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Steps in a Lawsuit: Exchanging Documents

Once pleadings have been filed and exchanged, the next step in a lawsuit is for the parties to compile and exchange all documents in their possession or control that are relevant to the lawsuit. Given that the pleadings define the matters at issue in the lawsuit, they will form the basis for determining what documents are relevant and should be disclosed. For instance, in a personal injury case, a plaintiff’s medical records would be relevant to whether they were injured or not. In a breach of contract case, the contract alleged to have been breached would be relevant to establishing that there (a) was a contract between the parties, and (b) what each party’s rights and obligations were under that contract.

Each party, once having compiled all such documents, will list each of them on a list of documents. This list serves as a quick and easy reference for determining what documents the parties have. These lists are provided to the other parties who can then determine what documents they would like to request.

If a party who receives a list of documents from another party thinks that the list does not contain everything that it should, the party can demand the other party amend their list of documents and provide the documents that the party thinks should have been listed.

Just because a document is relevant to a lawsuit doesn’t mean that it has to be disclosed. Notably, any documents that fall under one or more categories of privilege need not be exchanged. For instance, any communications between a party and their lawyer, while relevant, would fall under solicitor-client privilege and therefore need not be exchanged.

Parties to a lawsuit have a continuous obligation to let each other know of relevant documents as and when they become available. In cases where new documents arise or become known over time, a party can serve an amended list of documents.

Steps in a Lawsuit: Starting and Responding to a Lawsuit

A lawsuit involves one person suing another person for something. In Supreme Court, the person who starts a lawsuit is called the plaintiff. The lawsuit is started by filing a notice of civil claim with the court registry. The notice of civil claim sets out the factual and legal basis for the claim, and what the plaintiff is seeking.

The person being sued is called the defendant. Once the notice of civil claim is served on the defendant, the defendant can file a response to civil claim that, similarly, sets out the factual and legal basis for opposing the claim.

If the defendant believes he has his own claim against the plaintiff, he can file a counterclaim, which is similar in form and content to a notice of civil claim. The plaintiff, once served with the counterclaim, can file a response to counter claim.

If the defendant believes that another person is to blame for the plaintiff’s losses, he can bring that person into the lawsuit by filing a third party notice. Once served with the third party notice, that person, now called the third party, can file a response to third party notice, setting out their position on the matter.

Collectively, these documents are called pleadings define all matters at issue in the lawsuit.

I have Separated from my Spouse. Can I make a New Will?

If you and your spouse separate, you can make a new will before you have finalized your divorce and other related matters such as property division and support. However, if you were to pass away, your family law claim must be resolved before any family assets that are supposed to pass through your estate are distributed.

Estates are often distributed by way of the “residue” as opposed to distribution of specific assets. The residue of your estate is the value of your estate after payment of debts. Distributing your estate by way of the residue can help to avoid the need to update your will if your assets change.

Upon resolution of your family law claim, any family assets that you were entitled to would pass to and form part of your estate, and be distributed to your beneficiaries in accordance with your new will.

Is My Will Still Valid After Separation or Divorce?

An existing will is still valid after separation or divorce. However, section 56(2) of the Wills, Estates and Succession Act, S.B.C. 2009, ch.13 provides that any appointment, power of appointment, or gift to a spouse of a will-maker who has ceased to be a spouse at the time of the will-maker’s death is revoked.

If your will appoints your separated or former spouse as the executor, they would be passed-over in favour of the alternate executor.

Any gifts to your separated or former spouse would pass to the alternate beneficiaries named in your will. In the event that your will does not name alternate beneficiaries, that gift would pass as if you had died without a will.

Under the Wills, Estates and Succession Act, two persons cease to be spouses upon separation. This applies to both common-law and married couples. A court order or separation agreement is not required to confirm separation.

It is important to review the provisions of your will whenever a change occurs in your life, including breakdown of a relationship.

What Happens if a Beneficiary Dies?

The death of a beneficiary named in your will can impact the way in which your estate is distributed. The nature of the impact will depend on the terms of your will.

Estates are often distributed by way of their “residue” as opposed to the distribution of specific assets. The residue of your estate is the value of your estate after payment of liabilities. If your will distributes the residue of your estate, it will therefore distribute the net value of your estate amongst your named beneficiaries.

If you have gifted a specific asset to a beneficiary and that beneficiary dies, that asset will form part of the residue of your estate. The exception to this would be if you have included a term naming an alternate beneficiary for that specific asset.

Terms naming alternate beneficiaries are often referred to as “gift-over” provisions. Gift-over provisions allow you to specify who should receive an asset or share of the residue of your estate if the primary beneficiary dies.

Gift-over provisions are commonly used when the residue of an estate is to be divided amongst the will-maker’s children. The will-maker may decide to include a term that states that, if their child pre-deceases them, that child’s share of the residue is to be divided amongst that child’s surviving children.

