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.

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$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!


$95,000 Non-Pecuniary Assessment For Chronic Pain with Psychiatric Overlay

November 29th, 2018

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain symptoms with psychiatric overlay caused by a series of collisions.

In today’s case (Sandhu v. Bates) the Plaintiff was injured in three collisions.  Fault was admitted by the Defendants.  The Plaintiff suffered injuries which developed into a myofascial pain syndrome.  She further developed somatic symptom disorders.  Her prognosis for full recovery was guarded.  In assessing non-pecuniary damages at $95,000 Madam Justice Winteringham provided the following reasons:

[137]     In summary, I make the following findings of fact respecting Mrs. Sandhu’s injuries:

a)    Mrs. Sandhu sustained moderate soft tissue injuries to her neck, lower back, buttock, right hip, right ankle, and right knee in the accidents.

b)    Rather than following a typical course of recovery after the accidents, Mrs. Sandhu experienced chronic low back pain affecting her buttock and pain down the right leg and associated numbness in the left buttock. Her chronic pain worsened in the first and second years following the accident and persisted at the time of trial.

c)     I accept Dr. Squire’s opinion that the diagnosis for her physical injuries is most consistent with myofascial pain syndrome of the lumbopelvic area and that the intermittent exacerbations are likely episodic acute muscle spasms and the right leg pain is likely referred pain from the myofascial pain syndrome. I also accept that she continues to experience intermittent neck pain.

d)    Dr. Joy, Dr. Anderson and Dr. Suhail all agree, and I find, that Mrs. Sandhu developed somatic symptom disorders. I note that though their diagnoses were not identical, Dr. Anderson and Dr. Suhail report that she meets the diagnostic criteria of somatic symptom disorder with predominant pain, following the accidents.  In addition, I accept Dr. Anderson’s opinion that following the accidents, Mrs. Sandhu suffers from a generalized anxiety disorder.

e)    I find that, as Mrs. Sandhu’s psychological condition deteriorated, her ability to cope with pain was poor. Dr. Suhail’s opinion, with which I agree, was that “as here pain would trigger her anxiety, her subsequent psychological problems would reduce her ability to cope with pain. Whenever she would be stressed and anxious, her back pain would increase.”

f)      Dr. Joy, Dr. Anderson, Dr. Suhail, Dr. Chapman and Dr. Kashif all agree that Mrs. Sandhu suffered from anxiety after the accidents. They disagree about prognosis. I find that the first accident, and aggravated in the second and third, caused Mrs. Sandhu’s generalized anxiety disorder. The medical experts are all of the opinion that Mrs. Sandhu’s prognosis is guarded, particularly if she is unable to address her anxiety disorder. Dr. Suhail indicated some recent improvement and, with ongoing cognitive behavioral treatment, there is some reason for cautious optimism.

[153]     I have reviewed the cases referred to by the parties. On my review of Mrs. Sandhu’s cases, as her counsel admits, the injuries suffered in some of those cases were more serious than what I have found in the present case. Similarly, I have found the cases relied on by the Defendants involved Plaintiffs with lesser injuries than those I have found in Mrs. Sandhu’s case.

[154]     In all of the circumstances, and taking into account the authorities I have been referred to, I am satisfied that an award of $95,000 will appropriately compensate Mrs. Sandhu for her pain and suffering and loss of past and future enjoyment of life, for which the Defendants are responsible.


Why BC’s “Minor” Injury / Tribunal Laws Are Vulnerable to a Charter Challenge

November 16th, 2018

British Columbia is not the first jurisdiction in Canada to take away the rights of the public in order to strengthen insurer profits.  This has been done in other Provinces and legal challenges to injury cap laws have withheld constitutional challenge.  BC, however, has gone further than simply capping damages and combined these with a system that forces ‘prescribed’ injury victims away from Court and into a Civil Tribunal.  This combination leaves BC’s recent legislation vulnerable to legal challenge.

In the simplest of terms, when you are injured in a crash and sue the at fault motorist for your losses ICBC, BC’s government controlled monopoly auto insurer, can allege your injuries are “minor”.  When they do so, even if the allegation is frivolous, your claim gets steered out of Court and into a Civil Tribunal.   From there the Tribunal has the exclusive jurisdiction to decide if your injury is, in fact, “minor” (a term which encompasses many serious injuries).  BC requires the injured party to bear the burden of proving the injury is not minor.  If you can’t clear this hurdle you can’t go to Court unless the Tribunal also decides there is “a substantial likelihood that damages will exceed the tribunal limit“ (or in other very limited circumstances).

