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.
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