No – You Can’t Call Evidence Suggesting Your Client is a Criminal Without Instructions

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were recently published by the BC Supreme Court, New Westminster Registry, with critical comments canvassing the conflict of interest that can arise when a defense lawyer is taking instructions from a Defendant’s insurer.

In the recent case (Kirilenko v. Bowie) the Plaintiff was involved in a collision and sued for damages.  The plaintiff alleged the collision caused a severe and disabling traumatic brain injury.

Mid trial the Defendant’s lawyer brought an application seeking permission for a police officer to testify who would provide evidence of both the Plaintiff’s and Defendant’s involvement in what the court described as “the drug culture“.

The Defendant’s lawyer argued this evidence would be important in helping the Court’s assessment of damages.

In refusing this evidence in the court noted that counsel would not provide “a straight answer” about whether they had instructions from the Defendant directly to call such potentially damaging evidence (as opposed to the Defendant’s insurer).

In refusing to allow the evidence in Mr. Justice Saunders provided the following reasons:

[11]         If the defendants were to tender evidence in this proceeding of the plaintiff having been trafficking in drugs along with the defendant Ms. Bowie, I would, in the first instance, have expected that evidence to come from Ms. Bowie. Ms. Bowie’s name is not on the list of defence witnesses. The natural inference that arises from the defence’s decision not to call Ms. Bowie is an adverse one: that she does not support Cst. Tumbas’ evidence. Had Ms. Bowie testified to that effect, counsel could not call evidence to the contrary, as that would impeach their own client. I do not see how the defence should be entitled to avoid that result, simply through the expediency of not calling Ms. Bowie’s testimony. A party may not do indirectly that which it is prohibited from doing directly.

[12]         This is not just an evidentiary issue. It is an ethical one as well.

[13]         In the eyes of the court, it is Ms. Bowie, and not her insurer, who is defence counsel’s client. There have been references made to insurance in this case – for example, references by the quantum experts who have been called as to ICBC’s involvement in approving certain expenses in regards to Mr. Kirilenko’s rehabilitation. Ms. Bowie’s liability insurer, if it is ICBC, would of course have the exclusive right to conduct the action and instruct counsel under s. 74.1 of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83. However, even if that were the case, I would hesitate to allow defence counsel, on the insurer’s instructions, to tender evidence implicating a defendant insured in criminal conduct without that defendant having been given explicit notice and the opportunity to consult counsel as to her rights, and possibly to be heard on that point.

[14]         To put the matter more simply, in attempting to advance evidence possibly detrimental to the interests of Ms. Bowie, defence counsel would appear to be potentially in a conflict, acting in favour of one client to the detriment of another. I asked counsel directly whether they had instructions from Ms. Bowie that would permit them to tender evidence implicating her in criminal activity. I did not get a straight answer. The existence of any such conflict would have to be ruled out or resolved before this evidence could be admitted, or before Cst. Tumbas could be called.

[36]         I find nothing in the circumstances of this case justifies an order that Cst. Tumbas be allowed to testify and he will not be called as a witness.

Legal expenses insurance assists with access to justice

Written By Michael McKiernan | Law Times

The legal profession should renew its focus on legal expenses insurance as the product slowly but steadily gains traction in Canada, says the former head of the Canadian Bar Association’s access to justice committee.

John Sims headed the committee in late 2013 when the CBA announced its aim to have 75 per cent of middle-income Canadians covered by legal insurance by 2030. The ambitious target was unveiled in the committee’s “Reaching Equal Justice Report: An Invitation to Envision and Act,” which noted the popularity of the product in jurisdictions outside of North America.

Legal expense insurance policyholders, which include businesses and individuals, receive coverage for some or all of the costs associated with certain legal situations. The report said that around 40 per cent of Europeans had some sort of coverage, including virtually all households in Sweden, where carriage was made mandatory in 1997 to offset the impact of falling legal aid funding.

“In principle, it makes a lot of sense. It’s not a panacea, but it can bring access to justice to a certain group that wouldn’t otherwise be able to meet their legal needs,” says Ottawa-based Sims, a former deputy minister of justice and deputy attorney general of Canada.

“I think it may be time for us to come back and have a fresh look,” he adds, noting that the concept has yet to hit the mainstream in this country.

At the time of the CBA report, estimates put the total Canadian market for legal expenses insurance at around $11 million to $12 million in annual premiums, with the bulk of that amount paid in Quebec, where the Barreau du Quebec had previously spent $2 million in its drive to promote the idea to consumers.

