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 January, 2011

Relying on Police Alone Insufficient Effort in ICBC Hit and Run Injury Claim

January 31st, 2011

As previously discussed, when suing ICBC for damages as a result of the actions of an unidentified motorist (UIM), a Plaintiff needs to make reasonable efforts to ascertain the identify of the UIM.  Failing to do so will prove fatal in the claim against ICBC under s. 24 of the Insurance (Vehicle) Act.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, discussing whether relying on the police to investigate the identity of an unknown motorist is sufficient.

In this week’s case (Lort v. Kwan) the Plaintiff was involved in a motor vehicle collision.  The Plaintiff was on a motorcycle travelling behind the defendant’s vehicle.  An Unidentified Motorist changed lanes in front of the Defendant causing the Defendant to hit her brakes and swerve to the right which in turn caused a collision with the Plaintiff.  Mr. Justice Armstrong found that all 3 motorists were partly to blame for the crash with the UIM and the Defendant each bearing 40% of the blame and the Plaintiff being 20% at fault.

Despite finding that the UIM was partly to blame the Court dismissed the Plaintiff’s claim against ICBC (who was sued in place of the UIM) because the Plaintiff failed to take reasonable steps to identify the UIM following the crash.  Mr. Justice Armstrong provided the following reasons:

[36] The plaintiff did not post signs looking for help in identifying the UIM. Although he did return to the scene of the accident some weeks late to take pictures, he did not advertise in an effort to identify the UIM, nor did he question any of the merchants in the busy commercial area. He did not make any enquiries of the police. He said that he thought that the police were handling the investigation of the accident. The plaintiff submitted a claim under the unidentified motorist provisions of the Act…

[99]         The plaintiff acknowledges that he did not advertise, post signs or notices, attend at the scene of the accident to make inquiries of merchants in the neighbouring area, or follow up with the police after his initial contact with them at the time of the accident.

[100]     ICBC submits that the plaintiff’s failure to take any of the steps ordinarily associated with all reasonable efforts to identify the owner or driver of a vehicle who has caused an accident is fatal to his claim against it.

[101]     I conclude that the plaintiff did not make any reasonable efforts to identify the UIM involved in the accident other than speaking to the police who attended the accident scene and later  in the hospital. He left everything to the police without ever following up on their progress.

[102]     In the circumstances, I conclude that the plaintiff’s failure to take reasonable steps precludes him from succeeding in this action against the ICBC. Accordingly, although I have concluded that the UIM is 40% at fault, I dismiss the action against ICBC with costs.


Court Lacks Discretion To Deviate From Costs Agreement In Formal Settlement Offers

January 27th, 2011

Authorities under the formal Rule 37B held that when a formal settlement offer dealing with costs consequences was accepted the BC Supreme Court had no discretion to make a different order with respect to costs.  The first case I’m aware of dealing with this issue under the New Rules was released today.  The Court upheld the principle developed under the former rule.

In today’s case (Sahota v. Sandulo) the Plaintiff was involved in a 2004 motor vehicle collision in Surrey, BC.  He started a lawsuit which was set for trial by Jury.  In the course of the lawsuit the Plaintiff incurred significant disbursements advancing the claim.  Fearful that the Jury trial would not go favorably the Plaintiff delivered a formal offer of settlement of $3,000 “plus court costs and disbursements“.  The Defendant accepted the formal offer.

The parties then could not agree on the costs consequences.  The Defendant brought a motion to address this issue.  Mr. Justice Armstong held that precedents developed under Rule 37B remain good law and that the Court has no discretion with respect to costs awards in these circumstances.   The Court provided the following reasons:

[28] Generally, the Court has discretion in relation to costs; however, where an offer to settle with specific terms as to costs has been accepted, to which Rule 9-1  applies, the Court does not have discretion to vary the terms of that agreement as they relate to costs.

[29] In Buttar v. Di Spirito, 2009 BCSC 72, Gerow J. held:

[11]      Both parties advanced arguments that the court has discretion under Rule 37B to make an order regarding costs. However, it is my opinion that the court has no discretion to make an order regarding costs in this matter. Mr. Buttar accepted the offer put forth by the defendants, including the offer regarding costs, without reservation. It is my view that Rule 37B does not confer discretion on the court to set aside an agreement that has been entered into between the parties regarding costs.

[33]         The rule in Buttar has been consistently applied in this Court and appears determinative of this issue.

[34]         Buttar and cases following it did not address Rule 9-1(4) as it relates to an accepted settlement that addresses costs. Rule 9-1(4) states:

(4)        The court may consider an offer to settle when exercising the court’s discretion in relation to costs.

