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 ‘Mr. Justice Sigurdson’

$50,000 Assessment for 6 Years of Back Pain

February 27th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries arising from a vehicle collision.

In today’s case (Harder v. Poettcker) the Plaintiff was involved in a 2009 collision.  The matter proceeded to jury trial where a jury found the Plaintiff 85% at fault for the crash with the Defendant shouldering the rest of the blame.

The Plaintiff suffered a back injury.  He suffered from pre-existing back problems and fibromyalgia.  The court found that while the Plaintiff’s symptoms lingered at the time of trial after the 6 year mark these symptoms were due to the pre-existing issues.  In assessing non-pecuniary damages at $50,000 Mr. Justice Sigurdson provided the following reasons:

[77]         The plaintiff suffered a moderate soft tissue injury to his lower back and neck in the motor vehicle accident. Those soft tissue injuries were more painful and discomforting to the plaintiff than they otherwise would have been because he has a troublesome back that had in the past required surgery on two occasions.

[78]         However, the evidence does not disclose that the accident caused the need for the plaintiff’s back surgery. In that respect I prefer the evidence of the surgeon Dr. Splawinski to the evidence of the rheumatologist.

[79]         I expect that Mr. Harder became more uncomfortable as a result of the accident and decided to have the surgery privately. I think that he had the surgery more quickly than he otherwise would have had it because of the soft tissue injuries he suffered. That finding is relevant to whether the cost of the private surgery with a shorter waiting list is recoverable.

[80]         I have also concluded that on the evidence the plaintiff has not demonstrated that his fibromyalgia was brought on by the trauma in the motor vehicle accident. However, like his pre-existing back condition, it was an aspect of his pre-existing condition that on the evidence waxed and waned in any event and I think was an aspect of his condition that probably made his injuries from the accident more uncomfortable and debilitating when he had fibromyalgia.

[81]         How long did the injuries from the accident to his lower back and his neck persist?

[82]         Dr. Shuckett thought (as she described in 2015) that they probably continued as he had probably achieved maximum medical improvement. Dr. Splawinski thought that he suffered a soft tissue injury to his neck and lower back and that the symptoms of neck and lower back pain settled down relatively quickly. Dr. Wade described his injury as a mild to moderate soft tissue injury.

[83]         I find that the injuries were soft tissue injuries suffered by the plaintiff that largely resolved by trial more than six years after the accident and any continuing discomfort that Mr. Harder suffers is largely related to his pre-existing back problem or his fibromyalgia which I find was not caused by the accident. The discomfort and pain suffered by Mr. Harder during the recovery period was however more significant than otherwise because they occurred to a man with a troublesome back and waxing and waning fibromyalgia. The defendant concedes that there was at least an acute period of discomfort and restricted activity.

[90]         Considering all of the evidence, I assess the plaintiff’s non-pecuniary damages at $50,000.


Retrial Ordered After “Inconsistent” $765 Jury Award in Personal Injury Claim

November 27th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a retrial after a jury awarded special damages but nothing for non-pecuniary loss in a personal injury lawsuit.

In today’s case (Harder v. Poettcker) the Plaintiff proceeded to jury trial after alleging injuries in a collision.  The jury found the Plaintiff 85% at fault for the crash and awarded a total $5,100 in damages, which were all based on out of pocket expenses and awarded nothing for non pecuniary damages.  After applying the split of fault this left an award of $765.

The presiding judge found a new trial was necessary as it was inconsistent to award money for special damages yet nothing for non-pecuniary loss for the injuries underlying the need for those damages.  In reaching this conclusion Mr. Justice Sigurdson provided the following reasons:

17]         Notwithstanding the importance of attempting to enforce a jury’s verdict and the fact that even apart from the 85% contributory negligence award against the plaintiff, the award was at best either very modest or nil, I am driven to conclude that to award nothing for non-pecuniary damages but award $1,200 for special damages is an inconsistent verdict.

