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.

$100,000 Non-Pecuniary Assessment for Chronic Back and Neck Pain

November 26th, 2015

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for chronic neck and back pain caused by a vehicle collision.

In today’s case (Tourand v. Charette) the Plaintiff was injured in a 2009 rear end collision that the Defendant accepted responsibility for.

The Plaintiff suffered chronic neck and back pain as a result with symptoms lingering at the time of trial and expected to continue into the future.  In assessing non-pecuniary damages at $100,000 Mr. Justice Joyce provided the following reasons:

[119]     It is true that there were occasions in the past when the plaintiff experienced episodes of neck, shoulder and back pain, for which she received chiropractic treatments. Some of these episodes were associated with prior motor vehicle accidents and others appear to have been brought on by the physical activities in which she engaged, including her participation in karate. However, I am satisfied, on the whole of the evidence, that prior to the Accident the plaintiff was not experiencing the kind of chronic pain and symptomology in her neck and low back that she has experienced since the Accident in question. I am satisfied that the causal connection between her present symptomology neck and low back and the Accident has been established. In short, but for the Accident the plaintiff would not be in the physical condition that she now finds herself.

[120]     Ms. Tourand plaintiff had some pre-existing degenerative changes in her neck and low back, but I am satisfied that her current symptoms are not due simply to the progression of that degeneration. Rather they are due to either an aggravation of a pre-existing condition or to trauma that has made symptomatic that which was not previously symptomatic.

[121]     I accept that in the years before the Accident, the plaintiff was a physically active, social person, who enjoyed life and was enjoyable to live with and be around. I find on the basis of the evidence of her husband and friends that she is now a very different person. The Accident has negatively impacted her ability to enjoy physical activity and perform former household management tasks to the same extent as before. It has led to difficulty sleeping, depression and has affected her marital relationship.

[122]     On the other hand, I also find that the other life events that the plaintiff has endured since the Accident, in particular, the difficulties that her children experienced and with which she has been integrally involved, have probably contributed to the severity and prolongation of her symptoms.

[123]     Ms. Tourand is not, however, incapacitated. She can still manage most of her household chores, with moderation and careful sequencing of the tasks. There seems to be consensus among the experts that Ms. Tourand is capable of some employment, provided it does not involve heavy physical tasks and provided she is not required to either sit or stand in one position for a prolonged period of time.

[124]     I am also of the view that it is probable that the plaintiff’s physical capacity and general well-being will improve if she becomes more active, including: engaging in a program involving further physiotherapy under the direction of a kinesiologist or physiotherapist, swimming and psychotherapy to deal with the emotional affects of her symptoms. In my view, based upon a consideration of all of the evidence, it is still open to the plaintiff to accept that advice and follow that treatment path; and that, if she does so, she can expect to achieve some further reduction in her symptomology and improvement in her functioning and enjoyment of life…

[128]     Considering the nature of the chronic pain caused by the motor vehicle Accident; the poor prognosis for anything like a full recovery; the relatively young age of the plaintiff; and the effects that the symptoms have had and will likely continue to have on the quality of her life in the future, I assess non-pecuniary damages at $100,000.

Slow Moving Prosecution Plays Role in Fast Track Removal Application

November 23rd, 2015

Reasons for judgement were released today finding that a slow moving prosecution, in part, was a factor in removing a claim from Rule 15.

In today’s case (Bagri v. Bagri) the Plaintiff alleged injury as a result of two collisions, the first in 2007 and the second in 2009.   The matters were prosecuted subject to the fast track Rule (Rule 15) and the Defendants brought an application to remove the claims from this rule.

