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 Watchuk’

Court Finds “After the Event” Insurance a Factor To Consider When Awarding Post Trial Costs

July 9th, 2018

In what, to my knowledge, is the first BC injury case commenting on the weight a court should place on “After the Event” insurance when awarding costs post trial, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this.

In the recent case (Clubine v. Paniagua) the Plaintiff was injured in a crash and sued for damages.  Prior to trial the Defendant offered to resolve the claim for a total of $94,848.32 plus costs and disbursements.  The Plaintiff rejected this offer and proceeded to trial where he was awarded a total of $77,224.32 in damages.  The Defendant asked for costs of the trial arguing their offer should have been accepted.

The Plaintiff had ATE insurance which covers some of these adverse costs consequences.   The Court was asked to take this factor into account in stripping the plaintiff post-offer costs and making the Plaintiff pay the Defendant’s trial costs.  In finding this was an appropriate factor to consider Madam Justice Watchuk provided the following reasons:

[27]         On the costs application it was disclosed that the plaintiff purchased adverse cost insurance known as “After-the-Event” (“ATE”) insurance prior to trial.  In submissions the plaintiff explained that the ATE insurance would cover the defendant’s disbursements and costs from the date of the offer if costs were awarded against the plaintiff, and would also pay for the plaintiff’s disbursements incurred but not awarded from the date of the offer.  It will not pay for the plaintiff’s costs following the date of the offer. 

[28]         The defendant submits that the ATE insurance effectively undermines the intent of the offer to settle rule.  It allows a plaintiff to avoid the punitive costs consequences of the rule, ignore reasonable offers to settle, and with impunity take their chance at trial.  The winnowing function of the costs rules is obviated by ATE insurance; doubtful cases can proceed through litigation without risk of adverse costs consequences.  I conclude in this case that this insurance had such an effect. 

[29]         The ATE insurance in this case strongly weighs in favour of the defendant’s costs application. ..

[30]         The defendant made reasonable efforts to settle this matter.  The plaintiff’s failure to accept the reasonable offer to settle should have costs consequences.  The ATE insurance held by the plaintiff is a factor that further weighs against costs following the event in these circumstances. 

[31]         The offer was open to the eve of trial, July 22, 2016.  In these circumstances the plaintiff is entitled to only his pre-trial costs of $6,500 plus disbursements.  The defendant’s application is granted and she is entitled to the costs and disbursements of the trial. 


$75,000 Non-Pecuniary Assessment For Chronic Neck and Back Soft Tissue Injuries

June 7th, 2016

Adding to this site’s soft tissue injury case archives, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic low back and neck soft tissue injuries.

In today’s case (Lampkin v. Walls) the Plaintiff was involved in a 2009 rear-end collision caused by the Defendant.  The Defendant admitted fault.  The Plaintiff suffered injuries to his neck and back which remained symptomatic at trial, were expected to carry on to the future and resulted in a permanent partial disability.  I assessing non-pecuniary damages at $75,000 Madam Justice Watchuk provided the following reasons:

[129]     I substantially agree with the application by Mr. Lampkin of the factors as set out in Stapley v. Hejslet. I accept the following facts with respect to these factors:

(a)  Age of the Plaintiff:  Mr. Lampkin is currently 46 years old. Both he and his wife are involved in raising their two children, Lexxus and Nathaniel. Prior to the accident, Mr. Lampkin enjoyed taking Lexxus to the park and playing soccer with him. As a family, they enjoyed going to the beach for barbeques and attending festivals. A great deal of this enjoyment has not been possible since the accident. Given his age, Mr. Lampkin has less opportunity to heal or find alternative ways to enjoy recreational activities.

(b)  Nature of the Injury:  Mr. Lampkin has been experiencing pain primarily in his neck and back for over 6 years. He reported those and other injuries immediately following the accident, and he continues to experience them although in lesser degrees. The pain affects his work and his day-to-day activities including driving, playing sports and playing with his children. At the end of a work day, Mr. Lampkin’s injuries are aggravated leaving him with little energy or patience to pursue his usual after work activities.

