ICBC Law

Adding to this site’s chronic pain non-pecuniary damages archives, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain and depression.

In this week’s case (Tsalamandris v. MacDonald) the Plaintiff was involved in two collisions, the first in 2004 and the second in 2006.  The Defendants admitted fault in both claims.  The Plaintiff suffered from “chronic pain and a depressive disorder which is quite debilitating“.  The cause of the Plaintiff’s disability was the main focus of trial with the Plaintiff arguing the collisions were responsible while the Defendants pointed to other explanations.

Ultimately the Court found that the the collisions were responsible for the Plaintiff’s injuries.  These were expected to be largely disabling for the duration of the Plaintiff’s career.  In assessing non-pecuniary damages at $100,000 Madam Justice Griffin provided the following reasons:

[223] I therefore conclude that but for the Accidents, the plaintiff would not have suffered the chronic pain and depression she suffered following the Accidents and continuing to this day and into the future.  The plaintiff has proven that the Accidents caused her conditions of chronic pain syndrome and depression…

When a BC motor vehicle accident tort claim goes to trial and a judge or jury awards pecuniary damages over $100,000 s. 99 of the Insurance (Vehicle) Act requires the award be paid periodically where it is “in the best interests of the plaintiff” to do so.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this area of law.

In last week’s case (Bransford v. Yilmazcan) the Plaintiff was injured in a 2003 collision.  She developed Thoracic Outlet Syndrome and experienced disability related to this.  Her claim went to trial where she was awarded just over $1.2 million by a Jury.  This award was reduced somewhat by the BC Court of Appeal.

Ultimately the Plaintiff was awarded $436,000 for loss of future earning capacity.  ICBC applied under section 99 of the Insurance (Vehicle) Act to pay this portion of the judgement in monthly installments at $1,357 per month arguing that this would be in the ‘best interests‘ of the Plaintiff.  Madam Justice Griffin disagreed and dismissed the applicaiton.  In doing so the Court provided the following useful reasons:

[51]         The defendants argued that since they were only seeking a partial structured judgment, rather than a structured judgment that applied to the whole of the future damages award, the plaintiff will be left with sufficient flexibility to meet any fluctuating needs.  I am not convinced this is an entirely fair approach.  The future care award is allocated for the plaintiff’s future care needs.  Normally a person uses income to pay for extraordinary living expenses or to make choices such as repayment of debt.  If the loss of future earning capacity award is structured, the plaintiff will lose this flexibility. Such a loss of flexibility is not cured merely because only a partial structured judgment is sought.

[52]         In this case, a factor that weighs heavily is the fact that the proposed structured judgment will run for 38 years.  That means, if a structured judgment is ordered, that for 38 years of this plaintiff’s life, she will not have the ability to make her own choices about her investments or her needs, beyond what she can do with receipt of the monthly periodic sum.  None of the evidence proffered by the defendants suggested that a fixed rate of return of 2.5% would be a safe investment over 38 years.  If the financial landscape changes drastically in 25 years, the plaintiff will not have the flexibility to adapt if she is subject to the structured judgment.  However, if the financial landscape changes drastically in the next 25 years, and she has been fiscally conservative in managing a lump sum award of damages, she will have the flexibility to deal with the change in circumstances.

[53]         I come back to the principle enunciated in Lomax, namely that a damage award is the plaintiff’s own property.  Underlying this point, in my view, is the common sense observation that a central aspect of one’s dignity and humanity is the ability to control one’s own destiny by the freedom to make one’s own choices.  Where a plaintiff has been injured through the negligence of defendants, such that she has suffered a significant loss of earning capacity, as here, she has already lost some personal dignity in that her future choices have been limited due to her injuries.  In this case the plaintiff would lose additional dignity and autonomy if her ability to make her own decisions about her damages award was taken away.

[54]         Having observed the plaintiff’s evidence at trial and on this hearing before me, I was impressed with her capabilities.  I observed that she was a person who was a “go-getter” before her injuries, and she remains someone with an independent and strong personality.  I have considered all of the factors referred to above, and weighed the risks and benefits of a structured judgment against the risks and benefits of a lump sum award.  I conclude that an order that the loss of future earning capacity award be structured would not be in the best interests of this plaintiff.

[55]         I therefore dismiss the defendants’ application.

As previously discussed, when a person becomes disabled from work due to injuries and uses up banked sick time they can claim damages to be reimbursed for this loss in a tort claim.

If the tort claim arises from a BC motor vehicle accident the Insurance (Vehicle) Act requires awards for past wage loss to be reduced to take income tax consequences into account resulting in damages only for “net income loss”.  So, when damages are paid for use of banked sick time does the award need to be reduced to take income tax into account?   The answer is no and reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this issue.

In last week’s case (Chalmers v. Russell) the Plaintiff was a school teacher who was involved in two motor vehicle collisions.  The Plaintiff was not at fault for either of these crashes.  As a consequence of injuries sustained the Plaintiff had to use up several thousand dollars of banked sick time available to her through her employment.  Madam Justice Griffin awarded the Plaintiff damages for this loss and in doing so provided the following useful reasons explaining that these awards are not to be reduced to take income tax consequences into account:

[85]         I accept Ms. Chalmers’ evidence that following the first accident, she was so sore and painful that she felt it necessary to take time off work prior to the birth of her child in order to expedite her recovery.  I am mindful that she did not obtain any medical evidence in support of her decision to take time from work.  Regardless, given her advanced state of pregnancy, the trauma of the accident and the pain she was in after the first accident, I consider her decision not to return to work to be reasonable and due to her injuries.  The cost to reimburse the sick bank during this time period is $342.45 per day, totalling $3,766.95.

