Tag: Rule 7

Exploring Pre-Existing Injury on Discovery – Forever Not Always OK

Written by ERIK MAGRAKEN on April 27, 2023. Posted in BCSC Civil Rule 7.

There is no shortage of caselaw addressing the obligations to produce historic clinical records when a plaintiff’s pre-existing health is at issue. When it comes to the scope of fair questions at discovery the case law is far more sparse. To this end helpful reasons for judgment were recently published by the BC Supreme Court discussing this issue.

In the recent case (Andrist v. Bryant) the Plaintiff was involved in a vehicle collision and sued for damages. The Defendant plead that the plaintiff had pre-existing injuries and there was some further evidence this was the case. Plaintiff’s counsel was ok with questions about the plaintiff’s health in the two years preceding the crash. The defendant wished to explore the issue without this limit and the disagreement eventually spilled over to a chambers application.

In addressing the fact that limits can be placed on questioning pre-existing health Mr. Justice Tindale noted that the correct balance in this case likely lies somewhere between the Plaintiff’s position of only 2 years and the Defendants position of a lifetime. The court provided the following reasons:

Pre Accident Medical Records Are Not Producible “as of right, or on demand” in Injury Claims

Written by ERIK MAGRAKEN on August 28, 2019. Posted in BCSC Civil Rule 7.

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, providing useful comments on disclosure obligations of personal injury litigants under the BC Supreme Court Civil Rules.

In today’s case (Holmberg v. McMullen) the Plaintiff suffered “significant injuries” as a result of two vehicle collisions and sued for damages. In litigation the Defendants requested various pre accident medical records and pharmacological records arguing that when serious injuries are alleged such documents must be produced. A Master disagreed and dismissed the application. The Master’s decision was appealed which was also dismissed.

In noting that parties have no obligation to produce documents not in their possession or control in the first phase of document production and further that pre accident medical records are not producible on demand and as of right even in the face of serious injuries being disputed on the pleadings Mr. Justice Johnston provided the following reasons:

ICBC Not Allowed To Withdraw Admission of Fault Late in Litigation

Written by admin on December 11, 2018. Posted in BCSC Civil Rule 7, Civil Procedure.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, considering a request to withdraw a formal admission of fault for a vehicle collision in the deep stages of litigation.
In today’s case (Bodnar v. Sobolik) the Plaintiff was involved in a 2014 collision. He sued alleging the Defendants were at fault. ICBC, the Defendant’s insurer, admitted fault in the course of the lawsuit. As the trial progressed the Defendants retained an engineer who viewed video of the crash and concluded “the speed of the plaintiff vehicle as 74 km/hr in a 50 zone“. Based on this the Defendants sought to withdraw the admission of fault. In refusing the request the Court noted the litigation was mature and it would not be in the interests of justice to allow it. In dismissing the application Mr. Justice McEwan provided the following reasons:

[13] The Notice of Civil Claim was filed October 11, 2016. The Response to Civil Claim was filed January 12, 2017, formally admitting liability. On May 30, 2017, Mr. Bo Baharloo assumed conduct of the file.

[14] ICBC clearly understood the material contained on the video footage. The admission was not made hastily, inadvertently and without knowledge of the facts. Successive adjusters worked on the file and gave instructions to admit liability with full knowledge of the video footage. At the time liability was admitted ICBC had the video footage. The defendants had been aware of the existence of video footage when they were provided with a copy. The preparation of a report on September 28, 2018 was well after ICBC and defence counsel had both received a copy of the video footage.

[15] At this late stage both cars have been written off and are no longer available for inspection.

[16] It is not in the interests of justice to allow a withdrawal of the admission of liability because there is now a difference of opinion about the cause of the accident.

[17] The application is dismissed. In saying that I say nothing about contributory negligence or whether it is possible to plead or amend the pleadings to raise the issue.