(c)  Severity and duration of the pain:  Mr. Lampkin’s injuries tend to vary depending on his activities. When he has had time to rest, the severity of his pain is manageable. However, after a work day, Mr. Lampkin requires pain medication to manage the pain. His symptoms are focused in his neck and back. The medical evidence supports that, in particular, Mr. Lampkin’s low-back symptoms are unlikely to resolve.

(d)  Disability:  Mr. Lampkin is partially restricted in many of his activities and has not been able to return to cricket. He is careful not to aggravate his neck or back. He now takes much longer to do things than he used to and is frustrated by his lack of energy.

(e)  Emotional suffering:  There is no doubt that Mr. Lampkin is clearly frustrated by his injuries. Ms. Rouse explained that Mr. Lampkin is much more irritable than he used to be.

(f)    Impairment of life:  Mr. Lampkin no longer plays cricket and is less interested in hobbies such as attending festivals, going to the beach or playing soccer. Doing too much tends to aggravate his symptoms.

(g)  Impairment of family, marital and social relationships:  Although Mr. Lampkin and Ms. Rouse have reconciled since the accident, Mr. Rouse has noted a significant change in Mr. Lampkin. He often does not have energy or is in too much pain to play with Lexxus. He is also much more irritable than he used to be.

(h)  Impairment of physical and mental abilities:  The injuries to his neck and back have directly impacted his ability to play soccer, basketball and cricket. Mr. Lampkin used to enjoy staying active but is now concerned that these activities will aggravate his symptoms.

(i)    Loss of lifestyle:  Mr. Lampkin and Ms. Rouse were carefree people. They now have to deal with their continued loss of income, particularly with raising a young family. Mr. Lampkin is also worried about his ability to partake in his sons’ lives and wants to be able to play sports with them.

(j)    The plaintiff’s stoicism:  Mr. Lampkin is resilient and hardworking. He takes pride in his ability to provide for his family and his skills. Despite the continued pain, Mr. Lampkin has continued to work in physical jobs, working as many as seven days per week. He was fortunate to have two employers in landscaping who made accommodations to assist him.

[140]     It is necessary to consider each case individually and I find that all of the cases relied on by the plaintiff have important differences with the plaintiff’s circumstances here. However, I find that those cases are informative for circumstances where the plaintiff has somewhat similar injuries and is limited to varying degrees in both their jobs and recreational pursuits. Mr. Lampkin is no longer able to perform the heavy tasks that he has relied upon to learn a living. In addition, he had excelled in cricket for his entire life and is no longer able to play this sport that was central to his identity both in St. Vincent and Canada. Considering all of the factors, I find that an appropriate award for non-pecuniary damages is $75,000.


$31,000 Non-Pecuniary Assessment for Orbital Floor Fracture

February 22nd, 2016

Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, assessing damages for an orbital floor fracture at $31,000.

In today’s case (Bunna (Guardian ad litem of) v. Bunah) the Plaintiff, who was 5 at the time of the collision, was involved in a 2012 crash.  He suffered a fracture to his orbital floor along with some lingering anxiety following the crash.  In assessing non-pecuniary damages at $31,000 Madam Justice Watchuk provided the following reasons:

[13]         The most serious injury sustained in the accident was a displaced fracture of the orbital floor on the right side of his face.  It also healed.  The orbital floor is adjacent to the maxillary sinus and it is not known if there was also a fracture of the maxillary sinus.  As surgery was not required, there was no further investigation of the fracture and possible fracture which would be adjacent to each other in this young boy’s facial area. 

[14]         The extensive swelling was described by a doctor on February 20, 2012 to be “severe swelling in the right facial region with severe bruising, almost unable to open his right eye”.  The bruising lasted a maximum of six months.  There has been no scarring.

