Tag: rule 66

Getting Your Time Estimate Right For Trial


Ask any Judge or Lawyer whose spent time in the BC Court System and they’ll tell you that it is important not to underestimate the amount of time you’ll need to have your matter heard in Court.  If you do you will run the risk of having your case struck off the list and reset for a later date.  Sometimes the matter can be put off well into the future, be it a trial or a chambers application.  Reasons for judgement were published this week on the BC Supreme Court website demonstrating this.
In this week’s case (Smith v. Bregt) the Plaintiff was injured in a motor vehicle collision.  She elected to prosecute her case under the BC Supreme Court Fast Track Rule.  One of the current requirements of the current fast track rule (rule 66) is that the trial must be completed within two days.  As the trial got underway it became clear that it could not be completed in two days.  The Defence lawyer brought a motion seeking to have the case removed from the Fast Track.  Madam Justice Dorgan granted the motion, declared a mistrial and ordered that the trial be reset for a later time.  In reaching this conclusion the Court gave the following reasons:

[10] By the endorsement of her pleadings, the plaintiff opted for the Rule 66 trial process.  That signals that the case is suitable to be tried within 2 days.  It is then incumbent upon the plaintiff to tailor its case to fit into the 2day estimate.  The defendant has relied on the endorsement.  So has the administration in that the endorsement impacts the timing of other trials.

[11] If I order that the rule no longer applies, I assume the plaintiff will not get a trial date for some time.  Neither counsel has given me any information from the trial co-ordinator’s office as to what dates are available.  The plaintiff is geared up.  She has given her evidence-in-chief.  Trial preparation is completed.  She clearly wants this matter resolved.  She wants to proceed, to continue, and I can appreciate that.

[12] On the other hand, the defendants submit the plaintiff has taken her own case out of the provisions of Rule 66 by the first witness called, and the defendants argue that the court must enforce the rule with an eye to its purpose.  And, as Mr. Penner pointed out, by a plaintiff’s Rule 66 endorsement a defendant loses his/her right to a trial with a jury.

[13] Because the whole trial agenda timetable is completely out of whack, people will be inconvenienced whether or not the trial proceeds under Rule 66.

[14] Having considered this carefully, I am of the view that the purpose of the rule will be thwarted entirely if the application of the defendants is dismissed.  The interests of justice and fairness to the parties require that a plaintiff, who elects to proceed pursuant to Rule 66, must put its case in within 2 days, barring consent of the parties or reasonably unforeseeable circumstances arising since the trial agenda was filed and leave of the court.

[15] The defendants do not consent to the trial now continuing to completion, which I conclude will require at least 2 more days.  No reasonably unforeseen circumstances have emerged. The endorsement by the plaintiff is the plaintiff’s chance to proceed under Rule 66.  The manner in which the plaintiff has proceeded or the way the case has unfolded leads me to conclude that the case is inappropriate for Rule 66.

[16] In conclusion, pursuant to Rule 66(8), I order that Rule 66 ceases to apply to this action.  I declare a mistrial and order that the trial be placed on the trial list and that I am not seized.

As my readers know, Rule 66 is being abolished as of July 1, 2010, and is being replaced with a new Fast Track Rule known as Rule 15. Rule 15 appears to be mandatory for all personal injury claims with a trial time estimate of 3 days or less.  Like Rule 66 it limits time for discovery to 2 hours and takes away the parties right to a Jury Trial.

The rule relied on in the above case permitting a Court to remove a trial from the Fast Track remains in place under the New Rules and is reproduced at Rule 15-1(8).  Accordingly this case will likely continue to remain a useful precedent under the New Rules and lawyers and litigants themselves should be cautioned to err on the side of overestimating the length of their trials to avoid a result like this one.

BC Court of Appeal Clarifies Discretionary Costs Awards in Fast Track Trials

As I’ve previously written, when a person wins in a lawsuit in the BC Supreme Court they are usually entitled to ‘costs‘.
The normal amount of costs a successful litigant is entitled to are set out in a tariff as an appendix to the Rules of Court (appendix B).  However, in fast track trials, the amount of costs a person is entitled to is capped under Rule 66.  A judge has discretion to waive this cap and award a litigant more.  Today, the BC Court of Appeal released reasons for judgement dealing with the extent of that discretion.
In today’s case (Majewska v. Partyka) the Plaintiff was injured in a 2007 BC car crash.  ICBC admitted that the driver was at fault.  The lawsuit focused on the value of the Plaintiff’s claim.  The Plaintiff made a formal offer to settle her case for $50,000.  ICBC made a formal offer for $25,000.  The trial judge ultimately awarded just over $62,000 in damages.
The Court went on to award the Plaintiff double costs under the ‘usual tariff‘.  ICBC argued that while the Court did have discretion to award costs above the capped amount set our in Rule 66(29) the Judge was wrong in awarding them under the ‘usual tarriff’ and should have used the limited amounts set out in Rule 66 as guidance for the increased costs award.  The BC Court of Appeal agreed and set out the following principles:
[29] Thus, Anderson established two principles. First, it confirmed that there is discretion to award costs beyond the limits in R. 66(29) if there are special circumstances. Second, where such an award is justified, it affirmed that costs should be calculated using those limits as reference points, rather than under the usual tariff…

[31] I appreciate that Anderson dealt only with a settlement offer, whereas there were additional special circumstances in this case. The trial had run for three and a half days, and there was an issue of some complexity. However, the approach in Anderson can easily be adapted to calculate costs for extra days of trial by adding a further $1,600 for each day, based on the present figures of $5,000 and $6,600 in R. 66(29). This was the approach used by Gerow J. in Park, where the R. 66 trial had taken three days.