[86]         As noted in Bjarnason v. Parks, 2009 BCSC 48, depletion of a sick bank is a compensable loss: at para. 56.  However, it is not an income loss so there should be no deduction for income tax in accordance with ss. 95 and 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231: Bjarnason at para. 66.

In addition to the above, today’s case is worth reviewing for the Court’s discussion of non-pecuniary damages for mothers whose injuries affect their ability to look after their young children.  In today’s case the Plaintiff sustained various soft tissue injuries which, while not disabling, continued to affect the Plaintiff and interfered with her ability to look after her infant children.  Madam Justice Griffin assessed non-pecuniary damages at $50,000 and in doing so provided the following reasons:

[123] Importantly, Ms. Chalmers has lost the experience of being a relatively pain-free, physically active mother of her infant children during an important period in their young lives.  This is clearly a huge loss for Ms. Chalmers.

[124] I conclude that a reasonable award of non pecuniary damages, that is fair to all parties, is $50,000.

This is not the first time that pain interfering with parenting has been considered a relevant matter by the BC Supreme Court in addressing non-pecuniary damages and you can click here to read a previous post further discussing this topic.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing the scope of permissible questions at examinations for discovery under the new Civil Rules.  In short, the Court noted that although the New Rules contain some changes with respect to the time permitted for discovery, precedents developed under the former rules remain good law with respect to permissible questions.  The court also addressed the factors that can be considered in extending an examination for discovery.

In today’s case (Kendall v. Sun Life Assurance Company) the Plaintiff had disability insurance with the Defendant.  The Plaintiff sued claiming the Defendant improperly denied her insurance benefits.  In the course of the lawsuit the Plaintiff examined a representative of Sun Life for discovery.  During the course of discovery Sun Life’s lawyer caused “so much disruption” with interfering objections that Plaintiff’s counsel terminated the examination prematurely and walked out.

The Plaintiff brought a motion compelling the representative to attend discovery again to complete the examination, to answer the questions that were objected to and to extend the time of discovery beyond the permitted 7 hours.  Madam Justice Griffin granted the motion and in doing so made the following comments about the scope of permissible discovery questions under the new rules:

[6]             Rule 7-2(18)(a) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules of Court] sets out the scope of examination as follows:

(18)      Unless the court otherwise orders, a person being examined for discovery

(a)        must answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action, …

[7]             Despite a variety of substantive changes to the Rules of Court enacted effective July 1, 2010, the scope of examination for discovery has remained unchanged and is very broad….

[13]         While the scope of examination for discovery has not changed with the new Rules of Court brought into force on July 1, 2010, the length of examination for discovery is now limited to seven hours or any greater period to which the person to be examined consents: Rule 7-2(2).

[14]          The newly imposed time limit on discovery makes it all the more important that the courts enforce the principle that counsel for the examined party must not unduly interfere or intervene during the examination for discovery.  The time limit imposes a self-policing incentive on the examining counsel to be focused and to not waste time on questions that will not advance the purpose of investigating the case or obtaining admissions for use at trial.

[15]         While the time limit on examination for discovery creates an incentive on the examining party to be efficient, it unfortunately also creates a risk that counsel for the examinee will be inefficient by unduly objecting and interfering on the discovery, for the purpose of wasting the limited time available.  If that party is economically stronger than the examining party, it also can strategically increase the costs of litigation this way, by burdening the financially disadvantaged party with having to bring a court application to obtain a proper discovery.

[16]         The proper conduct of an examination for discovery within the spirit of the Rules thus relies on the professionalism of counsel for the party being examined.

[17]         As held by the Ontario Superior Court in Iroquois Falls Power Corp. v. Jacobs Canada Inc. (2006), 83 O.R. (3d) 438 at para. 4:

Improper interference by counsel in the other party’s discovery undermines the purposes of discovery, prolongs it, fosters professional mistrust and generally offends the overall purpose of the Rules….

[18]         A largely “hands off” approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality, effective July 1, 2010.  Allowing wide-ranging cross-examination on examination for discovery is far more cost-effective than a practice that encourages objections, which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections.  It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial, rather than on examination for discovery. ..

[52] In summary, the majority of objections made were not valid. The objections were undue interference in the flow of the examination for discovery.  It may or may not be the case that some of the questions were worded awkwardly and may have been seeking evidence of marginal relevance.  The examining party who frames questions badly runs the risk that the evidence obtained will end up being of no value.  Nevertheless, considerable respect ought to be shown for the professional judgment of counsel for the examining party on how to best approach an examination for discovery.  It is not up to counsel for the party being examined to dictate the opposing side’s decisions on which relevant areas of questioning should be the focus of the discovery.  It is also not in accord with the object of proportionality to make it the function of the court to become involved in micro-managing examination for discovery questions.

