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Tag: Rule 7

"Silence Does Not Mean Consent" – Examination for Discovery Caselaw Update

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure, Uncategorized. 157 Comments on "Silence Does Not Mean Consent" – Examination for Discovery Caselaw Update


 
Adding to this site’s archived caselaw addressing examination for discovery, useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, making the following points:
1. silence (or even agreement) to a discovery request does not compel a party to comply with it
2. the court has no power to order that answers to questions outstadning at an examination for discovery be put in writing
3.  the narrower scope for document production requirements is not circumvented simply by asking for production of documents at an examination for discovery
In this week’s case (LaPrarie Crane (Alberta) Ltd. v. Triton Projects Inc.)Master Bouck provided the following reasons addressing these points:
[32]         As for the outstanding requests from the examinations, Triton submits that  when there is no objection to production on the record — or indeed, where a positive response from the examinee is made — such requests must be answered : Winkler v. Lower Mainland Publishing Ltd., 2002 BCSC 40 at para. 17. In other words, the party being examined is not able to reflect upon requests unless counsel states on the record that the request will be taken under advisement or an objection is raised. Nor can a party have a change of mind upon reflection, or upon taking legal advice.
[33]         The principle that a party should not be permitted to subsequently revoke agreements made at an examination for discovery is laudable. However, silence does not mean consent: Gellen v. British Columbia (Public Guardian and Trustee of), 2005 BCSC 1615 at para. 17 (S.C.). Furthermore, it is difficult to see how the principle enunciated in Winkler can be applied after the introduction of time limited examinations for discovery: Rule 7-2 (2).
[34]         If counsel is expected to pause and consider the relevancy of every question asked of the witness, the time allotted for a party’s examination might well be consumed by objections, interventions and even argument. In recent decisions, the court has strongly discourage such intervention at examinations for discovery: see More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166 at para. 13 foll’g Kendall v. Sun Life Assurance Co. of Canada, 2010 BCSC 1556 at para. 18. Given this change in procedure, I decline to follow Winkler.
[35]         If a person declines to provide the additional information requested, the examining party is not without a remedy: Rules 7-2 (22)-(24). This appears to be the remedy pursued on this application. Nonetheless, the court has no power to order that answers to questions outstanding at an examination for discovery be put in writing: Diachem Industries Ltd. v. Buckman (1994), 91 B.C.L.R. (2D) 312 at p. 314 (S.C.) [my emphasis].
[36]         Finally, it is acknowledged that under the SCCR, the duty to answer questions at an examination is broader than the duty to produce documents: More Marine Ltd. v. Shearwater Marine Ltd., supra, at para. 7. However, a party does not get around the application of Kaladjian v. Jose principles by asking for the documents at these examinations: Maxam Opportunities Fund (International) Ltd. Partnership v. 893353 Alberta Inc., 2012 BCSC 553.
 

ICBC Denied Access to Plaintiff's Vacation Photos

Written by admin on . Posted in BCSC Civil Rule 7, ICBC Privacy Issues, Uncategorized.


Reasons for judgement were recently released by the BC Supreme Court, Victoria Registry, dismissing an ICBC application to compel production of a Plaintiff’s vacation photos.
In the recent case (Dawn-Prince v. Elston) the Plaintiff was injured in a 2007 collision.  In the course of her lawsuit she was examined for discovery where she “testified that she had been on these vacations…(and) about her activities on the vacations“.
ICBC brought an application to have access to any photos taken of these holidays.  The Court dismissed this application finding that while canvassing the scope of a Plaintiff’s vacation activities is fair game at discovery production of photos is not required.  In dismissing the application Master McCallum provided the following reasons:
[3]  In the authorities to which I was referred, the court has on some occasions ordered production of photographs in similar circumstances where on vacation…
[4]  The difference in this case is that the plaintiff acknowledges that she engaged in the sporting and physical recreational activities, including the very ones that are referred to in the Fric decision; hiking, scuba diving, and so on.  The photographs that are requested have been reviewed by counsel or someone in cosunsel’s office, Marler, who swears in her affidavit that she reviewed 23 photographs in which the plaintiff was shown and says that they do not depict the plaintiff in strenuous physical activities; rather they depict her standing, sitting, or walking, by the pool, or on the beach…I am satisfied from that evidence that production of this evidence, which is clearly the second stage of documentary discovery contemplated by the Rules, is not appropriate.  These photographs, from the evidence on this application, will not assist the defendant in defending the claim.  The evidence of the plaintiff, of course, with respect tow hat she did on her vacations nay well assist, but the photographs neither contradict nor confirm that.  They show the plaintiff on the evidence in activities that are not inconsistent with anything other than standing, sitting, or walking, none of which she says she cannot do,..
[6]  The application for production of photographs…is dismissed.

