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

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Posts Tagged ‘Master Muir’

Court Denies Defense Request to X-Ray Plaintiff in Personal Injury Claim

September 22nd, 2017

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, denying a defense request to include an X-ray as part of the defense medical examination process.

In today’s case (Tani v. Baker) the Plaintiff sued for damages as a result of a 2015 collision where she sustained a broken leg and shoulder.

The Plaintiff consented to attend an defense medical examination but refused to consent to an X-ray that the physician requested.  The Defendant applied to court to compel the X-ray.  In dismissing the request Master Muir provided the following reasons:

[7]             The law with respect to medical appointments is not really an issue. Rule 7‑6(1) of the Supreme Court Civil Rules provides that the court can order an examination by a medical practitioner or other qualified person if the mental or physical condition of a person is at issue in an action.

[8]             The plaintiff notes, and I will not put it higher than that, that Rule 7‑6(3) provides specifically that a person who is making an examination under this rule may ask any relevant question concerning the medical condition or history of the person being examined. There is no equivalent particularization of other testing that might be performed.

[9]             I think I can assume that often physical tests are performed on plaintiffs, but that does not include what the plaintiff refers to as intrusive investigation or intrusive testing. The argument is that if the mere statement that an expert needs certain intrusive testing is taken at face value, then any such test could be ordered and I will add, regardless of the potential ill effects of such an examination or test.

[10]         It is common ground here that there is some danger to cumulative X-Ray examinations. That was not contested by the defendant. He acknowledged that there were health concerns but argued that the intrusive argument was simply not made out here and that the testing was required so that the defendant can be on an equal footing with the plaintiff in investigation of her ongoing injuries.

[11]         The plaintiff notes that they have no updated X-Rays, however. She argues that given the purpose of the rule, which is to put the parties on an equal footing, if the plaintiff does not have any evidence of diagnostic imaging and her existing expert’s and family physician’s reports do not lead to any necessity for further imaging, then there is no basis for an order for the defendant to have such imaging.

[12]         The plaintiff’s family physician apparently says that the breaks are healing properly and that there is no further requirement for treatment. The plaintiff submits that there is an onus on the defendant applicant to show that there is a specific need in this case.

[13]         I note that in his affidavit, Dr. Stone makes no specific reference to this plaintiff. He simply notes that in order to conduct a useful IME report and give an informed medical opinion, he would require “updated and thorough medical records, including x‑ray image of the relevant injured area taken at a date no earlier than six months before a given IME appointment”. He does not say why. He does not say that he has reviewed the other medical records of this plaintiff nor does he provide any basis for a need for updated X-Ray imaging.

[14]         Further, I take the plaintiff’s point that if the plaintiff chooses to go to trial without updated X-Ray imaging and proceed on the basis of expert reports produced without such imaging, then, in my view, there is no basis on which I should order that the defendant have the benefit of this intrusive testing. I will use the plaintiff’s word.

[15]         I should add that the parties were unable to point me to any specific case that deals with this kind of application for such intrusive tests. I am not saying that it would not be ordered if there was a proper basis for it, but on the circumstances before me today, I am not satisfied that there has been any proper basis shown or any need for the X-Rays and the application is dismissed.


Previous Discovery Transcripts, Expert Reports and Mediation Documents Ordered Produced in Indivisible Injury Case

December 8th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering broad document production from past litigation in a case of potential indivisible injuries.

In today’s case (Easton v. Chen) the Plaintiff was injured in a 2011 collision and sued for damages.  The Plaintiff was also involved in four prior collisions that resulted in injury claims, all of which settled prior to trial.

The Defendant requested production of past examination for discovery transcripts, expert reports and mediation documents on the basis that the injuries may be indivisible.  In ordering production Master Muir provided the following reasons:

[25]         I agree with the submissions of the defendant. I am satisfied that the prior documents, the discovery transcripts and the experts reports from the prior actions could be used to prove or disprove material facts in this action and on that basis alone I would order their production. I also conclude that in any event a sufficient foundation has been laid for their production under Rule 7-1(11). Further, I conclude that it is in the interests of justice to relieve against the implied undertaking of confidentiality. Thus, the documents are to be disclosed.

[26]         The mediation documents sought raise another issue and that is settlement privilege. The defendant relies on Dholliwar v. Yu, 2015 BCSC 670 and Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, for the proposition that the disclosure of these documents is necessary in order to prove what the plaintiff received in compensation in the prior accidents and to prevent injustice through potential double compensation.

