Court allows jury to draw adverse inference for plaintiff failure to call lay witness

In reasons released today, the court in Jin v. Spurrel, 2017 BCSC 1256, agreed with the defence and instructed the jury that they may draw an adverse inference based on the plaintiff's failure to call a lay witness who observed him both before and after the accident.  Mr. Justice Funt said:

[1]             Defence counsel seeks to have the jury instructed by the Court with respect to drawing an adverse inference as a result of the plaintiff not calling Ms. Feng Jian Zhang as his witness. Ms. Zhang is the sister-in-law of the plaintiff’s wife.


[3]             The plaintiff’s wife testified that she and Ms. Zhang were close and that in 2014, when she was residing in New Westminster, she would see Ms. Zhang “very many times”. Ms. Zhang would also have seen the plaintiff although less often.

[4]             There is also in evidence surveillance video which a reasonable juror may view as showing that the plaintiff does not suffer from a mental injury and he did not seem to have physical limitations.


[10]         In my view, in the context of the claimed mental injury and the video surveillance, Ms. Zhang’s evidence would be “superior” to that of the plaintiff or of his wife who have a direct or indirect financial self-interest in the outcome of the litigation. It would also be superior to that of Mr. Qiu who only saw the plaintiff on three occasions. Ms. Zhang would have observed the plaintiff on many occasions and may have been able to testify as to whether the plaintiff, as he was shown in the video surveillance, was exceptional, typical, or otherwise.

[11]         In the circumstances, I am satisfied that a reasonable juror could draw the inference sought. I will instruct the jury with respect to the possibility of drawing an adverse inference.

The full decision can be found here:


Special Costs awarded against ICBC for "abuse of process" in filing inconsistent pleadings

In reasons for judgment released this week, the court in Glover v. Leakey, 2017 BCSC 1287, awarded special costs against ICBC due to the filing of inconsistent pleadings in two separate actions.  In Glover, the defence denied liability and proceeded to a jury trial where the plaintiff's case was dismissed.  However, during the trial the plaintiff discovered that the defendant had previously admitted liability for the same accident in a different proceeding, and argued that this amounted to an abuse of process.  The trial judge then declared a mistrial before judgment was entered.  The plaintiff subsequently sought special costs.  In awarding special costs Madam Justice Gropper said:

[42]         I found that the inconsistent pleading by the defendant was an abuse of process because the principles such as judicial economy, consistency, finality and the integrity of the administration of justice were violated. The court cannot condone such conduct.

[43]         Abuse of process can be a basis for special costs. I find that in this case, the conduct of the defendant is of the type from which the court wants to disassociate itself, referring to Fullerton.

[44]         The defendant’s arguments about the merits of its position on the application and that special costs should only be for the application only, in my view, address the circumstances too narrowly. The plaintiff only discovered the inconsistent pleadings days as the jury trial was about to proceed; it was scheduled for 12 days; the jury panel had been summonsed; witnesses were on their way to or in Vernon to give evidence; expert witnesses were also arranged to be examined by video or in person; and the defendant’s counsel had threatened to apply for a mistrial if the inconsistent pleadings were raised before the trial judge or the jury. The application was made while the jury trial was underway. 

[45]         The repercussions of the abuse of process were wide spread and of significant expense to the plaintiff, who had marshalled all of her evidence. The defendant’s narrow approach fails to recognize that his conduct was not confined to the hearing of the application only; it went well beyond that.

[46]         Referring to the principles distilled in Westsea, I am satisfied that in awarding special costs in these unique circumstances meets the test of restraint but addresses the full impact of the defendant’s conduct; there are exceptional circumstances that justify such an order; the inconsistent positions on liability as between this action and the Yeomans’ action is reprehensible in and of itself, and amounts to an abuse of process; and the award of special costs in this action cannot be characterized as a “bonus” or further compensation for the plaintiff’s success on the application. 