[15]         In summary, during the night in the hospital in Mackenzie, Julien had pain and cried quite a bit as he did on the way home to Quesnel.  He had some pain for a few weeks, and for few months he had occasional pain if his face was touched.  He had some anxiety for about six months following the accident.  The long-term effect has been upset and stress and crying from the worry when his mother is late.  He worries that she has been in a car accident if she is late.  This has occurred ongoingly, and a couple of times in 2015, most recently in November 2015…

[18]         With regard to the nature of the injury, the most serious is the fracture of the orbital floor on the right side of the face.  It was accompanied by extensive bruising and swelling.  It resolved without surgery within six months.

[19]         With regard to loss or impairment of life, emotional suffering and severity of duration of pain, due to Julien’s young age at the time, just turned five years old, the evidence is obtained primarily from his aunt’s observations in her frequent visits with him.  From the descriptions, Julien is a stoic and resilient child and recovered quickly, also within six months.  The only lingering effect is that he becomes fearful and upset when his mother is late in arriving to pick him up because he is worried that there has been another accident.  This fear has occurred repeatedly.  In 2015 it happened twice when his mother was late, most recently in November 2015…

[23]         In this case particular weight is given to the plaintiff’s age, his stoicism in the circumstances of the accident, and the emotional suffering of such a young plaintiff.  Non-pecuniary damages are assessed at $31,000.


Bus Driver Partly Liable For Passenger Injury After Stopping Too Far From The Curb

November 26th, 2014

Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, finding a bus driver partly liable for injuries after a passenger fell while disembarking the bus.

In the recent case (Isaacs v. Coast Mounatain Bus Company Ltd) the Plaintiff fell while getting off the bus.  At the time the bus stopped some 12-14 inches from the sidewalk contrary to their policy of stopping closer to the curb.   The Plaintiff attempted to jump to the curb resulting in injury.  The Court found both parties equally to blame for the incident.  In holding the Defendant 50% liable Madam Justice Watchuk provided the following reasons:

[47]         If the distance of the front door of the bus from the curb was greater than ten inches, there is potential negligence on the defendants.  As stated above, Translink has in place guidelines for a standard bus stop that state that buses should be stopped parallel to the curb and within six to ten inches of that curb.  However, the defendants’ negligence is not to be measured against a general policy, but rather must be considered in light of the circumstances that presented themselves at the time of this specific accident (Heyman v. South Coast British Columbia Transportation Authority (c.o.b. Translink), 2013 BCSC 1724 at para. 68). 

[48]         Although the defendants’ policy directive is not determinative, in light of these specific circumstances I find that the policy of stopping less than ten inches away from the curb reflects the standard of care required by a reasonably prudent bus driver.  Thus, if the distance between the front door and the curb was greater than ten inches, there would be a prima facie case of negligence and it would be for the defendants to establish that the plaintiff’s injuries occurred without negligence on their part or due to a cause for which the defendants were not responsible. 

[49]         Ms. Isaacs’ evidence is that the bus came to a stop at an angle with the front of the bus further from the curb than the back of the bus.  Her evidence was that the distance from the bottom step to the curb was 12-14 inches.  In cross-examination she disagreed with the statement that the distance was only six inches from the curb, and responded, “Oh no – it was wider, quite wide”.  This is consistent with her evidence that when she was on the sidewalk after the fall, Ms. Isaacs observed that the rear of the bus was closer to the sidewalk than the front. 

[50]         I accept Ms. Isaacs’ evidence in this regard.  I have noted that her memory of the number of steps at the front of the bus is incorrect, as she recalled one step at the front when there are three steps on this type of bus.  However, other than this point, her evidence with regard to the location of the bus when it was stopped is persuasive and is consistent with the other details of the scene at the time of her fall. 

[51]         The evidence of Mr. Payne is, I find, evidence of his usual good practice with regard to stopping the bus with the front and rear exits at an equal distance, and six inches from the bottom of the steps to the curb.  However, his evidence with regard to this stop is internally inconsistent.  He testified that he drives the bus straight in the curb lane.  He also testified that he angles the wheel to the left prior to the stop so that he is ready to pull out into traffic when the bus leaves the stop.  On the evidence of this stop of this bus prior to this incident, I find that Mr. Payne angled the steering wheel to the left prior to the bus coming to a complete stop.  Thus the front of the bus and the front door were further from the curb than the back of the bus and the back door. 

