Published by Law Courts Center and the Canadian Paralegal Institute
OCTOBER 2011
A View from the Bench: How to Help In-Person Litigants
L
aw Courts Center's
Distinguished
Speakers Series began
last September 21 with the
Honourable Madame Justice
Linda Loo who spoke about
self-represented litigants and
ways that paralegals can
assist them.
Since being appointed to the
Supreme Court 15 years ago,
she has seen the number of
in-person litigants dramatically increase to nearly 20%
of the number of litigants
before her, the majority of
whom are women and are
primarily in family law.
gants that may have literacy
issues, asking them to repeat
back instructions.
When assisting them in the
preparation of pleadings and
affidavits, Loo advises that
paralegals should help
prepare these documents
to accurately reflect the inperson litigant’s story and if
possible, be drafted in the
litigant’s own words. Loo
also reminds paralegals that
the most effective affidavits
are those drafted in a
chronological order with a
minimal amount of hearsay.
Loo finds that difficulties
arise when an in-person litigant does not have English as
a first language or has trouble understanding courtroom
procedure and the Rules of
Court. Even though there is
an abundance of information
available on the Internet to
help the in-person litigant,
she finds that the majority of
in-person litigants do not
have access to a computer or
have literacy issues.
Loo also has some
suggestions on how to better
prepare documents for court.
She advises that not all
Supreme Court Justices have
practice experience in the
area of law that they are
presiding in and therefore,
affidavits should be written
clearly and feature language
that is at the understanding
of a twelve year old. She
also requests that affidavits
and exhibits be tabbed and
numbered when included in
chamber’s records.
She suggested a number of
ways that paralegals can
assist in-person litigants, for
example: speaking in layman’s terms with no
legalese; advising them on
court procedure and court
etiquette; and for those liti-
Concerning the form of
pleadings, Loo urges
paralegals to list requested
orders clearly at the very
start of the Notice of Motion.
She also recommends that
affidavits be drafted
concisely with the main point
at the start of the affidavit, as
well as a limit on referencing
and exhibiting miscellaneous
correspondence.
that Chief Justice Bauman
issued earlier that day to try
and alleviate the volume. The
changes are being effected as
of October 3, 2011.
With email now overtaking
the telephone as the most
common way to communicate with counsel, Loo finds
that all too often the first
time counsel meet and speak
to one another is when they
appear before her in court.
Early communication
between counsel can help
with resolving disputes
thereby minimizing the need
for court intervention.
This lack of personal communication between counsel
may be one of the reasons
why the courts are currently
inundated with applications,
particularly in the Vancouver
Registry.
Finally, she thanked the
members of Amici Curiae for
their pro bono work and she
expressed interest in letting
her colleagues in the bench
know more about the program.
She referred her audience to
the Notice to the Profession
The Distinguished Speaker
Series continues on October
19, when District Registrar
Stuart Cameron will dispense
practical advice on how to
prepare for an assessment of
costs in a party/party setting
and also in relation to a
review of the lawyer’s
account under the Legal
Profession Act. !
Debbie Flood is a paralegal
at Whitelaw Twining.
w w w. l a w c o u r t s c e n t e r. c o m
recognized provider of Law Society approved CPD courses
Oct. 6
Oct. 11
Oct. 19
Oct. 22
Oct. 29
Nov. 2
Nov. 8
Nov. 17/24
Nov. 18
Civil Litigation 102e (4 Thursday eves)
ICBC Forms Lecture (noon)
How a Registrar Looks at Assessments
Document Discovery 101
MVA 103
Civil Rules Series 103e (3 Wednesday eves)
Health Records Workshop (evenings)
Civil Litigation 102 (2 Thursdays)
Law Office Management 101
www.ca nadia nparaleg alinstitute. com
2
P E R S O N A L
I N J U R Y
S T U D I E S
Applying Tests to Determine Causation in a Complex Collision Case
In 2006 the plaintiff was
diagnosed as having suffered
a MTBI by Dr. Raymond
Ancill, a psychiatrist specializing in the diagnosis and
treatment of brain injuries.
In light of Dr. Ancill’s diagnosis, the defendants retained
Dr. Paul Janke, a psychiatrist,
and Dr. Peter Rees, a neurologist to examine the plaintiff.
Following their individual
examinations, both concluded that the plaintiff had not
sustained a MTBI in any of
the accidents under consideration. All three experts testified at trial for this matter.