[47]         The plaintiff is entitled to special costs arising from my finding that the conduct of the defendant was an abuse of process, including the costs of preparation and attendance at trial, as well as special cost of this application. The assessment of special costs is postponed until the defendant has exhausted all avenues of appeal.

The full judgment can be found here:

Court of Appeal upholds defence jury notice in case with 28 medical witnesses

In reasons for judgment released this week, the Court of Appeal in Donaldson v. Dorworth, 2017 BCCA 236, dismissed the plaintiff's appeal of the trial judge's decision to uphold the defence jury notice.  The plaintiff argued that the case was too complex for the jury given 16 medical witnesses were expected to testify on factual matters, and another 12 on matters requiring opinion evidence.  In dismissing the plaintiff's appeal the court said:

[12]        I agree that this is a close case, but in my view the chambers judge made a decision that was open to him on the record before him. I can see no reviewable error and would not give effect to this ground of appeal.

[13]        On the second issue, the case management judge concluded that the issues would require a prolonged examination of documents and a scientific examination within the meaning of the sub-rule, but rejected the argument that the examination of these documents and expert reports could not be made conveniently with a jury.

[14]        On this appeal, the appellant has not identified an error of principle in the decision of the case management judge. Her main argument is that the judge gave no weight, or no sufficient weight, to factors relevant to the application to strike. These factors may be summarized as the length of trial, the number of expert witnesses, the number of medical fact witnesses, the liability dispute and the complexity of the expert evidence, particularly in relation to the appellant’s medical condition.


[21]        In my view, the case management judge in the case at bar considered the factors that were relevant to the disposition of this application and did not take into account any irrelevant factors. He did not make an error of principle but rather came to a decision that was open to him. I can see no reviewable error in his judgment. I would dismiss this appeal.

The full decision can be found here:

Court discharges jury due to "improper" closing submissions of plaintiff's counsel

In reasons released last week, the court in Leaf v. Newton, 2017 BCSC 968, discharged the jury after hearing four weeks of evidence in a medical malpractice case due to the "improper" and "misleading" statements made by plaintiff's counsel during closing argument.  Madam Justice Wedge said:

[1]            THE COURT:  The defendants in this medical malpractice trial have brought an application asking that I discharge the jury and, under R. 12-6(12), continue the trial by judge alone.

[2]            The basis for this application is the closing address made by counsel for the plaintiff at the conclusion of this four-week trial. The defendants say the cumulative effect of the numerous alleged improper submissions cannot be rectified by cautions to the jury. They submit any attempts to rectify the transgressions will only magnify them in the minds of the jury members and enhance their prejudicial effect. Moreover, they say instructions to the jury to disregard submissions of counsel for the plaintiff could also prejudice the plaintiff in the eyes of the jury.

[3]            Counsel for the plaintiff, not surprisingly, vigorously opposes this application. It is the plaintiff who sought a jury trial in this case, and her right to do so cannot be negated except in the most extraordinary of circumstances. Plaintiff’s counsel says this is not one of them. He correctly notes that there is a very heavy burden on the defendants in this case to convince the court that the jury ought to be discharged.


[23]        Plaintiff’s counsel first of all revealed to the jury the terms of the arrangement between the plaintiff and the BCAS that resulted in them being released from the lawsuit. He told the jury that the paramedics were allowed out of the action “without paying a dime to the plaintiff” because in his opinion there was no case against the paramedics. He submitted further that blaming the paramedics was a “red herring,” part of the “fog” created in the case, clearly meaning “fog” created by the defendants. He submitted further that he, as counsel, was not in the business of suing people when there is no case against them.


[36]        Plaintiff’s counsel went on to tell the jury that the “but for” test for causation was also known as the “so what” test, apparently attempting to downplay the test the plaintiff must meet as a matter of law. He also denigrated the expert evidence on causation, quoting Bob Dylan’s line “You don’t need to be a weatherman to know which way the wind is blowing.” He did not explain to the jury how that could be so, given that they have no expertise in neurology or emergency medicine.