In finding that the claims were not suited for fast track prosecution, both based on the claims potential value and the likely length of trial, the Court also commented on the speed of prosecution.  In removing the cases from the fast track rule Master Scarth provided the following reasons:

[28]         There are other factors which support a finding that these actions are not fast track actions. Given that the earlier accident is from almost 8 years ago, the fast track procedures have not assisted the parties in resolving the disputes quickly or efficiently. In contrast, applying fast track procedures restricts the defendants’ right to proceed as a jury trial and caps their potential costs. While it has not been made out that the plaintiff has invoked Rule 15-1 specifically to defeat the defendants’ jury notice, it is fair to conclude that, in the circumstances, using fast track procedures would negatively impact the defendants more than it would positively assist the plaintiff or advance the purposes of Rule 15-1.

[29]         In my view, taking all these factors into account, it is fair to conclude that Rule 15-1 does not apply to these proceedings. Accordingly the application by the defendants to remove the actions from fast track is allowed.

No Negligence Found in Case of Failed Emergency Brake

November 23rd, 2015

Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, finding a motorist was not negligent for having a faulty emergency brake which led to a pedestrian collision.

In the recent case (Little v. Einarsen) the Plaintiff pedestrian was struck by an unoccupied vehicle which “rolled downhill from where it had been parked“.

He sued the vehicle owner alleging negligence.  The Court dismissed the lawsuit finding that the vehicle likely rolled because its emergency brake failed and the owner did not know, nor ought to have known, that the defect existed.  In dismissing the claim Mr. Justice Smith provided the following reasons:

[18]        The uncontradicted evidence is that Ms. Einarsen’s car rolled downhill from where it was parked while its emergency brake was engaged. The fact that the emergency brake failed to perform its principle function leads to the obvious inference that it was in some way defective. The inference is further supported by admissible business records from the repair shop that indicate the emergency brake was repaired or adjusted within days or, at most, a few weeks after the accident.

[19]        In the absence of any direct or circumstantial evidence pointing to any other cause, it must be concluded that the accident would not likely have occurred if the emergency brake had been functioning properly. Putting it in slightly different terms, the accident, on the balance of probabilities, would not have occurred but for the failure of the emergency brake to perform its intended function.

[20]        Whether Ms. Einarsen can be held at fault for that failure depends on whether it was foreseeable—whether she knew or ought to have known about a defect or inadequacy that might cause the emergency brake to fail.

[21]        An owner of a vehicle owes a duty not to use it or permit it to be used if he or she knows or ought to have known that it is defective in any way that might cause an accident. The court will find that an owner ought to have known about a defect that would have been detected by the exercise of ordinary care, caution, and skill: Dyk v. Protec Automotive Repairs Ltd., 1998 CarswellBC 3834 (S.C.) at para. 81.

[22]        In Newell v. Towns, 2008 NSSC 174, the court said at para. 175:

[175]    ….However, an owner is not liable for all consequences that may flow from an accident that happens as a result of a mechanical defect in a vehicle. Liability only occurs for those defects that went uncorrected, when either the owner knew, or should have known by the exercise of reasonable care, of their existence.

[23]        There is no evidence that the emergency brake had failed in the past or of any defect of which Ms. Einarsen knew or should have known. Arguably, the age of the car heightened Ms. Einarsen’s duty to be satisfied that all components were in good working order. I find that, by having the vehicle inspected only two months before the accident, she had done what was reasonable to comply with that duty.

[24]        There is no evidence that the mechanics who performed that inspection failed to notice or repair a problem with the emergency brake or that Ms. Einarsen had any reason to believe they had. There is no evidence of any problem with the emergency brake that became apparent between the dates of the inspection and the accident.

[25]        In short, while Mr. Little clearly suffered injuries, he has failed to meet the burden of proving that they were caused by anything Ms. Einarsen did or failed to do or by any mechanical defect she could have detected with ordinary care, caution, or skill. In view of that failure to prove liability and a resulting entitlement to damages, it is not necessary to comment upon or attempt to resolve the many issues about the nature and extent of Mr. Little’s injuries.

[26]        The action must be dismissed with costs.

Court Has “Inherent Jurisdiction” To Order Party To Produce Medical Report Addressing Their “Capability”

November 20th, 2015

Reasons for judgement were released today by the BC Court of Appeal confirming it is within the BC Supreme Court’s inherent jurisdiction for a judge to order a party to produce a medical report addressing whether that party is “capable or incapable of managing” their litigation.