In addition to the above this case is worth reviewing in full for the Court’s discussion of the many specific objections that were raised.  In particular, the Court held that it is permissible in lawsuits for denied insurance benefits to ask the insurer’s representative about their general practices.

Two judgements were released this week by the BC Supreme Court dealing with issues relating to civil claims arising in the context of alleged sexual assaults.  The first case dealt with improper statements during closing arguments to a jury, the second with disclosure of records relating to a criminal prosecution.

In the first case (RK v. BR) the 17 year old Plaintiff became intoxicated at a party.   The Plaintiff “stopped at his best friend’s home to see if he could spend the night“:.    His friend was not home but his friend’s father let him spend the night.  The defendant (the father) “sexually assaulted the plaintiff later that night.”

The Plaintiff sued for damages and selected trial by Jury.   The Defendant admitted to the assault and during the course of the trial conceded that the Plaintiff was entitled to some damages.  The question was what amount was appropriate.

During closing arguments the Plaintiff’s lawyer made statements to the Jury that the Defendant objected to.  Particularly the Plaintiff’s lawyer  ”questioned the defendant’s decision to stay in the courtroom while the plaintiff testified. He suggested the jury could infer the defendant had remained in court to intimidate the plaintiff, or to draw pleasure from seeing his victim again. He also suggested the jury could infer that the defendant had been grooming the plaintiff for a sexual encounter. Plaintiff’s counsel also suggested to the jury that the plaintiff would see the defendant’s face whenever he made love.”

The Defendant argued that these comments were inappropriate and inflammatory and asked that the judge dismiss the Jury.    Mr. Justice Brown reluctantly granted the motion.  In doing so he provided the following reasons:

[25]         Considering all the circumstances and applying the above framework to the case at bar, I find that the impugned portions of counsel’s submissions were highly prejudicial. First of all, the submission that the plaintiff will see the defendant’s face every time he makes love for the rest of his life has no foundation in the evidence. It was a highly speculative statement, with the sole purpose of inflaming the jury against the defendant. Counsel for the plaintiff says the statement did have a basis in the evidence because the plaintiff testified that he remembered the assault a couple of times a week, sometimes upon waking. He says Dr. Pulleyblank’s evidence that similar situations could trigger painful memories is a further factual basis for his argument.

[26]         This argument is unconvincing. The evidence counsel relies on does not support the inference he asked the jury to draw; especially given evidence from the plaintiff that directly contradicts this statement. The plaintiff testified that since the assault he has had a positive sexual experience. There was also evidence that the plaintiff’s symptoms of posttraumatic stress disorder have diminished over time. To suggest the plaintiff would see the defendant’s face every time he made love for the rest of his life was more than mere rhetoric verging on the extravagant; it was a highly inflammatory statement that had no basis in the evidence.

[27]         Likewise, counsel’s statement that the defendant groomed the plaintiff for a sexual encounter by inviting him to sleep over and providing him with alcohol has no basis in the evidence. Counsel says the basis for it lies in several statements made during trial. He relies on the statement of the plaintiff’s mother that two or three months earlier the defendant had phoned to ask if the plaintiff could sleep over. Counsel for the plaintiff also points to the plaintiff’s testimony that the defendant sometimes bought beer for his son and his friends. He also relies on the defendant’s testimony that in his youth he arranged consensual sexual acts with other males by asking them to ‘sleep over’. He says these statements, taken together, provide a basis for the jury to draw an inference that the defendant was grooming the plaintiff for a sexual encounter.

[28]         The evidence does not provide a foundation for the statement that the defendant was grooming the plaintiff. There is no evidence the assault was premeditated. The defendant admitted he had called the plaintiff’s mother at an earlier time, but this was at his son’s request and to let the plaintiff’s mother know it was all right for the plaintiff to sleep over. The plaintiff’s arrival on the defendant’s doorstep that evening was clearly unplanned. Again, the sole purpose of this statement was to inflame the minds of the jury against the defendant. It was improper and amounts to misconduct.

[29]         Counsel’s comments on the defendant’s presence in the courtroom were also inflammatory and prejudicial, and amount to misconduct, especially in light of the exchange of letters between the parties prior to trial. A party has a right to be in a courtroom. To suggest otherwise is improper. Even more improper is the suggestion that the defendant remained in court to intimidate or leer at the plaintiff. The defendant expressed a willingness to absent himself from the courtroom to spare the plaintiff’s feelings. Casting aspersions on a party for exercising his right to be present is misconduct. Suggesting a lack of empathy for remaining in court when counsel knew he had received a letter from the counsel for the defendant specifically offering to absent himself if doing so would make the plaintiff feel more comfortable is also misconduct.

[30]         Counsel’s submission significantly prejudiced the defendant. The submission was relatively short. Taking all of Mr. McLeod’s inflammatory and improper statements together, I concluded that if I were to try to disabuse the jury of these matters I would simply re-emphasize them in the jurors’ minds. If I instructed the jury to disregard these portions of counsel’s brief submission entirely, my comments would likely rebound against anything he had said and against the plaintiff’s case. I concluded that I could not right the scales of the resulting prejudices with instructions anywhere close to neutral again. I must ensure there is no prejudice to either side. I do not see how any corrective judicial comments could do anything but suggest that counsel had misled the jury, intentionally or not.

