Tag: rule 68

Can a Defendant Force a Case Into Rule 68?

Written by admin on March 11, 2010. Posted in Civil Procedure, Uncategorized. 53 Comments on Can a Defendant Force a Case Into Rule 68?

Interesting reasons were released yesterday by the BC Supreme Court, Vancouver Registry, dealing with a unique issue; can a Defendant force a case into Rule 68 against the Plaintiff’s wishes?
By way of brief background Rule 68 is the ‘proportionality‘ rule and is mandatory for all injury cases under $100,000.
In British Columbia Plaintiff’s don’t need to plead the value of their claim. Ultimately only the Plaintiff knows what final number they will be seeking at trial and this information does not have to be shared with the Defendant ahead of time. Appreciating this, can a Plaintiff simply defeat a Defence application to put a case into Rule 68 by claiming he will seek more than $100,000 in total damages at trial?
In today’s case (Singleton v. O’Neil) this issue was dealt with. The Plaintiff sued for damages as a result of an alleged assault which occurred on July 11, 2009. He prosecuted his claim in the usual course (outside of Rule 68) and set the matter for a 5 day Jury Trial. The Defendant’s opposed this and brought a motion to force the case into Rule 68 saying it was clearly worth less than $100,000 and that the rule was mandatory in these circumstances. The Plaintiff opposed arguing that he is claiming in excess of $100,000.
Madam Justice Gerow granted the motion finding that the case was likely worth less than $100,000 and cannot “justify the expense of a five day jury trial“. The Court provided the following reasons:

[13] Mr. Singleton did not provide any authorities which support his position that an award for the types of injuries he suffered and his treatment by the defendants will exceed $100,000. As well, he has not presented any authority for his position that it is the plaintiff who determines whether the claim should be brought under Rule 68. I note that there appears to be no such limitation in the rules. Rule 68(7) provides that on the application of any party, or as result of the court’s own application, an order may be made that the rule does not apply to an action. In other words, it is not up to only one of the parties to determine whether or not Rule 68 applies.

[14] The rule is mandatory in nature and applies to all claims which fall into subrule (2). In my view, the evidence to date and the case law to which I have been referred, supports the defendants’ position that the claim being advanced by Mr. Singleton is one which falls within Rule 68. Most of the pre-trial procedure has been completed, and the examinations for discovery which have been conducted have fallen within the time limits set out in Rule 68. Neither the plaintiff nor the defendants are suggesting they will require experts in addition to those allowed under the rule.

[15] As set out in subrule (13), the overarching consideration in determining applications under Rule 68 is proportionality. The court must consider what is reasonable in relation to the amount at issue in the action.

[16] As in Berenjian and Uribe v. Magnus, 2009 BCSC 1230, a jury trial is being sought by the party opposing the application for an order that the matter falls within Rule 68. Based on the affidavit material, I have concluded that the claim being advanced by Mr. Singleton is relatively simple and straightforward, and is not one that can justify the expense of a five day jury trial.

[17] For the forgoing reasons, I have determined it is appropriate to make the order sought by the defendants. Accordingly, I am making an order that this matter proceed under Rule 68, and the trial be before a judge alone.

This is an interesting judgement because it seems to require that a Plaintiff adduce evidence of the likely value of their claim to defeat such a motion.

As readers of this blog know the New BC Supreme Court Civil Rules come into force on July 1, 2010. Rule 68 is repealed under the new rules but parts of it survive in Rule 15. I’ve previously written about this and you can find my analysis here. In short, Rule 15 incorporates the mandatory language of Rule 68 for personal injury claims under $100,000 so this case will likely retain its value as a precedent after the new rules take effect.

