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SCC Gives Robust Interpretation To BC Consumer Protection Legislation

Written by admin on . Posted in Uncategorized. 50 Comments on SCC Gives Robust Interpretation To BC Consumer Protection Legislation


Important reasons for judgement were released this week by the Supreme Court of Canada giving a robust interpretation to British Columbia’s Business Practices and Consumer Protection Act (the “BPCPA”).
In this week’s case (Seidel v. Telus Comminications Inc.) the Plaintiff was a customer with Telus.    Her contract with Telus purported to strip her right to sue if she had a dispute with the company and instead restricted her to “private, confidential and binding arbitration“.  In addition to this the contract purported to waive “any right (she) may have to commence or participate in any class action against Telus“.
The Plaintiff alleged that Telus engaged in deceptive billing practices.  She launched a lawsuit and intended to make it a class action.  She sued under s. 171 and 172 the BPCPA which in gave her the right to “bring an action in the Supreme Court” for damages and other relief in the face of “unconscionable acts or practices“.  Section 3 of the BPCPA states that “any waiver or release by a person of the person’s rights, benefits or protections under this Act is Void except to the extent that the waiver is expressly permitted by this Act.”
Telus relied on the waiver and argued that if it’s customers had complaints they had to participate in mediation or arbitration but could not sue nor participate in a Class Action.  In 5-4 split the Supreme Court of Canada disagreed and held that the BPCPA was paramount and that her court action “must be allowed“.  The Court went further and allowed the Plaintiff to seek to certify the lawsuit as a class action holding that the class action waiver was part and parcel of the clause which violated section 3 of the BPCPA.  In striking down the waiver the Canadian high court provided the following useful reasons:
[5] …. My opinion is that to the extent Ms. Seidel’s claim in the Supreme Court invokes s. 172 remedies in respect of “rights, benefits or protections” conferred by the BPCPA, her court action must be allowed to proceed notwithstanding the mediation/arbitration clause.  This includes her claims for declaratory and injunctive relief and, if granted, ancillary relief in the form of restoration to consumers of any money acquired by TELUS in contravention of the BPCPA.
[6]    The reason for this conclusion is simple.  Section 172 provides a mandate for consumer activists or others, whether or not they are personally “affected” in any way by any “consumer transaction”.  Section 172 contemplates such a person “bringing the action”.  The action is specified to be brought “in Supreme Court”.  The clear intention of the legislature is to supplement and multiply the efforts of the Director under theBPCPA to implement province-wide standards of fair consumer practices by enlisting the efforts of a whole host of self-appointed private enforcers.  In an era of tight government budgets and increasingly sophisticated supplier contracts, this is understandable legislative policy.  An action in the Supreme Court will generate a measure of notoriety and, where successful, public denunciation, neither of which would be achieved to nearly the same extent by “private, confidential and binding arbitration”….
[24]  ….from the perspective of the BPCPA, “private, confidential and binding arbitration” will almost certainly inhibit rather than promote wide publicity (and thus deterrence) of deceptive and/or unconscionable commercial conduct.  It is clearly open to a legislature to utilize private consumers as effective enforcement partners operating independently of the formal enforcement bureaucracy and to conclude that the most effective form is not a “private and confidential” alternative dispute resolution behind closed doors, but very public and well-publicized proceedings in a court of law…
[37]    As to statutory purpose, the BPCPA is all about consumer protection.  As such, its terms should be interpreted generously in favour of consumers: Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R. 129, and ACS Public Sector Solutions Inc. v. Courthouse Technologies Ltd., 2005 BCCA 605, 48 B.C.L.R. (4th) 328.  The policy objectives of s. 172 would not be well served by low-profile, private and confidential arbitrations where consumers of a particular product may have little opportunity to connect with other consumers who may share their experience and complaints and seek vindication through a well-publicized court action…
[40]  In summary, s. 172 offer remedies different in scope and quality from those available from an arbitrator and constitutes a legislative override of the parties’ freedom to choose arbitration.  Unlike Quebec and Ontario, which have decided to ban arbitration of consumer claims altogether, or Alberta, which subjects consumer arbitration clauses to ministerial approval, the B.C. legislature sought to ensure only that certain claims proceed to the court system, leaving others to be resolved according to the agreement of the parties.  It is incumbent on the courts to give effect to that legislative choice, in my view.

