Reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, addressing whether a unique causation issue in a personal injury claim was too complex for a jury.
In today’s case (Jackson v. Yusishen) the Plaintiff was rear-ended by the defendant’s truck in 2009. The Plaintiff sustained some injuries and sued for damages. Some 6 months following the crash the plaintiff “coughed and the pain in his chest and back suddenly increased in intensity“. He was ultimately diagnosed with “one or two fractured ribs…hernias of the intercostal area and of the diaphragm“. He had multiple surgeries to correct these complications that had not been successful. The biggest issue for trial was for the jury to decide whether the ribs were compromised in the collision and whether the collision caused or contributed to the ultimate complications the Plaintiff was diagnosed with.
The Defendant elected trial by Jury. The Plaintiff argued the matter was too complex for a jury to decide. Mr. Justice Rogers disagreed and held that a jury could address this issue. In upholding the jury election the Court provided the following reasons:
 It is possible that the jury may find that the accident weakened the plaintiff’s ribs such that the later coughing episode caused them to fracture. In that event, the standard language of an Athey instruction will suffice to guide the jury’s deliberations. Again, juries are regularly instructed on similar Athey issues – this case would not present any greater complication on that issue than any other.
 Once the jury has determined whether the accident caused rib fractures or a weakening of the ribs that later turned into fractures, the rest of the jury’s duties will be relatively straight forward. If their answer to that question is yes, then they will have to assess the degree to which the injuries have impaired the plaintiff’s function and award damages accordingly. For that task, they will have the assistance of expert reports of the type that are conventionally adduced in personal injury cases. Those reports include a functional capacity evaluation, a vocational assessment, a cost of future care report, and an economist’s assessment of the present value of various loss scenarios. Again, in serious personal injury cases, juries are routinely asked to consider such reports. There is nothing about the content of the reports in this case that suggest that a jury would not be able to conveniently consider their content and render a verdict accordingly.
 If the jury’s answer to the causation question is no, then their task will become very nearly trivial.
 Although there are a number of expert reports that will go into evidence in this case, the reality is that the jury will likely not be required to scour each and every word in each and every report. For example, the plaintiff’s economist’s reports may be useful to the jury should it wish to award future losses to the plaintiff, but it is unlikely that the jury will need to go beyond picking what appears to it to be the appropriate multiplier for a given loss and a given set of positive and negative contingencies.
 In my opinion, the jury’s task of hearing, examining, and considering the evidence in this case will not exceed the bounds of convenience. The jury will be asked to conduct a scientific inquiry into what the radiographs could and did show of the plaintiff’s rib structure, but that will be a relatively narrow and focused inquiry. The jury will be guided by the opinions of qualified medical practitioners and by counsel’s submissions. It is not every contest of medical opinion that will disqualify a jury from trying a personal injury claim, and in my view, the scientific inquiry that the jury will make on this issue will be within its capacity.
 Once the jury gets past the issue of causation, this case will become a relatively straightforward assessment of personal injury damages. The evidence on quantum issues is entirely conventional and is of the sort that juries are often asked to consider and assess. The jury may have to make some difficult decisions, but the path to those decisions will not, in my view, be so intricate or complex as to overwhelm the jury’s capacity to arrive at a just and proper judgment.
 For these reasons, I have concluded that the plaintiff’s application to strike the jury notice must be dismissed.
Tag: Rule 12
Reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, addressing whether a unique causation issue in a personal injury claim was too complex for a jury.
Reasons for judgement were release this week by the BC Court of Appeal upholding a judges decision to strike a jury notice in a complex and prolonged personal injury trial.
In this week’s case (Wallman v. Gill) the Plaintiff alleged that “he suffered serious injuries” in a rear end collision. The trial was scheduled with “at least 23 experts…as well as some 31 civilian witnesses” and was expected to last 7 weeks. The Defendants wished to have the trial judge proceed before a jury but a chambers judge struck the jury notice finding the trial was too prolonged and complex for a jury. In upholding this decision the BC Court of Appeal provided the following reasons:
 The decision to strike a jury notice is a discretionary one that relates to the management of a trial and may not be interfered with lightly on appellate review: MacPherson v. Czaban, 2002 BCCA 518. Absent an error of principle, or failure to give sufficient weight to all relevant considerations, deference must be accorded to such an order.