[35]         Buttar held that the Court does not possess discretion to vary costs where a formal offer to settle, specifically addressing costs, has been accepted. If, in such circumstances, the Court is not in a position to exercise discretion in relation to costs, Rule 9-1(4) is of no application.

[36]         The rule in Buttar is applicable to the defendant’s application in this case. The plaintiff’s offer to settle, accepted by the defendant, created an agreement between the parties. This agreement is not subject to the Court’s discretion as to costs. In my view, the purpose of the rules would be frustrated if a party was free to accept an offer, clear and unambiguous on its face, and then move to invoke the Court’s discretion to add or vary terms to substantially rewrite the agreement reached by the parties.


ICBC Settlement Tip – Note Up and Bring Your "Pain and Suffering" Cases Up to Date

January 26th, 2011

Lawyers know its bad practice to rely on cases without ‘noting them up’.  This means to make sure the cases you’re relying on were not overturned on appeal, overturned by legislation, or otherwise fallen out of favour with more recent judicial precedents.  Another way cases can become outdated is simply through the passage of time.  Cases dealing with ‘pain and suffering‘ awards need to be brought into current dollars.  Below are two quick tips to help you avoid these mistakes in your ICBC settlement negotiations:

  • Note Up Your Case

A great free public resource to note-up case-law is Canlii.   As previously discussed, Canlii is a free Canadian legal research database.  When you look up any given reported case a link appears which lets you find subsequent decisions citing your case.  It’s a good idea to do this before relying on a case in settlement negotiations or in Court.

  • Adjust for Inflation

It’s important to bring older cases addressing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) up to date.

Since every injury claim is unique its sometimes necessary to go back many years to find comparable cases.  There is nothing wrong with this and most of these older cases remain good law.  However, the cases become stale and need to be adjusted for inflation.  A pain and suffering award of $50,000 in a 1990 case is equal to almost $75,000 in 2011.

A great resource for adjusting old cases for inflation is the Bank of Canada Inflation Calculator.

Investing a few minutes to make sure you’re negotiating with up to date caselaw can help you yield a significantly better result in your ICBC settlement.


ICBC Injury Claims and Structured Judgements: The "Best Interests" of the Plaintiff

January 25th, 2011

When a BC motor vehicle accident tort claim goes to trial and a judge or jury awards pecuniary damages over $100,000 s. 99 of the Insurance (Vehicle) Act requires the award be paid periodically where it is “in the best interests of the plaintiff” to do so.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this area of law.

In last week’s case (Bransford v. Yilmazcan) the Plaintiff was injured in a 2003 collision.  She developed Thoracic Outlet Syndrome and experienced disability related to this.  Her claim went to trial where she was awarded just over $1.2 million by a Jury.  This award was reduced somewhat by the BC Court of Appeal.

Ultimately the Plaintiff was awarded $436,000 for loss of future earning capacity.  ICBC applied under section 99 of the Insurance (Vehicle) Act to pay this portion of the judgement in monthly installments at $1,357 per month arguing that this would be in the ‘best interests‘ of the Plaintiff.  Madam Justice Griffin disagreed and dismissed the applicaiton.  In doing so the Court provided the following useful reasons:

[51]         The defendants argued that since they were only seeking a partial structured judgment, rather than a structured judgment that applied to the whole of the future damages award, the plaintiff will be left with sufficient flexibility to meet any fluctuating needs.  I am not convinced this is an entirely fair approach.  The future care award is allocated for the plaintiff’s future care needs.  Normally a person uses income to pay for extraordinary living expenses or to make choices such as repayment of debt.  If the loss of future earning capacity award is structured, the plaintiff will lose this flexibility. Such a loss of flexibility is not cured merely because only a partial structured judgment is sought.

[52]         In this case, a factor that weighs heavily is the fact that the proposed structured judgment will run for 38 years.  That means, if a structured judgment is ordered, that for 38 years of this plaintiff’s life, she will not have the ability to make her own choices about her investments or her needs, beyond what she can do with receipt of the monthly periodic sum.  None of the evidence proffered by the defendants suggested that a fixed rate of return of 2.5% would be a safe investment over 38 years.  If the financial landscape changes drastically in 25 years, the plaintiff will not have the flexibility to adapt if she is subject to the structured judgment.  However, if the financial landscape changes drastically in the next 25 years, and she has been fiscally conservative in managing a lump sum award of damages, she will have the flexibility to deal with the change in circumstances.

