This site contains some jurisprudence regarding the Supreme Court Civil Rules. If you come across relevant oral or unpublished reasons for judgment relating to the new rules, please email them to [email protected].
Szeto v. Dwyer, 2010 NLCA 36
Newfoundland Supreme Court Rules - proportionality
Although the Newfoundland Supreme Court Rules do not specifically address proportionality, the Chief Justice of Newfoundland and Labrador, who wrote the decision, confirmed that applying the rules, particularly those involving discretion, includes the "application of an underlying principle of proportionality which means taking into account of the appropriateness of the procedure, its cost and impact on the litigation, and its timeliness, given the nature and complexity of the litigation".
This case involved a personal injury action that ran off the rails early in the litigation because of inappropriate choices made by both sides about the particular steps to take in the action. Chief Justice Green's Reasons for Judgment are a must-read for all personal injury lawyers and claims staff. At paragraph 54 he describes proportionality in a manner that applies with equal force in British Columbia and, it is suggested, can be cited as authority in applications and case planning conferences. For example, he states:
The principle of proportionality applies to the parties as well as the court exercising a discretion under the rules. A party invoking a rule, taking a position or making an application that is ultimately determined to be not in accordance with the proportionality principle should anticipate that there may be adverse costs consequences.
Kim v. Lin, 2010 BCSC 1386
Rules 1-3 and 7-6 - proportionality - medical examination
Proportionality does not militate against a third defence medical examination when, if it can be established that the plaintiff's current symptoms were caused by the accident, the "amount involved" in her claim could be quite significant, a relevant consideration under Rule 1-3(2)(a).
Roumanis v. Liebenberg, 2011 BCSC 278, Smith J.
Purpose of Rule 5-1 - want of prosecution
[18] Under our new Rules of Court, the timing of the steps in an action is no longer left entirely to the parties. Rule 5-1 was introduced for the express purpose of permitting the court to take a more direct role in directing an action and ensuring it proceeds expeditiously. The court may do so on the application of either party or on its own motion. The power of the court on a case planning conference includes the power to set a schedule for completion of the pretrial procedures and for bringing the case to trial. The law under these new rules will take some time to develop, but in future applications to dismiss a case for want of prosecution it will at least be arguable that the question of whether or not case planning conferences have been held and whether orders from the case planning conferences are complied with will be a relevant consideration. Indeed, it may give defendants a faster and more expeditious means of having a case dismissed for want of prosecution.
Parti v. Pokorny, 2011 BCSC 955, Verhoeven J.
Rule 5-2(7) – Transcript of CPC – compelling grounds for order
Verhoeven J. held that the prohibition against ordering transcripts supports the objective of Rule 5-2(7) which is to encourage full and candid discussion at case planning conferences. There must be compelling grounds for the exercise of the court’s discretion to order that a transcript be made available to a party. Seeking the transcript for educational or precedential purposes is not sufficient.
Przybysz v. Crowe, 2011 BCSC 731, Associate Judge Bouck
Rule 5-2(7) - Transcript of CPC – no precedential value
[59] In her Response, the plaintiff makes reference to excerpts from transcripts of case planning conferences held in unrelated actions. Such excerpts have no precedential value. Case planning is a procedural mechanism under the SCCR. Orders made by the court in that process can only be based on representations made by the parties, or perhaps issues raised in the pleadings. Applications by way of affidavit are strictly prohibited at case planning conferences. Accordingly, there is no means by which the court could determine the applicability of a “ruling” to the case at bar. Furthermore, in my respectful view, case planning conferences are intended to be for the benefit of the parties only. Such conferences are most productive when there is frank and uninhibited discussion between the parties, counsel and the presider. Knowing that comments or representations made by counsel (let alone remarks from the presider) will become fodder in unrelated actions may well stifle that kind of discussion.
Shen v. Klassen, 2011 BCSC 234, Beames J.
Beames J. heard an appeal from a master who refused to allow the defendant to obtain a transcript of the case planning conference. She recognized that there were competing interests at play: the “open court principle” versus the need to maintain confidentiality over "without prejudice" or other sensitive discussions. However, because the plaintiff took no position on the appeal, she declined ICBC’s invitation to articulate general guidelines on the issue of how the discretion to order transcripts should be exercised. She allowed the appeal on the narrow issue that there was no compelling reason for the court to refuse to order the transcript where one party seeks the transcript and the other party does not object.
Nowe v. Bowerman, 2012 BCSC 1723, Dickson J.
Rule 5-3(1)(k) - types of orders - details of experts
[10] The area of expertise of an intended expert witness is a matter of trial strategy. Trial strategy is a key component of a solicitor's brief. It may well evolve as plaintiff's counsel builds a case and makes decisions based upon a myriad of factors and considerations. Intentions may change as the process unfolds over time.
[11] In my view, unless and until the intention to rely upon a particular expert in a particular field is declared by delivery of a report in accordance with the timelines established by the Rules, in the absence of a compelling reason an early incursion into this aspect of the solicitor's brief will not be justified.
[12] That being said, there may well be cases in which a departure from the usual timelines can be justified. For example, in complex cases such as those involving brain injuries as a matter of fairness it may be necessary to provide defence counsel with a longer period than would be available under the usual regime in order to schedule appointments with certain kinds of experts.
Amezcua v. Norlander, 2012 BCSC 719, Associate Judge Baker
Rule 5-3(1)(k) - types of orders - particulars of special damages - details of experts
Leading authorities have confirmed that it is appropriate to expect a party to plead details of special damages and, if they are not given, to be ordered to provide particulars of them. Associate Judge Baker did not consider himself bound by the decision of Hinkson J. in Yousofi v. Phillips, 2010 BCSC 1178 in which Hickson J. concluded that special damages were "matters that should be identified by the plaintiff to the defendant, but not as particulars of the pleadings." According to Associate Judge Baker, this decision was made in "the rapid fire process of chambers applications and relevant authorities were overlooked by counsel". Yousofi has been used by some plaintiff's counsel to refuse to provide particulars of special damages. Associate Judge Baker ordered the plaintiff to provide particulars of her special damages at this CPC.
Associate Judge Baker considered Koenigsberg J.'s decision in Galvon v. Hopkins (see below) when asked by the defendant to order the plaintiff to provide details of her expert witnesses on whom she intended to rely at trial. In Galvon, the defendants had asked for the names and appointment dates of "potential experts." He stated that Koenigsberg J. was justified in concluding that the Rules did not give a court the power to compel a party to provide details of experts while still in the "evidence gathering phase" of the litigation and before decisions had been made as to whether the reports would be used at trial. Koenigberg J.'s rationale was the need to protect the plaintiff's litigation privilege and to avoid giving the defence ammunition to seek adverse inferences.
However, Rule 5-3(1)(k), which provides for orders concerning experts at CPC's, is not inconsistent with the reasoning in Galvon. Subrule 5-3(1)(k)(iv) provides for the delivery of expert reports other than at the 84-day mark set out in Rule 11-6. There may be extraordinary circumstances – as was the case here – which would allow the court to compel the plaintiff to deliver reports much sooner. In this case, the plaintiff's earliest accident occurred 13 years ago and to date the defendant had no reliable medical information concerning the plaintiff's injuries. He ordered the plaintiff to deliver the reports of experts upon which she intended to rely at trial by a date that was 7.5 months before trial.
Hans v. Volvo Trucks North America Inc., 2012 BCSC 73, Associate Judge MacNaughton
Rule 5-3 - types of orders - joint experts
The plaintiffs' truck was damaged as a result of a crash alleged to have been caused by a malfunction. The plaintiffs sued the trucking company with which they had an exclusive contract to transport goods and which was responsible for insuring and maintaining the truck and the truck's manufacturer.
The trucking company hired an engineer to ascertain the cause of the accident and shared the report with the manufacturer. The truck was subsequently repaired. At a case planning conference, the plaintiffs sought an order with respect to the use they could make of the engineering report at trial. Associate Judge MacNaughton considered whether such an order was appropriate for a case planning conference. He concluded that the plaintiff's application involved a legal question which did not require affidavit evidence. Rule 5-3(1)(k) specifically addresses orders dealing with expert witnesses, including joint experts. He exercised his discretion to order that the engineering firm be appointed a jointly retained expert. A joint retainer was necessary in order for the engineering firm to prepare an expert report that complied with the requirements of Rule 11-6.
Galvon v. Hopkins, 2011 BCSC 1835, Kloegman J.
Rule 5-3 - names of experts - dates of appointments
The plaintiff appealed a master's order, made at a case planning conference, that the plaintiff provide the defendant with the name of the neurologist with whom she had an appointment and the date of the appointment as well as notice of any future appointments with experts, including their names and expertise.
Kloegman J. allowed the appeal. The rules did not empower the master to disregard the common law principle of privilege by making such an order. Nothing in Rule 5-3 clearly, expressly and specifically allows the presider at a case planning conference to compel a party to provide another party with the details of any potential expert witness before that party has even consulted with the expert or made an election whether to call the expert's evidence at trial.
Stockbrugger v. Bigney, 2011 BCSC 785, Macaulay J.
Rule 5-3 – Consent case plan orders
Although Part 5 is silent with respect to consent case plan orders (Item 5 of Appendix B allows for "Process for obtaining a consent case plan order"), Macaulay J. confirmed that parties may file consent case plan orders without the necessity to attend a case planning conference. The format used by the parties and approved by Macaulay J. was a Form 34 Consent Order adapted to incorporate the case plan required by Form 21, Case Plan Order.
Benedetti v. Breker, 2011 BCSC 464, Associate Judge Baker
Rule 5-3(1)(k)(i) - appointment of joint expert
The only provision in the new Rules for the appointment of a joint expert over the wishes of one or both parties is at a Case Planning Conference under Rule 5-3(1)(k)(i) which authorizes the presiding Judge or Associate Judge to order "that the expert evidence on any one or more issues be given by one jointly-instructed expert". Rule 11-3 assumes that either the parties have agreed to the concept of a joint expert, or that the court has already ordered one at a CPC.
Such an order would not be appropriate in this case. The defendant should not be deprived of unilateral access to the one psychiatric expert that it chose and notified some 15 months before this application.
Proportionality would not be served where, as in this case, the plaintiff has five medical reports that have not been delivered and seeks a sixth report as a joint expert report.
