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FEBRUARY, 2002 NEWSLETTER
Date: Tuesday March, 12, 2002
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NEED LEGAL RESEARCH?

PERSONAL INJURY, MATRIMONIAL, ESTATES, CRIMINAL, LABOUR LAW?

CONTACT MIKE WOODSKE AT (604) 251-3622 OR E-MAIL: MIKE@LEXSPEC.COM

TABLE OF CONTENTS:

1. COST OF FUTURE CARE AND FUNCTUS OFFICIO

2. ADJOURNMENTS AND ADVANCES

3. RULE 28 AND EXPERTS


COST OF FUTURE CARE AND FUNCTUS OFFICIO

The death of a plaintiff who is massively injured and who dies before various aspects of the litigation have been cleaned up was the subject of a recent decision by Mr. Justice Harvey. In Brennan v. Singh 2001 BCSC 1812, the question of functus officio was argued. He initially analyzed the situation in reasonably standard terms:

[25] A trial judge becomes functus officio on an issue between the parties when an order or judgment with respect to that issue is entered. In an oft quoted passage from Piyaratana Unnanse et al v. Wahareke Sonuttara Unnanse et al, [1950] 2 W.W.R. 796, (J.C.P.C.), Sir John Beaumont stated at 800:

The general rule is clear that once an order is passed and entered or otherwise perfected in accordance with the practice of the Court, the Court which passed the order is functus officio and cannot be set aside or alter the order however wrong it may appear to be. That can only be done on appeal.

The leading British Columbia authority is Clayton v. British American Securities Ltd. et al., [1935] 1 D.L.R. 432 (B.C.C.A.) where McPhillips J.A. stated at 433: It is the unquestioned practice and one of very long standing as I understand it that until judgment or order be entered it cannot be said to be beyond reconsideration or recall.

In the instant case, an order was entered that reads, inter alia, as follows:

THIS COURT FURTHER ORDERS that the plaintiff, Marcia D. Brennan, be and hereby is awarded damages for loss [sic] of future care in the amount of $1,982,000.00, subject to any reductions in this award which the court orders.

What is in issue is whether this entered order has the effect of preventing the court from reconsidering the cost of future care when making s. 25 deductions to the award.

[26] On its face the entered order would appear to make the court functus officio related to the issue of the cost of future care. However, where a judgment or order is entered on an issue that is preliminary to the determination of the quantum of damages, there are circumstances in which the court retains full jurisdiction with respect to assessing damages.

[27] I refer here to Foster v. Kockums Canacar Division Hawker Siddeley Canada Inc. (1993), 83 B.C.L.R. (2d) 207, [1993] B.C.J. No. 1884 [hereinafter Foster], a decision of the Court of Appeal of this province. The court considered the jurisdiction of a trial judge in a wrongful dismissal case to consider new evidence that would affect a prior entered order. The order read in part:

THIS COURT FURTHER ORDERS that if the parties can not agree on the compensation the Plaintiff is entitled to for 20 months' notice, that damages be assessed, but in making such assessment no salary increase or bonus entitlement shall be included.

[28] After trial, the parties were not able to agree on the amount of damages, and an assessment hearing was scheduled. Two days before the hearing, the defendant learned that the plaintiff had commenced working 15 months into the 20 month notice period. The trial judge's order, above, was entered the day the assessment hearing commenced. At the hearing, the plaintiff took the position that it was not open to the trial judge to consider new evidence as he was functus officio. The judge agreed and made an order that he was functus officio with respect to a consideration of any earnings from replacement employment.

[29] A majority of the Court of Appeal disagreed, bifurcating the issue of notice and that of damages. Hollinrake J.A. (with Rowles J.A. concurring) stated at 4 (Q.L.):

With respect, with the damages yet to be assessed and there being no judicial determination of this issue, it was open to the judge to hear this evidence and take it into account in his assessment.

[30] I am of the view that this reasoning is applicable to the instant case.

The key (and controversial) paragraph is paragraph 32:

[32] It follows that the form of the order related to the cost of future care cannot be a final judgment on the issue of damages. The order as entered is unenforceable at law. It is more appropriately viewed as representing a determination of a matter (the cost of future care) that, in this context, is preliminary to the assessment of damages for the cost of future care.

The case is ultimately about the answer to the question of what is an issue. If the test is that the judgment must be enforceable, before a judge is functus,then any tag end of a question would be sufficient to reopen any aspect of the case. He relies on authority where the issue before the court was when is an order final and, therefore, can be entered. The real solution is that indicated in the cases cited by Mr. Justice Harvey in paragraphs 33 to 36. It is the unfortunate fact of entry of the order that creates the practical difficulty. If they do not enter the order, clearly jurisdiction exists to vary the order and the judgment pronounced. The solution lies in counsel not approving an order for entry unless they are satisfied that they have finally dealt with the issue. Then it is a matter of appeal (and properly so).


