ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Court Tells Lawyer to “Focus” Their Questioning Instead of Extending Discovery Time

May 28th, 2016

The BC Supreme Court Rules, which used to be open ended with respect to examinations for discovery, now have time limits in place with the Court retaining discretion to extend these limits in appropriate circumstances.

Unreported reasons for judgement were recently released considering and denying such an application with the Court suggesting counsel “focus” their remaining time appropriately.

In the recent case (Ross v. Casimong) the Plaintiff was injured in a 2009  collision and sued for damages.  The claim was prosecuted in the usual course (outside of fast track) with the present Rules allowing 7 hours of discovery.  The Plaintiff was examined twice with approximately 44 minutes of the allotted 7 hours remaining.  Defence counsel brought an application seeking a further discovery and allowing up to two hours to finish the job.  The Court dismissed the application noting a focused discovery could canvass what was needed in the remaining time.  In dismissing the application Master Dick provided the following reasons:

Master Dick Reasons for Judgement


$35,000 Non-Pecuniary Damages for “Temporary Aggravation of Pre-Existing Conditions”

May 27th, 2016

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Regisry, assessing damages for the temporary aggravation of a pre-existing condition following a vehicle collision.

In the recent case (Vintila v. Kirkwood) the Plaintiff “suffered from long-term and disabling chronic pain and depression” although she was enjoying improvement in this condition for 16 months until she was involved in a 2011 rear-end collision caused by the Defendant.  The collision aggravated her pre-existing injuries and set back the progress she enjoyed in the months prior to the collision.

In assessing non-pecuniary damages at $35,000 Mr. Justice Bernard provided the following reasons:

42]         I am in agreement with the foregoing submission. At the time of the accident, Ms. Vintila was significantly physically compromised as a result of severe and long-term chronic pain that had rendered her completely disabled from work and eligible for CPP disability benefits since 2005, and for similar private insurance benefits since 2002. While Ms. Vintila enjoyed some improvement in the management of her chronic pain in the MonaVie period, there is no evidence or suggestion that her underlying chronic and debilitating conditions had resolved. Ms. Vintila became slightly more physically active and inclined to attempt some physical activities previously eschewed; she was, nevertheless, always in the shadow of her chronic and disabling conditions, wary of flare-ups, and unable to cease collecting of disability benefits. ..

[46]         In light of the foregoing, I find that Ms. Vintila is a crumbling skull plaintiff. The evidence that Ms. Vintila’s pre-existing conditions were manifest and disabling at the time of the accident is convincing; moreover, the evidence is clear that her conditions were severe, chronic, long-term, and disabling from work. A relatively short pre-accident period of improvement in her pain symptoms is, in all the circumstances, insufficient to categorize Ms. Vintila as a “thin-skulled” plaintiff…

[53]         In the case at bar, the defendants’ negligence brought Ms. Vintila’s temporary improvement in her chronic pain symptomology to an abrupt and disheartening end. Ms. Vintila suffered from pre-existing chronic, long-term, deteriorating conditions that had almost completely disabled her in the past and were destined to do so in the future; nonetheless, at the time of accident she was experiencing a period of some relief from very debilitating pain. This window of respite was closed by the accident, and the evidence suggests that it is most unlikely to be re-opened. The pain from the aggravation of Ms. Vintila’s pre-existing conditions caused her to return to taking narcotic medications and to cease activities that improved both her physical and mental well-being and her overall enjoyment of life.

[54]          Given Ms. Vintila’s age, physicality, history, and rather grim long-term prognoses, I am satisfied that it was most unlikely that the aforementioned window would have been open for very long. In one sense, this accentuates the degree of loss to Ms. Vintila. The relief she lost was precious because it was most unlikely to endure for many years. In another sense, however, it necessarily limits the award for non-pecuniary losses.

[55]         Having regard for the factors in Stapley v.Hejslet, supra, the defendant’s negligence temporarily aggravated Ms. Vintila’s pre-existing conditions, increased her pain levels, and marked the end of Ms. Vintila’s relief from depression and the enjoyment she found in some social interaction, in performing simple household tasks, in interactions with her sons, and in making gift baskets. Ms. Vintila lost a sense of optimism she had for her future.

