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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 ‘Laktin v. Vancouver (City)’

The “Heavy Burden” of BC’s Loser Pays System

March 25th, 2014

I have frequently highlighted BC’s loser pays system where a losing litigant is typically ordered to pay costs to the opposing side.   Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that this result can be harsh and is typically unyielding to factors such as sympathy and financial hardship.

In this week’s case (Laktin v. (Vancouver) City) the Plaintiff was shot three times by police officers rendering him paraplegic.  He sued however his claim was ultimately dismissed following a 5 week jury trial.   Vancouver sought their costs from the Plaintiff who opposed the application arguing financial hardship.  Mr. Justice Pearlman noted the loser pays system does not yield to financial concerns in and of themselves.  In awarding costs the Court noted as follows:

[24]         The plaintiff says that the defendants should be denied their costs on the basis that his life was permanently and catastrophically altered by the event of January 21, 2006 and his future care and financial support are now in jeopardy. Mr. Laktin argues that the costs of a five-week trial will impose an onerous financial burden, which the plaintiff lacks the means to satisfy.  I accept that Mr. Laktin is in difficult financial circumstances, and that an order requiring him to pay costs to the defendant will be a real and heavy burden for him.  While I have a great deal of sympathy for the plaintiff, the case law clearly establishes that the unfortunate personal circumstances and financial hardship of a litigant are not, standing alone, factors warranting a departure from the general rule that costs follow the event: Morris at para. 36; Chen at para. 11;Vesuna v. British Columbia (Transportation), 2011 BCSC 1618 at para. 8.

[25]         In Robinson v. Lakner (1998), 159 D.L.R. (4th) 191, the Court of Appeal, reversing the decision of the trial judge who had limited the costs payable to the successful defendant to $1,500 because the plaintiff was in difficult financial circumstances, held at para. 5, that “financial hardship in itself is not a sound basis for departing from the usual rule with respect to costs”. 

[26]         In Cowherd v. Fraser Valley Health Region et al, 2004 BCSC 698 at para. 5, Madam Justice Ballance cited Brown v. Blacktop Cabs Ltd. (1997), 43 B.C.L.R. (3d) 76 (C.A.); Zelenski Estate v. Fairway(1998), 60 B.C.L.R. (3d) 76 (C.A.); Churchland v. Gore Mutual Insurance Co. (unreported), September 23, 1999, No. S09912, Vancouver (S.C.); and Robinson for the principle that “in general, the unfortunate personal circumstances and characteristics of a litigant are not to be taken into account by the court in exercising its discretion in making an award of costs”.

[27]         In Morris at para. 38, Madam Justice Ker concluded that the court is unable, on any principled basis to take the plaintiff’s financial circumstances into account in determining whether to award costs.

[28]         At para. 39, Her Ladyship cited the following passage from the Reasons for Judgment of Greyell J. in Chen at para. 15:

[39]  To do otherwise would lead to inconsistent and no doubt unreasonable results. As Greyell J. so eloquently noted in Chen at para. 15:

[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.

[29]         I conclude that the plaintiff’s difficult personal circumstances and financial hardship, standing alone, do not provide grounds for the Court to depart from the normal rule that costs should follow the event…

[49]         I conclude that there are no special circumstances in this case that would warrant a departure from the general rule that costs should follow the event.

[50]         Accordingly, the defendant, City of Vancouver, will have costs of this action at Scale B, together with its reasonable disbursements.

 


Paraplegia Claim Not Too Complex For Jury Trial

January 6th, 2014

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, addressing a jury strike application in a paraplegia injury claim.

In the recent case (Laktin v. Vancouver (City)) the Defendants “were responding to a call that the Plaintiff might be suicidal” when one of the Defendant police officers “shot the plaintiff, rendering him paraplegic“.

The Plaintiff sued for damages and elected trial by Jury.  The Defendants brought an application to strike the jury notice arguing the trial was too complex for a jury to hear.  Mr. Justice Pearlman disagreed finding that despite the severe nature of the injury the matter was appropriate for jury trial.  In reaching this conclusion the Court provided the following reasons:

[35]         This is not a trial that involves multiple accidents or actions, or that raises complex issues of causation of the plaintiff’s physical injuries. The jury may have to determine the extent to which the  psychological injuries claimed by the plaintiff result from a pre-existing condition rather than the incident of January 21, 2006. That will involve the jury making findings of fact that are well within the capabilities of a modern jury.

[36]         The defendants have identified numerous issues of fact and law relating to issues of liability, the statutory and common law defences to the plaintiff’s claim of battery available to the defendants, the apportionment of fault, and damages.  It is the responsibility of the trial judge to instruct the jury concerning the legal principles that will apply to the facts as found by the jury.  The court will instruct the jury on the application and interpretation of the relevant provisions of the Police Act and the Criminal Code. 

[37]         The duties of care owed by the defendants to the plaintiff are a matter of law for determination by the trial judge rather than the jury. It will be the responsibility of the trial judge to determine whether the City of Vancouver owed a duty of care to the plaintiff, and whether, as a matter of law, there is any basis for the plaintiff’s claim against the City, other than its liability under s. 20 of the Police Act for the torts of municipal police officers.

[38]         Whether, as a matter of law, the application of the doctrine of ex turpi causa would be justified in the circumstances of this case is also a matter for the trial judge.

[39]          The defence correctly submits that the provisions of ss. 34 and 37 of the Criminal Code in force at the time of the incident that gave rise to this action add a level of complexity to this trial.   However, juries in criminal cases have been frequently called upon to apply those provisions, and with the assistance of instructions from the trial judge, have done so. I see no reason why a civil jury, properly instructed, cannot perform a similar task.

[40]         In my view, finding the facts regarding what occurred in the sequence of events that culminated in Constable Coulthard shooting the plaintiff, and determining whether the force used by the police was justified in all of the circumstances are tasks well suited to a jury composed of eight members of the community.