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.

Archive for September, 2010

New Formal Settlement Offer Rule Treated the Same as the Old

September 30th, 2010

A further decision dealing with the consequences of formal settlement offers under the New BC Supreme Court Civil Rules was released today by the BC Supreme Court, New Westminster Registry.

In today’s case (Gregory v. ICBC) the Plaintiff was injured in a BC motor vehicle collision.  Prior to trial ICBC made a formal settlement offer of $164,000.  The Plaintiff rejected this offer and at trial was awarded just over $131,000.

ICBC brought an application seeking costs or double costs from the date of the offer onward.  Madam Justice Kloegman agreed that the Plaintiff ought to have accepted the formal settlement offer and accordingly deprived her of her costs and disbursements for the trial and awarded ICBC their costs and disbursements for steps taken shortly after delivery of the formal settlement offer.

In reaching this result the Court noted that Rule 9 (the New Formal Settlement offer rule) should be treated similarly to the old Rule 37B.  Specifically Madam Justice Kloegman noted that “The parties agree that it is likely that the new Supreme Court Rules apply to this application and, in any event, very little turns on whether or not the old or new Rules apply.

While ICBC was awarded post offer costs, they were not awarded double costs.  In reaching this decision the Court noted that ICBC’s financial ability to defend a lawsuit was “much greater than the (plaintiff’s) ability to prosecute” and that this factor must be taken into account in exercising judicial discretion under Rule 9.   In considering this factor Madam Justice Kloegman stated as follows “I will not order double costs to the defendant, which would be about $50,000, because the impact on the financial circumstances of the plaintiff and on the amount of her award at trial would be grievous.


Why Soft Tissue Injury Claims Should Not Be Judged by a Higher Legal Standard

September 30th, 2010

From time to time BC Courts appear to scrutinize soft tissue injury claims more carefully than claims with objective injuries.  When doing so a very familiar quote from Mr. Justice McEachern is cited where he said “I am not stating any new principle when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery…”

This quote comes from the 1981 case Butler v. Blaylock and is often advanced by defence counsel in an effort to have a Court dismiss soft tissue injury claims.   This quote has been repeated many times in recent judgements and recently the BC Court of Appeal referenced this authority in Mariano v. Campbell.

However, what was not noted by the Court and should be next time a defence lawyer brings this quote to the Courts attention is that Mr. Justice McEachern’s decision is Blaylock was overturned by the BC Court of Appeal in 1983 where the Court held as follows:

12 With the greatest respect, I am of the opinion that there is no evidence upon which one could reasonably conclude that the appellant did not continue to suffer pain as of the date of the trial. After careful consideration of the expert testimony and the evidence of the appellant and his wife, I have reached the conclusion that the only finding open to the learned trial judge was that as of the date of trial the appellant continued to suffer moderate pain and in the words of Dr. Lehmann, his symptoms “will gradually subside with further time. Having been present for approximately two and a half years, it is doubtful that they will disappear completely.” (underlining mine).

13 There are three basic reasons which, in my view, support the conclusion that the plaintiff continued to suffer pain as of the date of trial. Firstly, the plaintiff testified that he continued to suffer pain. His wife corroborated this evidence. The learned trial judge accepted this evidence but held that there was no objective evidence of continuing injury. It is not the law that if a plaintiff cannot show objective evidence of continuing injury that he cannot recover. If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, the Plaintiff is entitled to recover damages. There is no suggestion in this case that the pain suffered by the plaintiff did not result from the accident. I would add that a plaintiff is entitled to be compensated for pain, even though the pain results in part from the plaintiff’s emotional or psychological makeup and does not result directly from objective symptoms.

14 Secondly, all of the medical reports support the view that the plaintiff continued to suffer pain and that it was not likely that his symptoms would disappear completely.

15 Thirdly, and of great importance, is the report of Dr. Lehmann, which was not before the learned trial judge for his consideration. In that report, Dr. Lehmann stated that there were degenerative changes in the cervical spine which pre-existed the accident. He said “they were probably asymptomatic before the accident but I think are probably contributing to his prolonged discomfort.” (underlining mine). In my view, as this evidence is uncontradicted, these objective findings cannot be disregarded and should be given great weight.

In addition to the above, a subsequent case from the Supreme Court of Canada made it clear that all civil cases, regardless of the allegations or the nature of a lawsuit, need to be judged with the same civil standard.  In F.H. v. McDougall the Canadian High Court stated as follows:

I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities.  Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences.  However, these considerations do not change the standard of proof…

[45] To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care implies that in less serious cases the evidence need not be scrutinized with such care.  I think it is inappropriate to say that there are legally recognized different levels of scrutiny of the evidence depending upon the seriousness of the case.  There is only one legal rule and that is that in all cases, evidence must be scrutinized with care by the trial judge.

