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 December, 2018

Saanich Police Officer Found To Use Excessive Force During Arrest

December 31st, 2018

Reasons for judgement were published this week by the BC Supreme Court, Victoria Registry, assessing $120,000 in non-pecuniary damages for a plaintiff who sustained a shoulder injury while being arrested by the Saanich police.  The Court found there was negligence however the claim was ultimately dismissed as the Plaintiff failed to provide the needed statutory notice under the Local Government Act.

In the recent case (Lapshinoff v. Wray) the Plaintiff was removed from his vehicle while being investigated for erratic driving.  The Defendant forcefully took the plaintiff to the pavement which resulted in a complex shoulder injury requiring two surgeries along with “an irreparable rotator cuff tear that is permanently disabling“.

The Court found that while the arrest was lawful the police used excessive force.  In reaching this conclusion and assessing non-pecuniary damages at $120,000 Mr. Justice Meiklem provided the following reasons:

[128]              I accept Mr. Lapshinoff’s evidence that his initial comment about his truck being hit and asking what that was about was not belligerent or loud. He had no concern about damage to his very experienced dilapidated vehicle, but that exchange and Mr. Lapshinoff’s immediate request for ID probably contributed to an antagonistic atmosphere. Constable Wray did not provide ID, and demanded Mr. Lapshinoff get out of the vehicle. Mr. Lapshinoff unlatched his seat belt but did not get out promptly. Constable Wray repeated the demand more emphatically with a profanity. Lapshinoff was in the process of complying, perhaps somewhat reluctantly, with his left foot partially out the door which he opened partly, at the same time repeating that he would still like to see ID, when Constable Wray reached over and yanked him out forcefully in the manner previously described.

[129]              The fact that Constable Wray was able to pull the 200-pound Mr. Lapshinoff out of the truck in one pull, even though he said that he did so as hard as he was able, is consistent with Mr. Lapshinoff being turned and beginning to get out on his own. If both his feet were still in the vehicle and he was facing forward when he was yanked out, it is difficult to see how he could have emerged even partially on his feet.

[130]              In my view, this very forceful removal was completely unnecessary and is only explainable as Constable Wray acting out of a loss of self control and anger, rather than necessity. He acknowledged that he did not consider any less violent means of dealing with the situation he perceived.

[131]              It is clear that he was either blind to the fact that Mr. Lapshinoff was starting to comply with his demand to get out, or that he simply expected a faster response and was making that point with physical aggression.

[132]              I note that during cross-examination Constable Wray volunteered an explanation as to how the plaintiff could have reacted differently and how it is in the interests of people to listen, even if they disagree with the reasonable grounds. He suggested that was “safest for everyone”. He neglected to practice that advice himself in dealing with Mr. Lapshinoff. He perceived Mr. Lapshinoff as belligerently wanting answers to the questions he was asking. If he was in fact providing the answers he claims he was providing and perceived that Mr. Lapshinoff was not hearing or listening him, as he testified, there were certainly safer and more reasonable measures that he could have employed to gain his attention and compliance other than yanking him out of the truck within seconds of arriving and engaging him in a tussle for a few seconds before tripping him and forcefully sending him to the ground.

[133]              The plaintiff’s right shoulder or arm struck the truck door as he was yanked out, causing it to fly open. This further demonstrates a degree of aggressiveness and lack of foresight and care for the safety of the plaintiff, which was unnecessary and disproportionate to the exigencies of the arrest. Although it is unknown whether that impact actually contributed to the plaintiff’s shoulder and arm injuries, there certainly was a foreseeable risk of injury in yanking the plaintiff through a partly open truck door.

[134]              There was also a foreseeable and unnecessary risk of injury with a 6’ 3”, 240 lb officer taking a person to the ground with a leg sweep trip while holding his upper body and falling with him.

[148]              In light of the consensus between the parties on the appropriate general damage award, which I find to be appropriate, no detailed analysis is required on that issue. I would award general damages in the sum of $120,000 against the defendant Saanich. I would not award punitive damages.


BC Court of Appeal – A Sandbar is Not a Highway

December 21st, 2018

Reasons for judgement were published this week by the BC Court of Appeal dismissing an unidentified motorist injury claim on the basis that the collision occurred on a sandbar which is not a ‘highway’ which is a condition to such a claim succeeding.