[56]         Of the two cases cited by ICBC, I am satisfied that Johal is much more similar to the case at bar. While each case and plaintiff is unique, Johal offers useful guidance in the assessment of a fitting award for Ms. Vintila’s non-pecuniary losses, which I assess at $35,000.


Double Costs Ordered For Unreasonable Response to “Notice to Admit”

May 26th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry finding defendants at fault for a vehicle collision and further ordering double costs to be paid following an ‘unreasonable’ refusal to admit facts set out in a notice to admit.

In today’s case (Ceperkovic v. MacDonald) the Defendants were sued for a three vehicle collision that they were ultimately found liable for.  Prior to trial they were served with a Notice to Admit seeking admission of various facts regarding the circumstances of the crash.  The Defendants did not admit all of these facts requiring ultimate proof at trial.

In finding the refusal was unreasonable and ordering double costs Madam Justice Dillon set out the following test to be utilized in these circumstances along with the following reasons:

[38]         In summary, the failure to admit the truth of a fact may be unreasonable within the meaning of Rule 7-7(4) if:

(a)      the truth of the fact is subsequently proved;

(b)      the fact was relevant to a material issue in the case;

(c)      the fact was not subject to privilege;

(d)      the notice to admit was not otherwise improper;

(e)      the notice to admit was reasonably capable of evaluation within the time required for response; and

(f)       the refusing party had no reasonable grounds for believing that it would prevail on the matter.

[43]         While the cost consequences of an unreasonable failure to admit are usually confined to the costs of proving the truth of facts or the authenticity of documents, the power conferred by Rule 7-7(4) to penalize a party by awarding additional costs or depriving a party of costs “as the court considers appropriate” suggests that in an appropriate case the court could go further. At the least, it is not outside of contemplation that if the entire trial could have been avoided had reasonable admissions been made (for example, if the originating party could have applied for judgment on admissions under Rule 7-7(6)), the party who unreasonably failed to admit the facts could be penalized by an award of additional costs for all steps taken following delivery of the notice to admit.

[44]         Here, the plaintiff bus driver would not have had to lead any evidence and would not have had to cross-examine other parties or witnesses if the facts had not been unreasonably denied. Other than perhaps being called as a witness in the Ceperkovic action, Patriquin would not have had to appear. An award of double costs against the defendants, MacDonald and Janet MacDonald, for trial preparation, attendance at trial and written argument and an award of ordinary costs for time spent in preparing Patriquin for testimony is very reasonable. The plaintiff, Patriquin, is awarded those costs pursuant to Rule 7-7(4).


Expert Witness Plagiarism Concerns Lead to Strong Criticism of Medico-Legal Report

May 20th, 2016

In my ongoing efforts to highlight judicial criticism of expert witnesses who stray into advocacy, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, excluding an expert report for numerous reasons including concerns about plagiarism.

In today’s case (Anderson v. Pieters) the defence objected to the admissibility of a report generated by the Plaintiff’s physician on numerous grounds.  The Court excluded the report finding ” I would not qualify Dr. Sank as an expert capable of offering the opinion evidence tendered in the April Report.”.

The Court went on to note a far more serious concern, namely that the physician “acknowledged in his direct testimony that he had lifted passages from the Steilen Article, copying them into his report without attribution“.

The physician explained this was inadvertent but the Court did not believe this noting “I do not accept Dr. Sank’s explanation as to his failure to credit the article having been through pure inadvertence“. In ruling the report was inadmissible for this transgression Mr. Justice Saunders provided the following reasons:

[57]         Lastly, Dr. Sank’s use of the Steilen Article raises very serious concerns as to bias and as to whether Dr. Sank has in fact fulfilled his duty to the court to provide an independent opinion. The concerns arise out of the failure to acknowledge his source material, and out of what he chose to copy, and what he chose to leave out.

