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The Do’s and Do Not’s for Examinations for Discovery

An examination for discovery is a critical part of any personal injury or civil litigation case in British Columbia’s Supreme Court. Generally, in a civil or personal injury case, each side has an opportunity to examine the opposing party. If the opposing party is a corporation, partnership, or other non-human entity, that party’s representative will be examined on their behalf. Examinations take place in a boardroom at the offices of specialized reporting companies that provide the space for the examination and a trained court reporter who produces a written transcript of everything said during the examination.

 

Examinations for discovery are very important because they allow each side to ask questions, gather information, and pin down the story of the other side. You can explore contradictions in the other side’s version of the facts. You can also find out about any records, correspondence, or other documents in the possession of the other side, and request that they disclose these documents if they are relevant. You will likely have a better idea of the strength and weaknesses of your case after both sides have conducted examinations for discovery. This helps you prepare for trial, and can even help the parties reach a settlement because they are better able to predict the outcome of the trial and more likely to compromise if they can foresee a low likelihood of success at trial.

 

What happens at an examination for Discovery?

 

Many people are understandably nervous about attending an examination for discovery, and it helps to know what to expect. The examinations take place in a boardroom around a big table. The court reporter usually sits at the head of the table between the two sides, and takes notes and marks exhibits throughout the examination. The party who is being examined will sit across from the opposing party’s lawyer who is examining them. Anyone who is a party to the litigation is permitted to attend the examinations, and usually, the party whose lawyer is conducting the examination will be there, sitting next to their lawyer. This is helpful because that party can take notes while their lawyer is conducting the examination, and can even discuss the examination with their lawyer during a break if they think of other questions that need to be asked or contradictions that should be explored.

 

If you are being examined and have a lawyer, your lawyer will attend with you to represent you and object to any questions that are irrelevant, or otherwise improper. While you are under examination, you cannot discuss the case with your lawyer, even during the lunch break.

 

The lawyer examining you will ask you questions about the events and facts that form the subject matter of the case. The examining lawyer may also ask you to look at specific documents and ask you questions about the documents. Generally, the questions are specific and leading questions, but you are not limited to a yes or no answer. You can give complete answers, although you should try to avoid rambling. The questions asked of you are designed to elicit specific information or admissions. The opposing lawyer may ask you to agree with them about how specific events happened. The lawyer examining you is representing the opposing party and is undoubtedly trying to undermine your case, but even with this adversarial situation, examinations are usually polite. On some occasions examinations become tense, but if you have a lawyer representing you at the examination you can rest assured that they will interject if things become inappropriate or the other side is being too aggressive – which is rare.

 

The length of an examination varies depending upon the complexity of the case. More complex cases take more time, and generally examinations last between 1 hour up to an entire day. There is usually a lengthy lunch break of at least one hour, because examinations are often taxing for everyone involved. The Supreme Court Civil Rules limit the length of examinations. In fast track actions they are limited to 2 hours and in regular Supreme Court Actions discoveries are limited to seven hours. The exception to the time limits is that a party can be examined for longer if they consent or unless the court extends the time limit by a court order.

 

Dos and Don’ts of Examinations

If you are the party being examined for discovery, your lawyer will meet with you before the examination to help you prepare and understand what will be expected of you. It is important that you are well prepared because once you are sworn under oath you will not be able to discuss your case or your testimony with your lawyer. Your lawyer’s advice and preparation for the discovery will vary depending on the nature of your case, but your lawyer’s advice will probably include:

 

  • Always tell the truth – You are under oath and have the same liability for perjury as if you were in court in front of a judge. You should take your obligation, to tell the truth extremely seriously.
  • Dress well, sit up straight, and look the examiner in the eye – the opposing lawyer is not just interested in your answers, but also in how you answer. You want to present yourself as a strong witness who will be calm and credible in court before a judge or jury.
  • Listen to the entire question and understand it before you answer -If you don’t understand the question, you shouldn’t answer until you do. You can ask for clarification.
  • Don’t interrupt – the court reporter will be taking a transcript of the examination, and it is important that the transcript is clear and easy to read, without people talking over one another.
  • Be polite in your answers, don’t raise your voice or become angry with the examining lawyer – you want to make it clear that you will not be goaded or become angry to the advantage of the other side.
  • If your lawyer makes an objection or interjects, stop talking immediately -wait until the lawyers have dealt with the objection and you are either allowed to continue or advised

 

Being examined for discovery in a personal injury or civil case is undoubtedly an intimidating experience, but with strong representation and good preparation, you have the opportunity to gather important information about the other side’s case, and to show them what a confident witness you will be at trial. Examinations for discovery are a vital fact-finding tool in almost every personal injury or civil case, and one which may help you win at trial or achieve a fair settlement.