"Belt and Suspenders" Exam Denied in Face of Previous Opinion on Plaintiff's Medical Condition

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As previously discussed, while the BC Supreme Court Rules permit multi-disciplinary defence medical exams in appropriate circumstances.  Once a Defendant obtains an opinion from a properly qualified expert with respect to the Plaintiff’s alleged injury, a further exam will not be ordered to bolster the opinion of the initial expert.  This is sometimes referred to as the “Belt and Suspenders” principle.  Reasons for judgement were recently published by the BC Supreme Court, Victoria Registry, further addressing this issue.
In the recent case (Knowles v. Watters) the Plaintiff alleged she suffered from balance issues including imbalance, dizziness and light-headedness due to a motor vehicle collision.  In support of her case the Plaintiff tendered reports from a neurologist  psychologist, an otolaryngolosit and a general practitioner    The Plaintiff’s otolaryngologist opined that the dizziness issues were “multifactoral” in origin   .
The Plaintiff agreed to see a defence expert who opined that “there was nothing in my evaluation to suggest that she has sustained any injury to her peripheral balance mechanisms, including the inner ear vestibular mechanisms“.  The Defendant then sought  an additional exam with an ENT to further address this issue.  Master McCallum dismissed the application finding the Defendant already had an opinion on the issue and a further expert was not warranted in the circumstances   In dismissing the application the Court provided the following reasons:
[8]             The defendant says that Dr. Moll’s report is restricted to neurological functions, and is not a complete answer or a complete response, if it were looked at in that way, to what Dr. Noel had to say. The defendant says that can only be accomplished by an examination by Dr. Bell.
[9]             In this case the defendant has had the opportunity the authorities require to essentially balance the playing field. Counsel are agreed that the authorities I have been cited are to that effect. The court’s job is to ensure that there is a so-called level playing field or that the parties have the opportunity to deal with the case fairly on the merits.
[10]         The plaintiff here has, as is always the case, the opportunity to visit various specialists and get various reports. The defendant’s opportunity is limited to reports necessary to ensure that a fair trial can be obtained on the merits. In this case it is too fine a distinction to make to say that Dr. Moll, who made a comprehensive examination and gave a comprehensive report on the plaintiff’s balance complaints, can be distinguished from what Dr. Bell might or might not do as an otolaryngologist. There is no evidence to say that Dr. Moll was unable to make the report he did, that if he had had more information he might have made a different report, or indeed that if he had seen Dr. Noel’s report that he might have come to a different conclusion. None of that is the case. The plaintiff has disclosed its reports to date. The defendant has had a fair opportunity to respond to those reports. Dr. Moll’s report is indeed a complete response to Dr. Noel’s report. The plaintiff’s own report from Dr. Noel does not suggest that there is an underlying otolaryngological cause to the plaintiff’s symptoms. He says that the ENG test was normal except for one abnormality that he says is most likely due to other causes. Dr. Noel says the symptoms were multifactorial, not related to one issue. That is at odds with what Dr. Moll has to say, but that is what the jury will have to decide when the case comes to trial.
[11]         This is not a case where the defendant has made out the burden on him to demonstrate that this application is necessary. The application is dismissed. Costs should go as costs in the cause. There is no reason to depart from the usual rule.

ICBC Denied Liability Withdrawal Following Examination for Discovery

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.

