ICBC Law

Section 106 of the Insurance (Vehicle) Regulation permits ICBC to reduce compensation by any amount paid by another “insured claim” in claims for injuries caused by unidentified motorists or uninsured motorists under section 24 and section 20 of the Insurance (Vehicle) Act .  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing whether wage loss benefits paid by an employer are an ‘insured claim‘.  In short the Court held that they are not.

In last week’s case (Loeppky v. ICBC) the Plaintiff, a police officer, was injured in a hit and run collision.  ICBC accepted the crash was caused through the fault of an unidentified motorist.  The Plaintiff sought compensation for his damages including past wage loss.  During his time away from work his employer paid him wage replacement benefits.  ICBC argued these payments were an ‘insured claim‘ and therefore had to be deducted from his ICBC claim.  Madam Justice Grey disagreed and refused to make the deduction.  The Court provided the following reasons:

[83] In my view, Mr. Loeppky’s wage replacement benefits do not constitute an “insured claim” under s. 106 of the Regulation, and therefore may not be deducted from Mr. Loeppky’s award.

[84] In Arklie v. Haskell (1986), 33 D.L.R. (4th) 458, 25 C.C.L.I. 277 (B.C.C.A.), McLachlin J.A., writing for the court at para. 26, held that a sum of money advanced by an employer to an employee that had to be repaid in the event of any recovery did not qualify as a benefit under the predecessor of s. 106.

[85] More generally, in Lopez v. Insurance Corporation of British Columbia (1993), 26 B.C.A.C. 142, 78 B.C.L.R. (2d) 157, Hollinrake J.A., writing for the court at para. 21, held that an “insured claim” for the purposes of the Regulations must still import at least some element of insurance. He went on conclude that payments made by reason of a contract of employment, without some evidence that they originate from an insurer, do not possess such an element of insurance.

[86] The sum of $6,804.77 was paid to Mr. Loeppky under the collective agreement between the Vancouver Police Union and the Vancouver Police Board. Under the terms of that agreement Mr. Loeppky must repay that amount if he recovers it in this action. There is no evidence that the payments originated from an insurer. Thus, it is not an insured claim under s. 106 and the defendant is not entitled to deduct it from any award.

Reasons for judgement were released last week by the BC Supreme Court, Kamloops Registry, assessing fault and damages stemming from a 2006 motor vehicle collision.

In last week’s case (Power v. Carswell) the Plaintiff was involved in a two vehicle collision in Kamloops, BC.   The Defendant blew a red light while attempting a left hand turn and collided with the Plaintiff’s vehicle.  Although he denied liability the Court found him fully at fault.

The Plaintiff suffered various injuries in this collision the most serious of which was a subligamentous disc herniation at L4-L5.

She was expected to have chronic lower back pain as a result of this injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $70,000 Madam Justice Gray provided the following reasons:

[178] Ms. Power suffered moderate soft tissue injuries to her chest, left neck, left shoulder, and lower back in the Accident. The Accident caused a subligamentous disc herniation at L4-L5 which has caused her significant pain in her lower back. Despite painful treatment by cortisone injections into her hips and epidurally, her pain persists.

[179] Ms. Power now experiences hip and lower back pain which limits her ability to sit, stand, walk, and bend. She also experiences shoulder pain which limits her ability to hold her hands near or above shoulder level. As a result of these limitations, she can no longer work as a hairstyling teacher. Ms. Power made significant efforts following the Accident to continue in that line of work, but even with significant modifications, she was not able to do so on a prolonged basis. She has made the reasonable decision to pursue a different career which will more likely suit her physical capacity.

[180] As a result of her injuries, Ms. Power is also less able to care for herself and her family. For example, she has difficulty styling her own hair and doing laundry and other chores.

[181] As a further result of her injuries, Ms. Power suffers pain and is less able to enjoy recreational activities. For example, she is less able to go on long walks, to dance, and to sit for long drives or movies…

[188] In all the circumstances, an appropriate award for Ms. Power’s non-pecuniary losses is $70,000.

Section 3 of BC’s Negligence Act reduces a Plaintiff’s entitlement to costs recovery to the same proportion as a Plaintiff’s degree of fault following a collision.   Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, addressing the factors a Court can consider in deviating from this typical result and further finding that pre-trial borrowing is irrelevant to the Court’s analysis.

In last month’s case (Gowler v. Ngo) the Plaintiff was injured in two motor vehicle collisions.  Following a 13 day trial a Jury found the Plaintiff 50% at fault for the first of the collisions.  Damages of $250,000 were assessed and these were cut in half to take the Plaintiff’s degree of fault into consideration.  The Plaintiff’s costs for proceeding to trial were over $100,000.   Neither party beat their pre-trial settlement offer leaving the Court to apply section 3 of the Negligence Act.

