CIVIL LITIGATION
CIVIL PROCEDURE – Class or
representative actions – Procedure.
Motion by the plaintiffs for an order
approving a third party funding and
indemnity agreement without notice to
the defendant insurer, and for orders
closing the hearing of the motion and
sealing the motion documents. The
plaintiffs were purchasers of life insurance policies who proposed a class action
against the insurer. They sought damages
of $3.2 billion for negligent misrepresentation. The plaintiffs submitted that the
funding agreement was negotiated confidentially, disclosed elements of their litigation strategy, and was privileged as
part of the retainer with their lawyers.
They contended that disclosure would
reveal the resources available to prosecute the action and the information
therein would provide the insurer with a
tactical advantage. The plaintiffs submitted that open court disclosure would
imperil solicitor-client and litigation
privileges, adversely affecting access to
justice for the class and risking the likelihood of a fair trial. They submitted that
such interests overrode the open court
principle. The plaintiffs argued that the
insurer would not be prejudiced by an in
camera hearing, and any public interest
in disclosure was outweighed by the deleterious effects to the plaintiffs’ and class
members’ privilege and access to justice.
HELD: Motion dismissed. The terms
of class counsel’s retainer agreement and
any associated third party funding agreement were not privileged in law and or as
a matter of public policy. In any event, if
the retainer agreement and any associated third party agreement were privileged, then the privilege was waived when
the plaintiffs’ lawyer applied for approval
of a fee agreement that involved a contingency fee or third party funding agreement. Thus, the importance of protecting
solicitor-client privilege did not justify an
in camera ex parte and sealing order.
There was no serious risk to access to
justice given the finding that there was
no risk to solicitor-client privilege. The
insurer was affected by the application
for approval of third party funding. It
had a right to disclosure of the agreement and a right to be heard on the
motion for its approval. It was necessary
to prescribe rules for a motion for
approval of a third party agreement, limiting the scope of cross-examination in
advance, and limiting disclosure of counsel’s views of the strengths or weaknesses
of the proposed class action. Directions
issued accordingly.
Fehr v. Sun Life Assurance Co. of
Canada, [2012] O.J. No. 2029, Ontario
Superior Court of Justice, P.M. Perell
J., May 7, 2012. Digest No. 3208-001
CIVIL EVIDENCE – Admissibility –
Objections – Opinion evidence – Expert
evidence – Trials – Jury trials – Charge
to jury.
Appeal by the plaintiff from the dis-
missal of her medical negligence action
against the defendant doctor following a
trial by jury. The plaintiff, born in 1936,
had a history of back and right-side pain.
She experienced scoliosis in her adoles-
cence and in the 1960s underwent two
fusion procedures to address her condi-
tion. In 2006, the plaintiff’s general
practitioner referred her to an ortho-
pedic surgeon due to complaints of
increasing pain and deformity in her
spine. Her conditions rendered her
unable to stand erect. She took a variety
of medication, but was unable to walk
beyond limited amounts due to her pain.
A neurologist performed an electro-diag-
nostic investigation and recommended
an epidural injection for pain relief. No
nerve root irritation from degenerative
disc disease was noted during the testing.
In March 2007, the plaintiff received the
injection and reported relief. In Novem-
ber 2007, the plaintiff visited the defend-
ant, an interventional radiologist, for the
purpose of considering further injec-
tions. An injection was performed four
days later with good results reported by
the plaintiff. In February 2008, the plain-
tiff saw the defendant for a third trial of
injections. The plaintiff experienced
numbness during the injection and was
rendered paraplegic. The plaintiff alleged
that the defendant was negligent in the
performance of the procedure and for
failure to obtain her informed consent.
The jury dismissed the action. At issue
on appeal was the treatment and admis-
sibility of evidence from an expert wit-
ness for the defendant, Doctor Eddy, and
the charge to the jury regarding the stan-
dard of care.
CONSTITUTIONAL LAW
DIVISION OF POWERS – Provin-
cial jurisdiction – Provincial powers
(Constitution Act, 1867, s. 92) –
Administration of justice.
