Tag: Mr. Justice Voith

Plaintiff Stripped of Post Offer Costs and Disbursements For Failing to Beat Formal ICBC Settlement Offer

Written by admin on December 5, 2012. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

In my continued efforts to track the judicial discretion of costs awards following trials with formal settlement offers in place, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, addressing costs consequences were a jury award was some 25% of ICBC’s best pre-trial formal settlement offer.
In the recent case (Wafler v. Trinh) the Plaintiff was injured in a 2005 collision. Prior to trial ICBC made three formal settlement offers, the final being $222,346. The Plaintiff rejected this offer and proceeded to trial. A jury assessed damages at $70,000 and after appropriate deductions this resulted in judgement of over $53,000. ICBC applied for post offer costs. Mr. Justice Voith did not agree that such a result was appropriate but did strip the Plaintiff of post offer costs and disbursements. Given that the trial lasted 10 days this is a significant financial consequence. In finding this appropriate Mr. Justice Voith provided the following reasons:
[41] There should be some consequence attached to the plaintiff’s failure to accept the defendant’s third offer of settlement. Having weighed the factors I have identified, I consider that an appropriate result would be to give the plaintiff his costs, including his disbursements, up to December 21, 2011. Each party is to bear their own costs and disbursements after that date. Though every case turns on its own facts and circumstances, the foregoing result aligns with the conclusions arrived at in each of Lumanlan and Khunkhun.

Plaintiff Compensated Two Years Salary for "Delayed Graduation" Claim

Written by admin on December 3, 2012. Posted in ICBC Wage Loss. 100 Comments on Plaintiff Compensated Two Years Salary for "Delayed Graduation" Claim

Just as loss of wages are compensable in personal injury claims, if an injury delays a person’s entry into the workforce the law in BC recognizes that the financial repercussions that flow from this are recoverable. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this principle.
In last week’s case (Rezaei v. Piedale) the Plaintiff was injured in a 2009 collision. Fault was admitted. Due to the Plaintiff’s injuries she scaled back from intended full time courses to a part time course load at University. As a result her graduation, and expected entry into the workforce was delayed by two years. The Court addressed this by awarding damages equivalent to two years income. In doing so Mr. Justice Voith provided the following comments regarding delayed graduation claims:
[87]         The plaintiff’s former high school principal, Mr. Li, testified that he recalled Ms. Rezaei and that she was a good student who was engaged in her high school. She was a likely scholarship candidate. He said that there was no reason she would not have been able to take a full course load at university and that most students with her academic background did. In her first and second terms of Grade 12, she had an 85% and 83.75% overall average, respectively. In her third term, after the Accident, her average was 53.25%. She ultimately graduated with a 78.1% average for her Grade 12 year. Both the plaintiff and Ms. Toghiani-Risi said that the plaintiff had expected to take a full course load when she went to university. I accept the foregoing evidence and consider that this was an entirely realistic expectation on the part of the plaintiff.
[88]         In the ensuing years at Simon Fraser University, the plaintiff has generally taken a part-time course load. She has often taken additional courses at the outset of an academic term only to later drop them. She has had to repeat certain courses to improve her grades. The details of what has happened from term to term are of no moment. The fact is that, at this point, her graduation has been delayed by at least one year and seven months, from May 2013 to December 2014. She requires 120 credits to graduate; she currently has 67 credits.
[89]         The plaintiff’s anticipated graduation date is premised on her taking and carrying a full-time course load henceforth, something she has not yet done. It is further premised on her studying in the summers, or at least part of them, and on being able to take the courses that she requires in the summer. If she is unable to graduate by April 2015, her plans to go to graduate school and obtain a Master’s Degree would be further delayed.
[90]         Ms. Rezaei presently plans to work in public health or health administration. The expert report of Mr. Peever, an economist, establishes that $35,000 per annum represents an average salary for the jobs that the plaintiff might be suited for when she graduates. No objection was taken to that figure.
[91]         The defendants sought to argue that the plaintiff could have made up some time by taking more courses in the summer. The plaintiff did say that she has, at times, chosen to work during the summer rather than study. She also said that she felt she needed a break. Dr. Frank has opined that “her persistence in schooling even though she was significantly disabled has been impressive”. Dr. Robinson stated that “[h]er accident related symptoms have been an impediment in pursuing her postsecondary education.”
[92]         Counsel for the defendants, in his submissions, said that he did not question the plaintiff’s efforts to reasonably mitigate her losses. Yet, the foregoing submission directly engages the issue of mitigation. The onus of establishing that a plaintiff has not acted reasonably to mitigate his or her losses falls on the defendant. In this case, the defendants have not satisfied that onus. I would also observe that this issue is somewhat artificial. Had the plaintiff gone to school during the summers, her summer wage loss claim would have increased. The amount that she originally anticipated earning while working at her mother’s daycare approximates the amount that she hopes to earn on graduation.
[93]         The plaintiff’s present claim, in conceptual terms, is supported by each of Pelkinen v. Unrau, 2008 BCSC 375 at para. 98; and Williams v. Nekrasoff, 2008 BCSC 1520 at para. 36.
[94]         The plaintiff’s graduation has already been delayed. I find this delay was caused by the Accident. I also consider that there is a real and substantial possibility that her graduation may be further delayed. I consider that a total delay of two years is likely for the plaintiff’s graduation. Accordingly, I award the sum of $70,000 for this head of loss.

