ICBC Law

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry assessing damages for a chronic shoulder soft tissue injury.

In last week’s case (Araki v. Guitard) the Plaintiff was injured in a 2007 collision.  She was 17 at the time.  The vehicle in which she was riding as a passenger was T-Boned by the Defendant’s vehicle.  Fault was admitted.

The Plaintiff suffered various soft tissue injuries.  Many of these went on to recover, unfortunately her shoulder was injured and continued to pose problems at the time of trial.  In assessing non-pecuniary damages at $50,000 Mr. Justice Williams made the following findings:

[7] Based on all of the evidence, I am satisfied that it has been proven that the plaintiff sustained physical injuries in the collision. Those included injuries to the right side of her neck, the right side of her upper and mid back, and to her right shoulder. As well, she experienced occasional headaches.

[8] The headache condition resolved within a short time, a matter of months at the most.

[9] The back and neck discomfort have substantially resolved although it is not exactly clear when. I am satisfied that state had been attained within three years of the accident. The discomfort from those particular areas was not especially significant; it would be fairly described as modest. If there are occasional discomforts in those areas now, I find they are associated to the shoulder pain.

[10] The plaintiff’s right shoulder has continued to be painful. The pain and discomfort has significantly lessened since the early stages following the accident, but remains an issue nevertheless. The pain is not constant but intermittent. It is affected by her activities; for example, when she is reaching overhead or when her shoulder is subject to load in a certain way, discomfort will result. Also, on occasion she experiences discomfort as a consequence of taking certain postures; that is, it is a matter of how she is sitting or lying.

[11] The matter of the shoulder injury has been extensively investigated. The conclusion which emerges is that there is no detectable damage to her shoulder structure. The pain is muscular or musculoligamentous in nature. There is no reason to believe that surgical intervention would be warranted. Given its persistence, it is unknown whether it can be expected to resolve. Certainly the prognosis for a complete recovery is guarded: the shoulder pain may not resolve…

[32] In all the circumstances, I am influenced by the fact that the effect of this injury does cause the plaintiff discomfort of a discernible sort and that occurs not infrequently, both at work and while doing other things.

[33] I am of the view that an appropriate award under this head is $50,000.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dismissing a Plaintiff’s ICBC Claim alleging that an unidentified motorist caused a significant collision.

In last week’s case (Paguio v. Fraser) the Plaintiff was injured when his scooter collided with another vehicle.  The Plaintiff suffered a “serious head injury” and his ability to give evidence surrounding the circumstances of the crash were limited.

The Plaintiff conceded that the vehicle he collided with did nothing wrong but alleged that an unidentified motorist cut the plaintiff off forcing him into the other vehicle.  Mr. Justice Williams rejected this argument concluding that on a balance of probabilities the evidence did not support such a finding.  Prior to doing so the Court listed the following applicable principles when faced with a claim based on circumstantial evidence:

[60] …I must be guided by certain basic concepts that govern the approach that must be taken to the proof of a plaintiff’s case where it rests on a base of circumstantial evidence. In Tweedie v. ICBC, 2002 BCSC 1937, Mr. Justice Wilson provided a helpful discussion of the approach that must be taken to the proof of a plaintiff’s case where it rests on a base of circumstantial evidence and provided reference to the applicable authorities.

[61] The principles as I understand are these:

(a)      Where a case is not proved by direct evidence, the court will carefully examine and consider the relevant circumstantial evidence.

(b)      Circumstantial evidence derives its effect through the process of the trier of fact drawing reasonable inferences. That is a cognitive process whereby, once certain facts are established or proven, then a logical conclusion is considered. It is the process of reasoning from a proven fact or facts to a reasonable, rational and logically legitimate conclusion.

(c)      The drawing of an inference is different than mere conjecture or a guess, no matter how shrewd or plausible that guess might be.

(d)      An inference, once properly drawn, must give rise to a reasonable conviction in the mind of the trier of fact that the element of which proof is necessary is at least more likely than not, or to some greater degree of certainty.

(e)      The plaintiff can succeed in proving his case on the strength of a reasonable inference which gives rise to a conclusion that the element has been proven on a balance of probabilities. If the inference does not support the conclusion to that standard, then the proof is not made out.

[62] In the final analysis, applying these guiding principles, and having examined the evidence carefully, I have concluded that the circumstantial evidence proffered by the plaintiff does not enable me to find that the case has been proven to the necessary standard. The plaintiff has not met the onus of proof he bears to establish his claim and it must therefore stand dismissed.