Gichuru v. The Law Society of British Columbia, 2012 BCCA 171
Rule 5-3(2) - types of orders - affidavit evidence
[15] As we told Mr. Gichuru, the orders listed in R. 5-3(1) which may be granted by a case planning conference judge are largely administrative. This is certainly true of orders fixing the length of trial (or in this case, the hearing of a petition for judicial review). Judges are not expected to, and do not usually, carry out formal legal analysis involving a burden of proof or the application of legal authorities in making orders of this kind. The prohibition against hearing an application supported by affidavit evidence is of course intended to ensure that case planning conferences are efficient and do not require judges to make substantive findings of fact or of law in connection with administrative matters. In this regard, the Rule is consistent with the objective of securing the "just, speedy and inexpensive determination of every proceeding on its merits." (Rule 1-3.) In case planning conferences, the Court is able to rely on the representations of counsel. Mr. Gichuru regards this as "palm tree justice", but in most cases, such reliance is fully justified and obviously efficient.
Gill v. A & P Fruit Growers Ltd., 2011 BCSC 1421, Willcock J.
Rules 5-3 and 12-2 - types of applications - affidavit evidence
The courts have long given evidentiary weight to the representations of counsel with respect to evidence to be called at trial, availability of witnesses and procedural questions going to trial management. It is in that context that the new Supreme Court Rules were enacted. The prohibition against hearing applications supported by affidavit evidence must be interpreted in the light of that practice.
An application for an order that expert witnesses be deposed before trial rather than testifying by a video conference at trial is clearly an order of the type that may be made at a case planning or trial management conference, if the factual matrix necessary for making such an order can be established.
Vernon v. British Columbia (Liquor Distibution Branch), 2010 BCSC 1688, Goepel J.
Rules 5-3 and 12-2 - types of applications - affidavit evidence
While the rules give the court broad powers to make orders at case planning conferences and trial management conferences, Rules 5-3(2) and 12-2(11) limit the nature of applications at CPC's and TMC's to those not requiring affidavit evidence or resulting in final orders.
Applications requiring the exercise of judicial discretion to consider competing interests require a proper evidentiary foundation. Statements of counsel alone are not sufficient. In this wrongful dismissal action, applications by the defendant to adjourn the trial and for a publication ban with respect to the identity of certain witnesses required affidavit evidence to permit the exercise of judicial discretion.
[24] This is not to say that a judge cannot make orders at a CPC or a TMC. Clearly, a judge can. Many of the orders contemplated at such a conference will not require applications or affidavit evidence. The Rules allow a judge to make an order absent an application. Many of the orders suggested in the respective rules are procedural in nature and more in the nature of directions. Such orders can be based on the representations of counsel. An example is the present application concerning the order of proceedings at trial.
Abougoush v. Sauve (PDF), 2010 BCSC 1776, Rogers J.
Rule 5-3(1)(j) & (k) - names of experts - privilege - purpose of case planning conference
The court should not require a party to disclose information in a case planning conference that could not be extracted through the conventional discovery practice. Rule 7-2(18) recognizes, preserves and protects a party's right to privilege in the context of examinations for discovery. Nothing in the current Rules suggests that that right should in a case planning conference be sacrificed on the altar of efficiency or proportionality. A case planning conference may be employed as a tool to adjust the timing of information disclosure. It is not a tool that can be used to pry open otherwise closed doors.
The defendant's application at a case planning conference for an order that the plaintiff disclose the names of her expert witnesses, the dates of her attendance on the experts and the purpose of those attendances was dismissed.
Rule 7-1 Generally
Burgess v. Buell Distribution Corporation, 2012 BCSC 1494, Grauer J.
Impostion of conditions - confidentiality agreement
A party is not at liberty to impose, unilaterally, conditions on document production that vary from its obligations under the Supreme Court Civil Rules. The defendant sought as a pre-condition of producing documents to the plaintiff the execution of a confidentiality agreement. Grauer J. found that while there was no reason for the defendant in this case (a multi-national manufacturer) not to seek such an agreement in order to protect proprietary information, it was required to obtain an order in a timely manner absent such an agreement. It was unacceptable for the defendant, in insisting on a confidentiality agreement, to deprive the plaintiff of his right to a timely production of documents in accordance with the rules. He referred as well to the implied undertaking of confidentiality which would have prevented the plaintiff from using the information outside of the law suit quite apart from any protection policy, agreement or order.
Rule 7-1(1) First tier discovery
Atlabachew v. Zaman, December 6, 2012, Associate Judge Baker.
Rule 7-1(1) - Post-MVA MSP records
Associate Judge Baker concluded that he need not go beyond the pleadings to order the production of updated post-MVA records where the plaintiff had produced pre-MVA MSP records and had since been involved in two subsequent accidents. The updated records would assist in establishing or disproving the numerous injuries and future losses alleged by the plaintiff as well as assessing causation among the three accidents.
Denney v. Wong, November 7, 2012, New Westminster Registry No. M137581, Associate Judge Keighley
Rule 7-1(10) - Prior MVA actions - implied undertaking of confidentiality
The defendants sought an order that they be at liberty to use documents from the plaintiff's three prior accident actions that were subject to the implied undertaking of confidentiality, relying on Chonn v. DCFS Canada Corp., 2009 BCSC 1474. Associate Judge Keighley denied the application, finding that the defendants had not satisfied the test for relevance to lift the implied undertaking. He confirmed that reviewing the documents and listing them in a schedule sent to plaintiff's counsel was not a breach of the implied undertaking rendering the defendants or their counsel subject to judicial censure and / or penalty. He also commented that had the defendants applied for an order compelling the plaintiff to list the documents, he likely would have granted the order.
Hadani v. Hadani, 2012 BCSC 1142, Associate Judge Muir.
Rule 7-1(1) and (11) - redacted documents
Associate Judge Muir agreed with the decision of Associate Judge McNaughton in Hyvarinen v. Burdett (see below) that medical records of a single practitioner should not be treated as a single document and that there can be no presumption that the entirety of such records should be produced. A plaintiff, faced with an application to produce unredacted records, has a very low threshold to overcome to show that the redacted records contain irrelevant and private information that could not be used by either party to prove or disprove a material fact. The defendant is required to provide evidence, beyond the pleadings, that the redactions would either prove or disprove a material fact or that a broader class of documents should be disclosed. An examination for discovery is the obvious tool for the defendant to use to obtain such evidence.
Hyvarinen v. Burdett, 2012 BCSC 1034, Associate Judge McNaughton
Rule 7-1(1) - redacted records
Associate Judge Mcnaughton denied the defendant's application for unredacted hospital and Worksafe records. He concluded that the general rule about redacted documents (see 0878357 B.C. Ltd. v. Tse below) should not apply in this case because the records were not "single documents" but rather "a series of records compiled over time from a number of interactions with the plaintiff." The same exception can be said to apply to CWMS notes.
Fric v. Gershman, 2012 BCSC 614, Associate Judge Bouck
Rule 7-1(1) - vacation photographs - Facebook content
When physical impairment, as opposed to cognitive impairment, is alleged, the relevancy of photographs showing the plaintiff engaged in activities that require some physical effort "seems rather clear." Photographs depicting physical activity fall within the first tier or Rule 7-1(1) test of materiality. A request for an order for the production of digital content other than photographs contained on a social media site such as Facebook was overly broad as the probative value of such content was outweighed by the competing interest of protecting the private thoughts of the plaintiff and third parties.
Vendrasco v. Gillcash, March 2, 2012, Vancouver Registry No. M105377, Associate Judge Baker
Rule 7-1(1) - wedding photographs
Associate Judge Baker granted an order for production of the plaintiff's wedding photographs taken some months after the accident. The plaintiff alleged he suffered neck and back pain as a result of the accident. Video surveillance showed the plaintiff lifting and carrying his fiancé during the pre-wedding photo shoot. Associate Judge Baker concluded that the photographs fell within Rule 7-1(1) in that they would assist in proving or disproving a material fact.
0878357 B.C. Ltd. v. Tse, 2012 BCSC 516, Associate Judge McNaughton
Rule 7-1(1) - redacted documents
Associate Judge McNaughton considered the general principles with respect to listing redacted documents under Rule 7-1(1). He confirmed that once it is decided to list a document in Part 1, the whole of the document is producible if a part of it might prove or disprove a material fact. Redaction will only be permitted in exceptional circumstances, and where there is good reason to permit it, if the redacted portion does not go to prove or disprove a material fact.
Tran v. Kim Le Holdings Ltd. 2011 BCSC 1463, Harris J.
Rule 7-1(1) - prior inconsistent statement
A prior inconsistent statement of a witness is a document that should have been listed in the plaintiff's list of documents in order for the document to be used to cross-examine the witness at trial pursuant to Rule 7-1(21). A prior inconsistent statement is a document that could be used to prove or disprove a material fact and is not a document relevant solely to credibility.
R.C.L. v. S.C.F., 2011 BCSC 854, Associate Judge Young
Rule 7-1(1) – counselling records
Associate Judge Young refused to order the production of counselling records relating to the plaintiff’s abuse as a child. The defendant already had obtained volumes of clinical records outlining the plaintiff’s prior psychological problems. The application was clearly based on a chain of inquiry test which was outside the narrow scope of discovery under Rule 7-1(1). Furthermore, the Wigmore test for privilege with respect to confidential communications applied in this case.
Anderson v. Kauhane (PDF), February 22, 2011, Vancouver Registry No. M103201, Associate Judge Baker
Rules 7-1(1) and 7-1(11) - MSP and Pharmanet records
Generally, MSP and Pharmanet records will not come within the terms of Rule 7-1(1): documents that may be used by a party to prove or disprove a material fact or that may be referred to at trial. Rather, they fall within Rule 7-1(11), the second tier or Peruvian Guano standard of disclosure. In this case, the defendant did not meet the standard for disclosure which is to provide with reasonable specificity the reason why such additional documents or classes of documents should be disclosed.
More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166, Smith J.
Rules 7-1(1) and 7-2(18) – scope of document discovery vs. examination for discovery
The scope of document discovery under Rule 7-1(1) is narrower than that of an examination for discovery for two reasons:
An examination for discovery is the most likely source of the evidence required to satisfy the broader document discovery made possible by Rule 7-1(14).
The new rules recognize that the application of a 19th century test (Peruvian Guano) to the vast quantity of paper and electronic documents produced and stored by 21st century technology had made document discovery an unduly onerous and costly task in many cases. Rule 7-1(1) is intended to provide a reasonable limitation.
Kassem v. Barron, 2010 BCSC 1893, Associate Judge Baker.