Some Thoughts on Section 173 of the Motor Vehicle Act

Written by admin on September 17, 2012. Posted in ICBC Liability (fault) Cases.

Although the BC Motor Vehicle Act specifcally addresses the right of way at intersections controlled with and without yield signs, the legislation does not specifically address the right of way when vehicles approach and stop at a 4 way stop-sign controlled intersection at the same time. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this.
In last week’s case (Demarinis v. Skowronek) the Plaintiff and Defendant approached an intersection at approximately the same time. Ultimately the Court found that the Defendant approached first and had the right of way. Before getting to this conclusion the Court addressed the commonly held notion that the driver to the right enjoys the right of way at 4 way intersections. The Court provided the following reasons:

[26]The plaintiff argues that since both parties entered the “intersection” almost simultaneously, because the plaintiff was to the right of the defendant, she had the right-of-way. Accordingly, the defendant had a corresponding obligation to yield the right-of-way to her.

[27]Surprisingly, neither party was able to identify any case law which arose from circumstances similar to those in this case. The plaintiff argues, however, that the excerpts from the ICBC publication “Road Sense for Drivers, British Columbia Driving Guide”, which includes the following guidance for “four-way stops”, is of assistance:

four-way stops — when there are stop signs at all corners:

• The first vehicle to arrive at the intersection and come to a complete stop should go first.

• If two vehicles arrive at the same time, the one on the right should go first.

[28]In doing so, the plaintiff accepts that the Road Sense Guide does not contain “rules of law”, but submits that the Guide, in combination with other considerations, can inform the standard of care which is relevant in particular circumstances.

[29]I do not consider that the Guide advances the proposition that the plaintiff advocates. The foregoing language from the Guide, and in particular the words, “the first vehicle to arrive at the intersection and come to a complete stop should go first”, presupposes that the four stop signs at an intersection will be placed at the same distance from the intersection at issue. The excerpt from the Guide also treats the words “intersection” and “stop sign” synonymously. Were it otherwise, there would be no need for a vehicle to stop at the intersection. Instead, more properly or more precisely, the vehicle would be required to stop at the stop line.

From my perspective it appears litigants need not rely on the ICBC Driving Guide to establish the right of way analysis. Looking at section 173 it states that:

“if 2 vehicles approach or enter an intersection from different highways at approximately the same time and there are no yield sign the driver of a vehicle must yield the right of way to the vehicle that is on the right of the vehicle that he or she is driving.”

A four way intersection controlled by stop signs is an intersection where “there are no yield signs” so the above section appears to be applicable.

Please feel free to comment if you have differing views on the subject.

Non-Pecuniary Assessments With Pre-Existing "Chronic" Conditions

Written by admin on August 23, 2012. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry providing some useful comments in an assessment of non-pecuniary damages for a Plaintiff with pre-existing, long-standing chronic pain and disability.
In the recent case (Morgan v. Scott) the Plaintiff was injured in a 2009 collision. The Defendant admitted fault focusing the trial on an assessment of damages. The Plaintiff had a host of pre-existing problems including chronic pain in his neck and low back. He was also on a disability pension as a result of a chronic lung condition.
The collision caused soft tissue injuries which aggravated his pre-existing pain making his symptoms more “enduring in nature and markedly more severe“. Mr. Justice Voith noted that this was a marked change in the Plaintiff’s pre-accident condition and assessed non-pecuniary damages at $100,000. In doing so the Court provided the following reasons:

[35] The defendant argues that the Accident caused an “exacerbation” of these conditions. As a matter of definition this is true. There are instances, however, where a worsening in a condition gives rise to more than a change in degree. Instead, in real terms, it gives rise to a change in kind.