[18] I should say that I have considered the cases Boyd v. Brais, 2000 BCSC 404 and Miller v. Norris, 2013 BCSC 552 as nearest to the present situation.

[19] The application is dismissed with costs to the plaintiff.

Court Tells Lawyer to "Focus" Their Questioning Instead of Extending Discovery Time

Written by admin on May 28, 2016. Posted in BCSC Civil Rule 7.

The BC Supreme Court Rules, which used to be open ended with respect to examinations for discovery, now have time limits in place with the Court retaining discretion to extend these limits in appropriate circumstances.
Unreported reasons for judgement were recently released considering and denying such an application with the Court suggesting counsel “focus” their remaining time appropriately.
In the recent case (Ross v. Casimong) the Plaintiff was injured in a 2009 collision and sued for damages. The claim was prosecuted in the usual course (outside of fast track) with the present Rules allowing 7 hours of discovery. The Plaintiff was examined twice with approximately 44 minutes of the allotted 7 hours remaining. Defence counsel brought an application seeking a further discovery and allowing up to two hours to finish the job. The Court dismissed the application noting a focused discovery could canvass what was needed in the remaining time. In dismissing the application Master Dick provided the following reasons:

Double Costs Ordered For Unreasonable Response to "Notice to Admit"

Written by admin on May 26, 2016. Posted in BCSC Civil Rule 7.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry finding defendants at fault for a vehicle collision and further ordering double costs to be paid following an ‘unreasonable’ refusal to admit facts set out in a notice to admit.
In today’s case (Ceperkovic v. MacDonald) the Defendants were sued for a three vehicle collision that they were ultimately found liable for. Prior to trial they were served with a Notice to Admit seeking admission of various facts regarding the circumstances of the crash. The Defendants did not admit all of these facts requiring ultimate proof at trial.
In finding the refusal was unreasonable and ordering double costs Madam Justice Dillon set out the following test to be utilized in these circumstances along with the following reasons:

[38] In summary, the failure to admit the truth of a fact may be unreasonable within the meaning of Rule 7-7(4) if:

(a) the truth of the fact is subsequently proved;

(b) the fact was relevant to a material issue in the case;

(c) the fact was not subject to privilege;

(d) the notice to admit was not otherwise improper;

(e) the notice to admit was reasonably capable of evaluation within the time required for response; and

(f) the refusing party had no reasonable grounds for believing that it would prevail on the matter.

…

[43] While the cost consequences of an unreasonable failure to admit are usually confined to the costs of proving the truth of facts or the authenticity of documents, the power conferred by Rule 7-7(4) to penalize a party by awarding additional costs or depriving a party of costs “as the court considers appropriate” suggests that in an appropriate case the court could go further. At the least, it is not outside of contemplation that if the entire trial could have been avoided had reasonable admissions been made (for example, if the originating party could have applied for judgment on admissions under Rule 7-7(6)), the party who unreasonably failed to admit the facts could be penalized by an award of additional costs for all steps taken following delivery of the notice to admit.

[44] Here, the plaintiff bus driver would not have had to lead any evidence and would not have had to cross-examine other parties or witnesses if the facts had not been unreasonably denied. Other than perhaps being called as a witness in the Ceperkovic action, Patriquin would not have had to appear. An award of double costs against the defendants, MacDonald and Janet MacDonald, for trial preparation, attendance at trial and written argument and an award of ordinary costs for time spent in preparing Patriquin for testimony is very reasonable. The plaintiff, Patriquin, is awarded those costs pursuant to Rule 7-7(4).