In today’s case (Adam v. ICBC) the Plaintiff suffered injuries when struck by an unidentified motorist while on a sandbar that people used to camp and fish from along the Fraser River.  The Plaintiff sued ICBC under s. 24 of the Insurance (Vehicle) Act.  At trial the Plaintiff was successful but ICBC appealed arguing that a s. 24 claim could not succeed in these circumstances as a sandbar is not a highway and a crash has to occur on a highway for s. 24 to be triggered.  The BC Court of Appeal agreed and provided the following reasons:

[91]         In summary, none of the means of becoming a highway as required by paragraphs (a) to (g) of the Transportation Act definition apply to the sandbar. Nor is the sandbar a “highway” within the meaning of paragraph (b) or (c) of the Motor Vehicle Act definition. I therefore conclude the judge erred in finding the sandbar is a “highway” within the meaning of s. 24 of the IVA.


ICBC Not Allowed To Withdraw Admission of Fault Late in Litigation

December 11th, 2018

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, considering a request to withdraw a formal admission of fault for a vehicle collision in the deep stages of litigation.

In today’s case (Bodnar v. Sobolik) the Plaintiff was involved in a 2014 collision.  He sued alleging the Defendants were at fault.  ICBC, the Defendant’s insurer, admitted fault in the course of the lawsuit.  As the trial progressed the Defendants retained an engineer who viewed video of the crash and concluded “the speed of the plaintiff vehicle as 74 km/hr in a 50 zone“.  Based on this the Defendants sought to withdraw the admission of fault.  In refusing the request the Court noted the litigation was mature and it would not be in the interests of justice to allow it.  In dismissing the application Mr. Justice McEwan provided the following reasons:

[13]         The Notice of Civil Claim was filed October 11, 2016. The Response to Civil Claim was filed January 12, 2017, formally admitting liability. On May 30, 2017, Mr. Bo Baharloo assumed conduct of the file.

[14]         ICBC clearly understood the material contained on the video footage. The admission was not made hastily, inadvertently and without knowledge of the facts. Successive adjusters worked on the file and gave instructions to admit liability with full knowledge of the video footage. At the time liability was admitted ICBC had the video footage. The defendants had been aware of the existence of video footage when they were provided with a copy. The preparation of a report on September 28, 2018 was well after ICBC and defence counsel had both received a copy of the video footage.

[15]         At this late stage both cars have been written off and are no longer available for inspection.

[16]         It is not in the interests of justice to allow a withdrawal of the admission of liability because there is now a difference of opinion about the cause of the accident.

[17]         The application is dismissed. In saying that I say nothing about contributory negligence or whether it is possible to plead or amend the pleadings to raise the issue.

[18]         I should say that I have considered the cases Boyd v. Brais, 2000 BCSC 404 and Miller v. Norris, 2013 BCSC 552 as nearest to the present situation.

[19]         The application is dismissed with costs to the plaintiff.


BC Court of Appeal – Settlement Paying Pennies on the Dollar Beats Losing Your House

December 6th, 2018

You are badly injured through the alleged negligence of others.  If you win at trial you can get north of $400,000 in damages.  If you lose you will literally lose your house to cover the costs of litigation. When faced with this stark reality a settlement offer that pays less than 1o cents on the dollar may very well be reasonable.  The BC Court of Appeal released reasons for judgment today saying as much.

In today’s case (Deo v. Vancouver) the infant plaintiff suffered serious injuries leaving him partially blind while at school.  He sued for damages and was largely unsuccessful on proving liability at trial.  The Plaintiff’s lawyer valued the claim at over $400,000 but before the liability appeals could be heard a settlement of $35,000 was reached.  The Plaintiff, being an infant, could not legally agree to any settlement and judicial permission was needed.  The BC Court of Appeal noted that if the lawsuit ultimately proved unsuccessful the costs consequences would be so steep that the Plaintiff’s parents would likely need to sell their house.  Appreciating this the risk-based settlement was reasonable and the Court approved it.  In supporting the settlement the BC Court of Appeal provided the following reasons:

[11]         Counsel assesses the quantum of damages for non-pecuniary loss in the range of $100,000 to $140,000 and for loss of future earnings in the range of $300,000 to $350,000. The estimate of an adverse costs award if the appeal is unsuccessful is in excess of $100,000.

[12]         Isaac lives with his parents in a house in East Vancouver. If costs are awarded against him, they would have to sell the house to pay the costs. His father says that he has weighed the prospects of success of the appeal against the risk of losing the home and the impact that would have on Isaac and the rest of the family. He says he has concluded that it is in Isaac’s best interests to accept the settlement.

[13]         The parties have consented to the trial judge approving the solicitor’s account without costs.

[14]         Having read the materials provided, it is our view that the settlement is a prudent one, and is in Isaac’s best interests. As was noted in Lotocky, “it is… artificial and misguided to judge the merits of the appeal in isolation from the financial ramifications that would arise from an unsuccessful appeal”: para. 69. Counsel for Isaac acknowledges the “very real” risk that the appeal on liability will be unsuccessful. In light of the serious financial consequences that would flow from an unsuccessful appeal, we agree with the assessment of counsel and that it is in Isaac’s best interests to accept the settlement.

