2008 BCSC 1347 Mansoor v. Majeed

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*Mansoor v. Majeed,*
	2008 BCSC 1347

Date: 20080926
Docket: M073383
Registry: Vancouver

Between:

Ramees Mahomed Mansoor

Plaintiff

And:

Mohamed R. Majeed and MKA Leasing Ltd.

Defendants

Before: The Honourable Mr. Justice Walker

Oral Reasons for Judgment

In Chambers
September 26, 2008

Counsel for Plaintiff	S. Morishita
Counsel for Defendants	J. O’Flynn
Place of Trial/Hearing:	Vancouver, B.C.

[1] THE COURT: This is an appeal from the order of Master Scarth made September 10, 2008. Master Scarth ordered: firstly, that the plaintiff shall provide within 21 days particulars for any claim for special damages to date; secondly, the plaintiff shall provide within 21 days particulars of any claim for loss of earnings to date; and thirdly, each party shall bear their own costs.

[2] The appellant, whom I will refer to as the plaintiff, says that the Master erred in law and was clearly wrong in ordering the plaintiff to provide those particulars.

[3] This action concerns damages alleged to have been suffered and sustained by the plaintiff arising from a motor vehicle accident that occurred on August 11, 2005 at the intersection of West King Edward and Yukon Streets in Vancouver. Liability is admitted by the respondents, whom I will call the defendants.

[4] The statement of claim filed on behalf of the plaintiff claims for, inter alia, loss of earnings, past and prospective, loss of opportunity to earn income, and loss and expense for medical treatment.

[5] At the same time counsel for the defendants served the defendants' statement of defence, they delivered a demand for particulars to the plaintiff in relation to the plaintiff’s claims for loss of earnings, loss of income earning capacity, loss of opportunity to earn income, loss of housekeeping capacity, certain special damages, and loss and expense for medical treatment, all pursuant to Rule 19(17).

[6] The plaintiff has refused to provide those particulars.

[7] Although the plaintiff has delivered its list of documents, that list I am told by counsel for the plaintiff, does not contain any of the receipts for medical expenses paid to date and for which a claim is pleaded in the statement of claim.

[8] Counsel for the plaintiff also concedes that if this application were brought now pursuant to Rule 26 in respect of those missing documents, the plaintiff would not have a defence.

[9] As well, counsel for the plaintiff concedes that if questions in respect of the wage loss and special damages were made at discovery and remained unanswered, then upon an application by the defendant to compel answers to those questions the plaintiff would have no defence.

[10] Further, counsel for the plaintiff says that the information sought by the defendants could have been obtained by interrogatories.

[11] Thus, the complaint of the plaintiff is that the defendants seek this information through a Rule that does not apply since, according to the cases of Cansulex Ltd. v. Perry, [1982] B.C.J. No. 369 (C.A.) and Anglo-Canadian Timber Products v. British Columbia Electric Co. Ltd. (1960), 31 W.W.R. 604, 23 D.L.R. (2d) 656 (B.C.C.A.), particulars can only be sought for the following purposes:

(a) to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;

(b) to prevent the other side from being taken by surprise at the trial;

(d) to limit the generality of the pleadings;

(e) to limit and decide the issues to be tried, and as to which discovery is required; and,

(f) to tie the hands of the party so that he cannot without leave go into any matters not included.

[12] The plaintiff says that here, the pleading in the statement of claim is clear in that there is no surprise for the defendants at trial. Further, the pleading sets forth the issues with precision and clarity. Moreover, this is not a case where claims are made in respect of misrepresentation, fraud, breach of trust, willful default, or undue influence. Nor is this a case involving, he says, complex litigation where particulars may be appropriate.

[13] Instead, counsel for the plaintiff in his able submissions characterizes this case as a “routine bodily injury claim”. He submits that forcing the plaintiff to provide particulars of the wage loss claim and special damages would be prejudicial to the plaintiff in that it would result in duplication of effort and extra expense.