[58]         Regarding the copying of the Steilen Article, I would say first that I do not accept Dr. Sank’s explanation as to his failure to credit the article having been through pure inadvertence. As can be seen from the excerpts in the Appendix to these Reasons, not only did he add a few words to the passages he copied, he included two of the citations in the Steilen Article and renumbered them (renumbering notes 110 and 111 as his own notes 1 and 2), effectively representing those citations as the product of his own research. It is inconceivable that he was not conscious of the fact that his April Report was lacking necessary citation of the Steilen Article, and the fact that he was misrepresenting large portions of the narrative as his own work product. This was plagiarism, pure and simple. The plagiarism, and Dr. Sank’s failure to acknowledge it as such, were dishonest, and severely impact his credibility.

[59]         The offence is not mitigated by the fact that the segments copied by Dr. Sank might be viewed as uncontroversial descriptions of basic human anatomy. The issue here is not whether the science is accurately stated. The issue is that Dr. Sank, who in fact had so little understanding of the neuro-vascular anatomy that he had to undertake research, is purporting to speak about the issues with authority, through almost entirely utilizing words, phrases, and a manner of expression that are not his own, without disclosure. He is misrepresenting his grasp of the material, and is thereby substantially exaggerating his expertise.

[60]         The final concern is Dr. Sank’s failure to acknowledge the fundamentally speculative nature of his proposed diagnosis. Given the tentative nature of the propositions put forward in the Steilen Article, there is clearly no basis for him offering his opinion as being “highly probable”. In this regard his report stands in contrast to the expert opinion evidence of the otologist Dr. Longridge, who, in his August 19, 2015 report, explicitly acknowledges the lack of support for his opinion in the medical literature. In failing to express his opinion in the guarded, careful manner used by the authors of the Steilen Article, Dr. Sank was not forthright. He in fact substantially exaggerated the strength of his opinion, apparently at least in part on the basis of a misapprehension as to the need to present a “black or white” opinion. Given his relationship to the plaintiff as her treating physician, this exaggeration of his opinion’s strength gives rise to significant concern as to bias.

[61]         In submissions on the voir dire, the plaintiff’s counsel argued that Dr. Sank did exactly what we want an expert to do: equipped with information from his patient and from other specialists, he undertook research, and as a medical practitioner he reached a medical diagnosis. I find Dr. Sank’s report markedly deficient, and I find him to have fallen short of the standard of independence that is required of an expert witness.

[62]         On any second-stage assessment of the April Report, the foregoing issues would reveal the report to have no substantial benefit, weighing strongly against its admission. On the “costs” side of the ledger, the concerns canvassed in White Burgess are present. It is apparent that admitting even a sanitized version of the report deleting reference to the inadmissible opinions of the chiropractor would risk the jury potentially being exposed to inadmissible evidence through inadvertence in the course of his cross-examination, given the extent to which Dr. Sank relied upon it. The defence would be obliged to call experts of its own in reply to Dr. Sank, lengthening the trial and imposing a further burden on the jury. Though the defence would now be relatively well-positioned to attempt to undermine Dr. Sank through cross-examination, there would remain the risk of the fact-finding process being distorted by evidence of little real value.

[63]         These concerns as to admissibility are not of the sort ideally addressed through instructions to the jury. The concerns are so broad that the necessary instruction to the jury would be something tantamount to a direction that they give the April Report no, or at best, very little weight. There is, practically speaking, nothing to be gained by burdening the jury with it.

[64]         Even absent my finding as to Dr. Sank not being sufficiently qualified under the first stage of the admissibility test, I would for these reasons rule against admission of the April Report.

Mr. Justice Saunders set out “some of the passages lifted from the article – in the column to the left – with the comparable passages from the April Report set out alongside for comparison, to the right. Original wording inserted by Dr. Sank is indicated in bold face.” in an Appendix to his reasons for judgment which are worth reviewing.

 


BC Court of Appeal – ICBC Disability Benefits Can Be Revived Beyond 104 Week Mark

May 16th, 2016

In late 2014 the BC Supreme Court rules that ICBC wage loss benefits can be ‘revived’ if a collision related injury which was initially disabling retriggers disability beyond the 104 week mark.  ICBC appealed but in reasons for judgement released today the BC Court of Appeal upheld the trial court’s reasoning.

