In the recent case of Rangi v. Lloyd’s Underwriters, 2012 BCSC 354, Christine Stewart successfully defended the appeal of a Master’s decision dismissing the plaintiff’s claim for want of prosecution (Rangi v. Lloyd’s Underwriters, 2011 BCSC 1150). In both instances the court agreed with the defendant that the balance of justice favoured a dismissal of the action in face of the plaintiff’s inexcusable delay of almost 10 years, particularly in light of the fact that a material witness had died during that delay.

The decision provides a thorough summary of the case law that establishes the four part test for want of prosecution applications. The test comes essentially from two BC Court of Appeal decisions, Irving v. Irving, [1982] B.C.J. No. 970 and Busse v. Robinson Morelli Chertkow, 1999 BCCA 313, but can be summed up in these few points:

(1) has there been an inordinate delay;

(2) if so, was the inordinate delay excusable;

(3) did the inordinate delay cause, or is it likely to cause serious prejudice to the applicant; and

(4) do the interests of justice demand that the action be dismissed.

Having found the delay both inordinate and inexcusable, the case law confirms that prejudice to the defendant can be presumed. In addition, there was evidence of actual prejudice with the death of a material witness since the date of loss and evidence of the plaintiff’s own memory loss. In concluding that there was a substantial risk that a fair trial was no longer possible as a direct result of the plaintiff’s delay, the court held that the balance of interests of justice favoured a dismissal of the plaintiff’s action.

In addition to appealing the Master’s decision, the plaintiff sought to have fresh evidence adduced on the appeal. That application was similarly dismissed. The bulk of the fresh evidence was directed at blaming the plaintiff’s previous counsel for failing to carry out his instructions to prosecute the action and blaming the defendants for delay. The court held that not only did the plaintiff fail to show that the “fresh evidence” was unavailable at the time of the original hearing, but the fresh evidence would not have affected the outcome of the application in any event. Accordingly, the interests of justice did not favour the admission of the proposed fresh evidence.

Read complete case file.

Christine Stewart
Associate Lawyer in Insurance Law and Litigation
LK Law – Vancouver Office

To read the full article.

Richard Lindsay, QC
Partner Lawyer in Insurance Law and Litigation
Lindsay Kenney LLP – Vancouver Office

Max Hufton
Associate Lawyer in Insurance Law and Litigation
Lindsay Kenney LLP - Vancouver Office

The Honourable Mr. Justice Pearlman held that the motor vehicle accident was a significant factor contributing to the disc injury and the severe and disabling low back pain, but reduced the entirety of the awarded damages by 40% to reflect the measurable risk that the pre-existing degenerative changes would have detrimentally affected the Plaintiff in the future. The Honourable Mr. Justice Pearlman noted at para. 123 that:

In Athey at para. 35, the Supreme Court of Canada held that “if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award.” The Court explained that this is consistent with the general rule that the plaintiff must be returned to his original position, with all of its risks, rather than to a better position.

[124] In T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670 at para. 48, the Honourable Mr. Justice Smith, writing for the Court, stated:

[48] … Whether manifest or not, a weakness inherent in the plaintiff that might realistically cause or contribute to the loss claimed regardless of the tort is relevant to the assessment of damages. It is a contingency that should be accounted for in the award. Moreover, such a contingency does not have to be proven to a certainty. Rather, it should be given weight according to its relative likelihood.

The standard of proof in a civil matter remains the balance of probability test. However, addressing past hypothetical events is not assessed on a balance of probability but rather on the basis of simple probability, which is the same manner as future events, such as loss of earning capacity. Possibilities, probabilities, chances, opportunities, and risks must be considered (Rosvold v. Dunlop, 2001 BCCA 1 at para. 9) so long as they are real and substantial possibilities and not mere speculation, at which time they are given weight according to their relative likelihood or percentage chance that they would have happened (or will happen) (Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 27).

 To read complete case file.