Below is a brief article which was first published yesterday at Slaw.ca, one of Canada’s best read and most recognized legal blogs.  For your convenience I republish the article here in its entirety.  If you find this topic of interest I suggest you visit the original article and weigh in on the comments that follow.

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I’ve written many times that the phrase tort ‘reform‘ is often used in association with efforts to strip the rights of injury claimants.  Reform, however, is a neutral concept in and of itself.  Reform simply means change and the change could be for better or worse.  With this in mind  I’d like to share a tort reform idea for the better which recently crossed my mind.  In short the idea is to add a pool of liquidity to rectify the injustice of dry judgement.

The thought crossed my mind as I was reading reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.  In this week’s case (Saether v. Irvine) the Plaintiff was injured when the Defendant battered him.  The consequences were “profound and catastrophic” causing a brain injury that “severely compromised (the plaintiff) in virtually all facets of his life“.  Damages of $1,075,000 were assessed to cover the Plaintiff’s anticipated future care costs alone.  Given the fact that this case involves an intentional tort it is a safe bet that this judgement will be uninsured and likely (at least partially) dry.

Reading this reminded me of a 2005 case (Chow v. Hiscock) where the Court expressly recognized the injustice of dry judgement facing a plaintiff left “in a permanent semi-vegatative state” following a “brutal, unprovoked assault“.  The Plaintiff’s future care costs were anticipated to exceed $4,000,000.  Madam Justice Koensberg made the following comments hoping the Plaintiff would some day be able to receive some of these funds from the uninsured defendants:

[40]           Can I say that this is still a case where punitive damages should be awarded?  If I were to award punitive damages, it would be purely symbolic.  I have heard nothing which indicates that the magnitude of this award or even some small part of it is likely to be payable by any of these three young men.  One can hope that they find a straight path to earn a significant amount of money or that one even wins the lottery, so that the earnings could be available to increase Mr. Johnson’s quality of life.

The law recognizes that those harmed through the fault of others are entitled to reasonable compensation.  When it comes to negligently caused harm defendants are often insured and plaintiffs can collect their judgements.

In cases where Defendants hold inadequate insurance examples can be found where legislatures have intervened to ensure victims can collect on their judgments.  For example, in BC, Section 20 of the Insurance (Vehicle) Act provides a pool of $200,000 of available compensation from ICBC for damages caused by uninsured motorists.  A further example is the requirement for BC motorists to purchase a minimum of one million dollars of under-insured motorist protection coverage.

When plaintiffs suffer harm through intentional torts, however, there often is no insurance to protect the wrongdoer or compensate the victim.  This is an unfair reality in Canadian law.  Victims harmed through assault, battery, sexual molestation and other intentional acts are often faced with dry judgments.  When they seek legal advice they are often turned away being told that litigation may not be worth the effort unless the Defendant has deep pockets

There is no justification I can think of making it fair for a car crash victim to be able to collect their judgement from a pool of money created by the government when the victims of crime are left with dry judgments.

The financial well being of a defendant has no bearing on a victim’s right to damages.  If the government has seen fit to create a pool of funds for victims of motor vehicle collisions to collect from surely a similar system can be created to allow victims of intentional torts facing dry judgments.  This is a rough idea.  Thoughts and feedback are welcome from lawyers and non-lawyers alike.

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, with the “curious result” of costs recovery at over double the amount of assessed damages.

In last week’s case (Kargbo v. Chand) the Plaintiff was involved in a motor vehicle collision.  ICBC disputed both fault and injury.  At trial the Plaintiff’s claim was accepted and modest damages of $4,000 were awarded.  The Plaintiff sought her costs.  ICBC opposed arguing the Plaintiff did not have sufficient reason to sue in Supreme Court.

Earlier this year the BC Court of Appeal made it clear that more than the value of an ICBC Claim can be considered in deciding whether there is sufficient reason to sue in the Supreme Court.  Mr. Justice Williams went on to canvass factors other than value and concluded that the Plaintiff was entitled to $9,500 in costs under Rule 15-1(15).  The Court provided the following reasons:

[9] The problem ultimately reduces to this: If the Court determines that the plaintiff had sufficient reason for commencing or proceeding in the Supreme Court, she should be entitled to recover costs in accordance with Rule 15-1(15). If the Court finds that there was not sufficient reason for bringing the proceeding in this Court, then she is not entitled to recover her costs.

