Adding to this site’s expanding database for BC soft-tissue injury assessments, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for chronic soft tissue injuries with a poor prognosis.
In last week’s case (Bissonnette v. Horn) the Plaintiff was involved in a 2007 collision. Fault was admitted focusing the trial on damages. The Court found that the Plaintiff suffered various soft tissue injuries involving her beck, back hip and leg. The injuries continued to cause difficulties to the time of trial and were expected to linger into the future. In assessing non-pecuniary damages at $50,000 Madam Justice Gray provided the following reasons:
I accept the evidence of Dr. Frankel that Ms. Horn continues to suffer with left hip, neck, left leg, and lower back pain, disturbed sleep patterns, headaches, anxiety, and weight gain as a result of her motor vehicle related injuries. I also accept his opinion that, as these symptoms have continued for over four years since the accident, her prognosis for full recovery is guarded. Dr. Chu testified that the prognosis was fairly good for Ms. Horn’s widespread myofascial pain syndrome and that it usually responds to active exercise and treating sleep or mood disturbances. I accept this evidence as well….
Ms. Horn’s continuing pain has diminished since the accident, but remains significant enough to affect her work, recreation, and sleep. She suffered other symptoms closer to the accident, including severe headaches, a broken tooth, and a finger injury.
Global damages of just over $100,000 were awarded demonstrating the soft cap in action set out for fast track trials in Rule 15. This is not the first time this has happened since the new rules came into force and also confirms the disjunctive nature of Rule 15 allowing for the prosecution of claims over the $100,000 damage cap.
Earlier this year Master Bouck found that Rule 15 applies to cases worth below $100,000 regardless of length of trial and conversely to cases worth more than $100,000 where the length of trial is three days or less. This reasoning was confirmed in reasons for judgement released this week by Mr. Justice Grist.
In this week’s case (Sandhu v. Roy) the Plaintiff was injured in two separate motor vehicle collisions. He sued for damages and both actions were set for hearing, by consent, at the same time. ICBC unilaterally put the cases into Rule 15 and set a trial for three days. The Plaintiff applied to remove the case from Rule 15 arguing the case did not meet with its requirements given the value of the claims and the length of trial necessary.
ICBC argued that liability was “not seriously in dispute” and the trial can be completed in three days. Mr. Justice Grist found with liability denied in the pleadings the case was not suitable for fast track litigation and ordered the matter removed from Rule 15 (unless ICBC formally admitted liability within 14 days). In doing so the Court provided the following reasons confirming the Disjunctive nature of the fast track Rule:
The defendants’ point that the prerequisites for a Fast Track Notice are listed disjunctively is sound. In Hemani, Master Bouck recognized the disjunctive list of criteria in Rule 15-1(1), as allowing for a case requiring more than three days to be set on Fast Track, and held that an action will not be removed from Fast Track on an application under 15-1(6) for that reason alone. Rule 15-1, however, presents something of a conundrum on the question of removal of an action from Fast Track as a result of an estimated trial length beyond three days. If the action proceeds to a Trial Management Conference, Rule 15-1(14) applies:
If trial will require more than 3 days
(14) If, as a result of the trial management conference in a fast track action, the trial management conference judge considers that the trial will likely require more than 3 days, the trial management conference judge
(a) may adjourn the trial to a date to be fixed as if the action were not subject to this rule.
In a case like this one, where only three days are set aside for trial and the circumstances indicate that significantly more days are required, should the matter proceed to a Trial Management Conference, the court would in most cases be forced to require a second trial date be set, and may often be called on to remove the action from the strictures of the Rule…
I find merit in plaintiff’s application and would accede to the adjournment of the trial and removal of the action from the Fast Track Program. I consider, however, that the orders may not ultimately be necessary if liability for the two collisions were to be admitted. Defence counsel should be given the opportunity to re-assess his position once the effect of this decision is known. Accordingly, I will stipulate that the two orders will become effective should the liability issues not be settled within 14 days of these Reasons.
Rule 15 is the new BC Fast Track Litigation Rule and it is mandatory for cases for damages seeking less than $100,000 and for cases that “can be completed within 3 days“. Rule 15-1(6) permits a court to remove a case from Fast Track Litigation. The first case I’m aware of dealing with such an application was released this week by the BC Supreme Court, Vancouver Registry.
In today’s case (Jones v. Stratford Hall) the Plaintiff sued using the mandatory fast track rule. The Defendant applied to remove the case arguing that the trial would take more than 3 days. Master Bishop refused to remove the case from the Fast Track finding that there was a “rational possibility” the case could be concluded in 3 days. The Court provided the following short but helpful reasons: With respect to the first application, that is a little bit more difficult of a question to resolve, but in my view, given the test set out by Master Bolton that the defendant must show quite clearly that the matter cannot be completed in two days ?? three days, sorry, I believe the defendant fails on that basis. I believe there is a rational possibility that counsel, particularly given the case management conference that is happening tomorrow, can complete matters within the three days, and therefore that application is dismissed.
