ICBC Law

Further to my previous posts on this topic, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, disallowing the cost of a private MRI as a special damage in a personal injury claim.

In last week’s case (Madsen v. Bekker) the Plaintiff was injured in a 2006 collision.  In the course of the Plaintiff’s lawsuit the Plaintiff obtained three private MRI’s.  The Plaintiff advanced the costs of these MRI’s as special damages at trial.  In declining to compensate the Plaintiff for these expenses Mr. Justice Truscott provided the following brief reasons:

[192] I decline to award anything for the three MRIs because the plaintiff decided to do these on his own, when Dr. Hobson told him that they were not medically indicated. In the circumstances there is no evidentiary basis for such an award.

It is worth pointing out that the costs associated with Private MRI’s can be recovered in a personal injury claims if a medical practitioner gives evidence that the expense is reasonably incurred for a valid medical purpose related to the claim.

Reasons for judgment were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for a long-standing sacroiliac joint injury.

In last week’s case (Madsen v. Bekker) the Plaintiff was injured in a 2006 collision.  He suffered various injuries the most serious of which was a strain to his sacroiliac joint.  His symptoms largely recovered although mildly continued through trial and were expected to linger into the future.  In assessing non-pecuniary damages at $40,000 Mr. Justice Truscott provided the following reasons for judgement:

154] I accept the opinion of Dr. McGraw that the plaintiff sustained a strain of his left sacroiliac joint and I reject the opinion of Dr. Watt that it was rather a soft tissue injury to his left iliopsoas muscle and his left piriformis muscle.

[155] Dr. Watt may not have diagnosed a sacroiliac joint strain but he was not prepared to disagree with Dr. McGraw’s diagnosis of that.

[156] Dr. McGraw proved his diagnosis through the image-guided diagnostic block of the joint on March 3, 2009 and October 22, 2009.

[157] In his report of July 24, 2008 Dr. McGraw diagnosed grade 1 soft tissue injury to the lower back area and Dr. Watt in his report of February 9, 2011 also described complaints of non-radiating low back pain at the time of his assessment of January 17, 2011. To that extent the diagnosis of both doctors is similar…

[159] I am prepared to accept some present minor low back injury related to a strain of the left sacroiliac joint causing mild pain at times of prolonged lifting, bending or crouching but I also do not consider that this pain has been disabling to any of the plaintiff’s activities at all…

[163] Although Dr. McGraw says that consideration could be given to a surgical fusion or arthrodesis of the left sacroiliac joint if the joint pain is not managed in the long-term by conservative treatments such as injections, or doing nothing and becoming fit, he does not recommend surgical intervention.

[164] With this opinion of Dr. McGraw that I accept I do not consider the chance of surgical intervention to be at any level sufficient for an award of compensation.

[165] I am satisfied from all the evidence that the plaintiff’s effort to become more fit through his own exercise routines is working sufficiently to resolve the strain in his left sacroiliac joint and any related low back soft tissue injury.

[166] I decline to apply any adverse inference against the plaintiff for failing to call Dr. Feldman, a physiatrist who attended on him. The plaintiff says he was simply told, as Dr. Parkin had told him, to rest. Even if I were to apply any adverse inference I would not know what that inference would be other than the opinion would be no different than all the evidence I have heard.

[167] I am prepared to accept that the plaintiff’s complaints have continued for over four years, but at a mild level, and I consider an appropriate award of non-pecuniary damages for pain and suffering and loss of enjoyment of life should be in the amount of $40,000.

For other recent BC Caselaw dealing with non-pecuniary damages for sacroiliac joint injuries you can click here to access my archived posts.

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for a shoulder injury caused by a motor vehicle collision and subsequently aggravated by an at-work incident.

In last week’s case (Kaleta v. MacDougall) the Plaintiff was injured in a 2008 collision.  Fault was admitted by the Defendant.  As a consequence the Plaintiff suffered from “chronic neck and left shoulder pain”.  The symptoms were due to soft tissue injury and there was a “moderate probability” for long lasting symptoms.

Prior to trial the Plaintiff aggravated his shoulder in an at-work incident.  He made a WorkSafe Claim as a consequence.  ICBC argued the damages need to be reduced as a result.  Mr. Justice Truscott disagreed relying on the BC Court of Appeal’s decision Bradley v. Groves.  In assessing damages at $80,000 the Court provided the following useful comments:

[33] In Dr. McAnulty’s last assessment on March 3, 2011 the plaintiff again reported with chronic neck and left shoulder pain, worse at night. His prior knee and back pain had resolved.

