Ian Mulgrew: Trial mismanagement turns express into milk run
Credit to Author: Ian Mulgrew| Date: Sat, 04 Jan 2020 00:59:16 +0000
Exasperated, B.C. Supreme Court Justice Nigel Kent has chastised ICBC and personal injury lawyers for being so disorganized that they cause delays and add needless expense to trials.
In the rare addendum to an 18,000-word judgment, Kent specifically denounced the conduct of lawyers for both sides in what was supposed to be a “fast-tracked” case involving a minor Vancouver motor vehicle crash from March 23, 2016.
Such cases — where the amount claimed is under $100,000 or the trial can be completed within three days — are expedited under Rule 15-1, supposedly to save everyone time and money.
But this trial took twice as long as it should have, six days over seven months!
“While the Trial Lawyers Association of B.C. will not comment on the specifics of this particular case, Mr. Justice Kent’s concerns are appropriate and worthy reminders that lawyers, ICBC and government must be better at making trials fairer, faster and cheaper,” said John Rice, president of the group representing most of the personal injury bar.
“However, ICBC is this province’s biggest litigant and for the last year ICBC has been pushing more cases to trial by making unreasonably low settlement offers, causing gridlock in our court system and an explosion in costs.”
An ICBC spokesperson said the savings identified by the judge would apply only to the very small percentage of claims that don’t settle before trial.
“When matters do go to trial, the expectation is that the trial process and procedures followed will be efficient,” the spokesperson said. “We will be taking the honourable judge’s comments seriously and will seek to identify areas to streamline processes and in order to use the court’s time more efficiently, including document agreements and common books of documents, where possible and appropriate.”
In his postscript entitled, “Some Comments About Trial Organization,” Kent complained “the parties’ estimates and assurances to the court turned out to fall woefully short of the mark.”
He cited a handful of fellow judges who raised similar concerns over the past year underscoring Attorney General David Eby’s claims that the court rules are failing and that is partly why ICBC faces serious financial challenges.
The province’s top trial court rejected Eby’s unilateral attempt last year to change the rules around expert reports that he said would have saved ICBC $400 million. Historically, a quarter of what everyone spent on auto insurance has gone directly to legal costs and lawyer fees, the company said.
Eby is trying to come up with a new plan — a process handicapped by tensions between the government and the legal community.
“Let’s get the attorney general, lawyers and the judiciary all rowing in the same direction in a ready-made vessel built and designed for this very purpose — the rules committee, which was set up to advance the efficient operation of court procedure,” Rice said. “The public is entitled to balanced reforms but efficiencies to the rules of court should not be extracted only from injured victims for the sole purpose of improving ICBC profits.”
The ICBC spokesperson said reforms last year — the limit on pain and suffering payouts for minor injuries and a new civil resolution tribunal process — have already significantly improved its financial picture, but “we are still seeing far too much spent on legal costs today; hundreds-of-millions every year.”
In this instance not only did the trial take twice as long as expected, but also the 36-year-old mother of three, Sundeep Sahota, an elementary teacher, was ultimately awarded more than $270,000 for her injuries.
“This case clearly was not a candidate for ‘fast-track litigation’ and the lack of co-operation between the parties with respect to trial preparation resulted in undisciplined scheduling, and poor organization and presentation of the evidence,” Kent fumed. “All-in-all, this was a most unsatisfactory trial experience from a judicial point of view.”
He noted estimates in the parties’ briefs exceeded the time allotted for a three-day trial but the lawyers assured him they would find ways to trim the time; each added a witness. While the court was able to tack on a fourth day of trial, a fifth day had to be scheduled three months later. This, too, turned out to be an inadequate. A further day was required — again, scheduled three months later.
Kent said confusion was evident from the start. There also was a lack of co-operation with respect to documents, he added: “Each party presented the court at the outset of the trial … hundreds of pages of material (that) included such things as the plaintiff’s entire employment records file from the VSB (Vancouver school board), MSP printouts, PharmaNet printouts, clinical records from a variety of service providers, ICBC documents, and the like, some duplicated more than once. Approximately 95 per cent of this material was not actually referred to or used in the trial. The whole exercise was a confused and confusing waste of time and paper.”
When the parties convened for final submissions, they presented him with a revised document agreement and another couple of hundred pages of material.
“All of this should have been done before the trial started,” Kent maintained.
He pointed out similar problems occurred in Firman v. Asadi, prompting Justice Frits Verhoeven to offer advice on how personal injury trials should be organized and prepared.
Kent added that Justice Jennifer Power in Cummings v. Tellier also suggested lawyers include in their final argument “submissions in the alternative” on matters of substance in case their primary submission fails.
In this case, defendants Oleksiy Slupskyy and Victor Slupskyy admitted liability for the crash but bitterly disputed the nature and extent of Sahota’s injuries and her financial loss.
They were found jointly liable for $271,703 in total — $75,000 in non-pecuniary damages; $73,000 for past loss of earning capacity (plus interest to be calculated); $115,000 for loss of future earning capacity; $4,703 in special damages (plus interest to be calculated); and $4,000 for future care.