[36] I find that this is so for several of Mr. Morgan’s symptoms. I have said that his pain symptoms changed from being recurring in nature, with periodic “flareups” or, as Dr. Caillier described it, of an “on and off” nature, to being enduring in nature and markedly more severe. That reality has dramatically curtailed Mr. Morgan’s ability to follow his exercise regime. That regime, in turn, is vital to his respiratory health and to the management of his chronic pain. It was also one of the few physical activities that Mr. Morgan could participate in and it provided him with a sense of confidence. Further, it is clear to me that it also provided him with pleasure and with a sense of pride.

[37] There is no question that Mr. Morgan has become further de-conditioned since the Accident. He testified that his respiratory function has worsened. There was no admissible evidence before me that Mr. Morgan’s chances of being accepted onto a list of prospective transplant donees have diminished as a result of the Accident. Nevertheless I consider that I can, in my assessment of Mr. Morgan’s non-pecuniary losses, weigh the anxiety or stress that Mr. Morgan has expressed over his weakened state and its significance for his long term health.

[38] Still further, I find that Mr. Morgan has been transformed from a generally positive, outgoing, and confident person into one who is reclusive, who suffers from consistent depression of significant severity, and who is without energy. I also consider that it is noteworthy that notwithstanding the significant challenges of various kinds that Mr. Morgan has faced since childhood, he has always persevered and by virtue of his determination improved his state. Since the Accident, that is no longer true…

[48] Based on the findings I have made and on the considerations I have identified, I consider that an appropriate award for Mr. Morgan’s non-pecuniary losses is $100,000. This figure recognizes and accounts for the various positive and negative contingencies which exist as well as the various non-exhaustive factors that are identified in Stapely v. Hejslet, 2006 BCCA 34 at para. 46. I also emphasize that this award recognizes the difficulties that Mr. Morgan laboured under prior to the Accident and does not compensate him for such pre-existing difficulties.

Visual Aids Permitted In Trial Closing to "Assist the Jury"

Written by admin on July 27, 2012. Posted in Jury Trials, Uncategorized. 70 Comments on Visual Aids Permitted In Trial Closing to "Assist the Jury"

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, addressing the admissibility of non-exhibit visual aids during closing submissions in a Jury trial.
In the recent case (Walker v. Doe) the Plaintiff sued for damages following a motorcycle collision. During closing submissions the Plaintiff canvassed his claimed damages for wage loss and future care with the help of non-exhibit visual aids. In finding such aids were appropriate Mr. Justice Voith provided the following reasons:
[19] Counsel for the plaintiff proposes, in his closing submissions, to: (a) develop a bar graph or time line that explains the period of time that each of past wage loss, future wage loss, and the other heads of damage being claimed cover; and (b) visually depict how a future wage loss claim or future care claim should be calculated from the relevant tables that are found in the Civil Jury Instructions.

[32] In line with MacKenzie A.C.J.S.C.’s reasons in Basi, I have reviewed both Watt’s Manual of Criminal Jury Instructions and the CJC’s model jury instructions. Both seem to confirm that charts or summaries can be used during a closing to help illustrate or explain the evidence, even if they are not made exhibits at trial.

[33] The purport of the decisions in Bengert, Fimognairi and Basi, moreover, is that trial judges have a wide discretion to permit what aids to the jury they consider are helpful or appropriate.

[34] Support for this wider discretion is also found in Jones A. Olah, The Art and Science of Advocacy, loose leaf, (Toronto: Carswell, 1990). At 18.8, he writes, unfortunately with no citation other than to another secondary source that I was unable to access:

The use of demonstrative aids that are not part of the trial record, such as blackboards, charts, models, and summaries, is in the trial judge’s discretion. If the evidence provides reasonable foundation for these summaries or charts, then their use should be permitted.