[31]         A judge discharges a jury with great reluctance. In this case, the jury was well constituted. They were attentive. At the beginning of the trial, I carefully explained their important role in the judicial system in British Columbia and the confidence placed in them. Discharging a jury in these circumstances embarrasses the court and, more importantly, tends to undermine public confidence in the justice system.

[32]         However, given the circumstances, and considering the potential prejudice, no less to the plaintiff’s case then to the defendant’s, it would be unfair to continue with the jury in the circumstances. The only appropriate response was to discharge the jury with the regrets and thanks of the court.

[33]         The defendant’s application to dismiss the jury and continue by judge alone is granted.

________________________________________________________________________________________________

The second case released this week addressed the ability of a party to have the BC Supreme Court order production of materials relating to criminal charges arising from allegations of sexual abuse.

In this case (The British Columbia College of Teachers v. British Columbia (Attorney General) ) a former teacher was “criminally charged with sexually offending against a child.“.  In the course of the prosecution a preliminary inquiry was held and the alleged victim testified.   The Attorney General stayed the prosecution before trial.

The BC College of Teachers wanted to access a copy of the transcript of the preliminary inquiry evidence to use against the former teacher in “disciplinary proceedings“.   The former teacher opposed this.

Madam Justice Griffin ordered that the records be produced and provided the following reasons:

[41]         In an analogous context of considering an ongoing publication ban, the Court of Appeal of this province considered that a trial judge’s analysis should not be based on whether a benefit to the administration of justice could be gained by the publication of redacted information, but rather, should be based on whether a serious danger could be avoided by declining to provide the information: Global BC, A Division of Canwest Media Inc. v. British Columbia, 2010 BCCA 169 at para. 72.

[42]         Here, so long as the information is provided in a way that protects the identity of the complainant and thereby maintains the publication ban, there is no danger to be avoided by declining to allow the sought-after information to be provided.  To put it another way, I do not consider that the administration of justice will be harmed if the preliminary inquiry transcript is produced to the College in a way that continues to protect the identity of the complainant.

[43]         I am therefore persuaded that this is a case where I ought to exercise my inherent jurisdiction to allow for production of a transcript of the preliminary inquiry to the College, in such a way as to continue to maintain the publication ban pursuant to s. 486.4(2).

[44]         In the circumstances of this case, I grant the following declaratory relief:

(a)      the publication ban imposed under s. 539(1) of the Code in relation to Abbotsford Provincial Court Registry file No. 60526, no longer applies, and thus does not apply to any request by the College for a copy of the transcript of the evidence that was taken at the preliminary inquiry; and

(b)      the continuing publication ban imposed under s. 486.4(2) of the Code will not be violated if the Crown redacts all information that could identify the child complainant from the transcript of the evidence that was taken at the preliminary inquiry in Abbotsford Provincial Court Registry file No. 60256 and produces the redacted transcript to the College for its use in disciplinary proceedings against Mr. Sidhu.

Further to my previous posts on this topic, when people sue (or are sued) in the BC Supreme Court the Rules force disclosure of certain facts and documents.  To balance the parties privacy interests the Courts have developed an “implied undertaking of confidentiality” which is basically a judge made rule that “requires a party to civil litigation to keep confidential all information disclosed by adverse parties in the litigation under the compulsion of discovery procedures.  The receiving party is only to use the disclosed information in the litigation in which it was produced”

The implied undertaking can be lifted by an order of the Court or by consent of the party that disclosed the information.  Another way the implied undertaking can come to an end is if the case goes to “open court”.   The question is when is the open court exception triggered.  As most lawyers know most cases don’t go to trial but it is common to have pre-trial applications held in open court.  In such a case is the exception triggered?  Reasons for judgement were released today dealing with this novel issue.

In today’s case (Bodnar v. The Cash Store inc.) the Plaintiff’s were involved in a lawsuit.  During the course of that claim a pre-trial motion was brought which relied, in part, on documents produced by the Defendant by the compulsion of the forced disclosure under the Rules of Court.  The case ultimately settled and a different class of Plaintiff’s brought a “virtually identical” lawsuit.

The Plaintiff’s wished to use the materials obtained in the first lawsuit in the second claim.  The Defendant’s would not consent arguing that the implied undertaking of confidentiality prohibited this use.  The Court was asked whether having the documents used in a pre-trial chambers application triggered the open court exception.  Madam Justice Griffin provided the following useful analysis:

[45] I conclude that a proper balancing of the public interest involved in the implied undertaking rule and in the open court principle, in respect of information filed in court as part of an interim application, can best be achieved by applying the following principles:

(a) the implied undertaking does not end when information, produced by an adverse party under compulsion of discovery (the “Producing Party”), is filed in court by the receiving party (the “Receiving Party”) in support of an interim application;

(b) in considering a Receiving Party’s application for leave to be relieved from the implied undertaking, the court may consider, as one factor in support of leave, the fact that the information was filed in court for a legitimate purpose and became part of the court record; and

(c) the implied undertaking of a Receiving Party ends, with respect to information produced by the Producing Party, when that information is filed in court by the Producing Party itself.