Madam Justice Gray found it would be unfair to strip the Plaintiff of 50% of his costs given their magnitude and instead reduced the Plaintiff’s entitlement by 35%.  In doing so the Court provided the following reasons:

[14] The factors to take into account in considering the court’s discretion are discussed in my decision in Moses v. Kim, 2007 BCSC 1820. I will talk about the Court of Appeal decision in a moment, but I will ask that the reasons for judgment, if they are reproduced, will now include paragraph 13 of the Moses v. Kim decision.

[13]   The authorities demonstrate many factors the court has considered in exercising this discretion. Among them are the following:

(a)  the seriousness of the plaintiff’s injuries;

(b)  the difficulties facing the plaintiff in establishing liability;

(c)  the fact that in settlement negotiations the amount offered was substantially below the ultimate amount;

(d)  whether the plaintiff was forced to go to trial to obtain recovery;

(e)  the costs of getting to trial;

(f)  the difficulty and length of the trial;

(g)  whether the costs recovery available to the plaintiff, if costs are apportioned according to liability, will bear any reasonable relationship to the party’s costs in obtaining the results achieved;

(h)  the positions taken by the parties at trial, in particular whether the positions taken were appropriate and reasonable in the circumstances;

(i)  whether the defendants made any settlement offers;

(j)  the ultimate result of the trial; and

(k)  whether the plaintiff achieved substantial success that would be effectively defeated if costs were awarded pursuant to s. 3(1) of the Negligence Act…

[35] In my view, in this case the most important factors are the costs of proving damages for an injury of this type, the fact that there is a very significant claim for disbursements, and the fact that the amount of the award is $125,000 and the costs claimed are about $104,000.

[36] Mr. Mussio asked me to take into account some borrowing that Mr. Gowler did prior to the trial. In my view, that is not a factor I can take into account, nor can I take into account the legal fees, based on the decision of the Court of Appeal in the Moses v. Kim case.

[37] Looking at all the applicable factors, in my view it would be unjust to award the plaintiff only 50 percent of his costs. That is because his award would be so diluted by the need to pay his disbursements that he would not have a sufficient recovery. However, it is not a case where Mr. Gowler’s damages were so significant as in the Moses case.

[38] Looking at the cases and all the applicable factors, in my view, the appropriate award is that the plaintiff should recover 65 percent of his costs.

Important reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, further clarifying the examination for discovery limit in the new Rules of Court.  In short the Court held that notwithstanding the time limit, generally only one examination for discovery is permitted.

In today’s case (Humphrey v. McDonald) the Plaintiff alleged injury following a collision.  In the course of the lawsuit the Plaintiff attended an examination for discovery.  It did not exceed the 7 hour cap set out in Rule 7-2(2).  Defence counsel brought an application seeking further discovery.  The Plaintiff opposed.  Madam Justice Gray dismissed the application finding that generally only one discovery is permitted.  The Court provided the following useful reasons:

[8] Defence counsel responds that it is implied that examinations should not be scheduled if it was abusive, but apart from that, a party can schedule multiple examinations for up to seven hours in total.

[9] In my view, the use of the plural “examinations for discovery” has to be read in the context of the entire sub-rule. It makes reference to examinations under other sub-rules, which relate to re-examination in subsection (17), in subsection (22) to informing himself or herself and it being adjourned for that purpose, and subsection (24) continuing an examination for discovery following receiving a letter.

[10] In my view, the sub-rule does not suggest that there should be more than one examination for discovery of a party. A party should be able to know whether they are finished with examinations for discovery or whether more are pending.

[11] I do not accept the interpretation of the sub-rule advanced by defence counsel. Since defence counsel has effectively conceded that it has had one examination for discovery of the plaintiff, the defence application to have a further examination for discovery of the plaintiff is dismissed.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing an assessment of damages for an aggravation of pre-existing injuries.

In today’s case (Iwanik v. Hayes) the Plaintiff was involved in a 2008 intersection collision.  She was 61 years old at the time.   Fault for the crash was admitted by the opposing motorist.  The trial focused on the quantum of damages (value of the claim).

Prior to the collision the Plaintiff had various health concerns including fibromyalgia. The collision caused, among other injuries, a “sustained and prolonged” exacerbation of her pre-existing condition.  In valuing the non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Madam Justice Gray provided the following reasons:

[142] In all the circumstances, an appropriate award is $50,000.

