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Thursday, August 13, 2009
NS Decisions in Class Actions
Class actions are a relatively new procedural vehicle here in Nova Scotia. The Class Proceedings Act was proclaimed in force only in June 2008. Being new, the Courts have not yet had a full opportunity to interpret the legislation and provide meaning. Very little precedence has come out of this province to guide lawyers on how to proceed with class action litigation.
Wagners Law Firm is at the forefront of class action litigation in Nova Scotia and has been for a number of years prior to the establishment of the Act. In recent months the firm has successfully argued two similar motions that were the first of their kind in this province. The motions involved defendants' requests for detailed particulars and evidence which related to the merits of the claim. On behalf of the class members of both class actions, Wagners refused the requests. We submitted that production of that nature was premature. In brief, the details of both motions are as follows.
In Morrison Estate v. Nova Scotia, Wagners represents residents of long-term care facilities in Nova Scotia who were forced to pay for their own health care costs. The defendant, the Attorney General of Nova Scotia, sought further particulars of what the class members were claiming as part of the litigation. Wagners refused to produce these particulars until after the proceeding was certified as a class action. The issue was heard before the Court on June 24, 2009. In the first decision of its kind in Nova Scotia, the Court sided with Wagners. The Court denied the production request, reasoning that such evidence prior to the proceeding being certified as a class action would result in increased costs and a reduced access to justice. The Court felt it important that the certification issue be addressed first, before addressing evidence addressing the merits of the case. The decision can be found here.
A similar motion was brought in Bellefotnaine et al. v. Purdue, a case in which Wagner represents victims of the pharmaceutical drug OxyContin. Purdue sought the medical records of the representative plaintiffs prior to the certification hearing. Wagners objected to the production, arguing that the contents of the records were irrelevant to whether the claim could appropriately be certified as a class action. Again, the Court sided with Wagners. It denied production before the certification hearing.
These two decisions will provide guidance to class action lawyers in future litigation in Nova Scotia. It is clear that the stance of the Court is that evidence and particulars related to the merits of a class action do not have to be produced unless and until a claim is certified as a class proceeding. These rulings save on the costs of litigation, savings which will get passed on to plaintiffs. The decisions will also help provide for more efficient resolutions of class action claims.
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Wednesday, June 10, 2009
Social Websites
Websites such as MySpace and Facebook, are a relatively new phenomenon. These websites are becoming increasingly prevalent in our society. They have become a prominent feature in the lives of many people, including of course those who have fallen victim to injury caused by someone's negligence. It is interesting to see how courts have been dealing with the concept of Facebook and the impact this site has had on the personal injury claims of injured victims. It is important that plaintiffs in personal injury litigation with Facebook pages be apprised on this issue. Wagners is taking an interest into how these sites are dealt with in a legal environment.
Parties in personal injury litigation are required to disclose, with a number of exceptions, all relevant documents in their possession. They are further required to preserve all relevant electronic information. The recent Facebook phenomenon has injected an interesting question to a party's disclosure obligations: are Facebook photographs, blogs and messages relevant to a personal injury proceeding? This question has not yet been answered by a Nova Scotia court. In fact, a very few cases across Canada dealt with this issue.
Leduc v. Roman is a recent 2009 case out of Ontario. The injured victim of a car accident had a restricted Facebook profile. The Court found that the plaintiff had an obligation to preserve his account and to produce any information on his profile that demonstrated activities and enjoyment of life. The Court suggested that personal injury lawyers explain to their clients that materials posted on Facebook may be relevant to the proceeding. The Court was quick to note that the mere existence of a Facebook profile does not entitle a defendant to gain access to all material placed on the site. Before production will be ordered, a party must have evidence indicating that relevant information is likely contained on the Facebook profile. Without this evidence, one's privacy interests will be upheld.
It remains to be seen how this decision will impact the claims of personal injury victims in Nova Scotia. It certainly suggests that sufficient evidence must be advanced by a defendant demonstrating the existence of relevant information before a Court will delve into the privacy rights of personal injury claimants with restricted Facebook profiles. The same cannot be said for those with 'public' profiles. Those with 'public' profiles must heed this recent decision and would be well served to limit the public's access to their Facebook page.
Wagners continues to monitor this emerging area of law with a view to how these websites may impact litigation of its clients' claims for damages, class actions and other types of proceedings.