[15]         The settlement is approved in the terms sought. The appeal and cross appeal are dismissed as abandoned on a without costs basis to any party. The matter is remitted to the Supreme Court to Justice Riley for approval of the solicitor’s account.


$12,000 For Medical Cannabis Awarded to Crash Victim With Chronic Pain

December 4th, 2018

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, awarding damages, including a $12,000 future care award for the cost of medical cannabis, to a collision victim.

In today’s case (Carrillo v. Deschutter) the Plaintiff was involved in a 2011 collison.  The Defendant admitted fault for the crash.  The Plaintiff suffered a variety of injuries including a frozen shoulder, soft tissue injuries and went on to develop chronic pain with a poor prognosis for full recovery.

At trial, in addition to other heads of damages, the Plaintiff sought damages for the future cost of medical cannabis.  The Defendant objected to this arguing that “conventional prescription drugs” should be adequate.  The court was not persuaded by this defence and awarded $12,000 for the cost of medical cannabis.  In reaching this conclusion Madam Justice Dardi provided the following reasons:

[158]     I have reviewed all the authorities on medical cannabis relied on by both parties. The authorities establish that, in some cases, medical cannabis is compensable in a personal injury case: Wright v. Mistry, 2017 BCSC 239 at para. 84; Amini v. Mondragon, 2014 BCSC 1590 at paras. 133-136; Chavez-Salinas v. Tower, 2017 BCSC 2068 at para. 539.

[159]     An important fact in this case, and one that distinguished this case from many of the cases relied on by the defence, is that Mr. Carrillo, after receiving Dr. Hershler’s recommendations, has been using cannabis balm, tincture oil and capsules. I accept his evidence, that he has found the cannabis products effective and, as a result of using the cannabis products, he has experienced some pain relief. There was no evidence that the consumption has produced any negative side effects. Notably, since the Accident, Mr. Carrillo has pursued the more traditional modalities of physiotherapy, chiropractic treatments, massage and injections without any significant benefit. Mr. Carrillo’s prescription pain medication provides him with some symptomatic relief but I do not accept that it controls his pain as is asserted by the defendant.

[160]     With respect to the defence submissions on Mr. Carrillo’s mental health issues, I note that Mr. Carrillo’s medical condition is currently being monitored by his primary care provider, Dr. Sennewald. The six-month’s use of cocaine for pain was some six years ago and there is no evidence of any issue arising since that time.

[161]     All things considered, I conclude that the medical cannabis program recommended by Dr. Hershler is medically justified within the meaning contemplated by the authorities and that it is reasonable to make an award for the costs of the cannabis as part of Mr. Carrillo’s future pain management plan.

[162]     The evidence on the costs of the medical cannabis was thin but not so thin as to justify not making any award for Mr. Carrillo. There was no evidence as to what the cost would be through a Health Canada supplier. Those costs may be different from the costs Mr. Carrillo actually incurred purchasing them through other dispensaries. This is a significant shortcoming that I have taken into account in my assessment. I have also factored into my assessment that in his report Dr. Hershler did not say how long Mr. Carrillo should be on the medical cannabis program. It is uncertain how long he may continue using medical cannabis.

[163]     In the result, and on the totality of the evidence and taking into account the relevant contingencies, I assess an award for medical cannabis in the amount of $12,000.


My 2018 Clawbies Nomination

December 3rd, 2018

It’s that time of year again.  The Canadian Law Blog Awards (the Clawbies), are awarded once a year to recognize outstanding Canadian legal blogs.  The nomination process involves peer endorsement and from there a select number of blogs are chosen for recognition.

I’m a Clawbies senior citizen having my first interaction with the awards almost a decade ago.  You can’t tell my age from my profile pic above because I sneakily have chosen not to update it for 14 years! Before being given my bus pass discount and shuffled away I would like to make my 2018 nomination.  This year I endorse Vancouver criminal lawyer Kyla Lee.

I won’t even nominate a specific blog (Steve and Jordan, you guys can figure out what to do with this curveball, whatever your solution make sure it involves handing out a Clawbie!). I just outright nominate Kyla and her entire social media and traditional media footprint which is big enough to swallow a BigLaw firm’s marketing department whole.  Kyla is a one woman media army using new and old media to make the law far more understandable and accessible, and that’s truly what effective legal blogging is all about.  Not to mention she is a heck of a good lawyer as well.

Check out her work on Twitter, website, Driving Law Podcast, Blog or just about every major newspaper across BC and Canada.

Great work Kyla!