ICBC Law

Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, disallowing the use of a PowerPoint presentation in an opening statement before a jury.

In last week’s case (Moore v. Kyba) the Plaintiff was injured in a motor vehicle collision.  Shortly prior to trial the Plaintiff advised the Defendant that he was going to use a PowerPoint presentation in his opening statement.  The Defendant objected arguing this ought to have been canvassed at a Trial Management Conference.  Madam Justice Brown agreed and refused the presentation from being presented to the Jury.  The Court provided the following reasons:

[4] In Brophy v. Hutchinson, 2003 BCCA 21, the British Columbia Court of Appeal sets out the principles which apply to an opening statement.

[24]      The opening’s purpose is to outline the case the party bearing the onus of proof (usually the plaintiff) intends to present.  Counsel’s goal in opening is, or should be, to assist the jury in understanding what his or her witnesses will say, and to present a sort of “overview” of the case so that the jury will be able to relate various parts of the evidence to be presented to the whole picture counsel will attempt to present.

[5] The court continues:

[41]      In an opening statement, counsel may not give his own personal opinion of the case.  Before any evidence is given he may not mention facts which require proof, which cannot be proven by evidence from his own witnesses, or which he expects to elicit only on cross-examination.  He may not mention matters that are irrelevant to the case.  He must not make prejudicial remarks tending to arouse hostility, or statements that appeal to the jurors’ emotions, rather than their reason.  It is improper to comment directly on the credibility of witnesses.  The opening is not argument, so the use of rhetoric, sarcasm, derision and the like is impermissible: see Halsbury, supra, at para.103; Williston and Rolls, The Conduct of An Action (Vancouver: Butterworths, 1982); Olah, The Art and Science of Advocacy (Toronto: Carswell, 1990) at 8-8; Lubet, Block and Tape, Modern Trial Advocacy: Canada, 2nd ed. (Notre Dame: National Institute for Trial Advocacy, 2000).  Against this general background, I will consider the objections the plaintiff now makes to the defendant’s opening address.

[6] I was also provided with Schram v. Austin, 2004 BCSC 1789 and Ramcharitar v. Gill, 2007 Oral Ruling, Docket 01-2332, a decision of Mr. Justice Macaulay.

[7] In Ramcharitar, the defendant did not object to the use of the presentation but to the form and some of the specific content.

[8] At para. 9, Mr. Justice Macaulay said:

Counsel should not expect to use a presentation as an aid during an opening unless he or she has first shown it to opposing counsel and the court, so that any issues about form and content can be addressed in the absence of a jury.

As pointed out in Schram, and as was done here, the proposed use should be raised at a pre-trial conference.  The risk of a mistrial arising otherwise from the improper use of a presentation is simply too great, and any counsel who seeks to rely on the use of a presentation at the last minute, without seeking consent or permission beforehand, may find that the proposed use is not permitted.

[9] Here, there are problems with the content of the Power Point, which include references to the contents of opinions not yet in evidence.  The Power Point would need to be modified before it could be used before the jury.  However, the Power Point was delivered too late to the defendant and to the court to permit this to be done.  As Mr. Justice Macaulay indicated, the Power Point presentation should be dealt with at a trial management conference, it should not be left to the morning of trial to be addressed.  In this case, there was simply no time available to deal with this problem.

Reasons for Judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for an intersection collision.

In today’s case (Minosky v. Brar) the motorists were involved in a two vehicle collision.  They both claimed the other was at fault and both sued each other.  Both trials were heard at the same time.

The collision occurred at the intersection of 121st Street and 64th Avenue in Surrey, BC.  The Minosky vehicle was heading northbound on 121st.  He was faced with a stop sign.  The Brar vehicle was heading in the ‘fast’ eastbound through lane on 64th.  As the Minosky vehicle attempted to drive through the intersection he struck the Brar vehicle.

Madam Justice Brown found the Minosky vehicle 100% at fault for the collision for failing to yield the right of way and not complying with the duty set out in s. 175 of the Motor Vehicle Act.  In coming to this conclusion the Court provided the following useful reasons:

[8] I conclude that the Brar vehicle was much closer than Mr. Minosky believed it to be when he left the intersection.  It was an immediate hazard.  Ms. Brar was not speeding and was attending to traffic.  She had no opportunity to stop and avoid the collision.

[9] Mr. Minosky argues that, based on Ms. Brar’s estimates of speed and distance, Ms. Brar would have had ample opportunity to avoid Mr. Minosky’s vehicle if she saw him moving out from the stop sign.  Mr. Minosky argues that Ms. Brar said that she was some two to five car lengths from Mr. Minosky when she concluded that he wasn’t going to stop.  Had this been so, she would have travelled by Mr. Minosky before he had an opportunity to enter her lane of travel.

[10] This argument places too much weight on Ms. Brar’s estimates of distance.  When she first concluded that Mr. Minosky was not going to stop, it would have been an emergency situation.  She said she slammed on her brakes and honked, but was not able to avoid the collision.  In these circumstances, I do not expect that a person would be able to measure with precision the distance between her vehicle and the vehicle with which she was about to collide.  I give little weight to Ms. Brar’s estimates of distance.  Many people are poor judges of distance.  However, I do accept her evidence of how the collision happened.