[32] Using the amounts in R. 66(29) as a basis for awarding increased costs because the issues were complex is not as straightforward. I am persuaded, however, that theAnderson approach could be adapted effectively to accomplish this, again by using those amounts as the basis for calculations.

[33] This approach brings desirable consistency and predictability to costs awards following fast track litigation. The varied approaches that have developed under R. 66 have led to uncertainty with respect to both exposure to and recovery of costs under the rule. Having opted into the R. 66 process, fast track litigants should be able to reliably assess their potential costs liability or recovery in making decisions about the conduct of the case….

[37] I would conclude that the discretionary nature of R. 66(29) is circumscribed by the objectives of R. 66: to provide a speedier and less expensive process for relatively short trials. Those objectives are best served by awarding lump sum costs, calculated by reference to the amounts in R. 66(29).

[38] I acknowledge there may be situations that justify a departure from such costs. I anticipate these would be “exceptional” circumstances rather than “special” circumstances, and might include situations deserving of special costs or solicitor client costs, however, such matters must be left for another day.

[39] I would therefore allow the appeal, and calculate costs under R. 66(29) as follows. Under the present limits of $5,000 and $6,600 I take the pre-trial portion of costs to be $3,400, and $1,600 as representative of each day of trial. The plaintiff’s offer to settle was delivered only six days before trial. Thus, she is not entitled to double costs for trial preparation. She is, however, entitled to double costs for three and a half days of trial, calculated at $3,200 per day. Total costs are thus $14,600 ($3,400 plus $11,200) before disbursements and taxes.

Despite winning the appeal, the BCCA ordered that ICBC pay the Plaintiff’s costs of the appeal because this was a ‘test case‘ and but for that reason ICBC would not have proceeded with the appeal.  The Court stated as follows:

[42] In my view, an order that each party bear its own costs would not be appropriate. The amount in issue is not so significant that the parties would have undertaken the appeal of their own accord. Because the defendant’s insurer chose to use it as a test case, the plaintiff was put to the expense of responding to the appeal. The defendant’s late and unsuccessful attempt to raise a second ground of appeal increased that expense, as the plaintiff had to reply to the new ground as well. In Patterson v. Rankel (1998), 166 D.L.R. (4th) 574 (B.C.C.A.), Southin J.A. described the same insurer’s agreement to pay the plaintiff’s costs in a “test case” as “a very proper thing to do”, and ordered costs in those terms. I agree that is the appropriate result in such a case.

I should point out that Rule 66 is being taken off the books as of July 1, 2010 and being replaced with Rule 15.  However, today’s case ought to retain value as a precedent under the new rule because Rule 15-1(15) has language almost identical to Rule 66(29).

BC Personal Injury Law Round Up

The volume of ICBC and other personal injury cases released by our Superior Courts over the past 2 days has been higher than usual so I present today’s BC Injury Law Update in a ‘round up‘ fashion.
The first case of note was from the BC Court of Appeal and dealt with limitations under the Local Government Act.  When suing a local government for damages a Plaintiff must comply with s. 286 of the Local Government Act which holds in part that a Plaintiff must give “notice in writing…within 2 months from the date on which the damage was sustained“.  Failure to comply with this section can be a bar to suing.  An exception to this limitation period, however, is contained in s. 286(3) which holds that:

(3)        Failure to give the notice or its insufficiency is not a bar to the maintenance of an action if the court before whom it is tried, or, in case of appeal, the Court of Appeal, believes

(a)        there was a reasonable excuse, and

(b)        the defendant has not been prejudiced in its defence by the failure or insufficiency.

Today the BC Court of Appeal dealt with the issue of what is a ‘reasonable excuse’.

In today’s case, Thauili v. Delta, the Plaintiff sued for injuries sustained while in a fitness class in a community center operated by Delta.  The Plaintiff did not give notice within the 2 months set out in s. 286 of the Local Government Act.  Delta brought a motion to dismiss the Plaintiff’s claim but this motion was dismissed.  Delta appealed to the BC Court of Appeal.  This too was dismissed and in so doing the BC Court of Appeal added clarity to the issues that can be considered when addressing a ‘reasobable excuse’ for not giving notice within the required 2 month period.  The highlights of this discussion were as follows:

[10] In Teller, a five-judge division of this Court considered the construction to be placed on the words “reasonable excuse”, taken in the context of s. 755 of the Municipal Act, R.S.B.C. 1979, c. 290.  Section 755 contained the same notice requirement found in s. 286(1) of the Local Government Act as well as the same saving provision now found in s. 286(3).  Although not identically worded, there is no difference in substance between s. 755 of the Municipal Act and s. 286 of the Local Government Act.

[11] Teller did not propound a test to determine what constitutes “reasonable excuse”.  Rather, Teller instructs that “all matters put forward as constituting either singly or together a reasonable excuse must be considered.” (at 388)  The question is whether it is reasonable that the plaintiff be excused, having regard to all the circumstances.

