Wednesday, May 5, 2010

Summary Trial: If no evidence to support Claim - Dismiss - Harrison v. BC (Child & Family Devpt) BC Ct of Appeal - May 5 2010 - By Corey D Steinberg

In a Summary Trial (18A under the BC Rules of Civil Procedure, but with similar provisions in other provincial Rules) each party is expected to put its best foot forward, and "lead trump" or risk losing. It is not up to the judge deciding the case to consider that something else could come up at trial.

This Appellate decision stands for the principle that the record before that judge is the record, and if there is no evidence that could support the claims made, the action should be dismissed.

(I have edited the case, below, for brevity; but a link to the full judgment appears at the bottom ~ CDS)
Harrison v. British Columbia (Children and Family Development),2010 BCCA 220 (May 5, 2010)

[3] .. Mr. Harrison filed a claim seeking damages of $520 million for the improper disclosure of personal information by the MCFD to Access House. …

[4] … alleging three causes of action in tort: negligence, defamation and misfeasance in public office.

[5] The appellants and Mr. Harrison each applied to have the action determined by summary trial … and it was their common position that this evidence provided an adequate basis to properly resolve the issues pursuant to R. 18A.

[6] At the summary trial, however, the trial judge disagreed. He dismissed all of the claims against Mr. McNeill, but declined to grant judgment with respect to the other defendants on the basis that there was a conflict in the affidavit evidence that left “too many questions unanswered”.

[7] The appellants appeal that order.

[10] In 1996 Mr. Harrison operated a licensed family child care in Sechelt, British Columbia, with his then spouse. In August 1996, a person … made an allegation that, five years earlier, Mr. Harrison may have abused his infant daughter.

[11] The Ministry intake worker in Sechelt opened an “Assessment Only” file. The allegation, the only ever made against Mr. Harrison, was noted to be “outside of statutory definition”. It was determined and noted in the file that no further action would be taken.

[13] Mr. Harrison contacted the Ministry to discuss the file, and was told by the intake worker that no investigation had or would be undertaken with respect to the unsubstantiated allegation. Mr. Harrison continued to operate the child care business with his spouse. No further action was taken by the Ministry, and no further complaints were received.

[15] On April 29, 2006, Mr. Harrison was interviewed by Access House’s program director, Marian Haden, for a temporary contract to assist staff with a particular youth with severe behavioural difficulties. At the conclusion of the interview he was told he had been hired …

[17] Because of the unusual manner in which Mr. Harrison was hired, neither the checks nor the training normally required by Access House policy were completed before he began ...

[19] At some time between May 10 and 12, 2006, Ms. Bischoff advised the acting program director of Access House, Jessie Ford, that the PCC had turned up a file concerning Mr. Harrison, and that she wished to investigate further. She also told Ms. Ford she wished to receive more specific consent to the disclosure of information before openly discussing the file. …

[20] On May 14, 2006, Mr. Harrison attended a meeting with Ms. Ford and Ms. Haden...

[21] The appellants argue that at the time of that meeting, no details regarding the contents of the file had been disclosed to Access House, and all Ms. Ford and Ms. Haden knew was that “something had come up”...

[22] According to Mr. Harrison, however, it was apparent at the meeting … the Ministry had reported it had a file regarding him and his daughter, it had not been properly investigated, and he was to be supervised while working with youth...

[23] On May 18, 2006, Mr. Harrison signed a second, more detailed consent to disclose, and was informed by Access House staff he would need supervision while working with youth, something Ms. Bischoff had suggested in an email that day “to be on the safe side” until her investigation was complete.

[24] On May 24, 2006, Mr. Harrison was told by Ms. Haden that, in light of the need for supervision, his contract of employment was terminated.

[25] Ms. Bischoff claims that it was only after receiving the second consent that she shared the general content of the file, her concerns about the adequacy of the 1996 investigation and her belief that the files as a whole contained some “red flags”...

[26] Within a week of his termination, Mr. Harrison requested a formal review by the MCFD … Mr. Harrison was dissatisfied with the outcome of the review, and filed a complaint with the Privacy Commissioner.

[27] In September 2007, the Commissioner found Mr. Harrison’s complaint to be unsubstantiated…

[28] Judicial review of that decision initially resulted in the matter being remitted to the Commissioner for consideration …

[29] In April 2008, Mr. Harrison brought the present action, seeking damages of $520 million against the Ministry, Ms. Bischoff and the MCFD regional director, Bruce McNeill. Both Mr. Harrison and the defendants applied to have the action determined by way of summary trial.

