ICBC Law

One of the most frequently litigated issues in ICBC claims is the nature and number of ‘indpendent’ medical examiners (”IME”) that Defendants are entitled to have Plaintiffs examined by.

Reasons for judgement were released today by the BC Supreme Court ordering a Plaintiff to be examined by a psychiatrist of the Defendant’s choosing.  In this case the Defendant’s need for a psychiatric IME of the Plaintiff was not seriously challenged, what was challenged was the timing.

Rule 40-A of the Supreme Court Rules deals with the admissibility of expert opinion evidence in Supreme Court trials.   Rule 40A(5) requires such expert evidence to be exchanged with the other party 60 days before it is tendered in evidence.

In today’s case the requested examination would take place less than 60 days from trial.  The Plaintiff argued that if the medical exam went ahead he would be prejudiced because the Plaintiff would have insufficient time to hire his own expert to respond to the opinion that was being sought.  This, the Plaintiff argued, would likely lead to an adjournment which would be prejudicial to the Plaintiff.

Master Tokarek of the BC Supreme Court ordered that the medical exam proceed despite the Plaintiff’s objection.  In doing so he stated that “the timing of the application, without more, is largely irrelevant”.  The key reasons are set out in paragraphs 23-27 which I set out below:

[23]            The comment about the balancing of prejudice is of some significance in the context of submissions made in the case at bar with respect to when defence counsel could or would be able to seek an IME.  Plaintiff’s counsel submitted that whenever the plaintiff would be unable to obtain expert evidence to rebut or deal with any defence IME report, an order should not be made.  Counsel indicated that his dilemma would be the same even if this application was brought in December because he would need approximately one year to get an appointment with his own expert.  The logic of that seems to be that unless defence counsel applied for the psychiatric IME a year or more in advance of the trial date, the application should be denied because plaintiff’s counsel would be in exactly the same position of not being able to get his expert to deal with it and prejudiced because of an adjournment.  I utterly reject that logic

[24]            I believe the more appropriate approach is to balance the prejudice of a potential adjournment against the prejudice to the defendant in not obtaining relevant evidence.  Here the requested IME is not with respect to an inconsequential or insignificant issue.  The defendant seeks to reasonably establish that the plaintiff’s complaints are wholly or largely unconnected to the MVA.

[25]            The balance of the authorities are similarly either distinguishable or unhelpful.  Master Barber, in the Bubra decision said:

. . . the defendant has had full opportunity to have this matter brought forward at an earlier date so that these matters could be dealt with in a reasonable way.  For their own reasons, they have not done so. 

I do not find that to be the situation here.

[26]            The last authority, the Barron case, is another decision of Master Patterson.  At paragraph 21 he said:

. . . it seems to me that it is the obligation of the defence to not sit and wait until the last minute and then scramble to bring an application like this on.

With all due respect, the timing of the application without more, is largely irrelevant.  All of the authorities relied on by the plaintiff came to the conclusion, in some fashion unknown to me, certainly not discernable from the reasons, that the timing would lead to an adjournment and that an adjournment would prejudice the plaintiff.  Apart from the Mackichan decision, there is nothing to suggest that any consideration was given to balancing the prejudice to the plaintiff against that of the defendant.

[27]            In this case, I have no evidence to conclude that there would be an adjournment or that if that was so, it would amount to a prejudice that outweighs the prejudice to the defendant in not being able to obtain material evidence going to the heart of the plaintiff’s claim.  Consequently I grant the application and order that an IME take place as requested.

When offers are made for the settlement of ICBC or other BC personal injury claims the parties involved must take care not to ‘demonstrate an unwillingness to be bound by the agreement’ otherwise they risk the settlement agreement being repudiated.  Reasons for judgement were released today illustrating this principle.

A bit of background is necessary before getting into the facts of this case.  Typically in BC Personal Injury Cases from car accidents ICBC insures both the Plaintiff and the Defendant.  This is so because ICBC is a statutory insurer with certain monopoly privileges so they insure almost all vehicles in British Columbia.  In some circumstances, of course, other insurance companies are involved (for example when the offending party is an out of Province motorist).

In today’s case the Plaintiff was insured with ICBC for ‘no-fault benefits’ (also known as Part 7 benefits) and the operator of the offending vehicle was insured with Progressive.  The Plaintiff ran into problems with both companies and started a lawsuit against ICBC for no-fault benefits which were allegedly outstanding and also made a tort claim against the motorist insured with Progressive.

