Tag: Rule 22

Law and Equity Act Does Not Require Separate Crash Claims to be Heard Together

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, confirming that it is discretionary, not mandatory, for a court to order injury claims arising from separate crashes to be heard together.

In today’s case (Hendricks v. Xie) the Plaintiff suffered profound injuries in a collision.  Her claim was scheduled for trial.  Prior to trial she was involved in a subsequent albeit less severe collision.

The Defendant brought an application saying both claims must be heard at the same time. 

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ICBC Jury Trial Request Denied Where In House Counsel Failed to File Jury Notice in Time

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, dismissing an ICBC application to lengthen the applicable time frame to file a jury notice.

In today’s case (Chapman-Fluker v. Gustavson) the Plaintiff was injured in a collision and sued for damages.  The Defendants, insured by ICBC and initially represented by in house counsel, failed to file a jury notice in the applicable time frame.

Months before trial the Defendants applied to allow them to file their jury notice beyond the specified time limits. 

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Court Orders Several Injury Claims Tried Together Due to Fraud Allegations

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering several lawsuits to be heard together due to allegations of fraud.
In today’s case (ICBC v. Singh) the court reviewed an application requesting that seven personal injury actions involving motor vehicle accident claims related to three separate collisions be tried together.
In addition to the injury claims ICBC sued the individuals alleging that they “knew each other and conspired to stage the accidents to make false personal injury claims.
ICBC applied to have all the lawsuits tried together. In granting the application Madam Justice Duncan provided the following reasons:

[34]        The authorities provide a non-exhaustive list of facts to consider when making a determination on consolidation or, as in this case, ordering that actions be heard together. The factors are derived from Merritt, as well as Shah v. Bakken, [1996] BCLR No. 2836, and Insurance Corp. of British Columbia v. Sam, [1998] BCJ No. 947:

1.       Will consolidation create a saving in pre-trial procedures?

2.      Will there be a real reduction in the number of trial days taken up by the actions heard together?

3.      What is the potential for a party to be seriously inconvenienced by being required to attend a trial in which they only have a marginal interest?

4.      Will there be a real saving in experts’ time and witness fees?

5.      Is there a common issue of fact or law that makes it desirable to dispose of both (all) actions at the same time?

6.      Will consolidation avoid a multiplicity of proceedings?

7.      What are the relative stages of the actions?

8.      Would consolidation delay the trial and prejudice one or some of the parties?

9.      Would there be a risk of inconsistent results?

[35]        In this case, an order that the actions be heard together should result in a saving in pre-trial procedures. There would be one discovery of ICBC representatives concerning the fraud allegations rather than separately scheduled days of discovery, one per defendant. There would likely be a real reduction in the number of days required for trial if the actions were heard together, rather than as seven tort actions and one fraud action, as a repetition of evidence could be avoided. Parties could be excused for the portions of the trial which do not relate to them, saving their time and expense in that regard.

[36]        Conversely, the actions could be heard in stages with the ICBC fraud action scheduled first as it might determine, in whole or in part, the viability of the individual tort actions. This, of course, would be dependent on the views of a judge at a case planning conference or a judicial management conference.

[37]        The common issues of fact or law as between these actions is manifest in the pleadings and in the documents placed before the court by ICBC. The question is whether these accidents were staged by the parties. The parties knew one another, or at least knew one person with connection to more than one of the collisions. Mr. Haghmohammadi has some involvement in Collision #1 as he gave Ms. Prakash the vehicle she was driving at the time. Mr. Inderjit Singh, who drove the vehicle which allegedly injured Ms. Prakash and Ms. Mehran in Collision #1, had business dealings with Mr. Haghmohammadi in the sale of rebuilt motor vehicles and was in fact involved in Collision #3 with him.

[38]        If individual trials were held, inconsistent results could ensue. It is no answer to say that Ms. Prakash’s trial would create res judicata in relation to issues of alleged fraud arising from Collision #1, as Ms. Mehran has a separate proceeding arising from the same accident and Mr. Inderjit Singh is also a litigant in relation to Collision #3. Determining what issues were adjudicated in the first trial would not be straightforward and might visit unfairness on others who were not parties at Ms. Prakash’s trial.

