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PRE-TRIAL CONFERENCES
TABLE OF CONTENTS
VII. THE PRE-TRIAL RESULT
IV. PREPARING THE PRE-TRIAL BRIEF
V. PREPARING THE CLIENT FOR PRE-TRIAL CONFERENCE
VI. PARTICIPATING IN THE PRE-TRIAL CONFERENCE
I. INTRODUCTION TO SUBJECT MATTER OF THE LECTURE
II. AN HISTORICAL PERSPECTIVE
III. THE PRESENT RULES
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PRE-TRIAL BRIEF - PERSONAL INJURY (SIMPLE)PRE-TRIAL BRIEF - PERSONAL INJURY (COMPLEX)
SETTLEMENT
FORMAT
PROPOSALS
WHAT TO INCLUDE IN THE PRE-TRIAL BRIEF
A SUMMARY OF NEW RULES
PROPOSED RULE CHANGES
PREPARING THE JOINT REQUEST FOR TRIAL
PRECEDENTS
LOCATION
THE JUDGE'S ROLE
THE LAWYER'S ROLE
THE CLIENT'S ROLE
A)
B)
C)
D)
A)
B)
C)
D)
A)
B)
C)
A)
VII I. PRECEDENTSA)
B)
IX. APPENDIX A -PRE-TRIAL RULES Of COURT 70
X. APPENDIX B -PROPOSED AMENDMENTS TO Q.B. RULES OF COURT 80
PRE-TRIAL CONFERENCES
I. AN INTRODUCTION TO SUBJECT MATTER OF THE LECTURE
"Life and law must be kept closely in touch, as you can't adjust life
to law, you must adjust law to life. The only point in having law
is to make life work"'
Law is an ever evolving thing. The days of trial by fire have come and
gone. No longer do we hire armed gladiators to fight our fights and settle
our disputes. We call ourselves "civilized". In these modern times we
resolve our differences in many ways, the most sophisticated of which
is by trial. However, even the modern day trial is fraught with frailty.
In these days when our judicial system strains under the backlog of the
number of cases which it is called upon to decide, methods are being
developed which are meeting with increased acceptance. The Pre-Trial'
Conference is a relatively recent adaptation of the judicial process. It
recognizes as its premise that it is worthwhile to discuss and resolve
one's differences rather than proceed directly to Court. It is a matter
of an acceptable, viable, less traumatic, less expensive method of
resolving disputes and the litigants having a greater participation in the
result. In the last decade since the introduction of Pre-Trial Conferences
in the jurisdiction of Saskatchewan our practice of law as it pertains to
litigation has no-doubt changed more than it has in any previous decade.
Approximately sixty percent of all civil 1itigation cases where the Request
for Trial has been served and filed, have resulted in settlements either
as a direct or indirect result of the Pre-Trial Conference concept. It
, Arnold Toybee
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is a success story that has not finished being told. Like many things it
owes its birth to that of fulfilling a need.
II. AN HISTORICAL PERSPECTIVE
As I have already indicated in the introduction, the practice of law has
changed drastically in the last ten years. In preparing this paper I was
directed to an article published by John A. Epp, entitled Saskatchewan Pre
Trials: An Imperial Record and Proposed Amendments. In this paper Mr.
Epp writes2:
"... Rule 192, the Pre-Trial Rule, has quietly evolved into one of
the most important rules in the Saskatchewan Queen's Bench Rules.
Its importance stems no only from the fact that its scope and use'
have been expanded, but from the fact that its emphasis has shifted
dramatically from that of preparing a case for trial to settlement
of the case."
In his paper Mr. Epp tracks the early beginnings of Pre-Trial Conferences
to Toronto in the 1930's which may have had its origination from the
Circuit Court of Wayne County in Michigan across the U.S. Canadian borders.
The concept apparently was abandoned in the 1940's in Toronto but it was
revived in 1961 in British Columbia. Nova Scotia and Alberta formalized
pre-trial procedures to their-Rules in 1968 and 1969 to be followed in 1975
by the Ontario Supreme Court which scheduled Pre-Trials in all jury cases.
In 1978 Saskatchewan joined with Ontario in formalizing Pre-Trial
2John A. Epp 1991 55(I)Sask.L Review
-3-
Conferences through amendments to their Court Rules and by 1987 the ten
Canadian provinces had adopted pre-trial procedures. Mr. Epp goes on to
state:
"The Saskatchewan Pre-Trial Rule was drawn in response to a large
backlog of cases awaiting trial in the larger judicial centres. The
drafters of the rule, who envisaged it as a prescribing, management
pre-trial, hoped that honed issues and better prepared counsel would
lead to shorter trials, a more efficient use of the Court's time and
a reduction of the trial backlog.
In theory, the conservative wording of the Saskatchewan Pre-Trial
Rul e had the capaci ty to support the use of any of the exi st i ng
Canadian or American models of Pre-Trial Conferences. D....On
January 1st, 1984, through the addition of Rule 196(c), Pre-Trial
Conferences became mandatory in all cases where the tri a1 was
anticipated to last longer than one day. A shift from optional or
discretionary Pre-Trials to mandatory Pre-Trials in cases expected
to take more than one day significantly increased the importance of
the Conference. The amendments acquired an even greater significance
in 1ight of the fact that by 1984 some judges were wi 11 i ng to
initiate and participate in settlement discussions. The role of the
Court changed from that of a passive observer awaiting the
commencement of a trial to the peripheral but influential litigation
manager, and in the odd case, a peripheral participant ..•.The Pre
Trial Conference Rule was subject to further amendment in February
of 1987. In addition to reorganizing and renumbering the rules
-4-
(Rules 191 and 192), the Committee expanded the list of topics to be
considered at the conference. In addition to discussing the confirmation
of the trial date, simplification of issues and amendments to the
pleadings, the possible admissions, the topics of readiness for trial,
actual trial time, settlement of issues, the quantum of damages were also
addressed."
By 1987 the Court is beginning to see the effects and the results of
settl ement di scussi ons where a judge of the Court of Queen's Bench,
respected not only by counsel but by litigants, are achieving high numbers
of settlements. Litigants are not only permitted but desired to be at the
Pre-Trial Conferences, not only for purpose of hearing the discussions of
the Court and counsel, being present to provide instructions as may be .
necessary, but in some cases to participate as may be appropriate. The
Pre-Trial Judge is now empowered by the Rules, and counsel obligated by
the Rules, to provide expert reports of the documentation which of course
will form important evidentiary bases at the trial.
The speed and efficiency of these conferences is exemplified even further
by the fact that further amendments and refinements were made on January
1st, 1989. Most important of which is that the parties were now required
to attend Pre-Trial Conferences unless excused by the Court. Furthermore,
the judges were directed to' prepare for the Pre-Trial by reading the
pleadings, the Briefs of Law and material filed by the parties while a
judge who was to conduct a "settlement Pre-Trial" was directed to also read
the Examinations for Discovery. As Mr. Epp writes:
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"The consequences of these amendments are enormous."
By now the benefits of the procedure were being applauded by all the
participants - the litigants, the lawyers, the judges, the judicial system,
and no doubt, those who bore fiscal responsibility for the administration
of the judicial system. Vast amounts of court time were being saved the
costs associated therewith. However, all the while the participants
recognized that they always maintained the right to have their day in court
for either all or part of matters in dispute.
And now, effective February 1st, 1991, further refinements are being made
to the Pre-Trial Conference procedure by practice directive number 4. The
practice directive specifically states:
"The goals of a Pre-Trial Conference are:
a) to allow the parties to participate in the problem solving
process;
b) to allow the parties to perceive the view of a Trial Judge
as to the issues (both facts and law) in dispute as far
as the material before the Pre-Trial Judge allows;
c) to allow settlement options to be presented which would
not necessarily be available at trial;
d) to seek settlement of the dispute so as to improve the
efficiency of the Court system and save time and costs for
all parties and witnesses."3
3 Practice Directive Number 4, Saskatchewan Court of Queen's Bench
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Parties attendance is still required unless excused. The Pre-Trial
Conference Judge may reduce the agreement to writing to be signed by the
parties and grant consent orders where appropriate. The new practice
directive requires counsel to have attempted settlement prior to the Pre
Trial Conference. The purpose was obvious. Counsel were now beginning
to rely totally on the Pre-Trial Conference for settlement discussions.
The Court was not prepared to accept this as the only venue for such
discussions. Secondly, procedurally the Court made a substantial change.
It required that the Pre-Trial Conference briefs be filed with the Request
for Trial rather than ten days in advance of the Pre-Trial Conference as
had been the case. There has been a great deal of criticism about this
last requirement. Its opponents predict delays in having the matters
proceed either to Pre-Trial Conference or to Trial should one party fail
to be in a position to file their brief in a timely fashion. Further, it
may result in increased Chamber applications to enforce compliance with
the rule. Time will only tell as to the effects.
Rule 191(3) sets forth now, clearly and concisely, those documents that
are expected to be included in the Pre-Trial brief and the matters to be
addressed at the Pre-Trial Conference.
Surely, more changes will come but the concept of Pre-Trial Conferences
are now firmly established in the Saskatchewan Judicial System.
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III. THE PRESENT RULES
A. A SUMMARY OF NEW RULES
Effective the first of February, 1991, the Rules of the Court of
Queen's Bench for Saskatchewan were amended by del et ing previ ous
Rules 191 to 195 and substituting therefore new Rules 191 to 193.
These are reproduced as Schedule "A".
The Rules provide that the brief may be accompanied by a "proposal"
for settlement which might include admissions or other statements
which if the Pre-Trial Conference is unsuccessful in settling the
matter will be returned to the submitting party.
A copy of the Examination for Discovery is always filed with the
Court and by the new Rules is available to the Pre-Trial Judge for
review which he shall re-seal until the trial.
The Local Registrar is directed to assign a Pre-Trial Conference date
"to ensure optimum use of Court time". This may mean double booking
or booking on short notice or such other methods as the Court may
choose to employ in the future. This should not however cause a
hardship. No doubt the Court will respect conflicts which counsel
or his client may have and counsel should have no trouble preparing
for the Pre-Tri a1 Conference gi ven the fact that he has already
prepared and filed the brief.
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The new Rules require that "all parties shall appear with their
counsel (including corporations)". In actual fact this is only a
codification of the practice of the Court in the past. It is more
properly viewed as being that counsel must have their client present.
The primary purpose it is submitted for this requirement is to ensure
that counsel is able to obtain instructions without delaying the Pre
Trial Conference when an offer may be presented. In the past counsel
may have appeared without proper instructions from their clients.
Being unable to advise the court and counsel opposite if their
clients are prepared to accept certain settlement proposals, the
proceeding met an impasse which at best was resolved by a phone call
and at worst by an extended delay after which the parties had to re
convene. Secondly, having the litigants present obligates them to
follow settlement discussions and understand how proposals are
arrived at and the reasoning behind proposals for settlement.
Counsel representing a party at a Pre-Trial Conference is to be the
counsel who will be representing the party at trial. The purpose
of the rule ensures that the people in authority, including counsel,
attend the Pre-Trial Conference. It prevents the lawyer in charge
of the file-dispatching counsel who, for whatever reason, are not
prepared to make the necessary concessions that may be required in
order to achieve a settlement between the parties.
Rule 191(8) clearly contemplates that if settlement cannot be
achieved "in toto" then the parties are to consider ways and means
)
-9-
of minimizing trial time and expediting proceedings. This includes
identification of issues, amendments to pleadings, possible admissions,
agreeing to some heads of damages, for example, special damages, out of
pocket costs and the 1ike, and such other matters as may aid in the
"disposition of the proceedings".
The parties are to consider the trial time that is required and their
availability for trial.
The Rul es present a 1arge onus on preparation for the Pre-Tri a1
Conference, not only of material, but of counsel. At the 1990
Introduction of Lawyers to the Regina Bar Mr. Justice J. G. McIntyre
presided over the proceedi ngs. In hi s comments to the newly admitted
1awyers he said the key to the successful practice of 1aw was
preparation. However, for a number of reasons not all related to
preparation, all the parties to a proceeding may not be prepared to
proceed at the same time.
Rule 191(9) provides for this eventuality saying that where a party
refuses to join in a joint request an application may be made to the
Court for the purpose of fixing a Pre-Trial date. This will prevent
unnecessary -del ays by counsel and hopefully ensure that matters
proceed expeditiously. It is recommended that the following
procedure be employed so as to reduce or el iminate unnecessary
chamber applications. When the Plaintiff can fairly anticipate that
he will be in a position to serve the Request for Trial he should
-10-
notify the party or parties opposite when he expects to have his Pre
Trial brief completed and when they might reasonably expect to receive the
Request for Trial. This puts counsel opposite on notice of the Plaintiff's
intent to have the matter set down. In the event that the counsel opposite
refuses or neglects to complete the Request for Trial, then after allowing
a reasonable time to do so, the party wishing to have the matter set down
can make an application to the Court for an order specifying a date upon
which the Pre-Trial brief is to be completed and filed and establishing
a date for Pre-Trial Conference. Costs may be granted in accordance with
Rule 191(9).