Today’s case (Walker v. Manufacturers Life Insurance Company) the Plaintiff sued the Defendant alleging breach of contract.  The lawsuit had a complicated procedural history and in the course of an application a Chambers judge ordered that the lawsuit could not continue until the Plaintiff’s “doctor or psychiatrist write a report to the court and advise whether the Plaintiff is capable or incapable of managing this litigation”.

The Plaintiff appealed this order but the BC Court of Appeal upheld it finding it was in the inherent jurisdiction of the Judge to make such an order.  In reaching this conclusion the BC Court of Appeal provided the following reasons:

[34]        This, then, was the dilemma facing Weatherill J. when Ms. Walker argued that R. 20-2(14) applied to her as a “person under disability”. As I have said, he found that there was a real question as to whether she comes within this phrase. In my opinion, there is no doubt that this question had arisen and that it had to be answered before he could possibly accede to the contention made by Ms. Walker herself that a “step in default” could not have been taken against her. As Ms. Murray argued in her factum, it was entirely within the Court’s discretion to request the assistance of a current medical report addressing Ms. Walker’s capacity before the matter could proceed further. This step is required for the Court to protect its own process and thus comes within its inherent jurisdiction. Ms. Walker’s designation under the Act may be relevant, but is not determinative of the issue under Rule 20-2.

[35]        If it turns out that Ms. Walker is a “person under legal disability” within the meaning of the Rule, then a litigation guardian will have to be appointed under R. 20-2. The Rule is a “complete code” in the sense that it does not permit persons under legal disability to bring or defend proceedings in Supreme Court except through a litigation guardian.

[36]        It follows that I see no error in the chambers judge’s making the order he did.

$60,000 Non-Pecuniary Assessment For Chronic Back Injury

November 18th, 2015

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for lingering injuries caused by two vehicle collisions.

In the recent case (Ali v. Rai) the Plaintiff was involved in two collisions in 2011.  He was found faultless for both.  The collisions caused a lingering back injury which remained symptomatic at the tie of trial and the symptoms were expected.  The Court found both collisions caused the injury and it was indivisible.  In assessing non-pecuniary damages at $60,000 Madam Justice Duncan provided the following reasons:

[134]     On the whole of the evidence, I find the plaintiff suffered back and neck injuries as a result of the two accidents at issue before me along with headaches and sleep issues. I cannot find the injuries divisible as between the two accidents. The plaintiff was not fully recovered from his injuries after the First Accident when the Second Accident occurred. This is reflected in Dr. O’Connor’s opinion that the First Accident aggravated the plaintiff’s underlying condition, he was improving by the time of the Second Accident, and that accident did not cause additional injuries, simply a re-aggravation.

[135]     I find the plaintiff’s neck pain had substantially cleared up by the summer of 2011. The aggravation in 2012 which caused the pain to manifest in the right side instead of the left is unexplained and I cannot find it was as a result of the accidents. The plaintiff continues to suffer from back pain to this day. I find it limits his work and recreational activities. I will have more to say about it under the individual heads of damages…

[137]     The plaintiff is now 50 years of age. He has a chronic back injury and suffered from a neck injury for some months after the accidents in addition to headaches and disturbed sleep. The back injury continues to affects his social life. He does not do as much volunteer work as he once did. He has to sit in a chair to pray rather than join his contemporaries and use prayer mats. He cannot sit through a movie or drive long distances. He cannot referee soccer at the high level he once did and he no longer plays recreational soccer due to the impact of the accidents. His back injury has affected his mood and his wife feels it has affected their social and intimate life. The plaintiff does not contribute to work within the home as he once did, nor does he feel able to perform yard work or work that arises from the tenanted basement. Overall, the plaintiff’s back injury has permanently altered all aspects of his life…

[140]     As noted above, while I found the plaintiff’s neck condition had improved by the summer of 2011 and there was no evidence as to why it was aggravated in 2012 and transferred to the opposite side, his back injury continues to affect him. He was a formerly active, engaged and giving member of the community whose quality of life and self worth has been affected by his injury. Balancing all of the factors, I find a fair and reasonable award for non-pecuniary damages is $60,000.