BC created a two tiered justice system.  One for ‘minor‘ injury claimants and one for others.  If you don’t have a “minor” injury you can choose where you wish to sue.  If you have an alleged “minor” injury you have no choice.  You have to go to the Tribunal and clear their barriers before being given permission to go to Court.

The gatekeeping function of who is forced into the Tribunal is based solely on the physical and mental characteristics of the claimant.

If you have something as benign as a hairline fracture in your finger you can go to court. If you have PTSD, a concussion, depression or another psychiatric condition you get funnelled to the Tribunal.  Why is this a problem?  Section 15 of Canada’s Charter of Rights and Freedoms protects individuals from discrimination based on “mental or physical disability“.

Section 15 of the Charter reads as follows (key words emphasised by me)

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

BC’s system violates the plain language of this constitutional protection.   The benefit of the law is going to Court.  The barrier is a mental or physical disability used as the sole criteria to determine whose rights are taken away.

If a Court finds s. 15 is violated BC will have to prove this discrimination “can be demonstrably justified in a free and democratic society.”  It stretches the imagination on how taking away the public’s judicial rights based on protected grounds in order to save an insurer money meets this test.

There can little doubt that the Tribunal system is designed to be unfair and affords lesser justice to litigants compared to the BC Supreme Court –

  • BC’s Attorney General admitted during debate that they designed this system to discourage people from having a lawyer and wanting lay litigants attending the Tribunal against an insurance “specialist“.
  • The Government carved themselves out of the Tribunal’s jurisdiction making them immune from lawsuits before it.
  • The Tribunal limits the expert evidence litigants can use and further limits the cost recovery available for hiring experts.
  • Tribunal cases have extremely curtailed appellate rights.  These are limited to judicial review under the strictest standards compared to the more robust rights a litigant would have after a BC Supreme Court trial.
  • Tribunal adjudicators, unlike BC Supreme Court Justices, are not appointed by the Federal Government and do not enjoy the job security Justices do.
  • The Tribunal itself is designed by the BC Government, the same entity that controls ICBC and has been taking their profits for years.
  • Litigants before the Tribunal are afforded fewer rights in the realm of civil procedure.

This is not a case of Government creating a separate but equal route to justice for people with modest claims. This is not a case of Government giving people a choice between different forums.   This is a case of Government using Charter protected grounds to force individuals with prescribed mental and physical injuries to overcome further obstacles before being allowed access to Court.

BC’s new laws come into force on April 1, 2019.  A Charter challenge will be right on its heels.


British Columbia’s “Minor” Injury Law Says One Year Actually Means Forever

November 14th, 2018

Yes, you read that right.  12 months is 1 year but according to new Laws and Regulations passed by British Columbia 12 months actually means forever.

What am I talking about?  Earlier this year the BC Government passed a law capping non-pecuniary damages for what they call ‘minor’ injuries.  The law states that if the injuries cause “serious impairment“, however, that they are no longer minor and not subject to the cap.  Seems fair enough right?  Read on.

To meet the definition of ‘serious impairment‘ in section 101(1) of the Insurance (Vehicle) Act the injury must not “be resolved within 12 months” and meet whatever further criteria the government dog-piles on via Regulation.

Last week the Government published their Regulations which added the requirement in addition to the 12 month duration required in the Act the injury must basically be disabling to lead to ‘serious impairment‘.  Then, they went further and said the 12 month injury also has to be permanent with a requirement that “the impairment is not expected to improve substantially”.

So when the Government tells you that injuries that last more than 12 months are not subject to the cap they are lying.  They in fact require the injuries to be disabling and permanent to shed the restrictions of the cap.

This inconsistency between the Act and Regulations appears illogical, incoherent and contrary to the stated intention of capping minor injuries.  A situation that opens the harsh Regulation to judicial challenge.  Probably one of many to come by British Columbians impacted by these new laws in 2019.