The Honourable Mr. Justice
Harvey noted that the plaintiff has the burden of establishing that:
• the negligent act caused or
materially contributed to the
damage he sustained; and
• here was a causal link
between the defendants’ negligence and occurrence of an
MTBI.
After reviewing the evidence
of the experts and witnesses
presented at trial, the Mr.
Justice Harvey found that:
“On the totality of the
evidence, including the
evidence of the plaintiff and
his brother relating to the
force of the impacts in the
first and third accidents, the
statements of the plaintiff
made to ICBC concerning
the second and third
accidents, the video
depicting the damage to the
plaintiff’s vehicle in the first
accident, and the absence of
any complaints which might
reasonably have given rise to
a suggestion of brain trauma
in the second and third
accidents, I am unable to
conclude that there was any
head trauma in the second or
third accidents which resulted in an MTBI.”
He went on to state that if an
MTBI occurred, it was as a
result of the first accident.
The experts who testified
at trial agreed that the diagnosis of an MTBI, in most
instances, is dependent upon
the determination of:
whether:
(1) There is a credible mechanism of injury sufficient to
cause damage to the brain
tissues;
(2) There were demonstrable
clinical effects of brain
injury at the scene of the
accident;
(3) In the weeks following
there were symptoms/and or
findings consistent with a
concussion; and
(4) The longer term symptoms and findings are unique
to brain trauma or whether
they have been caused by
other confounding factors.
He applied this four part test
to the evidence presented at
trial to determine whether
the plaintiff had suffered an
MTBI as a result of the first
accident.
In his reasons for judgment,
he stated, “ In conclusion,
while I find that the collision
of the first accident provides
a credible mechanism of
brain injury, I am not
satisfied that the evidence
discloses that the plaintiff
demonstrated that there were
demonstrable clinical effects
of brain injury at the scene
of the accident, nor that in
the weeks following were
there symptoms/and or findings consistent with a concussion. Lastly, I conclude
that the plaintiff’s apparent
chronic pain syndrome,
coupled with his sleep
BC Civil
Litigation Guide
apnea, both unrelated to
the sequelae of the four
accidents I am considering,
are confounding factors
which provide a plausible
explanation for some or all
of the complaints with which
he presents.”
It is of note that Mr. Justice
Harvey, in relation to point 2
(whether or not there were
demonstrable clinical effects
of brain injury at the scene
of the accident), found that
the absence of clinical
observations at the scene by
someone medically trained
did not preclude him from
finding that the plaintiff suffered a concussive injury.
As a result of the analysis
of the facts of the case in
relation to the four part test
for diagnosing MTBI,
Mr. Justice Harvey concluded that the plaintiff had not
suffered an MTBI. The
plaintiff was awarded
$14,000 in damages for soft
tissue injuries from the three
accidents which occurred in
1999 and $1,000 in damages
for extremely mild soft
tissue injuries sustained in
the accident which occurred
in 2007. !
Jodi McKinstry is a paralegal at Quinlan Abrioux. Join
her ICBC Forms workshops
this Fall as she explains:
MVA 6020 Police Reports,
key ICBC forms, CWMS,
PGT and ICBC releases.
For CPD courses in personal injury studies, visit:
lawcourtscenter.com or
BC Civil Litigation
Guide $ 800
canadianparalegalinstitute.com
B! 201110
I
n Jampolsky v. Shattler,
2011 BCSC 494, the
plaintiff, Perry
Jampolsky, had been
involved in four separate
motor vehicle accidents: June
26, 1999, (the “first accident”); August 7, 1999 (the
“second accident”); August
13, 1999 (the “third accident”); and August, 12, 2007
(the “fourth accident”).
The plaintiff claimed that in
one, or all, of the 1999
accidents he sustained a mild
traumatic brain injury
(MTBI) resulting in
significant personality
changes, memory deficiencies, and sensory deficiencies. The plaintiff further
claimed the symptoms were
worsened by the effects of
the fourth accident and
impaired his future employment prospects. As a result,
the plaintiff sought an award
of general damages in the
range of $125,000 to
$245,000 and an award for
loss of future employment
capacity in the range of
$1,000,000.
3
C O U R T
W A T C H
Document Discovery: Defining the Ultimate Issue
I
n Jones v. Donaghey,
2011 BCCA 6, the
defendant Julie Ann
Donaghey sought leave to
appeal an order of the
Honourable Mr. Justice
Macaulay of the Supreme
Court of British Columbia by
which, on application of the
plaintiff, he ordered her to
attend for a psychiatric
examination pursuant to Rule
7-6(1) of the Supreme Court
Civil Rules.