[12] Teller expressly overruled those trial decisions which had excluded ignorance of the law as a factor to be considered in deciding whether there was reasonable excuse for the failure to give notice. …

[37] There can be no doubt that after its pronouncement, Teller became – and has remained – the governing authority on the construction of “reasonable excuse” found in the saving provision in s. 755 of the Municipal Act.

[42] As to the purpose of the section, Southin J.A. said, at 383:

What then is the purpose of the section?  Clearly one of the purposes of the section is to enable a municipality to investigate a claim fully.  But that purpose is addressed by the second branch of the concluding sentence.  The only other purpose I can think of was to protect municipalities against stale claims in order to enable them to estimate their future liabilities and make budgetary provision for them.  But I know of no authority for that surmise. It really is difficult to make much sense out of the words “reasonable excuse” in the context….

43]         After considering the provenance of the section, the state of the law as revealed by the case authorities in 1957 when the provision was, in effect, newly enacted, and the case authorities, including Horie v. Nelson (1988), 20 B.C.L.R. (2d) 1, [1988] 2 W.W.R. 79 (C.A.), leave to appeal to S.C.C. refused 27 B.C.L.R. (2d) xxxv [Horie], Southin J.A. concluded, at 388:

[T]he maxim “ignorance of the law is no excuse” is not a rule of law determinative of an issue of statutory interpretation in every instance.

In the end, the question is simply what do the words at issue mean in the context.  In my opinion, ignorance of the law is a factor to be taken into account.  So for that matter is knowledge of the law. But all matters put forward as constituting either singly or together a reasonable excuse must be considered.

Those decisions of the court below which exclude ignorance of the law as a factor are, therefore, overruled.

[50] The decision in Teller does not propound a test or establish criteria which must be met before the court may find a reasonable excuse for the failure to give notice; instead, the decision invites a determination informed by the purpose or intent of the notice provision, taking into account all matters put forward as constituting either singly or together a reasonable excuse.  The determination of whether there is reasonable excuse is contextual.  The question is whether it is reasonable that the plaintiff be excused, having regard to all the circumstances.

Ultimately the Court held that ignorance of the law can be a reasonable excuse in certain circumstances under the Local Government Act.

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The second case released today dealt with Pain and Suffering Awards for Soft Tissue Injuries.  In this case (Robinson v. Anderson) the Plaintiff was injured in a 2005 rear end car crash in Tsawwassen, BC.  Liability was admitted leaving the court to deal with the value of the injuries.

Mr. Justice Bernard awarded the Plaintiff $25,000 for her non-pecuniary damages (pain and suffering and loss of enjoyment of life).  In so doing he summarized the Plaintiff’s injuries and their effect on her life as follows:

[18] It is not disputed that the plaintiff sustained soft-tissue injuries to her neck, back, left shoulder and right knee in the collision. Similarly, there is no suggestion that the plaintiff is a dishonest witness who is prevaricating or exaggerating in relation to her pain and the various consequences it has wrought upon her life….

[22] Causation is established where the plaintiff proves that the defendant caused or contributed to the injury: see Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235. In regard to the instant case, I am satisfied that the plaintiff has proved that the defendant caused or contributed to the injury which has manifested itself in ongoing symptoms of pain. The evidence establishes consistency and continuity in the plaintiff’s symptoms (albeit with some amelioration) and an absence of any intervening cause which might otherwise account for the plaintiff’s current pain. A dearth of objective medical findings is not determinative; this is particularly so for soft tissue injuries.

[23] Notwithstanding the aforementioned causal link, the evidence strongly supports finding that: (a) the plaintiff’s injuries are not permanent; (b) if the plaintiff takes reasonable steps to improve her fitness level, then significant, if not full, recovery is very likely; and (c) if the plaintiff does take those reasonable steps, then recovery is attainable within a relatively short time frame. In this regard, the medical opinions of both Dr. Hodgson and Dr. Werry (on May 6, 2009 and April 9, 2009 respectively) suggest that the plaintiff’s present symptoms would decrease substantially through a reduction of her “habitus” (body size and shape), increased physical activity, and working through that which is sometimes described as “the pain of reactivation”.

[24] There are similarities between the plaintiff in the instant case and the plaintiff in Nair v. Mani, [1991] B.C.J. No. 2830. Ms Nair was 49 years of age, overweight, and physically unfit at the time she was injured in a motor vehicle collision. She complained of ongoing back, thigh and knee pain. The plaintiff was not a malingerer, but the court found that she could have accelerated her improvement and lessened the impact of her injuries through exercise and weight loss. In relation to the plaintiff’s fitness the court said:

A defendant must take her victim as she finds her, be it with a thin skull or an out of shape musculature. But when it comes to the reasonable efforts expected of a plaintiff to aid her own recovery after the accident, then those reasonable steps include exercise and muscle toning so that an injury may be shaken off more quickly.

