Skip to main content

Month: November 2010

No Rush Folks, The Call is Free!

Written by admin on . Posted in Uncategorized. 61 Comments on No Rush Folks, The Call is Free!


Over the past few years I’ve received plenty of e-mails and calls to discuss topics covered on my blog, radio interviews and other media participation.  Often people are looking for general legal information, other times they are seeking claim specific legal advice.
Every now and then a caller is hesitant to take up my time and rushes the conversation.  When I ask why they tell me they don’t want to be charged too much for the call.  This always catches me off guard because I don’t charge at all for these calls.
A recent such call prompted this short post.  I’d like to make it clear that inquiries are always welcome.  Time permitting I very much enjoy speaking with others about personal injury related matters.  If you call there is no need to rush, my initial consultations are always free of charge.  I only charge for my services when I’ve been formally retained with a written and signed agreement.
So, if you have a question about your claim or about BC Injury Law in general please don’t hesitate to contact me.  Thanks folks!

New Rules Caselaw Update: Costs and "Substantial Success" in the BC Supreme Court

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized. 51 Comments on New Rules Caselaw Update: Costs and "Substantial Success" in the BC Supreme Court


The New BC Supreme Court Rule 14-1(9) states that a successful party in a proceeding “must be awarded” costs unless the court otherwise orders.  The former Rule 57(9) dealt with this issue although it had slightly different wording.
Today reasons for judgement were released, for what I believe is the first time, dealing with and interpreting the new rule.
In today’s case (Aschenbrenner v. Yahemich) the Plaintiffs sued the Defendants for trespass, nuisance, defamation and other matters.  Ultimately they succeeded in some of their claims and were awarded just over $5,500 in total damages.  The Plaintiffs applied for an order of costs.  The Defendant opposed arguing that the costs award would be worth more than the awarded damages.
Ultimately Mr. Justice Metzger sided with the Plaintiffs and awarded them most of their costs.  In doing so the Court adopted authorities developed under the former rules.  Mr. Justice Metzger provided the following reasons discussing when a party is entitled to costs under Rule 14-1(9):

[12] Rule 14-1(9) of the Supreme Court Civil Rules states that:

(9)        Subject to subrule (12), costs of a proceeding must be awarded to the successful party unless the court otherwise orders.

[13] While the Rule itself does not include the term “substantial success” under the former Rule 57(9), it was held to be a necessary and sufficient condition for an award of costs under Rule 57(9) that success in the outcome of the trial be “substantial”: see Gold v. Gold, 82 B.C.L.R. (2d) 180, 32 B.C.A.C. 287.

[14] In Fotheringham v. Fotheringham, 2001 BCSC 1321 at para. 18, 108 A.C.W.S. (3d) 786, appeal to C.A. refused, 2002 BCCA 454, 172 B.C.A.C. 179, Bouck J. stated that a trial judge has absolute and unfettered discretion with respect to costs, but it ought not to be exercised against a successful party except for some good reason in connection with the case.

[15] Mr. Justice Bouck canvassed the factors to be considered with respect to Rule 57(9), and at para. 45 stated:

[45] Gold now seems to say that substantial success in an action should be decided by the trial judge looking at the various matters in dispute and weighing their relative importance. The words “substantial success” are not defined. For want of a better measure, since success, a passing grade, is around 50% or better, substantial success is about 75% or better. That does not mean a court must descend into a meticulous mathematical examination of the matters in dispute and assign a percentage to each matter. Rather, it is meant to serve as a rough and ready guide when looked at all the disputed matters globally.

[16] Mr. Justice Bouck then sets out a four step inquiry to determine whether or not to award costs after a trial at para. 46:

1.         First, by focusing on the “matters in dispute” at the trial. These may or may not include “issues” explicitly mentioned in the pleadings.

2.         Second, by assessing the weight or importance of those “matters” to the parties.

3.         Third, by doing a global determination with respect to all the matters in dispute and determining which party “substantially succeeded,” overall and therefore won the event.

4.         Fourth, where one party “substantially succeeded,” a consideration of whether there are reasons to “otherwise order” that the winning party be deprived of his or her costs and each side then bear their own costs.

(See also: Citta Construction v. Elizabeth Lane Holdings Ltd., 2004 BCSC 280, 129 A.C.W.S. (3d) 46 at para. 7.)