Important reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff just over $110,000 for damages flowing from a ‘consensual‘ sexual relationship she had with her high school teacher.

While today’s case is likely to receive media attention due to its sexual theme, it is worth discussing more so because it highlights two important topics that sometimes arise in sexual abuse civil prosecutions; consent and vicarious liability.

In today’s case (AB v. CD) the Plaintiff had several sexual encounters with her grade 12 English teacher.   Following this relationship she sued him for damages and the school board claiming they were vicariously liable for the harm caused by the relationship.  The claim against the teacher was successful but the claim against the school board was dismissed.

The nature of the sexual encounters are summarized at paragraphs 28-52 of the reasons for judgement.  There is no need to repeat them here.  The Plaintiff agreed that “she had consented to…the touching incidents“.   Despite this admission, however, people in authority cannot have consensual sexual contact with people under their authority who are under 18 years of age as this is contrary to section 150.1 of Canada’s Criminal Code.

The school board’s lawyer argued that despite this prohibition, “consent remains a defence in a civil action for sexual assault“.  Madam Justice Gray soundly rejected this argument finding as follows:

[102] The Criminal Code provisions recognize that young people are inherently vulnerable to persons in positions of authority or trust.  While such young people may think that they are making a free choice to engage in a relationship with a person in authority, the very nature of the relationship precludes a free choice.

[103]  Like Stromberg-Stein J., I conclude that it would introduce an odd and problematic inconsistency in the law if a young person were considered legally incapable of consenting to sexual activity for the purposes of the criminal law, but were capable of giving such consent in a related civil action.

[104]  The public policy set out in the Criminal Code has the effect that a young person under the age of 18 cannot consent to sexual contact with a person in authority, as a matter of law, whether the applicable proceedings are criminal or civil.

[105]  As a result, CD is liable to AB for any damages she suffered as a consequence of the sexual battery.

(on a related note, click here to read a BC Court of Appeal decision released this week upholding a criminal conviction of an individual who failed to let his partners know he was HIV positive finding this omission was a ‘fraudulent misrepresentation’ which overrides otherwise consensual sexual contact)

The next issue that was noteworthy was the Court’s discussion of vicarious liability.  As previously discussed, the law sometimes holds an employer responsible for the deeds of an employee even though the employer did not act negligently.  The law of the vicarious liability of School Boards for the sexual battery by teachers is still developing in Canada and there are relatively few judgements addressing this topic.

Madam Justice Gray found that the School Board should not be vicariously liable on the narrow facts of this case and in doing so provided a useful discussion of applicable legal principles at paragraphs 131-155 of the reasons for judgement and applied the Bazley principles to the facts of the case at paragraph 157.

Further to my recent post on this topic, the law regarding the Affidavit Prohibition at Case Planning Conferences and Trial Management Conferences appears to be taking shape.  Useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, taking a common sense approach to this prohibition.

In this week’s case (Enns v. Cahan) the Plaintiff sued for damages under the Family Compensation Act.  A trial management conference was held and the Defendant brought an application to strike the Plaintiff’s Jury Notice.  The Defendant did not provide any affidavits in support of his application relying only on the pleadings and an expert report which was intended to be introduced at trial.  The Defendant argued the case was too complex for a jury.

The application was dismissed with Madam Justice Gray finding that the case could appropriately be heard by a Jury.  Prior to making this finding the Court provided the following useful reasons about when it’s appropriate for a contested application to be heard at a TMC given the affidavit evidence prohibition:

[9] Rule 12-2(11) provides that:

(11)  A trial management conference judge must not, at a trial management conference,

(a) hear any application for which affidavit evidence is required, or

(b) make an order for final judgment, except by consent.

[10] Mr. Brun, Q.C., argued on behalf of Mr. Cahan that his application could proceed without affidavit evidence and on the basis of submissions by counsel alone. Mr. Brun provided the Court with a copy of the Bruce-Aldridge report and seeks to rely on that and the statement of claim as the basis for his application. Mr. LeBlanc argued on behalf of Mr. Enns that Mr. Cahan’s application requires evidence and that it is therefore one of the prohibited orders set out in Rule 12-2(11).

[11] The new Rules include Rule 1-3 as follows:

(1)  The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

(2)  Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a) the amount involved in the proceeding,

(b) the importance of the issues in dispute, and

(c) the complexity of the proceeding.

[12] The new Rules have procedures which enable the court and the parties to design the procedure necessary to resolve a particular issue which is in question. The question of whether an application requires affidavit evidence will not always be determined by what remedy is sought. The question of what is in dispute will play a role, as well. In this case, Mr. Brun’s submissions are based on the Bruce-Aldridge report and the statement of claim. It is not necessary to require the parties to go to the trouble and expense of preparing affidavits when counsel can simply provide the court with a copy of the report in question and the pleadings.