[25] The plaintiff’s weight is not relevant to causation; however, it is germane to the plaintiff’s duty to mitigate her losses. It is trite law that a plaintiff has an ongoing duty to mitigate his or her damages. In the case at bar, as in Nair v. Mani, the plaintiff’s duty to mitigate includes taking reasonable steps to reduce her body habitus and increase her fitness level…

[28] Assessment of just and fair compensation for non-pecuniary losses by reference to other cases is a daunting task. Each case is unique in its plaintiff and set of circumstances; nonetheless, I accept that the cases cited by the parties assist in defining reasonable upper and lower limits for a non-pecuniary damages award in the case at bar. The most salient factors of the case at bar are: (a) the absence of proof of a permanent or long-term injury; (b) the existence of some amelioration of symptoms; and (c) the absence of enduring and incessant debilitating pain. In relation to (c), I accept that the plaintiff has suffered from pain since the accident and that it has had an adverse effect upon many aspects of her life; I simply note that the intensity of the pain has not been to the degree suffered by many other plaintiffs.

[29] Having due regard to all the foregoing and the cases cited by counsel, I find that a fair and just award for the plaintiff’s non-pecuniary losses is $25,000.

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In the third case released today the Court was asked to deal with the issue of fault when the occupant of a parked car opens his door and is struck by a cyclist.

In today’s case (Hagreen v. Su) the Defendant was parked and opened his car door.  As he did so the Plaintiff, who was travelling on his bicycle, drove into the open door and was injured.  The Defendant was found 100% at fault for the Plaintiff’s injuries and in so finding Mr. Justice Brooke summarized and applied the law as follows:

] On the day of the accident, Mr. Hagreen was wearing a helmet as well as reflective stripes on his jacket and boots and was proceeding eastward. Cars were parked on his right side in the 2400 block of East Broadway, and as a matter of course, the plaintiff said that while monitoring the vehicle traffic in the two lanes to his left, he also monitored the driver’s side of the parked cars, in order to alert himself to any potential risk. Mr. Hagreen estimated his speed at 25 to 30 km/hr when he said, without any warning, the driver’s door of Mr. Su’s vehicle opened; that he, Mr. Hagreen, yelled, “Whoa,” but immediately hit the door. He described his upper body hitting the door, and he injured his ankle as well when he hit the ground. Emergency services were called, the first responder being a fire truck before the ambulance arrived, and Mr. Hagreen was transported to hospital. He indicated that he believes that he passed out in hospital, but after being seen by a physician, he was told that he could go home. Mr. Hagreen said that when he tried to put his shirt on, he could not lift his left arm above his head, and this resulted in x-rays being taken of his left arm region. Mr. Hagreen saw his family doctor, Dr. Montgomery, who prescribed Tylenol and Codeine to treat the pain throughout the plaintiff’s upper body, principally in the area of the right collar bone. As a result of continuing complaints of pain in the left collar bone, the plaintiff was referred for physiotherapy which provided some relief for what he was told were soft tissue injuries. Mr Hagreen was off work for seven days, and on his return, he avoided heavy lifting and stretching which resulted in other employees having to do that work.

[4] The defendant, Mr. Su, said that on the day of the accident, it was raining and his child was ill, so he had moved the car to the front of the house to take the child to the doctor. He said that he checked what was behind him, and he saw a cyclist about six or seven houses back, and he felt that he had enough time to get out. He said that he put one leg out and turned his body when the bicycle crashed into the door. In cross-examination, Mr. Su acknowledged giving a statement shortly after the accident, and in that statement, he said that he opened the car door slightly and made shoulder check, then he opened the door further and moved both of his legs out, when he saw the bike approaching “really fast” and the resulting collision occurred. Mr. Su had earlier indicated that he had passed the test in English for a second language, although most of his customers speak Chinese rather than English. Mr. Su was asked in cross-examination whether it was true that he did not see the bicycle until the door was opened and that it was then too late, and he acknowledged that that was true but indicated that it was some few years past. It was put to Mr. Su that he did not see the bicycle until it was too late, to which he said yes, and it was put to him that that was the truth, to which he also said yes.

[5] I am satisfied that the defendant is solely responsible for the collision, having opened his door when it was unsafe to do so. Section 203(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, says:

(1) A person must not open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so.

[6] I find that the defendant, Mr. Su, is wholly responsible for the collision and that the plaintiff took all reasonable steps available to him to avoid the collision, but that the door was not opened by Mr. Su until the plaintiff was so close that he had no opportunity to brake or to take evasive action. I now turn to the question of damages.

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The last ICBC related case released today dealt with the issue of costs.  In this case (Mariano v. Campbell) the Plaintiff sued for injuries as a result of a car crash.  The claim was prosecuted under Rule 66 and the trial took 4 days (which exceeds the 2 days allowed under Rule 66).

When a Plaintiff sues and succeeds in a Rule 66 lawsuit their ‘costs’ are capped at $6,600 “unless the court orders otherwise” as set out in Rule 66(29).

In today’s case the Plaintiff was awarded a total of just over $115,000 after trial.  She brought an application to be permitted an additional $3,200 in costs.  Madam Justice Loo allowed this application.  This case is worth reviewing in full to see some of the factors courts consider when addressing additional costs to the successful party in a Rule 66 Lawsuit.