Reasons of the Summary Trial Judge

[30] At the summary trial, the judge dismissed all claims against Mr. McNeill.

[31] With respect to the claims against Ms. Bischoff, however… The trial judge determined a full trial was required because of “a conflict in the evidence that cannot be resolved simply by examining the affidavits and transcripts of the examinations for discovery ...

Issues on Appeal

[36] The appellants’ primary submission on this appeal (as it was at trial) is that the conflict in the evidence is immaterial to the merits of the case. They argue that the uncontested legal principles relevant to the three causes of action lead invariably to the same conclusion, irrespective of which version of events is accepted, that Mr. Harrison’s claims are not supported by the evidence.


[39] In my opinion, the evidentiary conflict identified by the trial judge did not preclude him from adjudicating the issues of negligence, defamation or misfeasance in public office. On the contrary, I find that the evidentiary record provides all of the facts necessary to grant the appellants’ application for summary judgment, and it would not have been unfair to do so.

The Correct Approach to Rule 18A

[40] … It is not a question of whether a full trial could conceivably “turn something up” or produce a different result…

[41] When an application under R. 18A is made, it is the obligation of the parties to take every reasonable step to put themselves in the best possible position and adduce all evidence they believe is necessary for judgment: Everest Canadian Properties Ltd. v. Mallmann, 2008 BCCA 275 at para. 34. I find the parties had this opportunity, and note that the record before the trial judge was considerable.

[42] Appellate interference will be justified if the trial judge’s determination that judgment should not be granted under R. 18A is “clearly wrong”: McGregor v. Van Tilborg, 2005 BCCA 217 at para. 21. If all of the facts necessary to support the defendant’s application for dismissal could have been found in the evidentiary record, and it would not have been unjust for the trial judge to have done so, this Court will be entitled to substitute its opinion and dismiss the action: Pearlman v. American Commerce Insurance Company, 2009 BCCA 78 at para. 36.


[45] A claim in negligence can only arise if the defendant owes the plaintiff a duty of care: Cooper v. Hobart, [2001] 3 S.C.R. 537; Reference re Broome v. Prince Edward Island, 2010 SCC 11 at para. 12.

[52] The primary obligation of social workers operating under the CFCSA … provides that the safety and well-being of children must be the paramount considerations in the administration of the statute. It is in the context of this statutory mandate that Ms. Bischoff was expressly required to review the background of individuals seeking to work with vulnerable children in the care of the MCFD.

[53] Imposing a private law duty of care on a social worker to those whose background he or she must review for child safety concerns has the potential to interfere with their ability to discharge that vital task. More broadly, it would interfere with the paramount duty to the safety of the child … Accordingly, imposing a duty of care on Ms. Bischoff in these circumstances poses precisely the risk for inherent conflict …

[55] For these reasons, and irrespective of the conflict in the evidence, Mr. Harrison’s claim in negligence could not succeed...

Misfeasance in Public Office

[57] The second cause of action identified by the appellants in Mr. Harrison’s statement of claim is misfeasance in public office.

[58] To be successful, Mr. Harrison must prove either that Ms. Bischoff acted with the specific purpose of causing his injury (“Category A”), or that she was aware she acted unlawfully and knew harm to the plaintiff would be the likely result (“Category B”). In either case, Mr. Harrison must establish that Ms. Bischoff deliberately disregarded the obligations of her office, and was aware of the harm it would cause him: Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263.

[59] There is no evidence whatsoever of Ms. Bischoff having acted with targeted malice against Mr. Harrison. …nothing in the pleadings or evidentiary record could possibly support a claim under Category A.

[60] As for a claim under Category B, I find that the evidentiary record—even when read in the manner most generous to the plaintiff, and with all conflicts resolved in his favour—is incapable of satisfying the requirements of this tort.

[61] Misfeasance in public office is an intentional tort requiring proof of bad faith. … “where bad faith on the part of a public official is alleged, clear proof commensurate with the seriousness of the wrong should be provided”. …

[63] … The evidence from the appellants is all to the contrary, and even if the version of events argued by Mr. Harrison were to be established at trial, the record would remain incapable of providing the “clear proof” necessary for a trier of fact to find that Ms. Bischoff acted with bad faith in her communications with Access House.

[64] The trial judge was plainly wrong to conclude that he could not find the facts necessary to adjudicate this claim, and I find the appellants are entitled to have the action in misfeasance in public office dismissed.


[65] The final cause of action raised by Mr. Harrison is defamation.

[66] I agree with the appellants that this action cannot succeed because the communications between Ms. Bischoff and Ms. Ford occurred on occasions of qualified privilege without malice.