Rule 7-1(1) & (11) - "all potential witnesses" - request too broad
The plaintiff applied for an order, among others, that the defendants produce all statements and/or interview notes relating to all potential witnesses in the action. Associate Judge Baker concluded that such documents fell within Rule 7-1(11), "the third ring" or Peruvian Guano standard of document disclosure that the defendant was not obliged to produce at first instance under Rule 7-1(1). The other party may request such documents, but it must lay the groundwork and the foundation for them. In this case, the plaintiff's request cast the net so wide that "it placed us back in a mode or approach that has been...circumscribed or limited by the terms of the new rules."
Biehl v. Strang, 2010 BCSC 1391
Rule 7-1 - "material fact"
Rule 7-1 does not restrict production to documents that in themselves prove a material fact. It includes evidence that can assist in proving or disproving a material fact.
Rules 7-1(11) to (14): Second tier discovery
XY, LLC v. Canadian Topsires Selection Inc., 2013 BCSC 584, Voith J.
Rule 7-1(11) - (14) - broader scope of document discovery - identification of documents
Voith J. concluded that, in appropriate and finite cases, the court may exercise its inherent jurisdiction to order a broader scope of document disclosure similar to disclosure under the former Rule 26, where the party seeking disclosure is unable or unwilling to identify documents with reasonable specificity. Actions involving allegations of conspiracy or fraud may fall within this limitated class of cases.
Edwards v. Ganzer, 2012 BCSC 138, Associate Judge Bouck
Rule 7-1(14) - MSP and Pharmanet records - scope of test
The defendant applied for an order under Rule 7-1(14) that the plaintiff produce post-MVA MSP records and pre- and post-MVA Med Profile (Pharmanet) records. Associate Judge Bouck agreed with the defendant that such records fell within the broader Rule 7-1(14) test for production which, according to her, was "close" to the Peruvian Guano test.
Associate Judge Bouck also concluded that authorities decided under the former Rule 26 may assist the court in the exercise of its discretion under Rule 7-1(14). She found that the pleadings and evidence established that the post-MVA records were relevant to the issue of mitigation as well as on the basis of Creed v. Dorio (a 1988 decision that established the rationale for producing MSP records under Rule 26) that the records would allow the defendant "to test the credibility and reliability of the evidence presented by the plaintiff to date on her post-accident health". She was not persuaded that either the pleadings or the evidence provided the requisite grounds to compel an inquiry into the plaintiff's pre-accident medical history.
Global Pacific Concepts Inc. v. Owners of Strata Plan NW 141, 2011 BCSC 1752, Dillon J.
Rule 7-1(14) - scope of test - proportionality
The test for production under Rule 7-1(14) is closer to the test traditionally known as the Peruvian Guano test of relevancy: documents that may, either directly or indirectly, enable a party to advance his own case or to damage his adversary's case or that may fairly lead him to a train of inquiry. Pleadings can justify the application of the wider, more Peruvian Guano-type disclosure.
In this breach of contract case, the pleadings went beyond mere breach of contract to include claims of quantum meruit and unjust enrichment and required the wider test under Rule 7-1(14). The proportionality rule can be used to either expand or restrict the required production of materials.
Burgess v. Buell Distribution Corporation 2011 BCSC 1740, Associate Judge Baker
Rule 7-1(1), 7-1(14) and 7-1(18) - Worksafe BC records - appropriate test - third party document holders
The defendant applied under Rule 7-1(14) for an order that the plaintiff produce Worksafe BC records from 2000 to 2005, based on evidence that the plaintiff had a longstanding history of work-related injuries that were similar in nature to his post-accident condition and symptoms. Associate Judge Baker embarked on an analysis of Rule 7-1 and in particular, the two tests for production under Rule 7-1(1) ("the evidentiary and reliance documents test") and Rule 7-1(11) ("the Peruvian Guano test"). He concluded that the defendant had met the first test under Rule 7-1(1) in that the records could disprove, in whole or in part, the alleged cause of the plaintiff's post-accident injuries. He further concluded that the defendant had met the broader test under Rule 7-1(11) where the court's discretion under Rule 7-1(14) should be applied.
In obiter, he queried whether the defendant could also have proceeded under Rule 7-1(18), which deals with documents in the possession of third parties. Rule 7-1(18) is silent with respect to the applicable test to invoke. He concluded that Rule 7-1(14)'s general reference to "...an application brought under subrule (13) or otherwise..." (his emphasis) would capture non-party documents and then impose the wider Peruvian Guano test.
Dosanjh v. Leblanc and St. Paul's Hospital, 2011 BCSC 1660, Associate Judge Taylor
Rule 7-1(11) - Facebook and Twitter profiles - computer hard drive - iPhone - digital camera
In this medical malpractice action, the defendants applied under Rule 7-1(14) for an order that the plaintiff produce profiles of her Facebook and Twitter accounts and for orders that the defendants be allowed to forensically examine her computer hard drive, iPhone and digital camera.
At discovery, the plaintiff had testified that she suffered cognitive impairment and that her social life had been affected by the surgery. Associate Judge Taylor dismissed the application, finding that it was entirely too broad and unnecessarily infringed upon the plaintiff's privacy. It appears, however, that in coming to his conclusion, Associate Judge Taylor applied the more stringent test under Rule 7-1(1) rather than the broader test for relevancy under Rule 7-1(11).
Abougoushe v. Sauve, 2011 BCSC 885, Rogers J.
Rule 7-1(14) – vacation photographs and metadata
The defendant applied under Rule 7-1(14) for an order compelling the plaintiff to produce all photographs taken of her during two vacations in the months following the accident. The plaintiff’s affidavit evidence was that only a few of the photographs depicted her engaging in physical activity. After viewing all 172 photographs, Rogers J. concluded that the photographs, when compared to her affidavit evidence, met the test under Rule 7-1(11) in that they were clearly relevant to her perception of what is a physical activity and to her tolerance for physical activity over a several week period. Rogers J. also concluded that the metadata contained in the digital photographs (date and time, GPS co-ordinates) was relevant because it may provide information from which the plaintiff’s tolerance for physical activity from day to day or over several days may be inferred. He ordered that the plaintiff produce all 172 photographs in digital format.
Tesscourt Capital Ltd. v. FG Nutraceutical Inc., 2011 BCSC 814, Schultes J.
Rule 7-1(11) to (13) – process for obtaining additional documents
Before requests for additional documents under Rule 7-1(11) can be enforced by applying for an order for their production under Rule 7-1(13), the exchange contemplated by sub-rule (11) (demand) and sub-rule (12) (response) must occur.
Przybysz v. Crowe, 2011 BCSC 731, Associate Judge Bouck
Rule 7-1(11) & (14) – MSP records
Simply pleading a pre-existing condition is insufficient to justify an order for production of the plaintiff's pre-accident MSP records under Rule 7-1(14). The defendant must demonstrate a connection between the plaintiff's pre-existing and accident-related complaints beyond a "mere possibility": Gorse v. Straker, 2010 BCSC 119 at para. 53.
Balderston v. Aspin, 2011 BCSC 730, Associate Judge Bouck
Rule 7-1(11) and (14) – MSP records
[29] The intent of Rule 7-1(11) is to inform the opposing party of the basis for the broader disclosure request in sufficient particularity so that there can be a reasoned answer to the request. The Rule allows the parties to engage in debate or discussion and possibly resolve the issue before embarking on an expensive chambers application …
[35] … [T]he circumstances of the case, as disclosed in the evidence before the court, will determine whether an MSP record should be listed and produced under Rule 7-1(14). There should be no blanket rule that an MSP print-out is not producible simply because of the introduction of the SCCR or the fact that examinations for discovery have yet to be conducted.
Nikolic v. Olson, 2011 BCSC 125, Williams J.
Rules 7-1(11) and 7-1(14)(b) - Authorizations for documents in possession of non-parties - jurisdiction of court
Although this application was not decided under the current rules, Williams J. held that the court has jurisdiction to order a party to sign authorizations to obtain from third parties documents that are in the party’s power to obtain. Rules 7-1(11) and 7-1(14)(b) are the operative new rules.
Desjardins v. Huser, 2010 BCSC 977
Authorizations - Rule 7-1 (14) - documents in party's power
Joyce J. held that he was bound by Stead v. Brown, 2010 BCSC 312 to conclude that a party cannot be compelled to execute authorizations allowing the other party to obtain documents in the possession of non-parties. However, he noted that Rule 7-1 (14) enables the court to order that a party serve an amended list of documents that contains all documents in a party's "possession, power or control, relating to any or all matters in issue in the action". Rule 7-1 (16) enables a party to obtain copies of all listed documents.
Rule 7-1(16) - Copies of documents
Perone v. Baron, 2012 BCSC 912, Associate Judge McDiarmid
Rule 7-1(16) - cost of photocopies of documents on list of documents
Associate Judge McDiarmid considered that the rate of $.30 per page was appropriate for documents produced from the plaintiff's list of documents. Plaintiff's counsel argued that his firm charged $.35 per copy to account for inflation since the Court of Appeal assessed the cost of photocopies in Giuliani v. Saville (1996), 105 B.C.A.C. 209 over 14 years ago. The master stated:
[30] The respondent's evidence was directed to having me conclude that because of inflation, as shown by the consumer price index evidence placed before me, and based on evidence of inflation set out in paragraph 6 of the Ing affidavit, in conjunction with what others charge, the amounts allowed in any of the cases before me, when adjusted for inflation, would result in charges higher than 35¢ per page.
[31] The problem with that approach is that while inflation in general has resulted in overall price increases, technological advances have substantially reduced costs in some areas; photocopying is one such area. I take judicial notice of the fact that in lawyers' photocopying charges there is a profit component built into the per page charges made by lawyers to their own clients.
Rule 7-1(18) - Documents in the possession of third parties
Demello v. Chaput, May 29, 2012, Vancouver Registry No. M106102, Associate Judge McDiarmid
Rule 7-1(18) - post-MVA physiotherapy records
The defendant made a demand under Rule 7-1(11) that the plaintiff list and produce documents in the possession of the physiotherapist who treated him following two accidents. The plaintiff refused to comply with the demand, claiming that it was a fishing expedition of the type castigated by Davies J. in Kaladjian v. Jose (see below).
At the application for an order seeking production of the records under Rule 7-1(18), the defendant provided an affidavit sworn by a paralegal in defence counsel's firm that stated such records routinely contained evidence relating to causation and level of recovery. She appended a sample extract of physiotherapy records, unrelated to the plaintiff's action, which confirmed this statement. In addition, the proximity of some of the physiotherapy sessions to two of the accidents provided further evidence that the records met the test for relevance under Rule 7-1(11).