I hope this ‘history lesson’ helps anyone confronted with an attack on Plaintiff credibility during a soft tissue injury trial.


Lawyer Ordered to Repay Legal Fees Collected During "Conflict of Interest"

September 27th, 2010

Lawyers owe their clients a duty of loyalty and cannot act if their personal interests or interests of other clients create a conflict of interest.  Where a conflict of interest arises a lawyer needs to obtain informed consent from a client to continue acting or sometimes stop acting for the client altogether.  If a lawyer fails to do so he/she can be exposed to various consequences including the loss of their right to claim fees for services rendered.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this area of law.

In last week’s case (Campbell v. Ragona) the Plaintiff was injured in a motor vehicle collision in Hong Kong in 1992.  He hired a Vancouver lawfirm to prosecute his claim.  The Vancouver firm retained a Hong Kong firm to assist in the prosecution.  A trial was held on the issue of fault in 1998 and a Hong Kong judge found that the motorist who struck the Plaintiff’s vehicle was at fault for the crash.     The ‘damages‘ portion of the trial did not proceed in a  timely fashion.   In 2004, some 12 years after the crash, the at fault driver brought a motion to have the lawsuit dismissed for ‘want of prosectution’ and succeeded.  The Plaintiff appealed this dismissal.  Prior to having the appeal heard the Plaintiff settled his lawsuit on a compromised basis with the at fault motorist and waived his right to sue the Hong Kong lawfirm that acted on his behalf.

The Vancouver lawfirm continued to act for the Plaintiff during the settlement negotiations.  After the claim was settled the Plaintiff sued his Vancouver lawyer and lawfirm arguing that they were negligent and that they continued to act on his behalf despite a conflict of interest.  Mr. Justice Pearlman agreed with the Plaintiff and found that the Vancouver lawfirm should have insisted that the Plaintiff obtain independent legal advice after the Hong Kong lawsuit was dismissed for want of prosectuion.

Mr. Justice Pearlman went on to award the Plaintiff the difference between the realistic trial value of his personal injury  lawsuit and the settlement amount.  The Court went on to order that the Vancouver firm ‘discourge‘ the legal fees collected for representing the Plaintiff.  In making this order Mr. Justice Pearlman made the following comments about a lawyer continuing to act after a conflict of interest arises:

[563]     The rationale for the duty of loyalty, including the duty to avoid conflict, was explained by Wilson J.A. (as she then was) in Davey v. Woolley, Hames, Dale & Dingwall (1982), 35 O.R. (2d) 599 (C.A.) at 602:

The underlying premise … is that, human nature being what it is, the solicitor cannot give his exclusive, undivided attention to the interests of his client if he is torn between the client’s interests and his own or his client’s interests and those of another client to whom he owes the self-same duty of loyalty, dedication and good faith….

[565]     The codes of conduct published by both the British Columbia Law Society and the Canadian Bar Association contain provisions requiring the withdrawal of a lawyer if the lawyer’s continued employment would place the latter in a conflict of interest.  The Canadian Bar Association Code of Professional Conduct Rule XII Commentary 4(c) provides:

Obligatory Withdrawal

4. In some circumstances the lawyer will be under a duty to withdraw …:

(c) if it becomes clear that the lawyer’s continued employment will lead to a breach of these Rules such as, for example, a breach of the Rule relating to conflict of interest (Chapter V).

[566]     Similarly, the Law Society of British Columbia’s Annotated Professional Conduct Handbook, Chapter 10, s. 1 states:

Obligatory withdrawal

1. A lawyer is required to sever the solicitor-client relationship or withdraw as counsel if:

(d) the lawyer’s continued involvement will place the lawyer in a conflict of interest, …

[568] Mr. Ragona knew, at the very latest, on June 9, 2004 that there was the potential for a claim for professional negligence against him and his firm.  Mr. Ragona told Mr. Campbell that he could or should get independent legal advice when they met at the offices of AHBL on June 23, 2004.  At that time, the plaintiff indicated that he did not wish to obtain independent legal advice, and Mr. Ragona did not insist that he do so….

[574]     Independent legal advice at this point would probably also have ensured that if Mr. Campbell chose to continue with AHBL’s representation, he would do so on the basis of an informed waiver of the conflict of interest.

[575]     A client must have a full understanding of the nature of the conflict in order to make an effective waiver. This may require independent legal advice: Moffat v. Weinstein (1996), 135 B.L.R. (4th) 298 (Ont.Gen.Div.).