More on Costs and "Sufficient Reason" for Suing in Supreme Court

I’ve previously posted on the topic of costs consequences when a Plaintiff succeeds in a BC Supreme Court lawsuit but is awarded damages within the small claims court jurisdiction.
For the Plaintiff to be entitled to costs it must be found that the Plaintiff had “sufficient reason for bringing the proceeding in the Supreme Court”.  Reasons for judgement were released today dealing with this issue.
In today’s case (Johannson v. National Car Rental) the Plaintiff was injured in a 2005 BC Car Crash.  The Defendant admitted fault.  At trial Mr. Justice Barrow found that the Plaintiff suffered soft tissue injuries which he summarized as follows:
I am satisfied that the plaintiff suffered a mild to moderate soft tissue injury to her upper back and neck in the accident. She followed all of the medical advice she was given and was, I am satisfied, motivated to overcome her injuries. Between the date of the accident and the end of the year, she saw her chiropractor approximately 25 times. I am satisfied that the frequency of these visits was due to the pain and discomfort she was experiencing. The injuries caused her considerable discomfort, moreso than similar injuries might cause to other persons because of her pre-existing condition.
Mr. Justice Barrow awarded the Plaintiff just over $15,000 in total damages (well below the Small Claims Court’s current monetary jurisdiction of $25,000).  One of the central issues at trial was weather the Plaintiff suffered a frozen shoulder in the car accident on top of her soft tissue injuries.  Ultimately the Court found that the Plaintiff did suffer from a frozen shoulder but this was not caused by the accident.
The Plaintiff brought a motion to be awarded Supreme Court Costs arguing she had sufficient reason to bring her claim in the Supreme Court.  Specifically it was argued that if the Plaintiff’s expert evidence was accepted with respect to the cause of her frozen shoulder her claim was well within the Supreme Court’s jurisdiction.  The Defence lawyer argued otherwise stating that there was no sufficient reason to sue in the Supreme Court and that “the Plaintiff should have realized at the time she commenced her action that her frozen shoulder was not caused by the motor vehicle accident”.
The Court concluded that there was sufficient reason for this Plaintiff to sue in Supreme Court.  In reaching this conclusion Mr. Justice Barrow summarized and applied some of the principles in these types of cases as follows:
Rule 66(29) is, by its terms, subject to Rule 57(10). Rule 57(10) provides as follows:

A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

[4] The onus is on the plaintiff under Rule 57(10) to justify her choice of forum (Bhanji v. Quezada, 2003 BCCA 445). Until the Court of Appeal’s decision in Reimann v. Aziz, 2007 BCCA 448; 286 D.L.R. (4th) 330, there was some uncertainty as to whether the plaintiff’s obligation to justify its choice of forum was a continuing one or rather one to be assessed only at the time the action was commenced. Chaisson J.A. resolved that issue, concluding that a plaintiff must only demonstrate that it had sufficient reason to bring the proceeding in the Supreme Court at the time the action was commenced.

[5] The “sufficient reason” referred to in the rule is often, but not invariably, related to whether the anticipated judgment will exceed the monetary jurisdiction of the Provincial Court. If, at the time the action was commenced, there was sufficient reason to conclude that the judgment would likely exceed the Provincial Court’s monetary jurisdiction, then the decision to proceed in this court will usually be found to be justified. There may be other reasons for proceeding in the Supreme Court. Some of those other reasons were identified in Kuehne v. Probstl, 2004 BCSC 865. Where those other reasons are present then, even if the anticipated monetary award is likely to fall within the jurisdiction of the Provincial Court, there may still be “sufficient reason” to proceed in this court.

[6] In the case at bar, the only basis advanced for proceeding in the Supreme Court is that the reasonably expected award was likely to exceed the monetary jurisdiction of the Provincial Court…

[12] In effect the plaintiff took the position when she launched this action that her frozen shoulder was the consequence of the defendant’s negligence. I am satisfied that she has always honestly believed that. While that conclusion was not free from doubt when the action was launched, it was not an unreasonable position to take at the time. The fact that her own doctor came to share that view is some indication that the position was not unreasonable, even though there is no evidence that she had the benefit of that opinion at the time the action was started.

[13] In summary, I am satisfied that there was sufficient reason for the plaintiff to bring this proceeding in the Supreme Court. The plaintiff is, therefore, entitled to her costs which, given the length of trial and the provisions of Rule 66(29)(b), I set at $6,600 plus disbursements.

In my continued effort to cross reference the current Supreme Court rules with the new Rules of Court that come into force on July 1, 2010 I will note that the Current Rule 57(10) will become Rule 14-1(10) and it reads identical to the current rule so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants under our new rules.