[41]        Plaintiff’s counsel repeatedly told the jury to cut through the fog, implying that much of the evidence called by the defendants was an attempt to obscure the truth. He appealed to the jury to decide the case on the basis of their sense of justice. He stated that people have a “sense of smell and of taste,” and that similarly the jury had a sense of justice such that they would remedy the wrong done to the plaintiff by the defendant.

[42]        Plaintiff’s counsel expressed his personal opinion that the plaintiff’s family were decent, honest people whom the jury must believe were telling the truth. He also expressed his opinion this was an honourable family who did not want the plaintiff to be a victim of negligence and did not want to bring a lawsuit against the defendants, hence, the decision to release the paramedics from the lawsuit without any compensation because there was no merit in the allegations against them.


[49]        I have no doubt that plaintiff’s counsel was doing all he could to advance the plaintiff’s case, a tragic one, before the jury. Nevertheless, his advocacy in closing crossed the permissible line in too many respects to rectify.

[50]        I have very reluctantly concluded that I have no alternative but to discharge the jury, despite the fact that they have heard four weeks of evidence in this trial.

The full decision can be found here:

Defence denied costs despite beating formal at jury trial

In reasons for judgment released today, the court in Bains v. Antle, 2017 BCSC 590, declined to award the defence costs despite beating its formal offer to settle.  In Bains, the plaintiff was awarded $37,800 by the jury at trial.  The defence had made a formal offer of $185,000 before trial.  In declining to award the defence its costs Madam Justice Power said:

[1]             After a ten-day jury trial in October 2016, the plaintiff was awarded by the jury, $37,800.00, an amount which was substantially less than what she was seeking and expected to receive at trial for chronic myofascial shoulder pain.


[3]             The defendants seek an order that the plaintiff have her costs up until the defendants’ first formal offer to settle and that the defendants be awarded their costs of the action thereafter with a set-off as appropriate.  The defendants argue that their formal offer of September 20, 2016 -- $185,000 of new money plus costs -- ought reasonably to have been accepted on the date it was delivered.

[9]             The defendants served a single report which was a records review report of orthopedic surgeon Dr. John Hummel.  Dr. Hummell was not called to provide expert testimony at trial.

[15]         The plaintiff argues that neither of the defendants’ formal offers to settle was reasonable to accept in all of the circumstances.  The plaintiff was confident that she had a meritorious claim for substantial damages including loss of future earning capacity.  The plaintiff argues that the defendants’ responsive reports supported her claim.  The plaintiff argues that the defendants’ rebuttal expert, Ms. Claudia Walker, alone supported a fairly large claim for costs of future care.

[16]         The plaintiff argues that she has incurred tens of thousands of dollars for disbursements and that as a result of the trial, the family is financially devastated, requiring withdrawal of money from her children’s accounts.

[17]         The defence argues that the plaintiff went to court attempting to obtain over a million dollar award for a soft tissue injury.  The plaintiff took a gamble and lost, and it is this kind of action that is driving insurance rates up.  The defendants offered over five times what the jury awarded and it was a reasonable offer that ought to have been accepted on the date it was delivered.

[25]         Although some of the plaintiff’s initial negotiating positions were clearly inflated, and were tactical in nature and in that regard overly optimistic, I agree with the plaintiff that her decision not to accept the offer tendered by the defendants before trial was a reasonable one.  The evidence available to the plaintiff at the time that the settlement offers were rejected included expert reports in respect of past wage loss, loss of future earning capacity, and cost of future care.


[36]         It is my view that all of the financial evidence at trial supports the fact that the plaintiff was a person of modest means.  Having already concluded that the settlement offer was not one which ought to have reasonably been accepted, it is evident that an order requiring the plaintiff to either pay the well-funded defendants’ costs, or in the alternative denying the plaintiff her costs, from September 20, 2016 onwards, would result in a pyrrhic victory and could have the effect of discouraging plaintiffs from pursuing valid claims.

