ICBC Law

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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 Wilson’

ICBC Allowed To Raise Late “WCB Defense” On Undertaking to Pay Equivalent Benefits

April 4th, 2018

Interesting reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, allowing a Defendant to make a late amendment to their pleadings to raise a WCB defense but in doing so the Court made the Defendant’s insurer promise to pay equivalent benefits to the Plaintiff should the defense succeed.

In today’s case (Roberts v. Pearson) the Plaintiff was involved in a collision and sued for damages.  More than three years after the crash the Defendant wished to raise, for the first time, the “WCB Defense”, namely an allegation that both parties were in the course of employment at the time of the crash thus stripping the Plaintiff’s right to sue and forcing him to rely on WCB for compensation.

The court granted the amendment.  However the court noted that since the limitation to seek WCB benefits expired the Plaintiff may have their right to sue stripped and be left with no recourse from WCB.  The court made the amendment conditional on the Defendant’s insurer “providing an undertaking that if the Workers Compensation Board determines that it has jurisdiction but refuses to extend the limitation period to allow the plaintiff benefits from the date of the accident, the insurance company will pay the equivalent of any benefits the plaintiff would have received save for the delay in making the application to the Board“.

In finding this result just Master Wilson provided the following reasons:

[32]         In this case, the first the plaintiff was aware that the defendant Pearson was working at the time of the accident was February 6, the same date Pearson advised that he took the position the plaintiff was also working. The s. 10 Defence is only applicable if both the plaintiff and the defendant were working. Even if the plaintiff were working at the time of the accident, he would not have known there was a possible bar to his claim until he became aware the defendant was also working.

[33]         The defendants also say that the undertaking should not be imposed because its imposition in Brzozowski and Eugenio was due to the delay between when the defendant was aware of a possible s. 10 Defence and when the application was actually brought. I do not read those cases that way. If the court’s concern had been the delay in bringing the application to amend the pleadings, the undertaking would presumably have only needed to address the prejudice resulting from when the defendant became aware of the s. 10 Defence and the filing of the application to amend.

[34]         The undertakings in Brzozowski and Eugenio are not so limited. Those undertakings required the defendant insurer to undertake to pay the equivalent of any benefits the plaintiff would have received but for the delay in making the application to the Workers Compensation Board without reference to the application to amend. I conclude that the undertaking was to address the prejudice to the plaintiff caused by the fact that the s. 10 Defence was raised after the expiration of the presumptive limitation period in s. 55(1) of the Workers Compensation Act.

[35]         Finally, the defendants say that if I am inclined to permit the amendment conditional upon the undertaking, that I should instead adjourn the application in order that the defendants have an opportunity to review the plaintiff’s entire employment file, which they say I should order produced at this time. I am not prepared to do this for two reasons:

a)    Production of the employment file would not be determinative of whether the plaintiff was acting within the scope of his employment at the time of the accident; and

b)    The determination of whether or not a person such as the plaintiff was within the scope of their employment is a matter within the sole jurisdiction of the Workers Compensation Board and is thus not something this court has the authority to decide.

[36]         In the circumstances, I am prepared to permit the defendants to amend their response to civil claim, conditional on their insurer providing an undertaking that if the Workers Compensation Board determines that it has jurisdiction but refuses to extend the limitation period to allow the plaintiff benefits from the date of the accident, the insurance company will pay the equivalent of any benefits the plaintiff would have received save for the delay in making the application to the Board, less any benefits paid to the plaintiff pursuant to Part 7.

[37]         The reference to benefits commencing at the date of the accident is to address the plaintiff’s concern that since more than three years has elapsed, there is a risk pursuant to s. 55(3.1) of the Workers Compensation Act that benefits would only be paid from the date of the application. This may or may not be a concern given that the plaintiff did not cease work entirely until 2016. The reference to Part 7 benefits already paid addresses the concern of the defendants as to the potential for double recovery.

[38]         In keeping with the court’s decisions in Brzozowski and Eugenio, costs of this application will be in the cause.


BC Supreme Court – Suggesting Driver At Fault for Collision Based on Past Convictions is “Frivolous”

October 2nd, 2017

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, describing the suggestion of deciding fault for a collision based in part on a motorist’s past driving convictions as ‘frivolous’.