Part 7 Benefits Deductions and the "Two Hats" of ICBC

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized. 2 Comments on Part 7 Benefits Deductions and the "Two Hats" of ICBC


When a Plaintiff is awarded damages following a negligence claim from a BC motor vehicle collision, a Defendant can reduce the amount of damages they have to pay by the amount of no-fault benefits a Plaintiff can claim under their own policy of insurance from ICBC.  As recently discussed, this can result in a very harsh reduction.
The purpose for this deduction is so an accident victim doesn’t ‘double dip’.  That is, a person should not be paid twice for the same accident related expenses.  The reality, however, is that in most BC personal injury trials both the Plaintiff and Defendant are insured by ICBC.  This leads to a built-in conflict of interest.  At trial defence counsel appointed by ICBC will often argue that a Plaintiff’s claimed future medical care needs are not reasonable.  If the Plaintiff is awarded damages for future care the same counsel will then often argue that the award should be reduced as ICBC will pay for these damages under the Plaintiff’s own policy of insurance.
It is difficult to reconcile these two positions.  In 2009 the BC Court of Appeal found that trial judges can consider defence counsel’s trial submissions as a reflection of ICBC’s views with respect to the likelihood of payment of future insurance benefits.  Further reasons for judgement were recently brought to my attention demonstrating this practical approach by trial judges in face of ICBC’s arguments.
In today’s case (Van Den Hemel v. Kugathasan) the Plaintiff was injured in two seperate collisions.   At trial the Plaintiff was awarded damages including $8,000 for cost of future medical care.  The Defendants then argued that all of this should be deducted as ICBC would likely pay these expenses under the Plaintiff’s policy of insurance.
Mr. Justice Stewart disagreed with this submission and in doing so acknowledged the reality that ICBC’s views were likely expressed through counsel at trial and the Court would be “naive” to ignore these.  Mr. Justice Stewart reduced the award by only $100 and in doing so provided the following helpful reasons:
[9]  … whether the kinds of treatment at the cost accepted in my judgement would be paid in their entirety by ICBC is problematic, and the position taken in the tort case by the defendants, – effectively ICBC – with respect to the nature, extent, and source of the plaintiff’s problems.  ICBC is stuck with having to wear two hats – defend the tort action versus administer Part 7 – but I would be naive if I ignored the significance of the position taken in the trial simply because ICBC has no choice but to wear two hats.  The need to be realistic in assessing the ‘uncertainties’ lies at the heart of what the Court of Appeal had to say in Schmitt v. Thomas and in Boota v. Dhaliwal.
As of today’s date Mr. Justice Stewart’s recent judgement remains unpublished but I would be happy to share a copy with anyone who contacts me and requests one.

Motorcycle Learner Licences, the Supervision Requirement and Breach of Insurance

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized. 118 Comments on Motorcycle Learner Licences, the Supervision Requirement and Breach of Insurance


Useful reasons for judgement were released this week by the BC Court of Appeal addressing the circumstances when a motorcycle learner will be held in breach of insurance for not being supervised by a qualified driver.
In today’s case (Hagen v. ICBC) the Plaintiff had a valid 6L learner’s licence.  One requirement of a learner’s motorcycle licence is for the learner to be supervised while riding by a fully licenced motorcyclist.  The Plaintiff was being supervised by his wife who had a valid motorcycle licence.   While riding in Vancouver in 2008 the Plaintiff was momentarily out of the view of his wife.  At this time he was struck by a truck making a u-turn and was seriously injured.
The Plaintiff applied to ICBC for no-fault benefits but ICBC refused to pay these arguing that the Plaintiff was in breach of his insurance for failing to comply with section 30.06 of the Motor Vehicle Act Regulations which read in part as follows:

Section 30.06 of the Motor Vehicle Act Regulations provides:

(4)        A person to whom a Class 6L licence is issued, … must not operate a motorcycle unless the person is under the direct supervision of another person who

(a) is at least 19 years of age, and

(b) holds a valid and subsisting driver’s licence, other than a learner’s licence … of a class that permits him or her to operate a motorcycle.

…

(5)        For the purposes of subsections (4) … direct supervision means that the person supervising can, at all times, see the other person while the other person is operating the motorcycle.