In today’s case (Symons v. ICBC) the Plaintiff was involved in a serious collision in 2008.  She was rendered initially disabled and ICBC paid her TTD benefits until her ‘creditably stoic and determined‘ return tow work later that year.  The Plaintiff’s return was short lived as progressive symptoms eventually led to a series of surgeries and her symptoms continued to disable her at the time of trial.

The Plaintiff applied for disability benefits under s. 86 of the Insurance (Vehicle) Regulation but ICBC denied these arguing that unless TTD’s were being actively paid at the 104 week mark (a period when this plaintiff was back at work) that the legislation does not allow the ongoing payment of disability benefits. At trial Mr. Justice Baird ordered ICBC to reinstate the benefits.  ICBC appealed but the trial judgment was upheld. In finding ICBC wage loss benefits can be revived the BC Court of Appeal provided the following reasons:

[23]         ICBC argues that that was a case where the plaintiff was already entitled to s. 86 benefits when they were stopped, and then reinstated. I think this cuts too fine a line. Brewer says a person receiving s. 80 benefits can be reinstated if he later becomes disabled from the original injury and Halbauer says a person receiving s. 86 benefits is entitled to have them reinstated if he or she is subsequently disabled because of the original injury. In my view, if the sections are read, as ICBC suggests, to mean that only a person who is disabled “at” the 104-week mark can obtain benefits after that period, that interpretation does not accord with the context and object of the legislation, nor within the reasoning of Halbauer.

[24]         Reading the words of this legislative scheme in its entire context, harmoniously with the whole of the scheme and purpose, leads to the conclusion that if a person who was disabled as a result of an accident returns to work, and then, because of setbacks or otherwise, is again totally disabled due to the accident, she qualifies for benefits under s. 86, even if she was not disabled on the “magic” day at the end of 104 weeks. This interpretation is consistent with the object of the Act—to provide no-fault benefits for persons injured in motor vehicle accidents.

[25]         In my opinion, the decisions in Rashella and Andrews have been overtaken by Halbauer and Charlton.

[26]         Thus, the trial judge did not err in his conclusion that Ms. Symons was entitled to be reinstated for disability benefits under s. 86.

[27]         I would dismiss the appeal.


Court Questions Whether “WCB Defence” Applies to Indivisible Injuries

May 16th, 2016

Last year Mr. Justice Burnyeat reasoned, in Pinch v. Hofstee, that a Plaintiff’s damages for indivisible injuries must be reduced to the extent that one of the events causing/contributing to the injury arose from a matter where tort litigation is barred by the Workers Compensation Act.

Last week ICBC asked a Court to uphold this reasoning in a separate lawsuit but Mr. Justice Kent declined noting the Pinch ruling was “highly debatable“.

In last week’s case (Kallstrom v. Yip) the Plaintiff was involved in a total of 6 collisions which gave rise to indivisible injuries of chronic pain and depression.  While dealing with the consequences of her injuries the Plaintiff also made a claim with WorksafeBC and received some compensation.  The Defendants argued that damages must be reduced to the extent of the workplace incident’s contribution to the Plaintiff’s condition.  Mr. Justice Kent disagreed and noted as follows:

[371]     I do not agree that any reduction in damages is required.  There are several reasons for this.

[372]     First, this is not a defence that has been formally pleaded in any of the actions.  The facts relating to, and the legal basis for, such a technical and unique defence are required to be pleaded and this has not been done.

[373]     In any event, Pinch neither applies to nor governs the present claim.  It was the subject matter of an appeal and cross-appeal, but the case was settled and thus no definitive ruling on this interesting (and highly debatable) point of law has yet been made by the Court of Appeal.  It must be noted that other decisions of this Court have treated a subsequent workplace accident aggravating a pre-existing injury as a situation of indivisible injury for which the defendant in the first accident remains 100% liable:  see e.g., Kaleta v. MacDougall, 2011 BCSC 1259.