[35] In this case, subject to the comments I am about to make, I am satisfied that counsel for the plaintiff can proceed as he wishes. The intended use of the “demonstrative aids” that he has described is modest, finite, and would assist the jury in understanding the issues that are before them. This is also consistent with the guidance provided in each of Bengert, Fimognairi and Basi. Still further, my instructions will contain a caution confirming that neither the time line nor the calculations constitute “evidence” before the jury.

I am advised this case is currently under appeal for unrelated reasons. If the BC Court of Appeal addresses this topic I will provide an updated post.

Is Comparing an Expert Witness to a "Wizard Buffoon" Fair Game in an Injury Trial?

Written by admin on June 29, 2012. Posted in Jury Trials, Uncategorized. 42 Comments on Is Comparing an Expert Witness to a "Wizard Buffoon" Fair Game in an Injury Trial?

Reasons for judgement were recently shared with me addressing the scope of permissible closing arguments criticizing an opposing expert witness in an injury claim before a jury. In short the Court held that comparing an opposing expert to Johnny Carson’s Carnac The Magnificent crossed the line.
In the recent case (Walker v. ICBC) the Plaintiff sued for damages for serious injuries sustained in a motor vehicle incident. In defending the case ICBC called a professional engineer who provided evidence which contradicted the Plaintiff’s expert. The expert was vigorously cross examined. In closing arguments to the Jury the expert was compared to Carnac the Magnificent. In finding this comment beyond the permissible scope Mr. Justice Voith provided the following reasons:
[24] The Submission addressed Dr. Toor and his evidence at paras. 78-87 and elsewhere. The attack made on Dr. Toor had at least two components or aspects, each of which was repeated in different ways and each of which was inappropriate. The first was that Dr. Toor, a professional person, was knowingly and intentionally made an object of derision and ridicule. Counsel for the Plaintiff accepted this and did not resile from it. If Dr. Toor’s evidence was ridiculous, he argued, Dr. Toor deserved to be ridiculed…
[26] The second statement, “although Johnny Carson is dead, the Amazing Karnak lives on”, is inappropriate. The defendant in argument described the Karnac figure as a “wizard buffoon”. Counsel for the Plaintiff agreed. He went on to accept that the Karnac figure was a “ridiculous, turbanned and bejewelled caricature”.
[27] Earlier during the trial, counsel for the plaintiff had held up a sealed envelope in his hand and began to ask Dr. Toor what was in it. I prevented counsel from proceeding. I did not appreciate at the time, however, that this bit of theatre was intended to presage things to come and to lay the groundwork for counsel’s subsequent submissions. I accept that counsel can be vigorous in its attack on the evidence and qualificaitons of an expert. That attack may well use some “drama and pathos”: Cahoon at para. 18. I do not consider or accept that it should extend to ridicule based on counsel’s belief that a witness’s evidence is ridiculous. It should not depict or describe a professional person, qualified to give expert evidence, as a fool or buffoon based on counsel’s perception of that witness. In this case, the indirect assertion that Dr. Toor was a buffoon was reinforced by the sarcastic tone, again often independently acceptable, which counsel for the plaintiff used in these submissions.
A mistrial was eventually declared. The reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.
I am advised this matter is under appeal and will post further on this topic after the BC Court of Appeal weighs in on this issue. Whatever the final judicial outcome addressing the scope of fair criticism, its a safe bet BC won’t mirror New Mexico’s satirical 1995 proposal requiring expert witnesses to dress like wizards while testifying.

More Judicial Authority of "Responsive" Independent Medical Exams

Written by admin on July 11, 2011. Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams. 45 Comments on More Judicial Authority of "Responsive" Independent Medical Exams

One of the New Rules which has received more attention than most is Rule 11-6(4) which deals with responsive reports. The issue of whether the Court could order a Plaintiff to undergo a physical exam for a responsive report has been considered a good half dozen times. In short the authorities have held that such an order is possible but the Courts have been conservative in making these orders to date. Further reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this topic.
In this week’s case (Mahil v. Price) the Plaintiff was injured in a 2007 motor vehicle collision. The Defendants did not order an independent medical report in the timelines allowed by Rule 11-6(3) and brought a motion for an exam less than 84 days before trial. They argued that they only wished to obtain a ‘responsive’ report and that the report would comply with Rule 11-6(4). Mr. Justice Voith held that such an appointment was permitted and allowed the order. In doing so the Court provided the following reasons:

[21] Rule 7-6(1), formerly Rule 30, allows for the conduct of an independent medical examination. The object of Rule 30 was succinctly described by Finch J.A., as he then was, in Stainer v. ICBC, 2001 BCCA 133 at para. 8:

…the purpose of Rule 30 is to put the parties on an equal footing with respect to medical evidence. …

[22] The object of placing the parties on an equal footing is, however, only achieved in real terms if the parties also adhere to those rules which govern the timely exchange of both initial expert reports and responsive expert reports.