BC Court of Appeal – Vicarious Liability Under the Privacy Act is an Open Question

November 17th, 2015

Today the BC Court of Appeal released reasons for judgement finding it is an open ended question whether BC’s Privacy Act allows an employer to be vicariously liable when an employee willfully violates the privacy of another.

In today’s case, (Ari v. ICBC) a proposed class action, the Plaintiff sued ICBC alleging various improprieties arising from an employee improperly accessing “the personal information of about 65 ICBC customers“.

A chambers judge dismissed all of the claims except one under BC’s Privacy Act which makes it a tort  “for a person, wilfully and without a claim of right, to violate the privacy of another.“.

ICBC argued this section does not permit them to be sued for an employees wrongdoing.  The BC Court of Appeal disagreed and found it is an open ended question of whether vicarious liability can be attached to this statutory tort and that the issue needs to be addressed through the trial process.  In allowing this claim to survive the pleadings motion the BC Court of Appeal provided the following reasons:

[25]        It is not clear that s. 1 of the Privacy Act should be interpreted as limited in the same fashion as the relevant provisions in Nelson. Section 1(1) states that “[i]t is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another”. There is no language (as there was in Nelson) that clearly limits a plaintiff to recovery of damages from the person identified in s. 1(1). While, as the chambers judge observed, vicarious liability for acts of intentional and deliberate wrongdoing has generally been rejected, it is not unheard of (see: Lewis Klar, Tort Law, 5th ed. (Toronto: Carswell, 2012) at 682). To the extent that s. 1(1) of the Privacy Act requires deliberate wrongdoing, it is not per se incompatible with vicarious liability.

[26]        Although Nelson may provide, by analogy, a basis for denying the availability of vicarious liability, I cannot conclude that the chambers judge erred in finding the appellant’s claim is on this basis, not bound to fail.

[27]        Alternatively, ICBC says that there is a policy argument which supports its position that there is no cause of action in vicarious liability. For policy reasons ICBC says, employers should not be held vicariously liable for wilful breaches of privacy under the Privacy Act.

[28]        ICBC also contends that the question before the chambers judge was whether vicarious liability should be imposed due to policy considerations. It says that the appropriate question to ask is: should liability lie against a public body for the wrongful conduct of its employee, in these circumstances? The question necessarily demands some exploration of the evidence about the connection between ICBC’s security procedures and the security lapse that occurred, as well as a weighing of the policy considerations involved. It is reasonable to conclude that a factual matrix is necessary in order to fairly address whether ICBC’s conduct materially enhanced the possibility of committing the breach of privacy, and to determine the connection between the impugned conduct and ICBC’s conduct. In other words, to clearly determine how public policy considerations affect the viability of the vicarious liability claim, some evidence is required.

[29]        ICBC submits in the further alternative that ss. 73 and 79 of the Freedom of Information and Protection of Privacy Act bar recovery for vicarious liability. Section 79 provides that the Act prevails where it conflicts with the provisions of other legislation. Section 73(a) prohibits proceedings against a public body for damages resulting from good faith disclosure or non-disclosure of all or part of a record under the Act.

[30]        As the disclosure alleged was not a good faith disclosure, s. 73 has no application to the circumstances of this case.

[31]        I am of the view that the question of vicarious liability on the facts of this case cannot be resolved on a pleadings motion. It is not plain and obvious the claim would fail. The chambers judge considered that the appellant ought to have the opportunity to develop and argue this aspect of his claim. I see no error in her conclusion.

[32]        For these reasons I would dismiss ICBC’s cross-appeal.