ICBC argued that “however momentary the separation of the vehicles may and consequent loss of sight may be, such loss of sight…negates eligibility for Part 7 Benefits“.  The trial judge disagreed with ICBC and ordered them to pay the Plaintiff no-fault benefits finding that ICBC’s interpretation would impose “financially devastating consequences on a person as a result of events over which he or she had no control”
ICBC appealed and failed.  In dismissing ICBC’s arguments the BC Court of Appeal provided the following useful reasons addressing the requirement of learner motorcyclists to be supervised:

[21]         One may ask whether it was intended that a learner motorcyclist would be in breach of the supervision requirement when, having arranged for supervision, the supervisor acted contrary to agreement and took another route? In my view the answer is no.

[22]         This discussion is akin to the discussion of “due diligence” urged upon us by the appellant in saying we need not concern ourselves with the “offence” consequences of the interpretation it advocates. It says Mr. Hagen could answer a charge of breaching the supervision requirement by saying that he demonstrated due diligence in his attempt to comply, and that his non-compliance was outside of his control. In other words, it says a charge of breaching s. 30.06(4) would be treated as a strict liability offence. If that is the case, why, then, should other consequences, perhaps more grave, adhere to Mr. Hagen in a civil context because his supervision failed in spite of his reasonable efforts to comply with the section?

[23]         Section 30.06(4) is directed entirely to the behaviour of the learner, and in my view s. 30.06(5), in articulating the requirement of observation at all times, must be read as focusing upon the behaviour for which the learner can be responsible. Taking this approach, s. 30.06 of the Regulations, read in context, requires the learner to take all reasonable steps to ensure he (or she) is being supervised in compliance with the Regulations. This requires the learner to arrange for supervision by a person who commits to keeping him in sight at all times, and requires the learner to refrain from driving where it is not reasonable for him (or her) to think such supervision is occurring. I readily acknowledge that there will be circumstances in which a supervisor who fails to follow may nullify the learner’s Part 7 benefits, as in a failure to keep sight of the learner for such a period of time or distance that the learner, acting reasonably, should have become aware the plan for supervision had been compromised. Thus there will be a factual question: did the learner take all reasonable steps to ensure he was being supervised? In this case that translates to the question: should the learner have been aware he was not in sight of the supervisor?

[24]         This is a case in which the supervisor, not the learner, made a mistake, a mistake which was so near in time and distance to the accident it was open to conclude Mr. Hagen could not be faulted for failing to detect his loss of supervision. The judge described the lack of supervision as momentary. He referred to evidence that Mr. Hagen had seen the supervisor behind him at the previous intersection. The judge considered the evidence of the street design and the evidence that the many stop signs had permitted some vehicles to fall in between Mr. Hagen and his supervisor. I consider it was open to him on the evidence to conclude that this was a case of loss of contact that did not put Mr. Hagen in breach of the Regulations.

[25]         It follows I would dismiss the appeal.

More on Document Disclosure and the New Rules of Court: MSP and Pharmanet Printouts

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 7, Uncategorized.