[34] Dr. McAnulty’s diagnostic impression at the time was of chronic myofascial pain post motor vehicle accident affecting the left neck and shoulder and the plaintiff was advised to continue with activity as tolerated.

[35] In his summary and conclusions in his report of March 6, 2011, Dr. McAnulty says that despite the many interventions the plaintiff still remains symptomatic and now has more likely than not reached the point of maximum medical improvement, especially since two and one-half years have elapsed since the motor vehicle accident. He says the plaintiff may well suffer chronic myofascial pain in the future…

[57] I accept the opinion of Dr. McAnulty that the workplace shoulder injury of June 11, 2009 was an aggravation of the shoulder injury suffered in the motor vehicle accident which remained symptomatic, and was not a new injury unconnected to the previous injury…

[61] As a matter of law the defendant remains responsible for continuing problems with the left shoulder after June 11, 2009 (Bradley v. Groves, 2010 BCCA 361)…

[63] It may be concluded from all this that the prospect of a chronic injury in the nature of a permanent or indefinite injury is only a possibility, but in Dr. McAnulty’s report he also says that the patient has more likely than not reached the point of maximal medical improvement and that statement reflects a standard of probability and not possibility.

[64] It is my conclusion that Dr. McAnulty considers the shoulder pain to be a chronic or long-lasting pain as a moderate probability, and I will assess the plaintiff’s damages on that basis…

[70] I award the plaintiff $80,000 for general damages for pain and suffering and loss of enjoyment of life.

Useful reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, finding that it is an ‘abuse of process‘ pursuant to Rule 9-5(1)(d) for a Defendant to deny the issue of liability in a personal injury lawsuit after they have been convicted of careless driving as a result of the same collision.

In this week’s case (Ulmer v. Weidmann) the Plaintiff’s husband was killed when his motorcycle was struck by a vehicle operated by the Defendant.  The Plaintiff sued for damages pursuant to the Family Compensation Act.

Following the collision the Defendant was charged with “driving without due care and attention” under section 144(1)(a) of the BC Motor Vehicle Act.  He contested this charge but ultimately was found guilty following trial in the BC Provincial Court.

The Defendant then denied fault for the crash in the Wrongful Death lawsuit and claimed the Plaintiff was partly responsible.  Mr. Justice Truscott rejected this argument and found the Defendant solely responsible for the fatal collision.  The Court went further and found that while a party convicted under s. 144(1)(a) of the Motor Vehicle Act can argue an opposing motorist is partly to blame for a crash, it is an abuse of process for the convicted party to outright deny the issue of fault.  The Court provided the following useful reasons:

[83]         In my opinion the finding of driving without due care and attention in Provincial Court was akin to a finding of negligence against Mr. Weidmann, because his manner of driving was found to have departed from the standard of a reasonable man and he failed to avoid liability by proving he took all reasonable care in the circumstances.

[84]         I agree with plaintiff’s counsel that it was an abuse of process for the defendants to deny full liability in their statement of defence as this constituted an attempt to re-litigate the findings of the Provincial Court that were necessary for Steven Weidmann’s conviction of driving without due care and attention. This was an attempt to undermine the integrity of the adjudicative process which is not to be allowed.

[85]         I do not conclude however that the findings essential to Mr. Weidmann’s conviction in Provincial Court prevented Mr. Weidmann from alleging contributory negligence against Mr. Ulmer in this action…

[91]         While I have decided that there was no negligence on Mr. Ulmer contributing to the collision, based upon the evidence that I have accepted, I cannot say that this was a defence advanced in bad faith for the ulterior purpose of emotionally disturbing the plaintiff and putting pressure on her to settle at a figure favourable to the defendants.

[92]         Although I have concluded that it was an abuse of process by the defendants to deny liability completely, they were not guilty of an abuse of process in maintaining the defence of contributory negligence of Mr. Ulmer at all times.

The Plaintiff was ultimately awarded damages for her accident related losses and these included $10,000 for ‘nervous shock’.  Paragraphs 97-215 of the Reasons for Judgement are worth reviewing for Mr. Justice Truscott’s thorough review of the law of nervous shock claims.

(Update:  The case discussed in the below post went to trial on February 15, 2011 with reasons for judgement released on February 18, 2011 with Mr. Justice Truscott finding that no binding settlements were entered into).