Rul e 19H101. The Court has provided by thi s rul e for a method
whereby parties may request a Pre-Trial Conference without complying
with sub-rule (2) of 191. This would appear to provide for those
circumstances where the parties wish to have a Pre-Trial Conference
in such circumstances as the following:
a) where the parties do not wish to protract proceedings to
the extent of being at the stage of a Joint Request for
Tri al ;
or
b) where, upon some good reason, the parties wish to dispense
with the necessity of filing a Pre-Trial brief;
or
c) such other circumstances which may arise that may be
conducive to such procedure.
-11-
Rule 191(11). This rule allows a judge of the Court to order a Pre
Tri a1 Conference at any stage of the proceedi ngs. It is not
incumbent upon the parties to make such a request. Arguably, this
is for the benefit of the Court to seize those opportunities where
they foresee that a Pre-Trial Conference would be warranted.
However, with a little imagination one can see that this is a very
useful rule. For example, a Pre-Trail Conference may have already
been held which was unsuccessful in arriving at the total settlement.
It may be that in light of new evidence the parties can agree that
they would like to have a particular judge of the Court attempt a
further Pre-Trial. The application could then be made to the judge
to see if he would be conducive to attempting further discussions
and possible settlement. I understand that most of the Judges
presently sitting on our Court are quite agreeable to consider this
approach. Chances of achieving a settlement would usually be strong
where both parties are agreeing to conduct a further Pre-Trial.
Rule 191(12). This rule allows the judge to adjourn the Pre-Trial
as may be necessary and to request the attendance of "any other
person" to be present at the Pre-Trial Conference. Often, issues
arise which -may not be contemplated by the parties as they prepare
for a trial or pre-trial and the insight of an expert or an eye
witness may be determinative on certain issues. This procedure
allows the Court to "request" persons who may be able to resolve
these issues attend for the Pre-Trial Conference.
-12-
Rule 19H13). This rule prevents the Pre-Trial Conference Judge from
conducting the trial, unless the parties otherwise agree. I would
expect that the circumstances under which the Pre-Trial Judge would
conduct the trial, with the consent of the parties, would be rare
but it may be expeditious to do so. The prevail ing philosophy behind
the Pre-Trial rul es is to allow the part ies to speak freely and
without prejudice to the final result of the case and to ensure that
like the following rule, these communications are "without
prejudice" .
Rule 191(14) & (15), These rules against communication of the
events of the Pre-Trial proceeding to the trial judge ensures the
fair and impartial decision making process by the Court in the event·
that the Pre-Trial is unsuccessful.
Rule 191(16). This rule allows discretion in the Pre-Trial Judge
as to costs and to make such order as may be necessary by
the"consent" of the parties. Impliedly, only consent orders can be
given and any contested matters must go before a Chamber Judge other
than the Pre-Trial Conference Judge or the trial judge himself.
Rule 192 and 193. These rules pertain to the proceedings in the
event that the Pre-Trial Conference is not totally successful in
settling the matter.
B. PROPOSED RULE CHANGES
It is the understanding of the writer that in the very near future,
\
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there may be amendments to our Rules of Court, which impact upon pre
trial conferences. Particularly, Rule 211 will be amended so as to
provide that a videotape (and many other "new tech" methods of
storing information) are now considered documents within the meaning
of our Rules.
This amendment/change is intended to correct the situation which has
been the result of certain recent cases in our jurisdiction which
held, for example, that a videotape involving surveillance evidence
of a Plaintiff in a personal injury action was not a document and,
therefore, did not have to be disclosed in the Statement as to
Documents, nor would it have to be disclosed prior to trial. The
result of the previ ous procedure was to allow the defence to "ambush"
the Plaintiff at trial. It also made a mockery of the pre-trial
conference and the discovery process.
The proposed change, once it is enacted, will rectify this anomaly.
Rule 284 may be the subject matter of a change requiring that counsel
provide their experts' evidence prior to the pre-trial, rather than
trial. Again, the purpose of the amendment is to provide as much
information; not only to the party opposite, but the pre-trial Judge,
ensuring the maximum opportunity for settlement at pre-trial.
The final wording of these amendments of course has not been gazetted
at the time of the preparation of this paper, although I am aware
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that the Court of Queen's Bench Judges have approved the amendments
while sitting "enbanc".
It is anticipated, however, that these Rules will take effect very
soon.
The changes to Rul e 284 have been the subject matter of some concern,
namely, that the effect of the Rule will be to increase the costs
and further delay the pre-trial conference. It should be understood
that the Rule, as I understand it to be drafted, will only require
counsel to present those reports which he has in his possession.
It does not obl igate counsel to obtain copies of any and every
expert's report that helin~ds t~call at trial. Needless to say,
on the other hand, the more information the pre-trial Judge and
counsel opposite have, the more likely that they will have a complete
pi cture of your case, and the more 1ike1yare the chances of
settlement.
C. PREPARING THE JOINT REQUEST FOR TRIAL
The rules, effective February 1st, 1991, provide a form of Joint
Request for Pre-Trial Conference which is annexed here to as Schedule
"B".
The certification which forms the first part of the form that the
parties are ready for a Pre-Trial Conference should not be taken
lightly. It is expected with the introduction of the new procedure
Pre-Trial Conferences will be available very shortly after the filing
)-15-
of the required material. Counsel should be careful to ensure that
they are in fact "ready" and be keenly aware of the provisions with
respect to adjournments and the judicial discretion as to costs in
that eventuality.
The Joint Request for Pre-Trial Conference imposes upon counsel to
estimate time requirements for both the Pre-Trial Conference and the
trial. In the past the estimates were individualized between counsel
but by the new form a total time is required. Therefore, counsel
will need to discuss these estimates having due regard to the
evidence which they anticipate calling. It should be remembered that
sufficient time should also be allowed for such things as jury
selection, jury openings, rulings on objections and summations. The
Court is making an obvious attempt to maximize the use of its time
and minimal effort by counsel in this regard will alleviate the waste
of a substantial amount of resources.
The obligation upon counsel to estimate their number of witnesses
also re-emphasizes the importance of proper preparation.
D. PRECEDENTS
As indicated I have already provided you with a copy of the Joint
Request for Trial, Schedule "A". Other documentation which may be
of some assistance include the following which are annexed to this
paper:
a} On Call Application {For Early Hearing};
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b) Letter enclosing Joint Request for Trial and inviting
settlement discussions;
c) Letter to the Local Registrar requesting the Pre-Trial
Judge to dispense with the attendance of a party;
d) Notice of Motion for the purpose of obtaining an order for
setting the date of a Pre-Trial Conference and establ ishing
a date for the filing of the necessary material therefore;
e) Affidavit in support of the above motion;
f) Letter to the Local Registrar submitting Joint Request for
Pre-Trial Conference and related documents and requesting
the return of the proposal for settlement in the event the
Pre-Trial Conference does not resolve the litigation.
Aword of caution. Precedents are useful but can be very dangerous.
These particular precedents are untried due to the fact the rule has
simply just been introduced. Secondly, adopting another's precedents
without understanding the reasons for the form and substance can
often result in serious consequences if the matters are not properly
researched and studied.
IV. PREPARING THE PRE-TRIAL BRIEF
Until recently the Court had not particularized the contents of a Pre
Tri·al Brief. The new practice directive, particularly Rule 191(3),
specifies what is to be included and does not require repetition here.
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A. FORMAT
Recommended, although not required in any Brief of Law, would be an
index as to the contents of the Brief of Law. It is suggested that
the pages should be numbered and paragraphs have headings to allow
for easy reference. Personally, I prefer to use bi nders wi th reports
and exhibits individually tabbed for easy reference during the course
of the Pre-Trial Conference.
Of particular assistance is a summary of the claim located in the
Pre-Trial Brief, either at the conclusion of the written portion or
possibly near the beginning, again, for easy reference. The summary,
depending on the circumstances, should outline the litigants position
to the various claims that are being advanced. In such matters as
personal injury actions dollar figures should be utilized. This will
a11 ow the reader, in thi s case the Pre-Tri a1 Judge and counsel
opposite, to be able to understand where the differences between the
parties' positions easily and expeditiously.
B. PROPOSALS
However, recognize that the February 1st, 1991 Rules not only provide
for the fil ;-ng of the required Bri ef of Law but also for the fi 1i ng
of a "proposal for settlement of the issues involved in the
proceedings". Careful consideration should be given to the document
that counsel intends to rely on as the Brief of Law at Trial as
distinct from a "proposal" which would outline a position which he
may be prepared to accept as a settlement position as the matter is
-18-
resolved at the Pre-Trial Conference but which position he does not
wish to be restricted to if he must run a trial. Seldom, if ever,
will a case lend itself to a position that is immovable. The vast
majority of clients, whether they be Plaintiffs or Defendants, don't
crave litigation for the thrill of the trial. Some would avoid a
trial at all costs and I suspect that many would avoid a trial at
some cost. Good counsel will recognize the difference between the
two and have discussed the same with his client well in advance of
preparing and/or filing the Brief of law and/or the proposal. On
the one hand, if the matter is going to go to trial one should take
what he considers to be a reasonable, sustainable position on any
and all issues and this is the position that should be taken in the
Brief of law.
However, no matter how reasonable or strong the evidence may be on
any point, a proposal should recognize that a Pre-Trial Conference
involves an element of compromise. The saving in costs and/or time
to the parties, including and particularly the client, has a value.
Seldom do we have cases which are solely because of "principle".
It is important that counsel and client discuss a reasonably flexible
bottom line"and that a proposal be made to the party opposite and
the Court which allows incentive for the settlement of the action
at the Pre-Trial stage. All the while one must keep in mind that
in the event that settlement cannot be achieved, counsel and his
client must be able to justify the time and expense of actually
)-19-
running a trial, having due regard to the respective weaknesses and
strengths of their case.
The new Rules clearly provide that the proposal (which involves this
measure of compromise) may be returned to counsel should the Pre
Trial Conference prove unsuccessful.
C. WHAT TO INCLUDE IN THE PRE-TRIAL BRIEF
Annexed hereto are two pre-trial Briefs of Law. The first represents vinjuries in a more minor case than the latter. I anticipate counsel
wi 11 have some interest wi th respect to these precedents, but I
caution you again, as I have with respect to the precedents, pursuant
to the Rules. Particularly, the law is an ever evolving matter, and
the pre-trial Briefs that are annexed hereto should be considered
as one counsel's approach to form. Content, on the other hand, will
vary from case to case, and what is appropriate in one may not be
appropriate in the other. I have not annexed all the exhibits, which
I normally attach to the Briefs. This would simply make it too
voluminous to reproduce. However, the reader will see that every
effort is made to maintain a high level of organization. All
documents are tabbed for easy reference during the course of the pre
trial conference; the Briefs contain an index and a summary of
damages, which is often helpful.
The concept of "admit and explain" is often employed. A concerted
effort is made to disclose accurately and candidly as much as ~
-20-
possible, as opposed to only that which is favourable to the
Plaintiff. This philosophy is in accordance with the concept of a
pre-trial conference being "open disclosure".
Items such as transportation costs, personal care, and income loss
are particularized and substantiated.
Where appropriate, selected portions of the Examinations for
Discovery are recited, keeping in mind that although the Judge would
normally read the transcripts, it is helpful to reiterate these
points for everyone concerned.