Removing a Claim from Rule 68 – Criteria To Be Considered

Written by admin on February 5, 2010. Posted in Civil Procedure, Uncategorized. 74 Comments on Removing a Claim from Rule 68 – Criteria To Be Considered

As readers of this blog know Rule 68 is a ‘proportionality‘ based rule which was brought in a few years ago and was intended to be mandatory to certain claims worth $100,000 or less in the BC Supreme Court.
Rule 68 has not been particularly successful and many injury lawyers have avoided this rule whenever possible due to its perceived shortcomings. This rule is going to be wiped from the books when the New BC Supreme Court Civil Rules take effect on July 1, 2010. Rule 68 will be blended with the New Rule 15 which really combines the best of our current alternative litigation rules.
Despite Rule 68’s mandatory nature, Rule 68(7) permits parties to get out of Rule 68 if a Court “so orders“.
So what factors will a court considering in removing a case from the rule? Reasons for judgement were published today on the BC Supreme Court website dealing with this issue for what I believe is the first time.
In today’s case (The Board of Trustees of School District No. 41 v. Crane Canada Co.) the Plaintiff sued for damages as a result of allegedly faulty bathroom fixtures. The case was worth less than $100,000 but the Defendant’s wanted it removed from Rule 68. They applied for an order under Rule 68(7) and were successful. In removing the case from Rule 68 Mr. Justice Groves provided a list of non-exhaustive factors that could be considered on such applications, specifically the Court held as follows:

14] Unfortunately, the criteria to apply to an application to remove a case from Rule 68 has not been effectively resolved by the case law as of yet.

[15] On these facts, a number of considerations are appropriately applied to the consideration of whether or not a case should be removed from Rule 68.

[16] The following discussion is not meant to be exclusive. It is somewhat factual driven, as must all the cases be. It is not the final word on or is it intended to be a definitive word on when Rule 68 is not appropriate to litigation.

[17] Of note first is that Rule 68 has the $100,000 cap. That does not mean all case under $100,000 are appropriately litigated under Rule 68. There are many types of cases which fall within the $100,000 cap and based on a simple analysis of complexity it may be inappropriate to allow a case to continue under Rule 68.

[18] Here is an example. A motor vehicle case which is under $100,000 which involves only an assessment of non-pecuniary damages is clearly a case in which Rule 68 should apply. That, I am probably going out on a limb here to say, is the type of case that Rule 68 was clearly designed to manage. A straightforward piece of litigation.

[19] However, sticking within the $100,000 criteria and the motor vehicle scenario, there are cases in which a claim for damages from a motor vehicle accident might be under $100,000 but it would not be appropriate for them to continue under Rule 68. That would be a case perhaps where both liability and damages are in dispute and expert evidence is required on both those issues. Additionally, the damages may be under $100,000 but may involve non-pecuniary damages, past wage loss, cost of future care and future lost opportunity. Though all those heads of damages may still work out to a grand total of damages of less than $100,000, that type of case with a liability and damage component is clearly one which is in my view too complex and requiring too many potential streams of evidence and expert evidence for it to logically continue under a Rule 68 model.

[20] A second consideration that the courts should take in determining whether or not Rule 68 still should apply is whether or not the issues between the parties are of interest only to them or whether or not there is some legal or juristic significance to the litigation. Clearly a dispute between two people about a contract, a property dispute between two neighbours, a simple motor vehicle case, are cases in which the issues between the parties are of interest only to those parties and likely do not have any long-term legal or juristic significance. Case which have long term consequences to litigants or far reaching juristic significance may not.

[21] Thirdly, a consideration about removal should be whether or not moving the case to the regular stream would have the effect of putting an end to the litigation because of cost and not allowing the parties to actually pursue their litigation because Rule 68 is not open to them.

[22] With those non-exclusive approach, I now turn to an analysis of this case…

While Rule 68 is being abolished soon this case may still retain some value as a precedent under the New BC Supreme Court Civil Rules as Rule 15-1(6) the ‘fast track’ rule contains a similar subrule about removing a case from fast track litigation if a Court ‘so orders‘

Rule 68 Denied for Historic Personal Injury Case

Written by admin on December 7, 2009. Posted in Civil Procedure, Uncategorized. 47 Comments on Rule 68 Denied for Historic Personal Injury Case