Previous Discovery Transcripts, Expert Reports and Mediation Documents Ordered Produced in Indivisible Injury Case

Written by admin on December 8, 2015. Posted in BCSC Civil Rule 7.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering broad document production from past litigation in a case of potential indivisible injuries.
In today’s case (Easton v. Chen) the Plaintiff was injured in a 2011 collision and sued for damages. The Plaintiff was also involved in four prior collisions that resulted in injury claims, all of which settled prior to trial.
The Defendant requested production of past examination for discovery transcripts, expert reports and mediation documents on the basis that the injuries may be indivisible. In ordering production Master Muir provided the following reasons:

[25] I agree with the submissions of the defendant. I am satisfied that the prior documents, the discovery transcripts and the experts reports from the prior actions could be used to prove or disprove material facts in this action and on that basis alone I would order their production. I also conclude that in any event a sufficient foundation has been laid for their production under Rule 7-1(11). Further, I conclude that it is in the interests of justice to relieve against the implied undertaking of confidentiality. Thus, the documents are to be disclosed.

[26] The mediation documents sought raise another issue and that is settlement privilege. The defendant relies on Dholliwar v. Yu, 2015 BCSC 670 and Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, for the proposition that the disclosure of these documents is necessary in order to prove what the plaintiff received in compensation in the prior accidents and to prevent injustice through potential double compensation.

[27] In Dholliwar, Master Scarth held:

[26] It has yet to be established here that the injuries arising from the third accident are indivisible from those in the first and second. However, on the basis that indivisibility is at issue, and that there is potential for over-compensation, it is appropriate to require disclosure of the settlement documents at this time. I accept the submission of the defendants that such disclosure is necessary, in that it may assist in the settlement of the plaintiff’s claims arising from the third accident. Disclosure at this time is consistent with the previous decisions of this Court in Pete and Murray. I am satisfied that the defendants here do not seek a purely tactical advantage, as the Court found in Phillips v. Stratton, 2007 BCSC 1298 (CanLII), but rather, they wish to have the information necessary to assess their exposure, both for purposes of settlement and in the preparation of their case for trial.

[27] In Dos Santos at para. 34, the Court stated that “significant weight should be given to the just disposition of pending litigation in determining whether the documents sought come within an exception to settlement privilege.” In my view, to find that the documents should be disclosed at this time is consistent with this approach

[28] Similarly in this case, indivisibility is an issue and the defendants argue there is a potential for double compensation. The only evidence available showing what the plaintiff was compensated for in the prior actions will be found in this documentation. As a result, I conclude that the mediation documents should be disclosed.

"There Is No (Discovery) Continuation As of Right Once a Matter is Removed From Fast Track"

Written by admin on November 30, 2015. Posted in BCSC Civil Rule 7, Civil Procedure.

Unreported reasons by the BC Supreme Court, Vancouver Registry, were recently shared with me finding that there is no right for examination for discovery continuation once a matter is removed from fast track prosecution.
In the recent case (Nordin v. Wong) the Plaintiff sued for damages for injuries and her claim was initially prosecuted under Rule 15. She underwent examinations for discovery which was limited to the two hour cap under the fast track rule.
The case was removed from Rule 15 and the Defendant sought a further discovery under the greater timelines allowed. In dismissing the application and finding there was “no continuation as of right” when a matter is removed from fast track Master Scarth provided the following reasons:
[4] To the extent that this is an application for a continuation of the examination for discovery which took place in May of 2014, I am satisfied that it should be dismissed…
[5] Counsel conducting the discovery stated it to be concluded. Responses have been provided to the outstanding document requests, and the defendant here concedes that nothing arises fro the material which was so provided. Further, there is no continuation as of right once a matter is removed from fast track…No conditions were placed on the removal of the action from fast track, apparently it not being in the contemplation of the defendant at the tine that they might require a further discovery.
[6] In my view, therefore, the fact that Rule 7-2(2) provides for seven hours of discovery does not assist the defendant here.