[10] In Reimann v. Aziz, 2007 BCCA 448, the Court of Appeal clarified that the issue has to be analyzed as at the point in time that the plaintiff initiated the action; there is no ongoing obligation to assess the quantum of claim.

[11] I have been provided with a number of decisions where judges of this Court have assessed the circumstances of cases to decide whether or not an order for costs is warranted. Obviously, the plaintiff bears the onus of establishing that there was sufficient reason for filing in the Supreme Court. It is not simply a matter of assessing the anticipated value of the claim. A number of factors have been identified in the cases as being relevant to the issue. These include the following (the list is not intended to be exhaustive):

1.         the legal or factual complexity of the case;

2.         the need for discovery of documents and examinations for discovery;

3.         the need for a judgment enforceable outside of British Columbia;

4.         a bona fide preference for a jury trial;

5.         access to the summary trial procedure available in Supreme Court; and

6.         the need for the plaintiff to have legal counsel, in light of the defendant’s denial of liability, dispute as to causation, injury or loss and allegations of contributory negligence, pre-existing conditions, previous causes and a failure to mitigate.

[12] In the present case, liability was denied and in the circumstances could reasonably have been expected to represent a challenge to prove. As well, the issue of damages had the real potential of being a problem. The plaintiff had a history of prior accidents and had been hospitalized shortly after the accident in question for matters not related to the accident. She was also injured in another more serious accident some several months after the accident at bar. It was the sort of case that a self-represented plaintiff would find daunting no doubt.

[13] Taking those considerations into account, it is my view that this plaintiff had sufficient reason for bringing her proceeding in the Supreme Court.

[14] As a parenthetical observation, it is true that a party such as this plaintiff could elect to pursue the claim in the Provincial Court with legal counsel, although the prospect of incurring the expense to do so without any right to recover court costs is a legitimate factor to consider. As well, where the plaintiff elects to bring suit in the Supreme Court, she runs the real risk of an adverse costs outcome if the action is unsuccessful.

[15] In the circumstances, it is my view that the plaintiff should be entitled to costs in accordance with the Rules of Court. I recognize that might appear to produce a curious result in that the award of costs is substantially greater than the damages that she recovered. However, if the matter is considered fairly and objectively and the relevant rule applied, that result follows.

[16] There is no question that the policy which underpins Rule 14-1(1) is to encourage parties with claims of modest value to bring their action in the Provincial Court, and to provide for a penalty against one who does not. That is consistent with the concept of proportionality which is a foundational consideration of the Court’s Rules.

[17] The clear default position will be that, with respect to claims where the award is less than $25,000, the plaintiff will not be entitled to an award of costs. Nevertheless, there will be situations where there is sufficient reason to bring the action in the Supreme Court. It will be for the Court to examine the circumstances of each particular case to determine whether or not there is sufficient reason.

For more cases addressing sufficient reasons to sue in Supreme Court you can click here to access my archived posts on this topic.

As previously discussed, the BC Supreme Court Rules require parties to give discovery of relevant documents in their possession or control.  Often times there are relevant documents that are not in the Plaintiff’s possession or control but the Plaintiff has the ability to easily get these documents.  (For example medical records documenting accident related injuries.)  Such records are commonly referred to as “Third Party Records”.

It has been a matter of much judicial debate whether the BC Supreme Court could order a Plaintiff to sign an authorization to consent to the release of Third Party Records with Mr. Justice Hinkson recently finding that the Court did not have this power under the Former Rules.

The first case I’m aware of dealing with issue under the New Rules of Court was released today by the BCSC , New Westminster Registry.   Keeping the uncertainty on-going, Mr. Justice Williams found that the Rules do authorize a Court to force a party to sign authorizations for the release of Third Party Records

In today’s case (Nikolic v. Olsen) the Plaintiff was involved in a motor vehicle collision.  The Defendant brought a motion to compel the Plaintiff to sign various authorizations.  The Plaintiff opposed arguing that the Court lacked the authority to make such an order.  Mr. Justice Williams disagreed.  The Court provided a lengthy review of the relevant authorities and ultimately provided the following reasons addressing this issue:

[11] There are conflicting judicial authorities respecting the issue raised in this application. The line of jurisprudence which holds that the court cannot make an order requiring a litigant to authorize third party production is, in my view, troubling. For the reasons that follow, I conclude that this Court can make an order requiring a litigant to authorize a third party, whether within or outside this province, to produce records relating to him or her to another litigant. The jurisdiction to do so is based on the Rules of Court…

[93]         In British Columbia, relevant non-privileged documents are compellable in a civil action. Full and complete disclosure between or among litigants prior to trial is essential to the truth-seeking function of the litigation process and proper administration of justice.