Jan Lindsay, QC
Partner Lawyer in Insurance Law and Litigation
Lindsay Kenney – Langley Office

Daniel Jeffrey
Partner Lawyer in Insurance Law and Litigation
Lindsay Kenney – Langley Office

Personal Injury Lawyers - Langley Office

Our Langley personal injury team has many years of experience and success acting for individuals who have suffered injuries in a diverse range of adverse circumstances. Jan Lindsay, Kieron Grady, Daniel Jeffrey, Travis Brine and Perminder Tung are the core of our team representing Langley clients:

• involved in car accidents
• suffering from brain injuries, spinal cord injuries, whiplash and ligament damage
• with chronic pain disorders like fibromyalgia
• with both physical and psychological trauma

Lindsay Kenney offers an initial free consultation with a Langley personal injury lawyer. You won’t pay until your case settles or we win a judgement for you.

Jan Lindsay,QC
Partner Lawyer

Kieron Grady
Partner Lawyer

Daniel Jeffrey
Associate Lawyer

Travis Brine
Associate Lawyer

Perminder Tung
Associate Lawyer

Personal Injury and Motor Vehicle Accident Litigation
Lindsay Kenney – Langley Office

Personal Injury Team - Vancouver Office

Our Vancouver team of personal injury lawyers have over 50 years of combined experience successfully representing Lower Mainland clients from all walks of life. Timothy Delaney,  Jamie Gopaulsingh and Christopher Martin lead our Vancouver personal injury team. Along with paralegals Trudy Fetzko and Alina Chen, the personal injury team has represented clients at all levels within the justice system.

We have experience with a diverse range of personal injuries including:

• wrongful death
• head injuries
• spinal cord injuries
• chronic pain
• fibromyalgia
• psychological injuries
• brain injuries

We offer an initial free consultation with a personal injury lawyer in our Vancouver office. You won’t pay until your case settles or we win a judgement for you.

Timothy Delaney
Partner Lawyer

Jamie Gopaulsingh
Associate Lawyer

Christopher Martin
Associate Lawyer

Personal Injury and Motor Vehicle Accident Litigation
LK Law – Vancouver Office

“At its highest, the evidence simply suggests that the disc bulge and annular tear may have been caused by the accident. However, it has been three years since the accident and Ms. Connolly’s symptoms do not appear to have a neurological cause. Even if the disc bulge was caused by the accident, it does not appear that the symptoms were caused by a bulge. In these circumstances, I find that Ms. Connolly has not proved on a balance of probabilities that the disc protrusion and annular tear were caused by the accident.”

The civil standard of proof in a personal injury action in British Columbia is a balance of probabilities. The medical evidence would need to establish that the disc injury was “more likely than not” caused by the accident. The medical opinions in this case merely established that the injury “may” have been causally connected.

Read complete case file.

Perminder Tung
Associate Lawyer in Personal Injury & Motor Vehicle Accident Litigation
LK Law – Langley Office

Introduction

This paper will provide an overview of the Supreme Court Decision of Juman v. Doucette, 2008 SCC 8 and assist the reader in consideration of the effect of Juman and subsequent case law on the multi-claim litigant.

This paper will look to facilitate discussion on the following topics:

• What to do when you discover that a plaintiff has prior claims and prior files;
• Steps to take where prior discovery on similar claims has been conducted; and
• What to do if an insurance client provides you with medical documents obtained through discovery measures in a separate action with similar issues and similar parties.

The Implied Undertaking Rule

In Hunt v. T&N plc (1995), 4 B.C.L.R. (3d) 110 (C.A.), the court confirmed that the law implies an undertaking on all parties in a civil litigation to use material obtained within the process of discovery strictly for the purposes of the court case in hand and for no other purposes. The undertaking is intended to preserve confidentiality with regard to evidence produced during the pre-trial process. The implied undertaking applies to examinations for discovery, as well as to document discovery: Towriss v. Westminster Savings and Credit Union, 2005 BCSC 695.

The root of the implied undertaking rule is embedded in the statutory compulsion on a party to participate fully in the discovery by answering any and all questions posed, within his or her knowledge or means of knowledge regarding any matter, not privileged, and relating to a matter in question in the action. See Rules of Court 7-2(1), (4) and (18).

