056 Responsible For Collision With Cyclist Riding in Crosswalk

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision between a school bus and a cyclist.
In today’s case (Torok v. Sekhon) the Plaintiff was travelling southbound on a sidewalk in Surrey, BC. He was travelling on the left side of the street. At the same time the Defendant was operating a school bus and driving in the opposite direction of travel. As the Defendant approached an intersection he put on his right turn signal and proceeded to make a right turn. The Plaintiff, who was travelling down hill, did not yield and entered the roadway from the sidewalk. A collision occurred.
Mr. Justice Smith was asked to determine the issue of fault. The Court found that both parties were equally at fault for the collision. In reaching this decision Mr. Justice Smith reasoned as follows:

[18] The essential fact in this case is that Mr. Sekhon did see Mr. Torok and Mr. Kolba approaching the intersection at which he planned to turn. Moreover, he was driving in an area and at a time of day when the presence of children was to be expected. The duty on a driver in such a situation was recently summarized by Greyell J. in Chen v. Beltran, 2010 BCSC 302 at para. 27:

[27] The general principle underlying any determination of fault or blameworthiness rests on a finding whether the defendant could reasonably foresee that his or her conduct would cause or contribute to the accident. When it is known there are young children in the area drivers must use extra care and attention as children do not always behave as adults would in similar circumstances. In Chohan v. Wayenberg (1990), 67 D.L.R. (4th) 318 (B.C.C.A.), the Court of Appeal stated at 319:

… There is, of course, a need for constant vigilance for children on the roads, especially in suburban areas, for the very reason that they can not be expected always to act with the same care that is expected of adults.

[19] The plaintiff in Chen was 11 years old. The plaintiff in this case was somewhat older, but still of an age when a reasonable driver would know that he would not necessarily act “with same care that is expected of adults”. Indeed, the tendency of teenagers to engage in reckless behaviour is well known.

[20] Having seen Mr. Torok and knowing that their paths were about to cross, the duty of Mr. Sekhon was to proceed with caution and to complete his turn only when he could do so safely. That meant either satisfying himself that he could complete his turn before the boys reached the intersection or, more prudently, slowing or stopping until he knew that the boys had either passed the intersection or had stopped to allow him to pass.

[21] Mr. Sekhon failed to take either precaution. Although he clearly saw the boys and knew their direction of travel before his turn, he was apparently unaware of their location as he was actually making the turn. There is no evidence of anything that would have prevented Mr. Sekhon from stopping briefly in order to ensure that he could turn safely. I therefore find that, in the circumstances, Mr. Sekhon failed to take sufficient care and was negligent.

[22] However, I find that Mr. Torok also failed to take reasonable care for his own safety. He was riding his bicycle on a sidewalk, then into a crosswalk, and was riding on the left, rather than the right side of the road. All of those actions are violations of s. 183(2) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. He was also riding without a helmet, in violation of s. 184. Mr. Torok was of sufficient age and experience to know, and in fact did know, that he was riding in an illegal manner. He also knew that he was approaching an intersection at a high speed and needed to be aware of the possibility of vehicles turning either into or from 150th Street. He saw the approaching school bus and failed to notice its turn signal. As a result, I find that Mr. Torok was contributorily negligent.

[23] In such circumstances, the apportionment of liability must be based on the degree to which each of the parties was at fault, not on the degree to which each party’s fault caused the damage: Bradley v. Bath, 2010 BCCA 10 at para. 25. In Bradley, the Court of Appeal adopted the following passage from Fleming on The Law of Torts:

[25] The concept of contributory negligence was described in John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 302, as follows:

Contributory negligence is a plaintiff’s failure to meet the standard of care to which he is required to conform for his own protection and which is a legally contributing cause, together with the defendant’s default, in bringing about his injury. The term “contributory negligence” is unfortunately not altogether free from ambiguity. In the first place, “negligence” is here used in a sense different from that which it bears in relation to a defendant’s conduct. It does not necessarily connote conduct fraught with undue risk to others, but rather failure on the part of the person injured to take reasonable care of himself in his own interest. … Secondly, the term “contributory” might misleadingly suggest that the plaintiff’s negligence, concurring with the defendant’s, must have contributed to the accident in the sense of being instrumental in bringing it about. Actually, it means nothing more than his failure to avoid getting hurt …

[Emphasis in original; footnotes omitted.]