The full decision can be found here:

Jury dismisses plaintiff’s claim after plaintiff turns down $75,000 offer

In an interesting costs decision released today, the court in Ross v. Andrews, 2017 BCSC 338, ordered the plaintiff to pay the defence double costs after a jury determined the plaintiff had "not been injured in the motor vehicle accident" and dismissed his claim.  In Ross, the defence made a formal offer to settle for $75,000 about three weeks before trial.  The plaintiff rejected this offer and proceeded to trial.  In ordering the plaintiff to pay the defence double costs for the entire trial, Mr. Justice Ball said as follows:

[4]             On September 18, 2014, the defendants made a formal offer to settle the action for the sum of $41,000 plus costs. This offer to settle was open for acceptance at any time before 4 pm, Pacific Standard Time on the last business day before the commencement of the first day of trial in this proceeding after which the offer would expire.

[5]             Later on May 19, 2016, the defendants delivered to the plaintiff a second offer to settle. The settlement amount in this case was $75,000 together with the plaintiff’s costs assessed in accordance with Rule 14 – 1 of the Supreme Court Civil Rules.

[6]             Neither of these offers to settle was accepted by the plaintiff. As noted above the plaintiff went to trial before a jury which lasted 15 days, and was not successful.

[21]         Based on a review of the evidence at trial, described in part above, and the cases cited, as well as a review of the submissions of counsel, I find that the offer to settle in the amount of $75,000 ought reasonably to have been accepted by the plaintiff having given consideration to the foreseeable credibility problems and the negative verdict of the jury. The offers to settle both included positive returns whereas at trial the plaintiff’s action was dismissed. The relative financial circumstances of the parties do not preclude an order for double costs in this situation. As a result, applying Rule 9-1 of the Supreme Court Rules, the defendants are entitled to the costs of this action generally and double costs of this action commencing on May 26, 2016. This date is seven days after the second offer to settle was delivered to the plaintiff; a reasonable period of time for the plaintiff to consider the offer. Double costs are awarded from May 26, 2016 until the end of the trial and will include the costs of the application to fix costs. The defendants are also entitled to disbursements but not doubled.

The full decision can be found here:

Plaintiff awarded $13,050 in damages after jury trial

In reasons for judgment released today, the court in Harder v. Poettcker, 2017 BCSC 312, awarded the plaintiff $13,050 in damages after a jury found him 85% contributorily negligent in a motor vehicle accident.  The plaintiff appealed the jury's finding on liability but that appeal was dismissed.  The court of appeal then directed the matter back to the trial judge for an assessment of damages.  In discussing damages, Mr. Justice Sigurdson said as follows:

[1]             The plaintiff, then 66 years old, was injured on February 3, 2009 when the motor vehicle he was backing out of a parking spot in a shopping mall was struck from behind by a vehicle driven by the defendant.

[2]             The matter was tried by a jury. The jury found the defendant negligent but found the plaintiff to be 85% at fault. On appeal, the Court of Appeal directed the jury verdict on liability to be entered but referred the assessment of damages to me as the trial judge.

[3]             This is the assessment of damages. Given the apportionment of liability the plaintiff is entitled to be compensated for 15% of the damages that I assess.

[83]         I find that the injuries were soft tissue injuries suffered by the plaintiff that largely resolved by trial more than six years after the accident and any continuing discomfort that Mr. Harder suffers is largely related to his pre-existing back problem or his fibromyalgia which I find was not caused by the accident. The discomfort and pain suffered by Mr. Harder during the recovery period was however more significant than otherwise because they occurred to a man with a troublesome back and waxing and waning fibromyalgia. The defendant concedes that there was at least an acute period of discomfort and restricted activity.


[117]     I have concluded that the soft tissue injuries that the plaintiff suffered in the motor vehicle accident had resolved by the time of the trial.

[118]     Because I have concluded that the plaintiff’s injuries from the accident have resolved I make no award to the plaintiff for any sum for cost of future care or loss of future housekeeping capacity.