[13] In my view, requiring affidavit evidence would not be consistent with the object of securing the inexpensive determination of every proceeding on its merits. Here, counsel agree that the Bruce-Aldridge report was tendered by Mr. Enns as a report he intends to rely on at trial as an expert report. As I have said, that report, together with the statement of claim, form the basis of Mr. Brun’s submissions. As a result, Mr. Cahan’s application can proceed as an application before the trial management judge.

It is not uncommon for discrepancies to arise about the exact details of an appointment following Court ordered medical exams.  These exams can last from several minutes, to several hours, or even (in the case of Functional Capacity and Neuropsychological Exams) to several days.  If a discrepencey arises as to what was said by the Plaintiff a Trial Judge can face a he-said she-said situation.  This can lead to serious disputes because the outcome of a personal injury trial can turn largely on a Plaintiff’s reliability and consistency.

When such a dispute arises the examining physician often has access to his or her notes detailing the examination.  This can sometimes work to the doctor’s advantage when a Court is asked to decide what was actually said.   To remedy this can a Plaintiff take their own notes while attending an independent medical exam?  Reasons for judgement were recently published on the BC Supreme Court website addressing this issue..

In today’s case (Makowsky v. Jawandha) the Plaintiff was involved in two separate motor vehicle collisions. He alleged injury including brain damage and memory problems.  In the course of the lawsuit the Plaintiff was ordered to attend an independent medical exam with a psychiatrist.   Given the Plaintiff’s poor memory the Court further ordered that “someone invited by the plaintiff could observe the examination“.

The Plaintiff attended the exam with a friend.  During the exam the friend took extensive notes detailing the discussion between the Plaintiff and the Physician.  The Physician claimed this was distracting and put an end to the exam believing the extensive note-taking violated the general BC prohibition on recoding Court ordered medical exams.  The parties put the matter before the Court.

Ultimately the Court held that the Plaintiff’s observer could take notes so long as doing so did not interfere with the examination.  Madam Justice Gray provided the following useful reasons:

[15] There is a right, in my view, for the observer to take notes, but not in a manner that slows or interferes with the examination.  For example, the observer cannot ask someone to pause in what they are saying, or say, “Just a minute, I’m taking a note,” or make noise or gesture in a way that creates a distraction. …

[17] The examination can proceed on the basis that the doctor agrees that there can be an observer present and that observer can take notes, but on the basis that the observer will take notes quietly and out of view of the doctor and patient.

I should point out that although this decision was recently published it was decided in 2008 under the former BC Supreme Court Rules.  There is, however, no reason that I’m aware of to conclude that the Court’s reasoning would not apply to the current Rules.

Lawsuits are public matters.  Generally anyone is free to go to a Court Registry and obtain the names of parties to lawsuits and look at the formal issues of their claims.  This ‘open-court’ principle is fundamental in our Democracy and applies not only to criminal cases but also to civil cases including those dealing with claims for damages for sexual abuse.

It is understandably difficult for Plaintiffs to bring lawsuits dealing with the impact of sexual abuse in the best of circumstances and the open-court principle can serve as an unwelcome discouragement.  Accordingly BC Courts routinely make orders under the Court’s “inherent jurisdiction” to permit plaintiffs to identify themselves by their initials to protect their identity when dealing with sensitive lawsuits.

Sometimes, however, identifying a plaintiff by initials is not enough to protect their identity.  When this is the case the Court can go further to ensure a fair balance is struck between our open court system and the lack of deterrence of Plaintiffs seeking access to justice.  This balance was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.

In today’s case (A.B v. C.D.) the Plaintiff sued a former high school teacher alleging that he sexually exploited, assaulted and battered her.  The Plaintiff also sued the school board arguing that they were ‘vicariously liable‘ for the misdeeds of the teacher.

In the course of the claim the Plaintiff was allowed to refer to herself by the initials AB.  The Defendants brought a motion seeking that they also be allowed to refer to themselves by initials.  The Vancouver Sun, wishing to fully report on the story, intervened and opposed the motion.  Madam Justice Gray ultimately granted the motion.  The reason for doing so was not to protect the defendants but rather to more meaningfully protect the identity of the Plaintiff.

The Court set out a lengthy summary of recent cases discussing the varying principles at stake.  From there Madam Justice Gray provided the following short and useful reasoning in allowing the initials order:

[81]        If the former teacher’s name is published in this case, it could lead members of the public, particularly people who were students and teachers at the plaintiff’s former school, to identify the complainant as the person involved in the criminal proceedings and these related civil proceedings. As a result, the September 27, 2010 ban shall be clarified to provide for restraint on the publication of the former teacher’s name.

