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Tag: Wood Atkinson v. Murphy

$50,000 Damage Advance Ordered As Term of Adjournment of Personal Injury Claim

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 13, ICBC Wrist Injury Cases, Uncategorized.


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the Court’s power to order a damage advance to a Plaintiff as a term of an adjournment order.
In last week’s case (Wood Atkinson v. Murphy) the Plaintiff suffered bilateral wrist fractures in a 2006 collision.  The Defendant admitted full fault for the crash.  The matter was set for trial but ultimately had to be adjourned due to difficulties in obtaining the Plaintiff’s employment records.  As a term of adjournment the Court ordered that the Defendant pay the Plaintiff a $50,000 advance.  In doing so Associate Chief Justice MacKenzie provided the following reasons:

[42] Serban v. Casselman (1995), 2 B.C.L.R. (3d) 316 (C.A.) confirmed the jurisdiction of this Court to order advance payments on damages under former Rule 1(12) (now Rule 13-1(19)) as a term of an adjournment of a trial. The advance must be just in all of the circumstances, and the judge making the order must be completely satisfied that there is no possibility the final assessment of damages would be less than the amount of the advance payments. There is no requirement that the cause of the adjournment be the fault of one party, see Serban, at paras. 9-11.

[43] Further guidance is found in the following excerpt from Master Barber’s decision in Tieu v. Jaeger et al., 2003 BCSC 906, at para. 17:

With liability not being in issue, the plaintiff should be put in funds at the earliest possible time. That is a reasonable thing for the plaintiff to ask for. The only thing that is stopping her from getting this money is not a determination of whether she is entitled to it, but as to how much. When it has been conceded that the sum of $20,000 is probably going to be less than or at least one-half of what the future amount she will obtain of $40,000 plus is, I can see no reason not to give her at least $20,000 at this time. To keep her out of pocket means that, especially when need is shown, as it has been in her affidavit, would be a refusal of justice.

[44] In this case, liability has been admitted, and it will be almost seven years from the date of the accident to the conclusion of the trial. The plaintiff is employed, but has problems with chronic pain in her wrists. Counsel are in agreement that an advance is justified in these circumstances.  The remaining issue is the amount that would be just in the circumstances, ensuring that it not be in excess of the potential award for damages at trial.

[45] In my view, an advance of $50,000 is appropriate in all the circumstances.

"Ill-Conceived" Dismissal Application Leads To Special Costs Award

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


Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, punishing a Defendant in a personal injury lawsuit with a special costs order for bringing an “ill-conceived” motion to dismiss the Plaintiff’s lawsuit.
In yesterday’s case (Wood Atkinson v. Murphy) the Plaintiff suffered a bilateral wrist injury in a 2006 collision.  She sued for damages and the Defendant admitted fault for the crash.  In the course of the lawsuit the Defendant requested employment records relating to the Plaintiff.   The Plaintiff made reasonable efforts to obtain these but the Plaintiff’s employer “mistakenly failed to provide counsel with the Plaintiff’s complete employment file“.  The Court found that this failure was due “to repeated errors or internal miscommunication on the part of (the employer)“.
The Defendant obtained two Court Orders addressing the production of the sought records.  The Defendant then brought an application seeking the dismissal of the Plaintiff’s lawsuit for “material non-disclosure”.  In support of the application to dismiss the Defendant’s lawyer “swore an affidavit erroneously describing the orders“.
Associate Chief Justice MacKenzie dismissed the Defendant’s application and went on to award special costs for the “excessive and draconian” application.  In doing so the Court was critical of the Defendant’s erroneous summary of the disclosure court orders.   Madam Justice MacKenzie provided the following reasons:

[29] I have concluded in the circumstances that it is appropriate to award special costs to the plaintiff for the dismissal application.  It is the mechanism by which the Court expresses its disapproval of two aspects of defendants’ counsel’s conduct. The first aspect is his carelessness in erroneously deposing to the contents of the two orders in question and relying on them to make a very serious application to punish the plaintiff.  This error was a self-serving lack of attention to detail.

[30] Court orders are important. They give effect to the Rule of Law. Counsel cannot simply rely on their notes or fail to be accurate, especially after becoming aware of the disagreement or reservation of the other counsel. Although an application to the court is required to obtain a transcript of submissions at a CPC or TMC, the clerk’s notes are readily available. Indeed, plaintiff’s counsel obtained them to clarify the nature of the orders in question and provided them to defendants’ counsel.

[31] Secondly, it is clear that defendants’ counsel knew well before the hearing that the dismissal application was ill-conceived and was on notice that his version of the court orders was in question.  Nonetheless, he persisted with the application.

[32] An order dismissing a plaintiff’s claim for material non-disclosure is a very serious matter; the consequences for the plaintiff and her counsel would have been severe. This type of application requires a solid foundation of misconduct on the part of the plaintiff, especially considering that the defendants had already admitted liability for her injuries.

[33] The fact the defendants may have become aware of the file and the correct nature of the orders after defendants’ counsel had sworn his September 14, 2011 affidavit (for his application to dismiss filed the next day) is of no moment because he became aware of these matters well before the start of the hearing on September 26, 2011.  He pursued the application in any event.

[34] It is no answer to say that outside counsel was required nonetheless in order to address inconsistencies in counsels’ version of Ms. Tsang’s statements as to whether she had provided the complete file. Those hearsay issues are quite minor in the circumstances of all CBSA’s errors or miscommunications. Plaintiff’s counsel was put to a clearly unnecessary expense in the requirement to retain outside counsel to speak to plaintiff’s counsel’s affidavit. The application to dismiss the claim was misconceived and heavy handed.

[35] I have concluded it is appropriate to award the plaintiff special costs for the defendants’ application to dismiss her claim. The Court heard that application on the afternoon of September 26, 2011, the first of the three-day hearing. It is that day for which plaintiff’s counsel was obliged to retain outside counsel to speak to the affidavit that, amongst other things, corrected the errors in the defendants’ counsel’s version of the two orders.