[17] Substantial success is not determined by counting up the number of issues and allocating success on each, or by comparing the dollar amounts, but by assessing success in the major issues of substance (Cohen v. Cohen, 1995 Carswell 608, 15 R.F.L. (4th) 84 (B.C.C.A.) at para. 4; Reilly v. Reilly, [1996] B.C.J. No. 1244 (S.C.); Rattenbury v. Rattenbury, 2001 BCSC 593, [2001] B.C.J. No. 889 at paras. 22-24, 33). Substantial success means success on 75% of the matters globally taking into account the weight of the issues and their importance to the parties. A court should compare the pleadings and the submissions with the actual results obtained by the parties (Rattenbury at para. 24.).

[18] In cases where one party achieves substantial success, the courts may award a portion of the substantially successful party’s costs. For example, in Newstone v. Newstone, [1994] B.C.J. No. 139, 2 R.F.L. (4th) 129 (C.A.), an award of one-half costs to a party was upheld where “[s]uccess, if it could be called that, lay more with the wife than with the husband …” One-half costs were also upheld in Rolls v. Rolls, [1996] B.C.J. No. 292, 20 R.F.L. (4th) 232 (C.A.), on the ground that such an award would not create an imbalanced judgment as much as would a full award. InCohen v. Cohen, a spouse was awarded 75% of her costs after success on her reapportionment claim, which was the largest and most time-consuming issue.

[19] The four step test identified by Bouck J. applies not only to matrimonial cases, but also to all types of cases where Rule 14-1(10) has application (Chaster (Guardian ad litem of) v. LeBlanc, 2008 BCSC 47, 164 A.C.W.S. (3d) 43 at para. 34).

[20] Where success is divided such that there is no substantially successful party, the parties may have to bear their own costs (Mari v. Mari, 2001 BCSC 1848, [2001] B.C.J. No. 2979).

[21] On a global view of the outcome of this litigation I find that the plaintiffs were substantially successful.

Another Judicial Rejection of ICBC's "Low Velocity Impact" Defence

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, Uncategorized.


I’ve written numerous times that ICBC’s Low Velocity Impact Defence (“LVI”) is not a legal principle.  A defence based on this principle was rejected yet again in reasons for judgement released today by the BC Supreme Court, Vancouver Registry,
In today’s case (Hunter v. Yuan) the Plaintiff’s vehicle was rear-ended by a taxi driven by the Defendant in 2006 in North Vancouver, BC.  Fault for the crash was admitted by the rear motorist.
Both parties agreed that the accident was “minor in nature“.  Despite the minor nature of the crash the Plaintiff was injured and continued to be troubled by her injuries by the time the claim reached trial some 4 years later.  The Defendant argued that this was a “minor accident which resulted in a minimal injury“.  In keeping with ICBC’s LVI policy the Defendant argued that the Plaintiff should receive nothing for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) or in the alternative “If the court were to award damages for non-pecuniary loss, the defence suggests that an award should be very modest“.
Madam Justice Morrison rejected the defence submission and awarded the Plaintiff damages for her losses including $35,000 for non-pecuniary damages.  In arriving at this figure the Court provided the following reasons:

[68]        First, I found the plaintiff to be entirely credible.  She did not seek to exaggerate, and gave her evidence in a very direct manner.  She was responsive to questions, and did not seek to avoid or be defensive with the tough questions posed on cross-examination.  I certainly accept her evidence with regard to her symptoms, past and present.  There is no credible or reliable evidence of any pre-existing injuries or conditions, and her injuries and ongoing symptoms are due to the accident of October 20, 2006.

[69]        It is true that the force of the accident was not major, but the evidence points to no other cause of the injuries and symptoms experienced by the plaintiff, other than the accident of October 20, 2006.

[70]        To say that the plaintiff experienced only three weeks of disability, or six or eight weeks at the most, is to ignore most of the evidence of the plaintiff, her family doctor, her fiancée, her father and Dr. Travlos.

[71]        Although by the summer of 2008 the plaintiff felt she was 85% recovered, she testified that at the present time, the flare-ups occur frequently, sometimes once every week or two, or more often, if she does activities that cause such flare-ups.  The flare-ups result in tension and muscle knots between her shoulder blades, particularly toward her right shoulder and neck area, and headaches occur.  She has sleep disruptions, difficulty getting to sleep, and voluntarily avoids some activities that she enjoyed prior to the accident; she avoids them rather than put herself in a position where pain or a flare-up will occur.

[72]        The evidence would indicate that her recovery has plateaued.  She takes Tylenol and Cyclobenzaprine on occasion, and she finds that she must remain active and exercise, as inactivity will make her symptoms worse.