[39]        I acknowledge that Ms. Prakash’s action is set for hearing in February and an order that the matters be heard together will necessitate an adjournment of that trial; however, I am satisfied of a high degree of interconnectedness between the parties and that it is in the interests of justice that the matters be heard together, or as directed following the case planning process or by judicial management, if a judge is appointed to hear the matter.

Plaintiff Fined $25,000 For Not Complying With Document Production Orders

Update April 1, 2015I am advised that the below decision is presently under appeal
Update July 3, 2015– the below decision was overturned on appeal with the Court noting a Master has no jurisdiction to make such an order.
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Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, leveling sanctions against a Plaintiff in a personal injury lawsuit for not complying with Court document production orders.
In the recent case (Badreldin v. Swatridge) the Plaintiff was injured in a 2010 collision.  The Plaintiff was a physiotherapist and claimed diminished earning capacity.  The Defendant obtained Court orders for production of records relating to the Plaintiff’s business losses and these were not wholly complied with.  The Defendant asked that the Plaintiff’s action be dismissed but the Court noted this was too harsh of a remedy.  In ordering a $25,000 fine to be paid Master Harper provided the following reasons:

[46]         The defendant has been put through too much extra time, trouble, and expense in its efforts to limit the order just to compel the plaintiff to produce the documents and information. There has been a persistent pattern of non-compliance. The plaintiff has downplayed his responsibility for the non-compliance with the two court orders. As he has had legal counsel throughout, there is no excuse for his not understanding his responsibilities.

[47]         The production of the documents and information that did occur at the last minute and over a short period of time shows that it was possible to produce the documents and information in a timely fashion.

[48]         I find, therefore, that there has been no lawful excuse for the plaintiff’s non-compliance with the two court orders. I must now consider the sanction…

[53]         In my view, the sanction has to be sufficient to bring home to the plaintiff the point that court orders must be obeyed. In addition, the defendant is entitled to be compensated for the time, trouble, and expense of dealing with this issue, as well as the prejudice caused by the late production of documents and information, and the uncertainty with respect to how the work calendars are going to be used. There is a looming trial date of March 16, 2015. It is uncertain at this point as to whether the trial will go ahead. The loss of a trial date because of this late production is an additional prejudice to the defendant.

[54]         So balancing all of those factors, in my view, a sanction of $25,000 would be appropriate. I therefore order that the plaintiff pay to the defendant the sum of $25,000. The $25,000 will be used to offset against any settlement or judgment the plaintiff receives in this action.

Consolidation of Trials Not Appropriate With Multiple Quantum of Damage Assessments

Although the BC Supreme Court has discretion to consolidate different claims for trial in cases where competing claims are “so interwoven as to make separate trials at different times before different judges undesirable” this is a discretion rarely exercised when there are separate plaintiffs with distinct injury claims that require individual quantification.  This reality was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (MacMillan v. Shannon) 4 occupants of a vehicle were involved in a collision with another vehicle   All sued for damages in separate claims.  Liability and damages were disputed in all claims.  ICBC brought an application seeking to have all trials heard together.  This application was dismissed with the key factor in derailing the application being the individual quantum claims being advanced.  In addressing this point Master Caldwell provided the following reasons:
[8]             Finally, other than on the issue of liability, no one is arguing that there will be a significant or any saving on the presentation of expert evidence. Each of the plaintiffs has a different family doctor. Two of the plaintiffs now live in Quebec so if there is any further expert evidence it is unlikely to overlap and may have to be provided by way of teleconferencing to minimize expense. Again, it is clear that there are ways of reducing complexity, duplication and inconvenience; it will be up to counsel to determine whether that happens or not.
[9]             In short, I am of the view that none of the second arm of tests arising in the Merritt case (supra) or the subsequent case of Bhinder v. 470248 B.C. Ltd., 2007 BCSC 805 is met in the present cases. The application for consolidation and related relief is dismissed as is the application for removal of any or all of the actions from Rule 15-1 fast track.

BC Court of Appeal Discusses Two Routes of Challenging Jury Notices

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.
[24]         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.
 

How Do You Restore A Trial Date if You Failed to File a Trial Certificate?

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:
[24]         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.
[25]         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)?
[26]         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.
[27]         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…
[29]         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,
. . .
[30]         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.
[31]         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.
[32]         In my opinion, the reasons I have outlined support the orders that I made on February 27, 2013.