By way of background, the
plaintiff was born on July 9,
2006. In September 2006 the
plaintiff was removed from
the custody of his parents by
the Director of Child
Development. Following a
presentation hearing in the
Provincial Court, the plaintiff
was ordered into the interim
custody of the Director.
In the late fall of 2006, the
director placed him in the
foster care of Ms. Donaghey
and Ms. King. The plaintiff
in this action claims that he
suffered a traumatic brain
injury in December 2006
when either the defendant
Ms. Donaghey or her partner,
Erana King, shook him.
The plaintiff relied on the
following evidence in his
application:
B! 201110
1. Ms. Donaghey had admitted on examination for discovery to “anger management
issues” as a young woman
(more than 20 years ago)
for which she had received
psychological counselling;
2. Ms. Donaghey had
“yelled” at a co-worker in
2009; and
3. On expert psychiatric
opinion evidence that, during
a videotaped statement
Ms. Donaghey gave to a
police officer investigating
the plaintiff’s injury, she
displayed “an exaggerated
emotional response”.
The plaintiff argued that
although “exaggerated
emotional responses” and
“anger management problems” may occur in the
general population, they
are more likely to occur in
persons with personality
disorders; and that to
determine whether
Ms. Donaghey suffered from
a personality disorder would
require a psychiatric examination. Accordingly, the
plaintiff contended that Ms.
Donaghey’s mental condition
was in issue in the action
and brought an application
pursuant to Rule 7-6(1) for
an order that she attend for
examination by a qualified
psychiatrist to investigate
whether she suffers from a
personality disorder.
The chambers judge agreed
with the arguments set forth
by the plaintiff and
concluded that whether
Ms. Donaghey had a
personality disorder was
“relevant” and that her
mental condition was “an
issue in the litigation.”
On appeal, the Court of
Appeal judges found that the
chambers judge erred. In his
written reasons, the
Honourable Mr. Justice K.
Smith states, “In my view,
the chambers judge erred.
The test under Rule 7-6(1) is
not whether the mental condition of a person is ‘relevant’ to an issue; rather, it is
whether the mental condition
is itself ‘in issue.’”
Mr. Justice Smith found that
Ms. Donaghey’s mental
condition was not put “in
issue” by the pleadings
and went on to state,“
Ms. Donaghey’s mental
condition might be an
evidentiary fact relevant to
the issues raised in the
paragraphs under discussion,
as the chambers judge
concluded. However, as I
have said, relevance of the
mental condition of a person
to an issue is not the test
under Rule 7-6(1). Rather,
the person’s mental condition
itself must be in issue to
warrant an order pursuant
to the rule and none of
these allegations put
Ms. Donaghey’s mental condition in issue.”
Mr. Justice Smith further
explained, “This situation
may be contrasted with the
more common situation in
which a plaintiff claims
damages on the basis that a
defendant has negligently
caused him or her personal
injury. In such a case, the
defendant’s denial puts the
plaintiff’s condition, whether
physical or mental or both,
“in issue.” The plaintiff’s
injury is a material fact and
the failure to prove it will be
fatal to the action.
“Thus, a material fact is the
ultimate fact, sometimes
called “ultimate issue”, to the
proof of which evidence is
directed. It is the last in a
series or progression of facts.
It is the fact put “in issue” by
the pleadings. Facts that tend
to prove the fact in issue, or
to prove another fact that
tends to prove the fact in
issue, are evidentiary or
“relevant” facts.”
Accordingly, the defendant
may be entitled to a medical
examination pursuant to Rule
7-6(1) to obtain evidence of
the plaintiff’s physical or
mental condition. However,
as I have explained, this is
not such a case.”
The appeal was allowed, the
order that Ms. Donaghey
attend for a psychiatric
examination was set aside
and the plaintiff’s application
was dismissed. This case is
distinguished from other
instances when the defendant
has negligently caused the
plaintiff personal injury and
that physical or mental injury
is in issue as a material fact.
In that instance, Rule 7-6(1)
applies to facilitate the proper
evaluation of the material
fact. In contrast, in cases like
the one at bar where the
mental or physical condition
is not in issue, defendants
may not rely on Rule 7-6(1).!
Doreen Kumar is a
paralegal at Pryke Lambert
Leathley Russell LLP.
