Tag: requests for particulars

"It Makes Little Sense" To Require Continuous Particulars of Damages

Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, finding that “it makes little sense to require a plaintiff to be continuously updating past wage loss and special damages claimed”.
In today’s case (Campbell v. Bouma) the Plaintiff was injured in a collision and sued for damages.  The claimed losses included past wage loss and special damages.  ICBC demanded that the Plaintiff provide particulars of “any claim of loss of earnings to date” and “of her out of pocket expenses”.
In dismissing these requests Master McDiarmid found that the Plaintiff was cooperative in the litigation and that it made little sense to require such claims to be particularized in the earlier stages of litigation.  The Court provided the following reasons:

[36]        The way the demand for particulars is framed, it seeks particulars in relation to past wage loss and ongoing or future wage loss. Future wage loss is usually awarded as a loss of capacity claim, unless there is a specific determinable actual future wage loss, such as known time off for future surgery.

[37]        It is trite, of course, that “past wage loss” is determined as of the date of trial. In this case, no trial date has been set.

[38]        Cases require trial management conferences. It is typical for the presider at a trial management conference to order particularization of wage loss and an updated particularization of special damages, so that the defendant is aware of those claims close to the trial date.

[39]        Applying proportionality principles, it makes little sense to require a plaintiff to be continuously updating past wage loss and special damages claimed; those claims should be disclosed as they are known to enable an efficient examination for discovery, but often do not require formal particularization, such that they become part of the pleadings, until close to the trial date…

[44]        The particularization sought respecting specials resulted in plaintiff’s counsel providing a document listing specials; virtually all of those listed specials appear to have been disclosed by the plaintiff in her June 17, 2014 list of documents.

[45]        The particularization sought respecting “wage loss” was actually for “loss of earnings both past and prospective.” An order for past wage loss particularization can be appropriate; as quoted by Walker J. in Mansoorciting Cullen J., at para. 19:

…Here the defendant is necessarily seeking particulars of the ongoing effect of the injuries on the ability of the plaintiff to earn income … Those are matters of evidence and logical reasoning and inference not amendable to particulars.

[46]        Unlike the situation in Mansoor, the defendant in this case has some wage information that was available between the date of the accident, September of 2011, and March 14, 2012. The evidence before me is that plaintiff’s counsel has written to the employer and, no doubt will be providing updated information when received. There was nothing communicated to the plaintiff or her counsel of any particular urgency; they were working under the assumption that information and resulting disclosure were required to enable the defendant sufficient time to prepare for an examination for discovery scheduled for November 3, 2015.

[47]        Exercising my discretion after considering all of the circumstances in this case and applying proportionality, as I am required to do, the orders sought for particulars in paragraphs 1 and 2 of the notice of application are dismissed.

More on ICBC Injury Claims and Pre Trial Discovery – XFD's and Requests for Particulars

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry dealing with 2 types of pre-trial discovery procedures utilized in the Supreme Court, the scope of examination for discovery questions and requests for particulars.
In today’s case (Gulamani v. Chandra) the Plaintiff alleged injury from 2 motor vehicle collisions some 10 years apart.  The Defendant put together a rather ‘boilerplate’ statement of defence which alleged, amongst other things that the Plaintiff was injured in previous and/or subsequent incidents, that the Plaintiff failed to follow medical advice, that the Plaintiff failed to take appropriate medications and that the plaintiff  did not return to work when she reasonably could have.
The Plaintiff’s lawyer brought an application that the Defence lawyer provide better particulars of these allegations (these types of boilerplate allegations are very typical in Statements of Defence filed in BC Personal Injury Actions).
In granting the Plaintiff’s request for further particulars Madam Justice Arnold-Bailey summarized and applied the law as follows:

[27] The court has the discretion, under Rule 19(16), to order a party to deliver better and further particulars of a matter stated in a pleading, provided that the party seeking that order has demanded them in writing from the other party, as required by Rule 19(17).

[28] It is clear from the case law that the decision to order particulars is extremely discretionary and heavily fact dependent.

[29] Considering the cases provided by counsel on this issue, my view is that the request for particulars is very similar to the previously granted request for further particulars made by counsel for the plaintiff of the Chandra defendants.  Here, as in that motion, what has been provided is so broadly worded and generic that it tells the plaintiff virtually nothing as to the true nature of the case she has to meet with regards to her alleged congenital defects or diseases prior to or post-accident, or regarding aspects of her alleged failure to mitigate.  Such broadly worded statements are particularly problematic in the present case because of the plaintiff’s extensive history of medical treatment over the past 12 years, since the injuries allegedly sustained in the first accident are said to overlap with the injuries sustained in the second accident with the defendant.