Claim Dismissal For Failure To Comply With Rules A "Particularly Draconian" Remedy

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, demonstrating that having a Plaintiff’s claim dismissed for failing to discharge obligations under the BC Supreme Court Rules is a ‘draconian remedy‘ which will not lightly be granted in a personal injury action where liability is admitted.
In the recent case (Breberin v. Santos) the Plaintiff was injured in a 2007 collision.  Fault was admitted by the offending motorist.  In the course of the lawsuit the Plaintiff failed to provide “very basic information” to the Defendants, “refused to obey court rules” and had “been found in contempt of court“.
The Defendants applied to strike the Plaintiff’s claim.  Mr. Justice Willcock noted that, although this was a borderline case and a remedial costs order was appropriate to emphasise “the Court’s concern with respect to the conduct of the Plaintiff” outright dismissal of the claim was too harsh a result in the circumstances.  In dismissing the Defendant’s application the Court provided the following reasons:

[36] The Rules of Court are designed to permit parties to obtain full disclosure of relevant materials far in advance of trial so as to avoid unnecessary litigation, to make or seek admissions, and to settle claims that ought to be settled.  Despite numerous case planning conferences and previous orders in this case, the plaintiff at the most recent case planning conference appeared to appreciate for the first time that she is not entitled to hold medical information in her hands and to refuse to disclose it until she is satisfied with her diagnosis.  She appeared to understand for the first time that it is not open to her to produce only that portion of her medical file that corresponds with her own diagnosis or that which she prefers.

[37] It is difficult to determine whether the plaintiff’s suggestion at the most recent case planning conference that she only now appreciates the nature of her obligations is genuine.  On previous occasions when this Court directed Dr. Breberin to attend in Vancouver for an independent medical examination, gave explicit reasons for doing so, and noted that there was insufficient medical evidence to permit the Court to accede to her argument that she was unable to travel, Dr. Breberin later continued to question the Court’s jurisdiction to make such an order.  She continues to resist attempts to have her attend here for a medical examination. That resistance speaks of an unwillingness to accept the Court’s jurisdiction and authority.

[38] Having said that, I am of the view that dismissal of the claim would not be proportional to the nature of the ongoing default.  Dr. Breberin has now, finally, produced the authorizations for production of medical records and provided them to defence counsel.  She advised me during the course of submissions on May 22, 2012 that she was prepared to permit defence counsel to use the authorizations without attaching any conditions to their use.  She should be satisfied with the implied undertakings as to the confidentiality of evidence obtained on discovery. Defence counsel may now use those authorizations unimpeded by any undertaking or condition other than that implied by law.

[39] The Plaintiff is prepared to attend at a continuation of her examinations for discovery.  She should promptly make arrangements to attend at such an examination once the defendants have obtained the medical records they seek.

[40] She is right to say that there has been no previous order that she attend at an independent medical examination by an orthopedic surgeon.  Given the evidence she herself has filed with respect to the nature of her ongoing complaints, it is my view that it is appropriate for the defendants to seek that she be examined by an orthopedic surgeon, and there will be an order that she attend at an examination by an orthopedic surgeon in Vancouver, at a date to be selected by defence counsel.  If Dr. Breberin is unable to attend on the date selected by defence counsel, she should promptly notify defence counsel, and may apply, within seven days of receipt of the appointment, for an order adjourning the date of her examination to another date available to her.

[41] Once these measures are taken, the defendants will be in a position to more adequately assess the plaintiff’s claim.  The dismissal of an action where there has been an admission of liability, as in in this case, would be a particularly draconian remedy for the contempt that has delayed the defendants acquisition of evidence to which they are entitled. In my view, although this is a borderline case, such a measure would, now be disproportionate to the plaintiff’s conduct.