As previously discussed, lawyers act as agents for their clients and can enter into a binding settlement even if their client did not instruct the lawyer to do so.   (This, of course, would be improper and I address this at the bottom of this post).  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, further demonstrating this reality.

In this week’s case (Johnson v. Wells) the Plaintiff was involved in 2 motor vehicle collisions.  She hired a lawyer to deal with one of these claims.  In the lawyers dealings with ICBC he settled the claim that he was retained for apparently with his clients instructions.  However, a disagreement arose as to whether the settlement covered the second claim.   ICBC alleged that the lawyer entered into a settlement agreement for both claims.  The lawyer disagreed.  The BC Supreme Court was asked to decide whether there was a binding settlement.

The Plaintiff gave evidence that she “had not even retained (the lawyer for the second claim)…I had no intention of settling that claim and I did not instruct (my lawyer) to settle that claim“.  Ultimately the Court deemed that there was not enough information to decide whether there was a settlement for the second claim and that ICBC’s adjuster needed to be cross examined.  The reasons for judgment, however, do not focus on whether the client consented, rather, on the communications between the lawyer and ICBC and what was agreed to regardless of the client’s instructions.  In ordering that ICBC’s adjuster be cross-examined Mr. Justice Truscott provided the following reasons:

[40]         I have concluded that the plaintiff’s application to cross-examine Adjuster Johnston on her affidavit should be allowed.

[41]         The cross-examination will be restricted to why Adjuster Johnston attributed $5,000 to the 2006 accident and $2,500 to the 2008 accident, what was said between her and Mr. Albertson about the 2008 accident and its settlement, why she thought Mr. Albertson was retained by the plaintiff or the 2008 accident, what discussion there was between the two of them on the terms of the release, and what discussion there was between the two of them on settlement of any Part 7 benefits claim.

[42]         I see no usefulness in questioning Adjuster Johnston about Mr. Albertson’s authority to settle the 2006 accident because he clearly had that authority from the plaintiff given the plaintiff’s affidavit evidence.

Implicit in this judgment is that a binding settlement could have been entered into, regardless of the client instructions, depending on the discussion between the lawyer and ICBC.

If a lawyer enters into a binding settlement without a client’s consent the client’s remedy is against their lawyer as opposed to the Defendant in the ICBC Claim.  In the best interests of everyone involved it is vital that lawyers do not accept an ICBC settlement offer unless they have clear instructions from their clients to do so.  As previously discussed, a best practice when giving settlement instructions to a lawyer is to do so in writing to help avoid potential complications.

As I recently discussed, the law in British Columbia requires a Defendant to compensate a Plaintiff for any indivisible injury caused by their wrongdoing.  If a subsequent event contributes to or aggravates the injury a defendant cannot reduce the amount of compensation the Plaintiff is entitled to.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, demonstrating this principle of law.

In this week’s case (Fillmore v. McKay) the Plaintiff was involved in 2005 motor vehicle collision.  The Plaintiff was riding his bicycle when he was struck by the Defendant’s vehicle.  The Defendant initially denied being at fault but during trial admitted that the collision was indeed a result of her negligence.  The Plaintiff suffered various soft tissue injuries and a traumatic brain injury.

At trial the Defendant argued that some of the Plaintiff’s injuries were made worse during a subsequent fall and that this should reduce the compensation the Plaintiff should receive.  Mr. Justice Truscott rejected this argument and provided the following useful comments demonstrating the law relating to indivisible injuries in BC:

[145]     The plaintiff took a fall at work on July 9, 2005 when he says in his note that he aggravated his neck and shoulder. The defendant submits that this was a new incident not caused by him that should serve to reduce the plaintiff’s personal injuries for which he has liability from the motor vehicle accident. The defendant even submits that it may have been this incident of July 9, 2005 that caused the plaintiff’s back injury because his first complaint to Dr. Buie was not until after that.

[146]     I have already concluded that the plaintiff’s back injury occurred in the motor vehicle accident and not subsequently by this bike accident. The plaintiff does not say in his note that he aggravated his back on July 9, 2005, but only his neck and shoulder.

[147]     As to the possible aggravation of his neck and shoulder injuries, Athey v. Leonati, [1996] 3 S.C.R. 458, makes it clear that the defendant remains liable where his negligence caused or contributed to the injuries and that liability is not reduced by any non-tortious contributing causes.

[148]     Accordingly, even if the plaintiff’s neck and shoulder injuries were aggravated by this non-tortious incident, the defendant is still fully responsible for the full extent of those injuries because his negligence caused them in the first place and thereby contributed to the extent of the injuries.