Understanding ICBC’s “Minor Injuries” For Crashes After April 1, 2019

November 11th, 2018

This week the BC Government released their regulations setting out the framework for ICBC’s ‘minor injury’ scheme which will be in force for people involved in BC collisions after April 1, 2019.

First and foremost it should be emphasized that the term ‘minor injury’ is misleading.  It is a political term used to make the public ok with having your rights stripped.  In short many injuries that no-one should consider minor (such as brain injuries) are caught in this definition.  With the regulations now in force, however, British Columbians now have a better understanding of what the future will hold.  Here is the rundown.

Section 103 of the Insurance (Vehicle) Act notes that everyone in a BC crash after April 1, 2019 that suffers ‘minor’ injuries have their non-pecuniary damages capped at an amount set by regulation.  The regulations released last week set the cap at $5,500.

The term “minor injury” is defined in section 101 of the Act as follows:

a physical or mental injury, whether or not chronic, that

(a)subject to subsection (2), does not result in a serious impairment or a permanent serious disfigurement of the claimant, and

(b)is one of the following: 

(i)an abrasion, a contusion, a laceration, a sprain or a strain; 

(ii)a pain syndrome;

(iii)a psychological or psychiatric condition; 

(iv)a prescribed injury or an injury in a prescribed type or class of injury;

The Regulations went on to expand this list with the following ‘prescribed’ injuries

a. a concussion that does not result in an incapacity

b. A TMJ disorder

c. a WAD injury

A TMJ disorder was defined to mean “an injury that involves or surrounds the tempomandibular joint.“.

A WAD injury was defined to mean “a whiplash associated disorder other than one that exhibits one or both of the following:

(a) decreased or absent deep tendon reflexes, deep tendon weakness or sensory deficits, or other demonstrable and clinically relevant neurological symptoms;

(b) a fracture or dislocation of the spine”

Sprain was defined to mean “an injury to one or more ligaments unless all the fibres of at least one of the injured ligaments are torn“.

Strain was defined to mean “an injury to one or more muscles unless all the fibres of at least one of the injured muscles are torn“.

Psychological or Psychiatric Condition is defined as follows:

a clinical condition that

(a) is of a psychological or psychiatric nature, and

(b) does not result in an incapacity

The word “incapacity” was defined as well with the Regulations noting as follows:

in relation to a claimant, means a mental or physical incapacity that

(a) is not resolved within 16 weeks after the date the incapacity arises, and

(b) is the primary cause of a substantial inability of the claimant to perform

(i) essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s employment, occupation or profession.

(ii) the essential tasks of the claimants training or education in a program or course that the claimant was enrolled in or had been accepted for enrollment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s training or education, or

(iii) the claimant’s activities of daily living.

So, if you have any of the above “minor injuries” you are facing capped non-pecuniary damages.  A concussion by default is minor but if it does result in the above definition of ‘incapacity’ it will not be subject to the cap.  The same goes for psychological or psychiatric conditions.

A “minor” injury can also get around the cap if it results in  “serious impairment or a permanent serious disfigurement“.

These terms have also been defined as follows:

“permanent serious disfigurement”, in relation to a claimant, means a permanent disfigurement that, having regard to any prescribed criteria, significantly detracts from the claimant’s physical appearance;

“serious impairment”, in relation to a claimant, means a physical or mental impairment that

(a)is not resolved within 12 months, or another prescribed period, if any, after the date of an accident, and

(b)meets prescribed criteria.

The “prescribed criteria” set out in the regulations basically mirror the test for ‘incapacity’ with the regulations stating as follows:

The claimant’s physical or mental impairment must meet the following  prescribed criteria:

(a) the impairment results in a substantial inability of the claimant to perform

(i) the essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s employment, occupation or profession,

(ii) the essential tasks of the claimants training or education in a program or course that the claimant was enrolled in or had been accepted for enrollment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s training or education, or

(iii) the claimant’s activities of daily living.

(b) the impairment is primarily caused by the accident and is ongoing since the accident;

(c) the impairment is not expected to improve substantially.

You will see from this combination the injury not only has to last more than 12 months as set out in the Act but the Regulations went on to basically require the injury to be permanent to not be considered minor.