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Monday, May 11, 2009
Nova Scotia Insurance Cap
In 2003 the Conservative government of Nova Scotia passed legislation which imposed a cap of $2500 on "general damage" awards in motor vehicle collision personal injury claims, settlements and lawsuit. The legislation impacts victims of car accidents whose injuries are deemed to be "minor". While there are some other provinces with cap legislation, Nova Scotia's limit is the lowest in the country. Further compounding the unfairness of this legislation, the Tory government chose to define "minor injury" in as broad a manner possible. The all-encompassing definition potentially leaves little recourse for those car accident victims who are forced to live with permanent injury. Insurance companies now routinely argue that victims of chronic pain fall under the cap legislation. Legislation similar to that in Nova Scotia has been found to be unconstitutional in Alberta for discriminating against people with chronic pain.
The stated goal of reducing insurance rates has not been realized. Able to limit the recovery of sufferers of chronic pain, insurance companies have seen record profits since the imposition of the cap. These profits have remained in the pockets of the insurance companies, who have chosen not to pass the profits down to insurance consumers. Interestingly, a recent study has revealed that insurance consumers living in provinces without cap legislation, such as Newfoundland, enjoy the lowest insurance premiums in the country. The study can be found here.
For the past six years, insurance consumers who have had the misfortune of falling victim to car accidents have seen their recovery limited. However there is reason to be optimistic for change. A public interest group called the Nova Scotia Coalition Against No-Fault Insurance Society has been helping pain sufferers who have fallen victim to this legislation. The group has been working at finding an alternative for the cap legislation. A challenge to the constitutional validity of the legislation is currently making its way through the Nova Scotia courts. Furthermore, a provincial general election has been called for June 9, 2009. We encourage all Nova Scotia residents and insurance consumers to inform themselves of the positions of the various parties as they relate to the insurance cap.
Read about the NDP's position on the cap as it appeared in the Saturday, May 9, 2009 edition of the Herald.
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Thursday, October 23, 2008
APTLA Conference Update
Raymond Wagner and Michael Dull of Wagners Law Firm were asked to present at the Atlantic Provinces Trial Lawyers Association weekend conference held on June 4 and 5, 2008 in Nova Scotia.
Mr. Dull spoke of two recent Upper Court decisions and, more specifically, of the impact these rulings may have on plaintiffs in personal injury cases.
In the very recent decision from the Supreme Court of Canada in Doucette v. Wee Watch Day Care Systems Inc. (2008 SCC 8), it was held that parties in civil proceedings implicitly undertook to not use any obtained pre-trial evidence for any purpose outside of that particular proceeding. The Court acknowledged that pre-trial discovery is essential to the process and would often lead to settlement.
While stating that pre-trial discovery is necessary and important, the Supreme Court of Canada recognized that the discovery was an invasion of an individual's right to privacy. Accordingly, it should only be used for the limited purpose for that particular claim.
Injured victims in personal injury case are often understandably hesitant and leery of the discovery process, in which they are questioned, sometimes in detail, on their injuries and the effect the accident has had on their day-to-day living. Given that injured accidents victims often have much else to worry about, it is nice to hear from the Supreme Court of Canada that any privacy concerns will be limited. Generally the protection of privacy and the efficient conduct of civil litigation will outweigh any public interest in having the pre-trial discovery disclosed for other uses. This will no doubt provide assurances to accident victims who are faced with the pre-trial discovery process as part of the process to gain compensation for their injuries.
In Genge v. Parrill, (2007 CarswellNfld 383), the defendant was found to be responsible for a snowmobile accident which rendered the plaintiff a quadriplegic. The victim's injuries were very serious and permanent. He would require care and treatment for the rest of his life and sought compensation from the negligent defendant to help cover some of these costs. Unfortunately the defendant had not insured his snowmobile. When faced with the financial consequences of his negligence, he filed for bankruptcy.
Like most provinces, including Nova Scotia, Newfoundland has a "judgement recovery" regime under its Judgement Recovery Act, which allows for innocent car accident victims to be fairly compensated even were there is no insurance. In that case, with no insurance on the snowmobile, and with the defendant claiming bankruptcy protection, the severely injured plaintiff sought compensation from the "judgement recovery" fund. In spite of the bankruptcy protection, the Newfoundland Court of Appeal allowed the quantum claim against the negligent defendant to proceed for the purposes of presenting the assessed damage claim to the "judgement recovery" fund.
It is clear that in tragic circumstances such as this, the financial and emotional costs to injured victims and their families are massive. The tragedy would be made worse if there were no one to compensate for this. The judgement recovery program is essentially intended to be insurance by another name. In cases were there is no car insurance available, and the responsible party seeks bankruptcy protection, it is now clear that an injured car accident victim may still proceed against the defendant in spite of the bankruptcy for the purposes of obtaining compensation from the judgement recovery program.
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Sunday, October 12, 2008
We have a new Blog
Check back for more information and updates.
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