[67] The defence of qualified privilege operates to protect otherwise defamatory communications that are made on occasions of qualified privilege. Privileged occasions arise where the person making the statement has an interest—legal, social or moral—to make the statement to persons with a corresponding interest or duty to receive it: Moises v. Canadian Newspaper Co. (1996), 24 B.C.L.R. (3d) 211 (C.A.); Haight-Smith v. Neden, 2002 BCCA 132 at paras. 52-55.

[68] In this case, Ms. Bischoff had a legal and moral duty to ensure the protection of youth in the care of the MCFD. Ms. Ford had a corresponding duty to receive information about an individual providing care to youth …

[69] The law is clear that statements made on such occasions are protected, as long as they are made in good faith and honestly for the purpose for which the privilege exists: Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3 at para. 79.

[70] The onus for defeating the defence rests entirely on the plaintiff: Netupsky v. Craig, [1973] S.C.R. 55. I have already concluded that there is no evidence that Ms. Bischoff acted with bad faith. Mr. Harrison has therefore failed to meet this onus, and the defence of qualified privilege remains a complete defence to his claim in defamation. It follows that the appellants are entitled to have this action dismissed.

Summary & Conclusion

[71] The evidence adduced at the summary trial provided all of the facts necessary to support the appellants’ application for dismissal of the claims against them, and it would not have been unjust to do so.

[72] Ms. Bischoff did not owe Mr. Harrison a duty of care in negligence, and there is no evidence of bad faith that would support the claim of misfeasance in public office or overcome the defence of qualified privilege to the claim in defamation.

[73] These conclusions are reached on the basis of facts and legal principles that are unaffected by the “unanswered questions” that concerned the trial judge. However those questions are answered, and whichever version of events is accepted, it would not advance Mr. Harrison’s claim. The result would be the same.

[74] Thus, the trial judge erred in concluding he was obliged to dismiss the appellants’ applications for summary judgment. The appellants are entitled to have the action against them dismissed.

[75] I would allow the appeal, set aside the order of the trial judge, and dismiss Mr. Harrison’s action.

“The Honourable Madam Justice Levine”

I Agree:
“The Honourable Mr. Justice K. Smith”

I Agree:
“The Honourable Mr. Justice Frankel”

Tuesday, May 4, 2010

Producing email in Litigation: Standard no different than paper - Subject to Proportionality Principle: GRI v Oceaneering Int'l - by Corey D Steinberg

The "Proportionality Principle" is rapidly becoming the new standard being applied to Rules of Civil Litigation, with respect to producing electronic documents to the opposing side; i.e. "eDiscovery".

Across Canada, with various provinces revamping Rules of Civil Procedure, the standard is evolving from the traditional test for the requirement to produce a document, being "Does it have a 'semblance of relevance' to a matter at issue in the litigation?" to the new standard of "Does it relate to a matter at issue?" This subtle difference may appear inconsequential, but case law is only now developing that spells out for us exactly how much (or little) production of e-documents is restricted, compared with traditional documents; and at the moment is a bit of a moving target, which Canadian law is grappling to pin down with some degree of certainty.

The Proportionality Principle, developed from the Sedona Principles (U.S.) and the later Sedona Canada Principles (based on and developed following the American version). This standard essentially considers whether e-documents need to be produced based on:

1. The amount at issue in the litigation.

2. The cost/effort of production; including the cost/effort of various scopes of production (wider or narrower).

3. The likely usefulness of the document(s) at issue.

The Supreme Court of Newfoundland & Labrador considered this evolving area of law in a recent case, and essentially found that:
  • e-mail production is the modern era's paper-production.

  • In an action for significant damages, therefore, the production of emails should be no more restricted than the production of paper-documents would traditionally be, in an analogous case.

  • A party demanding production for a particular document need not first demonstrate a "need" for it.
Not surprisingly, the Court also found (the essentially obvious standard) that:
  • appropriate search-terms must be implemented to locate emails for production in litigation, and
  • a party need not be subject to producing every single email that bears a common term; simply because another party wishes this to be the case.
Further, with respect to the costs of production, the Court found that:
  • the traditional rule that the party producing the documents must bear the cost of so doing is the standard, subject to evidentiary proof it is unduly onerous under the circumstances, the party cannot afford to meet its production obligations, or at the most extreme - impecuniosity.
Here's a snippet from the judgment (edited for brevity by me, but a link to the full judgment is below):


GRI Simulations Inc. v. Oceaneering International Inc., 2010 NLTD 85 (April 26, 2010)


[54] Inherent in considering the evidence and argument on this application is appreciating what is at stake in this litigation. The Plaintiff’s claim is for $8,000,000. The Defendants’ counterclaim is for various significant relief including disgorgement of profits. In my view, the fact that Oceaneering has made a counterclaim weighs against them in their attempt to limit their document production.