[18]         Although a possible rationalization of the award is that the jury intended to award the plaintiff say $400 for non-pecuniary damages but rounded it down in accordance with my instructions to zero, I reject that. I find the jury intended to award nothing for non-pecuniary damages. Even if the jury intended to award only a nominal amount for non-pecuniary damages, I think that would still create an inconsistent verdict: see Le v. Luz, 2003 BCCA 640.

[19]         I also reject the submission that the jury verdict could properly be interpreted to mean that they intended to award something for non-pecuniary damages under a pecuniary heading.

[20]         Although the defendant argues forcefully that there was coherence and consistency in the jury verdict, I respectfully disagree. I find that the jury award, although small from the plaintiff’s perspective, is inconsistent and judgment cannot be entered on the defendant’s motion.

[21]         The question then arises whether I can and should sever the issues of liability and damages and enter judgment on liability for the plaintiff including the contributory negligence finding and direct a retrial only on damages, or whether I should order a retrial of the entire case.

[22]         I have concluded that I am bound by the considered decision of my brother Weatherill J. in Kalsi. Although severance may be ordered in many cases before trial, this is not an appropriate case to have issues that are largely dependent on credibility decided by different triers of fact.

[23]         Given that there must be a retrial, how should that take place? A further trial by a new jury would be months, or a year or more, ahead. The mode of trial by jury was at the plaintiff’s request but now he wants the retrial by judge alone. The plaintiff now consents to and requests a retrial being conducted before me.

[24]         I think for a number of reasons that the retrial should be before me. I heard all of the evidence and the submissions of counsel. Given the fact that it would be a lengthy time until the matter is retried before a jury, and given the age of the plaintiff and the question of cost to the parties, I think it is appropriate that I conduct a retrial based on the evidence I have heard and I so order. Accordingly I exercise my discretion under the governing rule that the retrial take place before me without a jury.

[25]         I have heard the submissions of counsel and a recording of those submissions is available to me to refresh my memory. Counsel may make further submissions in writing on liability and damages provided they do not repeat what I have already heard in the submissions to the jury. I ask that the plaintiff file his argument within three weeks and the defendant his argument within three weeks following, with the plaintiff having a right of reply within a week. I will then hand down a written decision.


A Drunken Push Leads to Over $500,000 in Consequences

October 1st, 2015

In a stark example of the profound consequences that can come from a modest confrontation, damages of $553,000 were ordered to be paid after an intoxicated groom to be pushed a man that was teasing him.

In today’s case (Robinson v. Bud’s Bar Inc) the Defendant, a groom to be who was “exotically dressed and wearing a ball and chain” following a bachelor party, was approached by the Plaintiff and teased about his upcoming marriage.  Both parties were intoxicated.  The Defendant responded by pushing the plaintiff who fell down, struck his head on the ground, and suffered a permanent brain injury.

The Court assessed damages at $790,000 but then reduced these by 30% for the Plaintiff’s contributory negligence and provocation.  In reaching this split of fault Mr. Justice Sigurdson provided the following reasons:

[140]     I find on the evidence that both men were intoxicated. I find that the plaintiff came up to the defendant Leelund Turner and teased him and persisted to do so despite being told to leave and being asked by his friend or friends to get going. I do not conclude that the defendant Leelund Turner held the plaintiff before pushing him as counsel suggested. I find the plaintiff had a reasonable opportunity to extricate himself from the situation. The plaintiff could easily have walked away but the plaintiff persisted to tease Leelund Turner. The push was sudden and careless but it followed the Leelund Turner’s plea to Mr. Robinson to leave him alone.

[141]     I find that in these particular circumstances the defendant Leelund Turner has satisfied me that the plaintiff was both contributorily negligent and provoked the negligent push. In these particular circumstances the concepts overlap to a degree. While I recognize that alcohol consumption is not itself negligence, here I find that the plaintiff was intoxicated to the extent that he persisted to be rude to the defendant Leelund Turner in close quarters despite being told to back away by Leelund Turner and being told by his friend that he should leave. I find that for Mr. Robinson to persist as he did to tease the defendant Leelund Turner at close quarters, he was partly at fault for the injury.