[23] The important relationship of what was Rule 30 and what is now Rule 7-6(1) and those Rules which pertain to the time limits for the exchange of expert reports has been recognized in other decisions. In Wright v. Brauer, 2010 BCSC 1282, Savage J. said at para. 9:

In the context of an action seeking compensation for personal injuries, the parties are on equal footing with respect to medical evidence if they can independently obtain medical evidence and if such evidence is served in accordance with the Rules.

[24] In the case of Mackichan v. June and Takeshi, 2004 BCSC 1441, Master Groves, as he then was, said at para. 11:

… It is not simply a question of putting the parties on a level playing field at this stage, it is a question of really balancing the prejudice which will result to the defendants in not having a report and the prejudice that will result to the plaintiff in having a report prepared late which would no doubt, I expect, cause an adjournment of the trial.

[25] If the defendants have Dr. Gropper prepare a properly responsive report, and if that report is delivered in accordance with the Rules, the interests of both parties are concurrently advanced and safeguarded.

[26] I have, based on a request I made, been advised by counsel for the defendants that Dr. Gropper would be able to deliver his report in advance of the 42 days provided for in Rule 11-6(4).

[27] Notwithstanding some misgivings about some of the issues advanced by the defendants, I do not believe that it would be either prudent or appropriate for me to pre-determine that the specific concerns raised by the defendants will not, in fact, be properly responsive to the Reports.

[28] I have, however, earlier in these reasons, identified with some precision the very narrow issues that the defendants assert they wish to respond to in the Reports. These reasons should provide some safeguard against Dr. Gropper’s report extending or straying beyond its permitted ambit, whether inadvertently or otherwise. I note, as did Saunders J., as she then was, in Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7 at para. 7 (S.C.), that truly responsive evidence:

… does not permit fresh evidence to masquerade as an answer to the other side’s report.

[29] I am therefore prepared to grant the defendants’ application. Costs are to be in the cause.

Credibility, Chronic Pain and the "Inherent Frailty" of Subjective Injury Claims

Written by admin on July 7, 2011. Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 54 Comments on Credibility, Chronic Pain and the "Inherent Frailty" of Subjective Injury Claims

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing credibility and chronic pain claims based on subjective symptoms.
In this week’s claim (Sevinksi v. Vance) the Plaintiff was involved in a 2007 collision. Fault was admitted by the offending motorist focusing the claim on quantum. The Plaintiff sought fairly significant damages for disability due to a diagnosed chronic pain syndrome. Her injuries were largely subjective putting her credibility squarely at issue.
The Court expressed several concerns about the Plaintiff’s credibility noting that “the Plaintiff was not forthright in her evidence….There also appear to have been instances where the plaintiff was not forthright with the independent doctors she attended before” and lastly that “Aspects of (the plaintiff’s evidence) go well beyond a frailty of memory or a natural and excusable tendency to exaggerate or place given evidence in a positive light. Here the Plaintiff sought to mislead and crate a history that is not forthright“.
Despite all this Mr. Justice Voith did accept that the Plaintiff was injured in the collision and that she had ongoing limitations due to these injuries. Non-Pecuniary damages of $60,000 were assessed but this award was then reduced to $45,000 to take into account the plaintiff’s failure to mitigate. In assessing the Plaintiff’s credibility and damages the Court cited the well known passage from Mr. Justice McEachern in Butler v. Blaylok. (making this an opportune place to repeat my views that the assertion that a higher burden of proof exists in subjective injury claims is questionable.)
Mr. Justice Voith provided the following reasons:

[43] The difficulties with the plaintiff’s evidence are magnified because of the lack of objective evidence to support her injuries. McEachern, C.J.S.C., as he then was, identified the difficulties associated with assessing the extent of an injury without the benefit of objective evidence in each of Butler v. Blaylok Estate [1981] B.C.J. No. 31 (S.C.) at paras. 18-19 and Price v. Kostryba(1982), 70 B.C.L.R. 397 (S.C.) at para. 1-4.