[46] The above principles would seek to avoid the mischief of a party with ulterior motives filing the adverse party’s information in court simply to get around the implied undertaking.  Upholding the implied undertaking and placing the onus on the Receiving Party to seek the court’s leave before using the information for another purpose, would encourage parties to fulfill their discovery obligations knowing that the implied undertaking cannot easily be avoided.   At the same time, the fact that the documents are now part of the court record, available to all other persons, will be one important factor to be considered by the court on a Receiving Party’s subsequent application for leave to use the documents for other purposes.

[47] It makes sense however, that the implied undertaking is lost when the Producing Party files its own information in open court.  There can be no concern about abuse of process or a deliberate attempt to circumvent the implied undertaking rule in such a situation, given that the Producing Party is not under any undertaking with respect to its own information and was not compelled to produce it in court.

The Court went on to hold that, despite the implied undertaking not coming to an end by virtue of the documents use in court, it would be appropriate to permit the Plaintiff’s to use the information in the subsequent lawsuit.  This case is worth reviewing in full for anyone interested in the developing principles of privacy law in BC as the judgement contains a lengthy discussion of the principles at play and the relevant precedents addressing the “implied undertaking of confidentiality”.

As I’ve previously written, video surveillance in and of itself does not harm a persons ICBC claim, being caught in a lie does.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this fact.

In today’s case (Fata v. Heinonen) the Plaintiff was involved in a 2006 BC collision.  Fault was admitted.  The Plaintiff suffered several injuries including “an obvious impingement syndrome at the shoulder“.  The Defendant disputed the severity of the Plaintiff’s injuries at trial.  Instead of relying on independent medical evidence, the Defendant sought to harm the Plaintiff’s case by relying on video surveillance which was taken the year following the collision.

The surveillance showed the Plaintiff doing various activities such as grocery shopping and unloading and loading objects into his vehicle.  This video surveillance did not harm the Plaintiff’s claim.  Why?  Because it did not show anything that contradicted the Plaintiff’s evidence at trial.  In explaining why the surveillance did not harm the Plaintiff’s claim Madam Justice Griffin held as follows:

[45] The videotape surveillance was not inconsistent with Mr. Fata’s evidence or that of his physicians.  Mr. Fata’s evidence was that his physicians and physiotherapist had recommended that he continue to use his left arm and shoulder, and that he attempts to do so.  No one has suggested that he has no use of his left arm and shoulder.   Neither Mr. Fata nor the physicians, who gave expert opinions on his behalf, suggested any marked limitation in Mr. Fata’s range of motion.  His primary complaint is that he has pain when he uses his left arm and shoulder.  The videotape did not disprove this evidence, nor did it seriously cast doubt on it.  A videotape cannot capture all pain but may illustrate signs of severe pain, for example, if the person being watched grimaces on doing certain activities.  Mr. Fata was not displaying obvious signs of pain.  The videotape perhaps illustrates that whatever pain Mr. Fata might have with ordinary day-to-day activities is manageable.

[46] I have concluded from reviewing the videotape evidence carefully and considering Mr. Fata’s explanations of it, as well as from my review of the medical evidence and Mr. Fata’s evidence of his ongoing symptoms, that Mr. Fata does continue to suffer ongoing symptoms in his left arm and shoulder that were caused by the motor vehicle accident of November 13, 2006.  Given the passage of time, it is likely these symptoms will continue indefinitely.  These symptoms are not severe, as Mr. Fata still has use of his left arm and can do most activities.  However, the symptoms are such that Mr. Fata does suffer pain with the use of his left arm and particularly with excessive use or lifting his arm over his shoulder.  The pain restricts him from some of these types of activities he might otherwise do.

The Court went on to award the Plaintiff $45,000 in non-pecuniary damages for his soft tissue injuries and shoulder impingement.

This case is also worth also worth reviewing for the Court’s explanation of the “Golden Years” doctrine.

• The “Golden Years Doctrine” Explained

In personal injury claims BC Courts recognize that no two cases are exactly alike and the assessment of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) depends on the unique facts of any given case.

One principle that is sometimes used in assessing non-pecuniary damages is the “Golden Years” doctrine.  This principle recognizes the fact that the retirement years are particularly special and an injury affecting a person in their golden years may warrant a greater award for non-pecuniary damages.  Madam Justice Griffin succinctly summarized this principle as follows:

[88] The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality.  When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life.  Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age.  The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.).

[89] In short, it is Mr. Fata’s loss of enjoyment of life in recreation, home chores, and work that should be compensated for in an award for non-pecuniary damages…

[91] On the facts of this case, where Mr. Fata has suffered a loss of some enjoyment of life in every aspect of his life, I conclude that an appropriate award for non-pecuniary damages is $45,000.

Buyer’s Remorse - that’s the feeling of regret people sometimes get after making a big purchase or an important decision.  When people settle their ICBC Injury Claim they sometimes get buyer’s remorse.  They can regret the settlement and wish they could undo it.

In most circumstances an ICBC Injury Settlement can’t be set aside after a full and final release has been signed.  Sometimes though, in circumstances such as fraud or unconsionability, these settlements can be undone.

Reasons for judgement were released today dealing with an interesting issue in the context of a case alleging an unfair ICBC settlement.   In today’s case (Coates v. Triance) the legal issue was whether a Plaintiff could examine the ICBC adjuster under oath before the trial began to discuss the circumstances of a supposed settlement.