As previously discussed, the New Rules of Court have limited the scope of pre-trial document production and further have introduced the concept of ‘proportionality‘ in deciding what types of documents need to be disclosed in litigation.  The law continues to develop with respect to the application of these changes and recently the BC Supreme Court released reasons for judgement addressing two classes of documents which are often requested in BC personal injury lawsuits; MSP and Pharmanet Printouts.
In the recent case (Anderson v. Kauhane and Roome) the Plaintiff was injured in a 2008 BC motor vehicle collision.  She sued for damages.  In the course of the lawsuit the Defendant requested her MSP and Pharmanet printouts (government documents which keep track of doctors visits and prescption drug purchases).  These documents were routinely produced in injury lawsuits under the former Supreme Court Rules.
The Plaintiff opposed arguing that the narrower scope of the New Civil Rules no longer made such documents automatically producible.  Master Baker agreed and dismissed the Defence application for production.  In doing so the Court considered disclosure of these documents both under that narrower ‘material fact’ test in Rule 7-1(1)(a) and the broader Peruvian Guano type disclosure under rule 7-1(11).  In dismissing the application Master Baker provided the following useful reasons:
The question is: do the documents in dispute, ie, MSP and Pharmanet, come withing the terms of either Rule 7-1(1)(a), ie, documents that can be used by a party of record to prove or disprove a material fact or that will be referred to at trial or, if not, do they come under category 7-1(11), generally, in the vernacular, referred to as the Guano documents…There is no question that there is a higher duty on a party requesting documents under the second category…that in addition to requesting, they must explain and satisfy either the party being demanded or the court, if an order is sought, with an explanation “with reasonable specificity that indicates the reason why such additional documents or classes of documents should be disclosed”, and again, there is no doubt that the new Rules have limited the obligation for production in the first instance to the first category that I have described and has reduced or lessened the obligation for production in general…
The question today is, would these documents prove a material fact if available?  I think not….I am not satisfied that at this juncture they can or will prove a material fact…
I acknowledge that the defence has pleaded – and I will say this – in what I think are now becoming boilerplate pleadings, has pleaded pre-existing conditions…I am not satisfied that, by simple pleading, that somehow opens up the matter to the higher standard represented by 7-1(11).  The obligation is still on the defendant to make that case, as far as I am concerned, and that moves me to the second aspect of this, has a case been made under 7-1(11)?
Has there been, in other words, reasonable specificity indicating why the additional documents or classes of documents should be disclosed?  I think not….It seems, in the circumstances, disproportionate to me to give an open-ended order that all Pharmanet records, for example, some seven years, or records with Medical Services Plan going back to January 1, 2004, are proportionate to the claim as it is expressed and understood at this point.  So the application is dismissed.
As far as I am aware this recent case is unpublished but, as always, I am happy to provide a copy of the reasons to anyone who contacts me to request one.

Applications Under the New Supreme Court Rules: How Much Detail Does Form 32 Require?

Written by admin on . Posted in BCSC Civil Rule 8, Uncategorized.


Two of the changes in the new BC Supreme Court Civil Rules are the requirement under Rule 8-1(4) that pre-trial applications be brought using Form 32 and that parties are generally prohibited from providing the Court with written arguments during applications.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing how much detail parties should include when filling out Form 32.
In today’s case (Zecher v. Josh) the Plaintiff was injured in a motor vehicle collision.  The Defendant brought a motion asking the Plaintiff to produce a Pharmanet Printout, monthly statements from his student line of credit, and particulars of his wage loss claim.  The applications were dismissed “largely due to the inadequacy of the material presented”.  For this reason the judgement does not go far in addressing the substance of such applications under the new Civil Rules.  However, in dismissing the applications Master Bouck provided the following helpful reasons guiding litigants when preparing Form 32:

[30]         Form 32 of the SCCR lends itself to providing both the opposing party and the court with full disclosure of the argument to be made in chambers. Parties should put in as much thought to the necessary content of that Form as is done when preparing the supporting affidavits. When a party is represented, responsibility for that content lies with counsel.

[31]        No doubt the Lieutenant Governor-in-Council intended Part 3 of Form 32 to contain more than a cursory listing of the Rules that might support the particular application. For example, common law authorities can and should be included as well as a brief legal analysis. Such an analysis is particularly helpful given that parties are not able to present a separate written argument in civil chambers unless the application is scheduled to take two hours or more of court time.

[32]        In my experience and observation, a comprehensive legal analysis can easily be included in a 10-page notice of application. As well, Rule 8-1 (4) allows the parties to include a list of authorities in the application record.

[33]        By providing an effective analysis of the legal basis for (or against) making the order, the parties may well be able to resolve the application without attending court.

"Feeds of Disaster" Injury Law Blogs Now Made in Canada?

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We import a lot of great things from the US but one American innovation I don’t want to see in Canada are personal injury lawyer ‘feeds of disaster‘.
Legal blogger and former personal injury lawyer Kevin O’Keefe recently authored a thoughtful post discussing these feeds.
In short “feeds of disaster” are legal blogs that do little more than “grab the tragic headlines and post them one after the other after the other. It’s like a running feed of disaster.”  Kevin concludes that lawyers that use blogs in this way create “a disaster to a lawyer’s reputation. A disaster in taste in using accident victims for your pecuniary gain. And a disaster to the reputation of our legal profession.”
Kevin, who is based in Washington State, occasionally calls out American lawyers for their on-line activities.  Feeds of disaster are not limited to blogging but also to other social media outposts such as Twitter where this posting method paints a less than flattering image for personal injury lawyers.
After discussing Kevin’s views on Twitter Antonin Pribetic, a Canadian legal blogger and lawyer, notes that feeds of disaster may not be limited to the US.  With the following tweet Antonin suggests I keep a lookout for Canadian feeds of disaster:

Now I’m not a lawyer watchdog and don’t have any demerits to hand out for lawyers’ blogging and social media methods.  The public at large can judge whether various personal injury blogs are distasteful and valueless.  However, I’d be interested if anyone has come across examples of disaster feeds by Canadian personal injury lawyers.  Feel free to contact me if you come across Canadian injury lawyer advertisements that are in particularly poor taste.

