Litigation Strategy and Claims Destined for Despite the Risk

Presented by Aron M. Bookman and Caroline Alexander January 2017 CLAIMS DESTINED FOR TRIAL AND WHEN TO RUN THEM

1. Claims that do not disclose a cause of action 2. Significant Liability Risk – All or Nothing Cases With No Established 3. Multiple Parties, Multiple Issues, No Defence Unity and a Key Issue Prevents Settlement LITIGATION OPTIONS

1. Application to Strike Pleadings – Rule 9-5 2. Summary – Rule 9-6 3. Summary Trial – Rule 9-7 4. Severance of Liability from Quantum Rule 12- 5(67) 5. Full Trial of All Issues IS A FULL TRIAL NEEDED TO RESOLVE THE CLAIM? or ADVOCACY

Evidence cases have clear legal framework and the just needs the information to find the answer – ex. cost of future care or criminal cases

Advocacy cases are ones where regardless of any dispute about what happened the real question is “Why does it matter if the allegations are true?” BAD FACTS DON’T ALWAYS MAKE BAD

• Pleaded facts don’t always give rise to a cause of action • Insured entities often face claims by self- represented litigants • Case Study: Bulwer v. CMHA (2016) – The key facts were not in dispute – How to defend a novel claim when the plaintiff should have pursued other avenues THE FACTS...

• Canadian Mental Health Association offers apartment rental units at subsidized rates to persons suffering from mental health challenges • Plaintiff disruptive to neighbors  issued eviction notice by defendant • Residential Tenancy Proceedings Commenced by Plaintiff. Plaintiff won. THE CLAIM

• The claim: psychiatric harm caused by wrongful issuance of the eviction notice • Potential risk: technically a residential tenancy issue/ issue • Plaintiff attempted to frame his case in negligence for failure to properly investigate complaints against him STRATEGY

• This was an Advocacy case because the question was: do the pleadings disclose a reasonable cause of action? • The critical task was framing the claim as one that could not survive, even assuming the facts in the pleadings as true • An application to strike does not allow the to weigh evidence OUTCOME

Case dismissed: – Adequacy of a landlord’s grounds for serving an eviction notice of RTB – Landlord tenant relationships governed by /RTA – CMHA breached no duty and committed no negligence by pursuing its lawful rights under the RTA – Policy reasons for not finding a duty of care – philanthropic organizations may stop providing affordable housing if they are burdened with duties/liabilities not shared by other landlords TAKE AWAYS….

• Litigation Cost • Application for dismissal at early stage to avoid litigation cost associated with document production, examinations for discovery, applications, etc. • Risk: Potential Appeals – filed then abandoned by plaintiff in this case – Some plaintiffs pursue appeals, sometimes all the way to the SCC UNREASONABLE RISK

• When Does Play Create An Unreasonable Risk Of Harm? • When is play too dangerous? INTERSECTION OF LAW AND PLAY

• What constitutes unreasonable Risk? • Case Study: Thompson v Saanich (2015) – How do defend a claim that a child was hurt because the play was too dangerous? – The key facts were not in dispute! BASIC FACTS

• Rebecca Thompson was 11 years old and registered in a day camp • During a break the kids from the day camp played a game called Grounders on the playground equipment • She fell from a 3 foot high platform and injured herself when she struck her head • Injuries were not insignificant WHAT IS GROUNDERS?

• Essentially it is tag, where the child who is “it” is on the ground and tries to tag other children on the playground equipment • The children who are not “it” have their eyes open • If the child who is “it” goes onto the playground equipment they have to close their eyes WHERE WAS GROUNDERS PLAYED? WHERE DID REBECCA FALL? THE CLAIM

• Grounders is inherently unsafe and should not be permitted • If Grounders is not inherently unsafe it was unsafe because of where it was played GENERAL LITIGATION STRATEGY – ADVOCACY CASE