[27]         In Dholliwar, Master Scarth held:

[26]      It has yet to be established here that the injuries arising from the third accident are indivisible from those in the first and second. However, on the basis that indivisibility is at issue, and that there is potential for over-compensation, it is appropriate to require disclosure of the settlement documents at this time. I accept the submission of the defendants that such disclosure is necessary, in that it may assist in the settlement of the plaintiff’s claims arising from the third accident. Disclosure at this time is consistent with the previous decisions of this Court in Pete and Murray. I am satisfied that the defendants here do not seek a purely tactical advantage, as the Court found in Phillips v. Stratton, 2007 BCSC 1298 (CanLII), but rather, they wish to have the information necessary to assess their exposure, both for purposes of settlement and in the preparation of their case for trial.

[27]      In Dos Santos at para. 34, the Court stated that “significant weight should be given to the just disposition of pending litigation in determining whether the documents sought come within an exception to settlement privilege.” In my view, to find that the documents should be disclosed at this time is consistent with this approach

[28]         Similarly in this case, indivisibility is an issue and the defendants argue there is a potential for double compensation. The only evidence available showing what the plaintiff was compensated for in the prior actions will be found in this documentation. As a result, I conclude that the mediation documents should be disclosed.


Worsening Prognosis Insufficient To Allow Late Defence Medical Exam

September 15th, 2015

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, finding that a Plaintiff’s failure to recover from injuries is not enough for a Defendant to secure a late defence medical exam.

In today’s case (Dzumhur v. Davoody) the Plaintiff was injured in a a collision and sued for damages.  In the course of the lawsuit the Plaintiff served an expert report opining that the Plaintiff ought to recover provided the injuries are responsive to recommended treatments.  The Defendant did not obtain a defence medical report and as the deadline approached for exchanging expert evidence the Plaintiff served an updated report suggesting the Plaintiff’s prognosis was poor.  The Defendant argued they ought to be entitled to a late exam in these circumstances but the Court disagreed noting the defence should have been alive to this possibility earlier.  In dismissing the requested late exam Master Muir provided the following reasons:

[13]         Further, I am not satisfied that the defendants can properly say they shall have been truly taken by surprise by the medical condition of the plaintiff. Dr. Caillier’s initial report was in 2013. It is couched in careful terms that said in essence: provided the plaintiff responds to the treatments prescribed, he should fully recover. Well, that is the very nub of the matter: will he or will he not respond to the treatments? Did he or did he not respond to the treatments? Obviously Dr. Caillier’s second report indicates that he did not

[14]         The defendant then had an opportunity to discover the plaintiff in May of this year, two weeks before the plaintiff saw his doctor. At the discovery, I am advised it was evident that the plaintiff was still playing soccer, but counsel was not able to say whether the plaintiff claimed to be pain free.

[15]         There is no basis that I can see on the evidence for the assertion that the second report of Dr. Caillier took them or should have taken them, perhaps more to the point, completely by surprise. The possibility existed that the treatments would not be successful. The defendant must be seen to have chosen to accept that risk without obtaining an IME before the 84-day deadline.

[16]         One of the important factors in these cases, as noted in Timar at para. 21, is whether the party can claim to be truly surprised by the condition of the plaintiff. Here it is my view that that is not the case. There is nothing that satisfies me that Dr. Bishop cannot do a responsive report to the report of Dr. Caillier without a complete IME of the plaintiff. As a result, the application is dismissed.


Speculation of Further Lawsuit Not Enough To Trigger Adjournment

July 7th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether an adjournment should be granted in the face of a recent collision.

In today’s case (Wall v. Kexiong) the Plaintiff was involved in three collisions and sued for damages with the claims being scheduled for trial at the same time.  The Plaintiff was then involved in a fourth collision where liability was apparently in dispute.  The Plaintiff did not start a lawsuit but the Defendant argued the scheduled trials should be adjourned in the event the Plaintiff commenced a further action.  In declining to adjourn the trials based on this speculative development Master Muir provided the following reasons:

[5]             The defendant relies on the Court of Appeal decision in Garcia v. Drinnan, 2013 BCCA 53, which discusses the problems of separate trials in cases of indivisible injuries and the potential for overlapping or inconsistent treatments of the same facts, overlapping forms of proof, and the court quotes from the judge below:

[15] The issue of the extent of the indivisible injuries, as well as the assessment of the damages suffered as a result of them are issues that must be answered in both actions, as will be the issue of whether the plaintiff has appropriately mitigated his damages. On the face of it, it is possible for the finder of fact in each case to come to a different conclusion on those issues. That may well be embarrassing to the administration of justice.