The pre-trial Brief includes headings for easy reference, and the
headings enclosed in these two Briefs are certainly not exhaustive
of all matters which should be included in any Brief concerning a
personal injury matter.
v. PREPARING THE CLIENT FOR THE PRE-TRIAL CONFERENCE
The client should be advised as to the ground rules surrounding the pre
trial conference, as follows:
a} There should be a discussion of the fact that the discussions are
"without prejudice"; that what is said at the pre-trial conference,
unless otherwise agreed, will not be evidence at the trial.
b} The client should be aware of the fact that the pre-trial judge is·
not going to be the judge at the trial. This affords the client the
knowledge that discussions may be free and frank, while at the same
-21-
time, the client must understand that any views expressed by the
judge conducting the pre-trial conference are the views of that judge
and not necessarily representative of the judge who may be conducting
the trial.
c) The client should understand that this is a cordial proceeding; that
al though the formal ity of the courtroom may be rel axed so as to
encourage conciliation, a certain degree of respect and formality
is requi red. Thi sis not a forum for a shouting match or name
call ing. The c1ient shoul d understand that the judge wi 11 have
complete control over the proceedings, he will discuss matters with
counsel, and the client is not expected to represent themselves.
d) However, the client should also understand that he/she may be called'
upon on occasion to clarify certain matters. It will be your
responsibility to represent the client in the course of the
discussions.
e) There will be ample opportunity afforded to each party to discuss
the matter privately. This allows for candid and frank discussion
concerning the various positions, proposals, counter-proposals, etc.
f) The client should be aware that he/she will not be asked questions
or put unde~cross-examination; that any inquiries that are directed
toward them are not under oath; not in a formal setting.
g)' The purpose of this proceeding is to discuss the case and, hopefully,
resolve some, if not all, of the issues.
h) The client's place is that of observer for the most part. It is
important also to enforce upon the client to control their emotions;
-22-
not to become angry if a proposal seems to them to be insulting or
insufficient, and not to be too visibly elated until they have had
an opportunity to discuss it with their lawyer. It is, after all,
akin to a poker game, where emotions are best kept to oneself.
i} Explain to the client the advantages of the pre-trial conference
format, such as, if cases are able to be settled at this stage, legal
fees and costs are minimized.
j} Further, there is an advantage to receiving a settlement at the time
of pre-trial, rather than a further delay awaiting trial.
k} Settlement at the pre-trial alleviates the necessity of having to
-go through the trauma of a trial.
l} Settlement at pre-trial avoids the pangs of a poor judgment, or
m} The possibil ity of appeal in the case of a generous award or
Judgment.
n} The client should be prepared, when the remedy sought is a monetary
one, in such a way as to "defi ne a wi nil to establ ish as between
client and counsel a figure or a position which would be acceptable
for settlement. Counsel is well advised to have this discussion well
in advance of the pre-trial conference, in order that the party may
make a considered decision and not be forced to make a decision lion
the spur of the moment ". Certainly not all eventual it i es can be
considered, and invariably during the course of the pre-trial
conference, information may come to 1ight which must be factored into
the decision. But, at least if the parties start with an indication
as to where they would be prepared to resolve the litigation, matters
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will proceed more expeditiously, and decisions will not have to be
made without due consideration.
0) The concept of offer and acceptance should be thoroughly discussed
with the client, specifically that any counter-offer in law expressly
rejects the initial offer. The client must understand that just
because an offer is made at the pre-trial conference doesn't mean
that they are assured of the benefits of such an offer, should they
go to trial.
There are many fine books on the art of negotiation and I do not propose
to canvass the subject in this paper. However, if you are going to spend
your career, or any part of it, in trial advocacy, recognize the
significant role negotiation is to such a career, and educate yourself by
whatever means are available.
VI. PARTICIPATING IN THE PRE-TRIAL CONFERENCE
A. LOCATION
It seems rather trite to mention where the pre-trial conference is
to be held, which is usually the Court House, in either one of the
courtrooms or designated conference room, but it is important for
the client to understa~d that although the physical setting may be
that of a courtroom, that is only for the purpose of facilitating
discussions. You may wish to have your client sit at the counsel
table with you, or you may prefer them to sit in the gallery. This
-24-
may depend on counsel and/or the client, or the number of documents
which must be utilized.
B. THE JUDGE'S ROLE
Counsel should be aware that the judges of our Court of Queen's Bench
have taken this procedure very seriously. There have been courses
which have been conducted for the judiciary on the proper handling
of a pre-trial conference by people who have been brought into the
Province and who are "in the know". To the observer, it is obvious
that the judge, who conducts the pre-trial conference, is above the
antagonism of either the litigants or even possibly their counsel.
I might say that it has been my experience that the judges who take
the greatest pains to ensure that the pre-trial conference begins
on a friendly and cordial note, showing by example that this
procedure is to be a pleasant, well reasoned and reasonable
proceeding, are those that have results that are conducive to the
parties resolving their differences.
As with counsel, the success of the judge often depends on
preparation. The better prepared the judge, the greater the chance
of success of the conference. This is to a great degree incumbent
upon counsel to have the materials filed in sufficient time to allow
the judge to prepare himself. Equally important is "what" has been
filed.
)-25-
The judges are well aware that the parties aren't looking for a
decision from him, but only guidance toward a possible settlement.
It is a situation where the pre-trial judge acts more as a negotiator
with a special knowledge of the law and the special status which he
holds as a Judge of the Court of Queen's Bench, which gives him that
added ability of persuasion. Judges may ask parties to excuse
themselves, in order that he may discuss in private, certain matters
with remaining litigant and counsel. The client should understand
that this is normal -- a part of every negotiation process. The
judge, no doubt, wants the client and his counsel to be fully advised
of the problems he sees with the position that they are taking; to
understand what is motivating their position, and to ensure that they
understand the weak points of their case. Once this is done, he will
often turn tables and do the same with the other party. Sometimes
pre-trials are short and differences are minor, which are often
resolved simply by the expressed wisdom of someone from the Court.
Sometimes litigants only need to hear what they already knew, from
a third party, in order to confirm their decision. Sometimes parties
need an "excuse" for yielding a position, and if that excuse is that
the Judge of the Court of Queen's Bench was leaning a certain way,
that's all that's required.
Oftentimes, however, pre-trials are not short and may be protracted,
and the client must understand, as do counsel, that they are not
being forced into any settlement. Counsel in particular must
understand that they must represent their client's best interests.
-26-
The pre-trial judge cannot and will not impose a settlement on either
party. Counsel must recognize that if they cannot represent their
client's interests at the pre-trial, they certainly cannot feel
equipped to represent their client's interests at the trial.
Only after the parties appear to have met an impasse is it common
for a judge to express opinions as to what he, the judge would or
would not do. Sometimes this helps the parties with their decision.
If the judge is able to conclude the pre-trial conference with an
agreement, I make a practice of asking that the agreement be written,
signed by counsel for all sides, as well as the parties, and endorsed
by the judge as being the terms of settlement. By so doing, there
should be no doubt in the future as to what was actually agreed upon.
In those cases where settlement cannot be achieved in total, certain
issues may be resolved, certain facts may be admitted for the purpose
of trial, and invariably, the Pre-Trial Conference Report is
completed by the judge. Counsel should obtain a copy of this form
in advance of the pre-trial and know the answers to the questions
which will be asked, such as how many witnesses each party intends
to call, expert and lay? How long will your case take? Is there
a number of exhibits that can be organized in advanced so as to
minimize court time?
Finally, the judge should encourage the parties to continue talking.
You must remember that parties may 'have a change of heart after the
)-27-
pre-trial and before the scheduled trial. However, I prefer not to
place much emphasis, or discuss at length if at all, with my client
that they can always settle after the pre-trial. My experience has
been that the pre-trial is the best opportunity for settlement to
be achieved, and if you gamble that the atmosphere for settlement
may be even better after the pre-trial, you may find that the climate
has in fact deteriorated and you've missed an ideal opportunity.
C. THE LAWYER'S ROLE
Above all and most importantly the lawyer's role is in preparation
for the pre-trial conference. If you have properly prepared your
Brief of Law, if you have properly prepared the facts, if you have
properly prepared the law, if you have properly prepared your client
- then you have properly prepared the lawyer.
I can only counsel you to be imaginative. There are devices that
you pursue at a pre-trial conference, certain ways of resolving
issues through agreement that the Court cannot order. The most
glaring example is that of a structured settlement. Not all matters
can be settled by the payment of a certain sum of money.
Counsel must approach a pre-trial conference with a view to being
flexible, being prepared to appreciate that the process involves give
and take. In certain circumstances, the counsel instructions are
clear, there is no room for movement. Under these circumstances,
the lawyer's job becomes quite easy. His role as negotiator will
-28-
be short-lived, soon to be taken over by that of the role of a
barrister, for the matter is undoubtedly headed to court. However,
a lawyer's role often involves negotiating not only with counsel
opposite, sometimes the judge at the pre-trial conference but
invariably his client. Alawyer must be able to be candid and honest
with his client as to the advantages and disadvantages of any offer
or counter offer. The lawyer must show the client the advantages
of disclosure and the importance of candor. After all, the lawyer's
job is to represent the best interest of his client and often that
involves disclosing the negatives as well as the positives in any
case.
D. THE CLIENT'S ROLE
The client's role is primarily two-fold: to enlighten when necessary
and to instruct when called upon to do so. As a participant in the
pre-trial conference, hopefully he will gain the benefit of hearing
the opinions of the third party in the form of the judge and no doubt
will glean new insight into the strengths and weaknesses of his case
and the abilities of the individual who is representing him. Each
and all of these factors will be important in deciding how and
whether to settle the case.
VII. THE PRE-TRIAL RESULT
A. SETTLEMENT
I counsel you to commit it to writing to ensure clarity as to the
)-29-
terms of the settlement and how it is to be implemented. Secondly,
by committing the agreement to writing and having it signed by the
client, you avoid the unpleasant task of dealing with a client who
wishes to renege. Thirdly, you will have protected yourself as
counsel should any dispute arise as to the terms of the settlement.
The most preferable way of handling the matter of costs is to have
your Bill of Costs prepared in advance of the pre-trial conference.
Know the value of the costs and particularly the disbursements. If,
for whatever reason, this cannot be achieved, ensure that your
Minutes of Settlement are clear, that you do not waive judicial
discretion on appeal in the matter of the taxation of costs.
)Q. B. No.
BETWEEN:
Q. B. No.
BETWEEN:
- 30 -
of A. D. 19
IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN
JUDICIAL CENTRE OF REGINA
L. L. t
PLAINTIFF:
-and-
G. D. t
DEFENDANT:
of A. D. 19
IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN
JUDICIAL CENTRE OF REGINA
L. L. t
PLAINTIFF:
-and-
N. P. t
DEFENDANT:
)
AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
PRE-TRIAL BRIEF OF LAWAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA~AAAAAAAAAAAAAAAAAA
NOBLE, KARWANDV &JOHNSTONBarristers and Solicitors1143 Lakewood Court North
Regina, SaskatchewanS4X 3S3
- 31 -
I NDE X
HEADING PAGE NO.
I. INTRODUCTION . . . . . . . . . . · . . 1
II. FACTS OF SEPTEMBER 10, 1989 ACC IDENT . 2
III. NATURE OF INJURIES . . . . · · . . · 2
IV. NON-PECUNIARY DAMAGES · . . . · · . . · 7
V. SPECIAL DAMAGES . . . . . · . · · . 7
VI. INCOME LOSS . . . . . . . . · . . · 7
VII. INCOME LOSS OF PARENT · . . · 7
VIII. PRE-JUDGMENT INTEREST AND TAXABLE COSTS · · . . · 8
Q. B. No.
BETWEEN:
Q. B. No.
BETWEEN:
- 32 -
of A. D. 19
IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN
JUDICIAL CENTRE OF REGINA
L. L. t
PLAINTIFF:
-and-
G. D. t
DEFENDANT:
of A. D. 19
IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN
JUDICIAL CENTRE OF REGINA
L. L. t
PLAINTIFF :
-and-
N. P. t
DEFENDANT:
PRE-TRIAL BRIEF OF LAW
INTRODUCTION
The Plaintiff was· injured in two motor vehicle accidents, the first of
which occurred on September 10, 1989, and the second on February 19, 1990.
What follows is a Brief of Law which is prepared in anticipation of haVing
the matters set down for trial, in the event settlement discussions prove
unsuccessful.
- 33 -
-2-
FACTS OF SEPTEMBER 10, 1989 ACCIDENT
At approximately 6:30 p.m., the Plaintiff was a passenger in a Ford Escort
being driven by her friend, G. H. This vehicle was proceeding in an easterly
direction on 6th Avenue North, in the City of Regina. At the time, the Plaintiff
was not wearing her seatbelt. She had attempted to put the seatbelt on, but it
did not fit around her body. This is confirmed in discussions with G. H.
At the same time and place, the Defendant was the owner and operator of
a 1973 Chevrolet automobile, bearing valid Manitoba licence plates. He was
travelling in a southerly direction on Broad Street where it intersects with 6th
Avenue North.
Liability is not in dispute, as the Defendant went through a red light
before he hit the Huber vehicle. Apparently, the Defendant was charged under
The Highway Traffic Act and presumably entered a plea of "guilty".
Annexed to this Brief at Tab 1 are photographs of the vehicle (numbered
1, 2 and 3) in which the Plaintiff was a passenger. One can see that the front
windows on each side of the vehicle have been smashed out, and the rear window
on the driver's side.