The Case: Juman v. Doucette

The Background

In Juman the Supreme Court of Canada re-affirmed the existence, justification and scope of the “implied undertaking rule” within civil proceedings. The principle issue before the Court was the scope of the “implied undertaking rule” and the limitations on the use of evidence compelled during pre-trial discovery from a party. The issue arose in the context of alleged child abuse where a 16 month old child acquired a brain injury while in the care of a child care worker. A civil action for personal injury was commenced against the child care worker and a number of other parties on behalf of the child. A criminal investigation was commenced and was ongoing at the time of the appeal.

The care worker brought an application to prohibit the parties to the civil proceedings from providing the transcripts of discovery, which had yet to be conducted, to the police. She also sought to prevent the police or the Attorney General of British Columbia from obtaining copies of the transcripts without further court order. In her application the care worker relied upon the parties’ “implied undertaking” to the court not to use documents or responses obtained through the discovery procedure for any purpose other than securing justice in the civil proceedings in which responses are compelled, whether or not such answers were confidential or incriminatory in nature. The Attorney General of British Columbia rejected the existence of an “implied undertaking rule” within the jurisdiction of British Columbia. Alternatively, they argued that if such a rule exists, it did not extend to admissions of criminal activity. In the further alternative, they submitted that an “implied undertaking” does not prohibit authorities, who are not party to it, from obtaining discovery of documents by way of a search order.

The Ruling

The Supreme Court re-affirmed the existence and scope of the rule, stating at para.4:

[B]oth documentary and oral information obtained on discovery, including information thought by one or more parties to disclose criminal activity, is subject to the implied undertaking. It is not to be used by the other parties except for purposes within that litigation, unless and until the scope of the undertaking is varied by court order or a situation of immediate and serious danger emerges.

Justice Binnie, writing for the Court, remarked that unless a statutory exemption overrides the implied undertaking, the onus is on the person applying for the exemption to demonstrate on a balance of probabilities the existence of a public interest of greater weight than the values the implied undertaking is designed to protect, namely privacy, protection against self-incrimination, and the efficient conduct of civil litigation. The factors that may be taken into account include public safety concerns or contradictory testimony by the examinee about the same matters in different proceedings: See Fraser City Motors Ltd. v. Moore, 2010 BCSC 146 at para. 85.

Justice Binnie found that the values the implied undertaking is designed to protect were not outweighed by a greater public interest. Justice Binnie stated at para. 6: “[d]iscoveries (both oral and documentary) are likely to run more smoothly if none of the disputants are in a position to go without a court order to the police, or regulators or other authorities with their suspicions of wrongdoing, or to use the material obtained for any other purpose collateral or ulterior to the action in which the discovery is obtained.”

In the decision Justice Binnie remarked at paragraph 3:

[T]he rationale of the implied undertaking rule rests on the statutory compulsion that requires a party to make documentary and oral discovery regardless of privacy concerns and whether or not it tends to self-incriminate. The more serious the criminality, the greater would be the reluctance of a party to make disclosure fully and candidly, and the greater is the need for broad protection to facilitate his or her cooperation in civil litigation.

Since Juman a number of litigants have argued that the Supreme Court’s decision changed the law with regard to disclosure. The arguments advanced are that the ruling changes the requirements of disclosure provided in the Rules of Court (former Rule 26 & 27; current Rule 7-1 & 7-2), namely that not all relevant documents that are or have been in the party’s possession or control that may be used to prove or disprove a material fact need to be produced. It has been argued that discovery material provided in one action is insulated against production in another. Subsequent decisions within British Columbia recognize the rationale applied in Juman is warranted in situations where it is prudent to give effect to the public policy concern that a party who has been compelled to testify for the purpose of a civil action should be afforded a measure of protection for that testimony: See Joubarne v. Sandes, 2009 BCSC 1413. However, the rule is not absolute and courts have recognized exceptions, specifically in cases involving multi-claim litigants.