[53]         I come back to the principle enunciated in Lomax, namely that a damage award is the plaintiff’s own property.  Underlying this point, in my view, is the common sense observation that a central aspect of one’s dignity and humanity is the ability to control one’s own destiny by the freedom to make one’s own choices.  Where a plaintiff has been injured through the negligence of defendants, such that she has suffered a significant loss of earning capacity, as here, she has already lost some personal dignity in that her future choices have been limited due to her injuries.  In this case the plaintiff would lose additional dignity and autonomy if her ability to make her own decisions about her damages award was taken away.

[54]         Having observed the plaintiff’s evidence at trial and on this hearing before me, I was impressed with her capabilities.  I observed that she was a person who was a “go-getter” before her injuries, and she remains someone with an independent and strong personality.  I have considered all of the factors referred to above, and weighed the risks and benefits of a structured judgment against the risks and benefits of a lump sum award.  I conclude that an order that the loss of future earning capacity award be structured would not be in the best interests of this plaintiff.

[55]         I therefore dismiss the defendants’ application.


Danicek v. AHBL: Looking Beyond the Headlines

January 24th, 2011

Last year reasons for judgement were released by the BC Supreme Court, Vancouver Registry, assessing damages for personal injuries at over $5.9 million dollars.

The case received a lot of publicity.  The size of the assessment and the facts underlying the case  (one lawyer fell on another lawyer while dancing at a nightclub) were some of the reasons why this case received so much press.

However, looking behind the headlines gives a better (and less sensational) account of a story of compensation for longstanding and debilitating injury.

The Plaintiff’s damage assessment at a quick glance appears high, however, she suffered a traumatic brain injury as a result of the incident.  The Court found that she would never work competitively as a lawyer again.  The lion’s share of the damage assessment was intended to compensate the young lawyer for a lifetime of lost earnings.

Of greater significance was the fact that the Plaintiff never received anywhere near the assessed $5.9 million in damages from the personal Defendant.   Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, (Danicek v. Alexander Holburn Beaduin & Lang) revealing the rest of the story.

As the high profile case was being tried an underlying battle was being fought between the Plaintiff, Defendant and various insurance companies about coverage.

The Defendant, Jeremy Martin Poole, agreed to pay the Plaintiff just over $1,000,000 of the damages.  This money was obtained from an insurance company that agreed that coverage was in place based on the allegations.  A seperte insurer, whose policy provided $5,000,000 in coverage, denied payment arguing that this type of lawsuit fell outside the scope of their coverage.  This issue went to trial and in today’s reasons Mr. Justice Kelleher sided with Lombard Insurance finding that they did not have to pay any part of the damage assessment to the Plaintiff.

What’s left when all the dust settles is something far less sensational than what early headlines would lead people to believe.  Ultimately a brain injured plaintiff has received less than complete compensation for the long-standing consequences of traumatic brain injury.


More on Re-Opening an Injury Claim After Close of Trial

January 24th, 2011

As I’ve previously discussed, BC Supreme Court Judges have discretion to re-open a trial after all parties closed their case.  This is so even after judgement is given (so long as a final order has not been entered).  Judges must exercise this discretion with caution but there is flexibility in doing so as was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.

In last week’s case (McIlvenna v. Viebig) the Plaintiff was injured in a 1995 incident when the bicycle he was riding collided with a motor vehicle driven by the defendant.  The Plaintiff was 7 years old at the time.  One of the matters at issue at trial was the Defendant’s ability to operate his vehicle safely.  In pre-trial discovery the Defendant gave evidence that his health was “like a grizzly bear” at the time of the crash.  When asked about having difficulty with sight he did not mention having any eye problems.

The trial ended and while both parties were waiting for the Court’s reasons the Plaintiff obtained the Defendant’s MSP printout.   This documented some health care visits with billings relating to “disorders of the optic nerve and visual pathways” as well as “retinal disorders or eye tests” not long before the collision.  On the strength of this the Plaintiff applied to re-open the trial so further evidence could be called addressing these issues.  The Defendant opposed arguing that the Plaintiff was not diligent enough in exploring these issues pre-trial.