 The legal test to be applied on review of a discretionary order is whether the judge “has given weight to all relevant considerations”: Mining Watch Canada v. Canada (Minister of Fisheries & Oceans), 2010 SCC 2,  1 S.C.R. 6 at para. 43. The appellants contend that the chambers judge acted on irrelevant considerations or alternatively failed to apply established legal criteria. With respect, I do not agree.
 In this case, the chambers judge found that the issues for trial will require a scientific investigation. This is a factual determination for which deference must be accorded absent palpable and overriding error, which is not alleged. In the exercise of his discretion, he found that the scientific investigation into the proposed evidence could not conveniently be undertaken by a jury. In reaching that conclusion, the judge was satisfied that a proper review of the evidence and the legal issues could not be ensured by a jury that would be required to understand and retain opinion evidence from a large number of expert witnesses over a protracted period of time…
 These decisions, in addition to many others, demonstrate the type of considerations that must be weighed when faced with an application to strike a jury notice. The management of a proposed civil jury trial requires the judge to ensure, as best as he or she can, that all who are involved, including the parties, their counsel, the potential jurors and the trial judge are able to satisfactorily perform their respective duties and responsibilities in order to meet the common objective of a fair trial.
 In this case, the chambers judge applied the correct legal test under R. 12-6(5) for the striking of a jury notice and in my view cannot be said to have erred in the exercise of his discretion in striking the jury notice in order to ensure the proper conduct and management of the trial of this action. Accordingly, I find no basis upon which this Court might interfere with the order and therefore I would dismiss the appeal.
A common occurrence at Trial Management Conferences is adjournment in circumstances where it is clear the time available for trial is insufficient. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, recognizing that this is a “serious penalty” and that in cases where the trial estimate when set was “not unreasonable” an advance payment order may be an appropriate remedy.
In this week’s case (Van Gils v. Grandmaison) the Plaintiff was involved in a 2008 collision. Liability was admitted. The Plaintiff alleged he suffered from Thoracic Outlet Syndrome. The Defendant disputed the severity of the claimed injuries. The matter was set for an eight day trial but by the time of the Trial Management Conference it became clear this was insufficient. Mr. Justice Schultes adjourned the trial and ordered an advance of damages. In finding this was an appropriate use of the Court’s discretion Mr. Justice Schultes provided the following comments:
 It is common ground that the governing the authority is the decision of Mr. Justice Macfarlane in Serban v. Casselman (1995), 2 B.C.L.R. (3d) 316 (C.A.) leave to appeal ref’d  S.C.C.A. No. 120.
 The often-cited passage is at para. 11:
While such orders are often made when the adjournment was brought about through the fault of one party or where the conduct of the litigation demands such an order, the rule is not restricted to matters of that kind. It is obvious that an order for advance payments should only be made in special circumstances. Obviously such an order should not be made unless the judge who makes it is completely satisfied that there is no possibility that the assessment will be less than the amount of the advance payments.
 I think that the current situation meets the requirement of “special circumstances”. This trial was adjourned at the direction of the Court, pursuant to the Supreme Court Civil Rules, because it would exceed the original estimate and the trial schedule could not absorb that excess.
 Based on the material that I had at the trial management conference, I would not have been able to attribute any lack of care or diligence to either counsel for the increase in trial length since it was originally set. Mr. Van Gils’ counsel advised that he had set it for eight days in the specific anticipation that, if his estimate were to be exceeded slightly, the schedule can usually still accommodate a trial of up to ten days.
 When the estimate grew to potentially exceed that upper limit, he was still engaged in pruning his witness list when the defendants concluded that it was appropriate to add further witnesses. Neither approach is unusual in the course of trial preparation and neither is deserving of criticism.
 The penalty for an incorrect estimate is an extremely serious one: a court-compelled adjournment at the trial management conference if the schedule cannot accommodate the new time estimate.
 While this might be an appropriate deterrent for counsel who give their original estimates carelessly or who grossly underestimate the time required, it falls harshly on litigants and counsel whose original estimate was not unreasonable and whose requirement for additional time is based on changing circumstances as the trial grows closer.