NATURE OF INJURIES
Annexed to this Brief at Tab 2 is a copy of the Preliminary Proof of Claim
which was filed with Saskatchewan Government Insurance, and which reveals the
Plaintiff's injuries to be facial lacerations (27 stitches), whiplash, lower and
upper back.
In discussing the matter with the Plaintiff, she recalls the driver yelling
something, and looking to her left seeing the car coming towards her. She
- 34 -
-3-
recalls impact, but then lost consciousness thereafter. What is clear is that
the windows on the driver's side of the vehicle were blown out, and it appears
from the photographs that the window on the Plaintiff's side of the vehicle was
destroyed. As the photographs of the Plaintiff. will show {which are annexed to
this Brief at Tab 3, the Plaintiff suffered significant lacerations to her face,
a large bruise in her forehead area, and cuts to her lip. Although she doesn't
recall specifically, it may well be that the Plaintiff came into contact with
the driver's head, post-impact.
As a result of the accident, in addition to those injuries which have been
mentioned, there was swelling of the face, bruising to the right leg, bruising
to the shoulders and back, soreness in neck, and she had a swollen left elbow.
The Plaintiff was taken to hospital, where she spent some three hours, was
given a collar and 27 stitches. She was then released after x-rays to home.
She had problems sleeping the first night, and later suffered from ringing in
the ears.
- 35
-4-
The Plaintiff, in her diary, indicates that in September of 1989, she had
aches and pains, headaches, ringing in the ears, and she missed school. She had
constant pains in the shoulder area down to the breasts. She indicated that her
chest to neck area felt tight, as if the chest were collapsing under pressure.
The back of her neck had shooting pains when she lay down, or whenever she was
ambulatory. She would have headaches that started above the nose to the back
of the head; a throbbi ng pain maki ng her head feel very heavy. She had
occasional pain in her back from her shoulders to her waist. This was a shooting
type of pain which occurred whenever she was sitting or lying down for too long.
The Plaintiff used Tylenol extra-strength every four hours for pain,
averagi ng six per day. The headaches made her tired, and she had constant
tightening in her back all day, as if someone was tugging at her.
She had to cancel her enrollment in aerobics, and was very frightened to
travel in the car. For the first week post-accident, she suffered from blurred
vision. She felt very uncomfortable going out in public because of a significant
bump on her forehead and the unsightly stitches in her face.
The Plaintiff's left arm began aching, and she suffered from a piercing
pain from the elbow to the shoulder. She was reluctant to become involved in
any activity, due to the pain and her physical appearance. Her eyes watered
continuously from the pain and the headaches.
The Plaintiff's stitches were removed September 18, 1989, and she returned
to school for the first time on September 19, 1989.
The Plaintiff lived some distance from the school that she attended because
of the special class she had to take. The school arranged for a taxi to begin
picking her up on September 20, 1989. This facilitated her getting to school
- 36 -
-5-
without having to ride the bus, which would exacerbate her injuries and make
her tired before she even got to school. She missed Frosh Day on September 20,
1989 as a result of her injuries, and she continued to suffer from neck and back
pain most of the time.
She was unable to take her physical education class, which she seemed to
enjoy, until October 17, 1989, and then her participation was very low key. In
her diary, subsequent to her first physical education class, she notes soreness
from "yesterday's activities". She also notes little change during the months
of October, November, and December, 1989, except there is a greater indication
of having good days, and by December 8, 1989, she indicates that she had an
excellent day with no back pain.
The following day, sporadic back pain returns, and one can see a pattern
of exacerbation and remission, which is common with this type of injury. On
January 5, 1990, she notes that the facial skin is more sensitive to the
elements, and by late January or early February, she is having as many good days
as she is having bad days.
On February 19, 1990, she states that she felt fine until approximately
3:30 p.m., when she was involved in another motor vehicle accident, aggravating
her back pain. As a result of this accident, she felt it was quite a nervous
situation, resulting in visions of the previous accident on September 10, 1989.
She went to the hospital for observation, and the following day she returned to
school by taxi, but had neck and mid back pains. She was absent from school,
as she was unable to sleep the night before, due to the neck pain.
In discussions with the Plaintiff concerning the second accident, she felt
that this minor rear-end collision only bothered her for a short period of time.
- 37 -
-6-
She suffered an aggravation of problems to the neck, mid and lower back. She
had no physiotherapy after the second accident, and felt that it only worsened
her problems for a period of less than one week. She saw Dr. McPherson only once
after the second motor vehicle accident, concerning injuries suffered therein.
The problems with the Plaintiff's face continued to give her concern. She
notes that on February 25, 1990, she was feeling depressed because of having a
nightmare the night before, feeling her face for fear of it bleeding.
The discomfort which the Plaintiff felt continued through from March to
approximately October of 1990. By October, most of the problems with the soft
tissue had resolved, but she still had a significant bump about two inches out
from the forehead and covering an area of approximately five inches in
circumference. It was painful, and her plastic surgeon removed glass which had
been embedded in her head, on two occasions. It is hoped at this time that all
the glass has now been excised from the insult.
A report from Dr. Beveridge is annexed to this Brief at Tab 8, which sets
forth the work that he has done for the Plaintiff. The problems she has had with
respect to her facial scarring are best exhibited by the photographs which have
been previously referred to.
In summary, the Plaintiff has suffered two motor vehicle accidents, the
first of which was by far the more severe. The first accident resulted in
physiotherapy treatments, numerous doctors' appointments, and problems with her
neck and back, which took the course of a normal soft tissue injury, lasting
approximately one year.
Complicating the soft tissue injury for this young high school student in
- 38 -
-7-
Grade 9, whose looks are obviously important to her, were the nasty scars, cuts
and bump to her head.
The Pl aint iff wi 11 not be expected to have any permanent soft tissue
problems, although there remains a scar on her face, which may clear up in one
to two years, according to Dr. Black.
NON-PECUNIARY DAMAGES
The Plaintiff attributes most of her problems to the first accident, and
we would suggest a total non-pecuniary claim, for this accident, in the amount
of $17,000.00, and $1,000.00 attributable to the second accident, for a total
of $18,000.00.
SPECIAL DAMAGES
Transportation Costs
Personal Care and Miscellaneous Expenses
S.H.S.P.
TOTAL:
$ 86.50
329.04
347.66
$763.20
A copy of the letter from Saskatchewan Health, Hospital Services Branch,
is annexed to this Brief at Tab 9.
INCOME LOSS
As a result of the accident, the Plaintiff had to turn down babysitting
jobs, her only source of income, on September 16 and 17, 1989. She expected that
she would have earned approximately $40.00 if she had been able to babysit on
those dates.
INCOME LOSS OF PARENT
The Plaintiff's mother had to drive her to the doctor's office and SaskAuto
on September 12, 1989. She lost 8 ~ours of work at $6.88 per hour, for a total
claim of $55.04.
- 39 -
-8-
PRE-JUDGMENT INTEREST AND TAXABLE COSTS
In addition to the foregoing, the Plaintiff is claiming for pre-judgment
interest, in accordance with The Pre-Judgment Interest Act, on both pecuniary
and non-pecuniary damages, as well as taxable costs and disbursements, as may
be appropriate.
The following is a list of out-of-pocket expenses:
1. Highway Traffic Board Report (for each mva) $ 20.00
2. Certificate of Registration (1st accident) $ 4.00
3. Statements of Claim ($50.00 x 2 - both mva's) $100.00
4. Report of Dr. McPherson dated April 16, 1990 $150.00
5. Report of Dr. McPherson dated April 19, 1991 $150.00
6. Report of Dr. Black dated April 22, 1991 $ 35.00
7. Reports of investigator dated September18 and 25, 1989 (re 1st accident) $155.70
8. Report of investigator dated March 14and 21, 1990 (re 2nd accident) $273.35
TOTAL: $888.05
Taxable costs and disbursements will be as agreed or as may be taxed by
a Judge of the Court of Queen's Bench, without being limited by the Angelstad
decision.
ALL OF WHICH IS RESPECTFULLY SUBMITTED this day of ____
A. D. 1991.THIS DOCUMENT was delivered by:
NOBLE, KARWANDY &JOHNSTONBarristers and Solicitors1143 Lakewood Court NorthRegina, SaskatchewanS4X 3S3Telephone: (306) 949-5616and the address for service is the same as above.
LAWYER in charge of file: KENNETH W. NOBLE
NOBLE, KARWANDY &JOHNSTON
PER:Solicitors for the Plaintiff
)
Q. B. No.
BETWEEN:
- 40 -
of A. D. 19
IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN
JUDICIAL CENTRE OF REGINA
K. R. M••
PLAINTIFF:
-and-
B. R••
DEFENDANT:
PRE-TRIAL BRIEF OF LAW
NOBLE, KARWANDY &JOHNSTONBarristers and Solicitors1143 Lakewood Court North
Regina, SaskatchewanS4X 3S3
Telephone: (306) 949-5616
HEADING
- 41
I ND E X
PAGE NO.
I . INTRODUCTI ON . . . . . . . . . . . . . . . . .. 1
II. SEATBELTS 6
III. PRE-ACCIDENT HEALTH . . . . . . . . . . . . .. 7
IV. NATURE OF INJURIES. . . . . . . . . . . . . .. 8
V. NON-PECUNIARY LOSS. . . . . . . . . . . . . .. 13
VI. TEMPOROMANDIBULAR JOINT . . . . . . . . . . .. 14
VII. PECUNIARY LOSS. . . . . . . . • . . . . . . .. 15
VII 1. SPEC IAL DAMAGES . . . . . . . . . . . . . . .. 17
IX. SUMMARY .. 18
Q. B. No.
BETWEEN:
- 42 -
of A. D. 19
IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN
JUDICIAL CENTRE OF REGINA
K. R. M.,
PLAINTIFF:
-and-
B. R.,
DEFENDANT:
PRE-TRIAL BRIEF OF LAW
INTRODUCTION
On May 1, 1987 at approximately 12:50 p.m., the Plaintiff was at the corner
of Albert Street and 6th Avenue North, in the City of Regina, in the Province
of Saskatchewan. He was stopped in an eastbound direction, preparing to make
a left-hand turn north on Albert Street. The weather was overcast with drizzling
rain.
At the same time, the Defendant was the owner and operator of a 1976
Camaro. The Defendant was westbound on 6th Avenue North, travelling at a rate
of speed of no less than 50 kph.
Annexed to this Brief at Tab 1 are photocopies of the following:
1. Photograph ~umber 6, depicting 6th Avenue North at Albert Street,
facing west;
2. Photograph number 14, depicting Albert Street, facing south;
3. Photographs numbered 8 and 10 of the Plaintiff's vehicle.
Annexed to this Brief at Tab 2 is a statement of an eye witness to the
) motor vehicle accident. This person was located in the vehicle immediately
- 43 -
-2-
behind that of the Plaintiff. This statement was taken from J. A. approximately
one month post-accident, and to the writer's knowledge, she has no personal
acquaintanceship with either party.
According to Mrs. A., the Plaintiff was wholly in his lane at the time of
impact, and the westbound car was trave11 ing at a rate of speed that she
describes as "like a bat out of hell". It is not clear if the Cadillac Seville,
operated by the Plaintiff, was in motion at the time, from the statement of Mrs.
A., or whether the light was in fact amber at the time that the Defendant's
vehicle entered the intersection.
Annexed to this Brief at Tab 3 is the statement made by the Plaintiff.
He states, in part:
"I was behind a half-ton into the intersection in theleft turning lane. We were stopped at the green lightfor 10 to 15 seconds. The light turned yellow, and thetruck made its 1eft-hand turn. I was stopped wi th myfoot on the brake, signa11 ing to turn 1eft, when awestbound car swerved to the left to avoid this truckand hit me wh il e I was st ill stopped. Th is car wastrying to beat the light, and I could hear himaccelerate."
This is at odds with the position taken by the Defendant, who, at his
Examination for Discovery (p. 36), states as follows:
"Quest ion 315 - And what was your top speed before youstruck the plaintiff's vehicle as youtravelled west?
Answer - I would say between thirty-two tothirty-five miles per hour.
Question 316 - All right. So you said the top speedwas fifty -- is that kilometers perhour?
Answer - Yes.
Question 317 -
Answer -
Question 318 -
Answer -
Question 319 -
Answer -
Question 320 -
Answer -
Question 321 -
Answer -
Question 326 -
Answer -
Question 327 -
Answer -
Question 328 -
Answer -
Question 329 -
Answer -
Question 330 -
- 44 -
-3-
And your top speed was about thirtytwo to thirty-five?
Yes.
Miles per hour?
Yes.
And what was your speed when you first saw theplaintiff?