[576]     In some cases, nothing short of the lawyer ceasing to act for the client will suffice to avoid subsequent liability for the consequences of breach of fiduciary duty: Davey v. Woolley, Hames,Dale & Dingwall (1982), 35 O.R.(2d) 599 (C.A.), leave to appeal to SCC refused, 37 O.R.(2d) 499. In my view, given the nature of the conflict, and AHBL’s role in the loss of Mr. Campbell’s right to maintain his action in Hong  Kong, this was a case where AHBL ought  either to have informed the plaintiff that they could no longer act, or they should have insisted that that the plaintiff take independent legal advice, at their expense, before they settled his claim. If AHBL did not withdraw, then they were under a duty to insist that Mr. Campbell obtain independent legal advice: Re A Solicitor (1995), 14 B.C.L.R. (3d) 100 (C.A.).  Because Mr. Ragona continued to act for Mr. Campbell and did not insist upon the plaintiff obtaining independent legal advice, he and AHBL must bear the consequences of their breach of the fiduciary duty to avoid conflicts of interest.

[577]     The defendants are responsible for the consequences flowing from their breach of fiduciary duty.  The plaintiff bears the onus of proving a causal relationship between a breach of fiduciary duty and any loss for which he claims compensation.  Here, by the time of the breach of the duty to avoid conflict of interest, which occurred upon dismissal of the Hong Kong action for want of prosecution, Mr. Campbell had already suffered the loss resulting from inordinate delay in the prosecution of his action, for which he claims damages in contract and tort.

[578]     In Strother v. 3464920 Canada Inc., [2007] S.C.R. 177 at paras. 75 and 76, Justice Binnie held that the remedy of disgorgement may be ordered for either prophylactic or restitutionary purposes.  The prophylactic purpose is served by appropriating “for the benefit of a person to whom the fiduciary duty is owed any benefit or gain obtained or received by the fiduciary in circumstances where there existed a conflict of personal interest and fiduciary duty or a significant possibility of such conflict, the objective is to preclude the fiduciary from being swayed by considerations of personal interest.” Strother at para. 75, citing Chan v. Zacharia (1984), 154 C.L.R. 178 (Aust H.C.) per Deane J., at p.108.

[579] The prophylactic purpose of disgorgement is intended to teach fiduciaries that conflicts of interest do not pay.  The plaintiff is not required to prove a loss in order to recover a gain or benefit received by the fiduciary as a result of its breach of duty: Strother, at para.77.

[580] Subsequent to the dismissal of Mr. Campbell’s action for want of prosecution, Mr. Ragona, in breach of the fiduciary duty he owed to avoid conflict of interest, accepted the plaintiff’s offer of hourly remuneration for work performed on the file. He did so in order to benefit himself and his firm, at the plaintiff’s expense. The plaintiff is entitled to disgorgement of all fees or benefits received by Mr. Ragona and AHBL in consequence of this breach of their fiduciary duty to avoid conflict of interest  : Strother at para. 83.

[581] There will be an order that AHBL disgorge and pay to Mr. Campbell’s estate the sum of $84,391.86, representing the full amount of the fees charged by AHBL in their account rendered to Mr. Campbell dated December 29, 2004.


BC Supreme Court Rules Update: Withdrawing an Admission of Fault

September 24th, 2010

Reasons for judgement were released today considering when a Defendant can withdraw an admission of fault in a personal injury lawsuit.

In today’s case (Surerus v Leroux) the Plaintiff was injured when he was struck by a vehicle operated by the Defendant.  He sued for damages and alleged the crash was the Defendant’s fault for a variety of reasons including that the Defendant drove a vehicle with defective brakes.  ICBC, the insurer for the Defendant, instructed the defence lawyer to admit fault.

In the course of the lawsuit the Defendant wished to withdraw the admission of fault.  The Defendant brought a motion asking the Court’s permission to do so.  Master Shaw dismissed the motion finding that the request was brought too late in the course of lawsuit.

The Court applied Rule 7-7(5) of the New BC Supreme Court Civil Rules (the rule dealing with withdrawing admissions).  This is the first case I’m aware of applying this rule however it’s worth noting that the rule’s language is almost identical to the old rule 31(5)(c) and the Court relies on precedents established under the old rule as being authoritative.  In dismissing the motion Master Shaw made the following comments:

[3]             Rule 7-7(5) reads as follows:

Withdrawal of admission

(5)  A party is not entitled to withdraw

(a) an admission made in response to a notice to admit,

(b) a deemed admission under subrule (2), or

(c) an admission made in a pleading, petition or response to petition

except by consent or with leave of the court.  …

[17]         This is not a case where the plaintiff’s pleadings set out a variety of allegations of possible negligence. The plaintiff made a specific allegation in his pleadings of poor mechanical condition and faulty brakes.

[18]         The defence says that there is an issue to be tried, and states that the defendant’s evidence will be that he had no prior knowledge of the brake issue before the accident.

[19]         In 374787 B.C. Ltd. v. Great West Management Corp., 2007 BCSC 582, Madam Justice Martinson states at para. 27:

27        As a general rule the Court must consider whether in the circumstances of the case the interests of justice justify the withdrawal of the admission. The following factors, which are not exhaustive are relevant: delay, loss of a trial date, a party is responsible for an erroneous admission, inadvertence in the making of the admission and estoppel. See Meisenholder v. Wikdahl, 2005 BCSC 630 and Hamilton v. Ahmed. A deemed admission can be withdrawn even where the failure to reply was deliberate: Linear S.R.L. c. CCC – Canadian Communications Consortium Inc. 2001 BCSC 682.

[20]         I am satisfied that the interests of justice do not justify the withdrawal of the deemed admission.

[21]         I have reviewed the factors set out by Madam Justice Martinson in 374787 B.C. Ltd. and affirmed by the Court of Appeal. This claim was filed October 6, 2008. It is almost four years since the date of the accident. There is a trial date scheduled for April 11, 2011. Discoveries have been conducted. The notice of motion was not filed until May 28, 2010, although the defence notified the plaintiff in September of 2009 that they were attempting to withdraw their admission of liability. I find that the delay of the defendant bringing this application, from the time of the accident to now, is a concern which cannot be overcome.

[22]         The trial date scheduled for April 11, 2011, is not imminent and, therefore, not necessarily at risk for losing the date.

[23]         There was no evidence put before this court with respect to the status of the vehicle. It is unknown if it is even available for inspection. The plaintiff specifically pleads in the statement of claim the condition of the brakes. That should have alerted the adjuster and defence. Even if the admission was inadvertent, there appears to be an element of simply not paying attention to the pleadings.

[24]         Withdrawing the admission at this late date would be prejudicial to the plaintiff. The plaintiff has acted to his detriment by relying on the admission.

[25]         I find that the interests of justice would not be served by allowing the withdrawal of the admission at this date.

[26]         In the result, I dismiss the application of the defendant. Costs will go to the plaintiff in any event of the cause.


Further Clarity from BC Court of Appeal on Vicarious Liability of Vehicle Owners

September 23rd, 2010

As I’ve previously written, The law places a very heavy burden on vehicle owners in BC when their vehicles are involved in an at-fault collision.  In British Columbia registered owners are “vicariously liable for the negligence of the driver where the driver acquired possession of the vehicle with the consent (express or implied) of the owner“.

What this means is, if you let someone else operate your vehicle and they are at fault for a crash then you are at fault for that crash.  Today the BC Court of Appeal published reasons for judgement clarifying the application of this legal principle.

In today’s case (Snow v. Saul) the the Plaintiff was seriously injured in Vernon BC when a vehicle owned by a man named Mr. Saul and driven by a woman named Ms. Friesen struck the Plaintiff while walking on a sidewalk.  The Defendant driver apparently fell asleep at the wheel and lost control.

The Court found that Mr. Saul did not intend to let Ms. Friesen borrow his vehicle, he in fact did so by mistake.  Mr. Justice Williams found that Ms. Friesen asked to borrow Mr. Saul’s vehicle but at the time he was busy working and did not hear her because he was hard of hearing and had his hearing aid out.  As a result Mr. Saul mistakenly thought someone else was asking to borrow his vehicle so he granted permission,   Notwithstanding this interesting factual finding the trial judge went on to find that Mr. Saul was still vicariously liable for the collision because his actions constituted ”express consent” under section 86 of the BC Motor Vehicle Act (you can click here to read my article summarizing the trial finding).

The Defendant appealed arguing the trial judge incorrectly applied the law.  The BC Court of Appeal agreed and overturned the trial verdict finding the registered owner was not vicariously liable for the crash.  In reaching this conclusion the BC High Court made the following findings:

[16]         The central question raised by this appeal is whether the effect of Vancouver Motors U-Drive is that whenever a person (“O”), of his own free will, permits his vehicle to be driven by “A”, he is deemed to have consented to the vehicle being driven by anyone, and is thus liable to an injured plaintiff for damages caused by “B”.  In my view, the case does not stand for that proposition.  The grammatical structure and wording of s. 86(1) are such that it is the “person driving the motor vehicle” who must have acquired possession with the owner’s consent.  Thus in cases where B negligently causes damage to a plaintiff, the argument made by the plaintiff depends on proof of implied consent (which as noted above is not argued in the case at bar).  In such instances, British Columbia courts have ruled that O will not be liable, without more, for injuries resulting from B’s operation of the motor vehicle.  The plaintiff must in addition show that the owner had an “expectation and willingness” that the vehicle would be driven by B: see Simpson v. Parry (1968) 65 W.W.R. 606 (B.C.S.C.), per MacFarlane J. (as he then was), citing Martell v. Chartier & Dominion Motors Ltd. [1935] 1 W.W.R. 305 (Man. C.A.) and Antilla v. Majeau (1954) 12 W.W.R. (N.S.) 575 (Alta. Ap. Div.).  More recently, in Godsman v. Peck, supra, this court ruled that without evidence that the owner of a motorcycle who had lent it to another (A), expected that A would lend it to a third party (B), the owner’s consent to B’s operating the cycle could not be implied.  As the Court stated:

There should be evidence to show, or support the inference, that the owner turned his mind to the likelihood of that further transfer of possession. If there is no such evidence, a court finding liability on the owner’s part is not implying consent so much as deeming it. One of the commendable goals of s. 79(1) may be to induce owners of motor vehicles to exercise discretion when transferring control of them to others, but to impose liability in a case where such a transfer was not within the contemplation of the owner would do nothing to further that goal, and simply goes too far.  [At para. 28; emphasis added.]

(See also Smaldino v. Calla [1999] B.C.J. No. 2816 (S.C.).)

[17]         Conversely, consent may be implied from a course of conduct or circumstances known to the owner, as illustrated by Deakins v. Aarsen [1971] S.C.R. 609.  There it was held that an owner who had lent her car to her son to use whenever he wanted it, had not discharged the onus on her under s. 105(1) of the Highway Traffic Act, R.S.O. 1960, c. 172, to prove that when the son had lent the car to his girlfriend, he had done so without the mother’s consent.  The Court emphasized in brief reasons that the car was “for all practical purposes” the son’s car and that his mother exercised no control over who was to drive it.  She had been aware the girlfriend was her son’s “constant companion” and the trial judge evidently disbelieved her evidence that she had told her son not to let anyone else drive the car.

[18]         Counsel for the plaintiff submits that the implied consent cases are irrelevant to this case, which he says concerns “consent at law, not consent in fact”.  In his submission, what was in the owner’s mind is irrelevant as long as he gave up possession of his vehicle as a result of the exercise of his free will.  Thus what Mr. Weatherill characterizes as a “mistake” on Mr. Saul’s part when he gave his consent is neither here nor there – just as the “mistake” under which the employees of the car rental company in Vancouver Motors U-Drive Ltd. were labouring was found not to affect the validity of its consent to the fraudster’s operation of its car.

[19]         In my respectful view, however, this case is very different from Vancouver Motors U-Drive, where the appellant’s employees intended to lend the car to the person standing before them, and that person in fact drove the car.  In the case at bar, accepting the trial judge’s findings of fact, the owner did not consent to Ms. Friesen’s driving his truck.  He was told that “Neal” wanted to borrow it.  That is what Mr. Saul expressly consented to.  It defies common sense to say that he in fact consented to Ms. Friesen’s driving it.  Indeed, the trial judge accepted at para. 37 of his reasons that Mr. Saul would not have lent his vehicle to Ms. Friesen, as opposed to Neal Bourgeois.

[20]         Does the fact that we are here concerned with the application of a statutory provision change this common-sense conclusion?  Again, in my view, the answer is no.  Section 86 does not on its face “deem” one to have the owner’s consent when he or she does not have it in fact; nor does it impose a “legal” definition of consent that is at variance with the ordinary and natural meaning of the word.  The respondents rely heavily on the two purposes of s. 86, as described in Yeung, supra.  I do not see that the second objective is engaged in this case since, despite Mr. Weatherill’s suggestion that Mr. Saul had “casually” consented to lending his car, there is no evidence Mr. Saul did anything other than take reasonable care in consenting to Neal Bourgeois’ using his truck.  The trial judge found that Mr. Bourgeois did not share his partner’s drug addiction and that Mr. Saul is a “reasonably careful person who does not take unnecessary chances.”  (Para. 36.)  As for the expansion of the availability of compensation, s. 86(1) goes only so far: it does not state that whenever a person uses another’s car, the owner is vicariously liable.  The intention of the legislation is to place liability on a person who permits his car to be used by another, where that other negligently causes injury to a plaintiff.  In this case, the person to whom Mr. Saul gave his consent was Neal Bourgeois.  It was not Mr. Bourgeois who drove the truck negligently.

[21]         In the result, I would allow the appeal and set aside the trial judge’s order imposing vicarious liability on Mr. Saul pursuant to s. 86(1) of the Act.


BC Court of Appeal Discusses Soft Tissue Injuries and Credibility

September 22nd, 2010

A decision was released today by the BC Court of Appeal addressing personal injury lawsuits and Judges duties to address credibility issues in their reasons for judgement.

In today’s case (Mariano v. Campbell) the Plaintiff was injured in a 2006 BC motor vehicle collision.  The Plaintiff apparently suffered from chronic soft tissue injuries as a result of this crash.  At trial her claim was successfully prosecuted and she was awarded close to $115,000 for her damages (You can click here to read my post summarizing the trial judgement).

During trial the Plaintiff’s credibility was put squarely at issue with the defense lawyer cross examining the Plaintiff with previous statements in which she stated that her injuries recovered shortly after the collision.  The trial judge dismissed these challenges and found that the Plaintiff was a ‘very credible‘ witness.  The Defendant appealed the judgement arguing that the trial judge “made palpable and overriding errors in assessing the plaintiff’s credibility‘.  The BC Court of Appeal agreed and found that the judge failed to “seize the substance of the critical issues” and ordered a new trial.

It is very unusual for a trial judge’s findings to be overturned on the issue of witness credibility.  In reaching this decision the BC High Court said the following about a judge’s duty to give reasons for judgement explaining how they assessed credibility:

38]         This appeal concerns assessments of witness credibility and findings of fact.  It is well-settled that an appellant court must exercise great restraint in reviewing such matters.  They are properly the province of the trial judge.  In the absence of palpable and overriding error, this Court must defer to the findings of fact of a trial judge (Housen v. Nikolaisen, 2002 SCC 23, [2002] 2 S.C.R. 235).

[39] The function of a trial judge in determining credibility, and the limited role of appellate courts in respect of credibility findings  were discussed by the Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3:

…what is required is that the reasons show that the judge has seized the substance of the issue…The degree of detail required in explaining findings on credibility may also, as discussed above, vary with the evidentiary record and the dynamic of the trial.  The factors supporting or detracting from credibility may be clear from the record.  In such cases, the trial judge’s reasons will not be found deficient simply because the trial judge failed to recite these factors.

[40] This case involved a soft tissue injury.  Because of the lack of purely objective evidence for such injuries, the evidence in support of the plaintiff’s case necessarily derived solely from her own reports of her injuries – either to the court, to her doctors, or (to a lesser extent) to her work colleagues.  In the circumstances, the plaintiff’s credibility was critical to the judge’s assessment of the case.  …

[41] In the case before us, then, a critical issue was whether the plaintiff’s evidence at trial about the course of her recovery was credible.  To make that determination, the judge had to examine the plaintiff’s various statements and the other evidence.

[42] It is my view that the reasons for judgment do not demonstrate that the judge “seized the substance of the critical issues”.  There are several indications that she did not do so.

[45] The trial judge’s treatment of the application for insurance and the applications to the colleges is also problematic. The documents, as previous statements by the plaintiff, were admissible for the truth of their contents.  Indeed, strong arguments can be advanced for accepting the documents as true, particularly given the evidence of Dr. Darby in cross-examination.  The judge, however, does not appear to have considered the possibility that the documents were truthful in stating that the plaintiff had fully recovered by March 2007.  Instead, her reasons suggest that she assumed that the statements to the insurer were false, and that their only value was in respect of an assessment of the plaintiff’s general credibility.  She dismissed them as being of little moment in that assessment.  She did not even mention the statements in the applications to the colleges…

[48] In my view, the reasons are problematic.  The fact that the plaintiff continued to work despite her symptoms does not, on the face of it, have any relationship to her veracity.  The issue in this case was not whether the plaintiff was exaggerating symptoms, or even whether she experienced pain at work at the time of trial.  Rather, it was whether her pain had been ongoing since the time of the accident.

[49] Similarly, the plaintiff’s emotional reaction to her neck problems had no bearing on the question of whether she was being completely forthright with the court in respect of the course that her pain took.

[50] I conclude that, looked at in their entire context, the reasons do not suggest that the trial judge “seized the substance of the critical issues”.  She did not deal with important contradictions in the evidence, and appears to have misapprehended or ignored parts of the cross-examinations of the plaintiff’s witnesses. This constitutes the kind of error that compels this Court to set aside her order.



Defendant Refused Costs at Trial For Failing to Consent to Small Claims Court Transfer

September 21st, 2010

Reasons for judgement were released today addressing whether a Defendant who beat a formal settlement offer should be awarded costs.

In today’s case (Cue v. Breitkruez) the Plaintiff was involved in a rear-end collision.  He sued the rear motorist for damages.  Prior to trial the Defendant made a formal settlement offer for $1.  With liability being hotly contested the Plaintiff proposed that the case be transferred to Small Claims Court.  The Defendant refused to consent stating that “such a transfer would result in greater delay“.

At trial the Plaintiff’s case was dismissed with a finding that the Plaintiff was responsible for the collision.  (You can click here to read my summary of the trial judgement).  The Defendant then applied to be awarded double costs pursuant to Rule 9-1(5) because they beat their formal offer at trial.