Even if a ‘minor’ injury goes on to meet the test for no longer being considered minor ICBC has the right to argue that it is still minor if you did not follow their treatment protocols with s. 101(2)(3)(4) of the Act holding as follows

(2)Subject to subsection (3) and the regulations, an injury that, at the time of the accident or when it first manifested, was an injury within the definition of “minor injury” in subsection (1) is deemed to be a minor injury if

(a)the claimant, without reasonable excuse, fails to seek a diagnosis or comply with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury, and

(b)the injury

(i)results in a serious impairment or a permanent serious disfigurement of the claimant, or

(ii)develops into an injury other than an injury within the definition of “minor injury” in subsection (1).

(3)An injury is not deemed, under subsection (2), to be a minor injury if the claimant establishes that either of the circumstances referred to in subsection (2) (b) would have resulted even if the claimant had sought a diagnosis and complied with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury.

(4)For the purposes of this Part, a minor injury includes a symptom or a condition associated with the injury whether or not the symptom or condition resolves within 12 months, or another prescribed period, if any, after the date of an accident.

And who has the burden of proving an injury is minor?  Not ICBC.  You must prove your injury is not minor if ICBC suggests otherwise with the regulations noting “In civil proceedings relating to an injury, the burden of proof that the injury is not a minor injury is on the party making the allegation that it is not a minor injury“.


$100,000 Non-Pecuniary Assessment For Disc Herniation With Poor Prognosis

November 9th, 2018

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and likely permanent back pain arising from a vehicle collision.

In today’s case (Domijan v. Jeon) the Plaintiff was involved in a 2012 collision the Defendant accepted fault for.  The crash caused an L4-5 intervertebral disc injury with central disc herniation.  The prognosis for recovery was poor and the Plaintiff was expected to have some degree of back pain for the rest of his life.  In assessing non-pecuniary damages at $100,000 Madam Justice MacDonald provided the following reasons:

[109]     I am not convinced that the plaintiff’s issue is simply pain relating to lumbar facet joint syndrome as put forward by Dr. Rickards. In fairness to Dr. Rickards, he stated this diagnosis in guarded terms using the word “possibly” numerous times. I prefer the testimony of Dr. Nikolakis and Dr. Appleby, that the plaintiff has a disc protrusion, specifically an L4-5 intervertebral disc injury with central disc herniation. This is based on the onset of pain being temporally related to the accident and the objective findings in the scans. As Dr. Nikolakis reported:

I was able to view the images from this diagnostic study [the March 3, 2014 MRI scan]… This investigation reveals desiccation of the L4-5 intervertebral disc along with a central disc herniation posteriorly and bulging of the intervertebral disc and anteriorly as well. There is a loss of disc height, which is significantly different relative to the healthy disc above and below this level….

[110]     I accept Dr. Nikolakis’ and Dr. Appleby’s evidence regarding diagnosis and am satisfied on the balance of probabilities that Mr. Domijan’s pain is due to an L4-5 disc protrusion in his lower back, which was caused by the motor vehicle accident. It is more likely than not that the plaintiff will have ongoing, albeit partially resolved, back pain for the remainder of his life…

[128]     Here there was no evidence that the plaintiff suffered from psychiatric issues, such as depression, from the accident. He has demonstrated success post-accident despite the demanding physical labour of his work. He works through the pain, although he often suffers. He is certainly not completely disabled. It is clear that the plaintiff is not a complainer, he keeps his pain largely to himself, and overall presents as a stoic young man.

[129]     It would be improper to penalize Mr. Domijan for his stoicism, a factor that should not, generally speaking, be held against a plaintiff: Stapley at para. 46; Clark v. Kouba, 2014 BCCA 50; and Giang v. Clayton, 2005 BCCA 54 at para. 54.

[130]     I note that the plaintiff was a relatively young man at the time of the accident and now faces his adult life with chronic pain, although his pain has diminished since he changed his career to that of a railway conductor.

[131]     I do not give much weight to the defendant’s submissions that participation in sport typically decreases with age as career and family obligations increase, or that the plaintiff never intended to pursue soccer professionally, in my assessment of non-pecuniary damages. The evidence suggests that Mr. Domijan was an avid soccer player and would have continued to play regularly but for the accident.

[132]     In all the circumstances, I consider an appropriate award of non-pecuniary damages to be $100,000. This amount recognizes the plaintiff’s ongoing pain, loss of enjoyment of life, especially his inability to participate in sports, and the longevity of his claim.