 

About the Author 

Cadeyrn Christie is a civil litigation lawyer and business lawyer with Velletta & Company. A former tradesperson, business owner, and high-performance athlete, Cadeyrn focuses his practice on providing dynamic representation to individuals and businesses.

Since joining Velletta & Company, Cadeyrn Christie has helped clients achieve cost-effective legal solutions in a wide variety of contentious matters, including business disputes, debt collections, personal injury litigation, real estate disputes, and construction litigation. Cadeyrn has represented clients at all levels of court in British Columbia, including conducting an appeal in the British Columbia Court of Appeal.

 

VIDEO: Medical Malpractice

Here at Velletta and company we work in the area of medical malpractice, amongst other things.

We work with some top notch medical and healthcare advisers who give us advice on the technical medical matters in your claim, in order to allow us to better focus on the legal and technical issues to properly prepare your case for trial. Not every case is a viable medical malpractice action. If you’ve been the victim of what you believe is medical negligence consult with us. We pride ourselves on analyzing the case on figuring out what is the standard of care, whether there’s been a breach and whether that breach has led to damages

In the cases damages have occurred, we’re happy to assist in moving your case forward and getting you the compensation you deserve.

Gregory Rhone obtained his law degree at the University of Victoria after studying Sciences, English, Classics, Political Science and Philosophy as an undergraduate. He articled with Gordon & Velletta and was called to the bar in February, 1999. Before joining the firm as a civil litigator, he was in private practice.

 

Employment Law Part 2-NEW VIDEO!

 

Hi, my name is Eric Pedersen I’m a lawyer for Velletta and Company practicing employment law. Today we’re going to talk about another employment law topic which is constructive dismissal. Now the constructive dismissal is really just a fancy way to say, “I quit” to your employer to also at the same time exercise and enforce all of the rights that you would have if you were an employee who was fired without cause.

The general rule of thumb in British Columbia is that an employee who quits their position isn’t going to be entitled to any severance pay or any notice they’re walking away from the job and that’s on them. But constructive dismissal is a very specific category in the law that allows an employee who quits to bring a claim against the employer for severance. The idea is that although the employer hasn’t fired the employee they have by their conduct in the way that they might have changed the employee’s workplace duties changed their employment. Such to the point that they’ve pretty much been fired and have all of the rights of a fired employee.

Not every minor change that an employer might make to an employee’s employment contractor to their workplace will result in an employee having the rights of a constructively dismissed employee. A really obvious example would be if you were a CEO one day and then you showed up the next day you were demoted to janitor. Well you haven’t been fired but you have pretty much been fired.

So you have all of this same rights to claim for severance as an employee who was fired but not all cases are black and white. And there’s a lot of grey area. It’s important that you do consult a lawyer before exercising the option of constructive dismissal.

 

W. Eric Pedersen is a lawyer practising in Velletta & Company’s civil litigation department. Mr. Pedersen has worked with the civil litigation department to achieve successful outcomes for individuals and businesses, appearing in Provincial Court, Supreme Court, and the British Columbia Court of Appeal. His practice is focussed primarily on the following areas: Personal injury and motor vehicle claims, Employment and Human Rights Law, Commercial litigation, Real estate litigation, General insurance litigation, Disability insurance litigation and General civil litigation.

Scope of Work in Construction Litigation

The scope of work in a construction contract lays out what work is going to be completed by the contractor. This is a fundamental and important aspect of the agreement, that needs to be carefully set out to avoid disputes and ensure that the contractor is fairly paid, but not overpaid, for the work that they perform. Large scale construction contracts have detailed processes to clearly define the scope of work and deal with any changes that come up once work has started. Homeowners and contractors who deal with smaller projects often do not have the same level of detail regarding the scope of work, and unfortunately, this is a common area of dispute where the relationship breaks down between a contractor and homeowner. If the scope of work is not defined, the homeowner may dispute the bill thinking that they have been overcharged or the contractor has under delivered on what was required. While it is not always possible to implement the extensive procedures that are used on large projects, homeowners can benefit from knowing how large projects are conducted, and where possible applying these principles to the relationship with their contractor. Likewise, contractors can benefit from having clear quotes that precisely detail their scope of work so that the customer is less likely to dispute the contractor’s bill, and if a bill dispute develops the contractor has a better case in the event that matters go to court.

 

Setting out the Initial Scope of Work

The initial scope of work will be the basis on which the contractor makes their initial estimate or if they are offering an all-inclusive price, their quote for the job. The initial scope of work must be ascertained in order for the contractor to accurately estimate or quote the job. For large projects, the scope of work will likely be determined by a full set of plans and may include detailed specifications for the materials and construction techniques that the contractor must utilize. For homeowners, this is often not feasible; however, the more detail that can be communicated to the contractor in determining their estimate or quote, the better the chance that everyone is on the same page and the project will run smoothly, resulting in a satisfied client and a contractor who received the payment that they expected.