[55] The principle of proportionality was addressed by both parties. In paragraph 9 of Hollett v. Hatfield, it was recognized

... that a litigant is only entitled to avail of the rules relating to pre-trial applications to the extent that the nature, purpose and complexity of a particular procedure justifies it. Thus, a court could refuse to authorize proceedings that a party would otherwise be entitled, in principle, to take, because the object and nature of the dispute does not justify them.

[56] Likewise, in Air Canada v. Westjet

… It does not seem to me to lie with Air Canada to institute what it says is the largest corporate espionage case ever seen in Canada, couple it with a claim in the order of $200 million and then complain that the production process is going to take more than the usual amount of time and cost more than the usual amount of money.

[57] ... the same point could be made about Oceaneering’s position in this case given the nature of its counterclaim.

[58] The Sedona Principles also recognizes proportionality as a relevant factor in document production.


[59] When boiled down, the evidence in support of Oceaneering’s position is Ms. Welshons’ ... time she has spent coordinating the production effort to date ... I am unable to accept it as evidence of inordinate cost and effort to Oceaneering. ... I am not suggesting in-house counsel work is free, but it is to be expected that in-house counsel would engage in work such as overseeing document production in this case. It cannot be forgotten that GRI is also obliged to produce documents to Oceaneering, particularly given Oceaneering’s counterclaim, and has been doing so. GRI’s employees and officials are also logging hours searching, retrieving and vetting their documents for production to Oceaneering.

[60] ...conducting of searches on site appears to me to be expected. There was no evidence of the precise location of the persons whose email is to be searched, although the pleadings and other information imparted during the hearing indicates they are situated in Newfoundland or Texas, which does not appear to me to be a barrier to searching. Indeed, there was no evidence as to how and why on-site searching could be onerous. Neither was there any evidence about difficulties associated with changing passwords which would make searching and retrieval difficult. Lastly, the fact that there may be difficulty in ensuring the completeness of a search is not a reason to not search at all. If the end result is that Oceaneering is unable to swear that all archives have been searched, or either party requests documents it believes exist but which have not been produced, the parties can address those issues then. Mr. Shirt’s final statements about the “inherent difficulty” and “extremely intensive manpower” involved in complying with the Consent Order are unexplained and bold. The court simply cannot accept these sweeping conclusions from an interested party as evidence sufficient to discharge Oceaneering’s burden.

[61] Ms. Welshons’ evidence, including Mr. Shirt’s comments in Exhibit “A”, does not establish that Oceaneering’s efforts to date and those anticipated in future are so onerous in time, effort and cost as to justify relieving Oceaneering of its production obligations. In my view, the costs, time and effort involved are not disproportionate to the nature of this dispute. As indicated earlier in this judgment, GRI’s claim is not small and Oceaneering’s counterclaim is not small. The litigation is complex and appears to be document heavy. Considerable expenditure of resources is to be expected in such cases.

[62] In the result, the evidence does not persuade me that the costs, time or effect involved for Oceaneering to comply with the Consent Order are so onerous that it would be just to relieve Oceaneering of its obligation to produce it, with one exception. The exception concerns Mr. Lawrence’s active email and the search term “Newfoundland”. The word “Newfoundland” is likely to produce a hit on virtually all of Mr. Lawrence’s email and probably explains why there are 10,000 hits. I find this search term too broad to be useful, and that the results would not likely all have a good chance of relating to matters in issue. Accordingly, the search of Mr. Lawrence’s email in regards to paragraph 2 of the Consent Order must be narrowed. I am prepared to hear counsel on how this can be achieved or the matter can be addressed in case management. No evidence of other instances involving an extraordinary number of hits (or documents) was adduced.

[63] All of the other email referenced in the Consent Order is producible.

Oceaneering’s Request that GRI Justify it’s Need for Further Email

[64] ... the email listed in the Consent Order relates to matters in issue in this litigation ... parties are presumed to be entitled to documents relating to matters in issue without providing justification. ... GRI will not be ordered to demonstrate a need for the email.

Oceaneering’s Request That GRI Bear Some Production Costs

[65] The evidence is uncontroverted that Oceaneering is a multimillion dollar international company achieving “record income performance respecting remotely operated vehicles”. Oceaneering did not argue that the cost of document production presented financial hardship.

