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 ‘Master Dick’

Jury Struck in Injury Claim With “Complex” Business Loss Element

November 22nd, 2018

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, striking a jury notice for a personal injury claim with a complex business loss component.

In today’s case (Forstved v. Kokabi) the Plaintiff was involved in a collision and sued for damages.  The Defendant elected to proceed to trial with a jury.  THe Plaintiff argued that the claim, particularly with its business loss component, was too complex for a jury.  The court agreed and struck the Defendant’s jury notice.  In doing so Master Dick provided the following reasons:

[50]         In this case, I agree with the plaintiff. The evidence in this case is sufficient to establish that this case will require a prolonged examination of documents or accounts and that the issues require a scientific or local investigation.

[51]         I must now look to whether the examination or investigation may conveniently be made with a jury. In considering this question, I acknowledge that a party’s right to trial by jury is entitled to great weight and ought not to be disturbed except in the clearest of cases.

[52]         In this case, I must consider if the jury can not only understand the evidence as it is presented and rebutted, but also retain it over 19 days and engage in a reasoned analysis at the end of the trial.

[53]         The plaintiff will be calling at least 23 witnesses, of whom 11 are experts. There will be lay witnesses, including the plaintiff’s accountant Mr. Moody. The accountant will be introducing many of the business and tax documents to support the plaintiff’s business arrangements. There will be at least 22 expert reports to be considered.

[54]         If I was just considering the number of experts, the expert’s use of terminology, the volume of medical evidence, and divergent opinions alone, that would not necessarily cause me to strike the jury in this case. What makes this case more difficult is the fact the plaintiff’s income and business losses are not straightforward. The jury will have to review and understand the plaintiff and his spouse’s income tax information as well as the financial statements from all of the corporations he owned. The jury will then have to analyze, understand, and interpret the documents to assess his income and business loss.

[55]         In this case, I accept that the issues of causation and quantification of damages will require prolonged examination of documents and scientific matters going to many issues over a protracted period. The difficulties for the trier of fact in dealing with this task was set out in Wallman v. Insurance Corporation of British Columbia, 2012 BCSC 1849 at para. 57:

. . . It may be necessary to retain fine detail from the examination in chief and cross-examination of many witnesses on multiple issues for weeks before those issues are traversed by defence witnesses. Considered on their own, most, but not all, of the expert reports in this case may be understood by a jury in light of the full examination in chief and cross-examination of the experts, but retention of that understanding over several weeks is likely to be so difficult, in my view, that fruitful analysis at the end of the day may be impossible.

[56]         I have considered all of the submissions made by counsel and the factors set out in paragraph 25 of these reasons. In this matter there is a significant dispute about the injuries sustained by the plaintiff and the impact on his life. After consideration of all of the above, I find that the jury will be significantly challenged over the 19 days of trial to retain, understand, and analyze the complex and conflicting evidence and reach factual and legal conclusions on the issues of causation and damages. As a result, I am satisfied that this matter cannot conveniently be heard by a jury.

[57]         I therefore will exercise my discretion to strike the jury notice and there will be an order that the trial of this case will be heard by judge alone.


Court Tells Lawyer to “Focus” Their Questioning Instead of Extending Discovery Time

May 28th, 2016

The BC Supreme Court Rules, which used to be open ended with respect to examinations for discovery, now have time limits in place with the Court retaining discretion to extend these limits in appropriate circumstances.

Unreported reasons for judgement were recently released considering and denying such an application with the Court suggesting counsel “focus” their remaining time appropriately.

In the recent case (Ross v. Casimong) the Plaintiff was injured in a 2009  collision and sued for damages.  The claim was prosecuted in the usual course (outside of fast track) with the present Rules allowing 7 hours of discovery.  The Plaintiff was examined twice with approximately 44 minutes of the allotted 7 hours remaining.  Defence counsel brought an application seeking a further discovery and allowing up to two hours to finish the job.  The Court dismissed the application noting a focused discovery could canvass what was needed in the remaining time.  In dismissing the application Master Dick provided the following reasons:

Master Dick Reasons for Judgement