[52]         I accept Ms. Isaacs’ evidence that the bottom step of the front door exit was 12-14 inches from the curb, and therefore greater than ten inches from the curb.  I accept her evidence that the distance is the reason that she jumped from the bottom step to the curb rather than going down the bottom step to the pavement, crossing and stepping up on the curb to the sidewalk. 

[53]         That the bus was parked further than ten inches from the curb is contrary to the defendants’ internal policy.  In these circumstances it was a breach of the defendants’ standard of care owed to the plaintiff. 

[54]         A further breach of the defendant Mr. Payne is that, having stopped the bus further than ten inches from the curb, he did not warn Ms. Isaacs of the potential hazard being the excess distance.  Although he considered a warning as he observed her moving quickly, he decided not to startle her.  Given his observations, when he saw Ms. Isaacs exiting without use of the railing at more than 10 inches from the curb he should have provided a warning. 


Watch Out for the Moose, Eh! Failure To Warn Leads to Liability

November 3rd, 2014

Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, addressing the duties of a motorist after colliding with an animal.

In today’s case (Ziemver v. Wheeler) a motorist struck a moose on the Alaska Highway.  It was “fully dark” at the time.  The moose lay dead or wounded when a subsequent motorist travelling in the same direction struck the animal, lost control and collided with an oncoming vehicle.

Multiple lawsuits were commenced.  The Court found that, given visibility issues, none of the motorists were responsible for striking the moose.  However, the first motorist was found liable for the subsequent collisions for failing to warn other motorists about the injured or dead moose in the roadway.  In reaching this conclusion Madam Justice Watchuk provided the following reasons:

[154]     A driver who has collided with wildlife must take reasonable steps to preclude the possibility of another vehicle colliding with that wildlife.  The actions which will constitute reasonable steps will vary depending on the circumstances.  The time available to the driver who has collided with the wildlife is an important factor to consider in assessing reasonableness. ..

[180]     Warning other motorists of the hazard that he had good reason to believe was lying on the road was a duty.  The duty arose at the time that he hit the moose.  Not utilising the available 9 minutes to fulfill that duty was a breach of his duty.  That breach caused the collisions between Mr. Walter and the moose and the Walter-Ziemer vehicles. ..

[187]     Mr. Wheeler failed to take any reasonable or entirely possible steps over the period of approximately 9 minutes before the third collision.  He did not return to the scene until a minimum of 21 minutes had passed.  I find that in these circumstances, his failure to take any steps to warn other motorists of the hazard posed by the moose carcass fell below the standard of care.

[188]     I further find that but for Mr. Wheeler’s failure to warn other motorists, the Walter-Ziemer collision would not have occurred or would have been likely to result in significantly decreased injury. 

[189]     This is not a case like Fajardo, in which the collision would have occurred even if the defendant driver had taken reasonable steps to warn other motorists (at para. 40).  Unlike in Fajardo, the hazard in this case did not take up the entire highway lane.  Further, because the weather was clear and Mr. Walter and Mr. Ziemer could see each other approaching, it is unlikely that they would have collided if they had taken evasive action to avoid the moose, which also distinguishes this collision from the accident in Fajardo. 

[190]     Most importantly, I find that both Mr. Ziemer and Mr. Walter would have been likely to avoid or lessen the impact of the collision if they had been warned that there was an approaching hazard.  I accept Mr. Walter’s evidence that he would have slowed if he had seen flashing lights which he would have understood as a warning.  I also find that Mr. Ziemer was an attentive driver and that he would have been likely to respond to a warning signal from Mr. Wheeler.  Both of these findings are supported by the persuasive expert evidence of Dr. Droll which indicated the ways in reasonable drivers could be assisted by roadside warnings of an upcoming hazard. 

[191]     In conclusion, I find that Mr. Wheeler breached his duty to warn other motorists of the hazard posed by the moose carcass, and that this caused the Walter-Ziemer collision. 