[14] Counsel for the plaintiff has quite properly referred me to a number of authorities where particulars have been ordered in bodily injury cases.

[15] The first is Ross v. Henriques, 2007 BCSC 1381, a decision of Mr. Justice Truscott where particulars of wage loss were characterized as a delineation of that loss. At paras. 100 to 101 and 104, he said:

The defendants have requested this information and accordingly the plaintiff will be ordered to provide particulars of her claim for special damages to date, forthwith.

The plaintiff has also claimed past and ongoing wage loss. I do not consider details of past wage loss to date to be a method or mode of proving that loss but a delineation of that loss.

…

Particulars are needed of the past wage loss claim to date before any further examination for discovery is conducted of the plaintiff and the plaintiff will be ordered to provide that information to date, forthwith.

[16] The next case I was referred to is Vanderhaeghe v. Andjelic and Holm's Mechanical Ltd., (17 June 2008), Vancouver M063878 (B.C.S.C.), where Mr. Justice Cullen applied Ross, at para. 18:

The application for particulars for past wage loss is on a different footing in my view. In Ross v. Henriques, 2007 BCSC 1381, Truscott J. drew a distinction in ordering particulars with the way in which the past wage loss will be proved and a delineation of that loss. In that case, Truscott J. reasoned in paras. 101-103 …

[17] I will not repeat the excerpt from Ross, which is quoted, in part, above.

[18] In ordering particulars of the wage loss claim, Mr. Justice Cullen went on to say, at para. 19:

In the result, Mr. Justice Truscott ordered particulars in relation to past wage loss but not ongoing or future wage loss. He ordered it "before any further examination for discovery is conducted," and as I mentioned, no other order was made as to prospective wage loss in that case.

[19] Cullen, J. also reviewed other cases supporting his decision to order the delivery of particulars. At paras. 20-21, he said:

In Green v. Fenarrow (sic), relied on by the defendant as well, only past wage loss was sought, “no projection of future losses or earnings is sought.” In Weinfeld v. Wheeler, (1986) B.C.J. 1246, in which Cowan L.J.S.C. ordered particulars in relation to a “pro forma projection” of a business opportunity, the plaintiff was unable to pursue, he noted that he made the order “as it will be essential that the plaintiff to succeed on the loss of income claim at trial will have to produce evidence of that nature.” As I read it, Cowan L.J.S.C. was ordering something quite different from what the defendant is seeking here. Here the defendant is necessarily seeking particulars of the ongoing effect of the injuries on the ability of the plaintiff to earn income from her business given the nature of the business and the nature of her injury. Those are matters of evidence and logical reasoning and inference not amendable to particulars.

In Weinfeld v. Wheeler, the Honourable Judge Cowan, as he then was, was ordering what he construed to be an ascertainable material fact. The pro forma projection of a business opportunity that was lost. In my view, the matters are distinct and I would not make the order of particulars sought except in relation to the past loss of income, inclusive of past loss of opportunity to earn income.

[20] The third case I was referred to was Green v. Funaro (1964), 49 W.W.R. 510 (B.C.S.C.), a decision of Chief Justice Wilson that addressed the matter directly, and practically, at page 510:

All that is asked for is particulars of loss of income up to date, no projection of future losses or earnings is sought. The matter is, of course, peculiarly within the knowledge of the plaintiff. Defendant's counsel tells me, and I believe him, that the particulars are wanted to enable the defendant to decide on an amount to be paid into court under the Rules as, in effect, an offer of settlement.

[21] At page 511, the Learned Chief Justice remarked upon the good sense and practicality of making the order:

All good sense and practicality is in favour of making this order and I refer, although I cannot claim that it is exactly in point, to Monk v. Redwing Aircraft Co., [1942] 1 KB 182, 111 LJKB 277, a decision of the English court of appeal…

[22] At page 511, Wilson, C.J.S.C. characterised the plaintiff’s refusal to deliver particulars as obstructive:

I am respectfully content to adopt this reasoning. The plaintiff's refusal to give these easily assertable particulars appears to me to be merely obstructive.