[94]         This Court has the authority under the former Rules to compel production and to specify the mechanics of its production orders. Rule 26(1.1) permits the court to order a litigant to list documents in his or her power, which may include those held by foreign non-parties. Rule 26(10) empowers the court to order a litigant to produce a document for inspection and copying in the manner it thinks just. Furthermore, R. 1(12) grants the court wide discretionary powers, in the making of orders, to impose terms and conditions and give directions as its thinks just. Read collectively, a master or judge of this Court has the jurisdiction to create the mechanisms by which relevant non-privileged documents in a litigant’s “power” will be produced, including the jurisdiction to order him or her to execute the necessary documentation allowing a record-holder, whether residing in or outside British Columbia, to effect the release of those documents.

[95]         In my view, the following excerpt from para. 110 of Hood J.’s reasons in Lewis is apt:

There is also no doubt that the Court has substantive jurisdiction or power pertaining to the discovery and inspection of documents under Rule 26, particularly the compelling or ordering of production of documents. … In my opinion, the manner in which production is achieved is for the Court. The Court’s substantive jurisdiction or power to compel the production of documents includes the jurisdiction or power to create the mechanisms or the means by which production is made.

[96]         As expressed in the jurisprudence, there are, no doubt, potentially unwieldy implications of a court order compelling authorization of third party production. Given these concerns, such orders should not be granted lightly. In this respect, L. Smith J. in McKay v. Passmore, 2005 BCSC 570, [2005] B.C.J. No. 1232 (QL), offers worthwhile guidance. That was a personal injury case arising from a motor vehicle collision. An application was brought for an order that the plaintiff execute an authorization allowing the defendants to obtain records held by the Manitoba Workers Compensation Board. Her Ladyship held, at para. 36, that while the court has jurisdiction to grant such an application, there was insufficient basis on the evidence to do so. She concluded, at para. 40, that the circumstances of the case before her did not warrant the order sought in light of the R. 26(11) criteria provided by the Court of Appeal in Dufault, which she outlined at para. 38:

1.         The applicant must satisfy the court that the application is not in the nature of a “fishing expedition.”

2.         He or she must show that a person who is not a party to the action has a document or documents in his or her possession that contains information which may relate to a matter in issue.

3.         If the applicant satisfies those criteria, the court should make the order unless there is a compelling reason not to make it (i.e. because a document is privileged or because grounds exist for refusing the application in the interests of persons not parties to the action who might be affected adversely by an order for production and the adverse affect would outweigh the probative value of the document.)

[97]         Obviously these criteria, among other relevant factors, ought to be considered by a court considering an application for an order compelling a litigant to authorize production of documents held by a third party whether located within or outside British Columbia.

[98]         For two examples as to how the McKay/Dufault criteria may apply, see Distinctive Photowork Co. v. Prudential Assurance Co. of England Property and Casualty (Canada) (1994), 98 B.C.L.R. (2d) 316, [1994] B.C.J. No. 3231 (QL) (S.C. Chambers); and Tetz v. Niering, [1996] B.C.J. No. 2019 (QL), 1996 CarswellBC 1887 (S.C. Chambers).

[99]         These cases, although they raise slightly different issues, do not detract from, but rather inform, the basic proposition that where a litigant is under an obligation to make disclosure of documents, then that obligation must be honoured. Where such documents are in the hands of third parties, the usual format will entail the litigant voluntarily agreeing to provide a document authorizing the record holder to release the material, and that will resolve the matter. However, in other cases, where consent is refused, litigants are entitled to seek relief and the court has jurisdiction to enforce the disclosure obligation, specifically by making an order whereby the party whose records are being sought will “consent” to their release. While the wording is unfortunate and has engendered a regrettable state of controversy, the underlying concept is, in my view, straightforward.