[73]        The plaintiff’s pain is not chronic and continuous, but she suffers pain and increased pain with certain kinds of exertion.  It has been four years since the accident occurred, and Ms. Hunter continues to have pain in her shoulders, particularly her upper right back, and neck.  Ordinary daily activities such as carrying groceries, doing the laundry, vacuuming, and certain types of cleaning cause flare-ups, which result in pain.

[74]        Counsel for the plaintiff, in addressing the issue of non-pecuniary damages, has cited six cases where non-pecuniary damages ranged from $30,000 to $50,000.  Relying primarily onJackman v. All Season Labour Supplies Ltd. and Crichton v. McNaughton, the plaintiff submits that an award of $40,000 would be reasonable for non-pecuniary damages.

[75]        I agree that those two cases are helpful, given the evidence in this case, and I would award $35,000 for non-pecuniary damages.

This judgement demonstrates the reality that minimal crashes can result in injury including long-standing injury. The LVI Defence is divorced from medicine and law.  The rare occasions when the LVI defence succeeds before a judge is where the Plaintiff is found to lack credibility.   When injuries are supported with medical evidence it is rare for a lack of substantial vehicle damage to prove fatal to a personal injury lawsuit.

BC Civil Sex Abuse Claims and Party Anonymity: Protecting the Plaintiff by Protecting the Defendant

Written by admin on . Posted in Civil Procedure, Sexual Assault Civil Cases, Uncategorized.


Lawsuits are public matters.  Generally anyone is free to go to a Court Registry and obtain the names of parties to lawsuits and look at the formal issues of their claims.  This ‘open-court’ principle is fundamental in our Democracy and applies not only to criminal cases but also to civil cases including those dealing with claims for damages for sexual abuse.
It is understandably difficult for Plaintiffs to bring lawsuits dealing with the impact of sexual abuse in the best of circumstances and the open-court principle can serve as an unwelcome discouragement.  Accordingly BC Courts routinely make orders under the Court’s “inherent jurisdiction” to permit plaintiffs to identify themselves by their initials to protect their identity when dealing with sensitive lawsuits.
Sometimes, however, identifying a plaintiff by initials is not enough to protect their identity.  When this is the case the Court can go further to ensure a fair balance is struck between our open court system and the lack of deterrence of Plaintiffs seeking access to justice.  This balance was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (A.B v. C.D.) the Plaintiff sued a former high school teacher alleging that he sexually exploited, assaulted and battered her.  The Plaintiff also sued the school board arguing that they were ‘vicariously liable‘ for the misdeeds of the teacher.
In the course of the claim the Plaintiff was allowed to refer to herself by the initials AB.  The Defendants brought a motion seeking that they also be allowed to refer to themselves by initials.  The Vancouver Sun, wishing to fully report on the story, intervened and opposed the motion.  Madam Justice Gray ultimately granted the motion.  The reason for doing so was not to protect the defendants but rather to more meaningfully protect the identity of the Plaintiff.
The Court set out a lengthy summary of recent cases discussing the varying principles at stake.  From there Madam Justice Gray provided the following short and useful reasoning in allowing the initials order:

[81]        If the former teacher’s name is published in this case, it could lead members of the public, particularly people who were students and teachers at the plaintiff’s former school, to identify the complainant as the person involved in the criminal proceedings and these related civil proceedings. As a result, the September 27, 2010 ban shall be clarified to provide for restraint on the publication of the former teacher’s name.

[82]        It may seem odd that the former teacher will be treated better than others convicted of sexual offences if his name and identifying information is suppressed. However, this is simply the result of the publication ban and the circumstances. For example, where an accused person has a family relationship to an accused, it is routine to avoid publication of the name of the accused, because it could lead to identification of the complainant. This does not suggest that sexual offenders who prey on family members deserve better treatment, but simply reflects the inevitable result of protecting the complainant’s identity…

[84]        Schools are sufficiently small communities that a few facts can readily identify a former student. Here, the evidence shows that two teachers from the plaintiff’s former school have recently been accused of sexual misconduct with a student. That is such a small number of teachers that publication of the name of the school is likely to lead to identification of the plaintiff, particularly in combination with other details relevant to the plaintiff’s claim, such as her career.

[85]        In this case, a ban on publication of the name of the plaintiff’s former school is required for compliance with the September 27, 2010 ban on publication of information that would tend to identify the plaintiff…

[86]        The evidence shows that there are several high schools operated by the defendant school district. The community served by the defendant school district is a relatively small community. The only evidence of alleged or proven sexual misconduct by teachers in the defendant school district was of the two teachers who formerly taught at the plaintiff’s former high school.