[23] Counsel for the plaintiff also referred me to an excerpt from McLachlin and Taylor’s British Columbia Practice (B. McLachlin and J. Taylor, British Columbia Practice, 3^rd ed. by Frederick Irvine (Vancouver: Butterworths, 2006)). In their discussion of Rule 19(11), under the heading “Particulars of Special Damages”, at page 19-17(2), the authors state:

Special damages must be specifically pleaded in the body of the statement of claim as well as in the prayer for relief. The pleadings must be supported by material facts, and particulars of special damages should include both the amount of loss and damage suffered and how that amount is made up and calculated….At the very least, as soon as quantification of special damages becomes known to the plaintiff, the plaintiff should particularize them forthwith. If the plaintiff is unable to do so (and thus cannot comply with an order to particularize those losses experienced), the appropriate solution is to amend the statement of claim to remove the reference to special damages.

[24] In support of that proposition, McLachlin and Taylor cite Hayward v. Pullinger & Partners Ltd., [1950] 1 All E.R. 581; Madden v. Brooklyn-Stemwinder Goldmines Ltd., [1950] 1 W.W.R. 246 (B.C.S.C.); and Kwakiutl Nation v. Canada (Attorney General), [2004] B.C.J. No. 728, 2 C.P.C. (6^th) 127 (S.C.), at para. 65.

[25] The plaintiff submits that those three cases as well as Ross, Vanderhaeghe, and Green do not properly reflect the law since:

(a) some pre-date the decisions in Cansulex and Anglo-Canadian;

(b) some ignore Cansulex and Anglo-Canadian in that they make no reference to them; and

and in the instance of the McLachlin and Taylor text, reliance is placed on two out-of-date authorities and an authority of this Court that did not consider Cansulex.

[26] With the greatest of respect, Cansulex and Anglo-Canadian are, in my view, consonant with the decisions in the cases holding against the plaintiff's submissions. There is nothing in those decisions which precludes the production of particulars in circumstances extant in this case.

[27] The decision to order particulars is something that is to be determined on the facts of each case. In that regard, I rely on the decision of Madam Justice Southin, sitting then in this Court, in Proconic Electronics Ltd. v. Wong, 67 B.C.L.R. 237, [1985] B.C.J. No. 2863 (S.C.) where, at page 241 she quoted from the decision of Waynes Merthyr Co. v. Radford & Co., [1896] Ch. 29 at 35, where it was said:

The Lord Justice did not lay down any such general proposition as that contended for by the defendants' counsel, and in my opinion there is no such general rule. There is no hard and fast rule as to the class of cases in which particulars should precede discovery, or discovery be ordered before particulars; but the judge must exercise a reasonable discretion in every case after carefully looking at all the facts, and taking into account any special circumstances.

[28] That approach explains the decision reached by Madam Justice Ross in Order of the Oblates of Mary Immaculate in the Province of British Columbia v. Dohm, Jaffer & Jeraj, Barristers and Solicitors, 2007 BCSC 734, B.C.J. No. 1107. Ross, J. declined to order particulars in a situation where, following production of a great volume of documents by one party, the other party seeking particulars was, in effect, attempting to force the producing party to go through a myriad of those documents in order to synthesize them, something that should have been done by the party seeking the particulars as part of the defense of the case.

[29] In support of its appeal, counsel for the plaintiff has also drawn my attention to the decision of Master Baker in Sutherland v. Banman, 2008 BCSC 1194. In that case, Master Baker said that a demand for particulars of a wage loss claim made during the course of an examination for discovery was not a demand for particulars, but a demand for evidence. At para. 3, he said:

Ms. Sutherland was examined for discovery September 12th, 2007. At Q. 1316 of that examination Mr. Adrian asked for "... particulars of the wage-loss claim being advanced and loss of capacity claim" and then adjourned the examination.