The tort case apparently settled for “79,605.50 plus costs of no more than $19,767.13″.  The parties then apparently settled the costs amount with Defence Counsel writing to Plaintiff’s counsel stating

I have instructions to accept your offer to settle the costs.  The adjuster will be forwarding to your office a cheque in the sum of $97,936.70 Cdn to cover the settlement including costs.  The funds will be sent on your undertaking not to release any part of them to the plaintiff until the Release and Consent Dismissal Order that I plan to fax to you today are fully executed, and on your further undertaking to return the executed documents to me as soon as reasonably possible

A few days later counsel for the Plaintiff responded stating that the Plaintiff “was not prepared to execute the release because it referred to a “Part VII action”.  It stated that the defendant was released from all claims:”

The parties tried to resolve their differences but could not.   The Plaintiff brought an application for an order to enforce the settlement agreement that was allegedly reached.  Mr. Justice Williamson refused to do so finding that the Plaintiff had repudiated any settlement agreement that may have been reached.  The courts key reasoning is set out at paragraphs 14 - 20 of the judgement which I reproduce below:

[14]            The plaintiff relies upon Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., [1995] O.J. No. 721 (Ct. J. (Gen. Div.)). At para. 24 of that decision, Chapnik J. stated:

It is well established that settlement implies a promise to furnish a release unless there is agreement to the contrary.  On the other hand, no party is bound to execute a complex or unusual form of release: although implicit in the settlement, the terms of the release must reflect the agreement reached by the parties.  This principle accords with commons sense and normal business practice.

[15]            And further, at para. 36, the learned judge stated:

The onus is on the party claiming repudiation to show that the disagreement consequent upon the settlement constitutes a repudiation of it.  Subsequent disputes should be resolved by application to the court or by common sense within the framework of the settlement to which the parties have agreed and in accordance with the common practices which prevail amongst members of the bar.  It will be rare for conduct subsequent to a settlement agreement to amount to repudiation.

[16]            In so stating, Chapnik J. referred to a decision of McEachern C.J.B.C. in Fieguth v. Acklands Ltd. (1989), 59 D.L.R. (4th) 114, 37 B.C.L.R. (2d) 62 (C.A.).  In Fieguth, the Chief Justice noted that once there has been an agreement, one party can tender whatever documents thought appropriate to complete the agreement without actually rescinding the settlement.  At page 121, the Chief Justice stated:

If such documents are accepted and executed and returned then the contract, which has been executory, becomes executed.  If the documents are not accepted then there must be further discussion but neither is released or discharged unless the other party has demonstrated an unwillingness to be bound by the agreement by insisting upon terms or conditions which have not been agreed upon or are not reasonably implied in these circumstances.

[17]            Here, the release documents were not accepted.  There was further discussion.  The question is, in the words of McEachern C.J.B.C. as stated above, has one party demonstrated an unwillingness to be bound by the agreement by insisting upon terms or conditions which have not been agreed upon or are not reasonably implied?

[18]            I conclude that is the circumstance here.  The parties appear to have agreed to settle the matter for $97,936.70 Cdn.  However, when the necessary documents, in particular the release, was forwarded to counsel for the plaintiff, the plaintiff declined to execute the release unless something was done about the plaintiff’s right to continue with the other action against ICBC. 

[19]            I have referred to the December 1, 2008, email from counsel for the plaintiff to counsel for the defendant.  In my view, the wording of it is clear.  It states “my client will sign a full release once she has been compensated for Part 7’s in the sum of $7,000”.  In other words, the plaintiff took the position that she would not complete the November 19 agreement unless she was paid an additional $7,000 or, presumably, the defendant agreed that she could continue her action against ICBC.  I conclude that to take such a position is to repudiate the agreement allegedly reached on November 19. 

[20]            In the circumstances, the plaintiff’s application is dismissed.  The defendant will have its costs.

While this blog is largely restricted to BC Personal Injury and ICBC Claims as a Personal Injury lawyer I like to keep an eye across other Canadian jurisdictions for interesting developments with respect to personal injury law.

For all of the flaws, both real and perceived, of our system with ICBC as a monopoly auto insurer, the BC tort system is one of the best in Canada.   It is fortunate that victims of injuries caused through the negligence of others have the right to seek fair compensation through the courts in BC.

BC has some of the fewest legisltative impediments on victims rights when it comes to advancing negligence claims.  Other Provinces are not so lucky.  Many Provinces in Canada have implemented a ‘no-fault’ system where victims rights to claim money for pain and suffering are taken away to provide certain benefits to all whether they are responsible for their own injuries or otherwise (akin to our WCB system).  Other Provinces have enacted statutory ‘caps’ on damages for certain types of injuries.  Nova Scotia is one such Province where a $2,500 cap on ‘minor injury’ damages was imposed by statute.