Associate Judge McDiarmid concluded that the defendant met the test for production of the records in the possession of third parties in accordance with Kaladjian. The defendant made the requisite demand and provided the evidentiary foundation for their production that went beyond mere reliance on the pleadings. He was satisfied that the records may very well be relevant to issues of causation and level of recovery. He granted the order sought by the defendant that the physiotherapist produce the records to defence counsel.
Kaladjian v. Jose, 2012 BCSC 357, Davies J.
Rule 7-1(18) - pre-MVA MSP records
Davies J. concluded that an application for documents in the possession of third parties requires the same test of relevance as an application for production of additional documents under Rule 7-1(14). The party seeking the documents must provide sufficient evidentiary support, beyond the pleadings, to justify production of documents in the possession of third parties.
Rule 7-2(3) - Applications to extend
Nwachukwu v. Ferreira, 2011 BCSC 1755, Willcock J.
Rule 7-2(3) - application to extend time for discovery - objections to questions
The defendant applied for an order under Rule 7-2(3) to extend the examination for discovery period following three aborted examinations of the plaintiff in which plaintiff's counsel objected to questions 117 times, without specifying his objections. Willcock J. stated:
[33] The time limit established by Rule 7-2(2) creates a greater obligation on counsel for the party being examined to avoid unduly objecting or interfering in a way that wastes the time available. A largely hands-off approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality. Allowing wide-ranging cross-examination on examination for discovery is far more cost effective than a practice that encourages objections which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections. It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial rather than on examination for discovery. Where intervention is appropriate, the proper conduct of counsel is to state the objection to the form of a question and the reasons for the objection, but it is not appropriate to make comments, suggestions or criticism.
He concluded that only one of the objections given by plaintiff's counsel at the application was valid. He ordered a further examination of 4.5 hours and further ordered that plaintiff's counsel "will not discuss with the plaintiff any questions touching on matters which have been put to the plaintiff at the examinations for discovery to date and to which objection has been made".
Rule 7-2(5): Examination of a party that is not an individual
Dan v. Dhaliwal, 2012 BCSC 1817, Goepel J.
Rule 7-2(5) - application for multiple plaintiffs to examine different representatives of corporate defendant
The plaintiffs were involved in the same accident and were represented by different counsel and commenced their own actions. They each sued a municipality and a road maintenance company. They applied for an order under Rule 7-2(5) allowing each to examine a different representative of the corporate defendants. Goepel J. dismissed their applications stating:
[24] Rule 7-2 does not give a party an unlimited right to discover the representative of its choice. That right is circumscribed by the opening words of Rule 7-2(5) that give the court the power to order otherwise. In the case of multiple parties who have a commonality of interest, they will in the first instance usually be restricted to examining a single representative of the corporate party to whom they are adverse in interest. If that representative fails to provide adequate information, the discovering parties may apply for leave to exam a second representative.
[25] In this case, there is complete commonality of interests between Ms. Tessier and Jorin. Their claims against the various corporate defendants are virtually identical. They are not entitled as of right to examine separate representatives of the corporate defendants.
Terms and Conditions
Tchakedjian v. Rooney, (PDF) November 4, 2011, Vancouver Registry No. M100588, Associate Judge Baker
Rule 7-6 - audio-recording or chaperone - bias
The plaintiff was unable to demonstrate sufficient or any bias on the part of the psychiatrist chosen by the defendant to justify an order allowing the plaintiff to record the examination or to be accompanied by a chaperone.
Kalaora v. Gordon, 2011 BCSC 1360, Hyslop J.
Rule 7-6 - jurisdiction of court to compel plaintiff to sign consent
Hyslop J. confirmed that the court has the jurisdiction to compel a plaintiff to sign a consent form required by the doctor appointed by the defendant to conduct the examination, provided that the scope of the consent is not overly broad or intrusive.
Examinations for Responding Reports
Craik v. Lennie, January 4, 2012, Vancouver Registry No. M092513, Associate Judge Baker
Rules 7-6(1) and 11-6(4) - IME - responding report
In allowing the defendant's application for an examination by a functional capacity evaluator for the purpose of providing a responding report, Associate Judge Baker made the following points:
it is the province of the trial judge to assess whether the report is a truly responsive report
the evidentiary threshold for such applications as set out by Cullen J. in Luedeck v. Hillman (see below) is not a very high threshold and it was satisfied by the affidavit evidence of the defendant's proposed expert
the defendant could not be expected to anticipate the delivery of an FCE report by the plaintiff (shortly after the 84-day deadline) and to expend the cost of obtaining its own report when the plaintiff had returned to his pre-accident labour-intensive occupation.
Scott v. Ridgway, 2011 BCSC 1552, Kloegman J.
Rules 7-6(1) and 11-6(4) - IME - responding report
The court was skeptical of the affidavits provided by the defence expert to justify the necessity for the plaintiff to undergo seven hours of examination by a vocational expert for the purpose of providing a responding report. The expert was not an expert in "the matter of fresh evidence masquerading in the disguise of response."
Mahil v. Price, 2011 BCSC 808, Voith J.
Rules 7-6(1) and 11-6(4) - IME - responding report
The defendant applied for an order compelling the plaintiff to submit to an examination by an orthopaedic surgeon in order to obtain a responding report that would be served in accordance with Rule 11-6(4). Voith J. concluded that it would not be prudent or appropriate for him to pre-determine whether the report resulting from the examination would be properly responsive to the plaintiff’s experts’ reports. The fact that the defendant intended the expert to confine his opinion to very narrow issues provided some safeguard against the expert’s report straying beyond its permitted ambit.
Luedecke v. Hillman, 2010 BCSC 1538, Cullen J.
Rules 7-6(1) and 11-6(4) - IME - responding report
Cullen J. dismissed the plaintiff's appeal of Associate Judge Scarth's order (see below) compelling the plaintiff to attend a medical examination for the purpose of obtaining a responding report under Rule 11-6(4). Several principles emerge:
Responsive reports under Rule 11-6(4) are not restricted to providing a critical analysis of the methodology of the opposing expert. Rather, Rule 11-6(4) refers to evidence that is “purely responsive” to the medical evidence which the other party has called.
Whether expert evidence obtained as a responsive report is truly a responsive report and not “fresh opinion evidence masquerading as a responsive report" is best left to the trial judge.
The evidentiary threshold for obtaining an IME for an opinion to be served under Rule 11-6(4) is higher than that for obtaining an opinion to be served under Rule 11-6(3) (expert reports served 84 days prior to the start of trial). The applicant must establish a basis of necessity for the examination to properly respond to the expert witness whose report is served under Rule 11-6(3) by the other party. In this case, the defendant's proposed expert provided an affidavit which met that evidentiary threshold.
Luedecke v. Hillman (PDF), September 27, 2010, Vancouver Registry No. M085649, Associate Judge Scarth
Rules 7-6(1) and 11-6(4) - IME - responding report
Associate Judge Scarth distinguished Wright v. Brauer (see below) and granted the defendant a Rule 7-6 medical examination for the purpose of obtaining a responding report based on an affidavit from the medical expert that an examination of the plaintiff was necessary to prepare a responding report.
Wright v. Brauer, 2010 BCSC 1282
Rules 7-6(1) and 11-6(4) - IME - responding report
The defendant applied under Rule 7-6(1) for an order compelling the plaintiff to be examined by an orthopaedic specialist in order to respond to two expert reports delivered by the plaintiff 84 days before trial. The defendant's report - at this stage of the litigation - would have to be a "true response" report and not a fresh opinion masquerading as a report. A bare assertion by a paralegal that such a report was necessary was not sufficient to support an order under Rule 7-6(1).
Byer v. Mills, 2011 BCSC 158, Harris, J.
Rule 7-8(1)- depositions by consent of parties
Although the Civil Rules permit depositions to be taken by consent, the drafters of the Civil Rules did not intend to encourage a practice that is inconsistent with conventional trial practice, which is that evidence must be given live. Harris J. would discourage counsel from electing to resort to taking depositions by consent unless there are pressing reasons to do so. If there are legitimate concerns about cost and convenience, there are provisions permitting taking evidence by video conference.
Gill v. A & P Fruit Growers Ltd., 2011 BCSC 1421, Willcock J.
Rule 7-8(3) - deposition vs. video conferencing at trial
There is no presumption in favour of video conferencing over depositions. The court is required to consider all factors set out in Rule 7-8(3). Video conferencing often compares unfavourably with evidence taken by deposition. Counsel are not present with the witness at a video conference. The court cannot control the setting in which the witness is situated. Effective examination of the witnesses by video conference may be very difficult if prolonged or detailed examination of documents is required. There is often a time-delay in responses that complicates communication. It may be impossible for counsel or the court to interrupt witnesses if the transmission facility does not permit them to hear the court while they are speaking. The quality of video and sound is often of poor quality and the transmission is occasionally interrupted.
Seguin v. Stack, March 11, 2011, Vancouver Registry No. M095847, Associate Judge Baker.
Rule 7-8(3) - deposition vs. video conferencing at trial
The pitfalls, recognised by Harris J. in Byer v. Mills (see above), inherent in allowing evidence to be heard by deposition were sufficient to deny an order that the defendant's one expert witness be deposed. The conflict in the doctor's calendar was his own making, There were other avenues that could be pursued by the defence, including accommodating the doctor's schedule at trial or having the evidence heard by video-conference.
Campbell v. McDougall, 2011 BCSC 1242, Associate Judge Bouck
Rule 7-8(3) – deposition vs. video conferencing at trial
The introduction of Rule 7-8(3) reflects a recognition by the Lieutenant Governor-in-Council that modern technology will allow a witness outside the court’s jurisdiction to provide live and simultaneous evidence – in effect, to be in open court. The defendant’s application to have her expert witness testify by deposition was dismissed when the evidence showed that the expert agreed to examine the plaintiff when he knew he may be on sabbatical in South Africa when the trial was scheduled to take place. There was evidence provided by the plaintiff that there were video conferencing facilities available to the expert in Cape Town.
Seder v. ICBC, 2011 BCSC 823, Associate Judge Young
Rule 7-8(3) – deposition vs. video conferencing at trial
When the only factors cited by the defendant in requesting a deposition of a lay witness are the reluctance of the witness to travel from Calgary and the cost of subpoenaing the lay witness for trial, the court found that the proportionate solution was to order that the witness attend trial by video conference, a new factor under Rule 7-8(3)(d) for the court to consider when exercising its discretion to order a deposition. The use of video conferencing is to be preferred over deposition evidence so long as the object of fundamental justice is achieved: Byer v. Mills is cited by the master.