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, deciding whether a case that was filed before Rule 68 applied could later be brought into the scope of the Rule.
In today’s case (Sahota v. Sandulo) the Plaintiff sued as a result of personal injuries from a BC Car Crash. The case was filed in New Westminster in 2005, a time when Rule 68 did not apply to that Court Registry. The matter was set for Jury Trial. As trial neared the Plaintiff brought an application to move the case into Rule 68 which would have a number of implications including getting rid of the defendants right to have the matter heard by a Jury.
Mr. Justice Holmes dismissed the application holding that “where an action is commenced before the introduction of Rule 68, the Court has no jurisdiction to make an order bringing the action within the Rule over the objection of one of the parties” In reaching this conclusion he agreed with the reasoning of Mr. Justice Macaulay in a case called Servos v. ICBC where the Court held as follows:

9 The plaintiff argues that any existing proceeding, regardless of the stage it is at, can be transferred into the pilot project if the parties consent. In written argument, he says that the rule is silent on whether the court may order the transfer in the absence of consent and that, accordingly, the court has “the discretion to make any order, which it considers the circumstances require, particularly where it tends to prevent the misuse of the process”. He does not suggest that the defendant is misusing the process in withholding consent in this case. The plaintiff relies on Bell v. Wood, [1927] 1 W.W.R. 580 (B.C.S.C.), considered in MacMillan Bloedel Ltd. v. Galiano Conservancy Assn., [1994] B.C.J. No. 2477 (C.A.), for the proposition set out above.

10 With respect, I do not agree that the principle set out applies here. In Bell, the court addressed its discretion to make orders regarding procedure as the circumstances may require “when the Rules are silent on the subject and especially when it tends to prevent misuse of the process” at (para. 6). The particular question was whether an affidavit could be filed on an application for trial by jury when the rules were silent on the question. MacMillan Bloedel addressed the court’s jurisdiction to permit the continuation of an examination for discovery on the issue of whether special costs should be ordered against a plaintiff that applied to discontinue the action five weeks before trial.

11 I read those decisions as affirming the court’s inherent jurisdiction to craft procedural rules when necessary because the rules do not anticipate the particular problem, but not as anything more. Once a statute covers a matter, it is well understood that inherent jurisdiction cannot be relied on except to fill a functional gap or vacuum: Unity Insurance Brokers (Windsor) Ltd. v. Unity Realty & Insurance Inc., [2005] O.J. No. 1069, 251 D.L.R. (4th) 368 (Ont. Div. Ct.). It represents the reserve or fund of powers which the court may draw on as necessary when it is just or equitable to do so, but it is not unlimited and cannot be exercised contrary to any statutory provision. See Glover v. Minister of National Revenue (1980), 29 O.R. (2d) 392, 113 D.L.R. (3d) 161 (Ont. C.A.), aff’d [1981] 2 S.C.R. 561.

12 There is no gap in the present circumstances. Rule 68 expressly requires the consent of the defendant. It follows that my inherent jurisdiction does not extend to overriding the defendant’s lack of consent and directing the transfer of the proceeding into the pilot project.

This case will be a relatively short lived precedent, however, as Rule 68 is coming to an end as of July 1, 2010. (Click here to read my previous post discussing Rule 68’s replacement with the New BC Supreme Court Civil Rule 15).

BC Supreme Court Confirms Mandatory Nature of Rule 68

Written by admin on November 5, 2009. Posted in Civil Procedure, Uncategorized. 56 Comments on BC Supreme Court Confirms Mandatory Nature of Rule 68

Further to my previous posts on this topic reasons for judgement were released today by the BC Supreme Court, Vancouver Registry discussing the mandatory nature of Rule 68,
Although previous cases have addressed this point, today’s case is important because it is the first such case that I am aware of from a BC Supreme Court Judge (the previous cases were decisions of Masters).
In today’s case (Berenjian v. Primus) the Plaintiff sued for injuries as a result of a BC Car Crash. The claim was set for trial in December, 2009. The Defendants set the matter for Jury Trial. The Plaintiff then brought a m motion to move the case into Rule 68 which would have the effect, amongst others, of eliminating the possibility of trial by Jury.
The Plaintiff pointed to the fact that this case was worth less than $100,000 and argued that Rule 68 was mandatory. The Defendants opposed the motion. After hearing submissions Mr. Justice Punnett agreed with the Plaintiff and held as follows:
[22] Subrule (9) contemplates an action becoming an expedited action after it has been commenced…