[374]     Further, I do not agree that the employer’s conduct is properly labelled as tortious in this case.  It is not necessarily a tort for an employer to be difficult and demanding.  Similarly, the distraught actions of a mother witnessing a near-death incident involving her child may also not amount to an actionable tort, particularly where the result is mental distress without accompanying physical injury. Pinch involved negligence on the part of the Workers Compensation Act-immunized worker.  Further, Kaleta involved an on-the-job injury while lifting heavy product, i.e. no third-party negligence.

[375]     In the result, I hold that the “WCB defence” does not apply and no reduction in damages is required on that account.


Ikea’s “Sophisticated” Washroom Cleaning Policies Derail Slip and Fall Lawsuit

May 12th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a slip and fall lawsuit against Ikea.

In today’s case (Dudas v. Ikea Ltd.) the Plaintiff slipped and fell in the washroom and speculated the cause of her fall was water left behind by Ikea’s janitorial contractor.  The Plaintiff sued both Ikea and the janitorial contractor.

Mr. Justice Weatherill dismissed the lawsuit finding the plaintiff’s speculation as to the cause of her fall was insufficient to prove liability but regardless that the washroom cleaning policies, which were followed, were “sophisticated, thorough and detailed” and these were sufficient in defeating the Plaintiff’s allegations of negligence.  In dismissing the claim the Court provided the following reasons:

42]         However, even if the plaintiff had proven on a balance of probabilities that she slipped on water left on the floor by Ms. Kaur while the plaintiff was in the washroom stall, she also has the onus of establishing on the balance of probabilities that she did so as a result of SBS, as an occupier, failing to meet the reasonableness standard required of it under s. 3(1) of the Act.  In my view, the plaintiff failed to do so.

[43]         Mr. Hay, SBS’s Chief Executive Officer, gave detailed evidence regarding the systems it had in place at Ikea for the provision of its maintenance and janitorial services and the training of its staff.  Those systems, policies and procedures are by any measure sophisticated, thorough and detailed.  It is hard to imagine reasonable steps that could have been implemented to improve them.

[44]         The plaintiff submits that it is apparent from the SBS Incident report that Ms. Kaur, the cleaner in question, knew that someone was in the washroom stall while she was mopping the floor, and that it was unreasonable for SBS not to have an established protocol in place for the cleaner to verbally alert patrons who were using washroom stalls to the fact that the floor outside of the stall was being mopped. 

[45]         Mr. Hay agreed that there is no such protocol in place.  He testified that, in such situations, SBS relies on the noise generated by the cleaners during the cleaning process. 

[46]         The plaintiff submits that the failure to have such a protocol was a breach of SBS’s obligations under s. 3 of the Act.  I disagree.  There is no evidence that such a policy exists anywhere in the industry.  Moreover, it raises policy issues relating not only to privacy, but also equality considerations in terms of the potential for hearing persons being preferred over non-hearing persons. 

[47]         This incident took place in a ladies washroom.  The potential for some dampness on the floor ought reasonably to have been expected by anyone using it.  The mere presence of some water on the floor does not constitute an objectively unreasonable risk of harm: Zary v. Canada Mortgage and Housing Corp., 2015 BCSC 1145 at para. 57.


$50,000 Non-Pecuniary Assessment for 7 Year Lingering Soft Tissue Injuries

May 5th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries.

In today’s case (Gordon v. Ahn) the Plaintiff was involved in a 2009 collision caused by the Defendant.  The Plaintiff suffered soft tissue injuries to her low back.  Some symptoms persisted to the time of trial and were expected to linger to “ for some period of time into the future“.