Court Criticizes Unilateral Discovery Scheduling Practices


Unilaterally scheduled discoveries, while technically permissible, are a frowned upon practice.  Reasons for judgement were published this week by the BC Supreme Court, Kelowna Registry, critically commenting on such a tactic.
In this week’s case (Morgan v. BC Transit) the Plaintiff sued for damages as a result of a motor vehicle incident.  In the course of the litigation issues arose with respect to scheduling the discovery of the Plaintiff.  The Defendant unilaterally set a discovery date which the Plaintiff indicated he could not attend.  After non-attendance the Defendant brought a motion seeking to dismiss the Plaintiff’s claim but eventually backed away from this harsh request and instead sought an order that the Plaintiff attend discovery on another date and further seeking costs.
The court directed the parties to get on with the discovery and reserved dealing with costs consequences until this took place.  Ultimately Mr. Justice Betton dismissed the Defendants application and ordered that costs be paid to the Plaintiff.  In doing so the Court provided the following comments regarding unilaterally set examinations for discovery:
[14]         Obviously, the system would be challenged if appointments were routinely taken out without consultation with opposing parties and applications for dismissal followed non-attendance at such appointments. There is a balance that requires considered utilization of Rule 22-7(5). Circumstances must justify the application. Those who have an obligation to submit to an examination for discovery must cooperate reasonably in allowing the examinations for discovery to occur. Indeed it is a relatively unusual application and quite rare that such a severe remedy is granted. The reasons for this are numerous and most are self-evident. Most parties are represented and counsel are well aware of their own and their clients’ obligations. They make accommodations appropriately and reasonably to assist in achieving the objectives of the Rules. Even those who are not represented understand that procedural rules exist, and are to be followed, and there are consequences for failing to do so.

[15]I note in this case, there is no evidence before me indicating that there was any particular urgency to having the examination for discovery of the plaintiff concluded by the end of December. The trial date, as I noted, is set for December of 2012. When the December 1 date was adjourned on November 8, there was some discussion, but nothing done to formally set the examination for discovery until November 28, approximately three weeks later, when the issues quite quickly emerged. In this case, it is of significance that plaintiff’s counsel advised on December 18, approximately one month before this application was filed, that he had become available to have the examination for discovery of the plaintiff concluded in early January 2012. That is now some two months ago.

[16]There are cases when parties with or without counsel either use the Rules or ignore them to frustrate another’s legitimate efforts to prepare their case. In my view, this is not one of those cases. There are also cases where the Rules are used in ways which serve to defeat the broader objectives as described in the Rules of having cases proceed in an efficient and fair way. In all of the circumstances, it is my conclusion that the defence in these circumstances was overly aggressive in its utilization of this Rule and making an application to have the action dismissed with costs to the defendants; pressing to set the date on December 15 without consultation or without agreement was not necessary. Of most significance is the fact that before this application was set, plaintiff’s counsel had advised that they were now available to accommodate the examination for discovery occurring in early January. That discovery would have long since been concluded, rather than now being set in March and this application having had to proceed.

[17]In all of the circumstances, I decline to grant any costs thrown away to the defence for the examination for discovery of December 15, 2011.

[18]With respect to the costs of this application, in the circumstances, the defence will not have its costs of this application. The plaintiff will have its costs.

The Flexibility of the 7 Day Rule for Jury Strike Applications


Rule 12-6(5) imposes a 7 day deadline in which to dispute a jury notice. As previously discussed, the former rules of Court permitted parties to get away from this time limit by applying to strike a jury at a pre-trial conference.  With the overhaul of the civil rules does this exception still apply?  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, finding that it does.
In yesterday’s case (Cliff v. Dahl) the Plaintiff was ‘severely injured‘ in a 2007 collision.   The Plaintiff’s claim was set for trial and the Plaintiff filed a jury notice.  The Defendant brought an application to strike the jury notice but failed to do so within the timelines required by Rule 12-6(5).
The Defendant’s application was ultimately dismissed on the merits but prior to doing so Madam Justice Bruce provided the following reasons confirming the 7 day jury strike deadline is not strictly applied under the current rules:
[12] Under the old Rule 35(4)(a), a pre-trial conference judge, the trial judge or a master could make an order that a trial be heard without a jury. The court interpreted this provision broadly; it permitted the application to be made outside the seven day time limit imposed in old Rule 39(27), which is for the most part identical to the new Rule 12-6(5). While the old Rule 35(4)(a) does not appear to have found its way into the new rules, the rationale behind permitting applications outside the strict seven day time limit remains consistent with the intent and purpose of the new rules. The ability to apply to strike the jury notice outside the strict time limit was necessary to ensure a fair trial and the court’s ability to respond to a change in circumstances surrounding the conduct of a trial. Further, it is apparent that a trial management judge has authority to grant the relief claimed by Ms. Dahl without any reference to the seven day time limit: Rule 12-2(9)(b). Lastly, the court has a discretion to extend time limits in appropriate circumstances without the necessity of a separate application: Rule 22-4(2).

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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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