As I’ve previously written, If a vehicle is involved in a rear-end collision the rear motorist is usually found 100% at fault.  There are exceptions to this general rule, however, and one such exception was demonstrated in reasons for judgement released today by the BC Supreme Court, New Westminster Registry.

In today’s case (Yacub v. Chipman) the Plaintiff was involved in a 2007 collision in Surrey, BC.  Her vehicle was rear-ended by a truck driven by the Defendant.  She sued for damages and the Court was asked to decide who was at fault.

The Court heard different versions of how the collision occurred but ultimately found that as the Plaintiff entered an intersection she stopped for “no apparent reason” and was then rear-ended by the Defendant.  Mr. Justice Truscott found the Plaintiff was 75% to blame for this crash.  In coming to this finding the Court provided the following reasons:

[44]         I accept the evidence of these same two witnesses as well that the plaintiff told Mr. Chipman she had stopped in the middle of the intersection out of concern that a vehicle about to left turn was going to do so in front of her.

[45]         Unfortunately the plaintiff herself does not give this as a reason for her stopping in the middle of the intersection and there is no evidence of any vehicle proposing to turn left making any movement to do so that would support any concern that she might have had in that regard.

[46]         In the absence of any such evidence she is not able to meet the requirement of s. 189(1) of the Motor Vehicle Act that she did so to avoid conflict with traffic and I must conclude that she violated s. 189(1)(c) in stopping in the middle of the intersection for no apparent reason.

[47]         This breach also puts her in violation of s. 144(1)(a) and (b) in driving without due care and attention and without reasonable consideration for Mr. Chipman using the highway behind her.

[48]         I accept the evidence of Ms. Hallett that Mr. Chipman was only about one car length behind the plaintiff’s vehicle as the plaintiff’s vehicle entered the intersection…

[51]         Accordingly I conclude that as Mr. Chipman entered the intersection he was following more closely than was reasonable and prudent having regard to the speed of the two vehicles contrary to s. 162(1) of the Motor Vehicle Act.

[52]         This also put him in breach of s. 144(1)(a) and (b) for the same reasons.

[53]         In my view the fair conclusion from these findings is that liability should be apportioned against the plaintiff 75% and against the defendant 25% and an order will go to that effect. The plaintiff’s liability is greater because Mr. Chipman would have no reason to think she would stop in the middle of the intersection while the plaintiff had to know that this would be unexpected to following traffic.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing the value of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for a mild soft tissue injury.

In this week’s case (Brar v. Kaur) the Plaintiff was involved in a 2006 rear end collision.  Prior to trial the responsible motorist admitted fault for the crash.  The matter proceeded to court under the “summary trial” rule where the evidence was presented by affidavits.   The evidence established that the Plaintiff suffered a fairly minor soft tissue injury in the crash.  Mr. Justice Truscott awarded the Plaintiff $4,000 for his non-pecuniary damages and in doing so made the following comments about the severity of the injury and the difficulty in valuing a case without hearing live testimony from the Plaintiff:

[42] It is near to impossible to assess credibility on a summary judgment application supported only by affidavits. The plaintiff’s injuries were only soft tissue injuries caused by a very minor accident and those complaints were subjectively based and not objectively verifiable. Accordingly the Court must be cautious in accepting his complaints as proven.

[43]         However Dr. Sandhu does not suggest in his report the plaintiff is not to be believed on his complaints or even suggest that he is exaggerating. He appears to have accepted the plaintiff’s complaints as legitimate and consistent with the mechanism of the accident and I likewise am prepared to accept the complaints of the plaintiff as stated in his affidavit and as reported to Dr. Sandhu.

[44]         I am prepared to conclude that the plaintiff sustained mild soft tissue injuries to his neck and back areas. While Dr. Sandhu says the plaintiff was fully recovered in six months I observe that Dr. Sandhu’s last report of complaints from the plaintiff was on May 17, 2007, only five months after the accident. Thereafter it does not appear the plaintiff saw Dr. Sandhu again until over one year later and then it was for unrelated issues…

[54] I award the plaintiff $4,000 for non-pecuniary damages as his injuries lasted slightly longer than the injuries of the plaintiffs in Saluja and Bagasbas.