[142]     I think that the conduct of the plaintiff also amounted to provocation. While the plaintiff’s counsel says that the conduct does not meet the definition of provocation, I think in the circumstances of this case that it can easily be inferred from the evidence that the persistence of the plaintiff at close quarters that was rude and aggressive caused the defendant Leelund Turner to momentarily lose his power of self control and push the plaintiff abruptly, forcibly and carelessly away, resulting in the fall.

[143]     While I do not find that the defendant Leelund Turner has proven that had Mr. Robinson not been intoxicated, the drastic results of the fall would have been avoided, I think that Mr. Robinson must bear some responsibility because of his fault in approaching the defendant Leelund Turner and persistently teasing him at close quarters.

[144]     Accordingly although I find the defendant Leelund Turner liable, I find that both contributory negligence and provocation have been proven by the defendant Leelund Turner and that the damages incurred by the plaintiff as a result of the defendant’s negligence must be reduced by 30%.


$65,000 Non-Pecuniary Assessment for Lingering Soft Tissue Injuries Following Four Collisions

June 27th, 2014

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for soft tissue injuries following multiple collisions.

In today’s case (Jiwani v. Borodi) the Plaintiff was involved in four collisions.  He was not at fault for any of these.  The initial collision caused soft tissue injuries to his neck and back.  The back injury was aggravated by some of the subsequent collisions and his symptoms lingered to the time of trial.  In assessing non-pecuniary damages at $65,000 Mr. Justice Sigurdson provided the following reasons:

[45]         I conclude that the neck problems and the headaches resolved within about six months of the first accident, and that the back pain continues to some degree now five years after the first and most significant accident. 

[46]         I find that the back pain is soft-tissue related and has affected the plaintiff’s mood, his ability to sleep, and to some degree, his disposition and in turn his relationship with his family and friends, including his nephew.  I think that the accident has had an impact on the plaintiff’s family and social life and restricted the pleasure he had received from his friends and family in the past.  The burden is on the plaintiff to prove the extent of his injuries.  While I am persuaded that the plaintiff still has lower back pain, I am not satisfied that he is as seriously injured as he contends.  The plaintiff’s soft tissue injury to his lower back has persisted but I find that in due course any back pain will improve and if it persists will be of a type that causes modest discomfort and requires him to change positions and not sit for too long. 

[47]         That said, I am not persuaded that the plaintiff is completely pain free.  I think that the plaintiff would benefit, as suggested by Dr. Grypma, from an active rehabilitation program. ..

52]         Given my findings and after considering the authorities relied upon by the parties and the factors mentioned in Stapley, the plaintiff is entitled to the sum of $65,000 for non- pecuniary damages.


Dislodged Breast Implant and Voice Injury Result in $120,000 Non-Pecuniary Assessment

April 1st, 2014

Reasons for judgment were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for breast implant disruption and a voice injury following a collision.

In last week’s case (Giczi v. Kandola) the Plaintiff was involved in a 2008 collision.  The Defendant admitted fault.  The collision resulted in chronic soft tissue injuries, a dislodged breast implant requiring surgical correction and muscle spasms leading to voice disruption.  In assessing non-pecuniary damages at $120,000 Mr. Justice Sigurdson provided the following reasons:

[120]     In the instant case, the subject accident caused the plaintiff injuries, including: soft tissue injuries to her neck, jaw, and upper back which caused her chronic pain, functional thoracic outlet syndrome, and damage to her breast implant necessitating surgery months later.  The plaintiff’s injuries have resulted in symptoms that are significantly worse than her pre-accident condition and have affected her ability to cope and function.

[121]     I find the plaintiff suffers from a chronic pain condition which was caused by the subject accident.  Not only is the condition painful in the neck, arm and jaw, but the accident dislodged a breast implant requiring further surgery and a painful period of recovery. The chronic pain condition has also had a negative impact on the plaintiff’s relationship with her partner and the intimacy that the couple enjoyed. 