The Plaintiff was involved in a motor vehicle accident in 1999.  In May of 2000 the plaintiff apparently signed a full and final release.  The Plaintiff was 19 at the time.  The Plaintiff later sued the alleged at fault motorist.  That motorist was insured with ICBC.  In the Statement of Defence the defendant stated that the claim was already settled.  The Plaintiff responded that the release should be set aside because the “settlement was manifestly unfair and unconsionable”.

As the lawsuit progressed the Plaintiff’s lawyer wished to examine the ICBC adjuster involved in the settlement discussions under oath.  The ICBC adjuster refused and a Court motion was brought to compel the examination.  The motion was granted and the Court ordered that the ICBC adjuster undergo a pre-trial examination to canvass the details of the supposed settlement.  The highlights of Madam Justice Griffin’s reasons were as follows:

[5] Thus, a key factual issue in this case on the pleadings is whether a settlement and release procured by ICBC from the plaintiff, when she was 19 and unrepresented, should be set aside.  As mentioned, the witness, Ms. Lo, is the adjuster who procured the settlement, and the plaintiff’s position is that she acted inappropriately.

[6] Ms. Lo was a participant in a key factual event in question in this case.  What she knows and does not know about the circumstances of her dealings with the plaintiff and the settlement and release relates to a material issue at trial: the enforceability of that settlement and release.

[7] Sometimes it is preferable to deal with a non-party witness by written questions and answers.  But the fact that a witness is willing to proceed this way is not a complete answer to an application for a Rule 28 examination.  In this regard, I refer to the case of Cheema v. Kalkat, 2009 BCSC 736.

[8] Here there is evidence of the questions posed in writing and the written answers.  There were 200 questions.  I find the answers provided by Ms. Lo to be not responsive in a way which will help the plaintiff learn sufficient information to be able to assess the merits of the issue of whether or not there was an enforceable settlement and release.  The responses provided by Ms. Lo leave many questions unanswered on the material factual issues to which she was a witness.  Many responses are superficial and unhelpful.

[9] I conclude that if the plaintiff does not have the opportunity to examine this witness, the plaintiff cannot assess her case before trial and therefore cannot form an informed view and possibly settle the case, and the plaintiff could be taken by surprise at trial…

[14] There is no question that an examination of Ms. Lo will assist in a determination of the proceeding on the merits.  She is a key witness to events that form a central issue in the case.

[15] There is also no question that an examination of her will be just.  She is not prejudiced in any way.  Her involvement in the material events arose in the course of her employment with ICBC, which continues to be her  place of employment. Her evidence on these matters will not be personally embarrassing or tread on an area of her own personal privacy.  On the other hand, the plaintiff could be prejudiced if she is not allowed to investigate and explore Ms. Lo’s evidence in advance of trial.

[16] Here, I consider that a Rule 28 examination will be the most speedy and inexpensive way of proceeding to determine this case on its merits.  The written questions and answers exchanged already clearly reveal to me that the questions for Ms. Lo involve a scope of examination that is appropriate but that is most efficiently conducted by oral examination rather than by written questions and answers.  I am satisfied that more time will be taken up by lawyers drafting further written questions and drafting written responses than would be taken up by a Rule 28 examination…

[21] In this case, the most efficient way of proceeding so as to allow the merits of the issues in the case to be ultimately determined, would be by way of a free-flowing examination of the witness as counsel for the plaintiff sees fit, rather than requiring the plaintiff to follow the court’s checklist of acceptable and unacceptable questions.

[22] As noted in Yemen Salt Mining Corp. v. Rhodes-Vaughan Steel Ltd. (1977), 3 B.C.L.R. 90 at 100, a Rule 28 examination may extend to all that is relevant generally to all parties in the action.

[23] Therefore, in allowing the plaintiff’s application, I make no ruling on the acceptability of particular questions in the previously provided list of questions or on the validity of any objections to those questions.

Now to Cross-Reference:  Do the New BC Supreme Court Civil Rules change the law relating to pre-trial examination of witnesses?  Not really.  Rule 28 is reproduced almost identically in the New Rules and can be found at Rule 7-5.  The requirements mirror the current wording of the rule so this case ought to retain it’s value as a precedent after the New Rules come into force.

When an ICBC or other injury claim goes to trial the Plaintiff needs to prove their case.   In the most basic terms this means that in a tort claim fault needs to be established along with the nature and extent of the accident related injuries and the losses that these have caused.  The Plaintiff normally does this in what’s called the Plaintiff’s ‘case in chief‘.  If the Plaintiff fails to call evidence on any of these points the case can be dismissed on a ‘no-evidence‘ motion.

Once the Plaintiff finishes calling his/her case the defence has the opportunity to call evidence to contradict the Plaintiff’s case or in support of theirs.  A Plaintiff can then call ‘rebuttal evidence‘ and this is something that often occurs in injury litigation when the Defence calls medical experts with conflicting opinions about the cause of the Plaintiff’s injuries.

There are limits on rebuttal evidence, however, and one such limit is that the evidence called in rebuttal must be truly responsive to the other sides case as opposed to addressing the points that needed to be proven in the ‘case in chief‘.  If a court concludes that rebuttal evidence is not truly responsive a court can keep it from going in.  Reasons for judgement were released today discussing this point of civil procedure.

