Law Courts Center

Law Courts Center MVA 103 Course Material v160122docPage 1 of 1

Course: Managing MVA Files 103

Learning Outcomes

The learner will learn:

1.to structure and manage a document binder for an MVA file;

2.how to correctly calculate 6 different limitation periods

associated with MVA files;

3. what information goes into Part 1, Part 2 and Part 3 of a "motor

vehicle" Notice of Civil Claim;

4. how to effectively utilize chronologies and treatment charts;

5. how to make redactions for privilege and irrelevance to

clinical records; and

6. at least 5 best practices for preparing for a motor vehicle trial.

Course Pre-requisite

This course is open to those who work or have worked in a law firm setting and are now working on personal injury files.

Primary Teaching Tools

1. Mini-lectures;

2. Pre-course work requiring the students to work on learning outcome #1 and 5;

3. Class discussions to demonstrate understanding of learning outcomes #1,2 and 6;

4. In-course work requiring the students to demonstrate understanding of learning outcomes #2, 3, 4 and 5;

5. Post-course work to enable the students to demonstrate an understanding of all the outcomes.

Staff:

Gerrie Campbell, Instructor

Dom Bautista, Course designer

LAW COURTS CENTER

Student Name:

Course: Managing MVA Files 103

Date of Course:

Summary of Marks:

Participation (10%)

Pre-course work (20%)

Drafting/NCC exercise (5%)

Post-course work (65%)

Minus 5% per day late demerit (if applicable)

Total/100%

Remarks

For continuing professional development reporting purposes to the Law Society of British Columbia, this course is 7.0 hours long. It includes 0 hours of training in professional responsibility and ethics, client care and relations and practice management.

Upon the completion of a course, you will receive one of these two types of certificates - attendance or completion. The Certificate of Completion indicates that you attended the course, participated in the discussions, completed and the course work and achieved a minimum mark of 70%.

Law Courts Center MVA 103 Course Material v160122docPage 1 of 1

Course Outline version August 15, 2012

9:00 Opening remarks

9:15 Section A: Overview
- torts/liability/heads of damages
- Part 7 rehabilitation benefits
- intake/investigation
9:45 Section B: Relevance and Privilege
10:00 Section C:Collecting plaintiff documents
10:30 Break
10:45 Section C:Collecting plaintiff documents

11:00 Section D:Collecting defence documents
- redacting
- redacting exercise
11:30 Section E: Organizing file materials
12:15 LUNCH
1:00 Section FLimitation Dates
1:30 Section GPleadings
- Notice of Civil Claim exercise

2:30 Break
2:45 Section H:Document Disclosure
3:00 Section I:Chambers Applications & Summary Judgements
3:15 Case Study
3:45 Section J:Examination for Discovery
4:15 Section K:Trial and Mediation

4:45 Wrap Up

Pre-Course Work version January 22, 2016 (10 marks)

To assist you in getting ready for your training and for you to get the most of your time with us, prior to coming to class, please turn in your answers to these questions at the beginning of the course:

Part A

1.List two statutes that are commonly relied upon in motor vehicle cases. (1 mark)

2.Briefly describe how your firm manages the file after your firm (lawyer) has been retained (Plaintiff or Defence). (1 mark)

3.Think about how you manage your MVA files now. Describe four areas of managing motor vehicle files that you find difficult or when you would like to improve your practice. (1 mark)

4.The measure of standard of care (MVA) is set out in Part 3 section _____ to ______of the Motor Vehicle Act. Describe what is determined to be standard of care under the above sections of the Motor Vehicle Act. (1 mark)

5.What is the limitation date for an adult for commencing a Notice of Civil Claim? (1 mark)

6.What is the limitation date for an infant/minor for commencing a Notice of Civil Claim and what would the style of cause show? (1 mark)

7. What is causation? (1 mark)

8. What are two common allegations of contributory negligence are made against the Plaintiffs? (1 mark)

9.To initiate a claim for a motor vehicle accident benefits, what documents must be submitted to ICBC? (1 mark)

10.What is the purpose of aFull and Final Release? (1 mark)

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Part B Short essay

Read the two articles and answer the accompany question (5 marks each):

a. “Retainers and Undivided Loyalty” Discuss the concept of undivided loyalty with your lawyer and explain what your firm does to ensure that each firm client enjoys undivided loyalty.

b. “The Necessity of Redacting Documents Correctly”. Describe the protocols your firm follows to ensure your documents are redacted correctly.

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Article 1: Retainers and Undivided Loyalty

In most motor vehicle accident (MVA) actions, it is common practice for a defence lawyer to act for two or more clients. Usually, the most cost effective decision for the insurance company is for each defendant to give his or her consent to retain a single lawyer. The joint retainer is shared between the insurance company and the defendants. Although not common practice, a lawyer may represent two plaintiffs; the driver/owner and the passenger. Even though a joint retainer exists, a lawyer should still be acting in the best interests of both clients.

Even after the initial conflict checks are completed, additional conflicts may yet arise. For instance, two people (an owner/driver and a passenger) may retain a single lawyer, but if the passenger subsequently names the owner/driver as a defendant, the lawyer will not represent both parties. This is the simplest example of a conflict of interest. However, if the owner/driver is not named as a defendant, a lawyer may act for both plaintiffs in one action. For defence files, law firms need to ensure that they have not acted against any of the defendants they have been retained to represent.

It’s important to note that defendants share their lawyer with the Insurance Corporation of British Columbia (ICBC) or the out-of-province insurer. The case of Hopkins v. Wellington, 1999 CanLII 5583 (BCSC), 1999 B.C.J. 1164, states the same duty is owed to the defendant by the lawyer as if they were retained personally. Although ICBC has appointed the lawyer, incurs bills and recovers costs, the defendant is still the client and is owed a duty of loyalty.