[66] The cost of producing documents is usually borne by the producing party with the ultimate determination of the issue reserved for decisions on costs at the conclusion of the litigation. I see no reason to depart from this long-standing convention in this case. As indicated, the evidence does not convince me that the production costs are undue or unreasonable in the circumstances. Neither am I convinced that the email sought is irrelevant to the issues or even of a speculative nature. Lastly, I am not persuaded that Oceaneering will be denied justice by the court’s failure to order GRI to share the cost. Oceaneering is far from impecunious or of such limited means that it cannot afford to bear the email production costs in the usual manner. Accordingly, there will be no order that GRI bear any future costs of producing the email referenced in the Consent Order.


[67] Oceaneering’s application is dismissed.

[68] GRI shall have its party and party costs on this application in any event of the cause.

Lois R. Hoegg

Monday, May 3, 2010

CASE COMMENT: Salaam v. Abramovic BC Ct of Appeal May 3, 2010 - by Corey D Steinberg

Normally, a driver is entitled to presume that other drivers will obey the law, and govern their conduct accordingly. Today's judgment in Salaam v. Abramovic, however, indicates there are exceptions. This was a case of "contributory negligence", and underlines the tenet that "insisting" on right of way when it seems unreasonable to do so, could attract liability for personal injury in the event of a collision. It is important to remember that being 75% correct, can still make you 25% wrong - with liability, pro rata.

This is also an important case for people injured in motor vehicle accidents, who may believe they were "in the wrong" at the time of collision, as the law is not always black and white.

A three-judge panel of the BC Court of Appeal found today:

[8] The defendant’s evidence was that the plaintiff’s vehicle continued to move into the intersection at a slow and uneven speed, but without ever coming to a complete stop. As the defendant neared the intersection, the plaintiff’s vehicle “jolted” forward, crossing into his path. He began to brake, tried to gear down, and honked. The plaintiff brought her vehicle to a complete stop directly in front of the defendant’s vehicle. The defendant was unable to avoid a collision; his car slid into the plaintiff’s vehicle, hitting it on the driver’s door.

[11] While there were a number of differences in their approaches, the most important difference lay in their assessment of when the defendant ought to have realized that the plaintiff’s vehicle was a hazard.


[21] In the end, a court must determine whether, and to what extent, each of the players in an accident met their common law duties of care to other users of the road. In making that determination, a court will be informed by the rules of the road, but those rules do not eliminate the need to consider the reasonableness of the actions of the parties. This is both because the rules of the road cannot comprehensively cover all possible scenarios, and because users of the road are expected to exercise reasonable care, even when others have failed to respect their right of way. While s. 175 of the Motor Vehicle Act and other rules of the road are important in determining whether the standard of care was met, they are not the exclusive measures of that standard.

The Duties of the Dominant Driver

[22] The trial judge’s analysis focussed on the plaintiff’s negligence:

[43] The unassailable fact is that the defendant was there to be seen from 450 feet away from the plaintiff before she entered the intersection.

[44] The plaintiff argues that the defendant had no reason to assume that she was aware of his approach. Putting aside for the moment that was her duty to determine whether there was traffic approaching on the through highway, he was entitled to assume that she did know he was approaching, by hearing him, or to expect that she would actually turn her head to observe approaching traffic.

[45] … [I]t was the plaintiff’s obligation, as she wished to make a left turn at the intersection, not to proceed until she could do so safely. The plaintiff did not determine whether her turn could be done safely.

[36] It is evident that the plaintiff’s responsibility for the accident was much greater than the defendant’s. She entered the intersection without stopping, when she could not safely proceed to make a left-hand turn. She evidently did not see the defendant’s vehicle, though it was, at all material times, there to be seen by her. Further, the evidence established that at the moment that her car suddenly accelerated into the defendant’s path, she was looking to her right, away from oncoming traffic in the lane that she was entering.

[37] The defendant’s negligence consists of his aggressive lane change and his insistence on right of way in a situation when it must have been obvious to him that there was a strong likelihood that the plaintiff would continue to proceed erratically across Scott Road.

[38] I would find the plaintiff 75% at fault and the defendant 25% at fault.

[39] In the result, I would allow the appeal, set aside the dismissal of the action, and, instead, find the defendant to be liable for the accident, subject to the plaintiff’s 75% contributory negligence.

“The Honourable Mr. Justice Groberman”

I agree:
“The Honourable Mr. Justice Donald”

I agree:
“The Honourable Madam Justice Garson”