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Tag: Rule 3

Lawyer Ordered to Pay Costs Personally for "Shoddy Piece of Counsel Work"

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 3.

In an illustration of a seldom used power, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, ordering a Plaintiff’s lawyer to pay costs to Defendants personally pursuant to Rule 14-1(33) after bringing an unsuccessful application to renew a lawsuit.
In this week’s case (Drover v. BCE Inc.,) the Plaintiff sued various Defendants challenging system access fees collected by cellular companies.   It was a proposed class action.  The lawsuit was filed in 2004 and various Defendants were served the lawsuit via fax.  Some Defendants questioned the propriety of fax service to which the Plaintiff’s lawyer responded “we believe the Court will accept service by Facsimile“.
No steps were taken to perfect service until 2012 when the matter was brought before the Court with the Plaintiff asking the Court to permit “the plaintiffs to serve the statement of claim”.  The Court refused noting that the Plaintiff’s lawyer “did not bother to consider the relief that might be available under the Rules.  Instead, he seemed to be content with putting a general concept in his application in the hope of attracting the court’s sympathy.”  The Court found this was “unacceptable” and dismissed the application after canvassing the factors under Rule 3-2(1).
Mr. Justice Weatherill awarded multiple Defendants costs and further ordered that the Plaintiff’s lawyer personally pay these.  In doing so the Court provided the following reasons:
[62]         In my view, this is an exceptional case.  The conduct of counsel for the plaintiffs has caused costs to be wasted through delay and neglect.  Plaintiffs’ counsel neglected this action for over 8 years.  When he got around to dealing with it by bringing this application, he failed to set out the proper relief.  Furthermore, the application was not supported by any evidence explaining either the delay or the failure to comply with the Rules regarding the need for an endorsement and proper service.  Moreover, the application was brought against defendants against whom there was no basis for the order(s) sought.  To say that this was and has from the outset been a shoddy piece of counsel work would be an understatement.
[63]         I am ordering that E.F. Anthony Merchant, Q.C. be personally liable for the foregoing awards of costs, payable forthwith.

Third Party Pleadings Permitted Against Plaintiff's Litigation Guardian

Written by admin on . Posted in BCSC Civil Rule 3, Uncategorized. 51 Comments on Third Party Pleadings Permitted Against Plaintiff's Litigation Guardian


When an infant sues for damages in BC they must do so through a litigation guardian.  Typically a parent acts in this role.  If an allegation arises that the litigation guardian’s negligence contributed to the child’s injuries can Third Party proceedings be brought against the litigation guardian?  The answer is yes as was demonstrated in reasons for judgement released by the BC Supreme Court, New Westminster Registry, earlier this month.
In the recent case (Alamdar-Saadati v. Lee) the Plaintiff was involved in a pedestrian/motor vehicle collision in 2009.  He was 6 years old at the time.   He was travelling alone on a transit bus.   After leaving the bus he “attempted to cross the street in front of the bus and was struck by a motor vehicle“.  The Plaintiff, through his mom acting as litigation guardian, sued the driver of the vehicle.
The driver brought an application to bring bring Third Party proceedings against the Plaintiff’s parents arguing they were negligent in allowing the Plaintiff to ride the bus alone.  The Plaintiff objected arguing the application would require the appointment of a new litigation guardian.  Master Keighley found that this was not a barrier to the claim.  In doing so the Court provided the following reasons:

[11] Ultimately, I have reached the conclusion that Ms. Alamdar’s status as litigation guardian does not impact the outcome of this case. She is, however, as a proposed Third Party, entitled to object to the issuance of the notice.

[12] The authorities indicate that a Third Party Notice should not be set aside on a motion under Rule 3-5(8) unless the applicant is able to establish beyond doubt that the pleadings disclose no cause of action. This test is identical to that applied on an application under Rule 9-5(1)(a) and, as a result, it has been held that a Third Party Notice should only be set aside if there is no serious question or issue to be determined, the question or issue raised by the Third Party Notice is not substantially the same as a question or issue in the original action or the question or issue should not properly be determined in the original action: Northmark Mechanical Systems Inc. v. King (Estate), [2009] B.C.J. No. 1812, 2009 BCSC 1237.

[13] The Courts should only exercise its discretion in striking out a Third Party Notice where the question of whether the notice is founded is perfectly clear. If the issue is in doubt the Third Party proceedings should be allowed to proceed to trial for final resolution: Wade v. Marsolais, [1949] B.C.J. No. 14.

