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Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

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Posts Tagged ‘van Driesum v. Young’

Complex Wage Loss Claim Fuels Successful Jury Strike Application

December 7th, 2016

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, granting a Plaintiff’s jury strike application.

In today’s case (van Driesum v. Young) the Plaintiff was involved in a 2011 collision and sued for damages.  The trial was scheduled for 18 days before a jury at the Defendants election.  The Plaintiff succeeded in striking the jury from the case largely on the basis that his wage loss claim was complex.  In granting the application Mr. Justice Macintosh provided the following reasons:

[6]             The overall question is trial fairness, weighing the Defendant’s presumptive right to a jury against the risk of unfairness to the Plaintiff by having a jury attempt to decide facts and answer questions which are too intricate or complex.  My conclusion is that this case should not proceed with a jury.

[7]             The motor vehicle accident giving rise to the claim occurred on February 23, 2011.  That year also serves as the approximate dividing line between what I will characterize as two separate careers for the Plaintiff.  The methods for determining income loss and lost-earning capacity are complicated within each of his two careers.  In what I am viewing as the Plaintiff’s post‑accident career, or second career, determining income loss and lost-earning capacity are, in my view, particularly complex.

[8]             Before the accident, the Plaintiff practised law for 20 years.  For the last 17 of those years, he was a partner in a Victoria law firm.  During at least part of that time, he practised law through the business model of a personal law corporation.  Money he received from the firm went into his law corporation.  He did not take all that money out, at least not regularly.  Also, he split income with his wife in reliance on the applicable tax laws.  Accordingly, his income tax returns do not tell the full story of his pre‑accident earnings.  They need to be interpreted together with his personal law corporation’s annual financial statements, and the particulars of his income splitting with his wife.

[9]             In the result, determining the Plaintiff’s pre‑accident earning history will not be a straightforward exercise.  The complexity of that exercise, however, pales when it is compared with determining the Plaintiff’s earnings, lost earnings, and diminished earning capacity post-accident.

[10]         The Plaintiff has maintained, at different times, at least three personal companies:  through one, after his accident, he became the president of a mining company; through another, also after the accident, he consulted on WorkSafe BC claims; the other was his pre‑existing personal law corporation, which remained in place until December 31, 2014, to receive the Plaintiff’s declining earnings from his residual practise of law.  That included some post‑accident legal work by the Plaintiff, as well as some pre‑accident legal work which gave rise to post‑accident remuneration.

[11]         It will, in my view, be extremely difficult for the trier of fact to sort out both the Plaintiff’s true earnings in the post‑accident period, and the extent to which the accident impaired his earning capacity.

[12]         Furthermore, the Plaintiff’s post‑accident earnings history, and evidence of earning capacity, is over-layered with a dispute the Plaintiff had with a post‑accident business colleague, who was a former client from the Plaintiff’s law practice.  Plaintiff’s counsel characterized the evidence of that dispute as amounting to a trial within a trial in this proceeding, and that is not an unreasonable analogy.

[13]         The difficulties for a jury in this case would be increased by the difficulties a judge would have in properly charging the jury in matters of causation and the quantification of damages.

[14]         The brief summary above, of the complexities in determining both causation and damages, and in the judge charging the jury, probably would have caused me to strike the jury even if there were no other relevant facts.  When I add the other complexities of the case, which are associated with the accident itself, and the related medical evidence, the complexity is only increased.

[15]         I will preface this next part of the analysis by saying that what I call the accident evidence and medical evidence, viewed in isolation, would probably not have caused me to strike the jury.  That evidence becomes relevant on this application, however, when it is added to the evidence associated with determining the past and future income loss, and diminished earning capacity, discussed earlier in these reasons.

[16]         Liability is in issue.  All the elements of the damages claimed are also in issue.  The Defendant, through his pleadings and his expert witnesses, disputes diagnosis, causation, mitigation, prognosis and the Plaintiff’s working capacity.  It is probably the case, as well, that at least some clinical records will have to become part of the evidentiary record.

[17]         The Plaintiff plans to call nine expert witnesses in at least seven disciplines, and the Defendant plans to call four expert witnesses and tender eight expert reports.  I further note that the Plaintiff intends to object to all or part of three of the Defendant’s expert reports, and the Defendant intends to object to all or part of four of the Plaintiff’s expert reports.

[18]         The law is clear in saying that the judge’s discretion on this application must be exercised having primary regard to his or her assessment of the relevant factors present in the particular application:  see Rados v. Pannu, 2015 BCCA 459, at paras. 30‑32 and Such v. Dominion Stores Ltd., [1961] O.R. 190 (Ont. C.A.).  In other words, the analysis, not surprisingly, is driven by the facts present in the application at bar.

[19]         What is appropriate for a jury to try has to do not only with the jury’s capacity to understand the evidence as it is presented and rebutted, but also to retain over several weeks what they have heard and then analyse it in the context of the questions they are required to answer.  (See Wipfli v. Britten, [1981] B.C.J. No. 1706 (F.C.) at paras. 30 and 31.)

[20]         When the facts in this application are viewed through the legal prism of the cases cited above, I find that the Plaintiff has established the three grounds he relies upon, noted above in paragraph 5.  As stated above in paragraph 6, I conclude that I should exercise my discretion to strike the jury.