I can't remember, I wasn't looking at myspeedometer. I was worri ed about the guy infront of me.
Can you give us an estimate of how fast you weregoing?
No, I don't really know.
Well were you •..
Well I had my brakes on so I was slowing down ata fast rate.
Fi ne. What was your speed at the timeyou struck Mr. M.'s vehicle?
I don't know.
How many feet did you travel from the time youfirst saw him until you hit him?
I don't know.
About one car length you told us earlier.
Yeah, maybe a car length and a quarter.
Would you have reduced your speed very much bythen?
Yes, because I had my brakes slammed right to thefloor.
So would you have been going -- say what? Giveus an approximation of how fast you were going onimpact.
- 45 -
-4-
Answer -
Question 331 -
Answer -
On impact maybe twenty-five.
That is miles per hour?
Yes."
Annexed to this Brief at Tab 4 are pages 38 through 40 (Questions 336 to
347, inclusive) of the transcript from the Examination for Discovery of the
Defendant, together with a diagram which has been marked as Exhibit P-7. This
portion of the transcript and the diagram, confirm that the Plaintiff's
veh ic1e, accord ing to the Defendant, did not appear to have moved, thereby
eliminating any suggestion that the Plaintiff's vehicle was attempting to turn
in front of the Defendant's vehicle.
It appears that the Defendant is taking the position that he was cut off
by the vehicle in front of the Plaintiff. However, the Defendant was unable to
stop and apparently swerved to his right, and then maybe to his left, coming in
contact with the Plaintiff's vehicle which was stopped in the intersection.
Also of importance is the location that the Defendant's diagram shows the
vehicles to be in -- both appear to be on the left-hand side of centre, or in
the Plaintiff's lane. This is more clearly evidenced by Exhibit P-8 from the
Examination for Discovery, and which is annexed to this Brief at Tab 5.
According to paragraph 10 of the Statement of Defence, the Defendant
takes the position that the collision was caused solely by the negligence of
the driver of the third vehicle. At pages 51 and 52, the Defendant was asked
the following questions, and gave the following answers:
"Question 442 - Suddenly without warning drove across • . .
Answer - Well maybe not without total warning, like maybehalf a foot of him was in my lane like, that iswhat most cars do.
)
Question 443 -
Answer -
Question 444 -
Answer -
Question 445 -
Answer -
Question 446 -
Answer -
Question 447 -
Answer -
Question 448 -
Answer -
Question 449 -
Answer -
- 46 -
-5-
So it was starting to creep into your lane?
Yeah.
You would have seen this as you drove west?
Yes, right after the vehicle drove.
And then it started to take-off in front of you.Is that correct?
Yes.
Did it have its signal light on?
I can't remember but I think it did.
So that would have also warned you that it wasturning?
Yes.
You knew it was going to turn?
Yes.
In order to avoid the said collision, in order toavoid a collision with the said vehicle (thatbeing the vehicle that cut in front of you), thedefendant in the emergency thereby created, wasforced to brake and swerve violently. Now I wantto stop for a minute and ask you about that. Didyou brake violently as well as swerve violently?
Well I swerved and then hit the brakes and thenswerved back in."
Finally, at page 71 of the transcript, the Defendant was asked the
following question and gave the following answer:
"Question 565 - Are there any facts that you would suggest thatMr. M. is responsible for this accident?
(Witness confers with Mr. B.)
Mr. B. has now consulted wi th you. Are yousuggesting Mr. M. is at fault for this accident?
)Answer - No."
- 47 -
-6-
SEATBELTS
The Defence has pleaded that the Plaintiff was not wearing his seatbelt.
The Plaintiff takes the position that in fact he was wearing his seatbelt.
At the Examination for Discovery of the Defendant, he was asked the
following questions and gave the following answers:
"Question 571 - And B., did you see whether he was wearing aseatbelt or not?
Answer - I couldn't tell.
Question 572 - In your Statement of Defence you have pled thathe was not wearing a seatbelt. On what facts doyou rely to say that?
Answer - That I didn't see him take one off when I got outbut . . .
Question 573 - But you didn't see if he had one on or not?
Answer - I couldn't tell. Maybe it was just a lap belt orsomething and I couldn't tell.
Question 574 - Is it a precautionary pleading then Mr. R.? Doyou have any facts upon which you rely to saythat?
Answer - Just that I never seen him undo his seatbelt whenhe got out, that is it.
Question 575 - But you can't say whether he had one on or off asI understand your answer from before.
Answer - No.
Question 576 - Are there any other facts upon which you rely?
Answer - No."
Vancise, J. (as he then was) in Rinas (1982) 26 Sask.R. 132, (Sask.Q.B.),
placed the onus on the Defendant to establish that, on the balance of
probabilities, the Plaintiff failed to wear his/her seatbelt. The Court went
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even further, obligating the Defendant to also prove that the vehicle was
equipped with a seatbelt. Vancise, J. states at page 139:
liThe onus rests with the Defendant to satisfy the Courtin accordance with the ordinary standard of proof, thatthere was a seatbelt available in the vehicle, that itwas not worn . . . II
Moreover, it is not enough that the Defendant is able to establish the
preceding two points, but the Defendant must also show to the Court, again on
the balance of probabil it ies, that lithe injury woul d have been prevented or
reduced" (Rinas, page 139, Keller (1983) 20 Sask.R. 420, (Sask.Q.B.».
It is submitted that to this point in time there is no evidence to suggest
other than that the Plaintiff was wearing his seatbelt, in accordance with his
stated position.
PRE-ACCIDENT HEALTH
At the time of the accident, the Plaintiff was 31 years of age with two
children, aged 3 years and 3 months. The Plaintiff was in excellent health at
the time of the accident. As a child, he had mononucleosis, fractured wrists,
fractured ribs, and a fractured right clavicle as a child, and pneumonia while
he was working in a body shop for eight years, before starting his present
occupation. The only operation he has had in the past was a vasectomy. All of
the foregoing had healed and did not create problems to the Plaintiff at the
time of the motor vehicle accident of May 1, 1987.
At the time of the accident ~he Plaintiff was employed as a realtor with
ABC Realty, which occupation he had held for 10 years. At the present time,
the Plaintiff is a realtor with DEF Realty.
To the best of the information of the writer, has not suffered from any
further motor vehicle accidents or injuries since the time of this motor vehicle
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accident on May 1, 1987. He was however, involved in a motor vehicle accident
in approximately 1974. The injuries from this accident were primarily of a soft
tissue nature, and from which he had fully recovered.
Prior to the motor vehicle accident, the Plaintiff was an extremely hard
worker, spending 60 to 70 hours per week in his occupation. He, however, also
enjoyed yard work, mechanical and body work on cars, and housework.
NATURE OF INJURIES
The Plaintiff's recollection of the events immediately following the
accident are somewhat clouded. There is some question as to whether there was
a loss of consciousness. It appears though, from an independent third party,
that the Plaintiff exited the vehicle and put his hands on the top of his car
and his head on his hands. He was visibly shaken, and there is some question.
as to whether he fell to the ground on one or more occasions.
He was able to get to a local business, the Poultry Marketing Board, where
he remained until an ambulance attended. He was placed on a straight board with
a collar, presumably for preventative reasons.
He was then taken to the Plains Health Centre where he was hospitalized
for approximately one week.
The radiographs were negatives for fractures, and his hospital stay is
summarized by the Disch~rge Summary which is annexed to this Brief at Tab 6.
The Final Problem list is annexed to this Brief at Tab 7, and shows that
the initial diagnosis was that of severe thorcodorsal spinal strain. Secondly,
a soft collar was continued for support, and he was able to gradually improve
his ambulation.
)
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Although the report of Dr. G. West dated January 18, 1989 is somewhat out
of sequence, it nicely provides the reader with an overview as to the
Plaintiff's problems to that point in time, as well as his condition as of
January, 1989. Dr. West's report is annexed to this Brief at Tab 8.
As indicated in Dr. West's report, the Plaintiff began physiotherapy in
July of 1987 at Coltun's Physical Therapy Clinic. Annexed to this Brief at Tab
9 are a series of reports dated July 10, 1987, October 16, 1987, January 20,
1988, June 15, 1988, October 31, 1988, December 16, 1988, and July 11, 1989, all
from physiotherapists at Coltun's who were responsible for the Plaintiff's care
to approximately October of 1989.
Annexed to this Brief at Tab 10 is a list of attendances to health care
providers for treatment, which will assist the reader in understanding the
treatment that was necessitated as a result of the motor vehicle accident.
No reports have been obtained from Dr. Bas il or Dr. Kaufman. Each are
orthopedic surgeons, and as already indicated in the report of Dr. West, they
both agreed that the Plaintiff's injuries were of a soft tissue nature, and they
did not see him after July of 1987.
Similarly, Dr. Velmer's testing proved negative, and no request has been
made for a report from him.
Dr. Thornton was the Plaintiff's general practitioner. Annexed to this
Brief at Tabs 11 and 12 are reports from Dr. Thornton dated October 17, 1988
and April 30, 1990. A Di sabil i ty Deduction Cert i fi cate was issued by Dr.
Thornton on February 10, 1988 (it's believed), which states:
"Chronic back pain,restricts all functions, able towork (real estate sales) but amount he can do in a dayis reduced. Also worked in autobody repair, but totally
These are the
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unable to do this now. Activities of daily 1ivingpartially restricted, i.e. unable to shovel walks, cutgrass and similar activities."
Later in the report, the doctor indicated "1 (regarding disability
duration) extent -- show improvement over 1 to 2 years expected." A copy of
this Certificate is annexed to this Brief at Tab 13.
This prognosis is echoed by Dr. West a year later, and I quote from his
report, on page 4:
"All these funct iona1 man ifestat ions often accompanystates of chronic pain and thus are an integral partthereof. Hence they are a direct consequence of theaccident and deserve the same consideration as anyphysical disability in the assessment of damages."
The Plaintiff's problems were in fact mental as well as physical. He
suffered greatly from depression. Prior to the accident, he had been very
enthusiastic about his job and his life in general. Admittedly, his marriage
was somewhat fragile, which, as Dr. West points out, succumbed approximately 21
months after the accident.
After the accident, this top producer for ABC Realty found that he was
unable to maintain the energy level and, therefore, the sales level demanded in
the real estate world. He was accustomed to long hours and a heavy workload.
It was his practice to generally maintain the properties which he had listed for
sale, including shove1Jing snow, mowing the grass, etc.
activities Dr. Thornton mentions in his report.
The treatments at Coltun's Physical Therapy Clinic were extensive. It
took time from his day and interfered with his normal working abilities. As has
been indicated in the reports, the Plaintiff also suffered from bladder
problems, which one of the doctors indicated may have been from problems in the
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muscles of the pelvic floor. For a period of time, the Plaintiff was unable to
function sexually.
In March of 1988, due to continuing headaches, the Plaintiff was assessed
by Dr. E. Green, who commenced temporomandibular joint therapy and treatment.
Acopy of a report from Dr. Green dated March 30, 1990 is annexed hereto at Tab
14. This report shows the visitations that were made to Dr. Green, who reported
to Neurological Associates on May 27, 1988, the following:
"I have had Bob into some splint therapy from March 3,1988. Acall from him on June 25, 1988 he had indicatednumbness on the right side. I would ask your supportto provide an assessment to rule out nerve entrapment."
A copy of this request to Neurological Associates is also annexed at Tab 14.
As I understand it, there was no nerve entrapment or other probl ems
located by Dr. Velmer.
In addition to this dates outlined in Dr. Green's letter of March 30,
1990, the Plaintiff also saw him on July 11, 1990, October 4, 1990, January 22,
1991, and February 6, 1991.
A further report has been received from Dr. Green and is also annexed to
the Brief at Tab 14.
In the spring of 1991, the Plaintiff was dismissed from ABC Realty when
they closed their north office and amalgamated their operations in the south end
of Regina. This situation is unrelated to the motor vehicle accident.
At the present time, the Plaintiff continues to suffer from chronic pain,
particularly in the neck, back, jaw, and left hip. The headaches, the neck and
the jaw appear to be related, and as of April, 1991, the headaches on average
are present every second day. They may last from two hours to two days, but
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usually are of the lesser variety. He still wears a splint during the night
and for tension.
When the Plaintiff had to change employment in approximately mid February,
1991, the headaches became worse, probably as a result of the tension, which
would affect the injured areas. He is living in the same house with his wife,
however, in fairness it can be said that they are living separate and apart, as
the Plaintiff lives in the basement.
The Plaintiff feels that it was the motor vehicle accident that was "the
straw that broke the camel's back" as far as his marriage is concerned, saying
that as a result of his problems after the accident, he was just too
unreasonable to live with.