“Loyalty includes putting the client’s business ahead of the lawyer’s business,” states R. v. Neil, 2002 SCC 70, [2002] 3 SCR 631 at para. 24. Chapter 6 of the Professional Conduct Handbook (BC Code) states that lawyers have a duty of loyalty to every client, may act for clients with opposing interests and, with consent, act for clients where “divided loyalties” may develop. Accordingly, lawyers should explain the concept of undivided loyalty to clients and obtain their express consent to act for them where a conflict exists. Furthermore, the Code of Professional Conduct for BC states that implied consent is only for exceptional cases and may depend on the legal knowledge of the client.

Following the test set out in Macdonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, a lawyer cannot act against his or her client, whether past or present, if they possess confidential information that may be used against them in an action. Acting against a former client may allow the other party to hold a clear advantage and access to personal and potentially damaging information. Performing conflict checks in your firm will limit the possibility that you are acting against a former client.

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What action should be taken if the defendant confides that they may have been driving their car for work errands without proper insurance? What if the client has their learner’s licence and states that they had driven the car without an adult passenger, or more distressing, they had consumed alcohol before the accident?

A breach of insurance is usually determined by ICBC before an action is started and a lawyer is appointed as defence counsel. The lawyer may have to withdraw as defence counsel and ask that ICBC appoint a new lawyer if the defendant discloses prejudicial information. Moreover, the lawyer does not have to disclose the information or action that lead to the conflict to ICBC. All parties to the action will become immediately aware of the conflict should the prejudicial information be disclosed at an examination for discovery.

The same duty of loyalty is owed to both plaintiffs and to defendants equally. While many firms act for two or more clients in the same matter, it is important to have written communication as well as verbal contact with each client so they are aware of the lawyer’s undivided loyalty. Conflict checks will also prevent the firm from acting against a former client, but the extent to which you acted for that client may have to be assessed. Hence you may be able to act against a former client if no confidential information was obtained or they were seeking advice on a separate matter. For that reason, understanding how an action is commenced is key to managing your accident files efficiently.

Lenise Rouse is a paralegal at Burns Fitzpatrick Rogers Schwartz Turner LLP and is an adjunct faculty at the Law Courts Center.

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Article 2: The Necessity of Redacting Documents Correctly

In a personal injury case like a motor vehicle accident, whether you act for the plaintiff or the defendant, it is important to build the case based on evidence sought out from many sources of information.

It starts early, by reviewing the MV6020 Traffic Accident Police Investigation Report. Each party involved in a motor vehicle accident is entitled to a copy of the police report. Depending on the copy you have received, you may see that some information regarding the parties/witnesses has been removed or blacked out. This is an example of redaction and is often done with a view to ensure that the contact information of third parties are not disclosed to either party.

In any legal proceeding, redaction is justified for reasons of privilege. The amount and nature of information to be redacted can vary greatly. Generally, redaction is the editing of a document to remove, mask or delete privileged or confidential information. Because health care and legal service providers are trained differently in their ethical and legal responsibilities, distinguishing between confidentiality and privilege is not easy. For example, confidentiality refers to the ethical duty of physicians not to disclose information learned from the patient to any other person or organization without the consent of the patient. Privilege is primarily a rule of evidence that prevents admission into evidence of certain types of information.

Redacting can be performed by:

• Manually covering passages with an indelible marker to ensure that any physical redaction effectively hides the original text. You want to also identify any supporting documents for additional information that may also need to be redacted (i.e. parts of clinical records which may contain consult reports from specialists which are not relevant to the the action).

• Copying the document, removing the redacted portion and by keeping the original document separately from your redacted copy.

• Using a computer software program that has excellent redaction functionalities for your electronic files and metadata (which can contain information about the document, such as author, subject, keywords and title). A number of tools/programs are available, but you want one that is quick, easy to operate, but most of all secure.

• Ensuring that the redacted documents are properly labelled.

Redaction can be applied to a document which contains legal advice and is thereby protected by client-solicitor privilege. More frequently, redaction is applied to the myriad of clinical records which will be obtained during the duration of the claim. These records often contain personal information and treatment unrelated to injury or other medical conditions (ie: bronchitis, skin irritations). Consequently, counsel must carefully vet the records to remove portions that concern injuries and medical conditions that are not at issue to the proceeding. Because clinical records are a series of records complied over time and over several visits, these records should not be viewed as if they were a single document. Each visit requires analysis as to whether it may prove or disprove a material fact or relate to a matter in question. Rule 7-1 of the Supreme Court Civil Rules does not provide a clear bright line rule for redacting and producing documents. However, British Columbia’s Personal Information Protection Act provides ground rules for how information may be collected, used and disclosed.

Redaction is important because it shapes the scope of discovery for the plaintiff, who relies on records to provide evidence of the client’s claim which include pain and suffering, loss of enjoyment, wage loss - past and future, loss of opportunity and any out-of-pocket expenses incurred by the client. Defence counsel relies on records to test the plaintiff’s credibility and for cross examination with respect to matters contained in those clinical records at an examination for discovery.

If a document has been redacted, a party may bring a chambers application to obtain an unedited version of the record and the judge or master will make a determination as to the extent to which the entire record is to be provided. Counsel must be mindful of protecting privilege when it redacts documents. And just as importantly, they have a duty to disclose all material facts in good faith. !

Gerrie Campbell is a senior paralegal with Bronson Jones & Company LLP and is an adjunct faculty at the Law Courts Center.