[6]             I do not disagree with the defendant’s view of the issues where there are indivisible injuries. It is common that sequential accidents that result in indivisible injuries are tried together for precisely the reasons advanced by the defendant.

[7]             The concern that I have here is that, with respect to the fourth accident, there has been no action commenced, and although the defendant urges on me that it is almost a certitude that the fourth accident will result in an action, that remains still, in my view, a matter of some speculation.

[8]             The plaintiff advances significant prejudice if there is a delay in this matter. Hence, counsel says that if there is an adjournment, she should have a significant advance in the amount of approximately $80,000 to allow her to deal with the financial impact that these matters have had on her, and points out that the first accident occurred in May of 2010, five years ago.

[9]             In all of the circumstances, as I said, although I would generally in circumstances of indivisible injury grant the order sought by the defendant, given the prejudice to the plaintiff and in the circumstances that the fourth action has not been commenced, I find that it would be inappropriate to grant the order sought, and I decline to do so.


Trial Venue Not Changed Due to “Overwhelming Cost of Expert Evidence”

March 9th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a change of venue application due to the ‘overwhelming cost of expert evidence‘.

In today’s case (Gaebel v. Lipka) the Plaintiff was injured in a 2011 collision which occurred in Powell River.  Both the Plaintiff, Defendant and some lay witnesses resided in Powell River.  The trial was scheduled to take place in Vancouver where the majority of expert witnesses involved in the case practiced.  The Defendant argued the trial ought to be moved to Powell River given the location of the majority of lay witnesses.  Master Muir dismissed the application citing a concern of the cost of producing experts to attend the out of town location.  In dismissing the application the Court provided the following reasons:

[9]             As I said, the plaintiff and defendants reside in Powell River. One of the employers resides in Powell River.

[10]         However, there are other witnesses that reside in Nanaimo, Campbell River, Langley, and then there is the question, of course, of experts. The majority of the experts, if not all of them, will be attending from Vancouver…

[14]         The costs of having experts travel to give evidence, even if they are willing or available to do so, is considerably greater than that of lay witnesses.

[15]         There was an issue as to the appropriateness of a jury trial given that the plaintiff resides in Powell River. The plaintiff was concerned that he would not be able to get a jury that was unfamiliar and unbiased with regard to the events in issue.

[16]         The defendants take that by the horns and advise that they will not have this matter tried as a jury trial if it proceeds in Powell River. So that is no longer a consideration.

[17]         The primary position advanced by the defendants was that the costs of the lay witnesses and the convenience to the plaintiff’s employer and others coming from Powell River overwhelmingly overbalance the plaintiff’s right to have the trial in Vancouver.

[18]         The plaintiff disputed that and, as I noted, provided evidence of where other witnesses actually reside. It appears that there are a number of witnesses who, although they may work occasionally in Powell River, do not reside there.

[19]         Given the overwhelming cost of expert evidence, it is my view that the test has not been met and the application is therefore denied.


Failure to Pay Jury Fees Nullifies Jury Notice In Rescheduled Trial

August 5th, 2014

Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, confirming that failure to pay jury fees nullifies  jury notice even when a trial is adjourned.

In today’s case (Blaikie v. Penafiel) the Plaintiff was injured in a collision and sued for damages.  The Defendant filed a jury notice but did not pay the fees in the required time frame prior to the initial trial being adjourned by consent.  The Defendant sought to rely on the jury notice in the subsequent trial and the Plaintiff objected.  The Court found that the initial failure to pay the fees nullified the jury notice.  In reaching this conclusion the Court provided the following reasons:

[2]             The basic facts are that the plaintiff was injured in a motor vehicle accident on March 15, 2008. Liability has been admitted by the defendants. The trial was first set to proceed on December 2, 2013, and jury notices were filed by both the plaintiff and the defendants. On October 18, 2013, jury fees were due and payable. Neither the plaintiff nor the defendants paid the jury fees. On November 22, 2013 the defendants applied to adjourn the trial, and it was ultimately adjourned by consent and rescheduled to September 29, 2014. On January 3, 2014, the defendants purported to file a new jury notice.

[3]             It is my conclusion that the application of the plaintiff should be allowed. In my view, the law is clear that, having failed to perfect their right to a jury by both issuing the jury notice in time and paying the fees as required under the Supreme Court Civil Rules, B.C. Reg. 168/2009 (the “Rules”), the defendants have relinquished voluntarily the right to a trial with a jury.