Subsequent to the accident, the Plaintiff relates that he lost much of his
bladder control for a period of approximately six months. This seemed to be
somewhat compounded because of the use of the back brace. The back brace was
worn for approximately 21 years, and although he still keeps it in the back of
his truck in case it is necessary to use it, he has not used the back brace
regularly for about a year. He has suffered from blood in his stool since the
time of the accident, and is uncertain whether this was caused as a result of
the accident or of an inflammatory bowel disease called "Crohn's Disease". It
is only in the last II.months that the bleeding is able to be controlled by
medication. Although the doctors will not commit themselves to whether it was
caused as a result of the accident or not, because the cause of Crohn's Disease
is unknown, the Plaintiff points out that the problems began contemporaneously
with the occasion of the accident.
)
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Aside from the temporomandibular joint treatment, other treatment has now
been discontinued, as the Plaintiff's condition does not appear to have changed
for some time. He still attends Dr. Green and still wears the spl int as
required.
NON-PECUNIARY LOSS
The Saskatchewan Court of Appeal in three 1991 decisions, namely Bunce v.
Flick, Varga and Zepp; Demyen v. Siroynis and Falkowsky; and Fobel v. Dean and
MacDonald, has given new guidance to the assessment of non-pecuniary loss in
Saskatchewan.
Date of Assessment
The Honourable Mr. Justice N. S. Sherstobitoff, in the Demyen decision on
page 10, wrote:
"This Court has held, in Bunce v. Flick et al, aJudgment issued concurrently with this one, that whenprevi ous Judgments are used to establ ish a range ofdamages, they must be adjusted for inflation during theperiod between the relevant date in the previousJudgment and the relevant date in the cause before theCourt. The relevant date is the date on which the causeof action arose. Thus the $25,000.00 award in Bouchardv. Kirstein (1983), 25 Sask.R. 79, which arose from anaccident in June, 1978, was in 1985 dollars $43,750.00."
The practice in Saskatchewan, prior to the rendering of the Bunce and
Demyen decisions on June 18, 1991, was to assess the damages as of the date of
trial, pre-trial settlement conference, or settlement. There was a great deal
of discussion as to what effect inflation should have on such cases, which also
rendered further difficulties if the case occurred after January 1, 1986, the
effective date of The Pre-Judgment Interest Act.
The Court of Appeal, however,. has now clarified its position and the law
in this regard. We must assess damages as of the date of the injury.
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Inflation
In the Bunce decision, Mr. Justice Sherstobitoff stated at page 8:
"The submission (by the Appellant) was simply that, inreferring to previous Judgments in order to establisha range of damages within which to fit the Appellant'scase, the amounts awarded in previous Judgments must beadjusted to take into account intervening inflation todetermine their worth at the time relevant to theAppe11 ant's case. There ishigh authori ty for theAppell ant's proposit ion and it has been wi del yrecognized. In Lindal v. Lindal, (1981) 2 S.C.R. 629,Dickson, C.J.C. said at pages 640-641:
'I would here reaffirm, for all the reasonsoutlined above, a rough upper limit of$100,000.00 for non-pecuniary loss in casesof severe personal injury, as providing ameasure of uniformity and predictability inthis difficult area. None of us, however,is unaware of, or unaffected by, theinflationary trend and the erosion in thevalue of money since the trilogy of caseswas decided by this Court. The value ofmoney has been steadily declining. Itseems only reasonable, therefore, toreaffirm the statement in Andrews at page263, that the figures must be viewedflexibly in recognition of, inter alia,'changi ng economi c condi t ions' . Suchamount of $100,000.00 should be subject toincrease upon proof of, or agreement to,the effect of infl at ion on the value ofmoney since the decisions of this Court inAndrews, Teno, and Thornton. A Court maytake judicial notice of the fact that (sic)an inflationary trend exists, but I shouldnot think that the precise monthly oryearly inflation rate is normally a fact ofwhich such notic~ may be taken.'
See also Rieger v. Burgess (1988) 66 Sask.R. 1 (C.A.)and Junek v. Ede (1991) 1 W.W.R. 60 (Sask.C.A.)."
The Court of Appeal, on page 10 of the Bunce decision, went on to say:
"Accordingly, the damages for non-pecuniary loss mustbe assessed in this case as of the date of the accident
)
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not the Judgment and considering and comparing inprevious cases the awards must be adjusted for inflationon the basis that they reflected the appropriate amountof damages at the date the injuries were incurred, notthe date of trial, Judgment or appeal."
Procedure In Assessing Damages
The Court in Bunce v. Fl ick. Varga and Zepp, at pages 11 through 17,
di scussed the procedure to be followed in assessing non-pecuni ary damages.
Bouchard v. Kirstein (supra) and Bookhalter v. Hodel (1985), 42 Sask.R. 305, are
two cases rendered by the Court of Appeal in thi s area whi ch have been
traditionally rel ied upon as setting guidel ines for the assessment of non
pecuniary damages. Mr. Bouchard was a 64-year-old man who suffered a severe
whiplash in an accident which occurred on June 1, 1978. The Court of Appeal,
by a decision July 4, 1983, reduced the damages to be awarded to Mr. Bouchard
to $25,000.00, and in so doing, Mr. Justice Cameron stated in part that it would
appear generally the range in Saskatchewan for injuries of this type would be
$20,000.00 to $28,000.00 (in 1978 dollars).
Dr. Bookhalter was a 55-year-old dentist, who suffered a severe whiplash
in an accident which occurred April 3, 1979. The Court of Appeal reduced his
non-pecuniary damages from $30,000.00 to $20,000.00, and awarded him the sum of
$60,000.00 for loss of earning capacity. Mr. Justice Sherstobitoff, in
commenting on these decisions in the Bunce Judgment, said as follows:
"... These Judgments must be taken as reflecting theappropri ate ranges of damages at the date that theinjuries giving rise 'to them occurred. Thus, inBouchard, the date was June 1, 1978. Adj ust i ng theBouchard award for inflation to December 5, 1985, thedate of the first accident in this case, using thetables based on the cost of price index as proventhrough the evidence of Professor Tompkins, the$25,000.00 in June 1978 dollars becomes $43,750.00 inDecember 1985 dollars. The $20,000.00 awarded to
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Bookhalter in April of 1979 becomes $32,000.00 inDecember 1985 dollars. Thus it can be seen that theupper 1imi t of the range ident i fi ed in Bouchard forinjury of the nature which that case presented wasDecember, 1985 in the vicinity of $45,000.00 by reasonof inflation. An upper limit of around $45,000.00 forinj uri es of th is nature sustained in December, 1985meshes with the Judgment of this Court in Junek v. Ede.In that case, the victim sustained whiplash injuries onNovember 1, 1985. At trial, Barclay, J. instructed thejury that the range of damages for non-pecuniary lossfor injuries of this nature was from $15,000.00 to$45,000.00. The jury awarded $30,000.00. This Courtafter consideration of the Judge's charge to the jury,dismissed an appeal against the award."
The Court went on to say that in speaking in ranges of damages and upper
limits, the Court should not be taken to a fixed and inflexible Tariff. The
damages must be both fair and reasonable and each case must be governed by its
own facts. Accordingly, the trial Judge must be given substantial leeway in its.
assessment of the evi dence and app1icat ion of the appropri ate 1aw to the
evidence.
The Court, having established an upper limit of $45,000.00, considered the
adequacy of the $20,000.00 award by the trial Judge in the Bunce decision. As
the trial Judge had either failed to take inflation into account or if he did
take inflation into account, his resulting assessment of the $20,000.00 non
pecuniary claim was so inordinately low that the Court of Appeal found him to
be wrong in law.
Comparing Case Law
The Court of Appeal pointed out at page 16 of the Bunce decision that
while they recognized that comparing fact situations in different cases must be
done with caution, since not all facts are given in Judgments, a comparison is
nevertheless necessary. The Court pointed out that the effects of the injuries
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in the Bunce decision were similar to those in Bouchard, Bookha1ter, and Junek,
and in some respects more severe.
The Court of Appeal pointed out that in Bouchard and Bookhalter, the
Plaintiffs were aged 64 and 65, respectively, as of the date of trial, but the
victim in the Bynce case was 40. The Court of Appeal went on to say:
"Thus the victim in this case would suffer the loss ofamenities for a much longer period of time."
The Court went on to point out that there were addition injuries that Mr.
Bunce suffered from, and accepted that the trial Judge placed the injuries
somewhat below the upper end of the range. The Court of Appeal in Bunce
considered a reasonable award for total non-pecuniary loss to be $35,000.00 (for
two accidents which occurred in December of 1985 and August of 1986).
Utilizing the same reasoning, the Court of Appeal in the Demyen decision,
again analyzed the Bouchard v. Kirstein decision. The Court of Appeal also
acknow1 edged that the trial Judge's fi ndi ng that Mrs. Demyen had suffered
chronic pain syndrome, and since there was evidence upon which to make the
finding, stated it should not be interfered with. As to quantum, the Court of
Appeal said as follows:
"Given the standard of review of assessment of damages,and given that the upper limit of the range of damagesfor whiplash injury was over $40,000.00 in respect ofinjuries sustained in 1985, and given that the Judgeintended that a substantial portion of the award fornon-pecuniary loss be for the effects of chronic painsyndrome, above and beyond the usual effects of whiplashinjuries, the award of '$50,000.00 cannot be said to beso inordinately high as to be a totally erroneousaward."
Mr. Justice Vancise wrote for the majority in the Fobe1 decision. The
injuries were as a result of an accident which occurred on June 29, 1984, when
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the P1 aint iff was struck from the rear whi 1e dri vi ng her car. The second
accident occurred on January 19, 1986, again another rear-end collision.
On page 61 of the Judgment, the Court indicates she was 55.34 years of age
as of the date of trial, which was January 30, 1989. At the time of the
accident, therefore, she would have been approximately 50 and 52 years of age.
On page 4 of the Judgment, the Court of Appeal stated that Mrs. Fobe1 was
severely incapacitated for 18 months following the accident. She was unable to
perform most of her employment duties at the bakery, jointly owned by herself
and her husband. She performed her housekeeping tasks and the work she was able
to do at the bakery with materially less efficiency, great difficulty, pain and
discomfort. The chronic pain prevented her from performing some household
duties and from participating in recreational activities that she had
participated in prior to the accidents.
Mr. Justice Vancise said when awarding non-pecuniary damages:
liThe trial Judge analyzed the award for non-pecuniarydamages for chronic pain. These include: Graham v.Rourke (l988) , 43 C.C.L.T. 119 (Ont.H.C.), where avictim of chronic pain was so disabled as to be unableto perform even the most meni a1 and simp1 e task andreceived $100,000.00; and Sch1au v. Boyesko (Ont.H.C.J.)February 25, 1988, H.A.C.W.S. (3d) 364, where a 47year-old professional dancer was rendered incapable ofcontinuing to dance and indeed even to walk properly.She suffered emotional trauma, her body underwentpostural changes, and she walked as if dragging her leftfoot and her left arm hung loosely. She received anaward of $85,000.00.
Graham v. Rourke (supra) is a tragic example of chronicpain syndrome and probably at the upper limit of nonpecuniary awards for such injuries .•.
Mrs. Fobe1's injuries are far more severe than thosesuffered by Mrs. Junek.. She (Mrs. Junek) was notdisabled, did not have the added complication ofrheumatoid arthritis and is able to function. None of
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these things apply to Mrs. Fobel. I would fix her nonpecuniary damages for the injuries suffered at$45,000.00. This sum is comparable to the amountawarded for chronic pain in Demyen v. Sirounis. Seealso Bunce v. Flick, where the Plaintiff received$35,000.00 for chronic pain."
The Court went on to award a further $15,000.00 for loss of housekeeping
capacity, which they indicated was to be considered separately in assessing non
pecuniary damages.
Conclusion
As of 1991, the Court of Appeal for Saskatchewan indicated the following
rules apply when assessing damages:
1. The date to be utilized in the assessment of damages is the date of
the injury;
2. Inflation is to be taken into account in using comparable cases;
3. Non-pecuniary damages in soft tissue injuries, which occurred around
1985, range from $35,000.00 to $50,000.00, depending on their
severity;
4. Loss of housekeeping capacity is considered a separate item.
TEMPOROMANDIBULAR JOINT
There have been three cases concerning temporomandibular joint of which
the writer is aware. They are as follows:
A jury decision in Ede v. Junek and Hart (unreported) before Mr. Justice
Barclay held March 1 to 3, 1989. This case involved a temporomandibular joint
dysfunction and the effects of a whiplash injury. The range of damages given
to the jury in the Judge's charge was $15,000.00 to $45,000.00 (this pre-dates
the Demyen case). The jury returned a verdict of $30,000.00 for general
damages. The Defendant appealed on quantum of damages and the appropriateness
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of applying the inflation factor. The appeal was heard on October 5, 1989 by
the Saskatchewan Court of Appeal, and a decision has been rendered dismissing
the appeal by the defence.