[122]     In addition, the accident has also caused difficulty in the plaintiff’s singing from muscles spasms as a result of her injury.   I find the accident’s effect on the plaintiff’s ability to sing has been profound, given the importance of singing to the plaintiff throughout her life.  The expert evidence of Ms. Davies and Dr. Morrison convinces me that her voice is impaired.  I think that this is a significant factor apart from its effect on her income earning capacity.

[123]     In all the circumstances, I find that the appropriate award of general damages is $120,000. 

 


BC Supreme Court Confirms No Tax Deductions For Depleted Sick Bank Damages

November 5th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, confirming that where a Plaintiff proves damages for used up sick bank hours due to a collision related injury, the recovered damages will not be subject to income tax deductions (as is done with past wage loss awards).

In the recent case (Gormick v. Amenta) Mr. Justice Sigurdson made it clear that such damages will not be subject to income tax deductions and Plaintiff’s are entitled to recover damages on a gross basis.  In reaching this decision the Court provided the following reasons:

[5]             The authorities support awarding the gross amount for loss of sick bank credits…

[9]             As is evident from DeGuzman, treating loss of sick bank entitlement as past wage loss undercompensates the plaintiff because deductions could be taken from him or her twice.  This is consistent with Ballance J.’s characterization of loss of sick bank entitlement as a “potential future loss” not in the “character of past wage loss”.

[10]         In addition, the following cases have adopted Bjarnason without further comment in awarding the gross amount for loss of sick bank entitlement:

·                 Chingcuangoco v. Herback, 2013 BCSC 268 at paras. 128-133;

·                 Kilian v. Valentin, 2012 BCSC 1434 at paras. 125-127;

·                 Chalmers v. Russell, 2010 BCSC 1662 at para. 86;

·                 Pham-Fraser v. Smith, 2010 BCSC 322 at para. 90; and

·                 Rizzolo v. Brett, 2009 BCSC 732 at para. 67.

[11]         Contrastingly, the defendant in the instant case relies on Redl v. Sellin, 2013 BCSC 581, in which the court awarded the net and not the gross amount in respect of damages for lost benefits (including paid sick days, paid time off work for medical appointments and lost vacation credits).

[12]         In Redl, the court rejected the plaintiff’s position that “as full repayment of benefits to her employers appears to be required, the net loss calculation should not be applied to the total subrogated portions of the income loss claim” (at para. 33).  In this regard, the court said, at para. 34:

It is clear under the Insurance (Vehicle) Act that the defendant’s liability for all income losses – regardless of whether a subrogated interest is claimed by an employer or an insurer – is for the net amount only.  The rights of an insurer or employer claiming a subrogated interest in an employee’s damages claim are no greater than those of the employee.  The entire gross amount of Ms. Redl’s past income loss of $37,360.05 is subject to a deduction for taxes.  How this impacts Ms. Redl’s repayment obligations is a matter between her and her employers.

[13]         However, Redl make no note of Bjarnason or the other cases following that decision.  It appears that those cases were not brought to the attention of the judge deciding Redl. 

[14]         Further, the proposition which the defendant in the instant case extracts from Redl – namely, that “[t]he rights of an … employer claiming a subrogated interest in an employee’s damages claim are no greater than those of the employee” – is not inconsistent with Bjarnason.  Bjarnason holds that an employee has the right to the gross amount of damages in respect of loss of sick bank entitlement.  Accordingly, the employer claiming a subrogated interest in the gross amount of those damages is not claiming a greater right than that of the employee.

 


$90,000 Non-Pecuniary Assessment for Neck Injury Requiring Surgical Fusion

June 27th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a neck injury requiring surgical intervention.