[82]        It may seem odd that the former teacher will be treated better than others convicted of sexual offences if his name and identifying information is suppressed. However, this is simply the result of the publication ban and the circumstances. For example, where an accused person has a family relationship to an accused, it is routine to avoid publication of the name of the accused, because it could lead to identification of the complainant. This does not suggest that sexual offenders who prey on family members deserve better treatment, but simply reflects the inevitable result of protecting the complainant’s identity…

[84]        Schools are sufficiently small communities that a few facts can readily identify a former student. Here, the evidence shows that two teachers from the plaintiff’s former school have recently been accused of sexual misconduct with a student. That is such a small number of teachers that publication of the name of the school is likely to lead to identification of the plaintiff, particularly in combination with other details relevant to the plaintiff’s claim, such as her career.

[85]        In this case, a ban on publication of the name of the plaintiff’s former school is required for compliance with the September 27, 2010 ban on publication of information that would tend to identify the plaintiff…

[86]        The evidence shows that there are several high schools operated by the defendant school district. The community served by the defendant school district is a relatively small community. The only evidence of alleged or proven sexual misconduct by teachers in the defendant school district was of the two teachers who formerly taught at the plaintiff’s former high school.

[87]        In the circumstances of this case, publication of the name of the school board is likely to lead to identification of the plaintiff. As a result, the order must be clarified to prohibit publication of that information.

Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, assessing damages for a chronic and partially disabling soft tissue injury.

In today’s case (Knight v. Belton) the Plaintiff was injured in a 2008 rear-end collision.  The rear motorist admitted fault for the crash.  The Plaintiff suffered various injuries the most serious of which was a Grade 2 strain at her scapulo-thoracic junction.  Injuries at this level are notoriously difficult to treat.  While the Court heard competing evidence about whether the injury would recover Madam Justice Gray accepted that it would not and that the Plaintiff would likely experience chronic pain on a permanent basis as a result.

The Court awarded the Plaintiff damages at  just over $480,000 including $75,000 for the Plaintiff’s non-pecuniary damages.  In arriving at this figure Madam Justice Gray provided the following reasons:

[65]         Non-pecuniary damages are damages to recognize losses that have not required an outlay of money or have not involved losing payments. The purpose is to provide solace to Ms. Knight for such things as pain, suffering, disability, inconvenience, and loss of enjoyment of life. One purpose of such damages is to substitute other amenities for those Ms. Knight has lost, not to compensate her for loss of something with a monetary value. The award addresses losses both up to the trial date and which she will suffer in the future…

[67]         Ms. Knight was and is an engaging, enthusiastic, hard-working, and practical woman. She loves dental hygiene. She will not be able to practice it full time, and may have to give up clinical practice altogether.

[68]         Ms. Knight suffered several months of headaches, vertigo, and neck pain. She suffered significant right shoulder pain for about a year. She has on-going chronic mid-back pain and periodic right shoulder pain.

[69]         Ms. Knight is chronically in pain, and as a result, is not as energetic as she was before the accident. She is no longer able to enjoy rough physical play with her children. She is no longer able to enjoy outdoor activities that she previously enjoyed, like running, hiking, boating, skiing, and bicycling. She was unable to contribute as much as she wanted to building the family home. The accident has significantly diminished the quality of her life.

[70]         Ms. Knight referred to these cases: Cleeve v. Gregerson, 2007 BCSC 1112; Gray v. Fraser Health Authority, 2009 BCSC 269; Poirier v. Aubrey, 2010 BCCA 226, 4 B.C.L.R. (5th) 173; and Paller v. Paller , 2004 BCSC 997.

[71]         The defence referred to these cases: Rorison v. Dornan, [1993] B.C.J. No. 752 (S.C.); Letourneau v. Min, 2001 BCSC 1519; Amberiadis v. Groves, 2005 BCSC 1270; Sharpe v. Tidey, 2009 BCSC 948; Ragneborg v. Giesbrecht, 2009 BCSC 110; Sylte v. Rodriguez, 2010 BCSC 207; Henri v. Seo, 2009 BCSC 76; Brock v. King, 2009 BCSC 1179; Anderson v. Merritt (City), 2006 BCSC 90; and Larlee v. Shier, 2008 BCSC 1610.

[72]         I also considered Cathro v. Davis, 2008 BCSC 1645.

[73]         No two cases are alike. Ms. Knight is entitled to damages for pain and suffering in the amount of $75,000.