ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘Madam Justice Maisonville’

Security Guard Run Over By Fleeing Thief Found Not Contributorily Negligent

January 25th, 2018

Reasons for judgement were published this week by the BC Supreme Court, New Westminster Registry, assessing fault for a crash involving an unidentified motorist.

In the recent case (MacKenzie v. John Doe) the Plaintiff was working as a security guard when he noticed a shoplifter.  He pursued the shoplifter to his vehicle.  When confronted the shoplifter ran the plaintiff over and injured him.  The collision was described as follows:

[17]        The plaintiff described what happened.  When the individual was further along the sidewalk, the plaintiff observed him getting into the driver side of a parked vehicle.  The plaintiff approached the vehicle’s passenger side and opened the door, saying “store security”.  He asked for the merchandise back.  The individual responded, “fuck you”, and then put the key in the ignition, started the ignition, and immediately started reversing the vehicle into the parking lot.  

[18]        At that time, the door of the vehicle hit the plaintiff in the chest, causing him to lose his balance.  His feet slid under the passenger-side door.  The plaintiff hung onto the passenger-side door as the individual reversed his vehicle out of the parking spot.  He asked the individual to stop the vehicle but the individual did not do so and then the plaintiff let go.  When he let go, the passenger-side door hit him.  As a consequence, he lost his footing, fell and struck the back of his head on the concrete, at which point he believed his legs went under the vehicle.  The individual continued driving in reverse gear all the way up a ramp where he then spun around and drove away at quick speed, quicker than the speed one would normally go when reversing a vehicle, the plaintiff testified.

[19]        The plaintiff attempted to get up.  However, a bystander said “I am not sure if you realize what just happened to you.  You should probably stay down”.  So he did.  First aid arrived shortly after and then the paramedics.

The shoplifter remained unidentified and the Plaintiff applied for statutory compensation from ICBC for the hit and run collision.

ICBC argued that the Plaintiff was partly at fault for the incident.  The Court disagreed and in finding the Plaintiff acted reasonably in pursuing the thief Madam Justice Maisonville provided the following reasons:

[88]        I find that, in this case, the vehicle had not been started when the plaintiff approached it.  I find that the car key was not in the ignition when the plaintiff opened the vehicle’s passenger-side door and, as such, the plaintiff could not reasonably anticipate carelessness or even the events as they transpired, which involved flagrant and deliberately reckless conduct…

[93]        Consequently, where the defendant’s negligence rises to a level of flagrant and deliberate recklessness, the plaintiff cannot be found to be contributorily negligent, as reprehensible behaviour from a defendant is not reasonably foreseeable. 

[94]        Another aspect of the case before me negating contributory negligence is the fact that the plaintiff was not in violation of his company’s policy, and I cite Lewis v. Todd, [1980] 2 S.C.R. 694 in support.  In Lewis, it was dark out, and an officer wearing a dark uniform was struck by a car and killed while on duty.  The trial judge found no contributory negligence.  On appeal, the Ontario Court of Appeal found the officer to be 25% negligent.  However, on further appeal to the Supreme Court of Canada, that decision was reversed.  At page 700, the Court stated:

The Court of Appeal found that Constable Lewis should not have continued unassisted with his investigation on the road. To do so was negligent. The evidence was, however, that Constable Lewis did not depart from police practice. The trial judge did not misapprehend the evidence, or ignore evidence which would have suggested that police standards required more than one officer at an accident. There was no evidence, then, to support the conclusion that Constable Lewis needed assistance and that he was negligent in not asking for it. …

[95]        Given that there were circumstances which should have alerted other drivers to the presence of police officers on the highway, the court in Lewis held that there was no negligence on the part of the officer, including on the basis that he failed to keep a proper lookout.  

[96]        Here, in like circumstances, the defendant was well aware of the presence of the plaintiff, who asked him to stop, yet chose to ignore him and instead respond with a terse, profane answer and reverse the vehicle.  I find that the plaintiff could not have reasonably foreseen what occurred, that the defendant was flagrant and deliberately reckless, and that the plaintiff is in no way contributorily negligent for the accident which occurred.