This case also indicates that due regard should be applied to the
inflation factor in setting awards for non-pecuniary damages.
The second case dealing with temporomandibular joint dysfunction is~
Pambrun, Wolfe, Wolfe and Saskatchewan Government Insurance, which was heard by
Mr. Justice Lawton in approximately April of 1989. Injuries were suffered as
a result of a rear-end collision on February 14, 1988. The case was expedited,
due to the possible return of the Plaintiff to Hong Kong, once her visa had run
out in July, 1989. Mr. Justice Lawton awarded $13,000.00 for non-pecuniary
damages and approximately $3,500.00 for future TMJ treatment and physiotherapy.
The last case of which I am aware is Bunce v. Flick, Varga and Zepp, which
was heard by Mr. Justice McLean and is presently under appeal as to quantum.
The decision in this case was rendered on October 30, 1989 with an award of
$20,000.00 and no loss of income.
Couillard v. Waschulewski, (l988) 87 A.R. 161, provisionally awarded
$20,000.00 and $17,500.00 higher than the award for soft tissue injuries.
PECUNIARY LOSS
Annexed to this B~ief at Tab 15 is the report of Dr. David Beattie. Dr.
Beattie was commissioned by the Plaintiff to calculate the Plaintiff's loss of
income, both past and prospective .. Dr. Beattie has listed his sources on page
4 of his report. I have not reproduced the income tax returns and the like for
the purpose of this pre-trial Brief, although they are available upon request
and have been made available to counsel for the Defendant.
)
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The report concludes a future wage loss to the year 2021. The report was
commissioned and completed prior to the Plaintiff's change of employment. It
should be noted that as a result of forces beyond the Plaintiff's control, he
has had to change real estate companies, as previously noted. This has in fact
resulted in a further loss of income, however, the "further losses" are not
attributable to this motor vehicle accident, but to the fact that he has lost
clientele from his established place of business, incurring increased costs J and
his nucleus of business. Certainly, the market economy would have an effect on
his present income, but it may be argued that this economy would also have had
a negative effect on his loss of earnings with or without changing his place of
employment. It is my understanding that Dr. Beattie has taken this factor into
consideration.
For the purpose of the pre-trial Brief, I don't intend to elaborate
further than the filing of the report from Dr. Beattie, except to say that it
is the Plaintiff's present intention to have Dr. Beattie attend the pre-trial
conference so as to update his report and defend it, where required.
However, it is important to understand, as is pointed out by Dr. Beattie
in his report, that the Plaintiff was a top producer prior to his accident. His
awards from his employer substantiate this performance, as does his income.
Hence, part of the reason for the significant loss.
INFLATION FACTOR
The Saskatchewan Court of Appeal in the decisions rendered in 1991 J
namely, Ede v. Junek, Bunce v. Flick, Varga and Zepp, Demyen v. Sirounis and
Falkowsky, and Fobel v. Dean and MacDonald, clearly indicated that inflation was
to be taken into account in the assessment of non-pecuniary damages.
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In cases involving motor vehicle accidents, it is submitted the following
procedure be employed to adjust for inflation:
1. If the precedent which is being utilized happened before the case
being assessed:
a) Take the consumer price index (C.P.I.) on the date when the
injury occurred in the precedent, and take the C.P.I. as of
the date the injury was suffered in the case before the Court;
b) Establish a factor by dividing the C.P.I. as of the date of
the injury by the C.P.I. as of the date of the precedent;
c) Multiply that factor by the award in the case of the
precedent.
Example: C.P.I. (as of date of injury in precedent) : C.P.I. (as
of date of injury in the case before the Court) x amount
of award in precedent = value of award on the date the
injury occurred in the case before the Court.
PRE-JUDGMENT INTEREST
The Pre-Judgment Interest Act was effective January 1, 1986, and by the
terms of the Act, did not have retroactive effect. Therefore, only those cases
which gave rise to a cau~e of action after January 1, 1986, were the provisions
of The Pre-Jydgment Interest Act to apply.
Until the decision in Bunce v'. Flick. Varga and Zepp on January 18, 1991,
there existed confusion in Saskatchewan as to whether pre-judgment interest
would apply to non-pecuniary damages. However, in the Bunce decision, at page
7, Mr. Justice Sherstobitoff said as follows:
')
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"The Pre-Judgment Interest Act, 5.5. 1984-85-86 c. P22.2, which came into effect January 1, 1986 permits theCourt to include pre-judgment interest in a Judgment fordamages. However, according to Section 8 thereof itdoes not apply to a cause of action arising before thedate on which it came into force. It accordinglyapplies to damages arising out of the second accident,but not the first."
The Bunce case involved two accidents. One occurred prior to January 1,
1986 and one occurred after January 1, 1986. The parties had already
apportioned damages as between the two accidents. Mr. Justice Sherstobitoff
simply stated on pages 23 and 24 of the Judgment:
"The parties were satisfied with the apportionment ofdamages by the Judge below as between the two accidentsand sets of Respondents. Accordingly, the Respondent,Flick, is liable to pay 17/20 of the above damages andthe Respondents, Zepp and Varga, to pay 3/20 of the saiddamages.
The Appellant shall have his costs on the appeal underdouble Column 5. If further directions are necessaryany of the parties may apply. The Appellant shall alsohave interest under the provisions of the Act in respectof damages flowing from the second accident."(underlining is my own)
The Demyen decision pertained to accidents which occurred before January
1, 1986. Mr. Just ice Vanci se dealt wi th factual circumstances ari sing from
accidents dated June 29, 1984 and January 19, 1986 in writing the majority
decision in the matter of Fobel v. Dean and MacDonald.
On page 68 of his "Judgment, Mr. Justice Vancise said:
"Pre-Judgment Interest
Mrs. Fabel is entitled to pre-judgment interest on thatpart of the award arising out of the injuries sustainedin the acc ident of January 19, 1986 caused by theRespondent Nicole MacDonald. The parties have agreedthe damages assessed should be apportioned equallyagainst both Respondents. The matter is, therefore,
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referred to the trial Judge for calculation of prejudgment interest on that portion of the damagesapportioned to the Defendant, Nicole MacDonald, inaccordance wi th the provi sions of The Pre-JudgmentInterest Act, 5.5. 1984-85-86, c. P-22.2."
In his descent, Mr. Justice Wakeling said of pre-judgment interest on page
16 of the Judgment:
"No.3
Where pre-judgment interest is available, it's appliedto the award and calculated to the date of Judgment.In this way, inflation and pre-judgment interest are notto be applied during the same intervals."
Discretion
The Pre-Judgment Interest Act provides for a discretion where the
Defendant establ i shes that there may be reasons where pre-judgment interest
should not apply.
It is submitted, on behalf of Plaintiffs, that there must be a factual
underpinning before this discretion can be invoked. To date, there have been
no cases known to the writer where such discretion was considered or applied.
Calculation of Pre-Judgment Interest on Non-Pecuniary Damages
The Pre-Judgment Interest Act provides for quarterly establishment of pre
judgment interest that is to be applied. Attached hereto is a table of those
established rates for the relevant periods of time.
Pre-judgment interest on non-pecuniary damages may be established by
averaging the interest rates for the relevant period of time and multiplying by
the principal award.
Calculation of Pre-Judgment Interest on Pecuniary Damages
In the case of pecuniary loss, pre-judgment interest must be calculated
from the quarter in which the loss was incurred, and as such, becomes somewhat
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-25-
more onerous . Counsel will attempt to provide part icul ars wi th a breakdown
under such circumstances.
SPECIAL DAMAGES
Prescription Expenses
Prescription expenses total $140.56, as of May, 1990 and are outlined at
Tab 16. The receipts are available upon request.
Secretarial Expenses
As a result of the motor vehicle accident, the Plaintiff had to change his
method of doing business. This included employing a secretary, whose duties are
described with great particularity in the Examination for Discovery and will not
be repeated here.
The claim in this regard totals $761.32 and is annexed to this Brief at
Tab 17.
Open House Expenses
As is indicated in the preamble, the Plaintiff reimbursed colleagues who
filled in at Open Houses on his behalf, to the extent of $550.00. A breakdown
of this claim, together with copies of receipts is annexed hereto at Tab 18.
Transportation Expenses
Previously, at Tab 10, health care attendances were enumerated. There are
approximately 250 atten~ances. There would be no parking charges at Coltun's
or Dr. Green's office, and the other claims for parking would be minimal. An
approximate cost for transportation, per return trip, would be approximately
$5.00 and, therefore, an arbitrary figure of $1,250.00 has been used, plus
$108.26 for the attendance to Dr. Wyant, mentioned on page 6, has been employed
for a total of $1,358.26. This Schedule is current to May 22, 1990. As
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-26-
previously indicated, there were at least four further attendances to Dr.
Green on July 11, 1990, October 4, 1990, January 22, 1991, and February 6, 1991,
and such further attendances as may be required.
Lawn Care Expenses
As previously indicated, the Plaintiff was involved in the care of his own
home, which had to be done by third parties, at least until May 24, 1988.
Particulars of payments in this regard are outlined at Tab 19, for a total claim
of $475.00.
Lawn Care - Listed Houses
Similarly, the Plaintiff was unable to do the service that he normally
performed for his clients in servicing their homes for sale which were vacant.
A further claim of $225.00 is made in this regard. Particulars are outlined at
Tab 20.
Miscellaneous Special Damages
At Tab 21 are the special damages the Plaintiff incurred in attempting to
recuperate from his injuries. The total is $803.00.
Saskatchewan Health. Hospital Services Branch
The claim in this regard is in the amount of $2,358.00, as is evidenced
by the correspondence dated December 12, 1988 at Tab 22.
SUMMARY
Non-pecuniary damages
Pecuniary:
a) Prescriptions
b) Secretarial Expenses
c) Open House Expenses
$50,000.00
140.56
761.32
550.00
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-27-
225.00
475.00
803.00
470.00
2,358.00
1,358.26
318,616.00
d} Transportation Expenses
e} Lawn Care Expenses
f} Lawn Care - Listed Houses
g} Miscellaneous Special Damages
h} Hospital Services Branch
i} Future cost for TMJ treatment
j} Other future costs {as may be proven}
k} Loss of property
1} Medical equipment
m} Past and future loss of income{as per Dr. Beattie's report}
n} Pre-judgment interest as may beappropriate
Along with pecuniary and non-pecuniary damages, the Plaintiff makes a
claim for taxable costs and disbursements, without limiting the discretion of
the trial Judge and/or the Court as in the Ange1stad decision, together with
pre-judgment interest on those pecuniary items not included in Dr. Beattie's
report, and non-pecuniary damages.
The Defendant is entitled to have any Part II payments, which have been
made to the Plaintiff, deducted from the total amount of the Plaintiff's claim,
pursuant to the provisions of Section 79 of The Automobile Accident Insurance
Act, subject, however, to the qualification that in the event that sums for
payments made to the Plaintiff for items other than disability benefits,
pursuant to Part II, would have to be included in this claim before deduction.
As an example, payments to Dr. Green and/or Co1tun's have not been made as part
of this claim. In fairness to the Plaintiff, before these sums could be
- 69 --28-
deducted by virtue of the provisions of Part II, they would need to be added as
part of the overall claim.
The Plaintiff is of the understanding, based on representations by the
Defendant, that there is no package pol icy. Therefore, the Pl aint iff is
prepared to settle the within matter for the limit of coverage, which we
understand to be $200,000.00, plus taxable costs and disbursements, without
limiting the discretion of the trial Judge and/or the Court as in the Angelstad
decision.
ALL OF WHICH IS RESPECTFULLY SUBMITTED this day of May, A.D. 1991.
NOBLE, KARWANDY &JOHNSTON
PER:Solicitors for the Plaintiff
THIS DOCUMENT was delivered by:
NOBLE, KARWANDY &JOHNSTONBarristers and Solicitors1143 Lakewood Court NorthRegina, SaskatchewanS4X 3S3Telephone: (306) 949-5616and the address for service is the 'same as above.
LAWYER in charge of file: KENNETH W. NOBLE
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PRE-TRIAL RULES OF COURT
COURT OF QUEEN'S BENCH
APPENDIX A
The Rules of the Court of Queen's Bench for Saskatchewan are
amended effective the 1st day of February, 1991, in the manner set
out below.