New BC Supreme Court Civil Rules – Some Initial Thoughts

As I posted yesterday, the BC Government has announced a full overhaul of the current BC Supreme Court Rules to take effect on July 1, 2010. You can click here to read a full copy of the new Rules.  These new rules will apply to all BC Personal Injury and ICBC Claims prosecuted in the Supreme Court after they come into force.
I’ve now had a chance to review these new Rules in their entirety.  The first thing I noticed is that most of the new Rules are similar if not identical to the current ones in their wording.   This is very important as the countless precedents built up over the years interpreting the current rules should still be of significant assistance when applied to the new rules.
More than anything else, the new Rules are organized in a far better fashion than the current BC Supreme Court Rules.  This improvement is more coherent and logical and should make them easier to get through for people unfamiliar with Supreme Court Procedure.
In addition to improved organization, there are some significant changes made to the substance of these Rules.  None of these changes jumped out at me as particularly concerning for personal injury litigation and surprisinly the overall changes seem to be for the better.
For today’s post I’ll illustrate one example.   The current BC Supeme Court Rules have 2 competing ‘fast track litigation’ rules.  Rule 66 and Rule 68.  These rules both have some significant advantages and significant shortcomings for litigants.  These rules overlap and litigants wishing to take advantage of fast track litigation procedures are forced to choose between the 2 rules relative strengths and weaknesses.  Under the New Civil Rules these have been replaced with one “fast track litigation” rule.  This can be found in Part 15 of the new rules.
Rule 15, in my opinion, takes the best aspects of Rule 66 and 68 and leaves out most of their shortcomings. Rule 15, like Rule 68, applies to cases below $100,000.  It also applies to cases that can be completed in 3 days or less and this appears to be independent of the claims value.  This rule does away with the cumbersome ‘will say’ requirement of Rule 68 and allows 2 hour examinations for discovery.  This rule also increases the minimal costs allowable under Rule 66 and permits costs awards more reflective of conventional litigation in the BC Supreme Court.  The Rule also does away with the ‘one expert’ limit of Rule 68 which to date has kept most BC personal injury lawyers from using the rule.
Below I reproduce the new Rule 15 in full.  I’d be interested in the thoughts of other BC Injury Lawyers about the apparent improvements in this rule over our current fast track rules 66 and 68.
RULE 15-1 – FAST TRACK LITIGATION
When rule applies
(1) Subject to subrule (4) and unless the court otherwise orders, this rule applies to an action if
(a) the only claims in the action are for one or more of money, real property, a builder’s lien and personal property and the total of the following amounts is $100,000 or less, exclusive of interest and costs:
(i) the amount of any money claimed in the action by the plaintiff for pecuniary loss;
(ii) the amount of any money to be claimed in the action by the plaintiff for non-pecuniary loss;
(iii) the fair market value, as at the date the action is commenced, of
(A) all real property and all interests in real property, and
(B) all personal property and all interests in personal property claimed in the action by the plaintiff,
(b) the trial of the action can be completed within 3 days,
(c) the parties to the action consent, or
(d) the court, on its own motion or on the application of any party, so orders.
Subsequent filings
(2) If this rule applies to an action,
(a) any party may file a notice of fast track action in Form 61, and
(b) the words “Subject to Rule 15-1” must be added to the style of proceeding, immediately below the listed parties, for all documents filed after the notice of fast track action is filed under paragraph (a) or the court order is made under subrule (1) (d), as the case may be.
Damages not limited
(3) Nothing in this rule prevents a court from awarding damages to a plaintiff in a fast track action for an amount in excess of $100,000.
Rule does not apply to class proceedings
(4) This rule does not apply to a class proceeding within the meaning of the Class Proceedings Act.
Conflict
(5) These Supreme Court Civil Rules apply to a fast track action but in the event of a conflict between this rule and another rule, this rule applies.
When rule ceases to apply
(6) This rule ceases to apply to a fast track action if the court, on its own motion or on the application of any party, so orders.
Case planning conference required
(7) Subject to subrule (8), a party to a fast track action must not serve on another party a notice of application or an affidavit in support of an application unless a case planning conference or a trial management conference has been conducted in relation to the action.
Exception
(8) Subrule (7) does not apply to an application made
(a) for an order under subrule (6) that this rule cease to apply to the action,
(b) to obtain leave to bring an application referred to in subrule (9),
(c) under Rule 9-5, 9-6 or 9-7,
(d) to add, remove or substitute a party, or
(e) by consent.
Court may relieve
(9) On application by a party, a judge or master may relieve a party from the requirements of subrule (7) if
(a) it is impracticable or unfair to require the party to comply with the requirements of subrule (7), or
(b) the application referred to in subrule (7) is urgent.
Trial to be without jury
(10) A trial of a fast track action must be heard by the court without a jury.
Oral discovery
(11) Unless the court otherwise orders, in a fast track action the examinations for discovery of a party of record, including any person referred to in Rule 7-2 (1) (b) who is examined in relation to that party of record, by all parties of record who are adverse in interest must not, in total, exceed in duration
(a) 2 hours, or
(b) any greater period to which the person to be examined consents.
When discoveries must be completed
(12) Unless the court otherwise orders or the parties to the examination consent, all examinations for discovery in a fast track action must be completed at least 14 days before the scheduled trial date.
Setting of trial date
(13) If a party to a fast track action applies for a trial date within 4 months after the date on which this rule becomes applicable to the action, the registrar must set a date for the trial that is not later than 4 months after the application for the trial date.
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, and
(b) is not seized of the action.
Costs
(15) Unless the court otherwise orders or the parties consent, and subject to Rule 14-1 (10), the amount of costs, exclusive of disbursements, to which a party to a fast track action is entitled is as follows:
(a) if the time spent on the hearing of the trial is one day or less, $8,000;
(b) if the time spent on the hearing of the trial is 2 days or less but more than one day, $9,500;
(c) if the time spent on the hearing of the trial is more than 2 days, $11,000.
Settlement offers
(16) In exercising its discretion under subrule (15), the court may consider an offer to settle as defined in Rule 9-1.
Taxes to be added to costs
(17) If tax is payable by a party to a fast track action in respect of legal services, an additional amount to compensate for that tax must be added to the costs to which the party is entitled under subrule (15), which additional amount must be determined by multiplying the amount of costs to which the party is entitled under subrule (15) by the percentage rate of the tax.