Application by the plaintiff for an order
relieving her from government-imposed
court hearing fees associated with a family
law trial. In 2009, the court issued its ruling in a mobility case concerning custody
of the parties’ daughter, age five. The ruling followed a 10-day trial. Prior to the
trial, the plaintiff applied for relief from
court hearing fees. She submitted that she
was a woman of modest means seeking
greater custody of her daughter and that
the imposition of hearing day fees created
an unreasonable barrier. The application
was put over until the end of the trial. The
fees totalled $3,600. The application was
initially stayed in order to facilitate intervention by the British Columbia branch of
the Canadian Bar Association, the provincial Crown, and the Trial Lawyers Association of British Columbia. The plaintiff
was assisted by counsel and tendered an
amended statement of claim that was
revised to include a challenge to the constitutionality of the hearing fees. The
plaintiff sought a declaration that the fee
infringed a right of access to justice contrary to the rule of law and the Canadian
constitution. She sought a declaration
that the fees breached s. 96 of the Constitution Act, 1867, and ss. 7 and 28 of the
Canadian Charter of Rights and Freedoms. The Crown submitted that an
application for indigent status was a precondition to determining constitutionality. The Crown submitted that the Regulation respecting hearing fees was validly
enacted under ss. 92( 13) and 92( 14) of the
Constitution Act, 1867, and did not offend
s. 96 of the Constitution Act, nor constitute a breach of s. 7 of the Charter, nor
offend the rule of law. The other intervenors supported the plaintiff’s position.
HELD: Application allowed. The
plaintiff’s application for indigent status
was not dispositive of the matter. The
issue of such status was properly sub-
sumed into the question of whether hear-
ing fees were payable. It was unnecessary
to assess the s. 7 Charter arguments given
the constitutional issues arising from the
principles limiting the provincial govern-
ment’s authority to pass laws inhibiting
access to justice. Access to s. 96 courts was
a fundamental premise of Canada’s con-
stitutional arrangement and could not be
materially hindered. Under s. 92( 14) of
the Constitution Act, 1867, the province
was mandated to maintain the courts
through adequate provision. That did not
include the power to legislate in a manner
that impaired the court’s ability to fulfill
its proper role. A distinction existed
between hearing fees and fees for services,
such as filing fees. Hearing fees were a
barrier to access imposed by one branch
of government over another. That created
a constitutionally untenable appearance
of hierarchy. The hearing fees charged by
the British Columbia government were
fixed at a level intended to deter use of the
courts. The remedy of indigent status did
not cure the obvious impediment of access
to justice. The court could not fulfill its
democratic function if access was limited
by financial or procedural deterrents.
Such interference undermined the funda-
mental values of democracy, federalism
and the rule of law informing the Consti-
tution, elaborated in the case law, and
evident in Canada’s history, to impermis-
sibly put a price on justice. The hearing
fees were thus unconstitutional and the
plaintiff was not liable for their payment.
CRIMINAL LAW
CRIMINAL CODE OFFENCES –
Offences against person and reputation
– Motor vehicles – Dangerous oper-
ation of motor vehicle – Causing death.
Appeal by Roy from a judgment of the
British Columbia Court of Appeal affirming
his conviction on a count of dangerous
driving causing death. Roy pulled his
motor home out from a stop sign onto a
highway and into the path of an oncoming
tractor-trailer. In the collision that resulted,
Roy’s passenger was killed. Roy was convicted of dangerous driving causing death
and his appeal to the Court of Appeal was
dismissed. The trial judge considered that,
in order to convict Roy, he had to be satisfied beyond a reasonable doubt that Roy
was driving in a manner that was dangerous to the public. Further, given that no
explanation was provided for Roy’s conduct, due in great part to his loss of memory, there was no evidence that could raise
a reasonable doubt that a reasonable person would not have been aware of the risks
related to his behaviour in the present case.
The Court of Appeal held that the trial
judge erred in his legal analysis because he
had equated the mens rea inquiry with the
question of whether there was an explanation for Roy’s conduct. However, it was of
the view that the error was harmless as it
occasioned no substantial wrong or miscarriage of justice.
HELD: Appeal allowed. The focus of
the analysis in relation to the actus reus of
the offence was the manner of operation of
the motor vehicle. The trier of fact could
not simply leap from the consequences of
the driving to a conclusion about dangerousness. There had to be a meaningful
inquiry into the manner of driving. Proof of
the actus reus of the offence, without more,
did not support a reasonable inference that