 

Ideally, a homeowner will have a set of plans on which the contractor is asked to offer an estimate or quote before the parties enter into a written agreement that includes details like payment terms and completion dates. If this is not possible, the homeowner may be wise to sit down with the contractor and go over the design of what they want to be built, and the materials that they want the contractor to use. For a homeowner who is not experienced with construction, the contractor may be able to offer advice and assistance in selecting materials and designing the improvement. At a minimum, both parties benefit by making sure that there is a written description of what will be constructed, the materials that will be used, and the cost.

 

Putting time and energy into defining the scope of work at the outset of the project may be difficult for the impatient, who want to get the project underway, but a clearly defined scope of work helps give both sides a better idea of the costs involved in the project and helps to avoid costly disputes. For both the homeowner and the contractor, having a clear understanding of the project is vital. The homeowner must understand exactly what they are getting, and how much they will need to pay. The contractor must understand exactly what is expected of them, and a clearly defined scope of work allows the contractor to show that they have completed the project and deserve payment.

 

Changes to the Scope of Work

In any project, whether it is a large residential development or a small residential renovation, there are often changes to the scope of work that take place over the course of the project. In a large project a municipality might require changes in order to issue approval, or a problem, such as inconveniently located bedrock, might become apparent that needs to be overcome in order to continue with construction. On a smaller project, gutting some walls might reveal shoddy work from a previous renovation, or water ingress or mould that should be remedied while the wall is open. In all of these hypotheticals, if the contractor did not include this work in their original quote and scope of work, then a change to the scope of work becomes necessary.

 

When there is a change to the scope of work, it can be problematic, because the work is already underway and suddenly there is the need to deal with the uncertainty created by the change in scope. The contractor will want to ensure that they are fairly paid for the additional work required by the change in scope. The owner or client will want to ensure that the contractor does not take advantage of the situation and bill an overly large amount for the additional work. It may be a delicate situation for both parties. The homeowner might feel like they are held hostage because their house is hallway ripped apart and they don’t want to get into a dispute with their contractor and delay the completion of their home. The contractor may have invested time and money into the project and might fear that getting into a dispute over a change to the scope of work will prevent or delay payment for the work already completed.

 

In large construction contracts, there is generally an independent consultant who acts as an intermediary when changes to the scope of work are needed. When the need for a change becomes apparent, a formal written change order will be issued to the contractor, the contractor will formally quote the change, and provide the quote to the consultant, who determines whether the quote is reasonable and in theory protects the interests of both parties. There may even be provisions for arbitration if one party does not agree with the consultant’s decision on a large change order.

 

For homeowners, it is cost prohibitive to have an independent consultant, and the pace of change on a residential project can be rapid, especially if the project is a residential renovation where things might be uncovered during the initial demolition phase. While there is no independent consultant on a smaller project, the parties themselves can still help avoid problems by clearly communicating. If the homeowner wants a change, that should be clearly specified and described. If the contractor thinks they are being asked to do something that was not included in the original scope of work, then they should deal with that issue immediately instead of putting it off until the final bill. Where both parties agree that something is an addition to the scope of work, the contractor should prepare a written quote for that addition – this is fair to both parties, the contractor is entitled to be paid for the extra work, and the homeowner is entitled to know what their requested change is going to cost.

 

While ultimately homeowners and residential contractors cannot implement the extensive procedures that are used on larger jobs, the same principles apply. The scope of work has to be clearly defined at the outset, for the benefit of both parties. Changes to the scope of work need to be clearly defined, and ideally agreed upon in writing through a written change order that defines the addition to the scope of work, and the compensation payable for completing that addition. Following these strategies should help both homeowners and contractors avoid disputes regarding the scope of work on a project. If the worst happens, and such a dispute does arise, it may be time to consult with construction litigation counsel. Velletta & Company is pleased to assist clients facing a construction litigation dispute, whether they are homeowners or contractors.

 

Cadeyrn Christie is a civil litigation lawyer and business lawyer with Velletta & Company. A former tradesperson, business owner, and high performance athlete, Cadeyrn focuses his practice on providing dynamic representation to individuals and businesses.Since joining Velletta & Company, Cadeyrn Christie has helped clients achieve cost effective legal solutions in a wide variety of contentious matters, including business disputes, debt collections, personal injury litigation, real estate disputes, and construction litigation. Contact Cadeyrn Christie

The New Civil Resolution Tribunal

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In British Columbia, most disputes involving less than $25,000 are resolved through Small Claims Court. Unfortunately many Small Claims litigants find this process time consuming and difficult to navigate without a lawyer, despite efforts to make it easier for parties to represent themselves and quickly settle their disputes through negotiation. Even with these efforts, Small Claims cases can take over a year to go to trial, if the case does not resolve at the mandatory settlement conference. In response to these problems, some have called for an expedited administrative process to deal with smaller disputes in a timelier manner, and without all of the formalities and rules of a traditional court proceeding. In response to these concerns British Columba enacted the Civil Resolution Tribunal Act [SBC 2012] c. 25 (the “Act”).