More on Rule 66, Rule 37B, ICBC Claims and Costs

Reasons for judgment were released today by the BC Supreme Court dealing with 2 issues of interest to me, Costs consequences under Rule 66 and Rule 37B.
In today’s case (Schnare v. Roberts) the Plaintiff was injured in a motor vehicle collision.  The Plaintiff sued for damages under Rule 66.  The Plaintiff made a formal offer of settlement and ICBC did not accept it.  The Plaintiff proceeded to trial and the verdict more than doubled the Plaintiff’s settlement offer.  (click here to read my previous post regarding the trial judgment).
Today’s judgment dealt with the costs consequences.  ICBC argued that the Plaintiff should be limited to costs under Rule 66 (which are capped at an amount less than regular Tariff costs under the BC Supreme Court Rules) because the lawsuit was brought initially under Rule 66.  Madam Justice Adair disagreed with ICBC’s submission and noted that since the trial went beyond the Rule 66 2 day limit that constituted ‘special circumstances’ which permitted the court to order costs outside of the Rule 66 costs.  Madam Justice Adair reasoned as follows:

[13]        Sub-rules (29) and (29.1) of Rule 66 provide (italics added):

(29)      Unless the court orders otherwise or the parties consent, and subject to Rule 57 (10), the amount of costs, exclusive of disbursements, to which a party is entitled is as follows:

(a)   if the time spent on the hearing of the trial is one day or less, $5 000;

(b)   if the time spent on the hearing of the trial is more than one day, $6 600.

(29.1)   In exercising its discretion under subrule (29), the court may consider a settlement offer delivered in accordance with Rule 37 or 37A whether or not other special circumstances exist.

Rules 37 and 37A have been repealed and replaced with Rule 37B.

[14]        In my view, Ms. Schnare’s case was not the type of case contemplated by Rule 66.  By October 2008, the parties themselves realized that two days would not be sufficient for trial.  Even a more generous estimate of three days turned out to be insufficient to deal with the evidence on the relevant issues in the case and with submissions (including submissions on the admissibility of documentary evidence).  Although court adjourned somewhat early in the afternoon on January 28, 2009, it sat late on January 29, 2009, to ensure that a witness’ evidence could be completed.  I did not consider counsel were inefficient in their use of time.  I am satisfied that the length of the trial itself constitutes “special circumstances” in this case.  See Kailey v. Kellner, 2008 BCSC 224, 56 C.P.C. (6th) 40, where, in comparable circumstances, Mr. Justice Parrett also found the length the trial constituted “special circumstances” justifying a departure from the fixed costs under Rule 66(29), and awarded costs on Scale B.

[15]        In my opinion, the appropriate order respecting costs (before considering matters under Rule 37B) was and is that the plaintiff should recover her costs on Scale B of Appendix B.

The second issue worth noting were the costs consequences under Rule 37B.  The Plaintiff argued that they should be awarded double costs from the date of their formal settlement offer onward.    Madam Justice agreed and engaged in the below analysis and in doing so made some critical comments about an expert physician (Dr. McPherson) who ‘was very closely tied to ICBC…for over a decade‘ in the defence of personal injury claims:

19]        Should the plaintiff’s January 26, 2009 offer have been accepted, and the costs of the trial avoided?  Analysis of this question is not to be based on hindsight once the final result is known, as noted in Bailey v. Jang, 2008 BCSC 1372, 63 C.P.C. (6th) 291, at para. 24.  Nevertheless, in my view, the defendants should have given that offer much more serious consideration when looking at the risks of going to trial. 

[20]        The defendants’ defence to Ms. Schnare’s claims for substantial damages rested primarily on the shoulders of their expert, Dr. McPherson, the only defence witness.  However, there were serious risks in that strategy.  Dr. McPherson was very closely tied to ICBC, and had been for over a decade.  This was not a secret, and had been the subject of media reports, which were used to cross-examine Dr. McPherson.  As counsel for the defendants must have appreciated, these ties made an issue of Dr. McPherson’s impartiality and credibility, and impaired his value as a expert.  Dr. McPherson’s evidence, unlike that of Dr. Van Rijn and Mr. McLean, did nothing to explain Ms. Schnare’s continuing symptoms and physical difficulties, and provided little assistance to the court.  His rejection of the possibility that there could be movement of Ms. Schnare’s sacroiliac joints led inevitably to his conclusion that her complaints could not be accident-related, and to speculate that Ms. Schnare possibly had a condition that Dr. McPherson conceded was extremely rare.  As I noted in my reasons, Dr. McPherson was unhelpfully dismissive of opinions other than his own.  In my view, the defendants’ reliance on Dr. McPherson’s opinions to defend against Ms. Schnare’s claims was unreasonable in face of the plaintiff’s eve-of-trial offer to settle.  The offer represented a very substantial discount from the amounts Ms. Schnare sought at trial.  A more reasonable assessment of the potential risk that Dr. McPherson’s opinions would be unpersuasive (as I found them) should have led the defendants to accept Ms. Schnare’s last offer, in which case the costs of the trial would have been avoided.  This factor supports the plaintiff.

[21]        The final damages awarded to Ms. Schnare were more than twice the amount of Ms. Schnare’s offer.  This factor also supports the plaintiff.

[22]        With respect to the relative financial circumstances of the parties, I consider this factor neutral.