In the absence of gift-over provisions, where a named beneficiary dies, the residue to which they would have been entitled to will be divided amongst the surviving beneficiaries entitled to receive the residue of the estate. In the event that there are no surviving beneficiaries, the will-maker’s estate would be distributed as if they did not have a will. This would be done in accordance with the intestacy provisions of the Wills, Estates and Succession Act, S.B.C. 2009, ch.13.

Changes to ICBC No-Fault Benefits

As of April 1, 2019, substantial changes come into effect for ICBC No-Fault benefits. Also known as “Part 7” benefits, these benefits are generally available to all British Columbia motorists involved in a collision regardless of whether they are at fault or not. These benefits primarily cover treatment expenses and disability benefits.

Treatment Expenses

One of the biggest changes is that ICBC will now pay more for therapy sessions. These include physiotherapy, massage therapy, chiropractic care, acupuncture, kinesiology and counselling. These new rates are available to everyone regardless of whether their accident occurred before or after April 1, 2019. A person will be initially limited to 12 sessions of massage therapy, acupuncture, kinesiology and counselling, and 25 sessions of physiotherapy and chiropractic care. After these limits are reached, ICBC will only pay for more sessions if a person’s doctor or ICBC’s medical adviser certify that more treatments are necessary.  

While the amount ICBC will cover for each treatment has increased, there is a big caveat for people injured in not-at-fault accidents that occur after April 1, 2019. That is, if the actual amount of a person’s treatments is more than the amount ICBC has to pay under Part 7, they cannot recover the difference in their personal injury claim.

That is a significant change that will inevitably result in some innocent people not being fully compensated for their treatment expenses. This is yet another way in which ICBC and the provincial government are making people injured through no fault of their own subsidize bad drivers.

Disability Benefits 

Where a person’s injuries totally disable them from working within 20 days of an accident and they do not have access to or have exhausted other wage-loss benefits, ICBC will pay them temporary total disability benefits. These are known as TTDs. A person will be entitled to TTDs if they are “employed” according to ICBC, which means employed on the date of the accident or they worked at least 6 of the 12 months preceding the accident.

Before April 1, 2019, the amount a person would receive in TTDs would be 75% of their average gross weekly earnings in the 12 months before the accident up to a maximum of $300. That was an incredibly small amount of money. Many people on TTDs struggle financially and end up going back to work well before they sufficiently recover because they simply can’t afford to live on $300 a week or less. A low weekly benefit was one of the ways ICBC forced people back to work before they were ready.

Now, the amount of TTDs payable will be 75% of a person’s average gross weekly earnings up to a maximum of $740.

While this is a welcome change, it only applies to people who are injured in accidents occurring after April 1, 2019. Because of that, even if you are unable to work beyond April 1, 2019 because of your injuries, if your accident happened before that date, ICBC only has to pay you a maximum of $300 a week.

Residential Tenancies: Changes to the Residential Tenancy Act

Over the last year, there have been substantial changes to the Residential Tenancy Act and Regulation affecting the relationship between tenants and landlords.

The biggest change is the removal of vacate-clauses from fixed-term tenancy agreements unless the tenancy unit is going to be occupied by the landlord or a family member. In the past, these clauses meant that a tenant had to move-out at the end of the fixed-term. Now, at the end of the fixed-term specified in the tenancy agreement, the tenancy, instead of ending, converts to a month-to-month tenancy. With the automatic transition to a month-to-month tenancy, the allowable rent increase is limited to the rate of inflation plus 2%.

Further changes include an increased notice period for ending a tenancy for demolition, renovation, repair or conversion. Previously, landlords only had to give tenants 2 months’ notice to end a tenancy under these grounds. Now, they must give 4 months’ notice.

If a tenant has to vacate a rental until in order for it to be renovated or repaired, they must be given the option, or right of first-refusal, to return to the unit. This rule applies to buildings containing 5 or more units. If a landlord fails to give the tenant this option and rents the unit to someone else, the landlord can be subject to a fine of up to 12 months’ rent.

For many years, landlords have been able to evict a tenant if the landlord or a member of their family wants to use the unit. If, after evicting a tenant on that basis, it turned out the landlord never in fact used the unit for personal reasons, the landlord could be fined. This fine has now been increased to 12 months’ rent

The Rental Housing Task Force was established in April 2018 to provide recommendations to the BC government regarding further changes to the Act. The Task Force has also recommended that the allowable annual rent increase be reduced from the rate of inflation plus an additional 2%, to the rate of inflation only. Additional recommendations are anticipated in the coming months.

Stapleton v. Andrew

Greg Phillips and Simon Irving just received Reasons for Judgement awarding a young woman more than $161,000 in damages for injuries she suffered in a motor vehicle accident.