 

The Act

The Act establishes a Civil Resolution Tribunal (the “CRT”) that would provide an accelerated process for resolving minor strata property disputes and civil disputes up to $10,000. Initial tests of the tribunal process using a voluntary model showed low adoption, and so the process was made mandatory. The actual implementation however has been slow, and the Act is not yet fully implemented. In July 2016 the CRT began accepting strata disputes, and the current plan appears to be that in 2017 the CRT will begin accepting civil disputes up to $10,000.

 

Our firm regularly conducts Small Claims cases on behalf of our clients, and we are actively monitoring the development of the CRT so that we can advise our clients regarding this new dispute resolution process.

 

The Act contains a number of provisions that will make the CRT process very different from the traditional Small Claims Court process. Section 18 of the Act states that a tribunal proceeding is to be conducted with as little formality and technicality, and as much speed as is possible under the Act, the Rules, and with a proper consideration of the issues in the dispute.

 

The First Major Difference

Most, if not all, CRT proceeding will be conducted over the internet. Section 19 of the Act specifies that the tribunal may use electronic communication tools to conduct all or part of a proceeding. Courts have already begun to adopt online communication tools like video conferencing, but such methods are the exception rather than the rule. The CRT will change this, but it is not yet clear how the CRT intends to deal with parties who do not have internet access or who are not familiar with computers. One only has to sit through one attempted video conference that experiences technical difficulties to discover how quickly technology can malfunction, even with technologically sophisticated parties.

 

The Second Major Difference

Lawyers will only participate in CRT hearings under limited circumstances. Section 20 sets out that generally the parties are expected to represent themselves. There are exceptions that allow lawyers to act in CRT hearings when their client is a child or mentally impaired, when the rules otherwise permit, or when the tribunal deems it in the interests of justice and fairness.

The Possible Effects

Naturally lawyers are concerned about any quasi-judicial process that limits the rights of the parties to retain trained legal counsel. This is not a concern that is born out of self-interest. Disputes under $10,000 are rarely a profitable endeavor for a lawyer. The concern is that lawyers often play a vital role in negotiating matters, keeping the parties calm, and ensuring that the process runs smoothly. Lawyers also help muster the evidence and present it in an organized and compelling manner to secure the best possible result for their clients. Without lawyers involved in the process, the tribunal itself will have to accomplish these tasks, as well as adjudicating the dispute. If the tribunal fails to fill this void, the inevitable reality is that some parties will suffer from the lack of legal counsel.

 

It is too soon to tell how the CRT process will actually be implemented, but we are cautiously observing the development of this new process in order to monitor any potential impact on our clients.  If you have any questions, as always, contact us here at Velletta & Company!

 

ABOUT THE AUTHOR

_DSC0089_lowrezCadeyrn Christie is a civil litigation lawyer and business lawyer with Velletta & Company. A former tradesperson, business owner, and high performance athlete, Cadeyrn focuses his practice on providing dynamic representation to individuals and businesses.

Injured, Poor, and Living Off of ICBC Benefits

Parties injured in a motor vehicle accident in BC have access to no-fault disability benefits and payment of some treatment costs through ICBC.  If the injuries were caused by another driver who as at fault, the injured party can bring a lawsuit to recover their additional losses.  In reality, this can play out very differently for individuals, depending on their economic status.  Parties that were barely scraping by before suffering injuries in a motor vehicle accident, are at a comparative disadvantage to those parties that have access to savings or outside streams of incomes, due to a number of compounding factors.

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“Hit and Run” accidents and ICBC

In an ordinary personal injury lawsuit,  the plaintiff will need to know who is responsible for their injuries, so that the court can find that party responsible.   For example, if you were badly injured by a passerby who strikes you with their umbrella, and flees the scene, you may find yourself in the unfortunate position that you won’t be compensated for the pain and suffering, lost wages and expenses you might suffer from your injuries.  Thankfully, our laws in British Columbia do provide some protection to individuals who are injured in a “hit and run”, that is, by a negligent motorist who feels the scene of the accident and remains unidentified.

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What are Court Costs?

Most British Columbians who pursue their personal injury claims through a lawsuit will do so with the assistance of legal counsel.  Legal fees are typically very expensive.  The vast majority of injured plaintiffs will hire a lawyer on a contingency fee basis, meaning that they will be paid a percentage of the total settlement or judgment, and usually the lawyer doesn’t get paid until the case is over. As a personal injury lawyer, clients will often ask me, “Can I sue ICBC or the other party for all of my legal costs?”  My answer to this question is as follows: not really.

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