[30] I do not find the decisions in Fireside or Hoy provided by counsel for the defendant to be of assistance in this case.  While they are both examples of cases in which particulars were not ordered, they are both easily distinguishable from the case at bar.  Hoy deals with specifics on standard of care in a class action matter, where significant particulars had already been provided.  Fireside was a case where more than a generic particular had already been provided to the plaintiff.  In the case at bar there have been no particulars provided at all with regard to the broad claims contained in the statement of defence.

[31] The Court of Appeal clearly stated the function of particulars in Cansulex Ltd. v. Perry, [1982] B.C.J. No. 369 (C.A.) [Cansulex], where Lambert J.A., for the court, described their use at para. 15:

(1)        to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;

(2)        to prevent the other side from being taken by surprise at the trial;

(3)        to enable the other side to know what evidence they ought to be prepared with and to prepare for trial;

(4)        to limit the generality of the pleadings;

(5)        to limit and decide the issues to be tried, and as to which discovery is required; and

(6)        to tie the hands of the party so that he cannot without leave go into any matters not to be included.

[32] I now turn to the specific point set out in para. 15 of Cansulex that particulars are designed “to inform the other side of the nature of the case they have to meet”.  In my view, the statements made in the statement of defence are not sufficient to enable the plaintiff to know the case she must meet.

[33] Considering further the points contained in para. 15 of Cansulex, in this case I find that if further and better particulars are not provided by the defendant as to how to the plaintiff failed to mitigate her losses generally as claimed and with regards to her alleged failing to take reasonable steps to return to work, failing to follow medical advice and failing to follow exercise advice, then if there is any substance to these claims, it is likely she will be taken by surprise at trial.  The same may be said with regards to any other incidents or congenital defects or diseases that the defendant alleges caused the plaintiff’s injuries.

[34] I turn to additional points set out at para. 15 of Cansulex, requiring that the particulars must “enable the other side to know what evidence they ought to be prepared with and to prepare for trial”.  Based on what has been provided to date to the plaintiff, I do not see how proper trial preparation could be done.

[35] With regards to the further points from para. 15 of Cansulex regarding the purpose of particulars, “to limit and generality of pleadings” and “to limit and decide the issues to be tried”, once apprised of her alleged failure to mitigate the plaintiff will be able to take steps to collect the relevant evidence with regard to the specific failures or conduct alleged.  As indicated, the alleged overlap between the plaintiff’s injuries from the first accident in June 1997 to the alleged injuries from the second accident in July 2007, add considerable additional factual complexity.

[36] Regarding the final point in Cansulex at para. 15, that particulars serve to “tie the hands of the party so he cannot, without leave, go into any matters not included”, I find that there is considerable benefit to all parties in these actions to be tried together in the upcoming 30 day trial to properly identify and limit such claims.

[37] When considering an application for the delivery of further and better particulars, Bouck J. made a comment in Cominco Ltd. v. Westinghouse Can. Ltd. (1978), 6 B.C.L.R. 25 at 27 (S.C.). at paras. 7-8, which I consider to be relevant to the present application, namely:

Occasionally parties can get caught up in the fascination of the interlocutory process and lose sight of the fact that some day the matter must go to trial even though a “perfect” framework does not exist for its presentation.  Sometimes as well one side or the other is merely replying to the overzealousness of his opponent and motions or their opposition are meant to let one another know it will be a long hard fight.

I mean no criticism of counsel by these remarks.  They are honestly trying to pursue every recourse for the benefit of their respective clients.  That is their right and their duty.

[38] For these reasons the plaintiff’s application for further particulars is granted.

The second pre-trial procedure dealt with in today’s case was the scope of examination for discovery questions.  On examination the Plaintiff’s lawyer asked the Defendant to provide his cell phone records (to help prove or disprove that he was on the phone at the moment of impact), to provide the names of “liability and damage witnesses and contact information”.  In holding that these are proper discovery questions Madam Justice Arnold Bailey applied and summarize the law as follows:

[39] With respect to question (a) and the demand for cellular phone records, Rule 27(20) states that “a person to be examined for discovery… shall produce for inspection on the examination all documents in his or her possession or control not privileged, relating to the matters in question in the action”.

[40] Liability is at issue and the potential for the cellular phone records to indicate whether the defendant was using his phone at the time of the accident does exist.  Although not referred to any authorities by counsel, I note that there are several cases where cellular phone records have been referred to as to whether a person was using the cellular phone at the time of the accident.  One such case is Abay v. Keung, 2006 BCSC 1236, in which the plaintiff testified that the defendant had been using a cellular phone at the time of the accident, and the defendant denied doing so.  The defendant there had also refused to divulge his cellular phone records on examination for discovery.  There is no record of a demand being made for those records.  In that case, Cohen J. found, at para. 73, “although I find that the defendant had a cell phone in his vehicle, I cannot conclude that the defendant was talking on the cell phone at the time of the collision, as there is strongly conflicting evidence on this point”.  Cohen J. did not comment on the lack of records as affecting credibility or believability of the defendant.