[11] Section 175 of the Motor Vehicle Act places the burden on Mr. Minosky to yield to traffic that is approaching so closely that it constitutes an immediate hazard.  Mr. Minosky has not satisfied me that he yielded as required.  Rather, I have concluded that when he entered the intersection, the Brar vehicle was an immediate hazard.  I find that Mr. Minosky is 100% at fault.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, deciding the issue of fault for a two vehicle collision.

In today’s case (Tang v. Rodgers) the Plaintiff was travelling on West 33rd Avenue in Vancouver when he was struck by the Defendant’s vehicle.  There was one lane in the Plaintiff’s direction of travel at the scene of the collision.  The Plaintiff attempted a right hand turn into the driveway to his residence.  At this time the Defendant was attempting to pass the Plaintiff’s vehicle on the right and a collision occurred.

There was conflicting evidence at trial but ultimately the Court found that both motorists were to blame.  The Defendant was faulted for passing on the right when it was unsafe to do so.  The Plaintiff was found 25% at fault for failing to engage his right hand turn signal in a timely fashion.  In arriving at this apportionment Madam Justice Brown provided the following reasons:

[21]         Section 158 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, prohibits passing to the right in most circumstances.  Mr. Rodgers was negligent in passing on the right without ensuring that it was safe to do so.  Mr. Tang was moving slowly in the travel lane when Mr. Rodgers decided to pass.  Mr. Rodgers did not know what Mr. Tang was doing and thought he was confused.  Mr. Rodgers took a significant risk.

[22]         Mr. Tang was also negligent.  Section 167 of the Motor Vehicle Act provides that a driver of a vehicle must not turn the vehicle to the right from a highway at a place other than an intersection unless the driver causes the vehicle to approach the place as closely as practicable to the right hand curb or edge of the roadway.  Mr. Tang did not do so.  Rather, as some drivers do, he placed his vehicle to the left before turning right.  His vehicle was not as close as practicable to the right hand curb or edge of the roadway.  Second, Mr. Tang did not shoulder check or look to his right before turning right.  Finally, Mr. Tang only turned his right turn signal on immediately before the accident, which was too late to give warning to those behind him.

[23]         The circumstances of this case are very similar to the circumstances that were before Mr. Justice Curtis in Boyes v. Mistal, [1990] B.C.J. No. 1755, 1990 CanLII 528 (SC), aff’d 1992 CanLII 1954 (BCCA).  There Mr. Justice Curtis said:

Mrs. Boyes did not give sufficient warning when she signalled.  Like many drivers she signalled and turned almost simultaneously, too late to warn Mr. Mistal.  Nor did Mrs. Boyes turn from as close as practicable to the right hand edge of the roadway, she turned when there was more than a car width to her right - thereby risking the sort of collision that did occur.  Mrs. Boyes is at fault in the collision for these reasons.

I find Mr. Mistal’s fault to be the greater.  Mrs. Boyes was occupying the only lane of travel, she never left her lane, and had a right to be there.  Mr. Mistal chose to pass Mrs. Boyes when she slowed down on the basis of what he assumed was happening.  She had not signalled and Mr. Mistal should have known that in choosing to pass a vehicle which was obviously intending some maneuver not yet signalled, in its own lane, he was taking a significant risk.  I find Mr. Mistal to be 75% at fault and Mrs. Boyes 25%.

[24]         I, too, conclude that Mr. Rodgers’ fault was the greater.  I find Mr. Rodgers 75% at fault and Mr. Tang 25% at fault.

Reasons for judgement were released today deciding the extent of no-fault benefits the Manitoba Public Insurance Company (MPIC) has to pay when a driver insured by them injures a person in British Columbia.

In today’s case (Schuk v. York Fire & Casualty Insurance Company) the Plaintiff was considered a pedestrian and was struck by a tractor trailer driven by an individual insured with MPIC.  The collision occurred in British Columbia.  The Plaintiff was severely injured but ICBC and MPIC did not agree as to who had to provide coverage.

Ultimately a lawsuit was brought and Mr. Justice Meyers ordered that both MPIC and ICBC had to provide the Plaintiff with benefits with MPIC being the primary insurer.  (You can click here to read my former post summarizing this previous decision)

Unfortunately the legal positioning did not end there.  Manitoba is a true no-fault jurisdiction meaning that people injured in Manitoba motor vehicle collisions have had their rights to sue for damages severely restricted.  As a trade off they have a relatively generous scheme of no-fault insurance benefits.  In today’s case the Plaintiff argued that MPIC had to provide the Plaintiff with the more robust MPIC benefits.  MPIC disagreed arguing that their obligation to pay no-fault benefits is governed by the lesser BC limits.  Ultimately Madam Justice Brown sided with MPIC and ruled that a British Columbian injured in BC by an MPIC insured driver is not entitled to claim the more generous MPIC no-fault benefits.  Madam Justice Brown provided the following reasons:

[16]         The issue before me turns on the proper interpretation of the Power of Attorney and Undertaking filed by the Manitoba Public Insurance Corporation.  In this case, the relevant provisions of the undertaking provide that the Manitoba Public Insurance Corporation undertakes to:

A. … appear in any action … against it or its insured …

C. … not to set up any defence to any claim … which might not be set up if the contract had been entered into in accordance with the laws relating to motor vehicle liability insurance contracts or plan of automobile insurance in the Province … and to satisfy in a final judgment rendered against it or its insured by a court … in respect of any kind or class of coverage … up to the greater of

(a) the amounts and limits for that kind or class of coverage … provided in the contract or plan, or

(b) the minimum for that kind or class of coverage … required by law in such province ….