Last year I discussed the fact that the BC Supreme Court can deal with Jury Strike applications both under Rule 12-6(5) and also as part of the trial management process. Reasons for judgement were released last week by the BC Court of Appeal (Wallman v. Gill) addressing this reality but also providing comments on the limits of when the trial management process is an appropriate forum for such an application. The Court provided the following feedback:
23] By analogy, although the application to strike the jury in this case was heard by the judge who had been appointed to manage the action, he did not hear it in the course of a trial management conference under R. 12-2(9), but in regular chambers under R. 12-6(5). Indeed, he could not have heard it at a case management conference since it is evident the parties filed affidavits on the application, and this would not have been permitted under R. 12-2(11)(a). Thus, the order striking the jury is not a limited appeal order.
 I would be sympathetic to the plaintiff’s argument that the Legislature did not intend to create a “two-tier” system for appealing orders directing the mode of trial if I were satisfied that was the practical effect of this ruling. However, I am not convinced that this is the case. This argument fails to recognize the unique role of the case management conference. It is held late in the proceeding, when the trial is sufficiently imminent that the parties have been able to prepare a comprehensive trial brief, and meet in person with the judge to make informed decisions about how the trial will proceed. In this limited context, R. 12-2(9)(b) permits a trial management judge to decide whether the trial should be heard with or without a jury, either on application by one of the parties or on his or her own initiative, and without affidavit evidence. I venture the view that this power will be exercised rarely. If the parties have been unable to agree on the mode of trial, it seems most unlikely they would leave this to be determined late in the day at a case management conference, without the benefit of affidavit evidence. It is reasonable to assume that, instead, there will have been an earlier application under R. 12-6(5) to determine this issue. Further, it seems unlikely a trial management judge would then consider revisiting an earlier order dealing with mode of trial or, if no earlier application had been brought, alter the mode of trial in a summary manner late in the day.
The BC Supreme Court Rules require a trial certificate to be filed at least 14 days before a scheduled trial date. Failure to do so requires the matter to be removed from the trial list ‘unless the court otherwise orders‘. Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, addressing the framework which permits the Court to restore a trial date after if it has been removed from the trial list. In short the Court relied on its power under Rule 12-1(9)(b) to “fix the date of a trial proceeding” to remedy the problem.
In this weeks case (Knowles v. Lan) the Plaintiff was injured in a collision. Prior to trial ICBC sought to have the matter adjourned but the application was dismissed. The Plaintiff’s lawyer then forgot to file a trial certificate and the matter was removed from the trial list. Mr. Justice Halfyard restored the trial date and in doing so provided the following reasons addressing the proper framework for such a remedy:
 The first question is whether Rule 12-4 (5) gives the court power to restore a proceeding to the trial list, after it has been removed for non-compliance with Rule 12-4 (2). I would say firstly that, because of the mandatory wording in Rule 12-4, the filing of at least one trial certificate is a necessary condition for a trial to proceed. As a consequence, I do not think the court could dispense with the filing of any trial certificate, but could only grant leave to file it less than 14 days before trial.
 In my opinion, a party who seeks to have a trial restored to the trial list must first obtain leave to file a trial certificate “late,” under Rule 22-4 (2). If such leave is granted, and a trial certificate is filed in accordance with the order, that filing would not have the effect of restoring the trial to the trial list from which it had been removed. Could the court make such a restoration order, under Rule 12-4 (5)?
 In my opinion, Rule 12-4 (5) should be read so as to include the additional underlined words, as follows:
(5) Unless the court otherwise orders, if no party of record files a trial certificate in accordance with sub-rule (2), the trial must be removed from the trial list.
 In my view, Rule 12-4 (5) is designed to prevent an action being removed from the trial list for failure to file a trial certificate as required by subrule (2). It does not state that, if a trial has been removed from the trial list, the court may restore that trial to the trial list. Nor do I think that such a power is implicit in that subrule. In order to preserve a trial date by invoking this Rule, I think the application and the order would have to be made before the 14 day deadline. That was not done here, and so this rule cannot be relied upon…
 It may be that Rule 1-3 provides inherent jurisdiction to make an order restoring this action to the trial list for March 4, 2013. But it seems to me that Rule 12-1 (9) provides specific authority to do this. Subrule (9)(b) states:
(9) The court may
. . .