$100,000 Non-Pecuniary Assessment for Thoracic Outlet Syndrome

November 23rd, 2017

Adding to this site’s archived damage assessments for thoracic outlet syndrome, reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, assessing damages for such an injury.

In today’s case (Sharma v. MacDonald) the Plaintiff was involved in a 2013 collision that the Defendant accepted fault for.  The Plaintiff suffered a variety of injuries the most serious of which was thoracic outlet syndrome.  The symptoms lingered to trial and were expected to cause some ongoing limitations.  In assessing non-pecuniary damages at $100,000 Madam Justice Maisonville provided the following reasons:

[198]     …I find that the defendants are responsible for the plaintiff’s neck, back, and arm issues.  In my view, the plaintiff has established on a balance of probabilities that she suffers from thoracic outlet syndrome, as concluded by Dr. Hawkeswood, and that this injury was caused by the defendants’ negligence.

[199]     With respect to anxiety, I accept that the plaintiff suffers from anxiety in relation to driving…

[203]     Regarding non-pecuniary damages, I find that the plaintiff enjoyed a full life before the Accident and had no issues with respect to her neck and back.  Nor did she have a tingling feeling in her arm or numbness of her right arm.

[204]     I find that, as she testified, the plaintiff did not have to rest after having performed her regular activities. I also find that she did not experience headaches or low mood symptoms prior to the Accident.

[205]     I do find, however, that the plaintiff has been steadily improving.  I note that she enjoys playing basketball.  I note that she now works without significant limitations.  I note that she has gone back to a number of her pre-Accident activities.  She is not as socially isolated now that she has returned home from Edmonton.

[206]     I accept that the plaintiff still suffers from numbness and tingling feelings in her right arm, and from some neck and back pain.  However, the pain she has now is not like the pain immediately following the Accident.  The plaintiff is able to work to the extent she testified to.  While I appreciate that she must rest afterward, she is not disabled from working.

[217]     In all of the circumstances, I award the plaintiff $100,000 in non-pecuniary damages.


Court Finds High Billing ICBC Expert “Strayed Into Advocacy”

February 11th, 2015

Adding to this site’s archived case summaries addressing advocacy by expert witnesses, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a high billing ICBC expert witness’ evidence should be afforded “very little weight” in part based on advocacy.

In today’s case (Redmond v. Krider) the Plaintiff was injured in a 2010 collision that the Defendant was found solely at fault for.  The Plaintiff suffered various physical injuries along with an accompanying psychiatric condition.  The Defendant retained a psychiatrist who gave evidence “that the plaintiff did not develop a new major psychiatric condition due to this motor vehicle accident”.  The Court rejected this evidence and in doing so Madam Justice Maisonville provided the following critical comments:

[115]     Dr. Levin obtained his initial medical qualifications in the then Soviet Union.  There was much questioning of the nature of certain patient treatment at one of the institutes from where he had received his training. 

[116]     Dr. Levin was also cross-examined on the amount of income he received in 2013 from ICBC, and from the Medical Services Plan. .  Suffice it to say that 91% of his income for 2013 was derived from ICBC reports.  In 2012, it was 87%, in 2011, 78% and in 2010, the year of the accident, 60%.  Plaintiff’s counsel therefore argued that Dr. Levin’s report was not in keeping with the Supreme Court Civil Rules, in that it was biased and so not a neutral opinion rendered by an expert for the benefit of the Court…

[120]     Overall, Dr. Levin testified that the plaintiff did not develop a new major psychiatric condition due to this motor vehicle accident, and he found that her level of functioning was inconsistent with the diagnosis of a pain disorder found in her family physician’s clinical records.  He submitted the fact that she had travelled to Las Vegas and participated in boating with her partner went against the conclusion that she was suffering from a psychiatric condition.

[121]     While I have accepted that Dr. Levin is an expert, I find that his report is to be afforded very little weight given his testimony at trial, and given the extent to which his report strayed into advocacy.  It is difficult to ignore the percentage of yearly income gained by the doctor as an expert for one particular party, ICBC, although this alone is not determinative in my finding that Dr. Levin’s report should be afforded little weight. 