Master Bishop refers to a case where Master Bolton appears to have addressed this issue previously (and perhaps in more detail) although the reasons for judgement do not indicate which authority the Court is relying on. Until more precedents are developed interpreting Rule 15, authorities addressing the former Rule 68 may be of some assistance and guidance. You can access my archived posts addressing the former Rule 68 here.
As readers of this blog know Rule 68 is a ‘proportionality‘ based rule which was brought in a few years ago and was intended to be mandatory to certain claims worth $100,000 or less in the BC Supreme Court.
Rule 68 has not been particularly successful and many injury lawyers have avoided this rule whenever possible due to its perceived shortcomings. This rule is going to be wiped from the books when the New BC Supreme Court Civil Rules take effect on July 1, 2010. Rule 68 will be blended with the New Rule 15 which really combines the best of our current alternative litigation rules.
Despite Rule 68’s mandatory nature, Rule 68(7) permits parties to get out of Rule 68 if a Court “so orders“.
So what factors will a court considering in removing a case from the rule? Reasons for judgement were published today on the BC Supreme Court website dealing with this issue for what I believe is the first time.
In today’s case (The Board of Trustees of School District No. 41 v. Crane Canada Co.) the Plaintiff sued for damages as a result of allegedly faulty bathroom fixtures. The case was worth less than $100,000 but the Defendant’s wanted it removed from Rule 68. They applied for an order under Rule 68(7) and were successful. In removing the case from Rule 68 Mr. Justice Groves provided a list of non-exhaustive factors that could be considered on such applications, specifically the Court held as follows:
14] Unfortunately, the criteria to apply to an application to remove a case from Rule 68 has not been effectively resolved by the case law as of yet.
 On these facts, a number of considerations are appropriately applied to the consideration of whether or not a case should be removed from Rule 68.
 The following discussion is not meant to be exclusive. It is somewhat factual driven, as must all the cases be. It is not the final word on or is it intended to be a definitive word on when Rule 68 is not appropriate to litigation.
 Of note first is that Rule 68 has the $100,000 cap. That does not mean all case under $100,000 are appropriately litigated under Rule 68. There are many types of cases which fall within the $100,000 cap and based on a simple analysis of complexity it may be inappropriate to allow a case to continue under Rule 68.
 Here is an example. A motor vehicle case which is under $100,000 which involves only an assessment of non-pecuniary damages is clearly a case in which Rule 68 should apply. That, I am probably going out on a limb here to say, is the type of case that Rule 68 was clearly designed to manage. A straightforward piece of litigation.
 However, sticking within the $100,000 criteria and the motor vehicle scenario, there are cases in which a claim for damages from a motor vehicle accident might be under $100,000 but it would not be appropriate for them to continue under Rule 68. That would be a case perhaps where both liability and damages are in dispute and expert evidence is required on both those issues. Additionally, the damages may be under $100,000 but may involve non-pecuniary damages, past wage loss, cost of future care and future lost opportunity. Though all those heads of damages may still work out to a grand total of damages of less than $100,000, that type of case with a liability and damage component is clearly one which is in my view too complex and requiring too many potential streams of evidence and expert evidence for it to logically continue under a Rule 68 model.
 A second consideration that the courts should take in determining whether or not Rule 68 still should apply is whether or not the issues between the parties are of interest only to them or whether or not there is some legal or juristic significance to the litigation. Clearly a dispute between two people about a contract, a property dispute between two neighbours, a simple motor vehicle case, are cases in which the issues between the parties are of interest only to those parties and likely do not have any long-term legal or juristic significance. Case which have long term consequences to litigants or far reaching juristic significance may not.
 Thirdly, a consideration about removal should be whether or not moving the case to the regular stream would have the effect of putting an end to the litigation because of cost and not allowing the parties to actually pursue their litigation because Rule 68 is not open to them.
 With those non-exclusive approach, I now turn to an analysis of this case…
While Rule 68 is being abolished soon this case may still retain some value as a precedent under the New BC Supreme Court Civil Rules as Rule 15-1(6) the ‘fast track’ rule contains a similar subrule about removing a case from fast track litigation if a Court ‘so orders‘
If you would like further information or require assistance, please get in touch.
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.
This blog is authored by personal injury and ICBC Claims lawyer Erik Magraken. Use of the site and sending or receiving information through it does not establish a solicitor/client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.