IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120516

Docket: M051057

Registry:
Vancouver

Between:

Justine Amezcua

Plaintiff

And

Jennifer Norlander

Defendant

Docket: M001961

Registry:
Vancouver

Between:

Justine Amezcua

Plaintiff

And

Stephanie Taylor

Defendant

Before:
Master D. Baker

Ruling after Case Planning Conference

ISSUE

[1]            
At the Case Planning Conference in these matters two questions arose and
I took the unusual step of reserving on them.  Broadly speaking Mr. Pettit for
the defendant Norlander requests an order directing the plaintiff to deliver
particulars of special damages to date.  In the other action Mr. Alma seeks directions
under Rule 5-3(1) that the plaintiff “…confirm which experts and expert
reports it plans to rely on at trial”.  Each defence counsel supports the
other’s request.

[2]            
Mr. Harbut opposes the requests.  He argues that Hinkson J.’s decision
in Yousofi v. Phillips[1]
precludes the delivery of particulars and that Kloegman J., in Galvon v.
Hopkins[2], 
reversing a Master’s order at a CPC, concluded that an order that “…the
plaintiff notify counsel for the defendant of the name of the neurologist with
whom the appointment had been made…” together with ancillary or related
information is beyond the jurisdiction of the Master or, indeed, any presider
at a CPC.

BACKGROUND

[3]            
I will not dwell on the history of these cases.  It is sufficient to
note that these claims arose as a result of accidents that occurred in 2004 (Norlander)
and 1999 (Taylor) respectively.  In the latter case the matter has gone to the
Court of Appeal on the matter of adding defendants[3]. 
However one characterizes these proceedings, the wheels of justice have ground
so slowly that at times they stopped.  I think, frankly, that the chronology of
the claims alone may distinguish the cases from the vast majority of personal
injury claims.  In any event, the matter is set for trial June 24, 2013 for
nine days.

ANALYSIS

[4]            
I will first deal with Mr. Pettit’s request for particulars.  At the CPC
he requested particulars of both past wage loss and special damages.  Mr.
Harbut conceded that it is appropriate to provide particulars of past wage loss
and agreed to do so.  He opposed providing the same in respect of special
damages, however, citing the reasons of Hinkson J. in Yousofi v. Phillips,
but the only portion of the reasons he emphasized was at para. 6(c):

Insofar as the past loss of earnings is concerned, this is
information that can be identified and quantified and should be provided by the
plaintiff to the defendant. It is not, in my view, appropriate that it be
provided as particulars, but I am satisfied it should be provided in some
fashion to the defendant, and I am going to direct that the plaintiff quantify
his claim for past loss of earnings and provide that information to the
defendant.

Insofar as prospective loss of
earnings is concerned, I am not satisfied that that is a matter that can be necessarily
particularized, and I leave it to the defendant to pursue that through
examinations for discovery.

As I have mentioned, Mr. Harbut
agrees in any event to provide particulars of past wage loss.  In addition to
the above, however, Hinkson J., in respect of special damages said at para.
6(h):

These are matters that should be
identified by the plaintiff for the defendant, but not as particulars of the
pleadings.

Mr. Pettit submits that this
conclusion is clearly in error.  It is, of course, hardly for me to review a
Judge’s decision in chambers, but there are occasions in which stare decisis
need not apply.  Wilson J. in Re Hansard Spruce Mills Ltd.[4]
concluded that Judges may disagree:

Therefore, to epitomize what I have already written in the Cairney
case, I say this: I will only go against a judgment of another Judge of this
Court if:

(a)        Subsequent
decisions have affected the validity of the impugned judgment;

(b)        it is
demonstrated that some binding authority in case law, or some relevant statute
was not considered;

(c)        the judgment was unconsidered,
a nisi prius judgment given in circumstances familiar to all trial
Judges, where the exigencies of the trial require an immediate decision without
opportunity to fully consult authority.

I think that paragraphs (b) and (c) have application in this
case.

[5]            
With the greatest respect, I think that in the rapid fire process of
chambers applications important and relevant authorities were overlooked by
counsel.  In particular leading authorities on pleading confirm that it is
appropriate to expect a party to plead details of special damages and, if they
are not given, to demand particulars.  The author of Odgers On High Court
Pleading and Practice[5]
cites, as an illustration, Hayward v. Pullinger & Partners Ltd.[6]:

But when any special damage is
claimed, without sufficient detail, particulars will be ordered of the alleged
damage…

More recently and locally the
authors of Conduct of Civil Litigation in British Columbia[7]comment:

Special damages must explicitly
be claimed and proved.

And further, in relation to past
wage loss:

…but the weight of the
authority treats these as special damages which therefore must be specifically
pleaded; the defendant is also entitled to particulars.

I cite this latter quote not in respect of wage losses per
se, but for the implicit assumption that a defendant is entitled to particulars
of special damages.

[6]            
I cannot see, then, why a party should not be required to particularize
his or her special damages to date.  The same, of course, cannot be said for
general damages, but the defence is not asking for that.  The plaintiff will
therefore give particulars of her special damages to date.

[7]            
As I said above, the defendant Taylor asks for an order that the
plaintiff “…confirm which experts and expert reports it plans to rely on at
trial”.  In Galvon v. Hopkins, Kloegman J. declined to order that a
party name a neurologist consulted by the party, along with the date of the
appointment, or to advise of the names of subsequent experts or the dates of
their appointments.  After considering several authorities, she concluded[8]:

I do not see anything in Rule 5‑3
governing case planning conferences that clearly, expressly, and specifically
allows the presider to compel a party to provide another party with the details
of any potential expert witnesses before that party has even consulted with the
expert or made an election whether to call the witnesses’ evidence at trial.

Rule 5-3 does have clear
and express provisions respecting experts: Rule 5-3(1)(k) permits the Court to
direct the appointment of joint experts, to order that they consult, to limit
the number of experts, to set dates for service of experts’ report (i.e. other
than those set by Rules 11-6(3) and (4)), or to direct what issues upon which
they may be called.  But none of these (other than by advancing the service
date for reports) requires that a party disclose either the expert’s identity,
or the area of his or her expertise before serving the report.

[8]            
Rule 5-3(1)(k) is not inconsistent, in my view, with the reasoning in Galvon. 
The disclosure aspects of that Rule assume that evidence has been gathered,
assessed, and considered essential to a party’s case.  The only question
remaining then is when it will be disclosed, thus Rule 5-3(1)(k)(iv),
permitting service dates other than those provided by Rule 11-6.  It is
important and instructive to note the court’s reference to “potential” expert
witnesses; it seems to me that Kloegman J. was concerned with protecting
litigation privilege during the evidence-gathering phase, so that the party
assembling his or her case is free to do so without the requirement of
disclosing experts (or, I conclude, directions) that may prove fruitless and
avoid adverse inferences[9].

[9]            
The defendant Taylor’s request, however, comes within Rule 5-3(1)(k) and
does not ask the name or expertise of potential witnesses, but rather the
details of the experts it will rely on at trial.

[10]        
This case, as I have mentioned, has an extraordinary aspect.  The first
accident occurred approximately 13 years ago.  Such delays sometimes occur
when, for example, the plaintiff is an infant.  That is not the case in this
situation.  The defence is justified in its frustration and perplexity in not
knowing, in any reliable way and after 13 years, the nature or extent of
medical injuries suffered by the plaintiff.  That being the case, the plaintiff
is ordered to deliver the reports of experts upon which she intends to rely at
trial, no later than November 1, 2012.

“D.
Baker, M.”