Litigation Strategy and Claims Destined for Trial Despite the Risk - - PowerPoint PPT Presentation

Litigation Strategy and Claims Destined for Trial 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 Precedent

• 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 Judgment – 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? EVIDENCE or ADVOCACY Evidence cases have clear legal framework and the court 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 LAW

• Pleaded facts don’t always give rise to a cause
• f 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/human rights 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

judge to weigh evidence

OUTCOME

Case dismissed:

– Adequacy of a landlord’s grounds for serving an eviction notice jurisdiction of RTB – Landlord tenant relationships governed by contract/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 lawyers 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

• n the playground equipment
• The children who are not “it” have their eyes
• pen
• 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

• f 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

• f 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

• bjective 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

• Courts 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

• pportunity 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

• n 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

• n the wall (which was removed) into the base
• f 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
• wners 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

• f a cord is usually innocuous and would not

lead to further inspection.

• In the alternative, they blamed the former
• wner.

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 Amp/Tape Deck Speaker Speaker Power Bar Receptacle #1

Electrical Connection Speaker Wire

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
• f 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

• ne 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

• f 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 – ambookman@carlaw.ca Caroline G. Alexander – cgalexander@carlaw.ca