Reasons for judgement were recently shared with me by my colleague in Nanaimo addressing ICBC’s attempt to withdraw a formal admission of liability following examinations for discovery.
In the recent case (Smith v. Smith) the Plaintiff was injured while riding as a passenger in a vehicle involved in a 2008 roll-over collision.  ICBC initially took the position that the driver of this vehicle was negligent and responsible for the crash.  In the course of the lawsuit ICBC continued with this position and formally admitted liability.
Both the Plaintiff and Defendant were examined for discovery.  During these examinations evidence was adduced which made ICBC’s lawyer wish to raise the ‘inevitable accident‘ defence.  ICBC sought to withdraw their admission of liability arguing that ‘new information’ came to light through the discovery process.  Mr. Justice Greyell disagreed finding that the ‘new information’ was nothing more than the Defendant’s account of the collision and was available to ICBC all along.  In dismissing ICBC’s request for amended pleadings the Court provided the following reasons:
[28]  The evidence which was elicited at the examinations for discovery of the plaintiff and the defendant on February 21, 2012 was clearly available to ICBC had the adjuster chosen to request it.  There are, to use the words of Rholing at para. 18, no new facts which have come to the attention of the defendants which were not available when the admission was made.
[29]  What appears to have happened in this case is similar to what occurred in Boyd: counsel took a different view of the facts than did the adjuster when the matter was considered shortly after the accident.
[30]  Third, the plaintiff, in my view, would clearly be prejudiced should the Court allow the defendant to withdraw the admission at this late stage of these proceedings…
[31]  Accordingly, the interests of justice are not, in my view, served by permitting the defendant to withdraw his admission.
To my knowledge this recent case is not publicly available but as always I am happy to provide a copy to anyone who contacts me and requests one.

Plaintiff's "Apprehension of Bias" Turfs Defendant's Chosen Psychiatric Examiner

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams.

An Excerpt From Proceedings from the BC Supreme Court, Nanaimo Registry, was recently shared with me addressing the choice of a Defence Psychiatric Exam where a Plaintiff raised an apprehension of bias.  In the face of such concerns the Court did not allow a Defence Medical Appointment to proceed with the Defendant’s psychiatrist of choice and instead ordered that the Defendant choose a different psychiatrist.
In the recent decision (Henry v. Reeves) the Plaintiff alleged he suffered a chronic pain syndrome as a result of a collision.   The Defendant requested a Defence Psychiatric Exam.   Mr. Justice Halfyard ordered that the Defendant was entitled to such an exam.  The Plaintiff raised concerns about the Defendant’s chosen physician highlighting the proposed doctor’s ICBC billings and further pointed out two cases where the chosen physician was judicially criticized.
Mr. Justice Halfyard considered these submissions and noted that the Plaintiff has “got a point here” and ultimately concluded that “I am not going to order (the Proposed physician)..to conduct the medical examination” making the parties settle on a different physician.
To my knowledge this Excerpt of Proceedings is not publicly available but as always I am happy to provide a copy to anyone who contacts me and requests one.

Making the Doctor Come To You! Defence Medical Exams and Court Ordered Conditions

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams. 59 Comments on Making the Doctor Come To You! Defence Medical Exams and Court Ordered Conditions

The BC Supreme Court has the discretion to impose appropriate terms and conditions when forcing a Plaintiff to undergo a Defence Medical Exam in the course of an injury lawsuit.  Unreported reasons for judgement were recently released and shared by Plaintiff lawyer Thomas Harding discussing this and imposing a variety of interesting conditions connected to such an order.
In the recent case (Carta v. Browne) the Plaintiff sued for damages as a result of as 2009 collision.  Prior to this the Plaintiff was injured in a 2002 collision which resulted in him being rendered paraplegic confining him to a wheelchair.
The claimed damages from the 2009 collision included psychiatric injuries.  The Defendant requested a Defence Medical Exam with a psychiatrist in Vancouver.  The Plaintiff objected both to the date proposed and to the location of the examination as the Plaintiff lived in Kelowna and travel was difficult due to his pre-existing disability.
Master Muir agreed that while a psychiatric assessment was appropriate and that the Defendant could choose their expert the Plaintiff was entitled to reasonable accommodation with respect to the timing of the appointment and further that given the Plaintiff’s travel difficulties he was entitled to having the appointment take place in Kelowna.  The Court went on to impose a variety of further conditions providing the following reasons:
[8] …I am satisfied that there are considerations that go beyond simple convenience that dictate that this examination should not be conducted in Vancouver but should be conducted in Kelowna and that it not be conducted on July 30th, which is a time that is more than inconvenient for the plaintiff; it interferes with a scheduled festival that he is planning to attend as a part of a developing business.  Therefore if the defendants are going to insist that the examination be conducted by Dr. Riar, it is my order that Dr. Riar attend in Kelowna at a time convenient to all parties, and I will order that certain conditions be complied with.
[9]  The first condition sought is that the defendants set out exactly what examinations DR. Riar wishes to conduct.  The defendants have indicated that this is a psychiatric examination, that the examination is not to be an invasive one but will consist of conversations between the plaintiff, and I trust that Dr. Riar, being a professional, will confine himself accordingly.  It is of course ordered that ICBC is to pay the reasonable costs of attendance of the plaintiff at the examination.
[10]  I do order that the plaintiff is at liberty to be accompanied by a person of his choice.  This person is to be merely an observer and not participate in or interfere with the exaninaiton in any manner whatsoever.  Dr. Riar will not attempt to get any information from the companion…
[12]  And I so order here that the examination is to be commenced within 30 minutees of the scheduled start time, after which, if the examination has not proceeded, the plaintiff is entitled to depart, and his attendance will be credited as having satisfied the order…
[15]  With respect to item (i) of the response of the plaintiff here, the plaintiff is seeking that there be no surveillance of him during any part of the defence medical examination or during his arrival or departure from there.  In my view this is in the nature of being required to attend court, and it is my view that any such surveillance would be unseemly, and I therefore grant the order.
To my knowledge these reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