[122]     I note that the doctor was argumentative with counsel.  The Court was often required to direct him to answer, as he would not clearly give his evidence in response to simple questions asked.  On cross-examination, he agreed he was not a practicing physical medicine doctor and that he did not assess the plaintiff’s physical injuries, and would defer instead to the plaintiff’s physical medicine doctors, and yet he commented that the plaintiff’s pain and limitations were inconsistent with her stated injuries.  It was difficult to accept his evidence, for the further reason that Dr. Levin stated that if the DSM-5 criteria were applied as a checklist, everyone in the courtroom would have a number of psychiatric diagnoses.  I do not accept that evidence…

[125]     In his report, Dr. Levin said that the plaintiff does not suffer from somatic symptom disorder, as the requirements of that diagnosis are a catastrophic perception of injuries, pervasive preoccupation with pain, and time-consuming, excessive activities.  However, that is not the criteria set out in the DSM-5 which was put to Dr. Levin.  That criteria requires only that there be “[o]ne or more somatic symptoms that are distressing or result in significant disruption of daily life”.  Somatic symptom disorder is a spectrum disorder, and Dr. Levin agreed with that proposition, and yet in his report, he was clearly evaluating the diagnosis as existing only if symptoms fall at the severe end of the spectrum.

[126]     Most difficult for the Court, however, was the aspect of Dr. Levin’s evidence discussing the somatic symptom disorder as it applies to the plaintiff.  As mentioned, he discussed commentary from the DSM-5 about those symptoms that may occur with severe cases of somatic symptom disorder, rather than the specific criteria.  When cross-examined on the actual diagnostic criteria, it became clear that he had not asked the plaintiff questions to determine if she met the diagnosis set out in the DSM-5.

[127]     I do not accept Dr. Levin’s evidence.  I prefer Dr. Anderson’s evidence over that of Dr. Levin.  Dr. Anderson candidly conceded matters, such as that the plaintiff would have a better prognosis if the physical component of her pain disorder was removed, and Dr. Anderson deferred to the physical medicine doctors respecting the plaintiff’s physical pain.  In contrast, Dr. Levin assumed this responsibility and asserted that, as a consequence, the plaintiff did not suffer from any a new psychiatric condition.

[131]     I do not accept Dr. Levin’s opinion and give it no weight.


$95,000 Non-Pecuniary Assessment For Chronic L4/5 Disc Herniation With Liklihood of Surgery

March 27th, 2013

Adding to this site’s archived cases addressing non-pecuniary damages for spine injury cases, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a low back disc injury.

In this week’s case (Muhammedi v. Ogloff) the Plaintiff was involved in a 2009 rear-end collision.  Liability was admitted.  The Plaintiff suffered various soft tissue injuries and also an L4/5 lateral disc herniation.

This injury remained symptomatic at the time of trial and there was a greater than 50% chance that the injury would eventually require surgical intervention.  In assessing non-pecuniary damages at $95,000 the Court provided the following reasons:

[88]         Dr. Kokan was of the opinion that, from the accident, she had right side L4/5 far lateral disc herniation and persistent cervical myofascial pain.  He concluded:  “The motor vehicle [accident] as described, in my opinion, is most responsible for the onset of symptoms.”  While this aspect of his report was not clarified, it was clear from his testimony that the cause of her injuries was the car accident.

[89]         He felt her prognosis to be uncertain, and stated as follows:

Generally, I expect at least the current level of symptoms.  Far lateral disc herniations are typically more problematic with respect to symptoms.  Usually they can produce significant nerve root compromise given that they are located lateral to the foramen and pedicles, thereby there is less room for the exiting nerve root, thereby physical compression and symptoms are common.

I would expect usually that Mrs. Muhammedi would have at least the current level of symptoms in her back and that she would experience aggravations brought on in proportion to future activities.  Heavier activities would go on to produce potentially more troubling symptoms.