The Fallout: How The Courts Have Interpreted Juman

Prior to the release of Juman, case law provided some guidance as to when the court may exercise its discretion to grant leave for disclosure of evidence obtained through the discovery process obtained at an earlier point in time. For example, where discovery material in one action is sought to be used in another with the same or similar issues and the same or similar parties, leave would generally be granted as the prejudice to the examinee is deemed miniscule (See Lac Minerals Ltd. v. New Cinch Uranium Ltd. (1985), 50 O.R. (2d) 260 (H.C.J.), at pp. 265-266; Abernathy v. Ross (1985), 65 B.C.L.R. 142 (C.A.); and Scuzzy Creek Hydro & Power Inc. v. Tercon Contractors Ltd. (1998), 27 C.P.C. (4th) 252 (B.C.S.C.).

However, the courts have generally denied applications brought in circumstances where the applicant pursues discovery evidence obtained in one action for the purposes of using it in another wholly unrelated action, absent a compelling public interest. See Lubrizol Corp. v. Imperial Oil Ltd. (1990), 33 C.P.R. (3d) 49 (F.C.T.D.), at p. 51.

Following Juman, an Alberta court was faced with a multi-claim litigant who had commenced two separate actions arising from two motor vehicle accidents, the first occurring in 1999 and the second in 2004: Jomha v. McAllister et al 2008 ABQB 597. Defence counsel asked the court to relieve them of the implied undertaking attached to the plaintiff’s discovery evidence provided in the second action and order that a schedule of all records be produced by the parties in that action. The plaintiff objected on the basis that the defendant failed to provide evidence of inconsistent testimony in the two separate actions, which he stated was a necessary pre-condition of production of the transcript and records from the 2004 action.

The plaintiff claimed injury to the head, jaw, neck, shoulder and entire spine along with a loss of income and earning capacity as a result of the 1999 accident. In the statement of defence it was alleged that the plaintiff’s injuries were not caused by the accident and, among other allegations, were caused by the subsequent 2004 motor vehicle accident. In relation to the second accident the plaintiff plead “injury, re-injury, exacerbations or aggravations of prior injury, to the back” and “injury to spine”.

Relevancy of the transcripts was not disputed by the plaintiff, their submissions to deny the production of discovery material was based on remarks made by Justice Binnie in Juman at para. 41:

Another situation where the deponent’s privacy interest will yield to a higher public interest is where the deponent has given contradictory testimony about the same matters in successive or different proceedings. If the contradiction is discovered, the implied undertaking rule would afford no shield to its use for purposes of impeachment.

Counsel for the defendant distinguished Juman on its facts, arguing that the objective of the non-party Attorney General was to obtain evidence that may have been self-incriminating to assist their criminal investigation. As noted by Justice Binnie at para. 58, that objective was to “sidestep the appellant’s silence in the face of police investigation of her conduct. The authorities should not be able to obtain indirectly a transcript which they are unable to obtain directly through a search warrant in the ordinary way…”

Counsel for the defendant denied any ulterior motive and submitted that their position was supported by circumstance contemplated by Justice Binnie in para. 35 of Juman:

The case law provides some guidance to the exercise of the court’s discretion. For example, where discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the examinee is virtually non-existent and leave will generally be granted.

The court in Jomha ruled that in situations where the parties in two proceedings are the same or similar and the issues are the same or similar, the applicant requesting relief from the implied undertaking does not need to show inconsistent testimony occurred in another proceeding in order to be successful. The interests of justice outweighed any privacy interest held by the plaintiff to the discovery material sought to be protected and the material was ordered to be produced.

In the British Columbia Supreme Court decision of Beazley v. Suzuki Motor Corporation, 2008 BCSC 850 Justice Goepel addressed the issue of disclosure in subsequent proceedings involving similar parties with similar issues. The plaintiffs in the action sought transcripts from depositions of other litigants who had similar claims against a manufacturer for the defective design of a motor vehicle.

In ordering disclosure of the transcripts, Justice Goepel held:

[27] The recent Supreme Court of Canada decision in Juman does not assist the GM Defendants. In Juman, a stranger to the action sought production of discovery transcripts. That is not the case here. The Court noted at para. 35 that when discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, leave will generally be granted. In support of that proposition, it cited both Miller (Ed) Sales & Rentals Ltd. and Scuzzy Creek.