$60,000 Non-Pecuniary Assessment For Chronic Soft Tissue Injury With Associated Headaches

November 12th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages of $60,000 for chronic soft tissue injuries with associated headaches.

In today’s case (Hinder v. Yellow Cab Company Ltd) the Plaintiff was involved in an intersection collision.  The Defendant denied liability but was found fully at fault at trail.  The Plaintiff suffered a variety of soft tissue injuries, some of which resolved.  She continued to have neck symptoms with associated headaches at the time of trial (some five years later) which were expected to linger into the future.  In assessing non-pecuniary damages at $60,000 Madam Justice Arnold-Bailey provided the following reasons:

[140]     The Plaintiff is a young woman, age 29 at the time of the accident. While her soft tissue injuries did not appear to be severe and some resolved, she has been left with neck pain and headaches that regularly progress to become very painful and disabling, forcing her to stop whatever she is doing. The medical evidence is that even with significant medical intervention, the neck pain and cervicogenic headaches are likely to continue into the foreseeable future. Debilitating headaches occur about every two weeks. The Plaintiff is not a complainer. She is stoic, a hard worker and she carries on despite the pain. Her home life and recreational activities have been impaired to a significantly lesser degree than likely would have been the case for a less strong and stalwart person. That does not mean, however, that she does not suffer while incapacitated by the neck pain and headaches; and she clearly misses pursuing her sports activities, particularly downhill mountain-biking, with her pre-accident intensity. She has maintained her family and social relationships because of her positive attitude and how well she generally manages her chores and commitments at home and at work in the face of her neck pain and headaches…

[149]     For these reasons, I find that an award of $60,000 in non-pecuniary damages is appropriate in the present case.

BC Court of Appeal – Jury Trial OK in Case With 40 Expert Reports

November 10th, 2015

Reasons for judgement were released today by the BC Court of Appeal finding a personal injury lawsuit with 40 expert reports totaling over 700 pages was not too complex for a jury to determine.

In today’s case (Rados v. Pannu) the Plaintiff alleged serious injuries as a result of a motor vehicle collision including “a traumatic brain injury; a vestibular injury that has impaired the appellant’s balance and induced bouts of nausea, dizziness and vomiting; various musculoligamentous and other physical injuries; and, a major depressive disorder”.

The Defendants elected a jury trial and the Plaintiff objected arguing the case was ‘too complex’ and pointed to the sheer volume of competing expert evidence.  The Plaintiff pointed to many cases where discretion was exercised to strike a jury in similar cases.  In finding that judicial discretion does allow for competing results and more than ” adding up the number of experts and medical issues or the number of pages of documents or the length of trial” is needed the Court provided the following reasons:

[22]         As I turn to consider the appellant’s argument, it is useful to remember that a decision whether to strike a jury notice is not only discretionary, but also engages important issues of trial management. The determination of such issues is properly a matter for the trial court. Furthermore, the onus is on the applicant to displace the presumptive right to a jury: MacPherson v. Czaban, 2002 BCCA 518 at para. 17, leave to appeal ref’d [2002] S.C.C.A. No. 480. Accordingly and appropriately, decisions of this kind attract considerable deference from this Court. These decisions turn critically on an assessment by the trial court of multiple factors bearing ultimately on the question whether a matter can be conveniently tried with the jury or should be heard without one.

[23]         The appellant points to numerous cases in which jury notices have been struck which share similarities with this case in terms of the number of medical issues, the number of experts, the nature of the issues and the length of trial. He suggests the result in this case cannot be reconciled with the results in those cases. Thus, he argues that the bar for striking a jury notice has been raised to a level beyond anything that can be accounted for by the inevitable variability of outcome inherent in the exercise of discretion.

[24]         I accept that, as was pointed out in Cochrane v. Insurance Corp. of British Columbia, 2005 BCCA 399 at para. 28:

It is unassailable that decisions under Rule 39(27) are driven by the particular facts of the case.  Even so, the facts in prior decisions are helpful in determining whether the discretion to grant or refuse an order to strike a jury notice has been exercised judicially.