[41] Conversely, in Zubko v. Ezaki, 2002 BCSC 1894, the defendant produced her cellular phone records to prove conclusively that she was not speaking on her phone at the time of the accident, as was alleged by the plaintiff.

[42] While I agree with the submission on behalf of the defendant that the phone records will not necessarily show with certainty whether the defendant was talking on the phone at the time of the accident, it seems that those records are within the scope of Rule 27(20) insofar as they relate to the matters in question in the action, namely liability for the motor vehicle accident.  It is entirely possible that the records will prove to have little weight at trial, but that is irrelevant to what is required by Rule 27(20).  Accordingly, I order the defendant to provide the answers to questions 68 – 71 of the examination for discovery, including providing his cell phone records for the day of the accident.

[43] With regard to question (b) and the names and contact information of liability and damage witness names, I agree with the reasoning in Sovani, at para. 3, where Paris J. held “Rule 27(22) means just what it says, namely, that the names and addresses of such persons must be disclosed if requested and the fact that a person’s knowledge relates only to the issue of damages does not safeguard the names from disclosure”.  Accordingly, I order the defendant to answer question 276 and as posed on p. 63 of the examination for discovery.

Lastly, since this is a case dealing with Civil Procedure, it is my practice to check if this case will remain a useful precedent when the new BC Supreme Court Civil Rules come into effect in July, 2010.  The answer is probably yes as the current Rule 19(16)(17) which the court relied on in its order for further particulars remains intact under the new rules and can be found at Rule 3-7(22).

With respect to the order addressing examinations for discovery, this case relied on Rule 27(20) which remains largely intact under the new Supreme Court Rules and can be found at Rule 7-2(16).  While the new rule seems to have some restrictions to it not present in the current rule the same result should arguably apply as the rule for production of relevant documents at the discovery will continue to apply to “a person for whose immediate benefit an action is..defended” as set out in Rule 7-2(6).

More on ICBC Claims and Requests for Particulars

Reasons for judgement were released today addressing a request for particulars in a BC car crash case where the issue of fault was admitted.
The Defendants asked the Plaintiff to provide particulars for any claim for special damages and loss of earnings to date.  The Plaintiff refused and Defendant’s obtained a court order requiring the same.  The Plaintiff appealed and reasons from that appeal were released today.
Mr. Justice Walker dismissed the appeal and in so doing made a few findings addressing requests for particulars that should be of interest to ICBC injury claims lawyers:
First that ‘particulars can only be sought for the following purposes

(a)     to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;

(b)     to prevent the other side from being taken by surprise at the trial;

(c)     to enable the other side to know what evidence they ought to be prepared with and to prepare for trial;

(d)     to limit the generality of the pleadings;

(e)     to limit and decide the issues to be tried, and as to which discovery is required; and,

(f)      to tie the hands of the party so that he cannot without leave go into any matters not included.

After canvassing several cases dealing with requests for particulars the court held that:

[32] In my view, providing particulars of the plaintiff’s wage loss and special damages’ claims in a case where liability has been admitted, particularly a routine bodily injury case, serves the purpose of the Rules of Court.

[33] This is a matter where the information sought has to be provided to the defendants at some point in time.  The documents relating to the claim for special damages should have been listed in the plaintiff’s list of documents.  They were not, and that is troubling.

[34] Delivery of the particulars sought may well shorten the time spent at examination for discovery, but most certainly failing to deliver them will prolong the discovery process.

[35] There is nothing in the Rules of Court stating that the particulars provided are meant to contain the final wage loss and special damages’ amounts.  The McLachlin and Taylor text states that particulars of special damages are to be provided as they become known; the textual commentary suggests to me that particulars of special damages should be delivered from time to time as they become known.  That makes good sense in a bodily injury case as special damages may only be known on an ongoing basis as the amounts are incurred.  Simply because some members of the Bar have fallen into the habit of providing particulars of special damages once, late in the day, is no answer to what the McLachlin and Taylor text says is good practice………

[44] I emphasize again that the information sought by the defendants has to be provided to the defendants sooner or later.  Here, the defendants seek that information at an early stage in the litigation.  The defendants admitted liability at the outset.  They wish to know the value of the claim.   The medical receipts should have been produced in the list of documents and were not.  Delivery of particulars may assist the defendants in their assessment and approach towards resolution of the claim.

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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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