In this week’s case (Gormick v. Amenta) the Plaintiff, a “young, athletic police officer” was injured in a 2008 collision.  Liability was admitted by the Defendant.  The Plaintiff suffered a neck injury which required disc removal and fusion at the C5-C6 level.  The Plaintiff had pre-existing issues to her neck and the Court found that there was a 10% chance surgery would be required even absent the collision.  The Plaintiff was left with some residual symptoms but the Court found her residual earning capacity was not impacted.  In assessing non-pecuniary damages at $90,000 Mr. Justice Sigurdson provided the following reasons:

[71]         In sum, the plaintiff had some neck pain and restricted motion prior to the accident that did not impair her work or ability to enjoy life to any measurable degree.  Because of her underlying condition, which was largely asymptomatic, she suffered injuries in the accident that were extremely painful and required surgery.  The surgery, though successful, has resulted in stiffness and restricted motion that appear to have affected the strength of her throwing arm and her ability to lift.  Although surgery was not a likely option for her pre-existing condition, now that she has had it she is at 25% risk of suffering adjacent segment disc disease within 10-15 years.

[72]         In all the circumstances, I assess general damages at $90,000.  In doing so, I also take into consideration the pain and suffering that she will suffer in the future as a result of her injuries that were caused by the accident. …

116]     The plaintiff is a very capable police officer.  She has done well in her career and I expect, given the evidence of Sergeant Arruda, that she will continue to do well.  She has had two children and has maintained an active busy life.  I recognize that she appears to have some symptoms that persist, but to the extent they were caused by the motor vehicle accident, I have included that in my assessment of general damages.  I expect that her patrol work may make her uncomfortable due to stiffness or lack of range of motion, but I am not satisfied that the plaintiff has demonstrated that the injuries in the accident have given rise to a real and substantial possibility of a loss of income or capacity in the future, and as such, I make no award under this head. 


From Medical Marijuana to Surveillance and More

March 1st, 2013

As readers of this blog know, I often extract one point of interest when creating case summaries and when more than one point is noteworthy I create multiple point specific posts.  I do this because it makes it easier to search archived posts by case specific topics.

Reasons for judgement were released this week with so many nuggets it would be too burdensome to address them each individually so please excuse the multi point summary.   In short this judgement showcases video surveillance successfully attacking a claim, credibility findings, comments on self-serving medical appointments, claimed care costs for medical marijuana and other points of interest.  The entire judgement is worth a read.

In this week’s case (Datoc v. Raj) the Plaintiff was involved in an intersection t-bone collision.  Both motorists claimed they had a green light which simply could not be true.   The Court found that despite credibility problems with the Plaintiff his account of the collision appeared more reliable and the Defendant was found fully at fault.  The Plaintiff  claimed damages of over $450,000.  The Court rejected most of these claimed damages and in doing so illustrated the following points:

Video Surveillance Successfully Used

Video evidence was presented which documented inconsistent presentations of the Plaintiff in court versus out of court.  Mr. Justice Sigurdson provided the following comments in finding the plaintiff was “significantly exaggerating” his claims:

[103]     I was shown video surveillance evidence of the plaintiff taken over a number of days in the months shortly before the trial.  These videos showed the plaintiff getting in and out of his car, driving his car and taking photographs as a real estate photographer.  This included squatting, and holding a tripod above his head to take pictures.  He moved fluidly, in and out of the driver’s seat, apparently without discomfort.  He and his counsel acknowledge a dramatic difference between his presentation on the video and his presentation in court.  The plaintiff explains the difference by saying that he is capable of doing what he does on the surveillance video only because of medical marijuana he takes in the morning and at the end of the day.  However, the plaintiff introduced no medical expert report to support this contention, only his evidence that this was the effect on him of his taking medical marijuana.  I did not find persuasive his evidence that marijuana would have the dramatic and persisting effect that he asserts.  The video surveillance showed him during different times of the day, not simply in the morning (shortly after he would have ingested a marijuana cookie), but into the afternoon as well, and his condition appeared to be no different no matter what the time of day.