[28] The plaintiffs acknowledge that Mr. King has certain transcripts. Mr. King is however bound by confidentiality orders and cannot release the transcripts to the plaintiffs absent the consent of the GM Defendants. The GM Defendants have refused to consent.

[29] This application does not turn on undertakings or confidentiality orders. Rule 26(1) requires the GM Defendants to produce all relevant documents in their possession or control. The transcripts are in their possession or control. There is no onus on the plaintiffs to prove that the transcripts are relevant to the present proceedings. It is sufficient that the depositions were taken in actions closely resembling the present case and there exists a possibility of relevance with respect to the depositions. Transcripts of what representatives of the GM Defendants said on prior occasions may lead to a train of enquiry which could advance the plaintiffs’ case or damage that of the GM Defendants. The transcripts are relevant documents and, subject to the submissions concerning Rule 26(1.2), must be produced.

More recently, in Joubarne v. Sandes 2009 BCSC 1413, the court held that a psychiatric report prepared in a prior wrongful dismissal action against her employer was produceable in a subsequent motor vehicle accident, with a temporal proximity. A transcript of the examination for discovery of the plaintiff in the prior action was also ordered to be produced. The relevancy was apparent as both actions encompassed issues with regard to the plaintiff’s physiological and psychological well being.

Juman was not a bar to disclosure. In ordering disclosure Justice Williams held:

[20] The facts in Juman, which led the court to prohibit production of the examination for discovery transcript, were materially and significantly different than those at bar. There, a stranger to the litigation, a police investigator, sought disclosure of the evidence. That evidence had never been aired in court.

[22] The decision of the court in significant measure gives effect to the public policy concern that a party who has been compelled to testify for the purpose of a civil action should be afforded a measure of protection for that testimony.

[23] However, the rule is not absolute and without exception. In para. 35, Binnie J. said this concerning the court’s discretion to relieve against the rule:

The case law provides some guidance to the exercise of the court’s discretion. For example, where discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the examinee is virtually non-existent and leave will generally be granted.

[24] To my mind, it is clear that disclosure will not be categorically barred or precluded in such situations. I find the present case to fall into that category.

A Multi-Litigant Claimant is Uncovered: Now What?

In General

The first question to ask is: are the issues in the action to which discovery from an examination is sought similar to the action in which that discovery evidence is intended to be used? Second: are the parties involved in the two actions the same or similar? If the answers to these questions are “yes”, one may assume that discovery material provided by an examinee in a separate action may be used to prove or disprove a material fact in the instant case and therefore is required to be listed pursuant to Rule 7-1 and produced before trial. On at least two occasions costs have been levied against parties who have refused to consent to the use of relevant discovery material obtained in a separate action where both the issues and parties involved were similar (See Beazley; Joubarne).

The meaning and scope of the “implied undertaking rule” shall be determined on precedent, policy, and the facts specific to each case. The overriding concern of the courts shall be fairness and balancing the interests between the examinee and the public. However, in circumstances involving multi-claim litigants the civil law accepts the rationale that where discovery material in one action is sought to be used in another with the same or similar issues and the same or similar parties, the public interest in getting at the truth in a civil action strongly outweighs the examinee’s privacy interest.

When a party bound by the undertaking to the proceeding wishes to disclose discovery evidence, but the examinee does not consent, the party wishing to disclose may apply to the court for leave to use the information or documents otherwise than in the action, as described in Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51 at para 77:

Before using information, however, the party in question will have to apply for leave, specifying the purposes of using the information and the reasons why it is justified, and both sides will have to be heard on application.

In such an application the court would have access to the documents or transcripts at issue and assess the severity of the harm to the parties involved if the rule of confidentiality were to be suspended, as well as the benefits of doing so. In cases where the harm suffered by the party who disclosed the information seems insignificant, and the benefit to the opposing party seems considerable, the court is justified in granting leave to use the information.