• This was an Advocacy case because the question was: Why does it matter that Rebecca was allowed to play Grounders? • The critical task was framing the case to provide a more coherent analysis of the law than the opposing party GENERAL LITIGATION STRATEGY – ADVOCACY CASE

• It was not an Evidence case because although there are cases dealing with similar situations none of them are similar enough. As examples, there are cases about: – Gymnastics; – Piggy-back races; – Snowball fights; – Capture the flag; and – Tug of war GENERAL LITIGATION STRATEGY – ADVOCACY CASE

A summary trial is the most effective way to argue an Advocacy case because the trial is basically argument – There is no distraction and drama of viva voce testimony – The law can be argued prior to the evidence – Evidence can be tailored to the analysis of the law – The “everything but the kitchen-sink” approach to evidence is less effective – Written submissions can be provided at the start of trial and include excerpts from the affidavits GENERAL LITIGATION STRATEGY – HOW DO WE MANAGE THE BIGGEST RISKS

• Risk #1 - Sympathetic plaintiff – Severed liability from quantum – Emphasized legal principle: Evidence that an injury resulted is not evidence of an unusual risk of harm – Gathered evidence and made submissions about why it is important to let kids participate in physical activity and the risk of “bubble-wrapping” – Suggested a possible result of finding liability against Saanich would be the widespread banning of games similar to Grounders GENERAL LITIGATION STRATEGY – HOW DO WE MANAGE THE BIGGEST RISKS

• Risk #2 – Common sense says kids should not be permitted to chase each other around on a playground with their eyes closed – The kid with their eyes closed was not the kid injured – Grounders is widely and frequently played with very few significant injuries OUTCOME: CLAIM DISMISSED

“There is no doubt that games like grounders involve a small degree of risk, as do all children’s outdoor activities involving running, jumping, climbing, tagging, chasing, dodging, feinting, and so on. But judging the matter by the objective measure of the reasonably careful and prudent parent, I conclude that the risk of harm inherent in such games is sufficiently remote that to permit children to play them is not unreasonable.” “… what occurred in this case was a most unfortunate accident for which no fault can be attributed to the District” CONCLUSIONS

• are deferential to historical records related to injury (“statistics”) • Although an injured child elicits sympathy it is important to put the specific situation in a broader context • Summary trial resolved the main barrier to resolution – liability. TAKE-AWAYS

Litigation Points • It is important to frame a case in a manner that looks past a single incident and considers the wider context of what is best for society • Going to trial in situations that have clear facts when the law is uncertain provides an opportunity to manage the risk for future activities MAIN ISSUE STUMBLING BLOCK

• Claims with multiple defendants, insurance issues in the background, and defendants unable to attempt settlement based on widely diverging liability opinions • Case Study: Boyes v. Wong et al. (2016) – How to defend a claim where defendants’ views on liability are irreconcilable

BASIC FACTS

• 10 month old infant suffered severe electrical shock and burns by putting an energized cord in her mouth resulting in life altering injuries. • The cord which caused the shock is known as a ‘suicide cord’ as it is a cord where the female end is spliced off and replaced with male end. • Typical use is where a ‘do it yourselfer’ makes an error putting up Christmas lights. THE CORD THE CABINET

• The cord was under the base of a built in cabinet originally constructed in the mid- 1980’s as an entertainment center. • Whoever built the cabinet provided power to it by dropping the receptacle box which was on the wall (which was removed) into the base of the cabinet. • The cabinet was photographed before the incident and after. THE CABINET (PRE-INCIDENT) THE CABINET (POST INCIDENT) THE CLAIM

• The infant plaintiff sued the owners and landlord on the basis of the Residential Tenancy Act and Occupiers Liability Act alleging negligence. • The main argument made was that the owners and landlord did not conduct reasonable inspections of the premises whereby the Cord would have been discovered. THE CLAIM

• The Plaintiff and the owners/landlord sued the former owner of the home (our client) on the basis that the Cabinet with the Cord were constructed and installed when she owned and occupied the home. • The claim was framed in negligence and duty to warn. The only viable cause of action was a duty to warn. THE DEFENCES (OWNERS/LANDLORD)