Mr. Justice Sigurdson took a more practical approach and adjourned the application ordering that the defendant obtain and produce further medical records relating to these health care visits.  In demonstrating the flexibility trial judges have to ensure a fair trial occurs Mr. Justice Sigurdson provided the following useful reasons:

[14]         Mr. Battista in reply suggested an alternative approach to his motion, which I think is the just manner in which to deal with the application.  I have decided to adjourn the application of the plaintiff to re-open its case pending production of the records sought if they are available.  I think that it is relevant to the question of whether to adjourn the application pending such production that the plaintiff sought production of the MSP records prior to trial but they were unable to be produced until after the trial was heard.  Accordingly, I direct that the records of the doctors that I have described be produced to counsel for the defendant, Ms. Wright.  I direct that they produce the records for what appears to be the relevant period, 1994 to 1997, if they are available.  Once produced, Ms Wright will review them for relevancy and, if relevant, produce them to counsel for the plaintiff.  The plaintiff will pay forthwith the reasonable costs incurred in the production of these records by the doctors.  Given Mr. Viebig’s apparent mental condition at the present time, I make the order requiring production by the doctors without an authorization signed by him.  As this order for is made without prior service on the doctors involved, they will have liberty to apply on two days’ notice to the parties’ counsel to set aside the order.

[15]         For clarity, the doctors whose records are to be produced that relate to the defendant are for the doctors that I have referred to above that I listed from the MSP printout as well as those of Dr. Shier, the general practitioner for the defendant during that period of time.

[16]         Once the documents are produced to the defendant’s counsel and then to the plaintiff’s counsel, counsel for the plaintiff will forthwith advise counsel for the defendant if he intends to set down the adjourned application to re-open the case.  If not, I will then complete and issue my reasons for judgment after trial.  Because of the age of this matter and to ensure there is no further unnecessary delay, I ask the parties to fix a case management conference with me within the next six to eight weeks to report on the status of this matter.


Double Costs Ordered for Taking "Extremely Weak" Case to Trial

January 21st, 2011

As recently discussed, when a party is on the losing end of a lawsuit in the BC Supreme Court they usually have to pay the winning sides costs.  If the successful party beat a pre-trial formal settlement offer the Court has the discretion of awarding double costs.  Reasons for judgement were released this week considering an application for double costs where a very modest formal offer was made prior to trial.

In today’s case (Brooks v. Gilchirst) the Plaintiff was involved in two motor vehicle incidents.  She sued for damages and both claims were heard at the same time.  ICBC disputed the allegation that a collision took place in the first incident.  Prior to trial ICBC made a $1 formal settlement offer.  The Plaintiff rejected this offer and went to trial.  Mr. Justice Sigurdson dismissed the claim finding that “no collision” took place.

ICBC applied for double costs.  The Plaintiff opposed arguing that the nominal offer should not trigger increased costs.  Mr. Justice Sidgurson agreed that while this was typically the case, in circumstances where an ‘extremely weak‘ case proceeds to trial double costs could be awarded in the face of a formal settlement offer.   In reaching this result the Court provided the following reasons:

[16]         In terms of the relationship between the terms of settlement offered and the final judgment of the court, the offer was better than the result, but the offer was only for the sum of $1 plus disbursements.  Ordinarily I would think that a nominal offer of one dollar may not attract orders for double costs but I know that in some cases even nominal offers may attract orders of double costs.  See for example MacKinlay v. MacKinlay Estate, 2008 BCSC 1570; Ludwig v. Bos, 2010 BCSC 695.

[17]         This is a case where there had been expenditures on medical and expert reports.  I think that where it becomes clear that liability will be extremely difficult to establish a nominal offer that has the effect of allowing the plaintiff to recover disbursements and avoid liability for the other party’s disbursements may nevertheless be a substantial offer.

[18]         In considering whether the offer ought reasonably to have been accepted, I think it was quite clear that the plaintiff’s original theory that she had been sideswiped as a result of the collision involving the other two adjacent cars was not maintainable once each side had filed their expert reports.  This was not merely a case where the plaintiff had a claim that was difficult to prove at trial; this was a unique case where on the evidence available to her before trial the plaintiff should have realized that she did not have a realistic position on liability…

[23]         In the circumstances, I think that the ICBC defendants should be awarded costs with respect to the main action.  I have estimated the main action consumed 90% of the time at trial.  The defendants were clearly successful and, in my view, it is not an appropriate order for each side to bear its own costs.

[24]         In terms of whether I should award double costs, I think that, in exercising my discretion, the offer reasonably ought to have been accepted in the days prior to trial.  Although the offer was modest, the circumstances at that time were clear that her case was extremely weak, she would have avoided liability for disbursements, and in fact recovered the disbursements she had incurred.

[25]         I award double costs for the period after two days prior to trial.