Rule 11-1 - Application of Part 11
Lennox v. Karim, 2012 BCSC 930, Armstrong J.
Rule 11-1(2) - case plan order - expert reports
Subrule 11-1(2) is purposely directed at requiring the parties to avoid the last minute introduction of medical evidence in cases which may have proceeded for many years on a different track or theory. If the defendant's report, served after 84 days, had not been ruled admissible as a responding report, the defendant would have been entitled to an adjournment in order to address an expert report tendered by the plaintiff in contravention of subrule 11-1(2).
Rule 11-2 Certification
Tchakedjian v. Rooney, (PDF) November 4, 2011, Vancouver Registry No. M100588, Associate Judge Baker
Rule 11-2 - certification requirement
Experts should understand that the requirement to certify in their reports that they are aware of their duty to assist the court and are not advocates for any party is not window dressing; that it is not a ritualistic or formulaic incantation.
Rule 11-3 - Appointment of Joint Experts
Benedetti v. Breker, 2011BCSC 464, Associate Judge Baker
Rule 5-3(1)(k)(i) and Rule 11-3
The only provision in the new Rules for the appointment of a joint expert over the wishes of one or both parties is at a Case Planning Conference under Rule 5-3(1)(k)(i) which authorizes the presiding Judge or Associate Judge to order "that the expert evidence on any one or more issues be given by one jointly-instructed expert". Rule 11-3 assumes that either the parties have agreed to the concept of a joint expert, or that the court has already ordered one at a CPC.
Rule 11-6 - Expert reports
Haughian v. Jiwa, 2011 BCSC 1632, Punnett J.
Subrule 11-6(1) - requirements of expert report
The engineering report tendered as an expert report at trial by defence counsel consisted of counsel's instructing letter to the expert, an initial letter from the engineer, an addendum, a curriculum vitae and a certification by the engineer of his duty to the court under Rule 11-2. The court ruled that the report was inadmissible:
"In my view, the report fails to comply with Rule 11-6(1). The rule specifies the form a report is to take. It is imperative in its language. As noted, it is not simply a matter of form. It is not for plaintiff's counsel, or for that matter the court, to piece together various documents and attempt to determine what the report actually consists of. The object of the Rules is the "just, speedy and inexpensive determination of every proceeding on its merits" (Rule 1-3). A failure to comply with the Rules may in fact be contrary to that object where it leads to uncertainty and therefore has the potential to increase the time and expense involved in resolving litigation."
Combs v. Bergen, November 23, 2012, Vancouver Registry No. M112159, Steeves J.
Subrule 11-6(3) - admissibility of defendant's responding report
Steeves J. ruled that an expert report tendered at trial by the defendant was admissible as a responding report under subrule 11-6(3). After reviewing the relevant case law, he stated:
[8] In my view, a response report under 11-6(4) can properly be characterized as an answer. An answer generally responds to a question. I conclude that a response report must be one that genuinely engages with a report under Rule 11-6(3). A response report is truly responsive to the Rule 11-6(3) report and it does not stand alone as fresh evidence. It can provide a "critical review" (C.N. Railway v. R., 2002 BCSC 1669 at para 26) of the methodology of a Rule 11-6(3) report and it can provide an alternative view of an issue addressed in a Rule 11-6(3) report. A response report is limited in scope compared to a 11-6(3) report. It is not an opportunity to avoid the requirements of Rule 11-6(3} and permit a party to provide a free-standing opinion or wide-ranging review of the facts, independent of the Rule 11-6(3) report as being responded to.
He found that the expert was genuinely engaged in replying to the plaintiff's reports. The fact that he presented alternative views and different conclusions and expressed them in the form of his "opinion" did not lead to the conclusion that he was presenting a new free-standing opinion.
Pitts v. Martin, May 30, 2012, Nanaimo Registry No. M59086, Dley J.
Subrule 11-6(3) - admissibility of late-served report - factual vs. opinion report
The plaintiff was examined by a functional capacity evaluator one week before trial and attempted to tender the evaluator's report into evidence at trial as a factual report in order to bypass the service requirements of expert reports under Rule 11-6(3). The evaluator responded in the report to a question by plaintiff's counsel as to whether his most recent testing resulted in any significant change from his testing conducted three years earlier, the results of which had been provided in a report which had been served properly under the rules.
Dley J. refused to allow the most recent report into evidence. He found that it crossed the line into expert opinion evidence because, although the report dealt only with the evaluator's finding of fact, the court would have to inevitably draw inferences from that finding and relate it back to the expert's opinion evidence from 2009.
Lennox v. Karim, 2012 BCSC 930, Armstrong J.
Subrule 11-6(4) - responding report - admissibility of
The plaintiff served an expert report close to the 84-day time limit containing the opinion that the accident had caused a medial meniscus tear to his right knee. The defendant served a responding report pursuant to subrule 11-6(4) in which the expert set out his reasons for disagreeing with the opinions and conclusions of the plaintiff's expert. The plaintiff objected to the admissibility of the defendant's expert report on the grounds that it did not comply with the service requirements of subrules 11-(6)(3) and (4) and that it was a "freestanding medical opinion" and not a responding report.
Armstrong J. concluded that the defendant's report was purely responsive medical evidence to the evidence adduced by the plaintiff as described by Savage J. in Wright v. Baur (see below). The timing of the defendant's report was necessitated by the failure of the plaintiff to give notice of his expert's report at an earlier case planning conference. Pursuant to subrule 11-1(2), the plaintiff was under an obligation to obtain an order to permit his expert to testify and if he had applied for such an order at the case planning conference, the defendant would have been put on notice at an earlier time as to the issue which became central to this case. Armstrong J. allowed the report, with the exception of some portions that had not been addressed in the plaintiff's report.
Hanson v. Lennie, November 16, 2011, New Westminster Registry No. M109975, Harvey J.
Subrule 11-6(4) - responding report - admissibility of
The defendant served a report from an orthopaedic surgeon who had performed a records review and provided an opinion responding to two expert opinions served by the plaintff with respect to the diagnosis and prognosis of the plaintiff's soft tissue injuires. The report was served within the time a responding report must be served under Rule 11-6(4). The plaintiff argued that the report was not a true responding report. The court disagreed (with some minor exceptions regarding some content in the report) and ruled that the report was admissible. The fact that the defendant's expert had not examined the plaintiff was a matter the jury would undoubtedly consider.
Crane v. Lee, 2011 BCSC 898, Smith J.
Subrules11-6(3) & (4) – late delivery of defence report – not responding report
[22] Rule 11-6 (4) is intended to apply only to evidence that is truly responsive or in rebuttal to specific opinion evidence tendered by the opposite party. It is not intended to provide defendants with a general exemption from the basic time limit for serving expert reports that is set out in Rule 11-6 (3). Defendants who delay obtaining or serving expert evidence until after the plaintiff’s opinions have been received, then attempt to introduce all of their expert evidence as response, do so at their peril.
Luedecke v. Hillman, 2010 BCSC 1538, Cullen J.
Rules 7-6(1) and 11-6(4) - IME - responding report
Cullen J. dismissed the plaintiff's appeal of Associate Judge Scarth's order (see below) compelling the plaintiff to attend a medical examination for the purpose of obtaining a responding report under Rule 11-6(4). Several principles emerge:
Responsive reports under Rule 11-6(4) are not restricted to providing a critical analysis of the methodology of the opposing expert. Rather, Rule 11-6(4) refers to evidence that is “purely responsive” to the medical evidence which the other party has called.
Whether expert evidence obtained as a responsive report is truly a responsive report and not “fresh opinion evidence masquerading as a responsive report" is best left to the trial judge.
The evidentiary threshold for obtaining an IME for an opinion to be served under Rule 11-6(4) is higher than that for obtaining an opinion to be served under Rule 11-6(3) (expert reports served 84 days prior to the start of trial). The applicant must establish a basis of necessity for the examination to properly respond to the expert witness whose report is served under Rule 11-6(3) by the other party. In this case, the defendant's proposed expert provided an affidavit which met that evidentiary threshold.
Luedecke v. Hillman (PDF), September 27, 2010, Vancouver Registry No. M085649, Associate Judge Scarth
Rules 7-6(1) and 11-6(4) - IME - responding report
Associate Judge Scarth distinguished Wright v. Brauer (see below) and granted the defendant a Rule 7-6 medical examination for the purpose of obtaining a responding report based on an affidavit from the medical expert that an examination of the plaintiff was necessary to prepare a responding report.
Wright v. Brauer, 2010 BCSC 1282
Rules 7-6(1) and 11-6(4) - IME - responding report
The defendant applied under Rule 7-6(1) for an order compelling the plaintiff to be examined by an orthopaedic specialist in order to respond to two expert reports delivered by the plaintiff 84 days before trial. The defendant's report - at this stage of the litigation - would have to be a "true response" report and not a fresh opinion masquerading as a report. A bare assertion by a paralegal that such a report was necessary was not sufficient to support an order under Rule 7-6(1).
Helgason v. Bosa (PDF), October 21, 2010, Vancouver Registry No. M084365, Silverman J.
Rules 11-6(6), 11-7(1) & 11-7(6) - Supplementary report - late service - admissibility of
Although there is no time requirement for service of a supplementary report under subrule 11-6(6), that subrule cannot be read in a vacuum. Rule 11-7 deals generally with the need to comply with the Rules before opinion evidence is admissible and states that such evidence is presumptively inadmissible unless properly served. Subrule 11-7(7) gives the court discretion to admit opinion evidence despite improper service, based on three disjunctive considerations: due diligence, prejudice and the interests of justice.
Thus where a second GP report in which the GP's opinion had materially changed from that contained in her first report was served just 13 days before trial, the court was required to consider subrule 11-7(7) in order to decide whether to exercize its discretion to let the report into evidence. The facts underlying the second opinion were known to the plaintiff long before plaintiff's counsel interviewed the GP during his trial preparation and discovered the change in opinion. Neither the plaintiff nor her counsel exercized due diligence in ensuring that the doctor's change in opinion was served as soon as practicable as is required by Rule 11-6(6). The defendant had cancelled an IME after the first opinion was served and it would be prejudiced now by the inability to schedule an IME and obtain a report before the start of trial. It was not incumbent upon the defendant to request an adjournment to rectify this problem. The report was ruled inadmissible.
First Majestic Corp. v. Davila, 2012 BCSC 1250, Myers J.