In assessing non-pecuniary damages at $50,000 Mr. Justice Bowden provided the following reasons:

63]         There is no dispute that the plaintiff suffered physical injuries from the motor vehicle accident in August 2009. The defendants accept that the plaintiff suffered soft tissue injury to her neck, back and shoulder areas. The defendants also accept that the plaintiff suffered a disc herniation which came on about one month after the accident but appeared to improve clinically by January 2010…

[82]         While I find that the plaintiff’s physical injuries had largely resolved by the summer of 2011, I accept Dr. Badii’s opinion that she will experience some degree of lower back pain for some period of time into the future. However, it does not appear that the lower back pain will limit her functioning in a material way either at work or recreationally…

[111]     In light of my conclusions regarding the plaintiff’s injuries, including their severity, the resolution of the most severe injuries, the impact of her injuries on her lifestyle and general well-being, I have concluded than an award of $50,000 is reasonable.

[112]     In arriving at that amount I have considered that the plaintiff failed in some respects to mitigate her damages. She discontinued physiotherapy and did little by way of an exercise program as recommended by her treating physicians. She also did not take anti-depressants as recommended and increased her use of marihuana. However, I do accept that the plaintiff did take some steps that may have contributed to her substantial recovery in 2011.


Peeping Tom Ordered to Pay $93,850 For Recording Step-Daughter

May 4th, 2016

Reasons for judgement were released today by the BC Supreme Court, Duncan Registry, ordering a peeping tom Defendant to pay $93,850 in damages for recording his step-daughter while she was showering and otherwise undressed.

In today’s case (TKL v. TMP) the Court was presented with the following statement of facts –

[16]         On four occasions in the first half of 2011, the defendant surreptitiously video-recorded the plaintiff while she was in the shower and for a period of time shortly after she left the shower. The plaintiff was 20-years-old the first time this happened; on the latter three occasions she was 21. In July 2011, the plaintiff came across the videos on the defendant’s camera. The matter was reported to the RCMP.

[17]         The agreed statement of facts referenced earlier includes a recitation of what was depicted on the video recordings. The following summary of the four recordings is drawn from the agreed statement of facts:

13 January 2011

The plaintiff is seen exiting the bathroom door and entering into her bedroom. She is wearing a towel wrapped around her body and has a towel wrapped around her head. She closes her bedroom door and walks around in her bedroom. She gathers her clothes and takes off her towels. Her entire body, including her buttocks, genital area and breasts are captured on the video clip and in the reflection of mirrors that are against her bedroom wall. She is seen bending over to pull up her underwear.

8 May 2011

The plaintiff is seen entering into the stand-up shower with a clear glass door. She is completely naked and the video-recording captures images of her vagina, breasts and buttocks. It also shows her masturbating in the shower for a couple of minutes. She is next seen shaving and trimming her pubic hair, and shaving her armpits and legs. She then goes back to masturbating and eventually sits on the shower stall floor. She exits the shower stall and dries off.

22 May 2011

The defendant is holding the camera, pointed at the shower through a gap in the bathroom door frame. He adjusts the angle and zooms in at various times, capturing images of the plaintiff’s vagina, buttocks and breasts. He zooms in on her nipples, zooms out and then re-zooms on her face. She masturbates. After a few minutes of masturbating she washes and conditions her hair, with her arms extended over her shoulders. She is seen getting out of the shower, and images of her breasts, buttocks and vagina are clearly captured.

12 June 2011

The defendant is holding the camera, pointed at the shower through a gap in the bathroom door frame. The plaintiff can be seen in the shower completely naked. She is captured exiting the shower and her breasts and vagina are within view.

In finding these actions breached BC’s Privacy Act and assessing non-pecuniary damages at $85,000 Mr. Justice Thompson provided the following reasons:

20]         By spying on and video-recording the plaintiff as described above, the defendant committed disturbing violations of the plaintiff’s personal privacy. Subsection 1(1) of the Privacy Act provides that it is a tort for a person, wilfully and without a claim of right, to violate the privacy of another. Little analysis is necessary on the facts of this case to reach the conclusion that the defendant has committed this statutory tort. The defendant acted wilfully. The plaintiff was entitled to the highest degree of privacy when showering with the bathroom door closed, and changing her clothes in her bedroom with the door closed. The nature and occasions of the defendant’s conduct make it apparent that his actions violated the plaintiff’s privacy. The defendant’s liability for the statutory tort is beyond question…

[52]         My sense is that the plaintiff in the case at bar has suffered a greater degree of pain, disability, emotional suffering, impairment of family and social relationships, and loss of lifestyle than the plaintiffs in the Malcolm and L.A.M. cases. I conclude that the quantum of compensatory damages awarded in those cases would be wholly inadequate compensation in the case at bar. I award $85,000 for general damages, of which $25,000 is allotted to take account of the aggravated features of the case — I agree with the plaintiff that the damages ought to be significantly increased in response to the defendant’s thoroughly undignified and humiliating actions.