[25]         It follows from this that, even allowing for the inevitable variation in outcomes arising from exercises of discretion, one would expect decisions with broadly similar facts to produce broadly predictable outcomes if discretion is being exercised judicially…

[30]         In my opinion, while other similar cases can assist in assessing whether discretion has been exercised judicially, broad and general similarities may mask material differences. The analysis does not begin and end with adding up the number of experts and medical issues or the number of pages of documents or the length of trial. Those factors may be indicative of whether the trial may be conveniently heard with a jury, but they are not necessarily the last word. They were not here because the judge delved deeply into an analysis of the factual circumstances engaged in the trial and exercised his discretion based on his assessment of those circumstances.

[31]         The appellant is not able to point to any relevant factors the judge failed to take into consideration in exercising his discretion, nor can he point to any irrelevant factors he did consider. He is not able to point to any consideration receiving too much or too little weight. In short, the appellant was not able to direct us to any specific error in the exercise of discretion that would warrant this Court interfering with the order.

[32]         The appellant suggested that if this order is not set aside, this Court would be endorsing a much higher bar for striking a jury notice than has previously been the case in this province. I do not accept that submission. In my view, this case turned on its specific and particular factual circumstances as they stood at the time of the application and as they were analyzed by the judge.  The judge then properly applied the relevant considerations to the exercise of his discretion. The case turned on its facts and does not represent a departure of principle or a resetting of the height of a bar.

[33]         Finally, it should be pointed out, as the chambers judge did, that when this matter comes on for trial, the trial judge “may order the trial to proceed without a jury if the interests of justice then require the making of such an order”. It may be that the case that goes to trial may be quite different to what now appears to be the case. As noted by Seaton J.A. in Ball v. Novlesky, [1981] B.C.J. No. 677 (C.A.) at para. 16, we and the chambers judge can examine the issue only on the basis of the record before us. The case at trial may be different and the trial judge would be free to deal with the issue then, if necessary.

[34]         In my opinion, the submissions of the appellant do not rise above an attempt to reargue the case that was rejected by the chambers judge. I do not think that the appellant has identified any error in principle in the exercise of the chambers judge’s discretion. Accordingly, I would dismiss the appeal.

$20,000 Non-Pecuniary Assessment for 17 Month Long Soft Tissue Injury

November 9th, 2015

Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, assessing $20,000 in non-pecuniary damages for recovered soft tissue injuries.

In today’s case (Scott v. Hoey) the Plaintiff was involved in a 2006 collision caused by the Defendant.  The Plaintiff was 13 years old at the time of the collision and alleged she sustained injuries which permanently impacted her and sought significant damages.  The Court rejected much of the Plaintiff’s claim noting credibility concerns.  The Court did accept that the collision cause soft tissue injuries which fully resolved in 17 months.  In assessing non-pecuniary damages of $20,000 Mr. Justice Bowden provided the following reasons:

[169]     In my view the facts and reasoning of Barrow J. in Jensen v. Felker, 2008 BCSC 541, suggest that the amount of non-pecuniary damages awarded in that case approximate those that should be awarded in the case before me. After reviewing a number of authorities where short term injuries produced symptoms in the plaintiffs for 12 to 14 months, Barrow J. awarded non-pecuniary damages of $18,000.

[170]     While the evidence supports a finding that the plaintiff’s injuries resolved within a period of about six months following the accident I am prepared to assess non-pecuniary damages on the basis that some of her symptoms may have continued until November 2007, which is a period of about seventeen months after the accident.

[171]     I award the plaintiff $20,000 in non-pecuniary damages.

Claim That Settled Day Before Trial for Under $25,000 Reasonably Brought in Supreme Court

November 4th, 2015

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, (Gonopolsky v. Hammerson) deciding if a case which settled the day before trail for an amount in the Small Claims Court jurisdiction was reasonably brought in Supreme Court.  The decision was relevant as the Plaintiff’s entitled to Supreme Court Costs rested on the outcome.