Document Discovery
A Primer
October 22, 2011
If you want to learn more
about listing of documents,
join Dee Rogers as talks
about Rule 7-1 and how to
prepare Form 22.
To register, go to:
lawcourtscenter.com or
canadianparalegalinstitute.com
4
A M I C I
C U R I A E
P R O
B O N O
P A R A L E G A L S
U P D A T E
Legal Advice: Know Your Limits, Advise Within It
T
he Amici Curiae
managers want to
ensure all its volunteers possess an identical and
verifiable level of knowledge
in specific areas of civil law,
so they created a study group
for its members. The first session was held last September
13, 2011, featuring John
Simpson as a guest speaker.
Mr. Simpson, who is Legal
Services Society’s manager
for community and publishing
services, spoke to a standing
room only crowd at the Law
Courts Center’s CPD room.
His talk dealt with the
difference between legal
information and advice.
First Simpson defined legal
information as general
information not specific to a
fact pattern. It is useful and
can help people to take steps
to resolve legal problems, but
it is not advice.
Legal information can be
provided in many different
ways, for example by helping
people find print, video,
multimedia, audio, or names
of websites and agencies
that assist them in their legal
matters; advising a client that
they need to go to the court
registry and giving them the
address or the costs of filing
fees is providing legal
information.
He also provided a useful
guideline to the volunteers:
when someone is helping
the public to find legal
information only, they should
always be clear that:
• they are not lawyers
• they can help find legal
information and refer to other
resources
• they cannot give legal
advice and
• to get legal advice, the
person must talk to a lawyer
(or someone who is
authorized to give advice)
Simpson proceeded to talk
about legal advice: “it goes
beyond information and
involves applying the law to
facts, for example by setting
a course of action or telling a
client which option is best
for their situation, or filling
out details about a claim or
defense, or drafting an
affidavit.
The dividing line between
information and advice can
be unclear in some situations.
When in doubt about the
boundaries between
information and advice, talk
to a lawyer. Ultimately, the
Law Society determines what
is and is not the practice of
law and the extent to which a
paralegal supervised by a
lawyer can provide legal
advice at a pro bono clinic.”
Based on the definition set
out by Simpson, our supervised volunteers
may have been providing
legal advice.
Professor Joost Blom, chair
of the Law Society of BC’s
Ethics Committee in a separate interview, helped clarify
their position on the matter:
“Paralegals should be fine
even if they gave legal advice
at a pro bono clinic as the
definition of the practice of
law in the Legal Profession
Act excludes in para. (h),
"any of those acts [including
giving legal advice] if not
performed for or in the
expectation of a fee, gain or
reward, direct or indirect,
from the person for whom the
acts are performed." It's not
unauthorized practice, in
other words, as long as the
client is not paying for it,
directly or indirectly.
Legal Education
Trial Brief Preparation
Legal Printing &
Legal Supplies
legalpresents.com
B! 201110
The fact that it is done pro
bono doesn't free lawyers
from the Law Society rules
and ethical standards,because
they apply irrespective of
whether the lawyer is serving
a client for a fee or not. But
it does mean, as I read it, that
non-lawyers can give legal
advice for free without
falling foul of the Act.
I think paralegals should be
careful what they advise,
because they can still be
negligent if they fall below
the standard of reasonable
care that would be expected
of someone with their training and experience. But I
don't think they're practising
law as defined in the LPA.”
Following Simpson’s presentation, he provided the study
group with a copy of his
paper that included a useful
rubric that laid out specific
ways to discern the difference between legal information and advice in the following areas:
• helping people with court
forms?
• helping people to deal with
lawyers and the court?
• providing information about
how to qualify for legal aid,
and
• helping people find legal
information?
Briefly! is intended
to provide information
on new developments
in litigation and law
practice management.
For information,
contact Dom Bautista
at 604.685.2727 or at
[email protected]
Law Courts
Center
840 Howe ST #150
Vancouver V6Z 2L2
The study group sessions
will continue to be held the
second Tuesday evening of
each month as its members
learn more about employment
standards, tenancy law and
foreclosures. The sessions
will be recorded to provide
those who missed a session
or new volunteers access to
what was studied.
Amici Curiae’s paralegals
stand committed to providing
quality legal information
and advice by continual
education, training, and a
recognition of their limits. !
Amy Kelly is a paralegal
with Stephens Holman and a
member of Amici Curiae’s
Study Group committee.