[35] I do not agree that Rule 68 cannot be invoked once the pleadings are closed. If the rule is mandatory then the logic of Rule 68(7) is consistent. That is, the rule is a mandatory rule and, as such, no provision is required for the court to order that the rule does apply to a particular action. However, because it is mandatory, a provision was needed to remove actions from the rule. The absence of the endorsement is simply an irregularity in actions which meet the criteria of Rule 68(2).

[36] In my view Rule 68 places no time limit for it to be brought into play…

[45] As noted above the principal of proportionality pervades Rule 68. Rule 68(13) requires that “[i]n considering any application under this rule, the court must consider what is reasonable in relation to the amount at issue in the action” (emphasis added).

[46] As in Uribe, a jury trial is pending. Given the amount involved (and the defendants do not allege that the claim is worth an amount over $100,000), I am of the opinion that the matter should proceed under Rule 68. It is not reasonable that a claim in the range of $25,000 should proceed to a jury trial for the reasons noted earlier in Uribe. To do so would defeat the purpose of Rule 68.

[47] Neither party has brought an application under Rule 68(7) for an order that Rule 68 does not apply. The plaintiff seeks an order transferring the proceeding to Rule 68. The defendants oppose that application. Given the mandatory nature of Rule 68, the question of whose obligation it is to bring the action formally under the rule raises an interesting issue that may well have relevance to any claim for costs arising from the late date of this application.

[48] The plaintiff’s application is granted. There will be an order allowing for the the style of cause to be amended to read “Subject to Rule 68”. The trial currently set for December 7, 2009, shall proceed under Rule 68 without a jury. The plaintiff has tendered two expert reports pursuant to Rule 40A and the defendants one expert report. The parties have leave to call a total of three expert witnesses, namely Dr. Wright, Dr. Mamacos and Dr. Leith.

This interpretation will likely remain good law under the New BC Supreme Court Rule 15 (the fast track rule which comes into force on July 1, 2010) as it also incorporates principles of proportionality, has the same mandatory tone of language and contemplates actions commenced outside of the fast track be brought into the fast track by filing :”a notice of fast track action” as contemplated by Rule 15-1(2).

More on BC Injury Claims, Proportionality and the Mandatory Nature of Rule 68

Written by admin on September 9, 2009. Posted in Civil Procedure, Uncategorized.