[24] The facts of Bradley are somewhat similar to this case. There, a bicycle on the sidewalk collided with a vehicle that was coming out of a gas station. The Court of Appeal said at para. 28:

[28] In my opinion, the plaintiff was at fault, and his fault was one of the causes of the accident. Contrary to law, he was riding his bicycle on the sidewalk against the flow of traffic. He saw the defendant’s vehicle moving towards the exit he was approaching. Rather than making eye contact with the defendant or stopping his bicycle and letting the defendant’s vehicle exit the gas station, the plaintiff assumed the defendant saw him and would not accelerate his vehicle. In these circumstances, he was at fault for continuing to ride his bicycle across the path to be taken by the defendant’s vehicle in exiting the gas station.

[25] Although I have found that Mr. Torok, at age 14, was old enough to be found contributorily negligent, I must still consider his age in the apportionment of fault. His conduct is to be measured against what is to be expected of a reasonable person of his age and experience, not against the standard of an adult: see Parker v. Hehr, (20 December 1993), Vancouver B914957 (B.C.S.C.), citing Ottosen v. Kasper (1986), 37 C.C.L.T. 270 (B.C.C.A.); and McEllistrum v. Etches, [1956] S.C.R. 787.

[26] In the circumstances, I find that Mr. Torok and Mr. Sekhon were equally at fault. Each saw the other and each failed to take the necessary precautions to allow for the other’s presence and possible movements. Balancing all of the factors, including Mr. Torok’s violations of the governing statute, his age, and Mr. Sekhon’s knowledge of the nature of the area and the likely presence of young people, I cannot say that one party is more culpable than the other. I therefore find that the defendants must bear 50 per cent of the liability for the accident.

Motorist Found At Fault for BC Car Crash Despite Being Rear-Ended

Written by admin on May 3, 2010. Posted in ICBC Liability (fault) Cases, Uncategorized. 67 Comments on Motorist Found At Fault for BC Car Crash Despite Being Rear-Ended

Further to my previous posts on this topic, the law is clear that a motorist who is rear-ended by another can be found at fault. Such an outcome is somewhat unusual but given the right circumstances it can occur. Reasons for judgement were released to today demonstrating this.
In today’s case (Cue v. Breitkreuz) the Plaintiff’s vehicle was involved in a rear-end collision. He testified that he was rear-ended by the Defendant while he was stopped waiting to make a left hand turn. An independent witness contradicted this account and testified that “the Plaintiff’s car accelerated, moved in front of the (defendant’s) truck, then slammed on the brakes” leaving the defendant with “(no) chance to stop before sliding into the plaintiff’s car”.
Mr. Justice Smith preferred the independent witness’ evidence over the Plaintiff’s and found the front motorist entirely at fault. In reaching this conclusion the Court gave the following brief but useful summary of the law:

[15] Where there has been a rear-end collision, the onus shifts to the following driver to show that he or she was not at fault: Robbie v. King, 2003 BCSC 1553 at para. 13. It is also the case that the driver of a following vehicle must allow a sufficient distance to stop safely in the event of a sudden or unanticipated stop by the vehicles ahead: Pryndik v. Manju, 2001 BCSC 502 at para. 21, aff’d 2002 BCCA 639; and Rai v. Fowler, 2007 BCSC 1678 at para. 30.

[16] On the evidence before me in this case, I find that the defendant has discharged the onus upon him. I find that the plaintiff, by changing lanes in the manner that he did, created the situation in which the defendant did not have a safe stopping distance behind the plaintiff’s vehicle. Had the plaintiff not stopped, the defendant would have had the opportunity to slow down and allow the distance between them to increase. But when the plaintiff stopped immediately following the lane change, the defendant had no chance to avoid the collision. The defendant had no reason, in the moments leading up to the accident, to anticipate the plaintiff’s lane change and stop.