"What's This Lawsuit All About?" Examination For Discovery Caselaw Update

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


In my ongoing efforts to archive BC caselaw addressing examinations for discovery, reasons for judgement were released this week by the BC supreme Court, Prince George Registry, discussing the scope of permissible questions.
In this week’s case (Manojlovic v. Currie) the parties were involved in litigation with respect to a purchase and sale agreement relating to lakeshore property.   In the course of the lawsuit the Defendant was examined for discovery during which time he was asked to “tell me in your own words what this lawsuit is all about“.
The Defendant objected arguing this question was inappropriate.  Mr. Justice Tindale disagreed and concluded this question was fair game.  In doing so the Court provided the following reasons:

13] The tone of the examination for discovery was set by Mr. Hall, counsel for the defendants William Richard Currie and Patsy Arlene Currie, at the beginning of the examination.  Mr. Dungate asked the defendant William Richard Currie the following:

9 Q      One of the things I want to accomplish today, Dr. Currie, is I’d like to better understand this lawsuit from your perspective and your wife’s, so perhaps you can tell me in your own words what the lawsuit is about.

Mr. Hall:           Stop. That’s not the process, Mr. Dungate. You ask questions; he answers them.

10 Q    Mr. Dungate: This is my examination for discovery. I’m asking the questions. I just asked Dr. Currie to explain to me what the lawsuit is about. So, what’s the lawsuit about, Dr. Currie?

[14] The plaintiff wishes to ask questions relating to the pleadings in these proceedings. These types of questions were objected to during the examination for discovery. However, Mr. Wright, who was Mr. Hall’s agent for this application, is not opposed to these types of questions but rather argues that they should not relate to questions of law, or questions that had already been asked and answered at examination for discovery.

[15] In my view, the questions asked by Mr. Dungate relating to the pleadings were appropriate. I also agree with Mr. Wright that these types of questions should not relate to questions of law…

[21] An examination for discovery is similar to cross-examination at trial. The plaintiff, in this case, should have been given a wide latitude to explore the relevant issues in the time allotted by the Rules. The Plaintiff was not able to do this on many of the issues that he was trying to explore.

[22] I order that the defendant William Richard Currie shall attend and submit to a further examination for discovery which will have a maximum duration of four hours. This examination for discovery shall be set in consultation with counsel for the plaintiff and counsel for the defendant William Richard Currie.

[23] I order that the plaintiff will be at liberty to ask questions relating to the “pleadings” and the letter marked as “Exhibit 29” at the examination for discovery held on March 9, 2012.

Medical Record Relevance To Be Determined on Entry by Entry Basis

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.


Reasons for judgement were published last week by the BC Supreme Court, Vancouver Registry, finding that in the context of personal injury claims, the relevance of clinical records should be determined on an entry by entry basis.
In last week’s case (Hyvarinen v. Burdett) the Plaintiff claimed permanent physical disability as a result of a 2008 collision.  In the course of the litigation the Defendant requested various records the Plaintiff refused to produce.  A court application was brought resulting in mixed success with some of the withheld documents being ordered to be produced.  In adjudicating the matter Master MacNaughton provided the following sensible reasons addressing the vetting of irrelevent medical records:

[18] While I accept that when a document is produced by a party, it should generally be produced in its entirety, the exception is where a party is able to establish a good reason for a document not to be produced. In North American Trust Co. v. Mercer International Inc. (2000) 71 B.C.L.R. (3d) 73 (BCSC), Justice Lowry, then of this court, reiterated the general principle but said:

…But where what is clearly not relevant is by its nature such that there is good reason why it should not be disclosed, a litigant may be excused from having to make a disclosure that will in no way serve to resolve the issues. In controlling its process, the court will not permit one party to take unfair advantage or to create undue embarrassment by requiring another to disclose part of a document that could cause considerable harm but serve no legitimate purposes in resolving the issues. (para. 13)

[19] In this case, there are two reasons why the general rule about redacted documents should not apply. The first is because the documents sought in unredacted form are not, although generally listed as such, single documents. Rather, they are a series of records compiled over time from a number of interactions with the plaintiff. These records should not be approached globally as if they were a single document. Each entry requires a separate analysis as to whether it may prove or disprove a material fact or relate to a matter in a question in this action.