No Pre Trial Examination Ordered For Witness Willing to Talk Through Counsel

Written by admin on March 25, 2015. Posted in BCSC Civil Rule 7, Civil Procedure. 71 Comments on No Pre Trial Examination Ordered For Witness Willing to Talk Through Counsel

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that a witness who is willing to communicate through counsel should not be compelled to attend a pre-trial examination under oath.
In today’s case (Cabezas v. HMTQ) the Plaintiff was involved in a single vehicle accident and sued the Defendants claiming negligent highway maintenance. In the course of the lawsuit the Plaintiff attempted to speak with and the “Capilano defendants provided a summary of the evidence Mr. Colville was expected to give should the matter proceed to trial. She stated further: “to the extent that you still wish to speak to Mr. Colville, he has asked that this be arranged through us and that we be present.”
The Plaintiff brought an application to compel pre trial examination under oath of this witness but this was dismissed with the Court noting that a witness willing to speak through counsel is indeed being responsive. In reaching this conclusion Master Harper provided the following reasons:

[4] Rule 7-5(1) provides as follows:

(1) If a person who is not a party of record to an action may have material evidence relating to a matter in question in the action, the court may:

(a) order that the person be examined on oath on the matters in question in the action, and

(b) either before or after the examination, order that the examining party pay reasonable lawyer’s costs of the person relating to the application and the examination…

[11] Rule 7-5 sets out a protocol which must be followed before an application for an order for a pre-trial examination of a witness can be made. The applicant must establish that the proposed witness has refused or neglected on request by the applicant to give a responsive statement either orally or in writing relating to the witness’ knowledge of the matter in question or has given conflicting statements (Rule 7-5(3)(c)(i) and (ii)).

[12] The fact that the witness has chosen to communicate through counsel does not amount to a refusal to give a responsive statement (Rintoul v. Granger, 2008 BCSC 1852 at para. 24).

[13] Mr. Colville is agreeable to attending an interview in the presence of counsel.

8 Year Old Too Young To Be Examined for Discovery

Written by admin on March 13, 2015. Posted in BCSC Civil Rule 7. 55 Comments on 8 Year Old Too Young To Be Examined for Discovery

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a defense application to examine an 8 year plaintiff.
In today’s case (Dann-Mills v. Tessier) the Plaintiff was involved in a ‘serious motor vehicle accident’ when he was 17 months old. A lawsuit was brought on his behalf by his litigation guardian. The Defendants sought to examine the Plaintiff for discovery. The Court found that this would be inappropriate and dismissed the application. In doing so Mr. Justice Voith provided the following reasons:

[38] I question the possible utility or value of any examination for discovery of Jorin, particularly in light of some of the medical conclusions I have identified. It was this issue that I canvassed most fully with counsel for the applicant.

[39] It is generally understood that the central objects of an examination for discovery are:

i) to enable the examining party to know the case it must meet;

ii) to enable a party to procure admissions which will dispense with other formal proof of its case; and

iii) to procure admissions which will damage an adversary’s case.

See e.g. Frederick M. Irvine, ed., McLachlin & Taylor, British Columbia Practice, loose-leaf, 3^rd ed. (Markham: LexisNexis, 2006) at 7-178.

[40] The applicant and other defence counsel accepted that they had no desire to obtain any “admissions” from Jorin on discovery. Instead, the applicant said that the “primary reason” for Jorin’s intended discovery related to the first consideration I identified; that being, to enable the defence to know the case that it must meet.

[41] Respectfully, I struggle to see how this can be so. This is not a case where the defendants may be surprised by Jorin’s evidence at trial. Jorin will not be present at the trial. Instead, the whole of Jorin’s case will be established by expert evidence, of which the defendants will have ample notice, and through other witnesses. The defendants can examine Jorin’s father and his grandmother (Jorin’s litigation guardian). They can interview his teachers and his special-needs assistants. In earlier applications, it became clear that Jorin, who requires full-time supervision, has had a series of caregivers. These sources are likely to be far more fruitful and reliable than the examination for discovery of an infant who, there is reason to believe, without deciding that it is so, struggles with comprehension, attention and language difficulties.