BC Lawsuit For Alberta Car Crash Dismissed for Lack of Jurisdiction

November 5th, 2018

Reasons for judgment were published today by the BC Supreme Court, Victoria Registry, dismissing a BC lawsuit on grounds that it had no jurisdiction over an Alberta based collision claim.

In today’s case (Brooks v. Leithoff) the Plaintiff was involved in a total of 5 collisions.  Four of the five occured in BC.  The third occured in Alberta.  The Plaintiff sued the Alberta motorist in BC alleging the crashes all gave rise to a single indivisible injury.

The Defendant sought to have the claim dismissed on the basis that there was no connection to BC to the crash.  The Court agreed with the Defendant and dismissed the lawsuit.  In doing so and finding the claim should have been filed in Alberta Madam Justice Power provided the following reasons:

[49]         When I consider the plaintiff’s arguments, I am not persuaded that the facts that the plaintiff points to are sufficient to displace what I view to be the clear weight of case law in British Columbia:  neither the plaintiff’s residency in British Columbia, nor the fact of indivisible injuries, nor the fact that the plaintiff is suffering ongoing damages in British Columbia, are, by themselves, sufficient to establish a clear and substantial connection to British Columbia.  When these three elements are combined, do these elements together then prove sufficient to ground jurisdiction?  I cannot conclude that they do.

[50]         During the course of argument, the plaintiff fairly conceded that some of the plaintiff’s arguments related to forums conveniens, which is not something I should take into account at this stage.  The plaintiff may have to mount two separate trials on substantially the same evidence as a result of this ruling, but again, that is not a factor I should take into when determining whether jurisdiction has been established.

[51]         During arguments, counsel for the plaintiff also suggested that if I did not accept that there was jurisdiction under s. 3(e) of the CJPTA, I could nevertheless exercise my residual discretion under s. 6 of the Act to find that this Court has jurisdiction.

[52]         In my view, this argument must fail because the exercise of discretion under s. 6 requires that either a) there is no court outside British Columbia in which the plaintiff can commence the proceeding, or b) that the commencement of the proceeding in a court outside British Columbia cannot reasonably be required.  The fact that the plaintiff has already commenced an action in Alberta leads me to conclude that it is open to the plaintiff to continue litigation of this matter in that jurisdiction.

[53]         During the arguments before me, counsel for the plaintiff also pointed to concerns relating to fairness, and the practical difficulties that Ms. Brooks would face in bringing two separate but essentially identical claims in two separate jurisdictions.  While I appreciate these practical difficulties, there are times when appeals to fairness in the law must yield to the demands for clarity and order in the law.  The words of Mr. Justice La Forest in Tolofson v. Jensen, [1994] 3 S.C.R. 1022 at 1058, although made in a somewhat different context, are nevertheless applicable here:

While, no doubt … the underlying principles of private international law are order and fairness, order comes first.  Order is a precondition to justice.

[54]         Overall, it is my view that the weight of the case law clearly establishes that the facts here are not sufficient to establish a real and substantial connection to British Columbia.

[55]         In the result, the defendant’s application to strike and dismiss the plaintiff’s claim for want of jurisdiction in British Columbia is granted.

 


$70,000 Non-Pecuniary Assessment After Sheriffs Negligently “Takedown” Courthouse Visitor

October 25th, 2018

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, ordering Sheriff’s to pay just under $70,000 in total damages to a plaintiff who was injured when they were forcibly removing him from a BC courthouse.

In the recent case (Sweeney v. British Columbia) the Plaintiff was attending the Victoria Registry of the BC Supreme Court to file some papers pertaining to a Residential Tenancy matter.  Sheriff’s approached him and asked to search his backpack.  After some misunderstanding about his consent to do so he was forcibly removed.  In the process the Plaintiff was actively resisting in that “he was trying to pull his arm away from Acting Sergeant Kain’s hold on it because of the pain in his arm” and displayed “a negative attitude towards the authority of the sheriffs“.

A sheriff executed a takedown of the Plaintiff and the court found they were negligent in doing so.  The takedown caused various injuries including “a laceration to his forehead, a concussion, exacerbation of pre-existing injuries to his right arm and shoulder and a rotator cuff tear to his right shoulder.“.   The court assessed non-pecuniary damages for these injuries at $70,000 but reduced the award by 5% for contributory negligence on the part of the plaintiff.