Further to my previous postings on Rule 68 in ICBC and other Injury Claims, the Rules mandatory nature was further developed by the BC Supreme Court today.
First a brief background. Rule 68 is a ‘proportionality’ based rule which limits and alters the types of pre-trial procedures available to litigants in the BC Supreme Court for certain types of cases. Rule 68 also takes away the right to trial by jury for cases where the rule applies.
Subsection 2 of Rule 68 sets out when the Rule applies. One type of action subject to Rule 68 is where a Plaintiff claims for pecuniary and non-pecuniary loss for less than $100,000. This includes many ICBC and other Injury Claims.
Recent Court Decisions have interpreted Rule 68 as being mandatory when the factors in Rule 68(2) apply. In the case of Foster v. Westfair Properties (Pacific) Ltd. Master McCallum of the BC Supreme Court held that:
Rule 68 is mandatory and requires that actions qualifying as expedited actions proceed under the provisions of the rule. The absence of the required endorsement is an irregularity that may be remedied by amendment. The commencement of a proceeding without the Rule 68 endorsement does not change the character of the proceeding to permit process outside the limits of the rule.
Reasons for judgement were released today by the BC Supreme Court illustrating just how far our Courts can go in applying the mandatory nature of this rule.
In today’s case (Uribe v. Magnus) the Plaintiff was allegedly injured in 2007 BC Car Crash. The Plaintiff started a lawsuit but did not make the Claim subject to Rule 68. As the lawsuit progressed the Defendant took advantage of the pre-trial steps available for lawsuits filed outside of Rule 68 including examinations for discovery. Furthermore none of the Rule 68 pre trial requirements were adhered to.
The Defendant took out a Jury Notice and even paid the necessary Jury Fees. The Plaintiff then valued his claim below $100,000 and as the trial neared brought an application for an order that the lawsuit was ‘subject to rule 68’. The defendant opposed this motion arguing that the motion was brought too late in the lawsuit and that it would result in significant prejudice including the loss of right of trial by jury.
The Court granted the motion and noted that “there is no timiing limitation in (rule 68)“. Master Caldwell went on to make the following comments:
The concept of proportionality is now formally ingrained in our law by the terms of Rule 68. It is hard to imagine that a simple claim which the plaintiff’s counsel himself admits will not exceed $50,000 and which more likely falls in the $30,000 to $40,000 range can justify the overall expense of a three day jury trial. While I accept the submissions of defendant’s counsel that the defendant has been prejudiced by the late date of the plaintiff’s application, the denial of a jury trial, the fact that they have prepared for a jury trial and the fact that they have had to undertake various steps and procedures which would not have been necessary had the matter been commenced subject to Rule 68 or placed into that rule at an earlier date I am satisfied that these issues can be compensated for by the appropriate order of costs to the defendant while at the same time maintaining and protecting the purpose and mandatory nature of Rule 68.
The Court went on to balance some the Defence concerns by ordering that the Plaintiff be responsible for the costs for ‘all procedures undertaken to date which would not have been required or allowed under Rule 68“. This case is worth reviewing in full for anyone interested in the development of the concept of ‘proportionality’ in BC Supreme Court Injury Litigation.
As readers of this blog may know, the current BC Supreme Court rules are being repealed and replaced with new Rules next summer. Rule 68 will be repealed and replaced with Rule 15. Rule 15 also utilizes the concept of proportionality and today’s case may be telling in the direction BC Courts will take under the new Rules when applying this concept to injury litigation.

New BC Supreme Court Civil Rules – Some Initial Thoughts

Written by admin on July 8, 2009. Posted in Civil Procedure, Uncategorized.

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.

Rule 68, ICBC Injury Claims and Proportionality

Written by admin on February 17, 2009. Posted in Civil Procedure.

As readers of this blog know Rule 68 is a relatively new BC Supreme Court Rule designed to bring faster and more cost efficient access to court for claims valued under $100,000. This rule applies tomany types of personal injury cases including ICBC Injury Claims brought in the BC Supreme Court valued under $100,000.
To save time and expense the rule has brought in certain restrictions with how cases are handled under the principle of ‘proprtionality’. In other words, the cost and time involved in bringing a lawsuit should be proportionate to the amount at issue.
In achieving the end of ‘proportional’ justice Rule 68 brought in certain restrictions including limits on the number of expert witnesses each side can use and restricting the ability of the parties to have pre-trial examinations for discovery.
Today reasons for judgement were released by the BC Supreme Court (Geisbrecht v. Shepherd) dismissing a defence application seeking a second independent medical exam and an examination for discovery. In dismissing the application the court discussed the principle of proportionality. The judgement was short and succinct and I reproduce it in its entirety below:

[1] THE COURT: The provisions of Rule 68, of course, are relatively new. While the principle of proportionality is not of itself new, it is a recent addition to the Rules as a specific factor to be considered. Rule 68 derives from the concern of the profession and of the court that the high cost of litigation of relatively modest claims is something to be addressed and if possible corrected.

[2] The circumstances here seem to me to be classic. The plaintiff’s claim is for damages arising out of a soft tissue injury that she sustained in November of 2006. The defendant admits liability. Rule 68 effectively limits the pre-trial process available in order to move the matter forward on the merits in a balanced and fair way as between the parties.

[3] Here there have been both a medical examination by a physiatrist engaged by the plaintiff as well as an independent medical examination by a physiatrist engaged by the defendant. As I understand it, the defendant’s physiatrist found that the plaintiff sustained a soft tissue injury that should resolve, as most of them do, within 6 to 12 months, that 20 percent of those who sustain soft tissue injuries have symptoms that continue beyond that time.

