Posts by Herb Silber

One of the significant departures between the current B.C. Supreme Rules introduced in 2010 and it predecessor can be found with the addition of Rule 1-3 (2) under the heading Object of Rules which addresses expressly what is meant by the need to secure a just speedy and inexpensive result on the merits:

“Proportionality-Securing the just, speedy and inexpensive determination of a proceeding on its merits includes so far as is practicable, conducting the proceeding in ways that at proportionate to:

(a) the amount involved in the proceeding
(b) the importance of the issues in the proceeding and
(c) the complexity of the proceeding.“

A recent Supreme Court of B.C. decision by Master Caldwell deals with the relative merits of items a and b and suggests that item b may be more significant than a. The decision, Isman v. City of New Westminster et al, 2011 SCBC 1066 involved an application by the Plaintiff for documents relating to a claim for malicious prosecution and wrongful arrest. The documents in question it was alleged may tend to prove the claim for malice and punitive damages insofar as they relate to prior litigation between the Plaintiff’s company and the City of New Westminster involving a contentious by-law regulating the conduct of the pawn broker business in New Westminster, which the Plaintiff’s company was successful in quashing. The Court held that, in effect, the importance of the issues between the parties insofar as it engaged the interaction between the government and a citizen and the role of the police in such an interaction trumped the allegation by Defence Counsel that the amount involved was relatively minor. The gravamen of that aspect of the Judgment can be found at paragraphs 12 to 14 of the Judgment reproduced as follows:

[12] Defence counsel also submitted that the concept of proportionality as contained in the new rules mitigated against the potentially extensive and expensive search for and production of such documents. He suggested that the arrest and incarceration of the plaintiff were of such a brief nature (a matter of hours) that damages were minimal or non-existent.

[13] I am unconvinced by any of the defendants’ arguments.

[14] In my view, the defendants’ argument regarding proportionality provides the spotlight under which all of their arguments should be examined. Proportionality does not only relate to monetary quantification; it also relates to the importance of the issue in question. This case involves potentially very serious questions involving the interaction between a government and one of its citizens and the role of the police authorities in that interaction. In a free and democratic society, it is hard to imagine an issue of greater import.

Tags: civil procedure, document discovery

Herb Silber is a graduate of the Harvard School of Negotiation Mediation Program

An effective Mediator knows that often the parties’ bargaining positions are not reflective of what truly stands behind their positions. While on the surface it may seem that the issue is simply dollars and cents, the fact is that their positions are often driven by other motives. These motives can be such things as anger, lack of recognition, desire to punish, or hopes for concessions.  The Mediator needs to be able to assess which of these motives are behind the positions taken by the parties so that he cannot try to diffuse these factors. It often will prove very difficult to settle a dispute without the parties being able to modify the form or content of their original demands. An effective Mediator knows this and will use his or her skill to assist the parties in distinguishing their true underlying needs-things that the parties will need to address to have any chance in settling the dispute-from their original desires or motives, and modify their bargaining positions accordingly.  This is the task of helping the parties move from the positions they are taking to identifying the interests that underlie those positions and effectively dealing with them to achieve a settlement.

Tags: mediation

Herb Silber is a graduate of the Harvard School of Negotiation Mediation Program

Tags: mediation

On Feb. 18, 2011 the British Columbia Court of Appeal delivered its reasons for judgment in the Cambie Street / Canada Line case of Susan Heyes Inc. (Hazel & Co.) v. South Coast  B.C. Transportation Authority.

This case stemmed from the Canada Line Construction along Cambie Street and in particular the Cambie Village area. Susan Heyes was successful on her claim at trial that the cut and cover method of construction (which was a departure from the anticipated bored tunnel method) constituted a compensable legal nuisance, for which she was awarded $600,000.00 in damages for loss of business.

South Coast B.C (Translink) appealed both on the correctness of the finding of nuisance at trial and the trial judge’s failure to accept its defence of statutory authority.

The court found that the cost savings by using the cut and cover method made it the only reasonable option. Either method would have caused a nuisance and while a bored tunnel would have caused less interference for the Cambie St. businesses, it would have been at the expense of businesses at Broadway.

The court upheld the defence of statutory authority because relocating the nuisance down the line would not have been a viable alternative.

The Court also found that the defence of statutory authority for regulating traffic and closing streets was also available to Translink under the Vancouver Charter.

It is significant to note that the Court found that the cost differential was an important consideration in this case. In doing so, it would seem that the Court gave due deference to the policy considerations of Translink in preference to the possible impact on individual rights. This policy position seems to support a common sense approach that the public’s appetite to absorb the costs for these types of projects is limited and that it is not the courts’ role to unduly “second guess” the fiscal limitations on governmental bodies in doing these types of large projects.

Tags: canada line, nuisance

Tags: facilitator, mediation