In explaining why the sheriffs were negligent Madam Justice Matthews provided the following reasons:

[90]         I find that both sheriffs believed that Mr. Sweeney was trying to break free. I find that they were in a dangerous situation because they were at the top of two sets of cement stairs separated by a set of glass doors. While they both testify that they never lost control of Mr. Sweeney, they both testified that they were concerned that they would lose control and that would be dangerous to them. Acting Sergeant Kain was also concerned about the woman coming up the stairs.

[91]         I am mindful to not second guess the sheriffs given the dangerous situation they were in. However, I am of the view that they created this dangerous situation by marching towards the stairs notwithstanding the hazards the stairs presented and that Mr. Sweeney was struggling from the outset.

[92]         Both sheriffs decided to cease the escort and to execute maneuvers to maintain control over Mr. Sweeney. They decided this independently and made different decision about what to do to manage the situation.

[93]         The Sheriff Policy Manual requires the sheriffs to use the minimum amount of force necessary to gain control of a subject. I accept the opinion of Mr. Summerville, supported by the evidence of Acting Sergeant Kain, that putting Mr. Sweeney against the wall was far safer than a takedown in the circumstances given the stairs and a very hard ground surface onto which Mr. Sweeney was forcibly put down. A takedown was not, as the Sheriff Policy Manual requires, the minimum force necessary in the circumstances. I conclude that a takedown was not within the reasonable range of options available.

[94]         I find that the sheriffs both breached the standard of care in taking physical control of Mr. Sweeney at the outset, in not communicating about what they were going to do in the face of danger they both recognized as soon as they took control of him and in not changing course prior to being in the dangerous position of being on the stairs. I conclude that they sheriffs breached the standard of care by failing to communicate after each of them decided to change course their course of action. I find that Deputy Sheriff Bergen breached the standard of care in executing a takedown.

[95]         The defendants do not dispute that the takedown caused injury to Mr. Sweeney. Accordingly, the plaintiff has established negligence against the sheriffs.


BC Court of Appeal – “Segregated” Non-Pecuniary Awards Should be Avoided

October 1st, 2018

Several years ago it was more common to see BC courts awarding damages for ‘diminished housekeeping capacity‘ as a stand alone head of damage in injury litigation.  More recently the common practice is for courts to roll these in to the general damages awarded for non-pecuniary loss without a stand alone analysis.  Last week the BC Court of Appeal published reasons indicating the latter is the preferred practice.

In the recent case (Riley v. Ritsco) the Plaintiff was injured in a vehicle collision and sued for damages.  At trial non-pecuniary damages of $65,000 were assessed.  The Plaintiff successfully appealed and in doing so the BC Court of Appeal increased this head of damage to $85,000.  The Plaintiff also argued that the judge erred in not assessing damages for loss of housekeeping capacity as a stand alone head of damage.  In finding no error occured here the BC Court of Appeal provided the following guidance:

[101]     It is now well-established that where a plaintiff’s injuries lead to a requirement that they pay for housekeeping services, or where the services are routinely performed for them gratuitously by family members or friends, a pecuniary award is appropriate. Where the situation does not meet the requirements for a pecuniary award, a judge may take the incapacity into account in assessing the award for non‑pecuniary damages.

[102]     I acknowledge what was said in Kroeker about segregated non-pecuniary awards “where the special facts of a case” warrant them. In my view, however, segregated non-pecuniary awards should be avoided in the absence of special circumstances. There is no reason to slice up a general damages award into individual components addressed to particular aspects of a plaintiff’s lifestyle. While such an award might give an illusion of precision, or suggest that the court has been fastidious in searching out heads of damages, it serves no real purpose. An assessment of non-pecuniary damages involves a global assessment of the pain and suffering, loss of amenities, and loss of enjoyment of life suffered by a plaintiff. By its nature, it is a rough assessment and not a mathematical exercise.

[103]     The $85,000 figure that I have proposed for non-pecuniary loss takes into account all of the general damages the plaintiff has suffered and will suffer. It should not be augmented by a segregated award for loss of housekeeping capacity.