Justice Nigel Kent is the latest B.C. Supreme Court judge to offer advice to lawyers on how to prepare for a trial in his courtroom.
“Much to the dismay of the Court, the parties did not provide at the outset of the trial, an Agreed Statement of Facts nor even an Agreed Chronology of Events,” Kent wrote in a recent personal-injury case, Sahota v. Slupskyy. “This should be possible in every case.
“The Court finds it extremely helpful,” Kent continued. “There also appears to have been a lack of cooperation with respect to any Common Book of Documents.”
The judge also raised concerns about hundreds of pages of the plaintiff’s employment medical service plan records, Pharmanet data, and ICBC and clinical documents being filed in court. He pointed out that some of them were duplicated.
“Approximately 95% of this material was not actually referred to or used in the trial,” Kent wrote. “The whole exercise was a confused and confusing waste of time and paper.”
Lawyers Peter Buxton, Lucy Yuan, and Ryan Kusuhara represented a Vancouver elementary school teacher, Sundeep Sahota, who was injured in a motor-vehicle collision in 2016.
She was a passenger in her husband’s Ford F-150 pickup, which was rear-ended by a Toyota Highlander in the intersection of King Edward Boulevard and Cambie Street.
The defendants, Oleksiy Slupskyy and Victor Slupskyy, were represented by Alvin Bajwa and Nicole Langrana.
Sahota was awarded $271,703, including $75,000 in nonpecunary damages and $188,000 for past and future loss of earning capacity.
In the decision, Kent referred to two other recent B.C. Supreme Court rulings in which the judges had also offered advice to lawyers regarding organization and preparation for a personal-injury trial.
In one of those cases, Justice Frits Verhoeven, raised issues about the sequence in which witnesses appeared.
According to this ruling, expert witnesses testified prior to the plaintiff, making it impossible to put the evidence of the plaintiff before them in cross-examination.
“The problems were made even more acute due to the fact that there was no Document Agreement, and no agreement between counsel as to the use or admissibility of documents, such as the plaintiff’s pre and post accident clinical records,” Verhoeven wrote in Firman v. Asadi. “I heard abundant cross-examination of the plaintiff and other witnesses regarding matters that were said to be in clinical records, without any prior agreement between the parties as to the use to which the clinical records could be put.”
In the other case, Cummings v. Tellier, Justice Jennifer Power expressed concern that the defendants’ lawyer did not provide alternative arguments regarding future loss of earnings capacity. As a result, she chose to accept the plaintiff’s arguments.
Kent’s comments about trial organization
Below, you can read the final 11 paragraphs in Justice Nigel Kent’s ruling in Sahota v. Slupskyy:
[190] I cannot leave this case without some comment about the organization and presentation of this trial which will hopefully be of benefit to counsel, and the bar generally, in future personal injury cases.
[191] This action was filed subject to Rule 15-1 which applies to “fast track” litigation. Rule 15-1 only applies to actions where, among other things, the amount claimed is $100,000 or less, or the trial can be completed within three days.
[192] At the Trial Management Conference held April 9, 2019, the Court noted that the time estimates set out in the parties’ respective trial briefs totalled 12.95 hours which was longer than the 12 hours of court time presumed for a three day trial. At that time, counsel indicated they were having discussions on how to trim their time estimates and assured the court that the trial would be completed in three days. The plaintiff’s trial brief indicated three named witnesses would be called along with two further unidentified lay witnesses. The defendants’ trial brief indicated two witnesses would be called. By the time the trial date arrived, each party had added one witness to their respective witness list (including, in the case of the defendants, the plaintiff’s husband).
[193] In the result, the parties’ estimates and assurances to the court turned out to fall woefully short of the mark. The trial took six days. While the Court was able to tack on a fourth day at the start of the trial, a fifth day had to be scheduled for the closing submissions (three months after the closing of evidence) and when this too turned out to be an inadequate time estimate, a further day was required for closing submissions to be completed (again scheduled for another three months later). Poor planning and inadequate time estimates thus resulted in a six-month delay before the case could be completed. By that time a great deal of water had flowed under the judicial bridge which, combined with other competing scheduling priorities, resulted in a further delay in providing the parties a fulsome judgment on the merits. All of this is completely unsatisfactory.
[194] Much to the dismay of the Court, the parties did not provide at the outset of the trial, an Agreed Statement of Facts nor even an Agreed Chronology of Events. This should be possible in every case. The Court finds it extremely helpful.
[195] There also appears to have been a lack of cooperation with respect to any Common Book of Documents. Each party presented the Court at the outset of the trial with their respective binders of documents bearing labels such as “Plaintiff’s Book of Documents – General”, “Plaintiff’s Book of Documents – Wage Loss”, “Trial Binder of the Defendants (Liability & Medical)” and “Trial Binder of the Defendants (Wage Loss & Specials – 1 of 2)” and the like. These binders (five in total) were marked as “exhibits for identification”, presumably so they would be available to the court in the event their contents were actually used and some relevant document might be entered as a full exhibit. These hundreds of pages of material included such things as the plaintiff’s entire employment records file from the VSB, MSP printouts, PharmaNet printouts, clinical records from a variety of service providers, ICBC documents, and the like, some duplicated more than once. Approximately 95% 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.
[196] When the parties convened three months following the close of evidence for their first attempt at final submissions, they presented the court with a revised Document Agreement executed by both counsel and a further “Common Book of Documents” (33 in number and comprising another couple hundred pages of material). This was marked as a full exhibit by the consent of both parties (and under considerable exasperation on the part of the Court) as was a further, albeit slimmer, binder entitled “Defendants Book of Documents”. All of this should have been done before the trial started.
[197] This case clearly was not a candidate for “fast track litigation” and the lack of cooperation between the parties with respect to trial preparation resulted in undisciplined scheduling and poor organization and presentation of the evidence. All in all, this was a most unsatisfactory trial experience from a judicial point of view.
[198] Similar problems occurred in the case of Firman v. Asadi, 2019 BCSC 270, which resulted in my colleague, Justice Verhoeven, delivering some sage advice respecting organization and preparation of a personal injury trial. I commend paragraphs 261-270 of his judgment to the parties here and to the personal injury bar generally.
[199] I also commend the recent comments of my colleague Justice Power in Cummings v. Tellier, 2019 BCSC 2067 at paras. 70-71. In Cummings, Justice Power suggests it would be “constructive advocacy” (i.e. helpful for the Court) if counsel would include in their final argument “submissions in the alternative” on matters of substance just in case a party’s primary submission does not prevail. For example, instead of submitting only that “the plaintiff’s claim for loss of future earning capacity has not been proved on the evidence”, it would be helpful for counsel to also make submissions in the alternative concerning quantification in the event the Court holds otherwise. In this fashion, the Court will have the benefit of the alternative argument in assessing appropriate damages.
[200] I hope these observations will be of assistance in future cases.