Reasons for judgment were released by the Supreme Court of Nova Scotia today dismissing challenges to the constitutionality of a law which created statutory caps on non-pecuniary (pain and suffering) awards for minor injuries.

Specifically the relevant part s. 113B of the Nova Scotia Insurance Act provides that

Limitation on liability

113B (1) In this Section,

(a) “minor injury” means a personal injury that

(i) does not result in a permanent serious disfigurement,             

(ii) does not result in a permanent serious impairment of an important bodily function caused by a continuing injury which is physical in nature, and

(iii) resolves within twelve months following the accident;

 

(b) “serious impairment” means an impairment that causes substantial interference with a person’s ability to perform their usual daily activities or their regular employment.

And the relevant section of the Automobile Insurance Tort Recover Regulations provide that:

2     (1)    For the purposes of Section 113B of the Insurance Act and these regulations,

   (d)    “personal injury” does not include

                         (i)     a coma resulting in a continuing serious impairment of an important bodily function,

                         (ii)    chronic pain that

                                  (A)   is diagnosed and established as chronic pain by a medical specialist appropriately trained in the diagnosis and management of pain disorders,

                                  (B)   is a direct result of a physical injury sustained in the motor vehicle accident with respect to which the claim is brought, 

                                  (C)   results in a continuous serious-impairment of an important bodily function, and

                                  (D)   is moderately severe or severe pain, as classified in the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition,

                         (iii)   a burn resulting in serious disfigurement,

                         (iv)   an amputation of a major limb;

(f)    “resolves” means

                         (i)     does not cause or ceases to cause a serious impairment of an important bodily function which results from a continuing injury of a physical nature to produce substantial interference with the person’s ability to perform their usual daily activities or their regular employment, or

                         (ii)    causes a serious impairment which results from a continuing injury of a physical nature to produce substantial interference with a person’s ability to perform their usual daily activities or their regular employment where the person has not sought and complied with all reasonable treatment recommendations of a medical practitioner trained and experienced in the assessment and treatment of the personal injury;

 (g)    “substantial interference” means, with respect to a person’s ability to perform their regular employment, that the person is unable to perform, after reasonable accommodation by the person or the person’s employer for the personal injury and reasonable efforts by the injured person to adjust to the accommodation, the essential elements of the activities required by the person’s pre-accident employment;

          (h)    “usual daily activities” means the essential elements of the activities that are necessary for the person’s provision of their own care and are important to people who are similarly situated considering, among other things, the injured person’s age.

The Plaintiff’s challenged that Nova Scotia’s Caps on Non-Pecuniary damages violate s. 15 and s. 7 of the Canadian Charter of Rights and Freedoms.  These sections guarantee life, liberty and security of the person and provide equality rights not to be discriminated against as a reslt of race, national or ethinic origin, colour, religion, sex, age or mental or physical disabililty.  The Plaintiff’s argued that s. 113B infringed s. 15 of the Charter based on physical disability and sex.

In very lengthy reasons for judgement (Part 1 of the reasons are all that have been released to date and these are 92 pages long) the Court dismissed the challenges.   I would reproduce the key reasons in this blog however the judgemenet was released in PDF form so I can’t cut and paste the key paragraphs.

This judgement and the underlying legislation are worht reveiwing for any students of the law keen on the topic of ‘tort reform’.

You are insured with ICBC and are injured in a BC Car Accident.  You experience chronic pain and your doctor tells you that you will likely benefit from Botox Injections to aid in your rehabilitation.  Botox treatment is expensive, so you apply to ICBC to have this covered under your No-Fault Benefits (sometimes referred to as Part 7 benefits).  ICBC tells you, “sorry, Botox treatment for injury is not covered under Part 7.” Are they right?  Wrong.

Reasons for judgment were released today by the BC Supreme Court ordering that ICBC cover the expenses associated with a Plaintiff receiving Botox treatment.

The Plaintiff was injured in a 2005 BC car crash.  The Plaintiff applied for and received previous funding for various treatments of injuries from ICBC.  The Plaintiff then saw a rehabilitation specialist who recommended Botox injections.  The cost of these was expected to be $3,500.  ICBC, without a contrary medical opinion as to the reasonableness of this treatment, failed to fund it and took the position that this expense did not have to be covered.