In finding there was “sufficient reason” to commence the proceedings in Supreme Court Mr. Justice Brown provided the following reasons:

[36]         Considering the nature of the injuries, and the effects on homemaking and employment, I find there was a substantial possibility the damages could exceed $25,000.

[37]         Further, the plaintiff submits other sufficient reasons to commence action in Supreme Court were the insurer’s denial of coverage because the forces were insufficient to cause injury; and because the plaintiff was allegedly a worker, which if proven and given the defendant was, would see the action statute barred pursuant to s. 10(1) of the WCA.

[38]         Addressing reasons for commencing action in Supreme Court, plaintiff’s counsel states in her affidavit, sworn September 10, 2015, at paras. 8 and 9 as follows:

8.         On November 5, 2012, I received a phone call from [the ICBC adjuster who] confirmed to me at that time that ICBC’s position was that [the plaintiff] was working at the time of the Collision, and that they would require a WCAT determination on that issue.

9.         On December 14, 2012, our office filled the Notice of Civil Claim commencing this action. At the time of filing, I was of the view that examinations for discovery would be necessary because of ICBC’s position regarding worker-worker issue. Based on the medical-legal reports of Dr. Sawhney, I was also of the view that there was a real and substantial chance that [the plaintiff’s] claim was worth in excess of $25,000.

[39]         As for the WCAT issue, the defendant argued it was not complicated and could have been determined in Provincial Court. As for the basics on that matter, I understand the plaintiff was working as a cleaner at the time. The driver was on her way to work. The plaintiff’s position was that she was going to be dropped off downtown and that she was not on the way to work that day. The defendant pointed out the plaintiff was not yet legally eligible to work in Canada and, accordingly, argued the plaintiff could not recover a wage loss in the first place, making WCAT issues moot. That could be argued at trial, had it got there. As it was, the defendant never withdrew the defence before trial and when the action was commenced, the plaintiff could not reasonably be expected to know how that defence would play out.

[40]         The defendant’s position that the impact’s velocity was too low to cause an injury somewhat further complicated the case, would likely call for examinations for discovery, and at some juncture might entail an engineer’s opinion. It is unlikely the defendant would invest capital in that line of defence for this case, but it is reasonable to say the plaintiff’s burden on causation would be somewhat heavier than in a case where the force of the accident is not really in issue, which weigh in favour of a trial in this court.

[41]         Ultimately, the $22,500 settled figure compensated only non-pecuniary damages.

[42]         As similarly noted in Spencer at para. 24, the defendant’s positions effectively increased the complexity of the claim and the plaintiff’s need for counsel. “By denying liability, causation and that the plaintiff suffered any loss, the plaintiff would have been required to prove these elements at trial.” Further, at para. 25, “In taking the position that this was a low velocity impact claim the defendants created the situation giving rise to this motion. Their pleadings raised a multitude of issues in their defence. Those issues raised complex questions of fact and law. It is unlikely that a layperson could address them competently.” WCAT issues are sometimes simple. But for the plaintiff, it raised questions of mixed fact and law that raised another redoubt the plaintiff had to overcome.

[43]         The gap between the $25,000 threshold for small claims actions and the $22,500 settled on for non-pecuniary damages is not very wide, unlike the large gaps seen in some cases. A host of factors influence a settlement, but the amount settled here is at least within shouting distance of $25,000. Although that somewhat suggests the initial decision to bring action in the Supreme Court was reasonably defensible, standing alone, that is not sufficient reason.

[44]         In summary, the plaintiff has met the burden of proof required, albeit not by a large margin, but I am satisfied on balance that considering the potential damages that could be awarded for the plaintiff’s claim and the complications raised by the minimal damage and worker-worker defence, the plaintiff had sufficient reason to bring the action in the Supreme Court of British Columbia.

[45]         The plaintiff is entitled to costs of the action and of the application at Scale B.