(b) fix the date of trial of a proceeding,
. . .
 When this action was struck off the trial list, there was no longer any date scheduled for the trial. The subrule I have just referred to does, in my opinion, empower the court to fix a date for the trial of this proceeding which coincides with the previously – scheduled trial date of March 4, 2013. I would rely on that subrule in making the order to reinstate this action for trial on March 4, 2013.
 Authority might also be found in Rule 22-7(2)(e), which states in relevant part as follows:
(2) . . . if there has been a failure to comply with these . . . Rules, the court may
. . .
(e) make any other order it considers will further the object of these . . . Rules.
 In my opinion, the reasons I have outlined support the orders that I made on February 27, 2013.
Adding to this site’s archived posts relating to examinations for discovery under the BC Supreme Court Rules, reasons for judgement were released this week addressing whether a party may self-record an examination for discovery. In short the answer is no.
In this week’s case (Rassaf v. SNC-Lavalin Engineers and Constructors Inc.) the Plaintiff indicated he wished to record his own discovery. The Defendant brought an application prohibiting him from doing so. In granting the application Mr. Justice Goepel provided the following reasons:
 A somewhat similar situation arose concerning the power of parties to videotape examinations for discovery. In Ramos v. Stace-Smith (2004), 24 B.C.L.R. (4th) 333, Mr. Justice Fraser allowed an examination to be videotaped.
 That decision was subsequently followed in Ribeiro v. Vancouver (City), 2004 BCSC 105. The Ribeiro case was appealed. The appeal judgment is found at 2004 BCCA 482. On appeal, Madam Justice Southin held that the decision in Stace-Smith was wrongly decided and similarly the chambers judgment in Ribeiro, which had followed Stace-Smith, was similarly wrongly decided. In reaching her decision, she noted that there was no provision in the Rules for an order for videotaping. She said at para. 3:
There is no provision in the Rules of the Supreme Court of British Columbia for the order which was pronounced in this case. Since time immemorial, that is to say since examinations for discovery were first permitted in this province which I think now is about 80 or 90 years ago, they have never been filmed by any method at all. If they are to be, there must be a change in the Rules of the Court to permit or authorize such a practice, or, in my view, there must be at least a practice direction emanating from the whole of the Supreme Court of British Columbia on the point. In making the latter remark, I am not saying that a practice direction would necessarily be valid in such circumstances. Matters of practice and procedure in the court below must be governed by its Rules, and those Rules must be duly enacted under theCourt Rules of Practice Act. It is certainly open to the Lieutenant Governor in Council to permit what Mr. Potts says is a very good idea but she has not done so. It is not appropriate for a single judge of the court below to engage in matters of practice and procedure in what I call judicial individualism. The course of the court below is the law of the court and the course has never been to engage in such a practice.
Those words apply in these circumstances.
 It has not been the practice that individual parties are allowed to record examinations for discovery. There is no provision for same in the Rules. In these circumstances it would not be appropriate for me to allow such to occur. Accordingly, I am granting the defendant’s order, and the plaintiff will be prohibited from recording by any means his examination for discovery.
When medical developments unfold deep in the litigation process it is not uncommon for adjournment applications to be granted. Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, addressing such a situation urging parties to make reasonable compromises to accommodate these developments.
In the recent case (Dhillon v. Bowering) the Plaintiff was injured in two collisions that the Defendants admitted fault for. In the course of the lawsuit the Plaintiff was assessed by an orthopaedic surgeon who felt some of the Plaintiff’s symptoms may be due to a possible labral tear. An MRI was suggested. The Plaintiff obtained an MRI which did indeed show bilateral labral tears. The Plaintiff served an updated medical report addressing this. This report, however, was authored and served outside the timelines required by the Rules of Court due to the timing of the MRI.