This case is also the first that I am aware of to apply the New BC Supreme Court Rule 14-1(10).  This rule prevents a Plaintiff who is awarded below $25,000 from being awarded costs unless they have “sufficient reason” to sue in the Supreme Court.  Mr. Justice Truscott held that the Plaintiff did not have sufficient reason to sue in the Supreme Court because “he could never have reasonably expected to obtain an amount in excess of the Small Claims jurisdiction“.

Mr. Justice Truscott applied this rule consistently with precedents developed under the old Rule 57(10) which reads identically to the new rule.  I should also point out that the BC Court of Appeal is expected to address the issue of whether Plaintiff’s in ICBC claims worth below $25,000 have sufficient reason to sue in the Supreme Court due to the “institutional” nature of ICBC and this upcoming judgement should add welcome clarity to this area of the law.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, highlighting an important truth in injury litigation - it is not up to ICBC’s doctors to decide if a Plaintiff’s pain complaints are legitimate, rather it is up to the Judge or Jury.

In today’s case (Sharma v. Didiuk) the Plaintiff was involved in 2004 rear end collision in Delta, British Columbia.  Fault was admitted by the rear motorist.   The vehicles did not suffer much damage but the Plaintiff alleged injury.

The Plaintiff’s doctor provided the following evidence with respect to her accident related injuries:

She sustained soft tissue injuries of her back, neck, and shoulders. This pain is present several times a week. It is aggravated by her work as a hairdresser. It is also aggravated by lifting or carrying. She has used Tylenol, heat, anti[‑]inflammatories, physiotherapy, and massage as treatment with some variable symptoms. Her recent pregnancy also aggravated her symptoms. Ms Sharma’s pain has become chronic recurrent in nature. With regular strengthening and stretching exercises she should continue to remain functional with pain. She may require future treatments of massage, physiotherapy, and accupun[c]ture, to manage her pain. She will likely remain prone to aggravations of her pain with prolonged standing, lifting of her arms to shoulder height, and carrying.

The Defendant arranged for an ‘independent medical exam’ with orthopaedic surgeon Dr. Boyle.  Dr. Boyle disagreed with the Plaintiff’s physician with respect to the extent of the Plaintiff’s injuries.  Dr. Boyle provided the following evidence:

[66] In his report Dr. Boyle concluded that the plaintiff had suffered a minor myofascial strain to her cervical spine with injury to ligaments, tendons and muscles, and that medical management for this should be in the form of stretching and strengthening exercises and the use of anti-inflammatories.

[67] He also said she may have suffered a very minor strain to her lumbar spine although she was asymptomatic at the time of his examination.

[68] He concluded there was no disability associated with her function as a hairdresser from 2005 onwards and the myofascial strain that she would have suffered would have been very mild at most with a very transient and limited effect on her.

[69] In his opinion there is no disability associated with the events surrounding the motor vehicle accident and no vocational or avocational limitations to be placed on her, with no need for any passive modalities of treatment.

[70] At trial he agrees that pain is usually considered chronic after two years, and that soft tissue injury may not exhibit any objective signs. Even if the soft tissue injuries heal in three months they can still produce current pain.

[71] However, in his opinion the probability that the plaintiff has these complaints ongoing is very low.

The Court went on to accept that the Plaintiff was injured and rejected Dr. Boyle’s opinion.  In awarding the Plaintiff $30,000 for her non-pecuniary damages Mr. Justice Truscott made the following comments:

[73] I also accept that the plaintiff’s complaints of continuing pain from her soft tissue injuries have exceeded the expected time period for recovery.

[74] I conclude that Dr. Boyle is saying in his own words that he does not believe the plaintiff when she says she still has continuing pain from injuries in this motor vehicle accident, almost six years later, as he found no basis for that in his examination and in his general understanding of the effects of minor soft tissue injuries.

[75] However, the fact is that I do accept the plaintiff’s evidence when she says she is still suffering pain from soft tissue injuries that she sustained in this motor vehicle accident of April 8, 2004.

[76] I therefore reject the opinion of Dr. Boyle that she does not have any further effects from those injuries, and I will assess the plaintiff’s damages on the basis that she continues to suffer some chronic pain from these injuries caused by the motor vehicle accident….

[92] I conclude the plaintiff’s present pain is intermittent and not continuous and that it depends on what activity she carries out and for how long she carries out those activities.

[93] She was able to continue her schooling full-time after the accident and was able to continue thereafter working close to full-time or at full-time at her hairdressing employments…

[98] Here I accept that the plaintiff’s ability to continue to work full-time has been accomplished with some difficulty because of her injuries as she has to stand and reach for long periods of time which brings about pain and discomfort and exhausts her by the end of the day. Her social activities have also been curtailed.