$100,000 Non-Pecuniary Damages Awarded for Chronic Pain From Soft Tissue Injury

January 21st, 2011

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry addressing damages as a result of chronic soft tissue injury.

In today’s case (MacKenzie v. Rogalasky) the Plaintiff was involved in a 2003 motor vehicle collision.  The Defendant turned into the path of the Plaintiff’s vehicle resulting in a t-bone type collision.  Fault for the crash was admitted by the Defendant with the trial focusing on the value of the Plaintiff’s claim.

The Plaintiff sustained various injuries in the crash.  These included “moderate” soft tissue injuries to his neck, shoulders and back.  The Plaintiff, unfortunately, went on to suffer from long term chronic pain as a result of these injuries.  He had to leave his employment as the Head Chef at a popular Lower Mainland restaurant and eventually opt for less physically demanding employment.

The limitations from his chronic soft tissue injuries were expected to be permanent.  The Plaintiff’s total damages were assessed at just under $400,000 including an award of non-pecuniary damages of $100,000.  In arriving at this figure Madam Justice Ker made the following findings:

[255]     I accept the evidence adduced by the plaintiff that Mr. MacKenzie sustained soft tissue injuries to his neck, shoulder and back as a result of the accident.  The symptoms of chronic pain have continued to bother Mr. MacKenzie, and nearly seven years post-accident, he still experiences pain in his neck, shoulder and back, although primarily in the lower back area.  While the injuries can be described as moderate soft tissue injuries, I accept the diagnosis and opinion of Dr. Hunt that Mr. MacKenzie has developed chronic myofascial pain syndrome and experiences chronic pain to this day.  Thus, the injuries and pain symptoms continue to affect most every facet of Mr. MacKenzie’s work and non-work life.  The pain is most significant when Mr. MacKenzie works and overloads his physical tolerance capacity.  He has had to leave his chosen profession as a chef due to the increasing pain and difficulty he was experiencing and the failure to see any significant improvement in his condition.

[256]     I have concluded that as a result of the accident, Mr. MacKenzie has suffered pain and loss of enjoyment of life, and he will continue to do so for an indefinite period of time.

[257]     Mr. MacKenzie struck me as a very stoic and determined individual.  Despite the ongoing pain he tried to continue to work as a chef, a position he was passionate about and aspired to continue in for as long as possible, perhaps even establishing his own restaurant.  He also tried to remain physically active but found it difficult to do so given the attendant pain associated with the activities he previously enjoyed, including motorcycling, snowboarding and, until recently, golfing.  His return to playing golf is a recent development, but due to the nature of his injuries and ongoing chronic pain symptoms Mr. MacKenzie has had to alter his style of play and is still not able to play to the same intensity and level he did prior to the accident.  He has suffered, and will continue to suffer, some diminishment in his lifestyle.

[258]     The evidence from the plaintiff’s friends and family, coupled with his own evidence, establishes Mr. MacKenzie enjoyed excellent health and was involved in the physically active and demanding position of Head Chef working in a busy restaurant for up to 16 hour shifts prior to the accident.  Mr. MacKenzie also engaged in demanding outdoor sports activities such as snowboarding, mountain biking and rollerblading and engaged in extended periods of riding his motorcycle.

[259]     Taking into account all of these circumstances, the referenced authorities and the nature of Mr. MacKenzie’s injuries, the relatively enduring nature of the injuries as manifested through ongoing symptoms of chronic pain that has developed into chronic myofascial pain syndrome which prohibits him from returning to the profession he has been passionate about since he was a young boy, the pain he has suffered and may continue to experience in the future, as well as the fact he suffered a diminishment in his lifestyle, I conclude a fair and reasonable award for non-pecuniary damages is $100,000.


Post Accident Alcoholism Deemed Compensable in BC Tort Claim

January 20th, 2011

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing an interesting issue: whether alcoholism following accident related chronic pain is compensable in a tort claim.  In short, Mr. Justice Voith held that it could be.

In today’s case (Zawadzki v. Calimoso) the Plaintiff pedestrian was struck by a U-Haul truck driven by the Defendant.   The Defendant was found fully at fault for the collision.  The Plaintiff sustained various physical injuries the most serious of which was an elbow joint fracture which required three surgeries and resulted in a permanent partial disability.

Following the collision the Plaintiff began to drink in excess.  This turned into clinical alcoholism the extent of which caused serious health consequences.  In his lawsuit the Plaintiff claimed compensation not only for his physical traumatic injuries but also for the consequences of his alcoholism.  The Defendant argued that the Plaintiff cannot be compensated for this as it is ‘too remote‘.