The Defendants requested a defence medical exam to address this issue. The Plaintiff consented to this late examination provided the Defendants did not object to the late report the Plaintiff served. The Defendant did not agree to these terms and instead brought an adjournment application. Master Taylor refused to adjourn the trial noting the Plaintiff bore some risk in proceeding as the Plaintiff’s late report may not be admitted. In suggesting compromise in such cases Master Taylor provided the following reasons:
 So on one hand we do not have Dr. Shuckett’s report in evidence, and now we have defendants asking for an adjournment so that they can do what they need to do to buttress their case because of the report of Dr. Shuckett, which is not in evidence.
 In my view, this problem could have been easily resolved by both parties agreeing to the late service of Dr. Shuckett’s report as well as the DME report from Dr. O’Brien and the matter would have proceeded. Now we are faced with an adjournment application of a trial that is 11 days away, the first accident which occurred more than five years ago…
 Well, with the greatest of respect to counsel, I do not know if prejudice would be an operating theme here in this application. I think what is more to the point, and I pointed that out to counsel at the early stage of this application, is that, first of all, there is a hurdle that plaintiffs have to get over before a defendant should be even concerned about this fact. The fact that they have not had a DME with respect to a labral tear in the left hip is not so much their concern but rather the causal connection. I have not seen anything in any of the reports that would be suggestive in any way whatsoever that there is anything but the accident as a causal connection. Now, if that is the only reason, ultimately, that the defendants are relying upon for an application for adjournment in this matter, then I think the defendants do not succeed in their application.
 Accordingly, I dismiss the application for adjournment, and I will award costs to the plaintiff in any event of the cause, not payable forthwith.
As previously discussed, one limitation when using examination for discovery evidence at trial is that the evidence is only admissible against the party that was examined. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this limitation finding it is equally applicable during a summary trial.
In this week’s case (Liversidge v. Wang) the Plaintiff sued the Defendant’s for damages. The Defendants brought Third Party proceedings but the Plaintiff never extended the claim against the Third Party. In the course of the lawsuit the Plaintiff examined the Third Party for discovery and then set down a summary trial intending to rely on portions of the examination transcripts as against the Defendant. In disallowing this Mr. Justice Burnyeat provided the following reasons:
12] Rule 12-5(46) (formerly Rule 40(27) states that evidence given at the examination for discovery by a party or a person under Rule 7-2(5) to (10) may be tendered as evidence by a party adverse in interest, but is only admissible against the party examined. This concept was explained by Arnold-Bailey J. in Biehl v. Strang, (2011) 21 B.L.R. (4th) 1 (B.C.S.C). as follows:
I note in Bower v. Cominco Ltd. (1998), 53 B.C.L.R. (3d) 322, 19 C.P.C. (4th) 22 (B.C. S.C.), it was held that the predecessor rule, R. 40(27) of the Rules of Court, B.C. Reg. 221/90 [Predecessor Rules], was enacted in response to Robinson v. Dick (1986), 6 B.C.L.R. (2d) 330 (B.C. S.C.), which permitted the admission of discovery evidence against co-defendants. In Beazley v. Suzuki Motor Corp., 2009 BCSC 1575 (B.C. S.C.) [Beazley] at para. 26, it was held that R. 40(27) only permitted discovery evidence to be admitted against the adverse party examined. (at para. 77)
 The decisions outlined in Biehl, supra, and Rule 12-5(46) are clear. The evidence given on an examination for discovery is admissible, but it is only admissible against the adverse party who was examined. Rule 12-5(46) applies equally to a Trial and a Summary Trial.
 Under Rule 7-2(1), “a party to an action must make himself or herself available for examination for discovery by parties of record to the action… who are adverse in interest to the parties subject to the examination”. The Plaintiffs did not commence an action against the Third Party so as to make the interest the Third Party adverse to the interest of the Plaintiffs. Here, the Plaintiffs did not have the right to examine the Third Party for discovery. Despite the fact the Third Party consented to being discovered by the Plaintiffs, that consent does not then make the evidence that arises from that discovery available for use by the Plaintiffs against the Defendants.
 The evidence provided at the Examination for Discovery of a representative of the Third Party cannot be used on this Summary Trial Application to assist the Plaintiffs in advancing the claim that they make against the Defendants.
Adding to this site’s archives of judicial commentary on the boundaries of opening statements, reasons for judgement were released earlier this week by the BC Supreme Court, Vancouver Registry, finding that comments addressing the Plaintiff by his first name and further discussing his wife’s miscarriage crossed the line.