[99] I accept the prognosis of Dr. Rayavarapu and after reviewing the cases cited by both counsel, I consider a proper award for the plaintiff for non-pecuniary damages attributable to this motor vehicle accident to be $30,000. In assessing non‑pecuniary damages in this amount I have already reduced the full value of her injuries by $10,000 to account for the measurable risk of her pre-existing injuries continuing to affect her regardless of this accident.

Only an injured person truly knows the extent of their pain.  If a Defendant arranges for an independent medical exam and that doctor minimizes the extent of the injury cases such as this one serve as an important reminder that the Defence Medical Examiner is not the Judge and Jury.

(The decision discussed below was upheld by the BC Court of Appeal in 2011, you can find the BCCA judgement here)

British Columbia remains the least ‘tort-reformed” Province in Canada and as a result we can be proud that in most instances BC offers fair adjudication of claims for those injured at the hands of others.  Many other Canadian jurisdictions offer fewer protections with compensation restrictions such as ‘no-fault‘ laws or ‘soft-tissue injury caps‘ on damages.

If a British Columbia resident is injured in another Province can they sue in BC to be compensated for their injuries?  Reasons for judgement were released today considering this issue.

In today’s case (Dembroski v. Rhainds) the Plaintiff was involved in a car crash in Alberta in 2007.  The Plaintiff was a British Columbia resident and was in Alberta for a short while to do some work as a farrier.    The Plaintiff was injured and unable to perform her work.  She returned to BC shortly after the car crash.  She had the majority of her treatments in BC.

The Plaintiff eventually sued the alleged at fault motorist for compensation in British Columbia.  The Defendant brought a motion to dismiss the claim arguing that BC Courts lack jurisdiction to preside overthis case.

Mr. Justice Truscott agreed with the defendants and dismissed the lawsuit.  In doing so he made the following points regarding BC Courts’ jurisdiction to preside over a lawsuit arising from an out of Province motor vehicle accident:

11] The court’s jurisdiction is governed by the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (CJPTA), which gives the court territorial jurisdiction in particular circumstances.

[12] From the facts here, the only circumstance set out in the legislation that might give the court jurisdiction is the provision in s. 3(e) that “there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.”…

[19] Defence counsel cites a number of court decisions in British Columbia that have denied jurisdiction on what are alleged to be similar circumstances, including: Canadian International Marketing Distributing Ltd. v. Nitsuko Ltd. (1990), 56 B.C.L.R. (2d) 130 (C.A.); Aubichon (Guardian ad litem of) v. Kazakoff, [1998] B.C.J. No. 3058 (S.C.); Jordan v. Schatz, 2000 BCCA 409; Sequin-Chand v. McAllister, [1992] B.C.J. No. 237 (S.C.); Williams v. TST Porter (c.o.b. 6422217 Canada Inc.), 2008 BCSC 1315; and Roed v. Scheffler, 2009 BCSC 731.

[20] All of these cases concluded that where a British Columbia resident plaintiff is injured in a foreign jurisdiction and then returns to British Columbia for treatment of injuries, there exists no real and substantial connection with British Columbia to give the courts of British Columbia jurisdiction because the only connection to this province is the fact that the plaintiff is a resident here at the time of the claim.

[21] In Jordan v. Schatz, Mr. Justice Cumming, writing the decision for the Court, said at para. 23:

What constitutes a “real and substantial connection” has not been fully defined. However, it has been well established by this Court in Nitsuko, supra, and in Ell, supra, that there is no real and substantial connection to British Columbia based on the bare residency of the Plaintiff in the jurisdiction. There must be some other or further sufficient connecting factor or “contacts” to this province. Clear examples of connecting factors include the residency of the defendant in the jurisdiction or the fact that the tortious act was committed or damages suffered here.

…

36] I can see no exception that would be applicable in this case to allow me to depart from the decisions in those cases that have denied jurisdiction to the court when the plaintiff’s only connection to the jurisdiction is the fact she continues to suffer from her injuries while she resides here. To accept jurisdiction here would be to accept jurisdiction for a plaintiff who moves to the jurisdiction after an accident in another province and continues to suffer from injuries here. That cannot be.

[37] There is no real and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based. There may be a real and substantial connection between British Columbia and the plaintiff, but that does not satisfy the words of s. 3.

[38] The action is dismissed for want of jurisdiction. The defendants will have their costs.