[20] Second, and importantly in this case, the court must be careful not to unnecessarily infringe on the plaintiff’s privacy interests. Recently, in Kaladjian v. Jose, 2012 BCSC 357, Justice Davies reiterated the importance of a plaintiff’s privacy interests in a personal injury action. He said:

Every individual’s health and the medical treatment of it is a personal and private matter that should not be lightly interfered with. In today’s world of medical specialization, disclosure of even the name of a medical professional consulted by an individual for reasons wholly unrelated to a defence plea of a prior existing condition is an unwarranted and unnecessary invasion of privacy. (para. 75)

Plaintiff Entitled to Reasonable Accomodation When Scheduling Defence Medical Exams

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized. 54 Comments on Plaintiff Entitled to Reasonable Accomodation When Scheduling Defence Medical Exams

While the BC Supreme Court Rules give defendants in personal injury lawsuits the power to, in appropriate circumstances, force a plaintiff to attend an ‘independent’ medical exam, a plaintiff is entitled to reasonable accommodation with respect to the scheduling of these.  Reasons for judgement were recently released by the BC Supreme Court, New Westminster Registry, demonstrating this point.
In the recent case (Welder v. Johnston) the plaintiff sustained injuries in a motor vehicle collision.  In the course of the lawsuit the Defendant sought to have the plaintiff examined by a vocational specialist to address the wage loss aspects of the plaintiff’s claim. The plaintiff agreed to be assessed by the Defendant’s expert but the date selected conflicted with a family reunion the plaintiff planned on attending.  The defendant brought an application to force the date but this was dismissed with the court finding a plaintiff is entitled to reasonable accommodation.  In dismissing the application the Court provided the following comments to defence counsel:

I’m not prepared to order the plaintiff to attend on a date when a family celebration and family reunion has been scheduled since January. I don’t think that being a plaintiff in an action you give up all rights to manage your own schedule, and I think it’s unfortunate that there was an error in your office and the information about his unavailability didn’t come to your attention sooner, but the reality is that based on the affidavit from Mr. Welder, he has a commitment that he’s made since January to be out and unavailable during the period in which this has been scheduled, and I am not prepared to make an order for him to attend in the middle of that period of the family reunion.
The reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

Defendant's Insured Status Shields Plaintiff From Hefty Costs Consequences

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 7, BCSC Civil Rule 9, Uncategorized.


As previously discussed, when a Plaintiff fails to beat a Defendant’s formal settlement offer at trial they can be exposed to significant costs consequences.  One factor that Courts can consider when using their discretion is the financial status of the parties including whether the Defendant is insured.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, using this factor in shielding a Plaintiff from potentially hefty costs consequences.
In this week’s case (Cunningham v. Bloomfield) the Plaintiff was injured in a collision.  She sued for damages and the claim proceeded to jury trial.  Prior to trial the Defendant provided a formal settlement offer of $12,500.  The jury awarded $5,000 in total damages triggering a Defence application for payment of post offer costs.  Mr. Justice Crawford rejected the application finding stripping the Plaintiff of all her costs was a more appropriate result.  In addressing the financial position of the parties the Court provided the following reasons:

[15] The award of the jury was low. But as noted in Cairns at para. 50, the unpredictability of a jury is a relevant consideration.

[16] It is said that the plaintiff is not lacking in income and no evidence as to her assets have been put forward to properly consider her position. But as discussed in several of the cases, the defendant through their insurer is able to cover their costs. The plaintiff on the other hand has a dependent husband and a reduced income, though that by choice.

[17] The other factor I consider appropriate is of course my assessment of the plaintiff’s case upon the issuing of the writ and I have found counsel’s assessment was over-optimistic and therefore the plaintiff is already deprived of costs.

[18] In the circumstances I will allow the plaintiff her disbursements throughout, but I will make no order as to costs payable to either side.