Section 88 (1) of the Insurance (Vehicle) Regulation deals with ICBC’s no-fault medical and rehabilitation benefits and requires that ICBC cover all reasonable expenses incurred by the insured as a result of the injury for necessary services, therapy or treatment as set out in the Regulation.

Justice Macaulay, in very well thought out reasons for judgment, ordered that ICBC had to pay for the Botox injections in the circumstances of this case.  The key reasoning in the judgment can be found at paragraphs 33 - 40 which I will publish as soon as the judgement is released on the BC Court’s website.

This case is also very interesting to me from a procedural point of view.  The Plaintiff brought this application by way of summary trial under Rule 18-A.  The Plaintiff relied on his affidavit and a medico-legal report.  ICBC did not have the opportunity to cross examine the Plaintiff or the treating doctor and typically litigants are entitled to do so.  ICBC took the position that this application should not be heard until they had the chance to cross-examine.

Mr. Justice Macaulay disagreed with ICBC and allowed the application to proceed.  He ruled that “There is nothing to be gained by directing cross examination of either the doctor or the Plaintiff.  The doctor makes it clear that she recommends this treatment as one of several options because the plaintiff’s lower back problems have been intractable.  It is primarily a legal issue whether that is sufficient to trigger an obligation on ICBC under s. 88(1).  There is also no reason to expect that the cross examination of the plaintiff will result in any alteration of the evidence…cross examination will not be ordered [in Rule 18A summary trials] absent some likelihood that the procedure will produce evidence in support of the other side…I am satisfied that the proposed cross-examination of the plaintiff and his doctor are speculative and not likely to produce evidence in support of ICBC.“

Interesting reasons for judgement were released today by the BC Court of Appeal setting aside a settlement of an ICBC injury claim.

In this case the Plaintiff was allegedly injured as a result of a 2001 BC motor vehicle collision.  In September, 2006 the parties attended a mediation and ICBC made an offer to settle the Plaintiff’s claim for $50,000 plus costs and disbursements.  The Plaintiff did not accept the offer at mediation and the mediation came to an end.  

The following month the Plaintiff’s lawyer attempted to accept the settlement offer.  The defendants refused to proceed with the settlement, stated that the offer was revoked and attempted to proceed to trial.

The Plaintiff brought an application to enforce the alleged settlement and appeared before the BC Supreme Court.  The presiding judge ordered that there was a binding settlement.  The Defendants appealed.  The Court of Appeal ordered that there was no settlement or if a settlement was reached it was ‘void for uncertainty and unenforceable‘.

The court’s key discussion is set out at paragraphs 15 - 21 which I set out below:

[15]            In my view, on the evidence presented in this rather unsatisfactory record, a settlement cannot be said to have been reached for two reasons.  First, the offer made in mediation was not accepted within a reasonable time.  Second, the terms of the purported settlement lacked certainty. 

[16]            What is a reasonable time is a question of fact.  However, it is a question to which the learned chambers judge never directed her attention in either of the two sets of reasons she gave.  In the absence of any express provision, a reasonable time for acceptance of the offer at mediation depended on all the circumstances.  The mediation concluded with no agreement.  The trial date was approaching.  Both sides were no doubt preparing for trial and incurring the attendant costs.  The reasonable observer would, if asked, have concluded that the time for acceptance of the offer, even if it continued after the mediation had ended, had gone by.

[17]            Nor can the terms of the purported settlement be said to be certain.  The offer at mediation was to pay $50,000 plus costs and disbursements.  The letter of 20 October 2006 purported to accept an offer of $50,000 “plus party and party costs in the tort action”.  The letter did not specify the date at which such costs were to be determined.  It did not specify the amount of the costs, nor the manner in which they were to be determined.  If the letter of 20 October 2006 can be said to have concluded an agreement, it was at best an agreement to agree. 

[18]            The learned chambers judge recognized this difficulty.  She said:

It is apparent that the parties have not agreed upon the matter of costs.

[19]            She then directed that the issue “be referred to the trial judge”.  There was no trial, and there was no trial judge.  Moreover, there was no order as to who should pay what costs, at what level, or for what period of time.  None of the factors which might guide a judge in making a ruling on costs were known or knowable.

[20]            Even if one were to read this direction as one for taxation of costs before the Registrar, there is nothing in the evidence to suggest that this was what either party intended, or the basis on which a Registrar could conduct a taxation.

[21]            If there was any kind of an agreement reached, it was void for uncertainty and unenforceable.  And in any event, the offer not having been accepted within a reasonable time, no agreement can be said to have been reached.