“That was a massive and very expensive campaign by the Barreau, but even after that, the take-up was still only around 10 per cent of Quebecers,” Sims says.

Kevin Le Messurier-Girling, president of legal expenses insurance company Sterlon Underwriting Managers, says the Quebec bar set the gold standard in terms of promotion of the industry.

“There’s plenty more the legal profession can do. Outside Quebec, law societies have done some things to raise awareness, but they’ve never advanced in the same way, which I think was a huge mistake,” he says.

“I always thought lawyers should be doing more, because the end result is a client who walks through their door with money to spend on a legitimate case.”

Despite that, Le Messurier-Girling says the industry is finally primed to burst into public consciousness.

“In the last year, we have seen explosive growth. Insurance brokers and [managing general agents] are really embracing and understanding it, so it’s increasingly on everyone’s radar,” he says.

Kent Pitkin, vice-president at insurance wholesalers April Canada, says the market has grown significantly since 2013 to more than $20 million in annual premiums but that it is still not reaching its potential.

He says a lot of his job involves educating potential customers about the idea, since much of the public remains initially skeptical about this type of insurance.

“They think they won’t need it,” Pitkin says. “But once they understand what they’re getting for their money, it’s a no-brainer.”

One group that doesn’t need a hard sell on the benefits of the product, according to Pitkin, are those who have had a legal problem in the past.

“Their eyes are opened to its potential, because they know how much a lawyer costs per hour and what you can spend on a court case. So it becomes quite apparent to them what a good deal they are getting for an extra few hundred dollars of premium,” he says.

“Our society is becoming more litigious, and I think that’s going to help more people grasp the value of legal expenses insurance.”

Julie Macfarlane, a professor at the University of Windsor’s faculty of law who runs the National Self-Represented Litigants Project, agrees that legal expenses insurance would be a good option for the increasing number of Canadians who earn too much to qualify for legal aid but still can’t afford counsel.

“People in the legal profession understand very well that legal problems can come at you from nowhere, but if you’re outside the system, you think it’s not going to happen to you,” she says.

In addition, she says, the poor reputation of lawyers among laypeople doesn’t help matters.

“There’s a really widespread mistrust of lawyers. Almost everyone has heard a story about someone who went to a lawyer with a problem, thinking it would cost them $1,000 to solve, and they come out of it with a $30,000 bill,” she says. “When I run this past people, they always ask why they would want to buy a policy that will give lawyers more money. In their view, it would be like buying hurricane insurance if you thought all the builders in your neighbourhood were corrupt, which is unfortunate, because it has lots of potential.”

Newfoundlanders and Labradorians Deserve Better Auto Insurance

 It has been 14 years since a review of the auto insurance system was held in Newfoundland and Labrador. It is long overdue. Other provinces have found a balance for claims payouts, sustainable premium amounts and the ability to help accident victims better quickly. It’s about time Newfoundland and Labrador joined them.

We need to fix the current system. It now costs drivers in this province more in premiums than their counterparts pay elsewhere in Atlantic Canada. In fact, on average, premiums are 40% higher here. Drivers in this province are unhappy with their high premiums, their limited choice and the presence of uninsured drivers on the road.

The provincial government is listening. By undertaking a review of the auto system, the government will consider how to encourage more insurers to compete in the marketplace and offer more choice and lower prices to Newfoundlanders and Labradorians.

NL’s Public Utility Board (PUB) is also listening. They will be seeking public input. If you have an opinion on what is wrong with the auto insurance system, or if you have ideas on how to fix it, we would like to hear from you:

If you require more information, IBC spokespeople are available to discuss the details in this media release.

SOURCE Insurance Bureau of Canada

Organization Profile

Court orders PayPal to give business account details to CRA

Business customers who used service between 2014 and last Friday are affected

By Pete Evans, CBC News

The Federal Court of Canada has ordered U.S.-based PayPal to hand over details about its business account customers to Canadian tax authorities.

The court order, obtained by the Canada Revenue Agency, forces the U.S.-based payment processing firm to release information about Canadians with PayPal business accounts who processed transactions between the start of 2014 and last Friday.

PayPal must hand over the names, dates of birth, contact information and — in some cases — social insurance numbers of any business account holders in Canada. The court order was issued last Friday, and the company has until Dec. 25 to comply. PayPal says it has already contacted affected customers about the order, but has not yet handed over the data.