Rule 11-6(8)(b) - Production of documents - contents of expert's file
Rule 11-6(8)(b) requires a party, upon request, to produce the contents of the file of an expert whose report has been served in accordance with the rules.
The plaintiff asked mid-trial for a ruling that the defendant's experts – who had sat through the evidence of the plaintiff's experts – produce copies of the notes they made, arguing that Rule 11-6(8)(b) merely changed the common law dealing with the production of an expert's file to the extent that it modified the timing of production. The notes made by the experts during trial constituted documents in their file that had to be produced. The leading case of Vancouver Community College v. Phillips, Barrett,[1987] B.C.J. No. 3149 and a decision that distinguished it - Lax Kw'alaams Indian Band v. Canada, – left open the question of whether experts were required to produce all documents in their file, including notes or advice prepared by them to assist counsel in cross-examining the other side's experts.
Myers J. concluded that the new rule changed the common law beyond merely modifying the timing of production of the file. The phrase in the rule "relating to the preparation of the report" had to be given its plain meaning. Documents not relating to the preparation of a report - including notes prepared by an expert after his report was prepared and served - need not be produced. The rule in effect "settles the gray area dealt with in the decisions cited above."
The ruling also included in the definition of documents in the expert's file "relating to the preparation of the report" any time records prepared by the expert or other people assisting the expert in the preparation of the report, regardless of whether those records actually physically reside in the expert's file. The other side is entitled to receive data with respect to time spent preparing the report.
Rule 12-2 - Trial management conference
Moore v. Kyba, 2011 BCSC 1422, Brown J.
Rule 12-2 - Powerpoint presentation at jury trial
The time to address the content of a Powerpoint presentation intended to be used by plaintiff' counsel in his opening address to the jury is at the trial management conference, not the first day of trial.
Gill v. A & P Fruit Growers Ltd., 2011 BCSC 1421, Willcock J.
Rules 5-3 and 12-2 - deposition vs. videoconferencing - types of orders at TMC
The courts have long given evidentiary weight to the representations of counsel with respect to evidence to be called at trial, availability of witnesses and procedural questions going to trial management. It is in that context that the new Supreme Court Rules were enacted. The prohibition against hearing applications supported by affidavit evidence must be interpreted in the light of that practice.
Enns v. Cahan, 2011 BCSC 541, Gray J.
Rule 12-2(10) & (11) – jury strike application – types of orders at TMC
The defendant applied at a TMC for an order striking the plaintiff’s jury notice, an order contemplated by Rule 12-2(10)(b). He relied on the pleadings and a recently delivered expert report to support his application. The plaintiff opposed the application, submitting that the application required affidavit evidence. Gray J. said proportionality has a role in determining whether a full chambers motion is necessary for such applications. Whether affidavit evidence is required will depend on the issue in dispute and the remedy sought. She allowed the defendant to proceed with his application at the TMC.
Jurczak v. Mauro, 2011 BCSC 512, Smith J.
Rule 12-2(10) & (11) – adjournment application - types of orders at TMC
Rule 12-2(10) clearly contemplates that the judge will make orders based on the information contained in the trial briefs, which are unsworn statements of counsel, as supplemented by what is said by counsel at the TMC. That is the only basis on which the orders permitted by Rule 12-2(10) could be made.
The fact that the plaintiff’s adjournment application was contested would not, in itself, have prevented the court from hearing it and deciding it at a TMC. Smith J. had jurisdiction to consider the adjournment application on the basis of information in the trial briefs and the statements of counsel.
Vernon v. British Columbia (Liquor Distibution Branch), 2010 BCSC 1688, Goepel J.
Rules 5-3 and 12-2 - types of applications - affidavit evidence
While the rules give the court broad powers to make orders at case planning conferences and trial management conferences, Rules 5-3(2) and 12-2(11) limit the nature of applications at CPC's and TMC's to those not requiring affidavit evidence or resulting in final orders.
Applications requiring the exercise of judicial discretion to consider competing interests require a proper evidentiary foundation. Statements of counsel alone are not sufficient. In this wrongful dismissal action, applications by the defendant to adjourn the trial and for a publication ban with respect to the identity of certain witnesses required affidavit evidence to permit the exercise of judicial discretion.
[24] This is not to say that a judge cannot make orders at a CPC or a TMC. Clearly, a judge can. Many of the orders contemplated at such a conference will not require applications or affidavit evidence. The Rules allow a judge to make an order absent an application. Many of the orders suggested in the respective rules are procedural in nature and more in the nature of directions. Such orders can be based on the representations of counsel. An example is the present application concerning the order of proceedings at trial.
Rule 12-4 - Trial Certificate
Knowles v. Lan, 2013 BCSC 372, Halfyard J.
Rule 12-4(5) - trial certificate not filed - jurisdiction to restore to trial list
Halfyard J. concluded that the court has jurisdiction to restore a trial to the trial list once it has been removed by the trial scheduling manager under Rule 12-(4)(5). No trial certificate had been filed by either party in accordance with the rule, resulting in the trial being removed from the trial list. Halfyard J. found that Rule 12-1(9)(b) gives the court the authority to "fix the date of trial of a proceeding" including the authority to fix a date to coincide with the previously scheduled trial date. He further concluded that the parties cannot consent to such an order. A judge (and not the trial scheduling manager) should be required to review the trial list and resolve potential issues with respect to conflicts and priorities after hearing from counsel of all interested parties.
Rule 12-5 - Evidence and procedure at trial
Tompkins v. Bruce, December 14, 2011, Vancouver registry No. M070137, Curtis J.
Rule 12-5(28) - witness list - witness not properly identified
A witness called by the defendant was not allowed to testify on the basis that he was not properly identified on the defendant's witness list pursuant to Rule 12-5(28), especially after a direction had been given at the trial management conference to provide a witness list by a certain date. Describing a witness on the witness list as "lay witness number one" not only does not conform with the Rules, but if permitted would deliberately frustrate them.
Cayou v. Cayou, 2010 BCSC 1224, Wilson J.
Rule 12-5(67) - application to sever - proportionality
The power to sever issues is the same in substance between the former rule and the current rule. The framework for analysis under the current rule is the same as under the former rule, with the addition of the requirement to consider proportionality under Rule 1-3(2).
Rule 12-6 - Jury trials
Moll v. Palmer, 2012 BCSC 1373, Abrioux J.
Rule 12-6(3) - party entitled to pay jury fees
Abrioux J. ruled that the difference in wording between the former Rule 39(26)(a) and the current Rule 12-6(3)(a) does not change the law established in Folk v. Halcrow, 2004 BCSC 1623 that the only party entitled to pay jury fees is the party who took out the jury notice.
Hung v. Sellar, March 26, 2012, Duncan Registry No. S12384, Bracken J.
Rule 12-6(3) - jury notice - time for serving
Practice Direction 25, which requires the filing of a new notice of trial where a trial is re-set for hearing on a new trial date, does not alter the law established in Hoare v. Firestone Canada Inc. (1989), 42 B.C.L.R. (2d) 237 that the time for serving a jury notice is within 21 days after the filing of the first notice of trial. A jury notice served by the defendant after the trial was adjourned and reset for trial by the filing of a new notice of trial was therefore a nullity when a jury notice had not been served after the filing of the first notice of trial.
Gill v. Shin, January 9, 2013, Vancouver Registry No. M105950, Associate Judge McDiarmid.
Rule 12-6(5)(b) - striking jury notice - fast track actions
The plaintiff applied to strike two jury notices in two actions, ordered to be heard together, on the basis that the trial related to a fast track action: Rule 12-6(5)(b). The trial was scheduled for 7 days. Associate Judge McDiarmid denied the application, finding that the actions were not suitable for fast track. They were somewhat complex involving significant issues between two experts regarding causation. The conduct of the litigation was not done in accordance with Rule 15-1. Allowing the matters to proceed in fast track would deprive the defendants of costs awarded to them in successful applications. "[T]he intent of the Rule combined with the proportionality provisions set out in Rule 1-3 is that the trial of all matters should take place in three days, although there is some discretion to permit slightly longer than that." [para. 10].
Rule 14-1(1)(f) – How costs assessed generally
Varga v. Shin, 2012 BCSC 1643, Registrar Sainty
Rule 14-1(1)(f) and 15-1 - fast track - fixed costs
This action, even though it was not declared to be a "fast track" action, is subject to the costs provisions of Rule 15-1(15). If a matter settles for less than $100,000, Rule 15-1(15) applies to the costs of the action. This is made clear by the addition to the Rules of Rule 14-1(1)(f). That subrule effectively fast tracks actions that were not fast tracked but should have been (see Axten (below)and Affleck v. Palmer, 2011 BCSC 1366).
This interpretation is in keeping with the object of the Rules: "to secure the just, speedy and inexpensive determination of every proceeding on its merits" (Rule 1-3(1)) and the proportionality provisions set out in Rule 1-3(2).
Axten v. Johnson, 2011 BCSC 1005
Rules 14-1(1)(f) and 15-1 - fast track - fixed costs
Rule 14-1(1)(f) places actions that should have been fast-tracked but were not, under the fast track costs schema. However, where an action was fast-tracked and subsequently removed by court order, the fixed costs provisions in Rule 15-1, and hence Rule 14-1(1)(f), cease to apply.
Although neither Rule 15-1 or Rule 14-1(1)(f) refer to “settlement”, jurisprudence dealing with the former Rule 66 has interpreted that rule to include settlement: Bowen v. Martinec, 2008 BCSC 104. Given the similarity of wording and purpose between the former Rule 66 and Rule 15-1, the correct interpretation of Rule 15-1 is that it contemplates settlement. By extension, Rule 14-1(1)(f) does so as well.
Rule 14-1(5) – Disbursements
Stamatopulos v. Sanchez, April 17, 2013, Vancouver Registry No. M104635, Registrar Sainty.
Disbursements - out of jurisdiction expert - necessity for and reasonableness of
The plaintiff retained Dr. Hunt who diagnosed her with the controversial diagnosis of chronic regional pain syndrome ("CRPS") Type 1. She subsequently retained from Ontario another CRPS expert, Dr. Mailis-Gagnon, who examined the plaintiff in Toronto and wrote several reports. Her account totalled $27,500. On assessment, Registrar Sainty concluded that Dr. Mailis-Gagnon's services were "overkill" and obtained out of extravagance or an abundance of caution. Dr. Hunt was capable of providing the opinion that was necessary in this case. It was no answer that the defendant had obtained the services of an expert from Oregon. A party can retain whomever he chooses, but he does so at the risk of not recovering the costs of having made that choice. She disallowed Dr. Mailis-Gagnon's invoice in its entirety as well as the plaintiff's travel costs.