[104]     Generally, surveillance evidence can be relatively unhelpful to assess the condition of plaintiffs as to whether they are performing activities without pain, or whether their ability to perform activities is because of use of pain medication, or stoicism, or other factors.  However, the difference in this case between the manner in which the plaintiff presented himself in court and how he was shown on the surveillance video was dramatic.  I did not find the plaintiff’s explanation persuasive that the dramatic difference was from his taking marijuana while working, and not taking it while in court…

[106]     I have concluded, based on a consideration of all of the evidence, that the plaintiff is significantly exaggerating the extent of his injuries.

Medical Marijuana

The Plaintiff claimed damages of $20,000 for the cost of medical marijuana.  While damages for medical marijuana are not unprecedented in British Columbia, a common analysis involves a plaintiff’s recreational interest in marijuana.  The defendant pursued such an analysis with apparent success.  In rejecting these claimed damages the Court provided the following analysis:

[60]         On cross-examination, the plaintiff was asked about his posting on the internet under the name Nismo200sx in light of his comment that he had only taken marijuana once or twice before.  Although those postings suggested an interest in marijuana beyond simply as a treatment for his back pain, the plaintiff denied any recreational interest in marijuana…

[112]     The plaintiff said that prior to his prescription for medical marijuana, he tried marijuana once or twice, but he did not care for it.  However, there is evidence to suggest the plaintiff’s interest in marijuana is more than purely for medical treatment purposes.  His internet postings suggest that.  Given my concerns about the reliability of the plaintiff’s evidence, and in the absence of expert evidence, I am not persuaded that medical marijuana is required by the plaintiff to treat his injuries…

[120]     The plaintiff seeks future care costs for medical marijuana of $200 per month or $2,400 a year for a suggested award of $20,000.  The evidence does not support the claim that medical marijuana is reasonably necessary: see Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.).  As such, I award nothing for the cost of future care.

Frequency of Doctor Visits

The last point of interest deals with the Plaintiff’s frequency of doctor’s visits  I have canvassed this topic previously.  In this week’s case the Plaintiff pointed to having 128 doctor visits as supporting his claim for injury.  The Court, however, found that there was no reasonable justification for this and instead came to the conclusion that the Plaintiff was simply papering his claim.  The following observation was made by Justice Sigurdson:

 [65]         Up to June 2012, the plaintiff saw Dr. Irene Chan, a general practitioner, 128 times for his injuries.  From July 8, 2008 to June 2012, the complaints he made to her were virtually the same on each occasion.  Dr. Chen was not called as an expert witness but testified simply with respect to some of the observations she made…

[107]     It is difficult to know what to make of the fact that the plaintiff attended his general practitioner for 128 visits and appears to have repeated his symptoms almost without change on each visit.  He explained in his testimony that he went to his doctor to report changes in his condition; however his doctor noted each of his attendances with the plaintiff reporting no changes.  The evidence left me with the impression that the plaintiff was creating a record of his injuries for his claim as there appears to be no reasonable medical justification for the number of attendances before his family doctor.  Rather than supporting his credibility, this evidence of the numerous attendances on his family doctor left me with the opposite impression.

 


Litigation Guardians Are Not Immune From "Loser Pays" Costs Consequences

September 20th, 2012

Update September 25, 2013 – The below decision was upheld by the BC Court of Appeal in reasons released today

_________________________________________________________

I’ve written many times about the BC Supreme Court’s “loser pays” system which generally requires a losing litigant to pay for the winner’s costs and disbursements.  If a lawsuit is started on a child’s behalf and on reaching adulthood they take over the claim themselves can the former litigation guardian still be exposed to loser pays costs consequences?  The answer is yes as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.