In the event that she should have ongoing and disabling neurological symptoms, she would probably have to consider surgical treatment.  The orthopaedic literature varies with respect to the need for surgery.  The possibility that she could require surgical treatment in the future is probably greater than 50%.  I say this because of her relatively young age and the associated presence of this type of disc protrusion…

[117]     The physicians all agree, and there is no issue in this regard, that the plaintiff sustained a far lateral disc protrusion.  All similarly agreed that the cause of the disc protrusion was the accident….

[157]     I find that it is clear from the expert reports tendered and the plaintiff’s evidence that she continues to sustain ongoing problems from this accident.  I find that this brings this case beyond the nature of the type of injuries in the cases cited by the defendants. It is more severe, more akin to the plaintiffs’ injuries in the cases cited by the plaintiff.

[158]     In all the circumstances, I award Ms. Muhammedi $95,000 for her non-pecuniary damages.  This recognizes the ongoing difficulties that she has and the possibility, which was deemed by the physicians, indeed by Dr. Kokan to be greater than 50%, that the plaintiff will require surgery at some time in the future.


Miscarriage Reference Results in Jury Discharge

December 27th, 2012

Adding to this site’s archives of judicial commentary on the boundaries of opening statements, reasons for judgement were released earlier this week by the BC Supreme Court, Vancouver Registry, finding that comments addressing the Plaintiff by his first name and further discussing his wife’s miscarriage crossed the line.

In the recent case (Demello v. Chaput) the  Plaintiff was involved in a series of collisions.  During his opening statement he was referred to by his first name and further a miscarriage his wife had was referenced with the following statement being made:

His wife is pregnant during this period of time. She’d like a little bit more support. He’s not able to give that to her. In July, Michael was supposed to do a number of things in anticipation of having some friends over, July of 2012, and at that point his wife was pregnant with her third child. He didn’t get around to doing it. Out of frustration, she did it herself. She did all the work he was supposed to do that day in addition to getting the house ready for a party that they were having. They were having some friends over. She started bleeding and two weeks later she has a miscarriage. Now, whether or not or what caused the miscarriage is not the point here. The point is that she blamed Michael for that, so you can see that’s an obvious point of tension.

Madam Justice Maisonville found these comments crossed the line and discharged the jury.  In doing so the Court provided the following reasons:

[30] I find that in the circumstances of the comments as they were made yesterday, it would be impossible to dispel the chain of reasoning that the accident ultimately led to the miscarriage. To make a further comment would underscore that, and, as noted in the above cases, it would be impossible to effect a correction without drawing attention to the problem and refer to what is not going to be led in evidence.

[31] I do not find that this is the same as the circumstances in the cases Zhong v. Ao and Holman v. Martin, which were not jury trials. I do not find that the remarks are appropriate for an opening, and rather that they are inappropriate and inflammatory and appear designed to have evoked sympathy, and that it would be impossible to craft an instruction to the jury that would be able to dispel that possible sympathy to the jury. As noted, as well, that there were similar objections to references to the position of the defendant respecting liability which cause concern.

[32] The remarks in relation to the miscarriage were sufficient to cause this court grave concerns such that I am going to direct that the jury be discharged. While I find that those remarks are questionable, I am not going to comment on them in these reasons as it is not necessary for me to do so. I do note that the reference to the plaintiff by his first name is considered inappropriate and has been considered so by both the Ontario courts and by the Court of Appeal.

[33] In all of the circumstances, I order that the jury in this matter be discharged.

[34] I note that, pursuant to the provisions of Rule 12, that counsel for the defendant submits that the matter can proceed judge alone. In the circumstances, I am going to order that the matter carry on as a judge alone trial.


$27,000 Non-Pecuniary Damage Assessment for Largely Recovered Soft Tissue Injuries

April 2nd, 2012

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for “mostly resolved” soft tissue injuries.