Chandi v. Atwell, 2013 BCSC 830, Savage J.
Disbursements - interest as a disbursement
Savage J. allowed the plaintiffs' appeals in Chandi v. Atwell and MacKenzie v. Rogalasky (see below). He concluded he was bound by judicial comity to follow the decision of Burnyeat J. in Milne v. Clarke, 2010 BCSC 317 who held that interest charged by a third party service provider for overdue payments was recoverable as a disbursement.
He further concluded that the registrar fell into error in Chandi by applying the registrar's rate without considering the specific circumstances of the plaintiff. Registrar Sainty in MacKenzie held that the interest was not recoverable as a disbursement and therefore did not consider whether the interest claimed by the plaintiff was reasonable. Savage J. referred both matters back to the registrars to make the appropriate determinations on the record before them.
Krenn v. ICBC, 2013 BCSC 810, Associate Judge Young
Disbursements - multiple reports from same expert
[23] I find that it is reasonable to seek evidence from a physiatrist a year after the accident so that a thorough history can be taken and treatment recommendations can be made. The problem with seeking a report that soon after the accident is that it will necessarily have to be updated prior to trial. I do not find that to be unreasonable. It gives a better evidentiary picture of the condition of the plaintiff and an answer to causation questions around the time of the accident, and the second report provides an opinion as to the plaintiff's progress closer to trial.
Turner v. Whittaker, 2013 BCSC 712, Associate Judge McNaughton.
Disbursements - scanning charges
Associate Judge McNaughton concluded that the technology involved in scanning documents is not just an overhead cost and that a disbursement amount should be allowed for scanned documents because "scanned documents are a substitute for photocopies, and because the courts are encouraging the use of this new technology."
She further concluded that although scanning involves an initial outlay for equipment and ongoing support costs, most of those costs would be part of a firm's overhead. Because the appropriate cost of the scanned documents was incapable of mathematical calculation, and because the rate for scanned documents should be less than the $.25 presumptive rate for photocopies (as there is no outlay for paper or toner), she arbitrarily assigned a cost of $.15 per scanned document and reduced the number of copies claimed by 20%.
Parent v. Lohia, 2012 BCSC 1677, Associate Judge McDiarmid.
Disbursements - photocopies - mileage & parking - on-line legal research - outsourced legal work - Trust Administration Fee
[58] As set out in Administrative Notice 5, which is set out in Chow v. Nguyen, 2012 BCSC 1432 at paras. 18-29, that administrative notice is a guideline, and if it is shown that the actual cost of photocopies is different than the guideline amount, I would have discretion to depart from the guideline. There was no evidence to that effect. The evidence supports the large number of photocopies incurred on behalf of the plaintiff in the two actions. The photocopying is allowed as presented on exhibit 1 at $0.25 per page, in the full amount of $1,872.25.
[60] Travel expense, mileage and parking, where the travel is within a reasonable distance of counsel's office, must be considered to be an item of overhead, and not a proper disbursement...
[62] Quicklaw charges represent an allocation of a licensing fee paid by counsel's law firm. Typically, this fee would be paid irrespective of whether the law firm had ten files or 1,000 files. Some effort is often made by the law firm to apportion the cost to the files. This is an item of overhead and not, in my opinion, a true disbursement applicable to an individual file.
At para. 65, the master held that research conducted on the law of causation by an external firm (Onpoint Legal Research Law Corporation) was both necessary and proper given that a medical expert had commented that this was one of the most complicated files he had seen in his practice. It appears that the Court of Appeal decision of Baiden v. Vancouver (City) Police Department, 2010 BCCA 375 (see below) was not brought to Associate Judge McDiarmid's attention. It is therefore uncertain whether the master would have held that this was an exceptional circumstance justifying such expense, given that causation based on multiple sources of injury is fairly commonplace in today's personal injury litigation.
At para. 68, the master held that the Trust Administration Fee was a necessary disbursement.
Keenan v. Fletcher, 2012 BCSC 1555, Gaul J.
Disbursements - outsourced legal work
The plaintiff retained counsel to advise him with respect to a privacy issue that arose during trial. The court found that the facts were not so "exceptional" that they brought the case within the exception articulated in Baiden v. Vancouver (City) Police Department, 2010 BCCA 375 (see below).
Chow v. Nguyen, 2012 BCSC 1432, Dley J.
Disbursements - photocopies
The presumptive rate set out in the administrative notice was intended to put to rest the debate on what the actual cost of photocopying might be. The presumptive rate was not intended and has not been interpreted as the only rate. Evidence can be presented to show that the per page cost differs — it may be lower or higher depending on the particular circumstances.
Fairchild v. British Columbia (Vancouver Coastal Health Authority), 2012 BCSC 1207, McEwan J.
Disbursements- proportionality - reasonableness - proper
The concept of proportionality in the Supreme Court Civil Rules adds nothing new to the concept of "reasonableness" of disbursements. The reasonableness of a disbursement has always incapsulated a sense of proportion. McEwan J., however, appeared to conclude that proportionality plays no part in the consideration of whether a disbursement has been properly incurred.
Kezel v. Greenslade, 2012 BCSC 1131, District Registrar Cameron
Disbursements - outsourced legal work
Plaintiff's counsel sought advice from outside counsel with a recognized expertise in matters of costs and remuneration, and claimed his fees in the plaintiff's bill of costs. District Registrar Cameron saw nothing exceptional or unusual about the matters for which advice was sought and he disallowed this disbursement, following Baiden v. Vancouver (City) Police Department, 2010 BCCA 375 (see below).
Mackenzie v. Rogalasky, 2012 BCSC 156, Registrar Sainty
Interest as a disbursement - not allowed
The only issue before Registrar Sainty was whether the plaintiff's claim of an interest charge of $11,324.71 on a $25,000 loan provided by Lexfund Inc. was recoverable as a disbursement from the defendant.
Registrar Sainty disallowed the Plaintiff's claim for interest as a disbursement. She accepted defence counsel's argument that paragraph 2(c) of the Court Order Interest Act, which excludes payment of pre-judgment interest on costs, suggests that the Legislature did not intend such interest to be recoverable. Further, she agreed that the object of the costs scheme is partial - not full or perfect - compensation or indemnity, and this favoured not allowing interest to be recoverable. Ultimately she concluded that the interest claimed was not a "necessary or proper" adjunct to the litigation and was not, therefore, recoverable under Rule 14-1(5).
Briscoe v. Smyth (PDF), 2011 BCSC 1492, Associate Judge Donaldson
Interest as a disbursement - not allowed
Associate Judge Donaldson distinguished the type of interest being claimed as a disbursement in Milne v. Clarke, 2010 BCSC 317 from that being claimed before him: interest on a loan taken out by the plaintiff to fund his litigation, including a $1,750 "underwriting fee". Plaintiff's counsel deposed that the loan was required to finance potential expert reports and other assorted trial expenses. There was no evidence before the master of interest actually being charged by experts on existing accounts or that the experts required payment up front before testifying at trial. The plaintiff was unsuccessful in bringing this disbursement within the type allowed in Milne: interest charged by a supplier on an account for services already provided.
Chandi v. Atwell, 2011 BCSC 1498, District Registrar Cameron
Interest as a disbursement - calculated at Registrar's rates
While the registrar was bound by Milne v. Clarke, 2010 BCSC 317 to make some allowance for the interest charged to the plaintiff on a loan used to finance his litigation, he was not bound to award full indemnity for the amount of interest (approximately $25,000). Only disbursements that are necessary and reasonable in amount are recoverable. The registrar should endeavour, whenever possible, to strive for consistency when assessing the amount to allow for a specific disbursement. To attain that consistency, the registrar made an allowance for disbursement interest based upon the Registrar's rates with the calculation of the interest to be akin to the calculation of interest payable on special damages in accordance with the Court Order Interest Act.
Gill v. Widjaja, 2011 BCSC 1822, Harvey J.
Rules 1-3 and Rule 14-1(2)(b) - Proportionality - e-filing - photocopies
Harvey J. allowed the plaintiff's appeal of Associate Judge Baker's disallowance of the plaintiff's photocopying and courier costs (see below).
Harvey J. agreed that a registrar must consider the object of the rules, including proportionality, under Rule 1-3 but that Rule 1-3 cannot supersede the clear wording of Rule 14-1 which is that disbursements must be proper and necessary. In this case, using couriers to file documents in court registries – rather than e-filing - was a proper disbursement. In the absence of a practice direction indicating that the profession, generally, will be required to file electronically, the choice by counsel to engage agents to file paper documents at the registry cannot be seen as either excessive, cautious, zealous, extravagant or negligent.
Harvey J. concluded that Associate Judge Baker erred when he took plaintiff's counsel's unsworn assertion that his office was "a paperless office", and extrapolated that into a denial of all photocopying expense. He took a rough and ready approach and gave the plaintiff 600 out of 3,579 copies at $.25 per copy.
Gill v. Widjaja, 2011 BCSC 951, Associate Judge Baker
Rules 1-3 and Rule 14-1(2)(b) Proportionality - e-filing - photocopies
The thrust of the new Rules and Rule 1-3 should operate and apply to require, all other things being equal, the least expensive approach to litigation. This means that counsel and client may choose another, more costly, process if they wish, but they will have to justify it. Therefore, where electronic filing of court documents is less expensive than using couriers to file court documents, the plaintiff was only entitled to recover the cost of e-filing.
Similarly, where photocopies are claimed on a bill of costs, the plaintiff must justify the need or use of such copies when in reality documents are often created, exchanged and stored digitally without ever having to be converted to paper. Rule 14-1(2)(b) directs that the registrar, in assessing costs, “consider Rule 1-3”. Associate Judge Baker took that to mean that all counsel must conduct a case in the most reasonably efficient means possible, always considering the exigencies of the particular case. When alternative technologies are available that can virtually eliminate the cost of photocopying, Rule 1-3 must come into play.
Baiden v. Vancouver (City) Police Department, 2010 BCCA 375.
Disbursements - outsourced legal work
The Court of Appeal disallowed the fees paid by plaintiff's counsel to another counsel with expertise in Worksafe matters. The Court held:
[25] The limited authority on this issue in this province supports the view that if counsel retains another lawyer to perform a specialized function due to his or her own lack of experience, it does not follow that such fees are recoverable from the opposing party, but remains a matter between the original lawyer and his client: Noble v. Wong, Bell v. Fantini (1981), 32 B.C.L.R. 322 (S.C.). That is a practical and appropriate approach, and should have been followed here. Outsourcing portions of legal work during litigation and then permitting recovery of that lawyer's fees as a disbursement undermines the policy of party and party costs. While there may be cases in which this can be justified, they would be limited and exceptional.
