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.