[100]     The Olsons have a legitimate interest in obtaining the requested records and I am satisfied that their application is not in the nature of a fishing expedition. I also find that the third parties named by the defendants in their application possess the requested records which relate to a matter or matters in this case. By way of obiter dicta, I note that the common law test for relevance under the former Rules is broader than what seems to be provided by the wording of the current Rules. There are, furthermore, no compelling reasons why the order sought should not be made.

[101]     Accordingly, I order the respondent/plaintiff, Mr. Nikolic, to provide signed authorizations allowing the applicants/defendants, Josiah Olson and Joel Olson, to obtain from the third parties named the records listed in clauses (c), (d), (e) and (f) of the proposed order reproduced at para. 3 of these reasons.

As a monopoly insurer ICBC usually fulfills 2 roles in BC auto injury claims.  First ICBC is responsible for processing claims for Part 7 Benefits.  Second ICBC is usually behind the defence of tort claims against at fault motorist in British Columbia.   For anyone involved in a BC vehicle collision it’s important to appreciate this dual role before contacting ICBC to discuss your claim.  I discussed this earlier this year in the below video:

Since ICBC is in the business of defending tort claims you need to be aware that statements you make to your adjuster can be used against you in your personal injury trial as ‘admissions against interest‘.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, demonstrating this.

In today’s case (Cross v. Cross) the Plaintiff was involved in a 2008 collision.   Both the Plaintiff and Defendant were insured with ICBC.   The Plaintiff was disabled from work for several months following the collision.  He dealt with ICBC directly following the crash and discussed his injuries and disability.

At trial ICBC’s adjuster testified about these discussions in support of an argument that the Plaintiff’s wage loss was not entirely due to the collision but also due to other factors.  Mr. Justice Williams rejected this submission and awarded the Plaintiff damages for his wage loss claim.

Despite the lack of success behind the adjusters evidence, this case demonstrates that ICBC adjusters can and do use statements made by individuals against them in the course of a personal injury lawsuit.  The Court provided the following reasons addressing the Plaintiff’s wage loss claim and the adjuster’s evidence:

[27]         There was another point raised by Ms. Chiasson that is relevant to the issue at hand. She reports that, at or near the conclusion of the program, she “discussed return to work plans with Russell and he stated at the present time he does not have transportation to his pre-injury employment and therefore has not contacted his employer regarding a return to work.”

[28]         This is something of a recurring theme for the defence. The insurance adjuster who had conduct of the file testified as to a conversation that she had with the plaintiff, enquiring about his status and his return to work. She says he told her he was not back at work and when she asked why, part of his answer was to the effect that he didn’t have transportation to get there. He also made reference to his doctor’s advice…

[40] Finally, there is the matter of the plaintiff having told Ms. Chiasson and the adjuster that getting to work would be a problem. I accept that there were conversations of that general tenor. However, I also accept the evidence of the plaintiff that he had the means available to him to get to work. The reason he didn’t go back was because his injuries were still active to an extent that they rendered him unable to do the physical work his job required…

[48]         In view of the findings I have made, it follows that the plaintiff is entitled to recover his wage loss from the date of the accident through to the point in time that he returned to work, June 1, 2009.

[49]         Counsel have agreed that the quantum of that loss is $35,767.

In my continued efforts to write about the development of Rule 37B (the rule that deals with costs consequences after a party beats a formal settlement offer at trial) two cases were released this week further interpreting this rule.

The first case (Ostiguy v. Hui) the Plaintiff was injured in a 2003 BC car crash.  She ultimately represented herself.  In the course of the lawsuit ICBC made a formal settlement offer under the old Rule 37 for $30,000.  The Plaintiff did not accept this offer and went to trial.  The Jury awarded the Plaintiff $10,000.   The Defendants brought a motion for costs.

After addressing a technical issue about the offer’s general compliance with the old Rule 37 Mr. Justice Williams decided that the offer was capable of triggering costs consequences under the new Rule 37B.  The Court went on to award the Defendant 60% of their costs from the time that liability was admitted onward.  In reaching this decision the Court held that whether the Defendant was insured with ICBC was not to be considered (an issue the BC Supreme Court cannot agree on and needs to be addressed by the Court of Appeal).

The Court made the following notable comments:

[68] I have no knowledge as to the circumstances of the defendants; I will proceed on the basis that they are ordinary people of ordinary means. I should note parenthetically that, although they were represented by an insurer, it is their circumstances and not those of the insurer which are to be considered…

[71] In this case, the costs which the plaintiff is liable to pay are substantial. That is attributable in significant part to the fact that this litigation dragged on considerably. The plaintiff hired and subsequently discharged two different lawyers before proceeding to act for herself. There were a number of delays. Costs have mounted.