[87]        In the circumstances of this case, publication of the name of the school board is likely to lead to identification of the plaintiff. As a result, the order must be clarified to prohibit publication of that information.

The Debate Goes On… Independent Medical Exams and "Responsive" Expert Evidence

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized. 51 Comments on The Debate Goes On… Independent Medical Exams and "Responsive" Expert Evidence


Rule 11-6(3) of the new BC Supreme Court Civil Rules requires expert reports to be served 84 days prior to trial.  Rule 11-6(4) requires “responding” reports to be served at least 42 days prior to trial.  The issue of whether a Defendant is able to force a plaintiff to attend an “independent medical exam” for the purpose of obtaining a responding report is currently being worked out by the BC Supreme Court.  Reasons for judgement were released last week demonstrating this matter remains a live issue.
Earlier this year, Mr. Justice Savage declined a defence motion to compel a Plaintiff to attend a doctor’s examination to obtain a responding report finding that an independent examination of a Plaintiff is not necessarily required since responding reports are to be strictly limited to “a critical analysis of the methodology of the opposing expert”
In a case released last week the Court reached a seemingly opposite result with a finding that an independent medical exam can be compelled to allow a Defendant to obtain a responding report in a personal injury claim.
In last week’s case (Luedecke v. Hillman) the Plaintiff was injured in a BC motor vehicle collision.  He served his expert reports in the timelines required by the Rules of Court.  The Defendant sought an order for an independent medical exam to obtain a responding opinion.  The Plaintiff opposed arguing that a medical examination is not necessary to obtain a truly responding opinion.  Mr. Justice Cullen disagreed and upheld a Master’s order compelling the Plaintiff to see the Defendant’s doctor.  In doing so the Court noted as follows:

[49]        Although the plaintiff submits that Dr. Reebye should be limited in his report to “criticizing the methodology or the research or pointing out facts apparent from the records which the other examiners may have overlooked” based on Justice Savage’s apparent reliance on C.N. Rail, supra, I do not take from Savage J.’s judgment that responsive opinions are invariably limited to “a critical analysis of the methodology of the opposing expert.”

[50]        In C.N. Rail, supra, Henderson J. was dealing with rebuttal evidence in the classic sense described by Southin J.A. in Sterritt v. McLeod, supra, as simply evidence responsive to some point in the oral evidence of the witness called by the defendant.

[51]        What is at issue in the present case is a different form of responsive evidence, recognized in Stainer v. Plaza, supra, as distinct in paragraph 15, where Finch J.A. ( as he then was) noted:

The third condition in the order is directed to the third party calling an independent medical examiner “for rebuttal evidence” I understand from counsel that this refers not to rebuttal evidence as generally understood, but to evidence that is purely responsive to medical evidence which the plaintiff has led as part of her case.  It would not apply to opinion evidence offered by the third party on subject matters not adduced in the medical evidence adduced by the plaintiff. [underlining added]

[52]        I thus conclude that what is referred to in Rule 11-6(4) is not akin to rebuttal evidence such as that called by a plaintiff in response to a defendant’s case, with its consequent limitations.  Nor is it akin to expert evidence that responds generally to the subject matter of the plaintiff’s case.  Rather, it refers to evidence that is “purely responsive” to the medical evidence which the other party has called.

[53]        As such, it has inherent limitations, but not necessarily the same limitations that Henderson J imposed on the true rebuttal evidence he was dealing with in C.N. Rail, supra.

[54]        I agree with the conclusion of Mr. Justice Savage in Wright v. Brauer, supra, to the effect that there is an evidentiary threshold to be met before an order under Rule 7-6(1) should be made in contemplation of an expert’s report under Rule 11-6(4).  That threshold is different from that for ordering an expert’s report under Rule 11-6(3).  To reach the requisite threshold under Rule 11-6(4) the applicant must establish a basis of necessity for the examination to properly respond to the expert witness whose report is served under subrule (3) by the other party.  It is not simply a matter of demonstrating a need to respond to the subject matter of the plaintiff’s case.

[55]        Clearly, that threshold was not met in the case before Savage J.  In the case before me there is an affidavit from Dr. Reebye setting forth a basis for the examination sought, although ultimately what Dr. Reebye may regard as purely responsive may be different from that which the trial judge eventually concludes to be so.  That issue must await another day.  Here I am dealing with a more limited issue, and I am satisfied that on the basis of Dr. Reebye’s affidavit the evidentiary threshold is met and the order of Master Scarth should be upheld.