This case illustrates the fact that if an informal settlement offer is made (as opposed to a formal settlement offer under Rule 37B) it is important for the parties to have a meeting of the minds and know exactly what is being offered.  Does the offer include court costs?  Disbursements?  How long is the offer open for acceptance?  These and other questions are important factors when considering a settlement offer for an ICBC claim.  

Happy New Year everyone.  The web and the law are becoming evermore intertwined and this connection will only grow stonger in 2009.  On that note, here is a short off  topic post.

I had the privilege of reading CharonQC’s Blawg Review #193.  For those not familiar with the term, Blawg is the term that has been coined for Legal Blogs.  CharonQC is a law professor in London, England.  For students of the law and those generally interested with the subject his annual Blawg review is one of the best out there and is an excellent resource.  There are some great Blawgs mentioned and these are worth checking out for anyone looking to follow some of the most interesting lawyers on the web.

Also worth checking out is his Canadian Law Blogs pageflake.  This, along with Steve Matthews list of Canadian Law Blogs are some of the best resources of available Canadian on-line legal information.

One growing resource that has caught my attention in 2008 is JDSupra.  JDSupra has an ever expanding database of court filings, legal briefs and articles from lawyers throughout North America.  This resource will undoubtedly benefit many more in 2009.

Lastly, former Personal Injury Lawyer turned gugu legal marketer Kevin O’Keefe has recently launched Lextweet which is the definitive resource for people looking for lawyers on Twitter, a quality list that is growing by the day.

A sincere thanks to all who have visited this blog in 2008 and to the conuntless visitors who have provided me with so much positive feedback.  I wish everyone a great 2009 and look forward to another year of writing about ICBC Claims and other BC Personal Injury Cases of interest. 

The first released judgment by the BC Supreme Court in 2009 dealing with an ICBC Injury Claim was handed down today.

The Plaintiff was involved in a 2005 motor vehicle collision.  It was an intersection collision where the Defendant turned left in front of the Plaintiff’s vehicle.  The Plaintiff had a green light and a significant impact occurred.

The Plaintiff’s vehicle sustained ‘considerable’ damage and her vehicle was written off.  Liability (fault) was admitted on behalf of the defendants on the morning of trial.  The trial focused on the Plaintiff’s injuries and their value.

The most contentious claimed injury was a concussive injury affecting cognitive abilities.   The court dismissed the alleged brain injury stating that “The plaintiff bears the onus of proving that it is more probable than not that she suffered each of the injuries she alleges.  In my opinion, it has been shown that there is a reasonable possibility that the plaintiff sustained a mild brain injury as a result of the motor vehicle accident.  But I am not persuaded that it is more probable than not that this occurred.”

Mr. Justice Halfyard did a great job addressing the competing medical evidence and the discussion at paragraphs 30 - 58 of this judgement is worth reviewing for anyone advancing an ICBC brain injury claim to see some of the issues that often come into play during litigation.

In valuing the Plaintiff’s Pain and Suffering at $55,000 the court summarized her injuries and their effect on her life as follows:

[89]            I conclude that the plaintiff sustained injuries to the soft tissues of her neck and upper back, the rotator cuff muscles in her left shoulder and the soft tissues in her chest wall.  I would describe the severity of these injuries as being moderate.

[90]            I find that the plaintiff sustained a loss of her hearing ability (much more pronounced in her left ear), as a result of a mild labyrinthine concussion caused by the accident.  Not all of this loss of hearing was caused by the injury.  Some of it was attributable to the normal aging process.  I accept Dr. van Rooy’s description of the overall loss of hearing ability as being mild.

[91]            I am not satisfied that the plaintiff sustained injury to her brain.  Nor am I satisfied that any injury she sustained in the accident caused a loss of her ability to maintain proper balance or equilibrium. 

[92]            The plaintiff has substantially recovered from all of her injuries except for the injury to her left shoulder.  Three years have elapsed since the accident, and the plaintiff’s symptoms may persist for another two years into the future.  These symptoms will be troublesome and sometimes painful, when she is working with her hands while holding her arms in certain positions.  To some degree, these effects will affect the plaintiff’s ability to make and repair costumes, and to work in her daughter’s shop.  But her hip and her low back problem are probably as much or more a hindrance to the plaintiff, than is the residual problem with her left shoulder.  The depression and anxiety that has plagued the plaintiff for some years is the most likely cause of her loss of motivation.  But I accept that the plaintiff’s emotional reaction to her injuries from the motor vehicle accident did aggravate her pre-existing psychological condition, to some extent.