In today’s case (Bransford v. Yilmazcan) the Plaintiff was injured in a motor vehicle collision.  In her case in chief she called evidence discussing her accident related injuries which apparently included Thoracic Outlet Syndrome and Headaches.  The Defendants then called their expert (Dr. Makin) who addressed the cause and prognosis of the Plaintiff’s injuries.

The Plaintiff then wished to call Drs. Prout and Caillier to give rebuttal evidence.   The Defendants objected arguing that the evidence was not truly responsive and the Plaintiff was attempting to ‘split her case‘.  Madam Justice Griffin agreed that some of the evidence was indeed not true rebuttal evidence and did not allow portions of the proposed evidence in.  Specifically she found that the proposed evidence diagnosing accident related Thoracic Outlet Syndrome and Headaches could have been called in the Plaintiff’s case in chief.  Madam Justice Griffin held as follows:

[6] First, Dr. Makin was asked a number of questions in his direct evidence regarding definitions of thoracic outlet syndrome, including the question “What are two types of thoracic outlet syndrome that involve nerves?”  His evidence was that one, the type that involves nerves, is true neurogenic thoracic outlet syndrome, and that is the only type that involves the nerves.  He said a different type, disputed thoracic outlet syndrome, is a type diagnosed by vascular surgeons, and that neurologists do not agree with that classification.

[7] The implication of his evidence, including other questions he was asked in direct about how he conducted his tests, was that neurologists as a group are of the view that provocative testing reveals no clinically helpful information in diagnosing thoracic outlet syndrome and that they are opposed to vascular surgeons reaching this diagnosis.

[8] In my view this is a proper basis for rebuttal evidence on this narrow point; i.e., is a neurologist of the opinion that there can be a diagnosis of thoracic outlet syndrome in the absence of positive signs and a nerve conduction study?  And, is a neurologist of the opinion that provocative testing can be helpful in diagnosing this?

[9] The plaintiff cannot have been in a position to respond to the suggestion that neurologists do not hold that opinion as a group until the defence witness was heard on that point.  Indeed, arguably this point could not have been anticipated as it was not specifically identified in Dr. Makin’s report.

[10] I therefore conclude that it would be appropriate for the plaintiff to call rebuttal evidence of Dr. Prout to respond to this point, since Dr. Prout is a neurologist.

[11] However, Dr. Prout goes beyond this in his report and does his own evaluation and diagnosis of Hanna Bransford for thoracic outlet syndrome.  I am of the view that this goes further than proper rebuttal and runs the risk of splitting the plaintiff’s case, and so it is not appropriate.

[12] Second, Dr. Makin performed what were referred to as inching studies as part of his nerve conduction studies and reached a different diagnosis than the plaintiff’s physicians and experts, namely he diagnosed a problem with Ms. Bransford’s ulnar nerve.  I am of the view this is an appropriate matter for rebuttal evidence, namely an analysis of Dr. Makin’s nerve conduction studies and any comment disputing his findings and any contrary inching studies regarding the ulnar nerve.  This evidence would not be splitting the plaintiff’s case because the plaintiff does not assert that her diagnosis has anything to do with her ulnar nerve.

[13] I also note that the oral evidence of Dr. Makin reporting on these studies is not significantly narrowed from the point he makes in his written report and the defendants had agreed earlier that this was the proper subject of the rebuttal reports of Dr. Caillier and Dr. Prout.

[14] Further, the plaintiff could not properly have anticipated this evidence in its entirety until it was called from Dr. Makin.

[15] As for Dr. Makin’s evidence on headaches, I am of the view this is not the proper subject of rebuttal evidence, at least insofar as revealed in Dr. Prout’s report.  Headaches have always been part of Ms. Bransford’s symptoms and we have heard one plaintiff’s witness, Dr. O’Connor, describe them as cervicogenic.  Dr. Makin disagrees and describes them as migraine.  Dr. Prout does not point out any flaw in Dr. Makin’s science from a neurologist’s perspective, but really just gives an opposite opinion, an opinion that could have been given in the plaintiff’s main case.  The plaintiff was in a position to respond to the labelling of Ms. Bransford’s headaches as cervicogenic or migraine prior to the close of its case as it had notice of Dr. Makin’s description of the headache as migraine.

Further to my previous post about parties flip-flopping on their choice to have a Trial by Jury in a BC Injury Claim reasons for judgement were released today considering the issue of “whether or not a party who has taken the necessary two steps to require a trial by jury…can change that mode of election before the trial commences“.

In today’s case (Iskum v. Badali) the Plaintiff was involved in two motor vehicle collisions.  The Plaintiff sued and both cases were set for trial.  The defence lawyers in each lawsuit filed Jury Notices within the time frames required.    The Defendants paid the Jury fees as required by the Rules of Court.  Late in the litigation new defence lawyers were appointed and 10 days before trial they told the Plaintiff’s lawyer that they intended to have this matter tried before a judge without a jury.  The Plaintiff objected arguing that it was too late for the defendant to change their mind.

Madam Justice Griffin agreed with the Plaintiff and reasoned as follows:

[10] Here, the plaintiff did not exercise any right to trial by jury.  The plaintiff simply did not contest the defendants’ election of trial by jury.