[44] In Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.), Taylor J.A., at para. 15.1, said:

…there must be evidence of a “convincing” nature to overcome the improbability that pain will continue, in the absence of objective symptoms, well beyond the normal recovery period, but the plaintiff’s own evidence, if consistent with the surrounding circumstances, may nevertheless suffice for the purpose.

[45] More recently, in Eccleston v. Dresen, 2009 BCSC 332, at para. 66, Barrow J. accepted that claims supported by only subjective evidence should be viewed with a “skeptical eye”. He further confirmed, however, that such claims can be supported by the “convincing force of collateral evidence”.

[46] Two propositions emerge from these cases. First, there is an inherent level of frailty in the case of a plaintiff whose assertions of injury are not supported by any objective evidence or symptoms. Accordingly, it is appropriate, in such cases, to treat the evidence adduced by or on behalf of the plaintiff with caution. Second, either the evidence of the plaintiff or collateral corroborative evidence may be sufficient to persuade the Court of the plaintiff’s position.

[47] In this case the usual difficulties associated with the wholly subjective complaints of a plaintiff are compounded by the reliability problems which are associated with the evidence of Ms. Sevinski.

[48] Notwithstanding some misgivings, however, I have accepted aspects of Ms. Sevinski’s evidence and am satisfied that these portions of her evidence are supported by additional collateral evidence before me…

[86] Having said this, the medical evidence establishes, and I have accepted, that the plaintiff does struggle with chronic pain syndrome. Her ability to function normally and to engage in the breadth of activities which she would like to, as well as to interact with her children and Mr. Rambold in a pain-free way, is diminished….

[89] Based on these considerations I assess Ms. Sevinski’s non-pecuniary damages at $60,000. This is without taking the question of mitigation into account.

Rule 20-2: Disabled People Must Use a Lawyer to Sue in the BC Supreme Court

Written by admin on May 9, 2011. Posted in BCSC Civil Rule 20, Uncategorized. 119 Comments on Rule 20-2: Disabled People Must Use a Lawyer to Sue in the BC Supreme Court

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing the requirement that disabled people must be represented by a lawyer (or the Public Guardian and Trustee) when suing in the BC Supreme Court. In short the Court held that despite some minor changes in language, the current Rule 20-2 is to be applied identically to the former Rule 6(4).
In today’s case (Sahyoun v. Ho) the plaintiff was “incapable of managing himself or his affairs” and his father was appointed as his committee. Shortly after this the committee started a complex lawsuit on the Plaintiff’s behalf against numerous defendants. He did not hire a lawyer to assist with the process. Some of the Defendants brought a motion seeking directions as the lawsuit was not brought in compliance with Rule 20-2. Mr. Justice Voith found that the Court has no discretion to deviate from Rule 20-2 and ordered that the lawsuit be stayed. In doing so the Court provided the following reasons:

[13] Rule 20-2 of the Rules of Court deals with persons who labour under a legal disability. The relevant portions of the Rule provide:

Start of proceedings by person under disability

(2) A proceeding brought by or against a person under legal disability must be started or defended by his or her litigation guardian.

…

Lawyer must be involved

(4) A litigation guardian must act by a lawyer unless the litigation guardian is the Public Guardian and Trustee.

…

Committee as litigation guardian

(6) If a person is appointed committee, that person must be the litigation guardian of the patient in any proceeding unless the court otherwise orders.

[14] Rule 20-2(4) is very similar to R. 6(4) of the former Rules of Court. Arguably, the wording is now stronger. Formerly, R. 6(4) stated that the litigation guardian “shall act by a solicitor…” R. 20-2(4) now states that the litigation guardian “must act by a lawyer…”. Both “shall” and “must” are, however, defined in s. 29 of the Interpretation Act, R.S.B.C. 1996, c. 238 as “imperative”.