While driving home after work one night, our client was rear-ended by a distracted driver. The driver tried to flee the scene, but fortunately was followed by a concerned citizen who had witnessed the accident. As a result of the accident, our client sustained multiple injuries to her neck, shoulders and back. She also suffered from headaches and symptoms affecting the use of her right arm.

At the time of the accident, our client was a young chef. She had recently achieved her Red Seal accreditation and was looking forward to pursuing a career in a field she loved. After the accident, she pushed through her pain as much as she could to maintain her employment and reputation as a hard worker. Over time, however, it became clear that she couldn’t manage all the demands of working as a chef, and that she would have to look for other, less satisfying work. Being unable to apply for a multitude of kitchen positions that she would have been perfect for absent her injuries, she had yet to find new employment at the time of trial.

ICBC argued that our client’s injuries were minor and had only a minimal impact on her life. They also argued that her ongoing symptoms would in no way impact her ability to earn an income in the future. Without any real basis, ICBC also said that our client was not a reliable or credible witness.

At trial, Greg and Simon presented expert medical evidence from a physiatrist and occupational therapist to establish that that our client’s injuries were caused by the accident, were permanent, and would continue to impair her life and ability to work in the future.

In the end, the judge largely rejected all of ICBC’s arguments and awarded our client $161,191.64 including $75,000 for pain and suffering and $80,000 for loss of future earning capacity.

You can click on the link below to read the trial judge’s Reason’s for Judgement:

Stapleton v. Andrews, 2019 BCSC 678

Career Plans Derailed by Car Accident

People injured in car accidents often struggle to manage the demands of their job. If a person’s capacity to fully perform the requirements of their chosen career are projected to continue into the future, he or she is entitled to be compensated for that loss. But what about people who are not established in a career when they are injured? What about young people who are still in high-school or university? Are they entitled to be compensated for not being able to fully do a job they hadn’t yet obtained?

In these cases, ICBC often says they’re not.

As an example, in the case of Turner v. Dionne, 2017 BCSC 1905, the 19-year-old plaintiff was seriously injured in an accident. She sustained a traumatic brain injury, two fractured vertebrae and extensive soft-tissue injuries to the tissues around her spine. These injuries left her with debilitating and chronic back pain re psychological injuries that affected her ability to work.

The plaintiff had been in the middle of completing grade 12 when the accident happened. She had already obtained her first-aid certification and training to work as a firefighter, and had ambitions to pursue nursing after graduation. After the accident, she attempted to pursue her interest in the medical field first by engaging in a care aide program. Unfortunately, she was unable to complete the physically demanding practicum, which prevented her from completing her training. The plaintiff then made a second attempt to return to the medical field by enrolling in a nursing program. While she successfully completed her first year, she struggled extensively during her second. The program and practicum increased her pain and impaired her sleep so much so that she had to drop-out of the program. Being forced to give-up on her dreams of becoming a nurse was very emotionally difficult for her.

At the time of trial, the plaintiff was unemployed, but still held out hope that she could pursue additional schooling and achieve gainful employment in the future.

ICBC argued that the plaintiff’s difficulties completing her program were in no way related to her injuries and that she dropped-out of nursing, not because she couldn’t physically do the work, but because she wasn’t academically inclined.

The court disagreed with ICBC and found that there was good reason to believe that, absent the accident, the plaintiff would have successfully completed a college diploma program in a medically-related field and that, because of her injuries, she could no longer pursue such work. As a result, the court awarded her $950,000 for loss of future earning capacity.

What are Caps & Why are they Unfair?

As of April 1, 2019, all motor vehicle accidents that occur in BC will be subject to a new set of rules brought in by the provincial government last year. The most significant change is the imposition of a cap on damages for pain and suffering for those who suffer “minor injuries”.

Injury caps are detrimental to injured persons because they limit the amount of damages the person can claim from the person responsible for injuring them. That limit or cap is an arbitrary number that is not informed by the individual circumstances and experiences of the injured person.

While ICBC and the provincial government say that the cap will only apply to people who sustain “minor injuries”, the fact is that the majority of injuries sustained in motor vehicle accidents will be caught by the cap. This is because the BC government has made the definition of a “minor injury” exceedingly broad and the ability to escape it incredibly difficult.  Almost all physical and psychological injuries except for broken bones and complete muscle tears will be classified as minor. This can even include brain injuries and Post-Traumatic Stress Disorder. To escape the cap, a person must show that their injuries have caused a “serious impairment” to their schooling, personal life or work. What is still not clear is the level of disability a person must suffer for them to meet this threshold.

Many people have voiced concerns that, by focusing extensively on a person’s ability to work or go to school, the BC government is discriminating against people on a variety of bases. For example, despite suffering the exact same injuries, people who work in lighter or more sedentary jobs will likely be treated differently than people who work in more physically-demanding occupations. Similarly, women, who are more likely than men to be homemakers or stay-at-home parents, and seniors who are retired will likely be treated differently than men and those with jobs despite having the exact same type of injury.