In the recent case (Demello v. Chaput) the Plaintiff was involved in a series of collisions. During his opening statement he was referred to by his first name and further a miscarriage his wife had was referenced with the following statement being made:
His wife is pregnant during this period of time. She’d like a little bit more support. He’s not able to give that to her. In July, Michael was supposed to do a number of things in anticipation of having some friends over, July of 2012, and at that point his wife was pregnant with her third child. He didn’t get around to doing it. Out of frustration, she did it herself. She did all the work he was supposed to do that day in addition to getting the house ready for a party that they were having. They were having some friends over. She started bleeding and two weeks later she has a miscarriage. Now, whether or not or what caused the miscarriage is not the point here. The point is that she blamed Michael for that, so you can see that’s an obvious point of tension.
Madam Justice Maisonville found these comments crossed the line and discharged the jury. In doing so the Court provided the following reasons:
 I find that in the circumstances of the comments as they were made yesterday, it would be impossible to dispel the chain of reasoning that the accident ultimately led to the miscarriage. To make a further comment would underscore that, and, as noted in the above cases, it would be impossible to effect a correction without drawing attention to the problem and refer to what is not going to be led in evidence.
 I do not find that this is the same as the circumstances in the cases Zhong v. Ao and Holman v. Martin, which were not jury trials. I do not find that the remarks are appropriate for an opening, and rather that they are inappropriate and inflammatory and appear designed to have evoked sympathy, and that it would be impossible to craft an instruction to the jury that would be able to dispel that possible sympathy to the jury. As noted, as well, that there were similar objections to references to the position of the defendant respecting liability which cause concern.
 The remarks in relation to the miscarriage were sufficient to cause this court grave concerns such that I am going to direct that the jury be discharged. While I find that those remarks are questionable, I am not going to comment on them in these reasons as it is not necessary for me to do so. I do note that the reference to the plaintiff by his first name is considered inappropriate and has been considered so by both the Ontario courts and by the Court of Appeal.
 In all of the circumstances, I order that the jury in this matter be discharged.
 I note that, pursuant to the provisions of Rule 12, that counsel for the defendant submits that the matter can proceed judge alone. In the circumstances, I am going to order that the matter carry on as a judge alone trial.
Earlier this month I highlighted two decisions addressing whether injury trials with numerous expert witnesses were too complex for a jury to hear. The first case dismissed the jury notice and the second case upheld the notice.
This week a futher judgement was released addressing this topic finding a case with 475 pages of expert evidence was too complex for a jury.
In this week’s case (Moll v. Parmar) both the Plaintiff and Defendant filed a jury notice. At the trial management conference the Defendant indicated that a jury trial was still anticipated. As trial neared, however, the Defendant changed their view and brought an application to strike the Plaintiff’s jury notice. Mr. Justice Abrioux found that the case was too complex for a jury and in so doing provided the following reasons:
 What militates against the action proceeding before a jury is the sheer volume of medical reports, and in many instances, the scientific aspect of the evidence. I have reviewed many of the medical and other experts’ reports which were provided to me in October 2012. As I noted above, they comprise approximately 475 pages. The reports refer to other reports and assessments. The neuropsychological reports deal with many different tests, as do the vocational and functional capacity evaluations.
 I emphasize that what is in the record before me are experts’ reports, that is, evidence which, depending on admissibility issues, will be before the trier of fact. In that regard they are to be distinguished from, as I have noted, hospital and other records which may well have much less significance or importance to the trier of fact.
 In my view, there can be little doubt that the issues in this case will require a prolonged examination of documents or accounts or a scientific or local investigation. The plaintiff presents two alternative theories, the first being whether the accident caused an organic brain injury, which is scientifically complex. The reports of the neuroradiologist attest to this…
 I am satisfied that both tests set out in Rule 12-6(5)(a)(i) and (ii) have been met. First this case does involve a scientific investigation which will include a prolonged examination of documents, in particular experts’ reports, that cannot conveniently be heard by a jury. Secondly, the issues are sufficiently intricate and complex that the trial should not proceed with a jury. Justice would not be done if that were to take place. Accordingly, I direct that the trial be heard by the trial judge without a jury.