[15] Rule 22-7(2) sets out the powers of this court when there has been non-compliance with the Rules:

Powers of court

(2) Subject to subrules (3) and (4), if there has been a failure to comply with these Supreme Court Civil Rules, the court may

(a) set aside a proceeding, either wholly or in part,

(b) set aside any step taken in the proceeding, or a document or order made in the proceeding,

(c) allow an amendment to be made under Rule 6-1,

(d) dismiss the proceeding or strike out the response to civil claim and pronounce judgment, or

(e) make any other order it considers will further the object of these Supreme Court Civil Rules.

[16] This court has interpreted the requirement that a litigation guardian “act by a lawyer” as set out in R. 20-2(4), and formerly under R. 6(4), very strictly. In Daniel v. ICBC, 2002 BCCA 715, the plaintiff had sustained a brain injury in a car accident as child. When he was 23 years of age his mother sought to act on his behalf as his committee under the Patients Property Act, R.S.B.C. 1996, c. 349.

[17] She was not able to afford to retain a lawyer. Southin J.A. (in Chambers) did not permit her to proceed and stated:

[3] As I see the present situation, Mrs. Daniel has no status whatever in this Court on her own to sue on behalf of her son even if the Style of Cause here were to be amended accordingly.

[4] Since, obviously, the Daniels are not able to afford solicitors to act for them, this action cannot be brought in Mrs. Daniel’s name. To put it another way, as this action was intended to be on behalf of Attila, either he must bring the action or his guardian ad litem must bring the action, but a guardian ad litem must act through a solicitor and not in person. Those are the rules. The only other suggestion I can give is that Mrs. Daniel see the Public Trustees Office and see whether anything can be done….

…

[28] I have decided to stay the action. I do not believe it would be appropriate, at this stage, to strike the plaintiffs’ claim. It may be that the plaintiffs will be able to find a lawyer to assist them. In saying this, I am mindful that the continued existence of the action, notwithstanding the fact that it has been stayed, is a source of some difficulty for the Defendant Physicians.

The "Loser Pays" System: Rule 14-1(9) and Principles of Costs Consequences

Written by admin on May 1, 2011. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized. 100 Comments on The "Loser Pays" System: Rule 14-1(9) and Principles of Costs Consequences

Rule 14-1(9) of the BC Supreme Court Rules typically requires a losing party to pay costs to a successful party unless the Court “otherwise orders“. Useful reasons for judgement were released last week by the BC Supreme Court discussing this Rule and the legal principles in play when a Court should deviate from the default “loser pays” result.
In last week’s case (LeClair v. Mibrella Inc.) the Plaintiff sued the Defendant for damages. The lawsuit was ultimately unsuccessful and dismissed at trial largely because the court “did not accept the plaintiff’s evidence”. The Plaintiff asked the Court to deviate from the usual costs result. The Court found that the usual ‘loser pays‘ result should apply although the costs the Defendant was entitled to should be reduced by 50% to take into account some “improper” behaviour of the Defendant in the course of the lawsuit. In discussing the principles behind Rule 14-1(9) Mr. Justice Voith provided the following useful summary:

[10] The following legal principles are relevant:

i) Costs represent an important instrument by which courts can either promote or, conversely, sanction given conduct. Rule 14-1(9) provides one means of achieving this overarching object. The broad role served by cost awards is captured in the following statements:

a) In Houweling Nurseries Ltd. v. Fisons Western Corporation (1988), 49 D.L.R. (4th) 205 at 226, 37 B.C.L.R. (2d) 2 (C.A.) at 25, leave to appeal ref’d, [1988] 1 S.C.R. ix, McLachlin J.A., as she then was for the courts, said:

… Parties, in calculating the risks of proceeding with a particular action or defence, should be able to forecast with some degree of precision what penalty they face should they be unsuccessful.

b) In Karpodinis v. Kantas, 2006 BCCA 400 at para. 4, Hall J.A., for the court, said:

Cost considerations are meant to guide counsel and litigants in the choices and strategies they pursue in litigation. …

c) In Skidmore v. Blackmore (1995), 122 D.L.R. (4th), 2 B.C.L.R. (3d) 201 (C.A.), Cumming J.A., speaking for a five member panel of the court, said:

[28] … the view that costs are awarded solely to indemnify the successful litigant for legal fees and disbursements incurred is now outdated. A review of Rule 37, which deals with offers to settle, reveals that in certain circumstances a party may be entitled to costs, or double costs, or to no costs at all. One of the purposes of the costs provisions in Rule 37 is to encourage conduct that reduces the duration and expense of litigation, and to discourage conduct that has the opposite effect. Thus, although it is true that costs are awarded to indemnify the successful litigant for legal fees and disbursements incurred, it is also true that costs are awarded to encourage or to deter certain types of conduct.