In this week’s case (McIlvenna v. Viebeg) a lawsuit was commenced on behalf of an infant plaintiff in 2003.  By 2009 the Plaintiff was an adult and took over the prosecution of his claim himself by filing an affidavit of attainment of majority.  The matter proceeded to trial and the claim was ultimately dismissed.  The Defendant was awarded costs.  An issue arose as to whether the Plaintiff or the previous litigation guardian were liable to pay these.  The Court held that the Litigation Guardian was liable for costs up until the Plaintiff reached the age of majority and the Plaintiff was liable from that point onward.   Mr. Justice Sigurdson provided the following reasons:

[17]         Although Bird J.A.’s comments on the liability of litigation guardians for costs in Miller were dicta, they were considered dicta.  Bird J.A. concluded that an infant ratifying the action after attaining the age of majority does not inherit and replace the litigation guardian’s liability for costs.  I have seen nothing in the authorities that lends support to the position that a defendant’s possible entitlement to costs from a litigation guardian disappears when the infant reaches majority.  I expect that subsequent to Miller, litigation guardians starting actions (and filing affidavits at the time) understood their potential liability for costs and the fact that it continued at least up to the infant’s majority.  Rule 20-2(12) and (13) do not suggest that the filing an affidavit upon attaining the age of majority removes any possible past liability of the litigation guardian for costs. 

[18]         While it is true that a possible adverse costs order may deter a person from suing as a litigation guardian, there are also policy reasons that support awarding costs in favour of successful defendants.  In any event, I think the underlying law has been clear for more the 50 years that a litigation guardian assumes potential liability for costs if he or she starts an action as a litigation guardian and is not successful. 

[19]         Accordingly, my conclusion is that Shawne McIlvenna, the plaintiff’s former litigation guardian, is responsible for the costs that I have already ordered, up to February 27, 2009, when the plaintiff filed his affidavit of majority. ..


Court Holds Government Not Required To Reimburse Penalties Collected Under BC’s Unlawful Impaired Driving Scheme

July 13th, 2012

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, addressing whether the monetary penalties paid via BC’s Charter violating impaired driving scheme need to be repaid.

Last year Mr. Justice Sigurdson struck down BC’s aggressive drunk driving law finding BC’s ARP scheme unjustifiably violated individuals section 8 Charter rights.  In today’s judgement (Sivia v. Superintendent of Motor Vehicles) the Petitioners asked the Court to reimburse “all penalties and other related costs such as the payment in connection with the remedial program, the payment in connection with the impoundment of the motor vehicle, the payment of a hearing fee, and the driver’s licence reinstatement fee.

Mr. Justice Sigurdson refused to grant this remedy holding as follows:

[114] I have found that the petitioner’s argument that the declaration of invalidity under s. 52 should have retroactive effect, must fail.  The decision in Sivia #1 that parts of the ARP regime violated s. 8 of the Charter and were, therefore, unconstitutional, represented a substantial change in the law as described in Hislop.  Further, the additional Hislop factors, on balance, weigh in favour of a prospective only application of the declaration.

[115] Although the prospective declaration of invalidity answers the majority of the petitioner’s additional or alternative claims, I have further found that even when assessed independently, the petitioner’s additional or alternative claims must also fail.

[116] With respect to the petitioners’ contention that they are entitled to Charter damages under s. 24(1), I have found that it would not be “appropriate and just” to order such damages as the government, in adopting the ARP regime and applying it to the petitioners and collecting monies from them, did not engage in any misconduct or bad faith actions.

[117] With respect to the arguments that the monies were collected under an invalid law enacted in bad faith, and with respect to the claim for restitution of the monies collected on the basis of the principle of unjust enrichment, I have found that the doctrine of qualified immunity provides a complete defence to both of these claims.

[118] With respect to the argument that certain of the monies collected represent taxes which were unlawfully collected, I have found that those monies are regulatory charges, not taxes, and are not recoverable under theKingstreet decision.

[119] Finally, I have found that as a result of the prospective only application of the declaration of invalidity, any petitioner with any outstanding fees, penalties or suspensions is still subject to paying/serving such fees, penalties, and/or suspensions.

[120] For these reasons, I have concluded that the petitioners are not entitled to the personal and monetary remedies that they seek.  The parties may arrange to appear before me to discuss the issue of costs, or if they agree, they may file written submissions on that issue.