In Practice

In Balderston v. Aspin, 2011 BCSC 730, the plaintiff claimed to have suffered injuries as a result of a motor vehicle accident that occurred in 2008. The defence alleged that this accident was of low velocity and that the plaintiff was suffering from a number of health related issues including symptoms suffered as a result of a 2001 motor vehicle accident. Counsel for the defendant applied to the court seeking, among others, the following relief:

1. The plaintiff produce and deliver to the defendant, a list of documents listing all records that are or have been in her power or control relating to her 2001 motor vehicle accident; and
2. An authorization permitting the Insurance Corporation of British Columbia to search their files, then list and produce those records relating to the plaintiff’s 2001 motor vehicle accident in accordance with Rule 7-1(1)

Prior to the application the solicitor for the defendant failed to provide a written request for a list of documents relating to the 2001 accident and in addition, failed to issue a demand for additional documents pursuant to Rule 7-1(11). With regard to the latter, the court remarked that such an oversight was particularly discouraged and warned that parties who ignore the processes under the Rules risk the application being adjourned or even dismissed: Sutherland v. Banman, 2008 BCSC 1194.

Nonetheless, finding that the issues and parties were similar between the two actions, the court ordered the transcripts and pleadings from the earlier accident produced. Plaintiff counsel acknowledged that she was in possession of such records and had expressed her willingness to produce such records, however, she resisted the production of all information relating to a mediation session. The court found the resistance to be justified as such information was not binding and therefore irrelevant.

With regard to the defendant’s application for authorizations, the court re-affirmed that records and/or documents that are related to the 2001 action in the possession of ICBC are subject to an implied undertaking and are not to be used in a separate action unless all parties consent to the use or the court permits the disclosure: Juman.

Ultimately, the court found that the defendant was requesting authorization from the plaintiff to search the ICBC files with the purpose of seeking what may be there to discover. Characterized as a classic example of the “prohibited fishing expedition” the court dismissed the defendant’s application.

Providing further direction on the subject the court described the predicament of the defence by reproducing the remarks of Justice Voith in Chonn v. DCFS Canada Corp. 2009 BCSC 1474 at paras. 25 and 26:

A party who has documents from earlier litigation that are impressed with the implied undertaking simply cannot make use of those documents without the concurrence of the party from whom they were obtained or leave of the court. The implied undertaking protects documents or oral discovery obtained in earlier litigation from being used for any purpose “collateral” to the litigation. Thus, the documents cannot be used for internal strategic review in subsequent litigation. They cannot be used for the purposes of drafting pleadings. They cannot be sent to counsel for the purposes of obtaining an opinion in new litigation…

In most cases where ICBC or its counsel is aware, through the pleadings or their direct involvement in earlier litigation, of relevant documents or other pretrial discovery from that litigation, they need only contact plaintiff’s counsel to obtain his or her concurrence to the use of the materials in question.

On a similar vein, there is orbiter from the Supreme Court of British Columbia that counsel for the defence does not require his or her obligations under an implied undertaking to be relieved when he is and was counsel of record on subsequent actions commenced by the same plaintiff. Pointedly, the court states in Cochrance v. Heir, 2011 BCSC 477, that in this scenario the plaintiff has an independent obligation to list and produce the records, including transcripts of the examinations for discovery conducted in previous actions, further to obligations under Rule 7-1(1)(a)(i).

Nonetheless, the court, on the authority of Juman, did relieve the solicitor for the defendant of the implied undertaking but stated the following at para. 5:

The plaintiff cannot shield herself from her obligation to list and produce relevant documents by invoking the implied undertaking against opposing counsel who came into possession of those documents in [a] previous litigation.

Within the realm of personal injury law, the implied undertaking rule, with regard to confidentiality for documents originating in a previous action involving the same plaintiff, appears clear. When it becomes apparent that the litigant has been previously discovered in a separate action involving similar issues counsel for the defence will likely become inclined to request a transcript of the discovery and any corresponding relevant document production resulting therefrom. Counsel is probably also interested in production of the medical reports and records. However, at times, there are scenarios within the personal injury practice where aspects of the rule are not as clear as one may wish. We have provided a few scenarios below to facilitate a discussion on the process that should be followed to obtain discovery, the benefits of doing so and the possible pitfalls in bringing on the application.