[14] The facts pleaded in the Third Party Notice do not have to be supported by evidence and the Court, in considering an application to strike a Third Party Notice, will proceed on the assumption that all the facts pleaded in the Third Party Notice are true: McNaughton v. Baker, [1988] B.C.J. No. 515, 25 B.C.L.R. (2d) 17 (C.A.)…

[19] I am well aware that granting the order sought will disqualify the mother from continuing to act as her son’s litigation guardian. In all fairness, this is a matter which she ought to have considered at the outset. If not she, then surely her counsel should have considered that there was a possibility that a Third Party claim might be advanced against her by virtue of the circumstances of this accident.

[20] The infant plaintiff will not lose his claim but an alternate litigation guardian will have to be found.

[21] The father, I should have mentioned earlier, did not oppose the application to add him as a Third Party.

[22] In the result, an order will go granting the defendant leave to file a Third Party Notice naming Zoleikha Alamdar and Mohsen Saadati as third parties in the form attached as Schedule “A” to the application with the addition of these parties as third parties in the style of cause thereof.

ICBC Ordered to Provide Particulars in Support of "Wilfully False Statement" Pleading

Written by admin on . Posted in BCSC Civil Rule 3, Uncategorized. 53 Comments on ICBC Ordered to Provide Particulars in Support of "Wilfully False Statement" Pleading

Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, ordering ICBC to provide particulars in support of an allegation that the Plaintiff provided a wilfully false statement.
In last week’s case (Biedermann v. ICBC) the Plaintiff was sued for damages following three motor vehicle collisions.  ICBC refused to indemnify the Plaintiff arguing that he was in breach of his insurance by making a wilfully false statement.
The Plaintiff sued ICBC for coverage.  ICBC denied liability and repeated the ‘willfully false statement‘ allegation in their pleadings.  The Plaintiff asked for particulars of this allegation but ICBC refused to provide these.  Ultimately the Plaintiff brought a successful application to compel ICBC to provide particulars.  In making the order Master Bouck provided the following helpful reasons:








[16] The plaintiff relies on Rule 3-7(22) of the Supreme Court Civil Rules (“SCCR”) which provides that the court may order a party to serve further and better particulars of a matter stated in a pleading (my emphasis).

[17] In its response, the defendant helpfully outlines the legal principles relevant to the application and interpretation of this Rule.

[18] One of the stated purposes for ordering particulars is to ensure that the “real issues between the parties” are brought “fairly forward without surprise”: Cansulex Ltd. v. Perry, 1982 CarswellBC (C.A.) at para. 16. The six objectives of an order for particulars are said to be:

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

· to prevent the other side from being taken by surprise at trial;

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

· to limit the generality of the pleadings;

· to limit and decide the issues to be tried, and as to which discovery is required; and

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

Cansulex Ltd. v. Perry at para. 15

[19] These factors are consistent with the present objectives of the SCCR in having a matter determined in a proportionate, just, speedy and inexpensive manner: Rule 1-3…

[21] After reviewing the pleadings and relevant authorities, I have concluded that the Response to Civil Claim does not provide sufficient particularity to meet the objectives of both the SCCRand those outlined by the court in Cansulex.

[22] Neither the Response to Civil Claim nor the response to this application identify the nature of the “wilfully false statement”. The Response separately pleads (and the defendant discloses in its affidavit material) that the plaintiff may have failed to update both the territory and rating for the Volkswagen Golf and also misrepresented the principal operator. Those details provide some information to the plaintiff as to the basis for denying the sought after insurance coverage. However, it is not at all clear from the Response whether these documents represent the “wilfully false statement” or whether the defence is relying on some other written or oral statement or representation given by the plaintiff.

[23] Nor does the Response address in any particularity the basis on which coverage is denied for the July 2008 accident. The Response simply says that Mr. Biedermann was no longer the legal owner of the vehicle involved in the accident.

[24] What is being sought by the plaintiff is not so much evidence which might support a finding that Mr. Biedermann made a statement or statements which were  “wilfully false”, but rather identification of what that “statement or representation” might be. Is it an insurance application form; a post-accident statement or representation; or some other form of communication? Without these particulars, the plaintiff (and the court) is left to guess whether such a statement or representation even exists…

[26] The defence has separately pled s. 75 (a) (ii) with respect to the 2009 accidents. However, s. 75 (c) is so broadly worded that the plaintiff (and the court) is unable to identify the nature of the impugned statement of misrepresentation with respect to any of the accidents.

[27] Accordingly, the order sought by the plaintiff is granted. Costs of the application will be to the plaintiff in the cause.