[42] The last basis for an examination of Jorin that was raised by counsel for the applicant was a desire, in a sense, to see Jorin and how he functions. There is significant disparity in the existing medical opinions on Jorin’s functionality. I have referred to some of these differences earlier in these reasons. Other differences are apparent in the letters of Drs. Purtzki and Joschko, respectively. Counsel considers that some opportunity to see and interact with Jorin would potentially be helpful for settlement and other purposes.

[43] First, it would appear that a discovery of Jorin would only achieve this object for the single counsel who conducted the examination for discovery, and not for the teams of counsel who represent the various defendants in this action. I cannot imagine that the intention would be to conduct the examination in the presence of all counsel who are involved in these actions.

[44] Second, though I do not question counsel’s expressed goal, I consider that this object can be otherwise achieved. I suggested to counsel that Jorin might be videotaped, or that counsel might possibly view Jorin, at a medical examination, through a glass mirror. Though counsel for Jorin indicated he would not be opposed to such endeavours, I was also told by counsel for the defendants that the examining independent medical practitioners might object. Nevertheless, I consider that with some ingenuity there are far better means available to get a sense of Jorin and his functionality than a brief examination for discovery would yield.

[45] In all the circumstances, I do not consider that an examination for discovery of Jorin would be appropriate, and I am unprepared to allow that examination to take place.

Liability Admission Overturned Late in Litigation

Written by admin on December 23, 2014. Posted in BCSC Civil Rule 7. 118 Comments on Liability Admission Overturned Late in Litigation

When fault for a crash is admitted in a formal lawsuit the Court has discretion to allow withdrawal of the admission in appropriate circumstances. Reasons for judgement were released today by the BC Court of Appeal documenting one such instance.
In today’s case (Sidhu v. Hothi) the Plaintiffs alleged they were involved in a collision caused by the Defendant. They sued for damages and ICBC admitted fault on behalf of the defendant. In the course of the lawsuit a witness was interviewed who provided a statement indicating the Plaintiffs may not have been in the vehicle at all. ICBC sought to withdraw the admission of fault. The plaintiffs opposed arguing it was too late to do so. The BC Court of Appeal disagreed and in finding withdrawal was appropriate provided the following reasons:

[25] Turning, then, to what I regard as the real issue in this case – whether the chambers judge erred in concluding that most of the Hamilton factors weighed in favour of the defendants – I would suggest it would be preferable to frame items 3‑8 of the Hamilton test not as conditions that must be met, but as factors that should be considered in determining what result is in the interests of justice. Thus I would reframe items 3‑8 as follows:

(a) whether the admission was made inadvertently, hastily, or without knowledge of the facts;

(b) whether the “fact” admitted was or was not within the knowledge of the party making the admission;

(c) where the admission is one of fact, whether it is or may be untrue;

(d) whether and to what extent the withdrawal of the admission would prejudice a party; and

(e) whether there has been delay in the application to withdraw the admission and any reason offered for such delay.

I have omitted item 6 of the original list (that the fact admitted be one of mixed fact and law), since in most cases, including Hamilton itself, this has been held to be irrelevant provided a triable issue is raised (see alsoNesbitt (B.C.S.C.) at para. 56.)

[26] The decision as to what is in the interests of justice involves a considerable degree of discretion, and as noted in Goundar v. Nguyen 2013 BCCA 251, this court should generally not interfere with such a decision unless the judge erred in principle. In my view, the chambers judge correctly weighed the “delay” factor against the fact that the admission was made without knowledge of the evidence; that the insurer’s failure to appreciate the significance of Mr. Hothi’s witness statement was a simple oversight; that witnesses to the accident are still available; and most importantly, that if the application were dismissed, the plaintiffs might be perpetrating a fraud on the defendants and on the court. In my opinion, this possibility is one that would be very difficult to countenance. Further, allowing the application will ensure that the plaintiffs’ claim will be heard on the merits – an overarching objective referred to in Rule 1-3 of the new Supreme Court Civil Rules.

[27] For these reasons, I would dismiss the appeal.