[23]        Taking into account the underlying legislative policy behind Rule 37B, that Ms. Schnare’s offer represented a very substantial discount off her damage claims presented at trial and if accepted would have avoided the costs of the trial, and that the amount awarded was significantly more than the amount of Ms. Schnare’s offer, in my view it is appropriate to award the plaintiff double costs for steps taken after January 26, 2009.

More on BC Supreme Court Costs and ICBC Claims

Just last week I posted about ‘costs’ awards in Supreme Court when an ICBC clam’s value is assessed below $25,000 (the current monetary jurisdiction of BC’s small claims court).  Today, reasons for judgment were released shedding more light on this topic.
In today’s case the Plaintiff was injured in a 2005 rear-end crash.  ICBC took the ‘low velocity impact’ position and argued that the Plaintiff did not suffer any compensable damages as a result of this crash.  The Plaintiff disagreed and argued that he suffered injuries worth several thousand dollars.
Both the Plaintiff and ICBC agreed on at least one thing, and that is that this claim was for injuries with a financial value that was in the Small Claims Court’s jurisdiction and this was obvious even before the Plaintiff filed in Supreme Court.
As discussed in my previous post, the key analysis to Supreme Court ‘costs’ in such a case is governed by Rule 57 and whether the Plaintiff had ‘sufficient reason’ for bringing the lawsuit in Supreme Court.  Clearly if the Plaintiff knew the case was worth less than $25,000 at the time he started the lawsuit he could not have had sufficient reason for suing in Supreme Court, right?  Not necessarily.
Today’s case demonstrated the principle that the choice of forum is not governed by financial considerations alone.  A Plaintiff can have sufficient reason for suing in Supreme Court for factors other than the value of the claim.  Here the Plaintiff was awarded costs because the court found it was sufficient to sue in Supreme Court to take advantage of the Supreme Court’s pre trial discovery procedures.  The court’s key reasoning can be found at paragraphs 39-43 which I reproduce below:

[39]            The Plaintiff here emphasizes the “opportunity to take advantage of the pre-trial preparation to which [the Plaintiff] was entitled”.  In this case liability was denied.  Causation was denied.  Contributory negligence was alleged.  At trial a failure to mitigate was alleged. 

[40]            In this case the Defendant by denying liability, causation, and reimbursement for special damages, required that the Plaintiff to prove all of these things in court.  The Defendant gave important evidence regarding the speed of impact, the consequences of the impact, and concern over the Plaintiff’s condition, which, I am advised, was revealed on discovery. 

[41]            In my view the position of the Defendant justified the Plaintiff pursuing this case in Supreme Court, where pre-trial discovery is available.  A similar determination was made in cases such as Tucker v. Brown, 2008 BCSC 734, Faedo v. Dowell and Wacher, 2007 BCSC 1985, and Kanani v. Misiurna, 2008 BCSC 1274. 

[42]            There is the additional factor that, as in Faedo and Kanani, the Plaintiff faced an institutional defendant which, in the ordinary course, has counsel.  To obtain any recovery the Plaintiff is forced to go to court, where he is facing counsel and counsel is reasonably required, but in Provincial Court there is no way of recovering the costs of counsel. 

[43]            In the circumstances, the Plaintiff is entitled to costs, pursuant to Rule 66. 

$25,000 Non-Pecuniary Damages for Neck, Shoulder and Back Soft Tissue Injuries

Following a 2 day trial using the Fast Track Rule  (Rule 66), reasons for judgement were released today compensating a Plaintiff as a result of a 2005 BC car accident.
The Plaintiff was injured as a passenger.  The offending motorist admitted fault and the trial focused on damages (lawful compensation) only.
The Plaintiff had a range of complaints following the accident including pain in her neck, right shoulder and low back, and a significant increase in the frequency of her pre-existing migraine headaches.
In assessing a fair award for pain and suffering the court made the following finding:

[24] I accept the plaintiff’s evidence that she was injured in the August 9, 2005 motor vehicle accident.  In this regard, I note that while the physicians who examined the plaintiff also accepted the plaintiff’s assertions, the fact that they did so does not assist the court in making that finding.  Their observations thereafter are of considerable assistance in assessing the possible course of the plaintiff’s recovery, however.  It does appear, taking account of what is before me, that the plaintiff recovered functionally very quickly although she may suffer some minor aches and pains that will occasionally interfere with her activities.

[25] The plaintiff has suffered some moderate interference with her life due to pain and suffering.  The cases advanced as comparables by the parties are of some assistance in locating this case on an appropriate scale.  I assess her damages for pain and suffering and loss of enjoyment of life at $25,000.

The Plaintiff also led evidence that she was able to take advantage of fewer overtime opportunities as a result of her injuries.  For this loss the court awarded $20,000.
The court found that the injuries should continue to improve but may linger for a while longer.  In addressing loss of earning capacity the court awarded $15,000 making the following findings:
She is capable of doing her work and of working considerable overtime.  On the basis of the medical evidence there is good reason to expect that she will fully recover in the next few years, with a modest chance of some limited impairment further into the future.  I think some allowance must be made for the possibility that the plaintiff may occasionally suffer losses into the future that are related to the injuries she has suffered.  I think the evidence suggests that these losses will be incurred, for the most part, in the next few years.  I fix the sum of $15,000 for loss of future earning capacity.

Contact

If you would like further information or require assistance, please get in touch.

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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