Court Finds ICBC Did Not Meet Their Burden for s. 83 Deductions after Jury Trial

BC’s Insurance Vehicle legislation allows a court to deduct from a claim for future loss those damages that have benefits payable under ICBC’s part 7 scheme.  ICBC’s track record of paying benefits and their position of a plaintiff’s entitlement to those benefits at trial don’t always align.  The legislation was recently amended to direct a court not consider the likelihood that the benefits will be paid or provided when making such deductions.

In one of the first judgements to consider this new language reasons were published today by the BC Supreme Court refusing ICBC’s application for deductions following a jury trial.

In today’s case (Siverston v. Griffin) the Plaintiff was injured in a collision and sued for her damages.  Following trial  a jury assessed damages which included $60,000 for future care.   The Defendant sought to have this award significantly reduced arguing many of the future care items could be paid by ICBC under their part 7 scheme.  Madam Justice Jackson was not persuaded, however, and refused to reduce the award.  In reaching this conclusion the court found the Defendant simply could not meet their burden with the jury’s lump sum award for future losses.  The Court provided the following reasons:

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BC Waives Liability From Covid-19 Exposure Claims to Essential Service Providers

Today BC’s Minister of Public Safety and Solicitor General enacted Ministerial Order M094.

This order provides legal immunity to ‘essential service’ providers from claims in negligence if someone alleges they were”infected with or exposed to SARS-CoV-2 as a result of the person’s operating or providing an essential service”.

The immunity does not apply to claims of gross negligence.  Also, to have the benefit of the immunity the essential service provider must comply with the following section:

(a) was operating or providing the essential service in accordance with all
applicable emergency and public health guidance, or

(b) reasonably believed that the person was operating or providing the essential
service in accordance with all applicable emergency and public health
guidance.

The full order can be found here.

The key sections read as follows:

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Lawyers Changing Firms and Disbursement Carriage

When a lawyer changes firms clients usually have a choice of whether to stay with their present firm or follow their lawyer to the new firm.  In the case of personal injury files prosecuted on a contingency basis there are often disbursements associated with the files.  When a client wishes to follow their lawyer to a new firm and have their file transfered who has the burden of paying for the disbursements?  Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, tackling this issue.

In today’s case (Sagert v. Cascade Law Corporation) the Petitioner’s employment with the Respondent law firm ended.  Approximately 58 of the Petitioner’s clients elected to have their claims stay with the Petitioner.  The Respondent firm had incurred disbursements on these files.  The firm argued that these had to be paid before the files would be transferred.  The Petitioner brought an application to have the files transferred without up front payment of disbursements.  The Court concluded that the firm was within their right to demand payment of disbursements prior to transfer.  In reaching this conclusion Mr. Justice Wilson provided the following reasons:

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$100,000 Non-Pecuniary Assessment For Incompletely Healed Tibia Fracture from Snowmobile Collision

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic leg injury following a snowmobile collision.

In today’s case (Carothers v. Imus) the Plaintiff was a passenger on a snowmobile that collided with another snowmobile crushing the plaintiff’s left leg in between the two snowmobiles.

The impact resulted in  a tibial fracture that required surgical intervention.  The injury went on to incomplete resolution and resulted in chronic symptoms.  In assessing non-pecuniary damages at $100,000 Madam Justice Horsman provided the following reasons:

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Court Criticizes ICBC “Failure” To Pay For Necessary Treatments Highlighting Shortcomings of their so called “Care Based” Model

ICBC and the Provincial government have been working overtime trying to persuade British Columbians that stripping collision victims of the right to go to court to be fairly paid for their injuries is a good idea.  They claim that by taking away these rights ICBC will treat victims fairly under a so-called ‘care based’ model.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, demonstrating that ICBC can be anything but fair when it comes to meeting their obligations to pay for long term injury treatments.

In today’s case (Del Bianco v. Yang) the Plaintiff sustained life long injuries in a collision.  At trial he was awarded damages which included payment for future care for massage therapy and kinesiology.  Despite being ordered to pay this money ICBC refused saying they will pay that portion of the judgement from the Plaintiff’s ‘no fault’ insurance with them over the years as the treatments are incurred.  An ICBC adjuster swore an affidavit declaring payments would be made.

The Court did not accept that ICBC would make payments, however, noting that they refused to pay the mandated no-fault benefits in the years prior to trial leaving little confidence that they would fairly meet their future obligations.  In refusing to deduct the vast majority of the awarded future care costs Mr. Justice Groves provided the following criticism of ICBC’s handling of the claim and their unexplained “failure” to pay past benefits they were obliged to:

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Slip and Fall Lawsuit Against City Dismissed Based on Policy Defence

When sued for negligence and Occupier’s Liability Act claims public bodies enjoy a defense that private citizens and businesses do not, namely the policy defense.   Actions taken pursuant to a good faith policy decision can shield a public body from liability in circumstances where a private defendant would be held liable.  Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, discussing and applying this principle.