ICBC Claims and Requests for "Particulars"

Written by admin on . Posted in BCSC Civil Rule 3, Civil Procedure, Uncategorized. 111 Comments on ICBC Claims and Requests for "Particulars"


When suing for compensation in an ICBC claim the BC Supreme Court Rules contain various ways to force disclosure of information.  From requiring the exchange of relevant documents, permitting the parties to attend an examination for discovery and even forcing an ‘independent medical exam’ in certain circumstances there are many tools which can be used to learn about your opponents case.
One further tool is the request for “particulars“.  If a party to a lawsuit is not clear what the other side is formally putting in issue they can ask for clarification by making a demand for particulars under Rule 3-7(23) of the Rules of Court.  There are, however, limits to the use of this Rule and this was demonstrated in reasons for judgement released this week by the BC Supreme Court.
In this week’s case (Yousofi v. Phillips) the Plaintiff was injured in a motor vehicle collision.  He sued for damages seeking compensation for, amongst other things, past and future wage loss, past and future medical expenses, past and future disability and out of pocket expenses.  ICBC’s lawyer demanded that the Plaintiff provide particulars of these claims.  The Plaintiff refused arguing that this was an inappropriate request.  Mr. Justice Hinkson agreed with the Plaintiff and in dismissing the Defence motion made the following useful comments about the limited use requests for particulars should have in ICBC injury claims:

The entitlement of a party to particulars…is discussed by Mr. Justice Joyce in Delaney & Friends Cartoon Productions Ltd. v. Radical Entertainment Inc. et al, 2005 BCSC 371, beginning at paragraph 9.

[4] In that case, His Lordship makes the point that:

Particulars are provided to disclose what the pleader intends to prove. How that party intends to prove the material facts and particulars is a matter of evidence. The pleading party is not required to, and indeed, is not entitled to set out in the pleadings the evidence that he or she intends to adduce at trial to prove the facts that have been pleaded.

[5] In David et al v. Her Majesty the Queen in Right of Canada et al, 2004 BCSC 1306, Mr. Justice Cohen considered the distinction between the material facts and evidence and referred to an earlier decision of Mr. Justice Joyce when he was a master of this court, Firestone v. Smith, [1991] B.C.J. No. 2660 (S.C.)(QL), where Master Joyce said at paragraph 11:

In my view the concern raised by the plaintiff at this stage is that he does not know but would like to know now what precise evidence the defendant may lead in support of his allegations of fact. In my respectful opinion the plaintiff is not entitled to ascertain the evidentiary basis of the defendant’s case by way of this demand for particulars.

[6] Turning to the notice of motion for particulars, the particulars sought at a relatively late juncture following examinations for discovery include a request for further and better particulars with respect to:

(a)      The Plaintiff’s Past and Prospective Loss of Enjoyment of Life

In my view, that is an inappropriate request for particulars and is a matter that can and should be pursued by way of examination for discovery. In my view, it is not necessary to provide particulars with respect to that head of damage.

(b)      The Plaintiff’s Past and Prospective Physical Disability

The injuries alleged by the plaintiff have been set out in the statement of claim and the extent of his disability arising therefrom is not a matter that is required as an item of pleadings. It, too, should be pursued by examination for discovery.

(c)      The Plaintiff’s Past and Prospective Loss of Earnings

Insofar as the past loss of earnings is concerned, this is information that can be identified and quantified and should be provided by the plaintiff to the defendant. It is not, in my view, appropriate that it be provided as particulars, but I am satisfied it should be provided in some fashion to the defendant, and I am going to direct that the plaintiff quantify his claim for past loss of earnings and provide that information to the defendant.

Insofar as prospective loss of earnings is concerned, I am not satisfied that that is a matter that can be necessarily particularized, and I leave it to the defendant to pursue that through examinations for discovery.

(d)      The Plaintiff’s Past and Prospective Loss of Earning Capacity

Like the prospective loss of earnings, I do not consider this to be an appropriate subject matter for particulars, and it is a matter that can be pursued by way of examination for discovery.

(e)      The Plaintiff’s Past and Prospective Loss of Opportunity to Earn Income

This is a head that is hard to distinguish from past and prospective loss of earning capacity. To the extent there is any difference, in my view it should be treated the same as the request for particulars of past and prospective loss of earning capacity.

(f)       The Plaintiff’s Past and Prospective Loss of Housekeeping Capacity

This is another matter that in my view does not warrant particularization in the pleadings. It can be pursued through examinations for discovery.

(g)      The Trust Award on Behalf of the Plaintiff’s Friends and Family

This, too, is not a matter that, in my view, should be dealt with by way of particulars, with this exception:  The individual or individuals for whom a trust award is claimed should be identified in the statement of claim where the trust award is advanced.

(h)      The Plaintiff’s Special Damages

These are matters that should be identified by the plaintiff for the defendant, but not as particulars of the pleadings.