Negligence Claims Against Road Maintenance Companies

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 103 Comments on Negligence Claims Against Road Maintenance Companies


If a private contractor fails to clear ice, snow or other hazards on a roadway in British Columbia and this leads to a collision they can, depending on the circumstnaces, be sued for damages in negligence.  This topic was discussed in reasons for judgement released yesterday by the BC Supreme Court, Smithers Registry.
In yesterday’s case (Billabong Road & Bridge Maintenance Inc. v. Brook) the Plaintiff was involved in a single vehicle collision on Highway 16E near Smithers, BC.   She lost control of her vehicle on black-ice and left the roadway.  At the time the Defendant had the contract with the Provincial Government to maintain that stretch of highway.  They did not sand the road and the Plaintiff sued claiming they were at fault for the crash.  The Defendant argued that the Plaintiff drove carelessly and was solely to blame for the crash.
At trial the presiding Judge found both the Plaintiff and Defendant were at fault.  The road maintenance company appealed arguing that the Judge imposed an unfair standard on them.  The appeal was dismissed with the BC Supreme Court finding that the contractor did not respond appropriately to the known slippery conditions.  While the outcome of these cases are highly fact driven Madam Justice Bruce provided the following useful reasons discussing the law of road contractor liability in British Columbia:

[25]        Where the Province delegates responsibility for road maintenance to a private contractor, the contractor inherits the same Crown immunity for policy decisions, but continues to be liable under private law for negligence arising out of operational decisions. For example, where the contract with the Provincial Government specifies that particular road work must be completed within two hours of certain events, compliance with this standard is sufficient to clothe the contractor with immunity for any claim in negligence by a pedestrian or motorist. This is because the time frame for the completion of the work is a matter of policy set by the Provincial Government after balancing the costs associated with the work with the need to ensure the safety of the travelling public. As Meiklem J. says in Holbrook v. Argo Road Maintenance Inc., [1996] B.C.J. No. 1855 (S.C.) at paras. 27-28:

[27]      On the analysis prescribed by the majority of the Supreme Court of Canada in the Just and Brown cases, policy decisions of the Crown are not reviewable and in Brown it was expressly held that decisions as to the level of road maintenance are decisions of policy and cannot be reviewed on a private law standard of reasonableness. They are only reviewable if so irrational as not to be a proper exercise of discretion.

[28]      The application of these principles of course allows the government ministry to indirectly establish the upper limits of the standard of care that they are then held to in their operational functions. Thus the courts defer in a substantial way to the government ministry and the operational standard of care slides up and down the scale according to the level of road maintenance that is set as a matter of policy. Thus if a private law standard of reasonableness in a certain storm condition might suggest hourly patrols but policy has set the frequency of patrols at daily, the latter would prevail as the applicable standard in a negligence action against the Ministry.

[26]        On the other hand, where the negligence arises out of an operational decision, and is not based on a standard of care established as a matter of policy by the terms of the contract with the Provincial Government, a contractor must meet the private law standard. The Court of Appeal described this operational standard of care in Benoit v. Farrell Estate, 2004 BCCA 348 at para. 39:

[39]      The parties agree that Mainroad’s duty is coterminous with the Crown’s duty of care to users of public highways in respect of operational matters.  They agree that the decision whether to apply salt to Highway #4 was an operational decision and that the duty of Mainroad was to take reasonable care to prevent injury to users of the highway by icy conditions: Brown v. British Columbia, [1994] 1 S.C.R. 420 at 439.  The standard of care in respect of highway maintenance was more recently described in Housen v. Nikolaisen at para. 38, quoting from Partridge v. Rural Municipality of Langenburg, [1929] 3 W.W.R. 555 at 558-59 (Sask. C.A.):

…the road must be kept in such a reasonable state of repair that those requiring to use it may, exercising ordinary care, travel upon it with safety.  What is a reasonable state of repair is a question of fact, depending upon all the surrounding circumstances….