In today’s case (Lowe v. Sidney (Town of)) the Plaintiff slipped and fell on black ice on a parking lot owned by the Defendant.  The Plaintiff argued the Defendant was negligent in failing to inspect and address this ice before the incident.  The Court disagreed and dismissed the claim.  In doing so Mr. Justice G.C. Weatherill made the following comments in applying the policy defence:

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Grouse Mountain Waiver Fails To Protect After Snowboarder Paralyzed

Reasons for judgement were published this week by the BC Court of Appeal finding purported waivers of liability to be of no force and effect.

In this week’s case (Apps v. Grouse Mountain Resorts Ltd) the Plaintiff suffered a significant spinal injury at the C4/5 level, and  was rendered quadriplegic while snowboarding the Defendant’s resort.  He sued for damages but at trial the claim was dismissed with the Court finding posted waivers of liability prevented the claim.

The BC Court of Appeal overturned the result finding the posted waiver signs were not adequate.  In reaching this conclusion BC’s highest court provided the following reasons:

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$42,000 Non-Pecuniary Assessmet for Finger Injury to “Skilled Piano Player”

One of the hallmarks of the current justice system in BC is individuals are treated uniquely when having their injuries and losses assessed.  Something the current government is hoping to take away with their proposed ICBC no fault system.  Reasons for judgement were published today showing this assessment of individual justice in action.

In today’s case (Fung v. Dhaliwal) the Plaintiff was injured in a 2013 collision.  Most of the injuries were transient and fully healed.  The Plaintiff, however, also suffered a cut to the middle of his long finger which went on to cause long term dysfunction.  The level of impairment was modest in most areas of life however the young plaintiff was a ‘skilled piano player’ and took great joy in this activity.  The injury compromised his musical abilities.  In assessing this unique loss and assessing non-pecuniary damages at $42,000 Madam Justice Forth provided the following reasons:

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Government Introduces Bill Retroactively Limiting Disbursements In Injury Claims

Last year BC’s Attorney General introduced court rule changes creating a hard cap on how many experts individuals could present when prosecuting an injury claim in BC Supreme Court.  It was designed to save ICBC money at the expense of people seeking a fair trial.  The rule changes were swiftly struck down as being unconstitutional.

This week the government is at it again.  They have introduced Bill 9 titled the Evidence Amendment Act, 2020 looking to bring in similar restrictions.

Like last year’s unconstitutional rule the bill looks to limit litigants with vehicle injury claims to one expert in fast track cases and no more than three in non fast track cases.  The key difference is the new bill allows the Court to permit “additional experts to be tendered” if there are areas others requiring opinion evidence not covered by other experts and that without additional evidence the applicant “would suffer prejudice disproportionate to the benefit of not increasing the complexity and cost of the proceeding.“.  The lack of judicial discretion was fatal to last year’s rule and this change will presumably save this bill from suffering the same fate.

Bill 9 goes further however and also looks to restrict disbursements in an arbitrary fashion.  Bill 9 retroactively limits the recovery of necessary expenses that were lawfully, properly and reasonably incurred in full compliance with existing rules.  The Bill gives the Lieutenant Governor in Council the power to cap  the amount of disbursements payable as a percentage of the total amount recovered in an action.  The Government announced they want the percentage to be 5%.

This rule, if implemented, will force people fighting ICBC to not call the evidence they need to prove their case unless they want to be stuck with an unrecoverable bill.  This is a slanted rule designed to favour ICBC.  The rule does not look after the public’s needs and instead favours a corporate institutional litigant.

A constitutional challenge will likely be launched if the government follows through with this ill conceived rule.

The full text of Bill 9 at first reading is as follows:

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$80,000 Non-Pecuniary Assessment for 80% Recovered but Lingering Myofascial Pain Syndrome

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for myofascial pain developed secondary to a vehicle collision.

In today’s case (Tang v. Duong) the Plaintiff was injured in a 2015 collision where the Defendant turned into the plaintiff’s lane of travel at an intersection.   The Plaintiff developed various soft tissue injuries which resulted in regional myofascial pain syndrome.  By the time of trial the injuries were about 80% improved but the lingering symptoms were expected to persist.  In assessing non-pecuniary damages at $80,000 Mr. Justice Thompson provided the following reasons:

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Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

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