[72] The law is clear that sympathy is not a basis to determine the outcome of matters such as this. Nevertheless, it is quite disconcerting to see the plaintiff’s award of damages for her injury completely obliterated and overshadowed by a costs obligation, and for the consequences in fact to go further, to leave the plaintiff with a huge bill to pay as well.

[73] At the same time, the Court must be cautious that the sound and basic principles that underlie the costs regime are not simply disregarded because the plaintiff chose to represent herself and chose to proceed as she did.

[74] In the final result, the matter requires a balancing of a number of considerations and a significant application of judgment to try and fashion an outcome that is fair in the circumstances. Approaching the task in that fashion, I have decided as follows:

(a)      The effective date of the Offer will be July 14, 2008, when the defendants advised the plaintiff that liability was being admitted.

(b)      Up to July 14, 2008, the plaintiff is entitled to recover from the defendants her costs and disbursements.

(c)      For the time period following July 14, 2008, the defendants are entitled to recover from the plaintiff their disbursements and 60% of their costs.

For my readers not familiar with the potential extent of cost consequences I should point out that on these findings there is a good chance that the Plaintiff, despite being awarded $10,000 by the Jury, would end up owing ICBC money.  When preparing for trial it is imperative that parties consider the potential consequences of formal settlement offers.

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The second case released this week was interesting because the Defendant made what appears to be a novel use of Rule 37B.  Usually parties restrict formal settlement offers to the issues to be addressed at trial.  In this week’s case (Moro v. El Mantari) the Defendant used Rule 37B in a Chambers application.

The parties could not agree on a lot of issues in the lawsuit.  Prior to trial the Parties brought cross motions to be decided in Chambers.  Prior to this pre-trial hearing the Defendant made a formal settlement offer under Rule 37B asking that the Plaintiff consent to various aspects of their motion.

The Defendant was largely successful in Chambers.  The Court was asked to award the Defendant double costs for Chambers because of the formal offer.  In the first case that I’m aware of using Rule 37B in this fashion Mr. Justice Chamberlist agreed that it was a permitted use of the Rule.  Specifically the Court held as follows:

[18] The defendant submits that it should be entitled to double costs on the basis of its offer to settle to the plaintiff made on June 26, 2009.  At that time the defendant asked the plaintiff to consent to items 1, 4, 6, 7, 8, and 10 of her notice of motion.

[19] The fact is that R. 37 has since 2008 been amended by deleting the subrules that an offer to settle did not apply to interlocutory proceedings.  The overriding fact is that there must be substantial success.  ..

22] Thus R. 37B(4) permits the court to consider an offer to settle when exercising the court’s discretion in relation to costs.

[23] As a result, the fact that the defendant has failed to meet the terms of the offer to settle will no longer necessarily mean that she would be deprived of her double costs.  In various decisions of this court it would appear that an issue which has been discussed in many cases is whether the offer to settle is one that ought reasonably to have been accepted (R. 37B(6)(a))….

[26] The enactment of R. 37B so that it now applies to interlocutory applications as well as trial, demonstrates the purpose of the new rule is to allow an offer to settle to be made, and if I were to follow the plaintiff’s position it would completely ignore the important deterrent function of the rule…

[32] In this case the offer to settle was made on June 26, 2009, and I find that the defendant was substantially successful.  The defendant shall have her costs of her attendance before me on August 27 and 28, 2009, as calculated in accordance with R. 37B, namely double costs.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as these retain their value as precedents.

(Please note the case discussed in this post was overturned by the BC Court of Appeal.  Please go to the September 2010 Archives of this site to read my article discussing the BC Court of Appeal decision)

The law places a very heavy burden on vehicle owners in BC when their vehicles are involved in an at-fault collision.  In British Columbia registered owners are “vicariously liable for the negligence of the driver where the driver acquired possession of the vehicle with the consent (express or implied) of the owner“.

What this means is, if you let someone else operate your vehicle and they are at fault for a crash then you are at fault for that crash.  Reasons for judgement were released today showing just how far Courts in BC can go in determining the circumstances in which an owner “consents” to someone else operating their vehicle.