 


“Costs Awards Should Not Punish Plaintiffs From Taking Forward Meritorious Claims”

May 3rd, 2016

In a demonstration of the judicial flexibility that exists under the BC Supreme Court Rules when assessing costs consequences following trials with formal offers in place, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff full costs despite failing to beat a Defense formal settlement offer.

In today’s case (Anderson v. Kozniuk) the Plaintiff was involved in a pedestrian/vehicle collision.  Both parties were found partially at fault.  The Plaintiff suffered various physical injuries but also advanced a brain injury claim which was not accepted at trial.  Prior to trial ICBC issued a formal settlement offer of $125,000.  At trial the Plaintiff’s damages were assessed at $78,897 less 30% to reflect the plaintiff’s contributory negligence.

ICBC sought to strip the Plaintiff of post offer costs as a result but the Court exercised its discretion to award the Plaintiff full costs.  The Court was influenced by the fact that the costs of the prosecution were significant and an award of costs to ICBC would strip the Plaintiff of the totality of his damages.  In reaching this decision Madam Justice Sharma provided the following reasons:

[29]         The plaintiff submitted that the award of costs in this case exceeds the total amount of the judgment. In his written submissions, the plaintiff states that “[i]f the court orders that the Plaintiff is to pay costs to ICBC, it means that Mr. Anderson must pay the entire judgment award to ICBC, instead of spending this money on his health condition and prognosis.” I agree that is a significant factor if the court is to be mindful that costs awards should not punish plaintiffs from taking forward meritorious claims, as discussed above.

[30]         The plaintiff also says that the defendant was defended and funded by the insurer, whereas Mr. Anderson is impecunious having lost the ability to work, and previous cases have held this is a proper consideration: Smith v. Tedford, 2010 BCCA 302; Hunter v. Chandler, 2010 BCSC 1124 at paras. 23-25; Gregory v. Insurance Corporation of British Columbia, 2010 BCSC 1369 at para. 9; andMartin v. Lavigne at para. 23. I agree. Although there was no evidence before me about Mr. Anderson’s impecuniosity, I have no reason to doubt counsel’s word. Certainly at trial the evidence was consistent with counsel’s statement.

[31]         Based on these factors (and all others), the plaintiff submits it would be unfair and unreasonable that the plaintiff be ordered to pay costs to the defendant.

[32]         Finally, the plaintiff points to other factors that he says are relevant to the court’s exercise of discretion. He points out that two expert doctors did conclude that he suffered a brain injury. He also says it was not disputed that after the accident he displayed a number of characteristics consistent with having suffered a brain injury, including the fact that he had a flat affect and his behaviour around his family was different, as well as showing increased irritability, frustration and anger. The plaintiff also points out that the brain scans clearly show that he had brain lesions consistent with a brain injury. The plaintiff had increased difficulties with concentration and learning new tasks. Although I made a finding that both his alcohol consumption and anxiety had significant impacts on his life following the accident, the plaintiff suggests he should not be faulted for failing to guess that those factors would be essentially held against him when making a conclusion about whether he had a brain injury or not.

[33]         The award of costs is an exercise of the court’s discretion, guided by the legal principles identified above. This is not an exercise of counting up which factors favour which party and doing a mathematical calculation. The court must take into account all of the factors weighed against the circumstances of the case. Remembering that ultimately the result must not impose injustice or unfairness on either party, I exercise my discretion and conclude the normal rule of apportionment does not apply and therefore the plaintiff is entitled to 100% of his costs at trial. Because he has been successful on this application, I also award him the costs of this hearing.