In last week’s case (Vela v. MacKenzie) the Plaintiff was involved in a 2009 rear-end collision.  Fault was admitted by the rear motorist.  The Plaintiff suffered various soft tissue injuries which, while not resolved, were largely recovered by the time of trial.  In assessing non-pecuniary damages at $27,000 Madam Justice Maisonville provided the following reasons:

[69] The Court must assess damages for injury to the plaintiff.  I find those injuries to be soft tissue injuries to the plaintiff’s neck, shoulder and trapezius area which were at their worst for the first 15 months.  At that time the pain changed to stiffness and by June 2011 was mostly resolved but was continuing sporadically. I find the headaches lasted six to eight months; the back of the hand injury had resolved after approximately three months…

[87] I find in the present case that Mr. Vela has met the burden of proof with respect to injuries he sustained to his neck, upper back and trapezius area, and those to his left hand as well as the headaches that he suffered initially. I find that, with some exceptions, the pain had largely resolved within 15 months, with continuing improvement to where the plaintiff felt he was functioning at 75 per cent to 80 per cent by June 2011. He has now only occasional flare-ups. I consequently find the injuries to be more severe than submitted by defence counsel but far less severe than submitted by the plaintiff.  I find the soft tissue injuries sustained by the plaintiff to be more akin to those sustained by a plaintiff in Hussainyar v. Miller, 2012 BCSC 405 where Allan J. awarded $27,000 in non-pecuniary damages where the injuries had largely resolved within one year but continued in part to trial, some 27 months after the accident.  (See also Robinson v. Anderson,2009 BCSC 1450 $25,000 no permanent or long-term injury or pain Hsu v. Williams, 2011 BCSC 1412 $30,000 award before deduction for failure to mitigate.)  An important principle is to be fair and reasonable to both parties (See Miller v. Lawlor, 2012 BCSC 387 para. 109 considering Andrews v. Grand v. Toy Alberta Ltd., [1978] 2 S.C.R. 229; Jackson v. Lai, 2007 BCSC 1023, para.134 and Kuskis). In all the circumstances, I award $27,000 in non-pecuniary damages.


"The Pain Remains Real to the Victim" Despite Low Velocity Impact

March 15th, 2012

In the latest judicial demonstration that the so-called Low Velocity Impact Defence is not the law, reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, awarding damages following a motor vehicle collision.

In yesterday’s case (Sun v. Sukhan) the Plaintiff was involved in a 2009 rear end collision.  Fault was admitted by the rear motorist.  The collision caused very little vehicle damage.  The Defendant stressed this during trial.  Madam Justice Maisonville provided the following reasons addressing the value of this evidence:

[22] The damage to the vehicle was described by the assessing adjuster, with respect to the bumper, as a plastic face all warped, and a gross total damage of $927.31 was found including all taxes. Total labour costs were estimated to be $607.20.

[23] From the pictures that were put in evidence on the summary trial, the vehicle appeared to have sustained only minor damage, but again that does not mean that the plaintiff did not suffer genuine injuries, nor is it the case that with soft tissue injuries there is always a physical presentation that can be seen or felt. The pain remains real to the victim of the accident, and his credibility is not an issue on this application.

The Court went on to find that the collision caused soft tissue injuries that largely resolved after 21 months but continued to occasionally flare.  In assessing non-pecuniary damages at $20,000 the Court provided the following reasons:

[55] In all of the circumstances, I find while the plaintiff’s injuries had largely resolved within one year and nine months, he has some ongoing complaints of pain, coupled with his inability to perform certain activities as a consequence of his fear of causing flare-ups to his lower back such as carrying heavy objects.

[56] Taking evidence as a whole, I find that the plaintiff has, on a balance of probability, proved he was injured from this accident for one year and nine months and that he presently has some minor complaints on occasion relating to his lower back and neck, but that these are not preventing the plaintiff from enjoying his pre-accident state of health and activity level.

[57] I award the following:  Non-pecuniary  damages: $20,000

For more on this topic you can click here to access my archived posts addressing ICBC’s Low Velocity Impact Policy.



$75,000 Damages for Onset of Knee Arthritis Pain; Golden Years Doctrine Applied

March 13th, 2012

Reasons for judgement were released earlier this month assessing damages for a knee injury caused in a 2007 collision.

In the recent case (Dulay v. Lachance) the Plaintiff was injured in a broadside collision. Fault for the crash was admitted by the offending motorist. The Plaintiff suffered from chronic knee pain and dysfunction following the crash. The trial focused largely on whether the collision was responsible for this.