ADJOURNMENTS AND ADVANCES

The Court of Appeal recently upheld a Chambers judgment which required the Defendant in a personal injury to case to make an advance payment on damages when the Plaintiff applied for an adjournment.

In Holderness v. Gettings 2002 BCCA 0092, the Plaintiff applied for an adjournment on the basis that the Defendant had filed a medical report that was outside the time limits and late. The Court described the Defendant’s position:

[7] The defendant alleges that Madam Justice Dorgan did not have jurisdiction to make such an order in these circumstances, on the basis that terms of an adjournment can only be imposed upon the person seeking the adjournment. I note that counsel for the defendant was unable to find any authorities in support of that proposition, nor, I might add, was counsel for the plaintiff able to find any authorities on point.

The Court reached the conclusion that the judge had jurisdiction pursuant to Rule 1.

[12] Further, I do not see that the point on appeal is of significance to the practice generally. Rather, it was a discretionary order made with a view to the particular circumstances of the case.

RULE 28 AND EXPERTS

The question of whether an expert witness can be examined by the opposite party was discussed in the Court of Appeal decision of Christensen v. Sinclair 2002 BCCA 0065.

The Plaintiff had applied pursuant to Rule 28 to examine a physician witness in a medical negligence suit. Either party did not retain the doctor in question. The Chambers judge (Madame Justice Dorgan) made a order on terms that allowed the examination to proceed on the basis of his previously formed opinions and not on new matter and, additionally, required that he be paid a reasonable expert fee.

Madame Justice Dorgan had refused to follow an earlier Supreme Court decision that reached the opposite conclusion: Eckersley v. Terweil (1991) 59 B.C.L.R.(2d) 94 (S.C.)

After comprehensively reviewing the authorities, the Court upheld the decision of the judge below and overruled Eckersley. The principles that are to applied in the application of Rule 28 were then described:

[33] An interpretation of the plain language of Rule 28 supports the proposition that an expert may be examined under its provisions. Rule 28(1) refers to the examination of "a person, not a party to the action". The witness may be examined "on the matters in question in the action". Nothing in Rule 28(1) suggests that it would apply only to lay witnesses, or that the opinions of persons qualified to give opinions "on the matters in question" might not be elicited.

[34] The intended application of Rule 28(1) to lay and expert witnesses alike is supported by Rule 28(2) which refers specifically to experts. There are two parts to subrule 28(2): the first part exempts experts retained by another party from the general application of Rule 28(1); the second is an exception to the exemption. If the party applying can show that he is unable to obtain facts and opinions on the same subject "by other means", then even an expert previously retained by another party can be examined under this Rule.

[35] Reading those first two subrules together makes it clear that Rule 28(1) is a Rule of general application to all potential witnesses, whether lay or expert, and that Rule 28(2) is a limitation on that general rule in respect only of those experts who may previously have been retained by another party.

[36] I do not find the various arguments advanced against this interpretation of the Rule by the appellant Christensen, and the defendant respondents, persuasive. Professional embarrassment cannot justify an interpretation of the Rule exempting experts from compellability. Testifying in many circumstances can cause both personal and professional embarrassment. It is part of the price to be paid for getting at the truth. Courts have always done whatever they reasonably can to limit or minimize embarrassment to a witness compelled to testify. There is no authority, however, for holding that potential embarrassment outweighs the need for compellability. The same is true of the argument that compellability interferes with the witness's freedom to contract.

[37] It is true that the expert cannot be compelled under this Rule to prepare himself for the examination. The order in question does not purport to do so. Whether a witness chooses to prepare himself is a matter for his individual judgment, having regard for the expert's professional responsibilities, other demands on his time, and other relevant considerations. The same answer applies to the objection that the witness cannot be compelled to survey the literature, and that it would be dangerous to give an opinion without doing so.

The Court accepted that Rule 28 was different in nature from Rule 27 which prohibits opinion.


NEED LEGAL RESEARCH?

PERSONAL INJURY, MATRIMONIAL, ESTATES, CRIMINAL, LABOUR LAW?

CONTACT MIKE WOODSKE AT (604) 251-3622 OR E-MAIL: MIKE@LEXSPEC.COM


Date: Tuesday March, 12, 2002

Source: MIKE WOODSKE

  
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