In today’s case (Rezai v. Uddin) the Plaintiff was a pedestrian involved in a collision with the Defendant.  Fault was disputed.  Prior to trial the Plaintiff sought to amend her pleadings to allege “The Defendant Driver had on several previous occasions driven in a manner that put pedestrians and motorists at risk of injury” based on

a.   on Nov. 27, 2008, the defendant was charged with speeding, for which he plead guilty;

b.   on Dec. 4, 2008, the defendant was charged with failing to yield to a pedestrian on a green light, for which he plead guilty;

c.   on December 5, 2008, the defendant was charged with entering an intersection when the light was red for which he plead guilty;

d.   on March 11, 2009, the defendant was charged with speeding, for which he plead guilty;

e.   on January 17, [2015], the defendant was charged with using an electronic device while driving. He failed to appear at the hearing and was deemed not to dispute the charge.

The court rejected this request noting that past convictions likely do not constitute similar fact evidence.  In dismissing the application Master Wilson provided the following reasons:

[22]         The parties agree that there is no British Columbia authority on the issue of whether a pleading alleging similar fact evidence in the context of a prior driving record should be allowed in British Columbia. The defendant refers me to some Ontario authorities in support of his position that such pleadings are improper.

[23]         In Wilson v. Lind, (1985) 35 C.C.L.T. 95, O’Brien J. struck from the pleadings allegations of prior or subsequent impaired driving by the defendant. The application was brought on the basis that the allegations were prejudicial, scandalous or an abuse of process, a rule akin to our R. 9-5(1). At paragraph 12 the court held the following:

Our Courts have held for a long time, and for good reason, that prior negligence of a party is generally irrelevant to proof of subsequent negligence. …

[24]         I note that of the five driving infractions in our case, only two of them are for the same offence, namely speeding. Both were over five years old at the time of the accident. Indeed four of the five convictions were over five years old, with the fifth occurring some months after the accident. The defendant was not issued a violation ticket arising out of the accident.

[25]         The only possible purpose for Similar Fact Pleading here, given the variety of infractions, would be to enable the plaintiff to suggest that the defendant is a generally bad driver based on his driving record. However, this does not inform the analysis of whether or not he was responsible for the subject accident, any more than a clean driving record would tend to absolve him of responsibility.

[26]         It is highly improbable that the trial judge would admit the defendant’s prior infractions as similar fact evidence to support a finding of liability on the part of the defendant. Evidence of prior speeding infractions does not lead to the inference that the defendant was speeding at the time of the accident. Drivers often speed without receiving violation tickets. Proof of speeding does not conclusively establish negligence in the case of an accident. In Hamm Estate v. JeBailey (1974), 12 N.S.R. (2d) 27, evidence of driving record and habits was held to be irrelevant and inadmissible for the purpose of determining liability.

[27]         In Witten v. Bhardwaj, [2008] O.J. No. 1769, the court was asked to strike certain portions of a statement of claim that also involved a pedestrian struck by a vehicle. The plaintiff had pleaded that the defendant had a ‘pattern of reckless conduct’ that included multiple speeding offences. The allegations of speeding in the Witten case were a year before and a year after the accident in issue.

[28]         After reviewing the decision of Wilson v. Lind, Master Haberman said that there were only two purposes for the plea about the defendant’s driving record and held the plea should be struck regardless of which applied:

The plaintiff’s purpose in including these additional allegations about Paawan’s driving patterns could only involve one of two issues: 1) to enable the plaintiff to ask the court to rely on Paawan’s driving record when assessing whether he was likely speeding at the time of this accident; or, 2) to provide “colour” for the court, so that Paawan will be viewed as a bad driver generally, and hence, be seen as likely responsible for this accident. If the former, what the plaintiff seeks to plead in the impugned portion of paragraph 15 is clearly evidence, not material fact, and on that basis should be struck. If the latter, it is frivolous and should be struck.

[29]         I agree. The Similar Fact Pleading is either evidence and therefore improper to include in a pleading, or is intended to suggest that the defendant is generally a bad driver and therefore he is more likely to be the cause of the subject accident, in which case it is frivolous.