[4] The plaintiff says that she is within that 20 percent and that there is nothing new that was not available to be seen on the first medical examination that is believed or suspected to have come into existence since then.

[5] Having said that, were it not for the underlying purpose of Rule 68 I would still be uncertain as to whether a second independent medical examination should be allowed. However, taking into account the purpose of Rule 68, the principle of proportionality and the mischief of long and extensive small trials which is to be addressed, I decline to order a second independent medical examination of the plaintiff.

[6] I point out that the trial of the matter is set for March of this year and disclosure has been made of the plaintiff’s witnesses, including a will-say statement concerning what those witnesses may be expected to say.

[7] With regard to the defendant’s application for an examination for discovery of the plaintiff, I am once again not without some doubt, but it seems to me that to give effect to the defendant’s application in the circumstances which exist here would be to re-introduce into the practice under Rule 68 the old practice which it seems to me Rule 68 both endeavours to discourage and also provide an alternative to.

[8] In the result, the defendant’s applications are dismissed. Costs will be in the cause.

Can a Claim be Brought Into BC Rule 68 by Unilateral Amended Writ? – BCSC says Yes

Written by admin on December 2, 2008. Posted in Civil Procedure.

Reasons for judgment were released today dismissing a defence motion to strike out an amended Writ of Summons bringing an action into Rule 68.
Rule 68 is the “expedited litigation’ rule and is mandatory for certain claims filed in the BC Supreme Court. Rule 68(2) deals with the types of claims that it applies to. The subrule reads as follows:

Actions to which this rule applies

(2) Subject to subrule (5), this rule applies to an action commenced in the Vancouver, Victoria, Prince George or Nelson registry after September 1, 2005, and to every action commenced in any registry after January 1, 2008, if

(a) the only claims in the action are for one or more of the following:

(i) money;

(ii) real property;

(iii) personal property, and

(b) 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 all real property, all interests in real property, all personal property and all interests in personal property claimed in the action by the plaintiff.

In this case the Plaintiff filed the action but did not endorse the Writ of Summons or Statement of Claim to bring the claim within the scope of Rule 68. The Plaintiff then filed an amended Writ of Summons and Statement of Claim with a ‘subject to Rule 68’ endorsement. The Defendant brought an application to strike the amended pleadings. Master McCallum of the BCSC dismissed the defence application ruling that the failure to add the Rule 68 endorsement was a mere irregularity. His key reasons are given at paragraphs 12-13 reproduced below:

[12] Rule 68 is mandatory and requires that actions qualifying as expedited actions proceed under the provisions of the rule. The absence of the required endorsement is an irregularity that may be remedied by amendment. The commencement of a proceeding without the Rule 68 endorsement does not change the character of the proceeding to permit process outside the limits of the rule.

[13] The defendants’ motion is dismissed. The action is an expedited action and Rule 68 applies. The amendments stand. Costs of the motion will be to the plaintiff as costs in the cause.

Soft Tissue Injury Nets $35,000 for Pain and Suffering in Rule 68 Claim

Written by admin on November 5, 2008. Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

I’m on the road working on ICBC claims in Kelowna today so today’s BC personal injury update will be a little lighter on detail than usual.
Yesterday the BC Supreme Court released reasons for judgement awarding just over $82,000 in damages as a result of injuries and loss sustained in a 2005 BC Car Accident in Victoria, BC.
The Plaintiff was a 24 year old graphic designer at the time of the accident.
The court made the following finding with respect to injury:

[83] From the foregoing evidence and my findings, I find that the plaintiff has established that he suffered a soft tissue injury to his cervical and lumbar spine in the accident. Dr. Chan’s report does not attempt to classify the severity of the injury, but he did note the injury to be resolving at about two months post-accident, with a conservative treatment regime. The plaintiff missed a week of work immediately after the accident, then returned to work half days for three to four months, and then went back to full-time hours of seven to eight hours a day. He considers the last significant improvement in his condition to be about six months post-accident.