Rules 191 to 195, are hereby repealed and the following
substituted therefor:
191. (1) Unless otherwise ordered,. no proceeding (including a
proceeding in Unified Family Court) shall be set down for
trial unless a pre-trial conference is held.
(2) On the close of the pleadings, the parties may request
a pre-trial conference by filing with the Local
Registrar:
(a) a joint request:
(i) which contains a certificate of readiness;
(ii) which confirms that efforts at settlement have
been made;
(iii)
(iv)
wpich sets out the estimated time required for
the pre-trial conference and the trial; and
which estimates the number of witnesses to be
called at the trial;·
(b) a certified copy of the pleadings (in a proceeding
-~
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commenced by petition, a certified copy of the
petition and answer is not required);
(0) a trial brief that complies with subrule (3) for
each party.
(3) The parties shall exchange trial briefs at the time the
briefs are filed with the Local Registrar. Each trial
brief:
(a) shall include a concise summary of the evidence
expected to be adduced;
(b) shall include a concise statement of the issues in
dispute and the law relating thereto, together with
a list of the authorities relied on and legible
copies of pertinent portions of such authorities
with appropriate highlighting;
(0) shall be accompanied by all documents, or legible
copies thereof, intended to be used at J;2:i al that----- -------~f assistance to the pre-trial_ judge ~n
, achieving the purposes of a pre-trial conference,
(such as medical and expert reports). All such-----------------documents shall, at the request of the party
producing them, be returned to that party at the
conclusion of the pre-trial conference;
(d) may be accompanied by a proposal for settlement of
the issues involved in the proceedings which may
)
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include admissions for the purpose of the pre
trial, or other statements relating to the issues
which the party may choose not to have available to
the trial judge. If the proceeding is to go to
trial after the conclusion of the pre-trial
conference, the proposal shall be returned to the
party submitting it.
(4) The examination for discovery shall be available for the
use of the pre-trial judge but shall at the conclusion
of the pre-trial conference be resealed until trial.
(5) The local registrar shall assign a pre-trial conference
date to ensure optimum use of court time, but shall
endeavour to suit the convenience of the parties. The
'parties must accept the date so assigned.
(6) Unless otherwise ordered, all parties shall appear with
their counsel, if any, at all pre-trial conferences.
Unless otherwise ordered, a corporation shall have a
representative present, in addition to its counsel, at
all pre-trial conferences.
(7) Unless otherwise ordered, the counsel representing a
party at the pre-trial conference shall be the counsel
who will be representing that party at the trial.
(8) :A pre-trial conference shall be for the purpose of
attempting to settle the proceeding, and if that is not
possible, to consider:
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(a) the identification and simplification of the issues;
(b) the necessity or desirability of amendments to the
pleadings;
(c) the possibility of obtaining admissions that will
facilitate the trial;
(d) whether all necessary steps have been taken in
preparation for trial;
(e) the possibility of settlement of specific issues;
(~) the quantum of damages;
(9) any other matters that may aid in the disposition
of the proceedings;
(h) the actual trial time required; and
(i) the date for trial.
(9) Where one of the parties refuses to join in a joint
request, the party wishing to obtain a pre-trial
conference may, upon filing the documents described in
Rule 191 (2) other than a joint request, apply for an
order setting a date .. for the pre-trial conference and a
date by which the party refusing to join in a joint
request must file the documents described in Rule i91(2).
Costs of such application may be ordered to be paid
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- 5 -
forthwith by the unsuccessful party.
(10) Notwithstanding Subrule (2), if all the parties file a
written request with the Local Registrar, they may apply
to a judge to direct that a pre-trial conference be held.
The judge, upon being satisfied that it will
sUbstantially settle the proceedings, may direct that a
pre-trial conference be held, and may dispense with any
or all of the requirements set out in Subrule (2).
(11) A trial judge or a chambers judge may, on his or her
initiative, order a pre-trial conference to be held
respecting any proceeding coming before him or her and
may conduct the same if appropriate to do so.
(12) (a) A pre-trial conference may be adjourned from time
to time at the discretion of the pre-trial judge.
(b) A pre-trial judge may at any time request that any
other person, whose attendance may be of assistance,
be present at the pre-trial conference.
(13) A judge who conducts a pre-trial conference shall not
preside at the trial unless all parties consent in
writing. This subrule shall not prevent or disqualify
the trial judge from holding trial meetings, (subsequent
to the pre-trial conference), before or during the trial,
to consider any matter that may assist in the just, most
expeditious, or least expensive disposition of the
proceeding.
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(14) No communication shall be made to the trial judge as to
the proceedings at the pre-trial except as disclosed in
the pre-trial conference report form.
(15) All communications in the course of the pre-trial
conference are privileged and shall not be admitted as
evidence in any proceeding.
(16) At the pre-trial conference, the pre-trial judge:
(a) may make any order by the consent of the parties;
(b) may make an order for costs but, in the absence of
such order, the costs shall be costs in the cause.
192. (1) A jUdge who conducts a pre-trial conference where the
matter is to proceed to trial shall direct the Local
Registrar to assign a date for trial.
(2) The local registrar shall set a trial date to ensure the
optimum use of court time, but shall endeavour to assign
a date to suit the convenience of the parties. The
parties must accept the trial date assigned by the Local
Registrar unless otherwise ordered.
(3) Where a trial date ~as been assigned, the party having
the carriage of the ~roceeding shall forthwith pay the
required fee for setting down.
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193. Subject to Subrule 191(9), when a trial date has been assigned
to any proceedings, it shall only be adjourned on the order of a
judge upon application by a party and supported by affidavit.
C B R T I rIC A T B
I, DONALD K. MacPHERSON, Chief Justice of Her Majesty's
Court of Queen's Bench for Saskatchewan, certify that these rules
were made by a majority of the judges of Her Majesty's Court of
-Queen's Bench for Saskatchewan pursuant to s. 89 of The Queen's
Bench Act.
DATED at Regina, Saskatchewan, the 10th day of January,
1991.
O.K. MacPhersonO.K. MacPherson, C.J.Q.B.
Certified T~ CopyL-:: ./ Q., - "I :: < ;...c::.-v:--:z. • IF. C. ~ew~s, Reg~strar
Court of Queen's Bench
- 77 -
COeRT 01' QUEEN'S BBNCH rOR SASKATCUWAN
PRACTICB DIRBCTrYZ NO. 4
PRK-TRIAL CONFBRENCE PRACTICZ DIRECTrYZ (CrvIL)
Effective February 1, 1991
1. (a) Counsel must make a genuine attempt to settle a
proceeding prior to a pre-trial conference. A pre-trial
conference is not to replace normal negotiations between
counsel.
(b) The attached "Joint Request For Pre-Trial Conference"
form must be completed and signed by all counsel at the
time a request is made under s. 191(2) (a).
2. The new Rule 191(1) provides: "Unless otherwise ordered, no
proceedings shall be set down 'for trial unless a pre-trial
conference is held". When counsel request: a pre-tri.al and meet the
requirements of the new Rule 191(2) which includes an estimated
time for trial of one day or less, I have ordered all local
registrars to refuse a pre-trial date, and to then assign a trial
date, unless:
(a) the local registrar is satisfied from his discussion wit~
counsel that there is a strong likelihood of a settlement
being reached should a pre-trial be held; or
(b) the local registrar',. feels there is some other special
reason a pre-trial should be held.
Except in these special circumstances, the cost to litigants of a
one day trial is not significantly greater than the cost of a pre
trial and therefore a pre-trial is usually not warranted.
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3. The goals of a pre-trial conference are:
(a) to allow the parties to participate in the problem
solving process.
(b) to allow the parties to receive the view of a trial jUdge
as to the issues (both facts and law) in dispute, as far
as the material before the pre-trial judge allows.
(c) to allow settlement options to be presented which would
not necessarily be available at trial.
(d) to seek settlement of the dispute so as to improve the
efficiency of the court system and to save time and costs
for all parties and witnesses.
4. If counsel wishes to dispense with the appearance of a party
or a representative of a corporation, counsel shall send a written
request, with reasons,to the local registrar. The local registrar
shall present the request to the pre-trial jUdge, who may:
(a) refuse or grant the request without requirement of
hearing from all counsel to the proceeding, or;
(b) grant the request with conditions, including a
requirement that the party or representative must be
available by conference telephone, or immediately
available for telephone communication, or;
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- 3 -
(c) order the request to proceed by way of motion.
5. If during a pre-trial conference the judge decides a telephone
conference call should be made, the cost of the call shall be borne
as the judge may order.
6. If a settlement is reached at a pre-trial conference, the
judge may have it reduced to writing and signed by the parties and
counsel and/or grant a consent order.
7. In proceedings involving matrimonial property or maintenance
for a spouse or children, a judge may order the filing of full and
complete information concerning a client's previous income. This
includes income tax returns for at least the last three years and,
if the client has an interest in a private corporation, financial
statements of such corporation for at least the last three yea~s.
8. Counsel must be aware of the new Subrule 191(16) (b) respec~~ng
costs, and the possibility of costs being awarded against a par~y
or counsel who fails to attend a pre-trial conference, or who fails
to comply with the requirements of Rule 191(2) and (3).
9. The face page of each trial brief shall clearly state the
party on whose behalf it is filed.
F.C. Newis, Registrar
Date: January 10, 1991
H .B. : Prac~ice Direc~ive Ho. 1 issued rebruary 1, 1989is hereby cancelled.
- 80 - APPENDIX B
)(NEW)
:/Rule 211 is added after the heading in Part Twenty andbefore Rule 212:
211. In this Part, "document" includes information recordedor stored by means of any device and includes an audiorecording, video recording, computer disc, film, photograph,chart, graph, map, plan, survey, book of account or machinereadable information.
284B ( 1) Except(a)
(b)
(c)
where there is evidence to the contrary,the life expectancy of an individual as set forth inthe table in form 23A is admissible in evidence;three per cent per annum is admissible in evidenceas the rate of interest to be used in determiningthe capitalized value of an award in respect offuture pecuniary damages to the extent that itreflects the difference between estimated investmentand price inflation rates; andthe value for one dollar per year as set forth forthe respective periods shown in form 23B, isadmissible in evidence.
284C
(2) Where a party intends to call evidence on any matterprovided for by this rule, he shall not less than ten daysbefore the date fixed for a pre-trial conference givenotice to each other party of his intention to do so andserve each other party with:(a) a summary of the qualifications of each witness to
be called; and(b) a copy of each document, including any tables and
statistics, proposed to be submitted in evidence;and
(c) a copy of any calculation proposed to be submittedin evidence.
(3) Notwithstanding subrule (1), form 23A is not conclusive asto life expectancy and the health and habits of theindividual and any other relevant fact or circumstances maybe considered by the court in determining life expectancy.
(1) Subject to subrule (5), in all proceedings to which theserules apply an 'appraisal report' as defined in TheQueen's Bench Act shall be admissible in evidence.
(2) A party intending to-submit an appraisal report in evidenceshall not less than ten days before the date fixed for apre-trial conference provide to every other party to theaction:(a) a copy of the appraisal report; and(b) a summary of the qualifications of the person making
the report.
[NEW] (3)
[NEW] (4)
[NEW] (5)
2840, (1)
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A party intending to submit in evidence a report of a dulyqualified medical or chiropractic practitioner or dentalsurgeon, as permitted by The Saskatchewan Evidence Act,shall not less than ten days before the date fixed for apre-trial conference, provide to every other party to theactin a copy of the report.
A party who has been provided with a copy of an appraisalreport, or a report of a duly qualified medical orchiropractic practitioner or dental surgeon, and whointends to require the author of the report to attend attrial to be cross-examined on the report, shall give noticeto the other party of such intention not less than ten daysprior to the commencement date of the trial.
An appraisal report shall not be admitted in evidence,except with leave of the trial jUdge, unless subrule (2)has been complied with, . and a report mentioned in subrule(3) shall not be admitted in evidence, except with leave ofthe trial judge, unless subrule (3) has been complied with.
A party who intends to call an expert witness at trialshall, not less than ten days before the date fixed for apre-trial conference, serve on every other party to theaction a report setting out the name, address andqualifications of the expert, the substance of the proposedtestimony and a copy of any written report intended to beused in evidence.
[NEW]
(2)
(3)
No expert witness may testify, except with leave of thetrial judge, unless subrule (1) or subrule (3), as the casemay be, has been complied with.
A party who has been served with a report as provided insubrule (1), and who intends to call an expert witness attrial in rebuttal, shall, within fifteen days of theassignment of a trial date, serve on every other party tothe action a report setting out the name, address andqualifications of the rebuttal expert, the substance of theproposed testimony and a copy of any written reportintended to be used in evidence.