Scenario 1:

Upon being retained by an insurance corporation to defend a personal injury claim you are provided with file materials. Within are numerous documents pertaining to issues of liability, medical treatment, and wage loss. In addition are numerous medical records and expert opinion reports that relate to a separate action commenced as a result of a personal injury claim that alleges similar damages. What is your obligation in respect of the documents that were obtained in the separate actions?

Scenario 2:

Opposing counsel on a prior file, now settled, filed a Trial Brief in a Rule 15-1 case asking for $200,000 in damages and listing two experts she proposed to rely on at trial. The Plaintiff’s injuries were soft-tissue in nature. When you asked the court at the trial conference for a continued examination for discovery, the plaintiff’s counsel opposed it.

Rule 15-1 has a nominal jurisdiction of $100,000, which, while not binding on the Court, should apply in some fashion to counsel who file within the ambit of that rule.
You now have another file with the same claimant and counsel in which the plaintiff is alleging a head injury. You have written to counsel, twice, asking that she confirm in writing that the plaintiff will not be seeking in excess of $100,000 at the trial of this matter. No response.

You wish to file an affidavit exhibiting the filed trial brief from the earlier action in support of an application to have the matter removed from Rule 15-1. You wish to use it to show the Court that, in your view, plaintiff counsel is inappropriately using Rule 15-1 on cases that do not meet its criteria in order to limit your discovery procedures.

Scenario 3:

To what extent does the duty of implied confidentiality (litigation privilege) extend to other documents produced, and can they be distributed to experts?

Scenario 4:

In an application for production of further clinical records and work records, do you separate the applications and affidavits to nominally protect the Plaintiff’s right to confidentiality? What if you need to show the clinical and medical complaints to justify the request for the employment file. What if the employer has concerns about the employment of the Plaintiff, in light of the stated complaints/medical issues?

Note: This article was originally prepared for the CLEBC course, Defending Personal Injury 2012, held in Vancouver, BC, on February 24, 2012.

Matthew Howard
Insurance Law and Litigation
LK Law – Vancouver Office

In a recent decision by Master Keighley (Tong v. Lanser et al., BCSC Action No. M95149, New Westminster, January 4, 2012) the defendant, represented by the writer, successfully applied to remove a matter from Rule 15-1, the “Fast Track” Rule, even though the claim of the plaintiff was for $100,000.00.

The Fast Track Rule

Rule 15-1 “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.”

The rule is not permissive. That is, if any of the foregoing elements applies, then the matter ought to be “Fast Tracked” unless “the court, on its own motion or on the application of any party, so orders”.

The Fast Track Rule is designed to impose on litigants some economies with respect to litigation where the matters at issue do not justify the relatively large expenditure that goes on in more complex cases. For example, the trial of a Fast Track matter cannot be heard by a jury. Subject to court order or consent, Examinations for Discovery are more limited and applications cannot be brought without a Case Planning Conference first being conducted, presumably so as to impose some case management on the matter.

Further, there are significant limits to the costs that a successful litigant can expect to receive at the end of the day (see Rule 15-1(15)).

All of this is consistent with the object of the Supreme Court Civil Rules which is “to secure the just, speedy and inexpensive determination of every proceeding on its merits.” “Proportionality” is the order of the day.

The Case at Bar

In Tong v. Lanser, the matter arose from a motor vehicle accident on November 3, 2003. The action was commenced almost two years later, and between then and November 22, 2011, when the plaintiff filed a Notice of Fast Track Action, triggering the application of the Fast Track Rule, there had been:

…seven pre-trial conferences, three applications to court, and the trial has been rescheduled twice at the request of the plaintiff.

Shortly after the Notice of Trial had been delivered in September 2007, the defendant filed and served a Jury Notice, requiring the trial of the matter to be by jury.

Importantly, the plaintiff filed the Notice of Fast Track only two months prior to a 10-day jury trial scheduled for January, 2012. By that time, almost all pre-trial steps had been taken in the proceeding with costs awarded to the defendant on two occasions.

The practical effect of the Notice of Fast Track was not to “streamline” the proceeding, as most of the proceeding was over, but to deny the defendant a jury and dramatically limit the defendant’s costs should she have been successful. As such, the defendant applied to remove the matter from Fast Track.