Investigation following the collision revealed that the Plaintiff had pre-existing arthritis in his knee. As is often the case, this condition was asymptomatic prior to the crash.

The plaintiff presented medical evidence suggesting the collision was responsible for the onset of pain. The defendant argued the collision was coincidental to the onset of symptoms. The court preferred the Plaintiff’s evidence. In assessing non-pecuniary damages at $75,000 Madam Justice Maisonville applied the ‘golden years‘ doctrine and provided the following reasons:

[78] Dr. McLeod had described the contusion to the right medial femoral condyle and medial tibial plateau (very simply put – the area where the femur meets the lower leg bones) as mild, but as noted he separated this injury from the triggering of the arthritis as clarified in his second report. I accept his evidence on this point and find that his attribution of “mild” to the injury did not mean to incorporate the onset of symptoms of osteoarthritis.

[79] Dr. McLeod stated: “It is impossible to predict whether or not this right knee would have become symptomatic should this accident not have occurred.” I accept his evidence on that issue.

[96] The plaintiff asserts that his injuries arose from the accident. While it is true that he had osteoarthritis before the accident, the plaintiff’s position is that his condition was rendered symptomatic as a consequence of the accident.

[97] The plaintiff relies on the report of Dr. Grover who wrote:

It is also my opinion that, but for the motor vehicle accident in question, he would likely have remained pain free and symptom free (as far as the right knee is concerned) for many years to come, on balance of probability.

As noted above Dr. McLeod also found that the osteoarthritis was rendered symptomatic from the accident…

[106] There was no evidence that any other event triggered the arthritis to become symptomatic. While it was indeed the evidence of both orthopaedic surgeons that asymptomatic arthritis can became symptomatic from no event at all, here, I find that the complaints followed on the accident. I find on a balance of probabilities that the plaintiff has proven the injury caused the osteoarthritis to become symptomatic causing pain to his right knee and residual pain to his elbow. This was as a consequence of the accident…

[123] There is no issue that Mr. Dulay has suffered a loss. He will no longer be able to enjoy all the activities he did with his family and for his temple. Further, as noted by Griffin J. in Fata v. Heinonen, 2010 BCSC 385, the injury to a person nearing retirement is frequently more difficult to endure. As aptly stated by Griffin J. at para. 88:

[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.).

[124] I find Griffin J.’s reasoning apt here in Mr. Dulay’s case where he is nearing retirement and has lost the ability to function in a way that has altered how he lives.

[125] Additionally, Mr. Dulay continues to work and perform everything he can. He has not asked for his employer to accommodate him. He is a team player and endeavours to do everything he can even though he must stop, take medication, and bear much pain. Again, as stated by Verhoeven J. citing Stapley v. Hejslet, 2006 BCCA 34 at para. 46 in Power v. White, 2010 BCSC 1084 at para. 68:

Stoicism of the plaintiff should not reduce the award.

[126] In all the circumstances of the case I award the plaintiff $75,000 in non-pecuniary damages.


More on ICBC Settlements and Consent

December 7th, 2011

Further to my previous posts on this topic, if a lawyer accepts an ICBC offer without clear client instructions a binding settlement could be created leaving the remedy of a separate claim against the lawyer in negligence.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with this area of the law.

In last week’s case (Ng v. Schell) the Plaintiff was injured in a 2007 motor vehicle collision.  She retained a lawyer who allegedly entered into a settlement agreement for $95,000 plus taxable costs and disbursements.  The client apparently did not give instructions to accept such an offer.

The client retained new counsel and attempted to proceed to trial.  ICBC brought a motion to dismiss the lawsuit arguing a binding settlement had been reached.  Ultimately Madam Justice Maisonville declined to determine the issue in a Chambers Application and ordered that the matter proceed to trial so that the former lawyer could be subpoenaed and give evidence as to what occurred.  Prior to disposing of the matter the Court provided the following summary of the relevant legal principles:

[8] Both counsel agree that in a situation where a judgment has been rendered, normal rules of contract and agency are applicable.  However, in an interlocutory matter, such as here, where there is not yet a judgment, then the situation must fall into one of the four exceptions outlined in Hawitt for the court to have discretion to deny the application to order the settlement valid and enforceable and stay the proceeding.  Those four notable exceptions are set out in Hawitt at paragraph 20:

20  The judge may refuse the stay if:

1.   there was a limitation on the instructions of the solicitor known to the opposite party;

2.   there was a misapprehension by the solicitor making the settlement of the instructions of the client or of the facts of a type that would result in injustice or make it unreasonable or unfair to enforce the settlement;

3.   there was fraud or collusion;

4.   there was an issue to be tried as to whether there was such a limitation, misapprehension, fraud or collusion in relation to the settlement.