[119]     Based on the finding of contributory negligence, the plaintiff is entitled to an award of 15% of the damages that I have awarded (general damages of $50,000, loss of housekeeping capacity of $10,000, recovery of monies paid to third parties $15,000, and special damages of $12,000) and that amounts to (15% of $87,000) $13,050.

The full decision can be found here:

Defence denied costs despite beating formal offer to settle

In reasons for judgment released today, the court in Rutter v. Vadnais, 2017 BCSC 76, declined to award the defence costs even though they beat their formal offer to settle by $30,000.  In Rutter, the plaintiff was awarded $20,000 by a jury at trial, far lower than the plaintiff’s offer to settle of $180,000, and lower still than the defence formal offer of $50,000.  The defence also argued the plaintiff should be denied all costs as the $20,000 recovered fell below the small claims limit of $25,000.  In dismissing the defence arguments, Madam Justice B.J. Brown wrote:

[1]             This matter went to trial before a jury in February 2016. The jury awarded $20,000 in general damages comprised of $10,000 for nonpecuniary damages $5,000 for special damages and $5,000 for future care.

[2]             The parties exchanged a series of offers. The last offer from the defendant on March 6, 2014 was for $50,000...On November 6, 2015 the plaintiff offered $180,000 and the defence did not respond.

[3]             The jury award was less than the defence offer of $50,000.


[11]         I am not persuaded by the defendant's argument that the plaintiff should only receive disbursements to March 6, 2014 because she recovered damages in the range of a Small Claims’ award. The offers exchanged by the parties exceed the Small Claims’ limit. Those offers were reasonable estimates prepared by the parties of their view of the appropriate award of damages. Additionally, the plaintiff’s physician also diagnosed the injuries from the accident as not insignificant. Finally, the plaintiff’s conduct was not so egregious that she would not be entitled to costs. As such, there was sufficient reason to bring the proceeding in the Supreme Court.


[13]         The plaintiff in this case had strong medical opinions to support her position. The defence position was contrary to the weight of the medical evidence. Although the jury award is less than that offered by the defendant, I am not persuaded that the offer made was one that ought reasonably to have been accepted either on the date that the offer was delivered or any later date. As Madam Justice Adair said in Currie v. McKinnon, 2012 BCSC 1165 at para. 20: "While the purpose of the Rule is to encourage reasonable settlements, parties should not be unduly deterred from bringing meritorious, but uncertain, claims because of the fear of a punishing costs order."

[14]         Second, while the amount recovered is less than the settlement offer, that is rarely a determinative factor, particularly as jury awards are more difficult to predict than judge assessments...

[15]         The relative financial circumstances are also a neutral factor in this case. Although Ms. Rutter does have some assets, I am not able to say that losing her costs or paying Ms. Vadnais her costs would not have a dramatic financial effect on Ms. Rutter.


[17]         In conclusion...the plaintiff will have her costs of the action at Scale B until March 15, 2014, a reasonable time in which to consider the defendant’s offer. The parties will bear their own costs thereafter.

The text of the full decision can be found here:

Court Strikes Defence Jury Notice on Basis that Wage Loss Claim Too "Complex"

In the recent decision of van Driesum v. Young, 2016 BCSC 2279, the Court granted the plaintiff’s application to strike the defence jury notice on the basis that the wage loss claim was too “complex” for the jury.  The court said:

[1]             The Plaintiff applies to strike the jury.  The trial is scheduled to begin November 21 and to occupy 18 court days.  These relatively brief reasons will perhaps not do full justice to the able submissions from both sides I heard on Monday, but the imminence of the trial calls for a prompt decision.

[6]             The overall question is trial fairness, weighing the Defendant's presumptive right to a jury against the risk of unfairness to the Plaintiff by having a jury attempt to decide facts and answer questions which are too intricate or complex.  My conclusion is that this case should not proceed with a jury.

[9]             In the result, determining the Plaintiff's pre‑accident earning history will not be a straightforward exercise.  The complexity of that exercise, however, pales when it is compared with determining the Plaintiff's earnings, lost earnings, and diminished earning capacity post-accident.

The full text of the decision can be found here: