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 December, 2010

More on Valuing Damages for Modest Soft Tissue Injuries

December 31st, 2010

As previously discussed damages for non-pecuniary loss (pain and suffering and loss of enjoyment of life) are best thought of in ranges.  The same injury can be valued differently by individual trial judges and for this reason its important to get a sense of the low end and high end of appropriate compensation for your injury when considering settlement.  The best way to do this is to review as many cases as possible dealing with similar injuries.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing non-pecuniary damages for a modest soft tissue injury of nine months duration.

In today’s case (Thomson v. Hunt) the Plaintiff was involved in a December 2007 collision in Coquitlam, BC.  Fault was denied by the Defendant although the trial judge found him entirely responsible for the crash.  The Plaintiff suffered from soft tissue injuries affecting his left shoulder, arm and neck.  These were acute for three months and disabled the plaintiff from work during this time.  From there the injuries continued to improve until they were “essentially symptom free” some 10 months following the crash.   Mr. Justice Schultes valued the Plaintiff’s non-pecuniary damages at $20,000 and in doing so provided the following reasons:

[60]        Bearing in mind that Mr. Thomson’s continuing symptoms were not sufficiently serious to require further medical attention, I find that the link Dr. Fyfe makes between his work duties and the presence of symptoms in the areas described is plausible, particularly in light of what she identified as the difficulties Mr. Thomson endured when undertaking strenuous duties during the earlier stages of his recovery. I find that although Mr. Thomson’s symptoms diminished to such an extent as to no longer require him to seek ongoing medical treatment and engage in physiotherapy, those symptoms persisted in one form or another until the end of August 2008.

[61]        Mr. Thomson himself does not suggest that his symptoms were as severe once he returned to work. In his affidavit sworn February 26, 2010, at para. 49 he deposed that:

Most of my injuries had improved quite a bit before I returned to work on March 10, 2008. I remember that the pain in the left shoulder, left arm and between the shoulder blades were still lingering when I returned to work. I had periodic neck pain which was aggravated by work, as my job involved a lot of looking up.

[62]        I think this candid description weighs substantially in favour of Mr. Thomson’s credibility and distinguishes him from those plaintiffs who maintain that their physiological problems continue undiminished for very lengthy periods, well past what objective medical or other evidence can possibly support.

[63]        In all the circumstances, I think that the duration of Mr. Thomson’s most serious symptoms and the limited extent to which they interfered with his pre-collision lifestyle calls for a lower award than those awarded in the cases he relies on. However I have no concerns on the evidence that Mr. Thomson may have exaggerated his symptoms, so I think that a substantially higher award than the nominal ones in the cases Mr. Hunt relies on is warranted.

[64]        I, accordingly, award Mr. Thomson $20,000 for non-pecuniary damages.

If you’re looking for other recent soft tissue injury damages assessments by BC Courts feel free to access my archived posts on this topic (fairly comprehensive from 2008-present).  Another great resource is Canlii, a free Canadian legal case-law database.

Transferring To Small Claims Court and the New Supreme Court Rules

December 30th, 2010

Despite the many changes in the New BC Supreme Court Civil Rules, one area that has not appeared to change relates to transferring a lawsuit from the BC Supreme Court to the BC Provincial Court (Small Claims Court).  The reason for this is that the authority to make such a transfer is not in the Supreme Court Rules, but rather in Supreme Court Act which was not overhauled in the recent transition.

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, demonstrating that authorities developed prior to the Rules overhaul remain good law.

In today’s case (Madill) the Plaintiff sued the Defendant following a commercial transaction.  The lawsuit, if successful, would have resulted in damages below $25,000 and could have been brought in Small Claims Court.

The Defendant set down a motion to dismiss the Plaintiff’s claim and seeking costs.  Prior to this motion proceeding the Plaintiff brought her own motion to move the claim to Provincial Court.  Master Bouck granted the Plaintiff’s motion and awarded each party tariff costs for various steps taken while the claim was in the Supreme Court.  Prior to arriving at her decision Master Bouck set out the following test for transfer applications under section 15 of the Supreme Court Act.

[10]        Applications to transfer proceedings from the Supreme Court to the Provincial Court are somewhat commonplace. The test to be met is set out in Squamish Ford Sales Ltd. v. Doll, [1997] B.C.J. No. 1562 at paras. 16 and 17:

16 Reference has been made to the decision of Master Chamberlist in Manley v. Burns Lake Community Development Assn. [1996] B.C.J. No. 2236. Smithers Registry No. 8953, where the learned master considers some factors which may be applicable on such applications:

[10]      In Hiebert v. Brown, [1995] B.C.J. No. 2015, in dealing with a similar application, I stated that the court in exercising its powers under s. 13.1, must determine whether in all the circumstances it would be just and convenient to order a transfer to Provincial Court after balancing the prejudices to the respective parties.

[11]      Examples of considerations the court has taken into account in balancing these prejudices include, but are not limited to, the following considerations:

(a)        lateness in making the application for transfer;

(b)        availability of Supreme Court pre-trial procedures;

(c)        number of witnesses and the complexity of the case; and

(d)        potential quantum of damages.

17 The plaintiff refers to the decision of Master Horn in Martin v. Tom [1995] B.C.J. No 2342, I turn for assistance to the decision of Master Powers in Long v. Jackson (1994) 88 B.C.L.R. (2d) 46. In that judgment he set forth a number of matters which required consideration in relation to an application to transfer to the Provincial Court. I will not repeat all those considerations. The considerations which most affect me are these:

1)         There will likely be no delay in this matter coming for trial if the action is transferred to the Provincial Court.

2)         While this is a proper case for the consideration of a jury, being an issue of quantum of damages only, a jury trial would be far more expensive and lengthy.

3)         Discoveries have been completed and so neither party will be prejudiced by the paucity of discovery procedures in the Provincial Court.

4)         The application is brought well before the trial date.

[11]        In this case, the application is brought early in the proceeding; neither party wishes to utilize the Supreme Court pre-trial processes; and there is no evidence of any delay in having the matter adjudicated in Provincial Court.

"Demystifying" Mild Traumatic Brain Injury

December 29th, 2010

(Update: the Defendant’s Appeal of the below judgement was dismissed by the BC Court of Appeal on February 7, 2012)

Many of you may be aware of ICBC’s current “demystifying” campaign.   There are many misunderstood topics related to injury lawsuits and one of the most prominent is that of mild traumatic brain injury (MTBI).  Reasons for judgement were recently released by the BC Supreme Court, Chilliwack Registry, demystifying some of the arguments that are commonly raised in opposition to these claims.

In today’s case (Madill v. Sithivong) the Plaintiff was involved in a 2004 BC motor vehicle collision.  The Plaintiff’s vehicle was struck on the passenger side by the Defendant’s vehicle.  The issue of fault was admitted by the Defendant with the trial largely focussing on the value of the Plaintiff’s claim.

The collision was not significant, from a vehicle damage perspective, causing little over $1,700 in damage to the Plaintiff vehicle.   Despite this the Plaintiff suffered a traumatic brain injury in the crash.  ICBC argued that the injuries were not serious in part because the vehicle damage was modest, the Plaintiff had a ‘normal‘ Glasgow Coma Scale score of 15/15 noted on the ambulance crew report and that the hospital records relating to the treatment of the Plaintiff noted that he suffered from “No LOC (loss of consciousness)” and “zero amnesia“.

The Plaintiff called evidence from Dr. Hunt, a well respected neurosurgeon, who gave evidence that the above facts were not determinative of whether the Plaintiff suffered from serious consequences related to MTBI.  Madam Justice Morrison was persuaded by Dr. Hunts’ evidence and accepted that the Plaintiff suffered from long term consequences as a result of an acquired brain injury.  In rejecting the defence arguments Madam Justice Morrison provided the following ‘demystifying‘ reasons:

[112]     Dr. Hunt said he tries to concentrate on the individual.  He finds it helpful to see the notes of the family doctor, which deal with initial complaints, as do the notes of the ER doctor and responders.  But he notes that those doctors are very busy, and things get overlooked.  The same is true with an ambulance crew.  Dr. Hunt stated there may be no loss of consciousness, but there may be a loss of awareness.  An ambulance crew may give a 15 score for the Glasgow scale, indicating normal, but that could be misleading.  He also noted that someone may be described as being in good health pre-accident, but that would not mean he would not have issues.

[113]     Dr. Hunt disagreed that the best evidence of whether the plaintiff was an amnesiac, were notes at the hospital of “no LOC” and “zero amnesia”.  It was the evidence of Dr. Hunt that no matter how many times you see those terms, that a patient is alert and wide awake, that sometimes in looking at crew reports, the necessary information is not there.  A person does not need to strike his head for a concussion to have occurred.  It need only have been a shaking.

[114]     It is important to explain what a mild traumatic brain injury is, he stressed; Dr. Hunt referred to the many concussions in sports.  He said it is important to look at what happened following the accident, what symptoms have occurred and are continuing to occur.  Patients often deny a loss of consciousness or a loss of awareness, and it may be so fleeting that they may well be unaware.  But if the head has been shaken or jarred enough, this will equal a concussion, which is the same as a mild traumatic brain injury.  There may be no indication of bruises on the head, but it still could be a concussion.  Dr. Hunt noted that something prevented the plaintiff from exiting the vehicle, so the Jaws of Life was used.

[115]     Dr. Hunt noted that Dr. Tessler agreed that the plaintiff had a cerebral concussion in his initial report, but it was the opinion of Dr. Hunt that Dr. Tessler was not up to date on mild traumatic brain injuries.

[116]     In his evidence, Dr. Hunt listed some of the symptoms that are compatible with a concussion having occurred:  headaches, altered vision, balance difficulties, general fatigue, anxiety, memory disturbance, inability to manage stress.  “A concussion is a mild traumatic brain injury.  We no longer grade concussions.”

[117]     I found Dr. Hunt to be an excellent witness.  He was cautious, detailed, thoughtful, low key, thorough and utterly professional.  In cross-examination, he gave a minor clinic on mild traumatic brain injuries.  He was subjected to a rigorous, lengthy and skilful cross-examination, which only served to expand upon and magnify his report and opinions.

[118]     He commented on the history of Mr. Madill prior to the accident, pointing to a number of things that may have caused excessive jarring or shaking of the head, even if there had been no symptoms of concussion.  He believes that the first responders’ observations are not always accurate as to what actually happened.  He said he himself may not have identified problems of concussion at the scene of the accident.  Ninety percent of people with concussions have headaches.  They have difficulty describing the headaches, and they are not the same as migraine or tension headaches.

[119]     Dr. Hunt was further critical of Dr. Tessler in opining that Dr. Tessler had diluted his opinion, and that he had concerns with the report of Dr. Tessler.  He felt that Dr. Tessler was still “in the dark ages” with regard to mild traumatic brain injuries, that he has not had the advantages that Dr. Hunt has had in working with sports brain injuries.  “Concussion is cumulative.”

[120]     I found the report and the evidence of Dr. Hunt persuasive.  He came across as an advocate of a better understanding of concussions or mild traumatic brain injuries, not as an advocate on behalf of the plaintiff.

In addition to the above, two other topics were of interest in todays’ case.  Evidence was presented by ICBC though private investigtors they hired who conducted video surveillance of the Plaintiff.  The Court found that this evidence was of little value but prior to doing so Madam Justice Morrison made the following critical observations:

[74] Much of the videotaping occurred while both the plaintiff and the private investigator were moving on streets and highways, driving at the speed of other traffic.  The investigators testified they drove with one hand on the wheel and the other hand operating the video camera, up at the side of their head, to allow them to view through the camera what they were taping.  That continues to be their practice today, according to at least one of the investigators, which was interesting, considering from whom they receive their instructions, a corporation dedicated to road safety.

Lastly, this case is worth reviewing for the Court’s discussion of diminished earning capacity.  In short the Plaintiff was self employed with his spouse.  Despite his injuries he was able to continue working but his spouse took on greater responsibility following the collision.  The Court recognized that the Plaintiff suffered from a diminisehd earning capacity and awarded $650,000 for this loss.  Paragraphgs 193-210 of the judgement contain the Court’s discussion of this topic.

Interest on Disbursements in Injury Claims Recoverable "As a Matter of Principle"

December 28th, 2010

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, illustrating a welcome development in BC personal injury law.

As discussed on previous occasions, injury lawsuits can be expensive and oftentimes individuals rely on their lawyers to finance the costs necessary to prosecute their claim.  These costs can easily add up to tens of thousands of dollars and significant interest can accrue on these expenses (called disbursements).  After claim settlement or trial a debate often arises as to who should pay the interest on disbursements.

Earlier this year Mr. Justice Burnyeat held that “The law in British Columbia is that interest charged by a provider of services where the disbursement has been paid by counsel for a party is recoverable as is the disbursement.  The interest charge flows from the necessity of the litigation.  If the disbursement itself can be assessed as an appropriate disbursement, so also can the interest owing as a result of the failure or inability of a party to pay for the service provided.” Last week a case was released going further holding that in the appropriate circumstances interest charged by lawyers for financing disbursements can be recoverable as a disbursement.

In last week’s case (Basi v. Atwal) the Plaintiff was injured in a motor vehicle collision.  The Plaintiff hired a lawfirm that financed the prosecution of the claim.  The lawfirm did so through a line of credit which in turn charged interest.  The interest was passed on to the client.  After settlement ICBC argued that the interest charged was not a reasonable disbursement.  Registrar Bolton disagreed and provided the following instructive reasons:

…In… Milne v. Clarke [2010], BCSC 317, the learned judge quite clearly says that the successful party is entitled to interest on a specific disbursement where the provider of the service in question had charged interest to counsel for that party.

I see no reason in principle to distinguish this decision on the basis that in the Milne case, the interest has been charged by the provider of the service to the law firm and, therefore indirectly to the client, whereas here the interest is being charged directly by the lawyers pursuant to an agreement they have with their own bank.

So I am satisfied that the charge is potentially proper, give the appropriate circumstances.  Here, the circumstances are that the law firm has an arrangement with its own bank to fund disbursements.  They are funded on the basis of an agreement of paying six percent over prime.  I am satisfied that that is a reasonable interest rate in these circumstances…

So to summarize: first of all, I accept that the principle of allowing interest is one that the law recognizes, at least since this decision of Mr. Justice Burnyeat.  Secondly, I am satisfied that the accounting that would be required to satisfy the court that the charge does relate specifically to this particular file, has been properly done.  Thirdly, I am satisfied that the interest rate being charged by the bank is reasonable…

In those circumstances, that only leaves the question of amount to be decided…as a matter of principle, or law, I suppose, I am satisfied that a claim for interest here is proper.

As readers of this blog know, I like to link to the full judgments of the cases discussed here.  As of the date I write this post Basi v. Atwal remains unpublished.  I will link to the case should this change but in the meantime am happy to e-mail a full copy of the case to anyone who may need it.

Challenging ICBC Surveillance Disbursements – Evidence of Necessity Required

December 27th, 2010

If parties to a lawsuit can’t agree which disbursements were reasonably incurred they can ask the Court to decide the issue.  As recently discussed, it is important for parties to bring appropriate evidence to Court to justify their disbursements.  This was further addressed in reasons for judgement released today by the BC Supreme Court, New Westminster Registry.

In today’s case (Hambrook v. Sandhu) the Plaintiff was injured in a 2004 BC motor vehicle collision.  In the course of the lawsuit ICBC made a formal offer to settle the claim for $75,000.   About 16 months later the Plaintiff accepted the offer.  The formal offer had a declining value reducing its amount by ICBC’s ‘costs and disbursements‘ incurred following the delivery of the offer.

After the offer was accpeted ICBC produced a bill of costs totalling almost $28,000.   Once of the biggest disbursements included in this total were the accounts of a private investigator who was retained to conduct video surveillance of the Plaintiff.  These accounts totalled almost $20,000.

The Plaintiff argued that ICBC’s disbursements were unreasoble.  Eventually the BC Supreme Court was asked to decide the issue.  Master Keighley sided largely with the Plaintiff and reduced ICBC’s account to just over $6,000.  In doing so the Court provided the following reasons refusing the disbursements related to the private investigator and addressing the need for parties to come to Court with adequate evidence:

[11]         As a general proposition, the party claiming reimbursement for sums expended in the course of litigation bears the burden of establishing the reasonableness of the charges claimed.

[12]         I have suffered, on this assessment, from a paucity of evidence offered by the defendants in support of the disbursement claims. With respect to the Lanki Investigations Inc. invoices I have no evidence before me as to the necessity for or results of these investigations. I am told by counsel that the investigations, which consisted largely of video surveillance, were instrumental in resolving this claim. I have no evidence as to this effect, however, only records of the amount of time spent by various individuals. I note that the surveillance took place after the delivery of the offer to settle and in the last two weeks prior to trial. Mr. Smith says that the surveillance materials were of little value and that the case settled when it did because of a clarification in the law of costs and a change in his client’s employment. The former, he says, meant that his client would potentially net more money as a result of accepting the offer than he had previously anticipated, and the second meant a substantial limitation of his claim for loss of future earnings. These details are confirmed to some extent by the plaintiff’s affidavit of February 6, 2009. In the circumstances, while I am not prepared to say that the defendants’ expenses for surveillance were entirely unreasonable, I am compelled by the tariff item and the case law to allow them only if settlement was achieved as a result of the services provided. In the absence of any evidence from the defendants on this point, I cannot do so. The Lanki accounts are disallowed.

Plaintiff's "Disadvantaged" Financial Circumstances Disentitle ICBC to Costs

December 26th, 2010

There have been many cases dealing with “the relative financial circumstances of the parties” focussing on whether a Defendant is insured in deciding the costs consequences after trials with formal settlement offers. (The BC Court of Appeal weighed in on this issue earlier this year deciding insurance can in fact be considered).  There have not, however, been many cases dealing with the Plaintiff’s finances (or lack thereof) as a compelling circumstance.  This overdue issue was addressed earlier this week by the BC Supreme Court, Victoria Registry.

In today’s case (Dickson v. ICBC) the Plaintiff was injured in a bicycle accident involving an unknown motorist.  He sued ICBC under s. 24 of the Insurance (Vehicle) Act.  ICBC denied fault on behalf of the unknown driver.  Prior to trial ICBC offered to settle the issue of fault on a 50/50 basis.  The plaintiff rejected this offer and went to trial where Madam Justice Russell found both parties equally at fault.

Typically, when ICBC matches or beats their formal offer at trial, ICBC becomes entitled to post offer costs.  Madam Justice Russell refused to follow this usual course, however, noting that the Plaintiff’s financial circumstances put the plaintiff at a ‘serious disadvantage‘.  In awarding the Plaintiff costs to the time of the offer and depriving both parties of post offer costs Madam Justice Russell held as follows:

[13]    It is my view that the plaintiff’s position is one of serious disadvantage as a result of the accident.  I recall that he was unable to work for a long period of time as a result of his injury and was still unable to return to work by the time of the hearing.

[14]    The plaintiff is the sole support of his family and either had run out of disability benefits or was close to the end of those benefits by the time of the summary trial…

[17]    I view the financial circumstances of the plaintiff as compelling on the issue of whether double costs should be awarded.

[18]    In Osooli-Talesh v. Emami, 2008 BCSC 1749, the offer to settle matched the judgment achieved and Sigurdson, J. concluded that the court may award payment of double costs where an offer to settle matches the results at trial.  However, he went on to consider all the factors listed in Rule 37B.  He determined that the parties had divided success and should therefore bear their own costs.

[19]    I am guided by that decision and consider it apposite to the circumstances of this case.

[20]    I award costs of this case to the plaintiff to the date of the receipt of the defendants’ offer to settle and order both parties to bear their own costs thereafter.

Cross Examination Beats Up RCMP Officer's Injury Claim

December 24th, 2010

As previously discussed, cross examination is one of the most important tools in a trial lawyer’s arsenal.  This tool can be used both during examination for discovery and trial.  Cross examination can be used to explore and weaken an opponents case.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, harshly criticizing an RCMP officer and largely rejecting his injury claim based on evidence elicited during an extensive cross examination.

In today’s case (Lee v. Jarvie) the Plaintiff was involved in a rear-end collision in 2004.  Fault for the crash was admitted.  The trial focused on the value of the Plaintiff’s claim.  The Plaintiff was in the midst of applying for the RCMP at the time of the crash.  He was injured but fortunately was able to complete his application and training and went on to be successfully employed with the police force.

ICBC accepted that the Plaintiff was injured but argued that his injury claim was exaggerated challenging “the authenticity of (the Plaintiff’s) claim“.  Mr. Justice Gaul largely accepted this argument and dismissed a significant portion of the claim.  The below are some of the critical words the Court had of the Plaintiff:

[46] Mr. Lee was vigorously cross-examined by counsel for the defendants. By “vigorous” I do not mean the questioning was improper or disrespectful of the witness. I find the extensive cross-examination of Mr. Lee successfully revealed a number of significant and illuminating facts that, but for their disclosure, the court would have been left with an inaccurate impression and understanding of Mr. Lee’s situation and condition…

[71] In addition to eliciting important facts that have placed Mr. Lee’s claim in a more fulsome context, counsel for the defendants was also able to expose a number of contradictions and inconsistencies in Mr. Lee’s evidence, of which I will address but a few…

[81] While I am hesitant to find Mr. Lee fabricated his evidence on this point, I do find him to be an unreliable and inaccurate historian with respect to the amount and frequency of medication he has been taking…

[86] In great measure I agree with the submission of the defence that Mr. Lee’s evidence shifted during the course of his testimony and at times contradicted what he had said previously at his examination for discovery. On occasion I also found myself simply disbelieving Mr. Lee….(some of his evidence) stretches the boundaries of belief beyond their limits…

[87] In general, I found Mr. Lee to be less than forthright during his evidence and on more than one occasion I found him to be deliberately evasive in answering the question asked of him…

[89] It was only on account of detailed and probing cross-examination that a number of important and salient facts relating to Mr. Lee’s claim were disclosed or clarified. These details placed Mr. Lee’s claim in a markedly different light to the one based solely on what he said in his examination-in-chief. This, in conjunction with the inconsistencies or contradictions that were exposed in Mr. Lee’s evidence, compels me to approach his evidence with caution and scepticism. In general, I am not satisfied with Mr. Lee’s evidence. Unless I have indicated otherwise in these reasons, where there is a conflict between Mr. Lee’s evidence and that of another witness, I have given greater weight to the evidence of the other witness.

Further to my previous posts on credibility, cases such as today’s are worth reviewing in full to get a sense of the types of factors trial judges take into consideration in weighing the evidence of a party.  Today’s case in particular is a good introduction to cross examination in injury claims because the Court reproduces extensive portions of the Plaintiff’s cross examination and explains the damaging effect this had on his credibility.

BC Injury Trials and Adequate Reasons for Judgement

December 23rd, 2010

As previously discussed, Judges presiding over Civil Trials in BC have a duty to provide adequate reasons for judgement explaining why they arrived at their decision.  Failure to do so could result in a new trial.  Reasons for judgement were released today by the BC Court of Appeal further discussing this area of law.

In today’s case (Bjornson v. Shaw) the Plaintiff was injured in a BC collision.  She sued for damages and was awarded over just over $565,000 in total damages by Mr. Justice Scarth.

The Defendant appealed this award arguing that the Trial Judge failed to provide adequate reasons for judgment.  The BC Court of Appeal agreed an ordered a new trial.  In doing so the Court provided the following reasons addressing the need for sufficient reasons for judgement:

[18]         In Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 317 D.L.R. (4th) 419 para. 62, Doherty J.A., writing for the Court, affirmed that a determination of whether reasons properly fulfill their objectives must be examined in the context of the proceedings from which they emanate, including the issues raised, the evidence adduced, and the submissions of counsel. As well, he provided this guidance in assessing the adequacy of reasons:

[61]      Reasons for a decision serve several salutary purposes. Where there is a right of appeal from that decision, reasons must provide a sufficient window into the decision to allow meaningful appellate review to the extent contemplated by the permitted scope of the appeal. Reasons for a decision that describe both what is decided and why that decision was made are susceptible to effective appellate review. Whatever other shortcomings may exist in reasons that adequately explain the “what” and the “why”, those shortcomings will not render the reasons so inadequate as to justify appellate intervention on that basis: R. v. Sheppard, [2002] 1 S.C.R. 869, at paras. 25-26; R. v. Braich, [2002] 1 S.C.R. 903, at para. 31; R. v. R.E.M., [2008] 3 S.C.R. 3, at paras. 15-18, 52-53.

[19]         Applying those principles here, the only issue at trial was quantification of damages. The gap between the parties’ positions was substantial. While the trial judge found the respondent a credible witness, she was still obliged to prove her damages under each head, and there was conflicting evidence from other sources on important issues that had to be resolved. Various inferences were open to the trial judge, depending on the facts he found and the weight he gave to them…

[26]         The respondent is correct in saying a trial judge need not address each detail of the evidence, or set out every aspect of his analysis. I also accept that judges commonly quantify damages in an amount that falls between the positions taken by the parties. I am nevertheless persuaded the reasons in this case fail to fulfill the objectives established in F.H. v. McDougall. They do not sufficiently explain or justify the awards made. They do not let the appellant know why she did not succeed in limiting the damages. They preclude meaningful appellate review in that the absence of critical factual findings and analysis limits the parties’ ability to identify reviewable errors.

[27]         Deficient reasons constitute an error of law: Law Society of Upper Canada v. Neinstein at para. 94. The appropriate remedy must be a new trial. It is thus unnecessary to consider the second ground of appeal.

[28]         I would accordingly allow the appeal and direct a new trial.

ICBC's Hit and Run Appeal "Doomed to Failure"

December 23rd, 2010

Reasons for judgement were released today by the BC Court of Appeal dismissing ICBC’s appeal of judgment finding them liable for injuries caused during a 2004 “gas and dash” incident.

In today’s case (Nayar v. ICBC) the Plaintiff was the owner of a gas station.  An unknown motorist fuelled her vehicle and attempted to drive away without paying.  The Plaintiff confronted the unknown motorist and stood in front of her vehicle.  The motorist then inched forward and revved her engine.  The Plaintiff placed his palms on the hood of the vehicle at which time the motorist “accelerated to 100 kph while (the Plaintiff) lay on the hood of the vehicle, and then turned sharply, throwing him to the pavement“.

The Plaintiff could not ascertain the identity of the driver so he sued ICBC for compensation under section 24 of the Insurance (Vehicle) Act.  At trial ICBC argued that “the plaintiff is wholly to blame for his injuries“.  Madam Justice Gropper disagreed finding ICBC liable to pay the Plaintiff damages.  In doing so the Court made the following findings:

[]           It is unfortunate that the plaintiff placed himself in front of the Volkswagen, but Jane Doe was entirely at fault.  The events and the injuries which the plaintiff sustained were due to Jane Doe’s blameworthiness.  Even if the plaintiff should have followed the gas-and-dash instructions, and even if he went in front of the Volkswagen, and even if he made a stop motion and placed his hands on the hood of the Volkswagen, the blameworthiness or fault which caused the plaintiff’s injuries were the actions of Jane Doe.

[]           Unfortunately, since the date of this incident, another gas attendant not following the gas-and-dash instructions was dragged to his death by a customer who did not pay for his gas purchase.  The Legislature has responded by implementing a system where customers must pre-pay for their gas purchases.  This is a much more infallible gas-and-dash avoidance procedure.

[]           In the result, I find Jane Doe to be solely responsible for the event which occurred and the plaintiff’s injuries which resulted.

[]           Judgment is therefore entered against the nominal defendant, ICBC.

ICBC appealed this finding although the appeal was dismissed for lack of timely prosecution.  ICBC Applied to reinstate the appeal but this failed as well with the BC High Court finding that ICBC’s appeal was ‘doomed to failure’.  The Court of Appeal provided the following useful reasons:

[6] I am unable to see any error in principle in the reasons expressed for dismissing the application to reinstate the appeal. In my view, it is clear Groberman J.A. considered each of the criteria that govern the kind of application that was before him. As he stated, it was not for him to assess whether the appeal would succeed or fail save for the very limited purpose of deciding whether it was appropriate to reinstate it. That required him to consider the merit in the one ground of the appeal advanced. Having done so, he determined it was insufficient to justify reinstatement, which was the issue before him. That was his determination to make. I see nothing inconsistent in his effectively characterizing the merits of the appeal as being so very weak as to render the appeal doomed to failure. For the purpose of considering reinstatement, he did not have to decide there was absolutely no merit in the appeal to conclude it was doomed, only that there was insufficient merit to justify its being reinstated.

Wage Loss Claims, Document Disclosure and Proportionality

December 22nd, 2010

As previously discussed, the new BC Civil Rules have changed the test of document production in the pre-trial discovery process.  The test has been narrowed from documents “relating to every matter in question in the action“ to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“.  In addition to this the Court must take the concept of ‘proportionality‘ into account when considering an order to produce third party records.

Reasons for judgement were released considering this narrower obligation in the context of an ICBC claim.

In today’s case (Tai v. Lam) the Plaintiff was involved in a 2006 motor vehicle collision.  The Plaintiff was injured and claimed damages.  The Defendant asked that the Plaintiff produce his bank statements from the date of the accident onward in order to “defend against (the Plaintiff’s) claim for loss of earning capacity”  The Plaintiff refused to provide these and a motion was brought seeking production.    Master Baker dismissed the motion and made the following useful comments about document disclosure obligations under the new rules and the concept of proportionality:

[5]             I am not going to make the order sought.  I agree entirely with Mr. Bolda’s view of this, which is that it is essentially one production too far, that the information and details sought goes beyond what is reasonable, even on a redacted basis.  To ask that all the bank statements be produced is a broad, broad sweep.

[6]             Sitting here listening, it struck me, it is as if a party who commences proceedings and says, “look, I have been injured and I have suffered financial losses” is inviting some kind of a Full Monty disclosure, that they are expected to produce all financial information they might ever have out there.  Even if it is suggested or offered today that that be done on a redacted basis, it is still, in my respectful view, a requirement for production that is excessive.

[7]             It certainly raises big issues about privacy and if one says, “well, redaction would fix that”, what does it take for counsel to sit down and patiently, carefully redact their client’s bank records for four and a half years?  If that is not a question of confidentiality and privacy, it is a question of proportionality, which is just as concerning to me today as the other issues.

[8]             The banking records.  I am also persuaded by Mr. Bolda’s argument, and a  common position taken today, that the judgment will be one of assessment, not calculation, that the trial judge will have multiple facets to consider and amongst them the gross income.  And while it is for the defence to present and structure its case as it wishes, it seems to me that if it successfully attacks any of these claims for expenses it can only increase Mr. Tai’s income, and I cannot see the value in that perspective.

[9]             I know that until recently the standard in this province was Peruvian Guano and locally Dufault v. Stevens, but that standard has changed.  There has to be a greater nexus and justification for the production of the documents in a case, and I am satisfied that that standard has not been met here today, so that the application is dismissed.