Rule 14-1(15) - Costs of whole or part of proceedings
Lee v. Jarvie, 2013 BCCA 17, Newbury JA
Rule 14-1(15) - apportionment of costs - leave to appeal granted
Newbury JA granted the plaintiff leave to appeal Gaul J.'s costs award (see below) on a narrow ground that had not been argued by the plaintiff, either before Gaul J. or her. Newbury JA concluded that the wording of Rule 14-1(15) was sufficiently different from that under the former Rule 57(15) as to warrant consideration by the Court of Appeal when the trial judge applied the test for apportionment of costs set out in authorities decided under the former rule.
Lee v. Jarvie, 2012 BCSC 1521, Gaul J.
Rule 14-1 (15) – apportionment of costs – substantial success
After a 14-day trial, the plaintiff failed to prove his claims for past wage loss, loss of earning capacity, cost of future care and loss of housekeeping capacity. Defence counsel argued that the plaintiff should be denied his costs and that the defendants be granted their costs for these specific heads of damage.
Gaul J. relied on authorities dealing with the apportionment of costs in personal injury actions under the former Rule 57(15) and concluded that it would be a fair and just result to apportion costs between the parties. He awarded the plaintiff 50% of his costs and the defendant 50% of his costs of the action. The plaintiff was denied disbursements for some of his experts and allowed only 15% of his disbursements for others.
Madock v. Grauer, 2010 BCSC 1709, Adair J.
Rule 14-1(15) - fixed costs
Adair J. ordered fixed costs of $11,000, including disbursements and taxes, in this estate action in which the plaintiffs recovered $5,000 in damages. Unlike Rule 57(13), Rule 14-1(15) allows the court to award fixed lump sum costs of the whole proceeding without the consent of the parties. Adair J. considered this case to be appropriate to order fixed costs in order to impose finality in the proceedings and to award costs that were in rational proportion to the amount ultimately recovered.
Fast track generally
Hemani v. Hillard, 2011 BCSC 1381, Associate Judge Bouck.
Rule 15-1(1) - Statutory interpretation - when rule applies
The use of the word "or" (as opposed to "and") under Rule 15-1(1)(a) through (d) suggests that fast track can apply to a variety of scenarios. A party is not restricted to completing a trial within three days, provided one of the other scenarios apply, i.e. the damages being sought are $100,000 or less.
Spiewak v. Sept (PDF), December 3, 2010, New Westminster Registry No. M112666, Associate Judge Caldwell
Application to adjourn trial
The plaintiff applied for an adjournment of the trial based on a referral to a TOS specialist. Associate Judge Caldwell refused to order an adjournment. The plaintiff, after 3.5 years, already had a diagnosis and prognosis from two other experts on symptoms for which further expert opinion was sought. Fast Track rules and concept of proportionality did not afford basis to adjourn trial.
Rule 15-1(6) - When rule ceases to apply
Gill v. Shin, January 9, 2013, Vancouver Registry No. M105950, Associate Judge McDiarmid.
Rule 12-6(5)(b) - striking jury notice - fast track actions
The plaintiff applied to strike two jury notices in two actions, ordered to be heard together, on the basis that the trial related to a fast track action: Rule 12-6(5)(b). The trial was scheduled for 7 days. Associate Judge McDiarmid denied the application, finding that the actions were not suitable for fast track. They were somewhat complex involving significant issues between two experts regarding causation. The conduct of the litigation was not done in accordance with Rule 15-1. Allowing the matters to proceed in fast track would deprive the defendants of costs awarded to them in successful applications. "[T]he intent of the Rule combined with the proportionality provisions set out in Rule 1-3 is that the trial of all matters should take place in three days, although there is some discretion to permit slightly longer than that." [para. 10].
Tong v. Lanser, January 4, 2012, Associate Judge Keighley
Rule 15-1(6) - application to remove matter from fast track - jury trial
The plaintiff delivered a notice of fast track one and a half months before the scheduled start of a jury trial and more than six years after the action was commenced. The parties had already engaged in seven pre-trial conferences and three applications and the trial had been adjourned twice at the plaintiff's request. The defendant applied for an order that Rule 15-1 no longer applied to the action.
Associate Judge Keighley stated that Rule 15-1 envisages a simplified procedure for simpler cases which would, if followed from an early stage in the litigation, result in significant cost savings and an earlier resolution of the dispute that might otherwise be possible. Proportionality arguments may influence the court significantly at an early stage in the litigation, but they have less impact on the eve of trial when the opportunity for the parties to avail themselves of the cost-saving measures set out in the rule has now passed. He granted the order.
Sandhu v. Roy, 2011 BCSC 1653, Grist J.
Rule 15-1 - application to remove matter from fast track and adjourn trial
The plaintiff applied to have the trial of two actions that were consolidated by consent adjourned and the actions removed from fast track. The trial was scheduled for three days which the plaintiff conceded would be sufficient time if the only issue was quantum. The defendants in both actions had denied liability, however, and therefore more trial days were required. Defence counsel submitted that liability "was not seriously in dispute." Grist J. granted the orders, stating that "pleading a full defence while otherwise taking an ambiguous position on liability does nothing to promote the simplified procedure under Rule 15-1, or the Rule 1-3 general objective of promoting a just, speedy and inexpensive determination of every proceeding".
Grist J. stipulated that the orders would be effective within 14 days of his Reasons in order to give defence counsel the opportunity to reassess his position on liability.
Halsey v. Magnan (PDF), December 1, 2010, Vancouver Registry No. M073267, Willcock J.
Rules 15-1(6) & (14) - application to remove matter from fast track - appeal of order
The plaintiff appealed a master's order dismissing her application to remove the action from fast track pursuant to Rule 15-1(6). On appeal, Willcock J. concluded that the plaintiff had not demonstrated any error on the part of the master in dismissing her application. He noted, however, that Rule 15-1(14) allows the plaintiff to apply afresh at a trial management conference to adjourn the trial on the basis that it could not be completed in three days.
Rule 15-1(15): Costs
Wan v. Smith Estate, 2013 BCSC 205, Punnett J.
Rule 15-1(15) - costs upon settlement
The court has no discretion on the issue of costs when the settlement terms clearly anticipated fixed costs under Rule 15-1(15). The wording in Rule 15-1(15) "unless the court otherwise orders" does not permit a court to vary the agreed upon terms of settlement.
Ostadsaraie v. Shokri, 2013 BCSC 5, Associate Judge Cameron
Rule 15-1(15) - costs upon settlement
Associate Judge Cameron agreed with the courts in Gill v. Widjaja, 2011 BCSC 951 and Benz v. Coxe, 2012 BCSC 1043 (see below) that where a substantial amount of pre-trial work has already been completed, there is no reason to reduce the $6,500 cap. The action settled 55 days before trial after all expert reports had been exchanged but prior to a TMC being held. Associate Judge Cameron agreed with Registrar Sainty in Benz that preparing for and attending a TMC are "housekeeping items."
Travelbea v. Henrie, 2012 BCSC 2009, Barrow J.
Rule 15-1(15) - costs after trial - removal from fast track
The plaintiff argued that costs should be awarded at Scale B on the basis that the trial took more than three days. In the alternative, the plaintiff sought an order that the action be removed from fast track. With respect to the latter, although Barrow J. conceded he had power to make such an order, he concluded that ordering the matter out of the fast-track regime after the case had been conducted in accordance with its strictures may give rise to unfairness. The trial lasted three days with an extra half day spent in argument. Such was not exceptional enough for the court to order costs other than in accordance with Rule 15-1(15). He awarded the plaintiff costs in the amount of $11,000 with no allowance for the extra half day.
Varga v. Shin, 2012 BCSC 1643, Registrar Sainty
Rule 14-1(1)(f) and 15-1 - costs upon settlement - "rough and ready" approach
Registrar Sainty applied the rough and ready approach she employed in Cathcart v. Olson (see below) to allow the plaintiff the full $6,500 pre-trial costs cap when the matter settled 15 days before trial when "likely a good deal of the trial preparation had occurred up to the settlement."
Benz v. Coxe, 2012 BCSC 1043, Registrar Sainty
Rule 15-1(15) - costs upon settlement - "rough and ready" approach
Registrar Sainty confirmed the approach she used in Cathcart v. Olson, 2009 BCSC 618 to assess the costs payable to the plaintiff when a fast track action settles. In Cathcart, Registrar Sainty endorsed a “rough and ready” approach to assessing the proportion of the costs “cap” payable when a fast track action is settled by establishing the stage of proceedings at the time of settlement. She concluded that by the time of settlement, 85% of the work required to prepare for trial had been completed and awarded the plaintiff 85% of the pre-trial portion of the fixed costs (now $6,500).
Rule 24-1(14) - Step in ongoing proceeding
Easton v. Cooper, 2010 BCSC 1079, Voith J.
Interpretation of Rule 24-1 (14) - Rule 68 - witness summaries - expert reports
Voith J. considered the application of Rule 24-1(14) to subrules 68(31) (witness summaries) and 68(33) (one expert per party). He stated that Rule 24-1(14) focuses on a narrow window of time and addresses instances where a step undertaken prior to July 1, 2010 gives rise to an obligation that is required to be satisfied (or a right that takes effect) prior to September 1, 2010. So long as the time frame for that obligation or right ends before September 1, 2010 the response or action is governed under the old rules. Hence, where the plaintiff had been obliged to deliver witness summaries during a period that expired well before July 1, 2010, Rule 24-1(14) is not engaged and the plaintiff is bound by Rule 68 to deliver witness summaries. He ordered the plaintiff to deliver witness summaries within 21 days of issuance of his Reasons for Judgment.
Voith J. concluded that the same analysis applied where the plaintiff served a second expert report before July 1, 2010 for a trial scheduled for November 22, 2010. He concluded that Rule 24-1(14) had no relevance to these circumstances and that there was no reason for the second expert report to be "insulated from the requirements of Rule 68(33)." However, he then exercised his discretion under the rule to allow the plaintiff's second expert.
This case raises as many questions as it answers with respect to transitional issues. But it seems to be clear authority for the proposition that the defendant can continue to request witness summaries where the time limit for having delivered them expired before September 1, 2010.