• The owners were absentee owners. • The landlord did not know there was a hazard though she dealt with move in/move out of tenants and necessary repairs. • The owners and landlord argued the Cord was a hidden hazard that they could not be reasonably expected to discover. THE DEFENCES (OWNERS/LANDLORD)

• They presented expert testimony as to the standard of care of a property manager. • They argued that even if a reasonable inspection uncovered the male end of a cord and the receptacles in the Cabinet, a male end of a cord is usually innocuous and would not lead to further inspection. • In the alternative, they blamed the former owner. THE DEFENCES (FORMER OWNER)

• The former owner admitted the Cabinet was constructed and used for over 10 years while she lived there and would have included the hidden main receptacle (not to Code). • The former owner denied that the Cord was installed in the Cabinet and argued that someone must have modified the Cabinet and installed the Cord after she sold the home. THE DEFENCES (FORMER OWNER)

Television Record Player

Speaker Amp/Tape Deck Power Speaker

Electrical Connection

Speaker Wire Receptacle #1 THE DEFENCES (FORMER OWNER)

• The home was sold in 1992 and the incident happened in 2007. A 15 year gap! • In the event the Cord was installed originally in the Cabinet, the former owner: – Testified she never saw the Cord and would not have allowed such a hazard to be in her home. – relied on the doctrine of caveat emptor (buyer beware). REASONS FOR TRIAL

• The infant Plaintiff sought to have liability determined to provide security to the family that medical expenses would be paid. • The parties agreed to severance but required a full viva voce trial due to disputed evidence from experts, the parties and lay witnesses. • Plaintiff lawyers also tried to elicit sympathy from the witnesses and the Court. SETTLEMENT?

• Settlement could have been achieved by way of admitting fault and apportioning same. • Settlement was not a good option because the main defendants disputed their fault and asserted that the former owner or father were solely at fault. • Even if apportionment was achieved, there was a potential limits issue. • Best strategy=go to trial. PLAINTIFF’S TRIAL STRATEGY

• The Plaintiff’s lawyers directed their case primarily at the owners/landlord. • The infant Plaintiff’s claim was extremely sympathetic. • The Plaintiff’s lawyers emphasized the owners were absentee owners living in Hong Kong who had never stepped foot in the premises and had the home managed by the sister of one of the owners. PLAINTIFF’S TRIAL STRATEGY

• Relying on Klajch v. Jongeneel, 2002 BCCA 14, the Plaintiff’s lawyers made a policy argument (see Thompson analysis) that absentee owners and unprofessional building management were problems in Vancouver: – The standard of care requires reasonable inspection by the landlord. – The hazard should have been discovered by way of a reasonable inspection prior to the tenancy. OUR TRIAL STRATEGY

• The former owner’s caveat emptor and duty to warn arguments also relied on the concept of reasonable inspection. • The concept of the Cord having been installed by a tenant was not inconsistent with the Plaintiff’s case and there was evidence from a previous tenant who said he saw the Cord. • We aligned our case with the Plaintiff’s case. OUTCOME

• The case against the former owner was dismissed. • The case against the Plaintiff’s father was dismissed. • The court found the owners and landlord liable to the Plaintiff and apportioned fault and costs equally between these defendants. • Quantum remains to be determined! TAKE AWAYS

• Strong facts and law should result in keeping your case simple. • You can make arguments without expert testimony! • Sometimes trial is the only viable solution. • Going to trial requires taking risks that may not present themselves in the context of a mediated settlement such as aligning your case with the Plaintiff’s case. FULL TRIAL

Sometimes a full trial is necessary… • When the parties are too far apart in quantum assessments and/or both quantum and liability are disputed • Self Represented Plaintiffs often seek unreasonable remedies – makes settlement impossible • If pleadings do disclose a potential cause of action  full trial – Often with many applications/adjournments/appeals QUESTIONS?

Aron M. Bookman – [email protected] Caroline G. Alexander – [email protected]