[9] The first analysis, of course, is whether the previous solicitor was acting on instructions.  One of the leading cases in British Columbia is that of Smoliak v. Smart (Guardian ad litem of), [1995] B.C.J. No. 1559 (S.C.) where, at para. 17, Drake J. held:

17  Solicitors, of course, are agents of their clients in accordance with the terms of their retainers; and when retained to conduct litigation have the authority to compromise and settle an action brought for a client.

[10] It is settled law that a solicitor has authority to enter into settlement agreements as agent for the client in such circumstances and that if there is any restriction on that authority, notice must be given to the other side of such a want of authority.  Otherwise, in the absence of the other side being aware the authority was limited or restricted, the opposing side is entitled to rely upon the authority to settle.  The only exceptions, accordingly, in a situation where there appears to be authority to settle are the above exceptions from Hawitt.

As a practical matter these types of disputes can be avoided if settlement instructions are provided in writing, or, better yet, by clearly communicating in the course of negotiations that binding settlement will be made subject to clients confirming instructions evidenced by a signed full and final release.


Amending Pleadings and the New Rules: The Low Threshold Continues

July 14th, 2011

Rule 6-1 deals with amendments to BC Supreme Court pleadings.  Unless the opposing parties consent, once a trial date is set pleadings can only be amended with permission from the Court.  Authorities under the former Rules of Court established a very low threshold for obtaining a Court’s permission.  The first case I’m aware of dealing with this issue under the New Rules was released last week by the BC Supreme Court, Vancouver Registry, confirming that the law remains unchanged.

In last week’s case (TJA v. RKM) the Defendants wished to amend their pleadings by raising the defences of absolute and qualified privilege.  The Plaintiff opposed arguing they would be prejudiced if the amendment was permitted as the lawsuit was mature with examinations for discovery complete.   The Court permitted the amendment and remedied the prejudice raised by the Plaintiff with a costs order.  In reaching this result Madam Justice Maisonville confirmed the law remains unchanged under the new rules and provided the following reasons for judgement:

[12] Rule 6 – 1 (1) (b) (i) provides:

Rule 6-1 — Amendment of Pleadings

When pleadings may be amended

(1) Subject to Rules 6-2 (7) and (10) and 7-7 (5), a party may amend the whole or any part of a pleading filed by the party

(a) once without leave of the court, at any time before the earlier of the following:

(i) the date of service of the notice of trial, and

(ii) the date a case planning conference is held, or

(b) after the earlier of the dates referred to in paragraph (a) of this subrule, only with

(i) leave of the court, or

(ii) written consent of the parties of record.

[13] In Langret Investments v. McDonnell, BCCA March 18, 1996 C.A. 020285 Vancouver Registry, Rowles J.A. for the Court, considering the predecessor rule to 6-1(1)(b)(i), held:

Rule 24(1) of the Rules of Court of British Columbia allows a party to amend an originating process or pleading.  Amendments are allowed unless prejudice can be demonstrated by the opposite party or the amendment will be useless.

[14] The rationale for allowing amendments is to enable the real issues to be determined.  The practice followed in civil matters when amendments are sought fulfills the fundamental objective of the Civil Rules which is to ensure the “just, speedy and inexpensive determination of every proceeding on the merits”. (See also McLachlin and Taylor, in British Columbia Practice, 2d ed. looseleaf (Butterworths, 1991) pages 24-1 to 24-2-10, and the decision of this Court in Chavez v. Sundance Cruises Corp. (1993), 15 C.P.C. (3d) 305, 309-10).