In today’s case (Snow v. Friesen) the Plaintiff was seriously injured in Vernon BC when a vehicle owned by a man named Mr. Saul and driven by a woman named Ms. Friesen struck the Plaintiff while walking on a sidewalk.  The Defendant driver apparently fell asleep at the wheel and lost control.

The Court found that Mr. Saul did not intend to let Ms. Friesen borrow his vehicle, he in fact did so by mistake.  Mr. Justice Williams found that Ms. Friesen asked to borrow Mr. Saul’s vehicle but at the time he was busy working and did not hear her because he was hard of hearing and had his hearing aid out.  As a result Mr. Saul mistakenly thought someone else was asking to borrow his vehicle so he granted permission,   Notwithstanding this interesting factual finding the Court went on to find that Mr. Saul was still vicariously liable for the collision because his actions constituted ”express consent” under section 86 of the BC Motor Vehicle Act.

The Court’s discussion of the law of liability of registered owners is set out below.  This case is worth reviewing in full for all vehicle owners in British Columbia as it shows the serious duties courts impose on vehicle owners when they let others take possession of their vehicles:

[68] Pursuant to the common law and s. 86 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, an owner of a vehicle is vicariously liable for the negligence of the driver where the driver acquired possession of the vehicle with the consent, express or implied, of the owner.

[69] As is apparent from my analysis of the evidence and findings of fact, the implied consent doctrine does not arise in this case.  Instead, the issue stands to be determined on the basis of express consent.  Specifically, it is necessary to decide whether, in these circumstances, the plaintiff has proven that Ms. Friesen had the vehicle with the consent of Mr. Saul.

[70] I consider the following statement of Thackray J.A. in Barreiro v. Arana, 2003 BCCA 58, to be apposite:

[13]      Whether there was consent must be determined by reference to the facts and by the application of general legal principles viewed in the context of the statutory scheme.  The issue of consent is not, as suggested by the trial judge, “defined by s.86”: however the statute is the governing factor.

[71] The cases are replete with reference to the notion of public policy and the necessity of recognizing the legislative intent of s. 86.  Again, I will resort to a quotation from Barreiro:

[26]      The effect that legislative intent has upon the meaning of “consent” is emphasized by the words of Goldie J.A. in Morrison as quoted by the trial judge:

[24]  It is apparent the legislature has imposed a heavy burden on those who have within their power the control of motor vehicles. … The reason for legislative intervention may be traced, in part at least, to the appalling consequences of reckless use of motor vehicles.  Irresponsibility on the part of those who may deny or confer possession of motor vehicles may be seen as the reason for the legislative initiative.  The legislation in question must be regarded as remedial.

[27]      Legislative intention must be acknowledged as having a fundamental purpose and as having been inspired by a need.  As Mr. Justice Goldie said, the legislation is remedial.  As such it might well be at odds with traditional legal concepts of agency, but that will not deny its validity.

[28]      The legislative intent in section 86 must be taken, as noted by Goldie J.A. in Morrison, to address the reckless use of motor vehicles and the section imposes “a heavy burden on those who have within their power the control of motor vehicles.”  In Bareham, Mr. Justice MacDonell, after reviewing the statute, said at 194:

In this case, the only policy reasons to be considered are those in favour of protecting innocent third parties seeking compensation for injuries suffered at the hands of negligent automobile drivers and, vicariously, owners.

[72] A helpful discussion of the importance of bearing in mind the underlying rationale, or legislative purpose, of the legislation is found in Yeung (Guardian ad litem of) v. Au, 2006 BCCA 217, where the matter was touched upon by Newbury J.A., writing for a five judge division of the Court, although the issue there was principally one of determining the liability of an individual who held rights under a conditional sales contract.  Nevertheless, she considered the social and economic policy objectives of the legislation, and the legislative intention.  Her analysis is found at paras. 32 through 38.  I will not reproduce the entire discussion, but consider it worthwhile to quote a portion of her conclusion as found at para. 38:

… the purposes of s. 86 are, I would suggest, similar – to expand the availability of compensation to injured plaintiffs beyond drivers who may be under-insured or judgment-proof, and to encourage employers and other owners to take care in entrusting their vehicles to others.  These objectives are consonant with the objectives of vicarious liability generally, as described by McLachlin J. (now C.J.C.) in Bazley v. Curry [1999] 2 S.C.R. 534, 62 B.C.L.R. (3d) 173, the leading Canadian case on vicarious liability.