[30] At para. 7, Master Baker said:

What the defence is seeking, then, is not particulars but evidence. Properly conceived and expressed, the motion should seek relief under Rule 27 and the cases decided under that rule. Were the motion presented in that way, the plaintiff would then know the real relief sought and would then be able to either agree, or to marshal her arguments in opposition.

[31] With those cases in mind, it is essential to refer to Rule 1(5) of the Rules of Court where the framers said:

[T]he object of these rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

[32] In my view, providing particulars of the plaintiff's wage loss and special damages’ claims in a case where liability has been admitted, particularly a routine bodily injury case, serves the purpose of the Rules of Court.

[33] This is a matter where the information sought has to be provided to the defendants at some point in time. The documents relating to the claim for special damages should have been listed in the plaintiff's list of documents. They were not, and that is troubling.

[34] Delivery of the particulars sought may well shorten the time spent at examination for discovery, but most certainly failing to deliver them will prolong the discovery process.

[35] There is nothing in the Rules of Court stating that the particulars provided are meant to contain the final wage loss and special damages’ amounts. The McLachlin and Taylor text states that particulars of special damages are to be provided as they become known; the textual commentary suggests to me that particulars of special damages should be delivered from time to time as they become known. That makes good sense in a bodily injury case as special damages may only be known on an ongoing basis as the amounts are incurred. Simply because some members of the Bar have fallen into the habit of providing particulars of special damages once, late in the day, is no answer to what the McLachlin and Taylor text says is good practice.

[36] The fact that the cases holding against the plaintiff's submissions do not refer to Cansulex and Anglo-Canadian cases do not make them uninformed or incorrect in law.

[37] There is a qualitative difference between the information to be produced in response to a demand for particulars, and, what is to be produced on a list of documents, what is to be delivered up by way of sworn answers to interrogatories, and sworn evidence given on an examination for discovery.

[38] Documentary evidence is produced and delivered as part of the document production process under Rule 26. Evidence in relation to wage loss and special damages comes from the document discovery process, possibly through interrogatories, and most certainly through the examination for discovery process.

[39] Particulars seek the information; they do not seek evidence. All the plaintiff needed do in this case was to indicate the amount of money spent for medical treatment and the income losses suffered to date. That is not providing evidence, but only information. As Chief Justice Wilson remarked, providing that information may have been sufficient for the defendants to seek resolution of the claim, for example, to make an offer to settle under the Rules of Court.

[40] The test on this appeal is whether the Master was clearly wrong. She was not. Moreover, my view is that her decision was correct in all the circumstances of this case. The appeal is dismissed.

[41] Reference was made during submissions to an order of Mr. Justice Davies regarding a stay application. Although counsel asked me to deal with the costs of that application in my costs order, I am unable and unwilling to do that as counsel have advised that there is a disagreement as to the terms of that order so that they need to appear before Davies J. to settle it.

[42] My order as to costs concerns the appeal and the hearing before Master Scarth.

[43] In my view, costs should be awarded to the defendants in any event of the cause. I say that because:

(a) the cases cited to me establish a clear line of authority against the plaintiff’s submissions;

(b) the decision of Master Baker in Sutherland is not inconsistent with that line of authority;

(d) the refusal by a party to deliver particulars in a case such as this obstructs the opportunity of the party seeking them to attempt resolution at an early stage of the case.

[44] I emphasize again that the information sought by the defendants has to be provided to the defendants sooner or later. Here, the defendants seek that information at an early stage in the litigation. The defendants admitted liability at the outset. They wish to know the value of the claim. The medical receipts should have been produced in the list of documents and were not. Delivery of particulars may assist the defendants in their assessment and approach towards resolution of the claim.

[45] I order that costs be payable to the defendants in any event of the cause.

___________”Mr Justice Paul W. Walker”_________