[56]        I am alive to the concern expressed by the plaintiff’s counsel that Rule 11-6(4) may be seen as a means for defendants to circumvent the more onerous notice provisions of 11-6(3) and routinely seek to obtain reports that more properly should be sought under that latter rule.  I conclude, however, that such a concern can be met as it was with the practice of having opinion evidence without notice under the old Rule 40A.  In that regard, the words of Williamson J. in Kelley v. Kelley (1995), 20 B.C.L.R. (3d) 232 (S.C.) are apt:

I would restrict, of course, as courts I think must, the practice of having opinion evidence without notice strictly to truly responsive rebuttal evidence, and I think if that rule is carefully observed, there should be no difficulties.

As with judicial precedents developed under the former rules, I expect there will be some seemingly inconsistent judgements dealing with the issue of independent medical exams under the current rules and eventually the BC Court of Appeal will likely weigh in on the issue to bring some clarity to the law.

"Functional Assessment Biomechanical System" Permitted for First Time in BC Injury Trial

Written by admin on . Posted in Uncategorized. 63 Comments on "Functional Assessment Biomechanical System" Permitted for First Time in BC Injury Trial


The Functional Assessment Biomechanical System (“FAB”) is a motion capture system that tracks and measures body movements and biomechanical forces.  It has been used in recent years during work capacity evaluations.
Last year the inventor of the FAB attempted to have the system’s measurements introduced in two separate personal injury trials (you can click here and here to read my summaries of those cases).  Both times the trial Judges refused to let the evidence in finding that the inventor was not candid about his financial interests associated with system and further that the system did not meet the judicially required threshold of reliability.
More recently, in the trial of Carr v. Simpson the FAB’s inventor took a third kick at the can and attempted to have his system’s measurements introduced at trial.  This time he was forthright about his financial interest in the product.  This change in candour seemed to make all the difference with Mr. Justice Bernard allowing the FAB’s measurements to be introduced at trial.  Mr. Justice Bernard gave the following reasons permitting FAB measurements into evidence:

[11]         In the case at bar, Mr. McNeil testified with knowledge of the rulings in Rizzolo and Forstved, and the plaintiff has endeavoured to have Mr. McNeil address the evidentiary problems and shortcomings which were identified in these earlier cases. I am satisfied that in his present testimony Mr. McNeil has been more forthright about his role as inventor of FAB and of his financial interest in it. It seems that in both Rizzolo and Forstved it was Mr. McNeil’s lack of candour, rather than his inventor/owner status per se, which was particularly troubling to the court. I am not persuaded that the now more candid Mr. McNeil should be precluded from giving expert testimony merely because he has a financial interest in FAB, in the absence of other evidence which might call into question his independence.

[12]         In relation to the reliability of FAB and proof thereof, the evidence establishes that it is a measuring tool, albeit a technologically-advanced one, rather than a diagnostic instrument per se. The distinction is, in my view, important.

[13]         The science about which Mr. McNeil testified is the assessment of the human body’s functional capacity. This science is well-recognized by the courts, and its application generates findings which may be of assistance to the court and which could not likely be made without such evidence. It is not a novel science. The introduction of a novel measuring instrument in the application of a science does not make the science, itself, novel. For example, the advent of MRIs did not make orthopaedic medicine a novel science; accordingly, I am not persuaded that the cautious approach to admissibility (as suggested in R. v. J.-L.J. [R. v. J.J.], 2000 SCC 51, [2000] 2 S.C.R. 600, and adopted in Forstved), including the threshold burden imposed upon the tendering party, obtains. This is particularly so in non-jury trials in which the judge’s “gate-keeper” function has much reduced significance.

[14]         I do not mean to suggest by any of the foregoing that the reliability of the tools employed by experts may not be challenged in an attempt to undermine the factual underpinnings of a diagnosis or assessment; however, unless the undermining renders the opinion virtually valueless, it will go to the weight of the opinion and not to its admissibility. In the instant case, I am not satisfied that the evidence elicited from Mr. McNeil in cross-examination so weakened his opinion as to render it of no value and, therefore, inadmissible. As already noted, only Mr. McNeil testified in the voir dire, and the defendant elected to call no evidence on the issue of the reliability of FAB.

[15]         In summary, I am satisfied that the evidence tendered in this case relating to: (a) the reliability of FAB, and (b) Mr. McNeil’s financial interest in FAB, falls far short of establishing a reasonable basis for excluding the opinion evidence of Mr. McNeil. It remains open to the defendant to argue that these factors, to the extent that they are established by the evidence, affect the weight to be attached to Mr. McNeil’s opinion.