Mr. Justice Smith dismissed the application noting that since Rule 14-1(10) generally restricts Plaintiff’s awarded an amount within the small claims court jurisdiction from being awarded trial costs that the Defendant should be refused costs for not agreeing to have the case heard in Provincial Court.  Specifically Mr. Justice Smith noted as follows:

7]             The matter remained in this court subject to an agreement to still limit the claim to what could be awarded in Provincial Court. Had my liability decision been different and the matter proceeded to an assessment of damages, Rule 14-1(10) would have been a bar to an award of any costs, other than disbursements, in favour of the plaintiff.  In my view, fairness requires that the same limitation apply to the successful defendant, particularly as the defendant did not agree to the proposed transfer to Provincial Court.

[8]             I therefore decline to award any costs to the defendant, other than disbursements.  There is therefore no need to consider the offer to settle because there are no costs to double.


Unintended Consequences: ICBC Wage Loss Claims and Undeclared Income

September 20th, 2010

As I’ve previously written, if a person does not declare their earnings when paying their taxes they can still advance a wage loss claim in a personal injury lawsuit, however, doing so not only makes the claim more difficult to prove but also could expose the Plaintiff to repercussions from Revenue Canada.  Reasons for judgement were released last week demonstrating why this is so.

In last week’s case (Thomas v. Thompson) the Plaintiff was involved in a 2005 motor vehicle collision in Kelowna, BC.  He went to trial without a lawyer and advanced a claim for damages for over $1.3 million.   Fault for the crash was admitted by the Defendant.  At trial many of the Plaintiff’s claims were rejected by the trial judge however the Court did accept that the Plaintiff suffered from “continuing pain” as a result of the collision and this would need to be treated on an ongoing basis with medication.  As a result the Plaintiff was awarded damages for non-pecuniary loss and cost of future care.

The Plaintiff gave evidence that he earned an average income of more than $60,000 per year in the period shortly prior to the crash.  However, his tax returns did not reflect this.  Despite the unreported nature of the pre-injury income Mr. Justice Brooke accepted that the Plaintiff did earn a “substantial income” in the years prior to the crash.  The Court rejected the claim for loss of past and future income, however, finding that the Plaintiff’s injuries, while on-going, did not impair his earning capacity.

The end result is that, in advancing an unsuccessful claim for past loss of income, the Plaintiff testified in open court as to the amount of income he earned that he failed to report to Revenue Canada.   As reasons for judgement are publicly available there is nothing stopping government agencies such as Revenue Canada from pursuing Plaintiffs who give such evidence for payment of back taxes and penalties.  These can, of course, be substantial.  The difficulties with advancing wage loss claims when the history of earnings is unreported is demonstrated by the following passage from the trial judge:

[24]         I now turn to the damages claimed by the plaintiff, and the question of credibility.

[25]         First of all, the plaintiff said under oath that he earned an income in 2004 of $63,886 and in 2005 from January 3 to June 28 an income of $31,444 (or more than $60,000 on average a year), in home renovation work. Mr. Dave Novak gave evidence for the plaintiff that he hired him on a regular basis to do home improvements and renovations, based on an estimate in advance, for which he sometimes paid in cash and sometimes by cheque. He did not disagree with the amounts shown by Mr. Thomas on forms of sales orders, but acknowledged that he had no firm recollection. In his 2003 tax return summary, Mr. Thomas reported an income of $21,815 employment insurance benefits. No reference is made to income from employment. In 2004 Mr. Thomas reported an income of $6,840 from employment insurance, and other income of $500 for a total of $7,340. In 2005 Mr. Thomas reported no income, and in 2006 and following Mr. Thomas reported an income of Social Assistance payments varying from a little more than $2,000 a year to almost $11,000 a year. There is no reference to any employment income in any tax return placed in evidence. Mr. Thomas explains this by saying that he did not understand that tax was payable on earned income where the tax payer did not charge GST or PST. I find this to be preposterous. What Mr. Thomas is saying is that he is well informed enough to claim employment insurance benefits, but not well informed enough to report actual income. It is noted that in each year his tax return was prepared by H&R Block, a commercial tax preparer. I also note that Mr. Thomas made an assignment in bankruptcy on August 24, 2007 in which he disclosed liabilities of in excess of $41,000 made up of student loans and credit card debts. While I accept that Mr. Thomas has been challenged in his language skills in the past, and I must consider what role if any this might have played, I find his understanding and usage was fluent and effective and I can only conclude either that he knowingly failed to disclose his true income in his tax returns, or that he did not earn the kind of income that he claims to have made in the home renovation business.

[26]         I find that Mr. Thomas was working in 2003, 2004 and 2005 and earning a substantial income. But, not only was he failing to report that income but he seemingly was drawing employment insurance which is, of course, payable upon being fit but unable to find work.