Double Costs Ordered After Baseball Brawl Lawsuit Dismissed

December 30th, 2013

Earlier this year the BC Supreme Court dismissed a lawsuit following a fight between two adults at a Pee Wee baseball game.  Prior to trial the Defendant made several fairly modest settlement offers, one of which was a formal offer giving the Court the discretion to award double costs.  In finding it was unreasonable for the Plaintiff to reject the offer and proceed to trial Madam Justice Watchuk (Charland v. Cloverdale Minor Baseball Association) provided the following reasons ordering the Defendant to pay double costs:

[17]         Mr. Wheeler submits that the offers were offers which ought reasonably to have been accepted.  There is now general agreement on the law that, “in determining whether the offer to settle ought reasonably have been accepted the court does not consider the final result…  The reasonableness of a decision not to accept an offer must be assessed … [by] the circumstances existing when the offer was open to acceptance:” [Ward at para. 36]. 

[18]         The first offer of $3000, although not a formal offer under the Rules, was made on March 13, 2012.  It canvassed the minor injuries set out in Mr. Charland’s records, and noted that there was not the required supporting letter to substantiate the amount of an offer which had been made by Mr. Charland.

[19]         On June 8, 2012, a formal offer to settle in the amount of $5000 was served on counsel for Mr. Charland.  It was open until five minutes after the commencement of the trial.

[20]         Discoveries of Mr. Charland were held in late July 2012.  On August 2, 2012, counsel for Mr. Wheeler wrote to plaintiff’s counsel expressing reasons why Mr. Charland’s case was problematic.  Those reasons, the credibility of Mr. Charland and the nature and extent of his injuries, were later the subject of findings made at the trial which supported the position of Mr. Wheeler.

[21]         At that time, previous offers were retracted and a “nuisance offer” of $250 was formally made.

[22]         Mr. Wheeler submits that the fact that the final offer was reduced significantly following discoveries should have no effect on the determination of whether double costs are appropriate in this case.  I agree.

[23]         It was incumbent on Mr. Charland to “make a careful assessment of the strength or lack thereof of [his] case at the commencement and throughout the course of the litigation” [Hartshorne at para. 25].  Mr. Charland had knowledge, particularly after his Discovery, of the evidentiary problems in his case.  He chose to proceed to trial despite knowledge of those problems.  In light of that knowledge at the time the $5000 offer was made, and in light of the heightened knowledge at the time the nominal offer of $250 was made, his decision not to accept the offers was not reasonable.

[24]         As in Riley, Mr. Charland ought reasonably to have anticipated that his claim would be dismissed at trial.

[25]         With regard to the other factors listed in Rule 9-1(6), the relationship between the terms of settlement offered and the final judgment of the court may be considered by the court.  The second and final offers were more favourable to Mr. Charland than the decision of the court since his claim was dismissed with costs.

[26]         The court may also consider the relative financial circumstances of the parties.  Little is known regarding this factor.  It appears from the evidence that both parties have similar financial circumstances.  Both have legal costs arising from the litigation.

[27]         There are no other factors raised by Mr. Wheeler and, in the absence of submissions from Mr. Charland, no other factors that the court considers appropriate to take into account.

[28]         On consideration of the factors set out in Rule 9-1(6), I conclude that Mr. Wheeler is entitled to double costs from the date of the first formal offer, June 8, 2012. 

 


Physician’s Evidence Rejeced for Lack of “An Open Mind” Regarding Collision Related Injury

August 8th, 2013

Adding to this site’s archived judicial comments about expert witness evidence that is judicially rejected, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an L4/5 disc injury caused by a motor vehicle collision.

In this week’s case (Sekihara v. Gill) the Plaintiff was injured in a 2007 collision.  Although liability was denied the Defendant was found 100% responsible for the crash.   In the course of the trial the Defendant relied on an orthopedic surgeon who blamed some of the Plaintiff’s persisting symptoms not on the collision but instead on “deconditioning, her recent pregnancy and weight gain” and pre-existing conditions.