The company has millions of Canadian customers. The majority have personal accounts, which are unaffected by the court order, the company told CBC News in a statement.

In the U.S., PayPal already submits information on any customers who either processed $20,000 US over the network, or made more than 200 transactions in a given year, to that country’s tax authorities. But the company hasn’t been obligated to do the same in Canada.

PayPal also notes: “This is a one-time disclosure of information to the CRA for Canadian PayPal Business Account holders that sent or received a payment between 2014 and 2017. This is not an ongoing request for information.”

Hamilton tax lawyer Craig Burley said in an interview that the court order is a watershed moment in Canadian tax circles.

“They went on a fishing expedition,” he said. It’s common for tax authorities to request information on individual tax filers under investigation, “but this is different,” Burley said. “This is: ‘give us all your customers.'”

By going after what’s known as “unnamed persons” through the courts, the tax agency is taking a much wider comb in trying to find unreported taxable income

“This will almost certainly prove to be the largest CRA information dump that they have ever gotten with this method,” Burley said. “Anyone who has not been fully disclosing income has a real problem here.”

In a statement to CBC News, the CRA said the move is part of the tax agency’s ongoing crackdown against the underground economy.

“The information obtained through the unnamed persons requirement will allow the CRA to ensure that these corporations comply with their tax obligations under the Income Tax Act,” the CRA said. “The CRA has … considerably stepped up efforts to identify individuals and businesses that do not file tax returns and to settle their files.”

Jonathan Farrar, an associate accounting professor at the Ted Rogers School of Management at Ryerson University in Toronto, says it’s the first time he can recall the CRA going after unreported tax income in such a major and comprehensive way.

“It’s a more aggressive approach,” he said in an interview. “It’s a big net, and they’re saying, ‘Let’s see who we can catch here.'”



Lawyer seeks stay in fraud case against former SNC executive

One of the accused in an alleged fraud case involving former SNC-Lavalin executives in connection with a $1.3-billion contract for a Montreal superhospital is seeking a stay of proceedings.

Yohann Elbaz’s lawyer is in court today, arguing his client has had to wait too long for his trial.

Walid Hijazi argues that, even after factoring in defence-related delays, Elbaz has waited longer than he should have since his April 2013 arrest.

 In a 2016 ruling, the Supreme Court set specific deadlines for cases to reach trial.

Elbaz is one of five people who remain charged in the alleged $22.5-million fraud case, including three former SNC-Lavalin executives and Elbaz’s brother, a former McGill University Health Centre executive.

 There is a publication ban on the evidence in the case.

#RememberRoadVictims: November 15, 2017 – National Day of Remembrance for Road Crash Victims

On average, five people die on Canada’s roads each day.* Wednesday, November 15 is the National Day of Remembrance for Road Crash Victims in Canada. Each year in Canada, over 1,800 people are killed and nearly 162,000 are injured (over 10,200 seriously).*


  • The prevalence of drug driving is now rivaling alcohol impaired driving
  • Distracted driving is a growing safety concern
  • High risk factors that can contribute to collisions are all preventable. They include:
    • Driving impaired: alcohol, drugs
    • Speeding and/or aggressive driving
    • Driver distraction (e.g.: texting, cell phone use) and/or fatigue
    • Failure to wear a seat belt

Road crashes impact everyone. Victims, families and friends suffer the losses first hand, but so do entire communities. On this day, communities across Canada are joining with their citizens, road safety stakeholders, enforcement officials and support groups in remembering those lost, and to recognize that ‘safe driving saves lives.’

Since 2007, the third Wednesday of November has been set aside for Canadians to remember those who have lost their lives or been seriously injured on Canadian roads.

PSA → Moments Matter

For more on the day, visit

*Source: Transport Canada (2017).  Canadian Motor Vehicle Traffic Collision Statistics 2015. DISCLAIMER: The number of yearly fatalities on Canada’s roads and highways fluctuates from year to year. It is based on 1,858 fatalities and 161,902 injuries in 2015.

The Canadian Council of Motor Transport Administrators (CCMTA)
The Canadian Council of Motor Transport Administrators (CCMTA) is an incorporated non-profit organization in Canada that coordinates all matters dealing with the administration, regulation and control of motor vehicle transportation and highway safety. Membership includes representation from provincial and territorial governments as well as the federal government of


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