[11] Thus, the issue before me does not have to do so much with a party’s right to a jury trial, rather, it has to do with a party’s right to know the mode of trial no later than 30 days before trial.  The issue properly framed is whether or not a party who has taken the necessary two steps to require trial by jury, as set out in Rule 39(26), can later change that mode of election before the trial commences…

[30] I find that by taking the two steps set out in Rule 39(26), the defendants “required a jury,” and therefore the payment of the subsequent fees is mandatory pursuant to s. 17 of theJury Act.

[31] The defendants suggest that having paid the first set of fees, they can decide to not pay the second set of fees simply by giving notice to the sheriff that they no longer require a trial by jury.  They suggest that s. 19 indicates that the trial judge has discretion to allow this.

[32] I find that s. 19 of the Jury Act does not give a party who has elected trial by jury the right to simply give notice that it will not pay the jury fees required on a daily basis and thereby unilaterally un-elect the mode of trial by jury.  Rather, the payment of those fees is mandatory and only if they are not paid will the sheriff bring this to the attention of the court to make such order as the court considers just.  This preserves the court’s inherent jurisdiction to control its own process, but does not confer a procedural right on a party to simply “un-elect” trial by jury by not paying subsequent fees.

[33] Here, the defendants attempted to unilaterally un-elect trial by jury within 10 days of the trial starting by simply advising the sheriff and the other side that they no longer wished to proceed by trial by jury.  I conclude that the Rules of Court do not allow for such a re-election within 30 days before trial.  I find that the defendants had no authority to do so under theRules of Court.

[34] It is clear that the Rules of Court do not allow for a party to elect trial by jury late in the process.  This election must be made within strict time limits set out in Rule 39(26).

[35] The mode of trial is very relevant to how the parties will prepare for trial and is also relevant to settlement discussions before trial.  The Rules of Court as a whole recognize that it is not efficient to conduct civil trials by ambush.  Civil trials are more efficient and settlement is more likely if parties have advance notice of not just the case they have to meet, but the mode of trial.  The 30-day notice period in Rule 39(26) is there to provide parties with some certainty as to the mode of trial with a goal of efficient resolution of disputes.

[36] As noted by Mr. Justice Taylor of our Court of Appeal in Hoare v. Firestone Canada Inc. (1989), 42 B.C.L.R. (2d) 237 at 241:

The learned judge very properly emphasized the importance of the right to elect for jury trial.  But on a broad consideration of the rules and authorities which has been possible in these appeal proceedings I have concluded that the election is intended to be made once only, at a particular stage, and for good reason.  If the trial may be before judge and jury, rather than judge alone, that is generally an important consideration for both parties in preparation of the case and perhaps, indeed, in the selection of counsel.  It is, I think, for these reasons that the rules require the election to be made, once for all, soon after the action is set down, instead of leaving the parties free to elect thereafter on the basis of later developments.

[37] As a matter of common sense and in light of the clear purpose of the Rules of Court to avoid trial by ambush, the time limits imposed on the mode of selection of trial apply whether the mode of trial is by jury or is by judge alone.  I conclude that were it intended to be otherwise, there would be an express provision in the Rules of Court, pursuant to which a party could unilaterally elect to proceed by judge alone, despite having elected trial by jury by meeting the requirements of Rule 39(26) at least 30 days before trial.  There is no such provision.

[38] Rather, once the election has been made and has crystallized by the taking of the two steps set out in Rule 39(26) at least 30 days prior to trial, the only basis for a party to set aside the election of trial by jury is pursuant to Rule 39(27) on the basis that the case is unsuitable for trial by jury.

[39] On its face, Rule 39(27) would seem to apply only to the party who has received the jury notice.  However Rule 35(4) provides that the court, on its own motion or on the motion of any party, may order that the trial proceed without a jury on any of the grounds set out in Rule 39(27).  In this regard, see Robitaille v. Vancouver Hockey Club Ltd. (1979), 12 B.C.L.R. 335 (S.C.), aff’d 14 B.C.L.R. 377 (C.A.).

[40] This brings me back to the B.C. Court of Appeal decision in Molnar.  I conclude that having elected trial by jury, the defendants must proceed with a jury unless they can discharge the onus of proving that this matter is not suitable for a jury on the grounds set out in Rule 39(27).

[41] Here, the defendants did not apply at this pre-trial conference to set aside the jury notice, and advanced no argument based on the grounds set out in Rule 39(27).  It is clear that the defendants simply asserted that they had a right to re-elect trial by judge alone at any time prior to the start of trial.  I have found that the Rules of Court do not permit this.

This is the first case that I am aware of dealing with these specific facts making this case a useful precedent.  Now the question is will this precedent continue to be useful once the new BC Supreme Court Civil Rules come into force?

The answer appears to be yes.  This case turned on the Court’s interpretation and application of Rule 39(26).  This rule is replaced in the New BC Supreme Court Civil Rules at Rule 12-6(3) which is almost identical to the current rule in its language and requirements (there are some minor changes in the timelines involved but otherwise the rules appear identical).  If a party wants to change their minds after filing a Jury Notice they better do so before paying the Jury Fees otherwise it appears to be too late.

To read my other posts cross referencing the current Rules with the New BC Supreme Court Rules simply click here or on the New BC Supreme Court Rules tag below.