[84] To date, just over three years as of the date of trial, the plaintiff remains unable to work the additional hours per day to bring him to his pre-accident level of 50 to 60 hours per week, and continues to experience “flare ups” with pain in his lower back when engaging prolonged periods of standing or sitting. Certain physical activities and sports that he previously enjoyed, he now engages in at a reduced level or has declined to continue with, for example snowboarding and mowing his parents’ lawn. In my view, the evidence establishes a minimal ongoing impairment arising from the soft tissue injuries he sustained in the accident.

Damages were awarded as follows:

(a) Non-pecuniary damages: $35,000.00

(b) Damages for lost income: $15,647.18

(d) Special damages: $ 1,845.36

Total: $82,492.54

This is one of the few ICBC injury claims that I’m aware of that proceeded through trial under the relatively new Rule 68. Rule 68 should be carefully reviewed for anyone prosecuting an ICBC injury claim that may be worth less than $100,000 as this rule presents some benefits and restrictions in the way in which an ICBC claim can be advanced.

Rule 68 and Expert Costs

Written by admin on September 11, 2008. Posted in Civil Procedure, Uncategorized. 56 Comments on Rule 68 and Expert Costs

Rule 68 of the BC Supreme Court Rules was introduced to deal with certain cases worth $25,000 – $100,000. For such cases this rule was implemented to help bring cases to trial more quickly and with less expense. In doing so certain limits were imposed on how a claim can be prosecuted. One of the most significant restrictions (as it relates to ICBC injury claims) is the restriction of Rule 68(33) which generally limits a party to only one expert witness. Specifically this subrule states that:

(33) Unless the court orders otherwise, a party to an expedited action is entitled, under Rule 40A, to tender the written statement of, or to call to give oral opinion evidence, not more than

(a) one expert of the party’s choosing, and

(b) if the expert referred to in paragraph (a) does not have the expertise necessary to respond to the other party’s expert, one expert to provide the required response.

As many ICBC injury claims lawyers know, it is often difficult to prepare a case for trial with only one expert witness. Often an injured Plaintiff has several treating physicians and it is important to hear from all of them. Similarly it is often a good idea to retain a highly qualified specialist to conduct an ‘independent medical exam’ to summarize all of the Plaintiffs injuries and provide a comprehensive opinion addressing injuries, causation prognosis and need for future treatment. All of this costs money. When a case is prosecuted under Rule 68, then, does the above subsection prevent a successful plaintiff from claiming the costs of hiring more than one expert? Reasons for judgement were released today which say no.
In this case the Plaintiff suffered various injuries in a car accident. The claim was prosecuted under Rule 68 and eventually settled for $25,000. In prosecuting the case the Plaintiff lawyer obtained reports from 5 experts. ICBC argued that Rule 68
“restricts the plaintiff to claiming disbursements relating to one expert only, unless (the Plaintiff) has obtained a court order allowing more than one expert…. as the plaintiff did not seek leave from the court to introduce more than one expert report, the plaintiff ought to be limited to claiming for only one expert’s report as part of the disbursements in this action…..based on the principles of proportionality and the express limit on the number of reports permissible in such an action, it was not reasonable or proper to engage this number of experts.“
The court rejected this argument and held that in this case it was reasonable to have the Plaintiff assessed by more than one expert. Specifically the court stated that:
in the circumstances of this particular action (where the plaintiff was clearly fragile) it was reasonable and necessary to engage a number of experts to assess the plaintiff. If that is the case, then does the application of Rule 68 still prevent the plaintiff from claiming disbursements for each of those experts? I think not. Rule 68 does not say that a party is restricted, on an assessment of costs, from claiming for the costs of more than one expert. It simply says that, without leave of the court, a party may not elicit testimony from more than one expert witness. (the Plaintiff’s lawyer) was, in my view, obliged as counsel to try and determine the extent of the plaintiff’s injuries and to understand the cause(s) of them. She would not have been able to do that without resort to the opinions of the various experts engaged.