The Court rejected this evidence finding the plaintiff, who was a former professional athlete, suffered an L4/5 disc injury in the crash which was responsible for her persisting symptoms and assessed non-pecuniary damages at $130,000.  In rejecting the defence medical evidence the Court provided the following criticism:

[160]     On behalf of the plaintiff, it is submitted that Dr. Grypma’s opinion should be given no weight for the following reasons:

1.     He took what can only be described as a cursory history from Ms. Sekihara;

2.     he made a number of editorial comments in the section titled “medical records review” which were not identified as being his own comments;

3.     in that same section he left out salient facts which tended to support Ms. Sekihara’s complaints;

4.     also in that section, if he was unable to read handwriting, he simply left those sections out of his summary without stating that he had done so; and

5.     he was evasive at times in his oral testimony.

[161]     I agree with the plaintiff’s submissions regarding Dr. Grypma.  In his evidence, Dr. Grypma does not appear to have demonstrated an open mind in his examination of and conclusions regarding Ms. Sekihara or to have taken into account the complete medical history.

[162]     Most importantly, Dr. Grypma’s opinion that the enduring complaints of back pain are related to any of the four unrelated conditions is inconsistent with the evidence of Ms. Sekihara and of the objective evidence of the tear of the annulus fibrosis. 

[163]     Ms. Sekihara, as a snowboarder and professional athlete, many times per day for years, would load her spine with at least 3 times her body weight every time she made a jump with no back pain.  I do not accept Dr. Grypma’s evidence that it is coincidental that she suffered back pain immediately following the motor vehicle accident due to degeneration or a previously existing pars defect. 

[164]      It was Ms. Sekihara’s inability to pursue her regular activities due to her back pain which caused the deconditioning, not vice versa.  Ms. Sekihara had ongoing low back pain long before she became pregnant.  The pars defect was congenital and the degenerative changes longstanding. 

[165]     The characterisation of the low back injury is the major issue.  I prefer the evidence of Dr. Hershler who diagnosed it as a disc injury at L4/5.  His conclusions are based on his interpretation of the imaging, his examinations, and on Ms. Sekihara’s reporting of her symptoms, both pre and post-accident.


Don't Get in a Fistfight at your Son's Baseball Game

March 21st, 2013

In case there aren’t enough reasons to avoid a fistfight at your kid’s sporting events, here’s one more; being on the wrong end of a subsequent lawsuit in the BC Supreme Court will expose you to loser pays costs consequences.

The BC Supreme Court, New Westminster Registry, released reasons for judgement today with such a result.  In today’s case (Charland v. Cloverdale Minor Baseball Association and Wheeler) the Plaintiff’s son was playing in a Pee Wee baseball game.  The Defendant’s son was the scheduled umpire who arrived late.  He was told to go home the by Plaintiff.  He went home upset and his father came to the baseball game to discuss what happened with the Plaintiff.  After the two fathers exchanged some colourful words the Defendant “walked away 8 to 10 feet” when the Plaintiff “stood up from his chair and moved forward quickly” with “the intention to fight“.  The Defendant hit the Plaintiff in the head and then grappled for a while after that.  The Plaintiff was injured in the incident and sued for damages.

Madam Justice Watchuk dismissed the lawsuit finding it was a consensual fight.  The Court provided the following reasons:

[88]         Consent is a defence to the torts of assault and battery.  If Mr. Wheeler alleges and proves that the parties agreed to the physical contact in question, then Mr. Charland cannot complain of injuries suffered.  The onus of establishing consent is on Mr. Wheeler:

Although the fact that the plaintiff consented to the defendant’s conduct effectively negates the argument that a wrong has been committed, consent is treated as a defence which must be established by the defendant. 

Lewis n. Klar, Q.C., Tort Law, 5th ed. (Toronto: Thomson Reuters, 2012) at 128.

[89]         If a fight is proven to be mutual or consensual, the parties cannot complain of injuries suffered in the course of the fight:

A related matter concern consent to violent acts in other contexts, for example, in the case of “mutual fights”.  The case law supports the proposition that those who engage in fights, even though these activities may be criminal, cannot complain of injuries suffered in the course of the fight, unless the force which is used by one of the combatants is excessive or unnecessary.  The dismissal of the plaintiff’s actions in these cases may be grounded either on the basis of the defence of consent or illegality.