[Emphasis added.]

[73] In my view, the outcome which must result in the facts at bar is determined by an application of the leading decision on the issue, Vancouver Motors U-Drive Ltd. v. Terry, [1942] S.C.R. 391.  There, an employee of Vancouver Motors U-Drive Ltd. had rented an automobile to a driver who had no valid licence.  The driver had falsely represented that he was another person, and showed that person’s valid driver’s licence.  He signed that person’s name to the rental agreement.  The driver was subsequently involved in an accident, and the appellant argued that it was not vicariously liable because the negligent driver had not acquired possession of the car with the appellant’s consent.  In interpreting a legislative provision similar to s. 86 of the Motor Vehicle Act, Kerwin J., for the majority, stated as follows:

In the present case, the appellant physically transferred the possession of the motor vehicle to Walker. Does the fact of Walker’s false statement that he was Hindle and the holder of a subsisting driver’s licence, accompanied by the forgery of Hindle’s name, vitiate the consent that was in fact given? There may be no difficulty in two of the hypothetical cases put in argument, (1) where a motor vehicle is stolen from a garage, and (2) where possession is obtained from the owner by duress. In the first there would be no consent in fact and in the second the owner would not have been at liberty to exercise his free will. On the other hand, the class of owners under subsection 1 of section 74A is not restricted to those who carry on such a business as the appellant and circumstances may be imagined where an owner loaned his automobile to a friend on the latter’s statement that he possessed a subsisting driver’s licence, which statement might be false either because he never had possessed such a licence or because his current licence had been revoked; or again, where A secured possession of an automobile by falsely representing himself in a telephone conversation with the owner of the vehicle to be a neighbour’s chauffeur. It is impossible to conceive all the various circumstances that might give rise to the question to be determined here but in my view an express consent is given, within the meaning of the enactment, when possession was acquired as the result of the free exercise of the owner’s will.

[74] Later, Kerwin J. reached the following conclusion:

The word “consent” may have different meanings in different statutes. In the present case it has, in my opinion, the meaning already indicated and, on that construction, express consent was given by the employees of the appellant to Walker’s possession of the motor vehicle even though the action of the employees was induced by Walker’s false statements.

[75] In this case, Mr. Saul, of his own free will, absent duress or theft, gave consent to the person who asked to use the motor vehicle.  The fact that Mr. Saul was mistaken as to the identity of that individual does not change the outcome.

[76] In Vancouver Motors U-Drive, consent was not vitiated even though the agent/employee was misled as to the identity of the person renting the car.  In Bareham (Guardian ad litem of) v. Desrochers, [1994] B.C.J. No. 1826, 97 B.C.L.R. (2d) 186 (S.C.), on an application of the same principle, the mother of the driver argued that she had not consented to her son having her vehicle because she was not aware that he had no driving licence.  The trial judge there, Macdonell J., found that once the mother gave consent, the fact that her son was driving her car illegally was irrelevant to the application of s. 86(1).

[77] The erroneous basis upon which Mr. Saul granted his consent is no defence.  The onus was on him to ensure the public safety in lending his truck.  The statute imposes a duty upon him, which duty includes knowing and assessing the fitness of the driver who seeks to have his vehicle.  The heavy burden which is imposed upon motor vehicle owners was not met.

[78] In the present case, Mr. Saul did not take steps to confirm the identity of the person who sought to use his vehicle, other than relying upon what turned out to be the assumption of Mr. Connolly.

[79] The focus of the analysis is on whether the owner gave express consent to the individual who seeks to have the vehicle.  Once that is found, as the facts of that case indicate, there is not a great deal which will impact upon the imposition of liability.

[80] While judicial interpretation of s. 86(1) may, at first glance, appear overly strict, as Paris J. stated in Beaudoin v. Enviro-Vac Systems Inc., [1992] B.C.J. No. 205, 1992 CanLII 444 (S.C.), at para. 13:

The Legislature has placed a very heavy onus on the owner of a motor vehicle who chooses to permit another to drive it. Whether that policy is or is not draconian is not for me to say.

[81] I have no doubt that the outcome here may seem harsh from the perspective of Mr. Saul.  However, holding him liable fits within the purpose of s. 86(1) and the manner in which it has been applied.  From a broader policy perspective, it fits within what has been found to be the most efficient and effective risk allocation from both an economic and public safety perspective, two elements that are central to s. 86(1).