$75,000 Non-Pecuniary Damages Assessment For Scapulo-Thoracic Junction Soft Tissue Injury

September 17th, 2010

Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, assessing damages for a chronic and partially disabling soft tissue injury.

In today’s case (Knight v. Belton) the Plaintiff was injured in a 2008 rear-end collision.  The rear motorist admitted fault for the crash.  The Plaintiff suffered various injuries the most serious of which was a Grade 2 strain at her scapulo-thoracic junction.  Injuries at this level are notoriously difficult to treat.  While the Court heard competing evidence about whether the injury would recover Madam Justice Gray accepted that it would not and that the Plaintiff would likely experience chronic pain on a permanent basis as a result.

The Court awarded the Plaintiff damages at  just over $480,000 including $75,000 for the Plaintiff’s non-pecuniary damages.  In arriving at this figure Madam Justice Gray provided the following reasons:

[65]         Non-pecuniary damages are damages to recognize losses that have not required an outlay of money or have not involved losing payments. The purpose is to provide solace to Ms. Knight for such things as pain, suffering, disability, inconvenience, and loss of enjoyment of life. One purpose of such damages is to substitute other amenities for those Ms. Knight has lost, not to compensate her for loss of something with a monetary value. The award addresses losses both up to the trial date and which she will suffer in the future…

[67]         Ms. Knight was and is an engaging, enthusiastic, hard-working, and practical woman. She loves dental hygiene. She will not be able to practice it full time, and may have to give up clinical practice altogether.

[68]         Ms. Knight suffered several months of headaches, vertigo, and neck pain. She suffered significant right shoulder pain for about a year. She has on-going chronic mid-back pain and periodic right shoulder pain.

[69]         Ms. Knight is chronically in pain, and as a result, is not as energetic as she was before the accident. She is no longer able to enjoy rough physical play with her children. She is no longer able to enjoy outdoor activities that she previously enjoyed, like running, hiking, boating, skiing, and bicycling. She was unable to contribute as much as she wanted to building the family home. The accident has significantly diminished the quality of her life.

[70]         Ms. Knight referred to these cases: Cleeve v. Gregerson, 2007 BCSC 1112; Gray v. Fraser Health Authority, 2009 BCSC 269; Poirier v. Aubrey, 2010 BCCA 226, 4 B.C.L.R. (5th) 173; and Paller v. Paller , 2004 BCSC 997.

[71]         The defence referred to these cases: Rorison v. Dornan, [1993] B.C.J. No. 752 (S.C.); Letourneau v. Min, 2001 BCSC 1519; Amberiadis v. Groves, 2005 BCSC 1270; Sharpe v. Tidey, 2009 BCSC 948; Ragneborg v. Giesbrecht, 2009 BCSC 110; Sylte v. Rodriguez, 2010 BCSC 207; Henri v. Seo, 2009 BCSC 76; Brock v. King, 2009 BCSC 1179; Anderson v. Merritt (City), 2006 BCSC 90; and Larlee v. Shier, 2008 BCSC 1610.

[72]         I also considered Cathro v. Davis, 2008 BCSC 1645.

[73]         No two cases are alike. Ms. Knight is entitled to damages for pain and suffering in the amount of $75,000.


Change is Coming to BC Limitation Law

September 16th, 2010

The Government of BC intends on overhauling the BC Limitation Act. As Ian Mulgrew of the Vancouver Sun points out, this proposed law reform is something that matters to everyone, not just personal injury lawyers and claimants.

The Government has released a White Paper discussing the proposed changes at length. The proposed New Limitation Act can be found at Appendix A of the White Paper. On review it is clear that the proposed changes are not concrete and the Government is seeking feedback before bringing the law into force.

Members of the public can contact the Government with any concerns or suggestions no later than November 15, 2010, at:

Civil Policy and Legislation Office

Justice Services Branch

Ministry of Attorney General

PO Box 9222 Stn Prov Govt

Victoria, British Columbia V8W 9J1

Fax: 250 387-4525

E-Mail: CPLO_Limitation@gov.bc.ca

One of the goals of the reformed act is to “simplify” the law. On review there is nothing simple about the proposed new law and it seems every bit as complex as the current Limitation Act. There are some proposed changes that are noteworthy including:

Replacing varying basic limitation periods with a standard 2 year period

Reducing the Ultimate Limitation Period from 30 years to 10 or 15 years

Redefining “Discoverability” of a potential lawsuit

Abolishing the special ultimate limitation period for medical malpractice claims

Continuing to waive limitation periods for civil lawsuits for damages as a result of sexual assault

There are other proposed changes as well and I suggest that anyone interested in this topic review the proposed new law in full.  If you have concerns about how these reforms may affect your rights or have suggestions for improved changes please be sure to contact the Government prior to the November 15 deadline.