[Emphasis added.]

d) Recently, in Catalyst Paper Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16, Hall J.A., in the context of addressing Rule 57(9), said:

[15] In the recent case of Bedwell v. McGill, 2008 BCCA 526, a case dealing with a particular aspect of costs not relevant to this appeal, Newbury J.A., for the court, at para. 33, noted the purpose of former R. 37(24) as being “aimed at encouraging litigants to settle wherever possible, thus freeing up judicial resources for other cases.”

[16] It seems to me that the trend of recent authorities is to the effect that the costs rules should be utilized to have a winnowing function in the litigation process. The costs rules require litigants to make careful assessments of the strength or lack thereof of their cases at commencement and throughout the course of litigation. The rules should discourage the continuance of doubtful cases or defences. This of course imposes burdens on counsel to carefully consider the strengths and weaknesses of particular fact situations. Such considerations should, among other things, encourage reasonable settlements.

ii) The onus is on the person who seeks to displace the usual rule that costs follow the event: Grassi v. WIC Radio Ltd., 2001 BCCA 376 at para. 24.

iii) Though Rule 14-1(9) conveys a discretion to the court, that discretion is to be exercised in a “principled way”: Rossmo v. Vancouver Police Board, 2003 BCCA 677 at para. 59; or on “sound principle”: Brown v. Lowe, 2002 BCCA 7 at para. 147.

iv) The exercise of discretion must be connected to the conduct (or misconduct) of a party in the litigation: Lawrence v. Lawrence, 2001 BCCA 386 at paras. 31-32; Smith v. City of New Westminster, 2004 BCSC 1304 at para. 9.

v) The conduct in question can arise either at trial or at some earlier stage in the proceeding. For example, conduct that has been held to justify a denial of costs includes giving false evidence on discovery: Brown at para. 149-150. It also includes a failure to make timely and thorough production of relevant documents; Forsyth v. Pender Harbour Golf Club Society, 2006 BCSC 1108 at para. 72.

vi) Costs are not to be used to sanction a party whose evidence was exaggerated or who gave evidence in error: Brown at para. 149. Where the appropriate dividing line lies was explained in each of Roberts v. Wilson (1997), 10 C.P.C. (4th) 188 (B.C.S.C.) at para. 25; Cardwell v. Perthen, 2007 BCSC 366 at para. 13; Noyes v. Stoffregen, [1995] B.C.J. No. 73 at paras. 79-80.

vii) Where a court concludes that a party has intentionally or deliberately sought to mislead the court that party will normally be deprived of its costs: Medeiros v. Vuong, 2001 BCSC 326 at para. 12.

[11] I would add the following additional comments. First, Rule 14-1(9) is not intended to provide an unsuccessful party with an opportunity to parse through the litigation conduct of the opposing party searching for behaviour that might be criticized. I do not say that the discretion which is conferred in Rule 14-1(9) is limited to exceptional cases. The Rule is not, however, intended to address imperfect or less than optimal conduct. It is generally not intended to address questionable judgment. Instead it provides the court with an objective means of communicating its censure in relation to conduct that manifestly warrants rebuke.

[12] Second, the Rules of Court and the rules of evidence apply equally to both parties who are represented by counsel and to those who are self-represented. Self-represented litigants are not insulated from these requirements or the obligations they create. Nevertheless, depending on the nature of the concern expressed, some greater flexibility or tolerance may be accorded a self-represented litigant. For some issues, the need for honesty being the clearest example, no different standard can or does apply to a lay litigant. The requirement that parties be forthright is readily understood by all and is inflexible.

[13] In other cases, some increased measure of lenience will be appropriate and necessary. For example, a well-intentioned lay litigant’s imperfect understanding of relevance may cause that litigant to fail to produce certain documents, or to ask unnecessary questions of a witness or to object to what are proper questions. So long as that litigant acts properly once alerted to the deficiencies in his or her conduct, little is achieved in seeking to sanction the earlier conduct. There is no intentional conduct or abuse of the court’s process that warrants sanction.