The plaintiff submitted that he had instructed his counsel to limit the claim to $100,000. That would bring the matter within the ambit of the Rule, but a court is still at liberty to award damages in excess of the $100,000 limit. In a sense, a plaintiff’s self-imposed limitation of a claim to $100,000 is of little practical moment in a matter involving a “non-liquidated” claim for personal injury.

Master Keighley, though, after considering the purpose of the Fast Track Rule and its aim at the “early resolution of simpler claims” held that “Considerations of proportionality have less application to the facts upon which this application is based than otherwise might be the case…The opportunity for cost savings with respect to pre-trial procedures has been lost.” Master Keighley was particularly concerned that the defendant would be denied costs under the Rule despite having been awarded costs in any event of the cause on two previous occasions.

In light of that, Master Keighley granted the application, with costs to the defendant, and removed the matter from Fast Track.

The Fast Track Rule is still relatively new. This decision is significant in that it provides further guidance as to the application of Rule 15-1 and when litigants might expect the Court to remove matters from that Rule.

Scott Urquhart
Associate Lawyer in Insurance Law and Litigation
LK Law – Vancouver Office

Lindsay Kenney Partner lawyer, Brad Martyniuk, presented a training session at the recent Certified Fraud Examiners Association in Vancouver, BC on Nov. 23, 2011.

This session provided an overview of recent caselaw in the regulatory law and criminal law fields regarding the commission of securities fraud and the penalties imposed in those cases.

View presentation.

Brad Martyniuk
Partner Lawyer in Fraud Law and Litigation
Lindsay Kenney – Vancouver Office

In B.C., individuals who have been injured in hit-and-run accidents can make a claim to ICBC for compensation if they comply with the statutory requirements under section 24 of the Insurance (Vehicle) Act.

S.24 requires a claimant to make “all reasonable efforts” to ascertain the identity of the motorist who caused the accident and the decisions are determined based on the facts of the case. ICBC is named as the nominal Defendant in actions commenced under this section of the Act. The following are two recent cases where the court has come to different conclusion when applying the “all reasonable efforts” test.

In Morris v. Doe, 2011 BCSC 253, the Plaintiff was a passenger in a vehicle driven by her husband. The accident occurred at a busy intersection. They were stopped at a red light when they were rear-ended. The Plaintiff felt she was injured immediately. Her husband exited the vehicle and motioned to the motorist behind to pull over at a nearby parking lot. The motorist nodded but left the scene without following the Plaintiff’s vehicle. The Plaintiff reported to the police and ICBC but did nothing further to ascertain the identity of the unknown driver.

At trial, Madam Justice Ker found that the Plaintiff had failed to take all reasonable steps in the days and weeks after the accident to attempt to ascertain the identity of the unknown driver, such as canvassing the businesses near the accident scene, posting signs, or advertising in the local newspaper for witnesses. The Court rejected the argument that such effort would have been futile. The Plaintiff’s claim was dismissed and costs were awarded to ICBC.

In Nicholls v. ICBC, 2011 BCSC 422, the Plaintiff lost control of his motorcycle when he came upon a diesel spill on the highway and crashed his motorcycle. The accident occurred in an isolated area in B.C. ICBC’s summary trial application was dismissed by the trial judge. The Court of Appeal upheld the trial judge’s decision. The Court of Appeal confirmed that the test remains that of “reasonableness in the circumstances”. Given the lack of temporal link between the time of the spill and the accident, the rural location, and the Plaintiff’s serious injuries, the trial judge did not err in finding in favour of the Plaintiff, although, as in the Morris case, Mr. Nicholls only reported the accident to the police and ICBC. Morris v. ICBC was distinguished by by the Court of Appeal in Nicholls.

The above cases illustrate that the Court will decide if the Plaintiff has met the “reasonable efforts” test by considering the factual background on which the accident occurred. Those who are unfortunately involved in hit-and-run accidents in well populated areas of B.C. should take as many steps as reasonable to locate the indentified motorist.

Tiffany Tsang
Associate Lawyer in Insurance Law and Litigation
LK Law – Vancouver Office