Mr. Justice Voith addressed this issue at length and paragraphs 99-123 are worth reviewing in full for the Courts analysis.  Ultimately Mr. Justice Voith held that the Plaintiff’s alcoholism was caused in part by the consequences of the crash and was therefor compensable.  The Court provided the following reasons:

[99]         Shortly after the Accident, the plaintiff began to drink heavily. The results of blood tests performed on the plaintiff in late December 2004 indicated that certain liver enzyme levels were extremely elevated. The medical evidence uniformly establishes that such elevated results are directly referable to alcohol consumption. Dr. Smith confirmed that such elevated enzyme levels would not arise as a result of binge drinking, but rather reflected weeks or months of drinking.

[100]     The plaintiff admits he began to drink excessively after the Accident and that his alcohol consumption reached the point where he was drinking 26 ounces of vodka on a nightly basis. ..

[117]     In this case, Mr. Zawadzki’s original physical injuries were foreseeable. So too, the defendants concede, were his depression and anxiety. It was the combination of pain and mood that Drs. Shane and Smith said gave rise to the plaintiff’s excessive drinking. Dr. Smith also confirmed that Mr. Zawadzki had a “genetic predisposition”, by virtue of the alcoholism of his parents, to alcohol abuse. A genetic vulnerability to alcohol abuse is the very type of pre-existing susceptibility that the “thin skull” rule addresses.

[118]     It is clear that both a susceptibility to physical harm and to psychological harm fall within the ambit of the “thin skull” rule: Hussack at para. 143; Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318 (C.A.) at para. 19. I can see no principled reason why a similar vulnerability to an addiction disorder should be treated or viewed differently…

[123] I find that Mr. Zawadzki’s alcohol abuse was caused by the Accident and that such alcohol abuse was reasonably foreseeable.


The High Cost of Losing an ICBC Injury Claim

January 19th, 2011

I’ve written many times about the significant costs a party can be exposed to for being on the losing end of a BC Supreme Court lawsuit.  Reasons for judgement were released today further demonstrating this reality under the New BC Supreme Court Rules.

In today’s case (Chen v. Beltran) the young Plaintiff entered an intersection against a red light on his skateboard.  He was struck by a vehicle operated by the Defendant and sustained injuries.  He sued for damages but his claim was dismissed with the Court finding him entirely at fault for the accident.

Rule 14-1(9) of the BC Supreme Court Rules typically requires a losing party to pay costs to a successful party.  ICBC relied on this section and requested that their costs of over $75,000 be paid by the Plaintiff’s family.   The Plaintiff opposed arguing that no costs should be awarded.  One of the reasons advanced by the Plaintiff was that such an order would “financially cripple the (plaintiff’s) family“.

Mr. Justice Greyell rejected this argument.  The Court, while disallowing some of the most significant disbursements claimed by the Defendant, did go on to order that the Plaintiff pay the Defendant’s costs.  In rejecting the “financially crippling” argument Mr. Justice Greyell reasoned as follows:

[11] The first basis upon which the plaintiff says the defendants should be denied costs is that Allan suffered significant injuries in the Accident and will require ongoing medical and psychological care throughout his life.  His ongoing care will involve significant cost to both his parents.  Allan’s parents have already incurred substantial debt to prosecute the lawsuit, have limited financial resources and will have difficulty providing for Allan’s future care even if they are successful on this application.  The plaintiff says that an order for costs will financially “cripple” the family.  While I have great sympathy for Allan’s parents the case law is clear that the financial circumstances of a litigant, standing alone, are not to be taken into consideration as a factor in the awarding of costs…

[14]         It is clear based on the above authorities that this Court is unable, on any principled basis, to take the plaintiff’s financial circumstances into account in determining whether to award costs.

[15]         To conclude otherwise would undermine the rationale underlying Rule 14-9 and would likely lead to the promotion of litigation rather than to promote the “winnowing” function described by Hall J.A. in Catalyst Paper.  It would lead to a collapse of the general principle discussed in the authorities and result in the unacceptable proposition that costs in each case would be measured not by a party’s success but by the personal financial circumstances of the litigants.

It is worth noting that this result should be contrasted with cases decided under Rule 9-1(5) where the Court does have a discretion to consider a party’s financial circumstances following trial where a formal offer of settlement was made.

Today’s case demonstrates the real world expenses that can be associated with losing an ICBC Claim in the BC Supreme Court.  It is vital to gauge these costs and the risks of trial prior to putting a case before a Judge or Jury.