[17]         There is no issue that the coverage for the kind or class of insurance, being no-fault benefits is greater in Manitoba.  The question is whether its undertaking makes MPIC liable to pay that amount to Ms. Schuk.  In my view, it does not.  The undertaking provides that MPIC will satisfy any final judgment rendered against it “in respect of any kind or class of coverage provided under the contract or plan”, and “in respect of any kind or class of coverage required by law to be provided under a plan” in British Columbia.

[18]         In this case, there is no coverage provided under the contract or plan to Ms. Schuk for no-fault benefits under Part 2 of the Manitoba Act.  To qualify for that coverage, a person must be a Manitoba resident or injured in an accident in Manitoba (s. 74).  As MPIC argues, the Manitoba standard automobile policy does not incorporate PIPP benefits.  PIPP benefits are available based upon statutory entitlement.

[19]         Here, Section B of the contract provided accident benefits “as required by law”.  The Manitoba legislation provides PIPP benefits only to those resident in or injured in Manitoba.  Those benefits are not “required by law” for one, like Ms. Schuk, who is not a resident of Manitoba and not injured in Manitoba.  The driver of a Manitoba licensed vehicle is not required to carry PIPP coverage.  The Section B endorsement carried a charge of $950 for “accident benefits coverage for those drivers not eligible for Personal Injury Protection Plan (PIPP)”.  I accept the submissions of Manitoba Public Insurance that this would be drivers who were not Manitoba residents and were not injured in Manitoba.

[20]         Ms. Schuk did not have PIPP benefits coverage under either the contract or the plan.

[21]         The other portion of MPIC’s undertaking, that is not to set up any defence which might not be set up if the contract had been entered into in the Province of British Columbia, also does not assist the plaintiff.  ICBC could certainly have set up the defence that it does not provide benefits under the Manitoba legislation; that Ms. Schuk does not qualify for PIPP benefits.

The answer is yes and reasons for judgment were released today by the BC Supreme Court demonstrating this.

In today’s case (Sidhu v. Kiraly) the Plaintiff was awarded $35,000 for non-pecuniary damages for accident related soft tissue injuries.

Madam Justice Brown found that the Plaintiff suffered “soft tissue neck and back injuries and developed secondary muscle contraction occipital headaches”  These injuries largely improved over time and the Court found that “so long as (the Plaintiff) does not undertake any heavy labour, he has no significant complaints.  If he undertakes heavy work of any kind, his symptoms flare, he has neck, mid-back and shoulder pain as well as headeaches.”

Unfortunately for the Plaintiff, his own occupation at the time of the collision involved heavy labour and once he realized the permanent nature of his injuries he concluded he could not carry on in his occupation.  He retrained for a lighter career as a realtor.  The court found that this was reasonable given the accident related injuries and awarded the Plaintiff $350,000 for his diminished earning capacity.  In arriving at this assessment Madam Justice Brown engaged in the following analysis:

[25] Turning now to future loss of income or future loss of capacity, as I have indicated, I accept that the plaintiff will not be able to return to his work as a heavy duty mechanic and that he is permanently unable to undertake heavy labour of any kind.  This is a limitation on the plaintiff’s “ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured”, and a valid consideration in the determination of future income loss: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 8 (S.C.).

[26] I also am of the view that his choice of real estate agent as a future career was a reasonable one in the circumstances.  In my view, given the plaintiff’s personality and his persistence, he is likely to succeed as a real estate agent.

[27] The plaintiff relies on the report of Gerry Taunton to calculate future income loss. Mr. Taunton calculates Mr. Sidhu’s without accident income as a mechanic to age 65 at $1,096,233 and his with accident income as a realtor at $561,552, a  difference of $534,681.

[28] The court must consider all of the evidence in assessing what makes a reasonable award for such a future loss.  Projections, calculations and formulas may be useful in determining what is fair and reasonable.  It is important for the courts to look at all relevant factors before fixing an amount.  Any award under this head of damages must be set off against appropriate contingencies.

[29] Having considered the assessment provided by Mr. Gerry Taunton and considering the contingencies in this case, positive and negative, in my view, an appropriate award for future loss of income or capacity is $350,000.  I do not accept the defendant’s submission that one year of income would be appropriate in this case.  As I have indicated, the plaintiff has been permanently disabled from his lifetime occupation as a heavy duty mechanic.  He has been forced to retrain.    There is some prospect that he will earn more than the median income of male realtors in British Columbia.  There is also the prospect that he will earn less.  I have assessed the amount of the award in this case as best I am able, considering all of the contingencies.