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.

Posts Tagged ‘Foster v. Chandel’

Trial Length in and of Itself Sufficient to Keep Matter in Rule 15

October 16th, 2013

In 2011 the BC Supreme Court confirmed that the factors listed in the overhauled fast track rule (case value and trial length) were exclusive of each other and if either was satisfied that was sufficient for a fast track proceeding.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, confirming this interpretation of the Rule.

In last week’s case (Foster v. Chandel) the Defendant brought an application to remove a case from Rule 15 arguing the claim was not suitable for fast track prosecution.  The Plaintiff conceded that the case “might exceed $100,000” but the Court noted that this in and of itself was insufficient to take a case out of Rule 15.  In dismissing the defense application Master Bouck provided the following reasons:

[25]         It appears on the evidence before me that the trial can be completed in three days. The plaintiff says that she can complete her case in just over one day. The defendants’ need to cross-examine the plaintiff’s two experts has not been firmly determined, but the time required for this purpose should not be more than one day. That leaves sufficient time to hear the defendants’ witnesses as well as closing submissions. In any event, the defendants are not even certain of the witnesses to be called or the medical evidence that will be led at trial. To a large extent, the defendants’ evidence concerning the length of trial is based on a yet to be determined witness list and trial plan.

[26]         The fact that the plaintiff’s claim for damages might exceed $100,000 is not in and of itself justification for removal of the action from Fast Track: Hemani v. Hillard, [2011] B.C.J. No. 1924 (S.C.).

[27]         Finally, the plaintiff is prepared to continue her examination for discovery for up to three hours beyond the time allowed under Fast Track. That concession removes any potential prejudice to the defendants who say that certain subject matters have yet to be explored. No order is made with respect to the examination time as the relief was not specifically sought. The defendants always have the opportunity to apply for an order extending the time if this remains an area of contention.

[28]         The defendants’ application for removal of this action from Fast Track is at best premature. As the evidence develops, it may become obvious to the parties that the action ought to be removed if only because the trial will certainly consume more than three days. In those circumstances, it might be in the plaintiff’s best interests to consent to the removal to ensure that a trial date is not lost and costs are not so limited: Rule 15-1(14), Sandhu v. Roy, 2011 BCSC 1653.


An IME “Should Not Be Ordered Simply To Allow The Defendants To Ask the Same Questions Asked in Discovery”

October 10th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing an application for an independent medical exam noting the Defendant’s could have obtained the sought information through the discovery process.

In this week’s case (Foster v. Chandel) the Plaintiff was injured in a 2009 collision.  The Plaintiff agreed to attend a Defense medical exam.  Subsequent to this the Defendant requested a second exam with a psychiatrist.   The Defendant argued that this was necessary because “the plaintiff is taking the maximum dosage of anti-depressant medication; has been seen by a psychiatrist (but not for treatment); and is suggested [by her family doctor] to be suffering from a mood disorder related to chronic pain.“.

Master Bouck dismissed the application noting all of this could be explored through the discovery process.  In reaching this conclusion the Court provided the following reasons:

[18]         There is no evidence from any medically-trained person suggesting that a psychiatric examination is necessary or useful to either diagnose or treat the plaintiff. The plaintiff is taking medication in the dosage recommended by physicians with no suggestion of prescription abuse. The emotional symptoms are said by the medical experts to emanate from the plaintiff’s physical pain, not from any alleged psychiatric condition or disorder.

[19]         The defendants submit that the psychiatric examination may reveal other causes for the plaintiff’s anxiety and depression. It may also reveal the nature and extent of these conditions.

[20]         Such information can be sought at the plaintiff’s examination for discovery. A psychiatric examination should not be ordered simply to allow the defendants to ask the same questions asked in discovery but in a different manner and venue.

[21]         The nature and extent of the plaintiff’s pain disorder and resulting symptoms is revealed in the records and reports of the treating physicians. There is no evidence to suggest that a psychiatrist could offer a “better” diagnosis or prognosis on that condition.

[22]         The facts of this case have many parallels to those discussed in Wocknitz v. Donaldson, 2010 BCSC 1991. As in that case, the defendants do not have the necessary evidentiary foundation to support an order for “this particularly invasive form of examination”: para. 20.