[4]             I refer to the decision in Clark v. D. & M. McBicycle Shop Ltd. (1992), 75 B.C.L.R. (2d) 133, where the Court concluded:

In this case, the Plaintiffs voluntarily chose to relinquish their right to a trial with a jury by not paying the jury fees. The provisions of the Jury Act clearly provide that a party can maintain their right to a trial with a jury provided that the jury fees are paid. The right to a trial with a jury is exercised when the jury notice is filed and served and belongs to the party filing and serving that notice. That right will be maintained, as long as the court does not order otherwise, or as long as the jury fees are paid.

[5]             The respondent here says that in fact the jury fees will be paid. They will be paid in advance of the new trial date, as provided for under the Rules.

[6]             The defendants relied upon the decision of the Supreme Court of Canada in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490. In my view that decision is completely inapplicable to a right that is extinguished in accordance with the time limits set out in the Rules. In my view, their voluntary relinquishment of the right to a jury was not and cannot be bound by the law of waiver.

[7]             In the circumstances, it is my view that, having failed to pay the jury fees in a timely fashion, the defendant is restrained from filing a new jury notice or paying the fees now.

[8]             I am confirmed in that view by the decision in Hoare v. Firestone Canada Inc. (1989), 42 B.C.L.R. (2d) 237 (C.A.) in which the court held at para. 21:

The learned judge below was, in my view, quite correct in concluding that the opportunity to issue a new notice of trial, when a trial has been adjourned from the original trial date, cannot automatically carry with it a renewed right to issue a jury notice. …


Discovery Continuation Distinct from a Further Examination

August 15th, 2013

As previously discussed, the law sets a heavy burden when a party seeks a second examination for discovery in a lawsuit in the BC Supreme Court.  There is a distinction, however, between a second discovery and a continuation of an incomplete one.  This distinction was discussed in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.

In this week’s case (Li v. Oneil) the Plaintiff was examined for discovery at which various requests for further information were made.  When the Defendant sought to schedule a continuation of the discovery the Plaintiff opposed arguing the heavy burden for a further discovery was not met.  Master Muir granted the application noting the distinction between concluding an incomplete discovery based on outstanding requests and a genuine further examination.  The Court provided the following reasons:

[11]         The application before me, despite being framed as an application for a further discovery, was in reality an application that the examination of the plaintiff continue, both in accordance with R. 7-2(22) and generally, based on production of new material such as the list of special damages, medical records and employment records. In support, he relies on the decisions in Cowan v. Davies, 2008 BCSC 1239, and Dhami v. Bath, 2012 BCSC 2077…

[15]         I am of the view that the examination for discovery was adjourned as contemplated by these rules. Thus, the defendant is entitled to continue its examination for discovery regarding questions left on the record and I am of the view that logically extends to questions based on documents requested at the discovery and subsequently produced.

[16]         As the examination for discovery was not concluded, the heavy onus required to justify a further discovery referred to in Sutherland v. Lucas is not engaged. Given the extensive document production since the examination for discovery was conducted, I am also of the view that the defendant is entitled to continue its examination for discovery based on the new material, whether or not it was produced in accordance with a request left on the record.

[17]         If this was an application for a second examination for discovery I would come to a similar conclusion.

[18]         On a review of the listing of documents produced by the plaintiff since her examination for discovery as set out in the defendant’s notice of application, it is clear that many are documents that could prove or disprove a material fact and that they were in existence prior to her examination for discovery and as such required to be produced under rules 7-1(1) and 7-1(9).

[19]         The defendant submits that is sufficient to constitute a failure to make full and frank disclosure as contemplated in Sutherland v. Lucas and is such as to warrant a second discovery.

[20]         I agree. In my view it does not behoove a party to fail to make complete document disclosure prior to an examination for discovery and then to take the position that the examination cannot be continued when proper disclosure is made.

[21]         Thus, in the circumstances of this case I am satisfied that the defendant did not conclude its discovery and thus the heavy onus referred to in Sutherland v. Lucas does not apply. The defendant is entitled to continue its examination for discovery on the new matters, but is not entitled to examine on matters covered on the first day of examination for discovery.


"Mere Possibility" of Pre-Existing Injury Not Sufficient To Justify Document Disclosure Request

November 19th, 2012

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, further judicially shaping document disclosure obligations under the new rules of court.