Lewis n. Klar, Q.C., Tort Law, 5th ed. (Toronto: Thomson Reuters, 2012) at 134….

[97]         The conversation then escalated.  Mr. Charland says that Mr. Wheeler’s tone suddenly changed.  I find that the reason for that sudden change in Mr. Wheeler’s tone was Mr. Charland’s telling him to “fuck off”.  After Mr. Charland escalated the conversation to a confrontation, Mr. Wheeler replied with words to the effect of “fat shit”.  There was some loud conversation between the two fathers. 

[98]         Mr. Wheeler then walked away to process Mr. Charland’s response.  He still wanted to resolve the situation and assist his son Cam.  As Mr. Wheeler walked away, Mr. Charland said, “I’ll get you later”, as he told Cst. Lee.  The words he told the court he said, “I’ll do you later”, do not equate, I find, with “I will meet you later”.  In making that statement, Mr. Charland had formed the intention to fight and had chosen to accept what he mistakenly understood to be an invitation to fight from Mr. Wheeler. 

[99]         Mr. Wheeler had walked away 8 to 10 feet to the grassy area.  He walked back part of that distance to Mr. Charland.  Mr. Charland stood up from his chair and moved forward quickly towards Mr. Wheeler.  When Mr. Wheeler saw him coming, he had a real fear of being injured or, as he put it, “run over”.  Mr. Wheeler then hit Mr. Charland once in the head.  The moments of contact between the two fathers included some mutual grabbing which Mr. Geppert described part of, Ms. Brozer referred to as a “kafuffle” and Ms. Korrins described as grappling.  In the course of that interaction, Mr. Charland slipped and fell on the grass.  Mr. Wheeler then walked away after the intervention of some of the other witnesses and observers. 

[100]     Mr. Wheeler did not kick Mr. Charland.  There is no independent evidence of a kick.  If Mr. Charland was injured in his kidney during the altercation at the park, I conclude that the injury occurred from his fall on the grass.  Similarly, Mr. Wheeler’s injury to his eye which resulted in a black eye was a result of the mutual grappling and physical interaction rather than a punch by Mr. Charland directly to Mr. Wheeler. 

[101]     I find that when Mr. Charland got up out of his chair and moved quickly towards Mr. Wheeler who was then 8 to 10 feet away on the grass Mr. Charland had an intention to fight.  Mr. Wheeler reacted by engaging in the fight after walking back toward an angry man.  Mr. Charland’s action in standing up and moving toward Mr. Wheeler, as it created fear, was an assault.  Mr. Wheeler responded with a punch which was a battery.  I conclude that the proper characterisation of the altercation between the two fathers is that it was consensual. 

The Court went on to order that the Defendant pay the Plaintiff’s costs providing an expensive lesson to the Plaintiff for this incident.


Wrongful Death Claims in BC and the Definition of "Spouse"

July 8th, 2011

BC’s Family Compensation Act permits a defined class of family members to sue for damages following the wrongful death of a loved one.  Spouses are part of this defined class.  However, the definition of spouse goes beyond legally married individuals and also includes a person who “lived and cohabited with the deceased in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years ending no earlier than one year before the death“.

In last week’s case (James v. Gillis) Ms. James died in a motor vehicle collision in 2006.   Mr. Cornet claimed he was the spouse of Ms. James and sought damages under the Family Compensation Act.  ICBC took the position that he was not a spouse as defined by the Act and denied the claim.  The matter went to trial and ultimately Madam Justice Watchuk agreed that Ms. Cornet was a “spouse” as defined by the FCA and was able to claim damages.

While the relevant discussion is far too lengthy to reproduce here, the Court extensively canvassed the law regarding the definiton of spouse and “marriage-like relationship” for the purpose of FCA claims at paragraphs 48-52 of the reasons for judgement and these are worth reviewing in full for anyone interested in this area of the law.

While on this topic I should again point out that a proposed amendment to the Family Compensation Act passed First Reading this Spring and will hopefully pass into law during the Legislature’s next session.