In last week’s case (Bains v. Hookstra) the Plaintiff was injured in a 2009 motor vehicle collision.  The Plaintiff agreed to produce his MSP Printout, Pharmanet Records and WCB records from the time of the crash onwards.  The Defendant was not satisfied with this timeframe and sought these records from before the collision.  In support of their application the Defendant produced evidence that the Plaintiff was involved in two collisions in the year prior to the accident at issue in the lawsuit.  The Defendant plead that there was a pre-existing injury but the Court noted this was done in a “very pro-forma way“.

Master Muir ultimately rejected the application finding that evidence of previous collisions leads to no more than “mere speculation” of a pre-existing injury.  In dismissing the application the Court provided the following reasons:

[14]         The applicant must demonstrate a connection between the documents sought and the issues beyond a “mere possibility”: Przybysz v. Crowe, 2011 BCSC 731 at para. 45, referencing Gorse v. Straker, 2010 BCSC 119 at para. 53, and, as was noted by Master Bouck in Edwards v. Ganzer, 2012 BCSC 138, at para. 51, “there must be some ‘air of reality’ between the documents and the issues in the action ….”

[15]         The plaintiff has clearly denied that he was suffering from any pre-existing injury at the time of the accident in question or for two years prior. He has further denied that he made any WCB claim during that two-year period.

[16]         The evidence put forward by the defendant does no more than raise the mere possibility of a prior existing condition. In the circumstances of the plaintiff’s denial, that evidence is insufficient to warrant an order for the production of the documents sought.

[17]         The defendant’s application is therefore dismissed


Making the Doctor Come To You! Defence Medical Exams and Court Ordered Conditions

September 4th, 2012

The BC Supreme Court has the discretion to impose appropriate terms and conditions when forcing a Plaintiff to undergo a Defence Medical Exam in the course of an injury lawsuit.  Unreported reasons for judgement were recently released and shared by Plaintiff lawyer Thomas Harding discussing this and imposing a variety of interesting conditions connected to such an order.

In the recent case (Carta v. Browne) the Plaintiff sued for damages as a result of as 2009 collision.  Prior to this the Plaintiff was injured in a 2002 collision which resulted in him being rendered paraplegic confining him to a wheelchair.

The claimed damages from the 2009 collision included psychiatric injuries.  The Defendant requested a Defence Medical Exam with a psychiatrist in Vancouver.  The Plaintiff objected both to the date proposed and to the location of the examination as the Plaintiff lived in Kelowna and travel was difficult due to his pre-existing disability.

Master Muir agreed that while a psychiatric assessment was appropriate and that the Defendant could choose their expert the Plaintiff was entitled to reasonable accommodation with respect to the timing of the appointment and further that given the Plaintiff’s travel difficulties he was entitled to having the appointment take place in Kelowna.  The Court went on to impose a variety of further conditions providing the following reasons:

[8] …I am satisfied that there are considerations that go beyond simple convenience that dictate that this examination should not be conducted in Vancouver but should be conducted in Kelowna and that it not be conducted on July 30th, which is a time that is more than inconvenient for the plaintiff; it interferes with a scheduled festival that he is planning to attend as a part of a developing business.  Therefore if the defendants are going to insist that the examination be conducted by Dr. Riar, it is my order that Dr. Riar attend in Kelowna at a time convenient to all parties, and I will order that certain conditions be complied with.

[9]  The first condition sought is that the defendants set out exactly what examinations DR. Riar wishes to conduct.  The defendants have indicated that this is a psychiatric examination, that the examination is not to be an invasive one but will consist of conversations between the plaintiff, and I trust that Dr. Riar, being a professional, will confine himself accordingly.  It is of course ordered that ICBC is to pay the reasonable costs of attendance of the plaintiff at the examination.

[10]  I do order that the plaintiff is at liberty to be accompanied by a person of his choice.  This person is to be merely an observer and not participate in or interfere with the exaninaiton in any manner whatsoever.  Dr. Riar will not attempt to get any information from the companion…

[12]  And I so order here that the examination is to be commenced within 30 minutees of the scheduled start time, after which, if the examination has not proceeded, the plaintiff is entitled to depart, and his attendance will be credited as having satisfied the order…

[15]  With respect to item (i) of the response of the plaintiff here, the plaintiff is seeking that there be no surveillance of him during any part of the defence medical examination or during his arrival or departure from there.  In my view this is in the nature of being required to attend court, and it is my view that any such surveillance would be unseemly, and I therefore grant the order.

To my knowledge these reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.