More on Mitigation of Damages: Working When Your Doctor Says Stop

Written by admin on . Posted in ICBC Wage Loss, Uncategorized.


As previously discussed, if you sue for damages as a result of personal injuries you have a duty to minimize you losses.  If you fail to take reasonable efforts to do so the damages you are entitled to can be reduced.  This legal principle is called “failure to mitigate“.
The most common argument addressing mitigation relates to following doctor’s advice.  If a person fails to follow medical advice without good reason their damages can be reduced.  Earlier this week the BC Court of Appeal had an opportunity to address an interesting mitigation issue: Does a Plaintiff fail to mitigate their damages when they ignore their doctor’s advice to take time away from work?
In this week’s case (Bradshaw v. Matwick) the Plaintiff was in a 2006 rear-end crash.   Following the collision the Plaintiff’s doctor “recommended that the plaintiff stop working and enter into a full-time rehabilitation program.  He felt that the plaintiff’s recovery would be hastened by entering into such a program”  The Plaintiff did not follow this advice.  When asked why he explained that he simply could not afford time away from work testifying that “his financial situation was such that he needed to continue working“.
At trial the Plaintiff was awarded just over $268,000 in total damages for his injuries and loss.  The Defendant appealed arguing, amongst other things, that the trial judge erred in failing to reduce the damages for the Plaintiff’s failure to follow his doctor’s advice.  The BC Court of Appeal disagreed with this argument finding that the Plaintiff’s decision to continue working out of financial need was reasonable.  In dismissing this aspect of the appeal the Court provided the following helpful reasons:

[16]         The trial judge found that the plaintiff had acted reasonably in returning to work in August 2006, and that he had generally followed recommendations for rehabilitative exercise:

[40]          In regards to Mr. Bradshaw continuing to work in August 2006, against his doctor’s advice, Mr. Bradshaw had no choice.  The plaintiff had a less than accommodating employer.  The plaintiff was aware that in order to keep his job, he had to work at his job.  It would be reasonable for the plaintiff to conclude based on his job circumstances, that taking a substantial time off to recover would result in the loss of his job.  The effects for the plaintiff in this respect would be devastating.  He has worked for Rebelle for over twenty years.  He has limited reading and writing skills which would make any new job which would require training difficult for him.  It was not unreasonable for the plaintiff, in light of this circumstance, to make the decision to struggle on and hope for the best in his recovery while continuing to work.

[41]          Additionally, the plaintiff had significant commitments to a wife and two children.  He, at best, earns a moderate to good income in the $50,000 range.  It is highly unlikely that he could have survived on the modest wage loss funds available to him either through the defendants’ insurer or through the employment insurance program.  His wife, Ms. Bennett, has only ever worked part-time and although she no doubt contributes to the family expenses, the household consists of two adults, and two children, in a home they own with a mortgage.

[17]         On appeal, the defendants point to evidence from the plaintiff’s doctor to the effect that he would have given the plaintiff a medical note recommending full-time rehabilitation if one had been requested, and to the employer’s evidence that it would have given the plaintiff a leave of absence if such a note had been provided.  They also argue that the plaintiff presented only minimal evidence of his financial position in August 2006, and contend that the trial judge relied on inadmissible hearsay.  The defendants say that, in the face of that evidence, the judge’s finding that it was reasonable for the plaintiff to return to work represents a palpable and overriding error.

[18]         I am unable to accept the defendants’ assertion.  There was considerable evidence concerning difficulties in the relationship between the plaintiff and his employer.  In the circumstances, it was open to the trial judge to accept that the plaintiff had a reasonable apprehension that he might lose his employment if he did not return to work.  While the evidence of the plaintiff’s precise financial position in August 2006 was limited, there was sufficient information before the trial judge to allow him to conclude that the plaintiff’s financial position was not sufficiently secure to allow him to risk losing his job.

[19]         In any event, even if it had been unequivocally established that the plaintiff’s recovery was delayed by his decision to return to work in August 2006, it would not prove that the decision resulted in an exacerbation of his damages.  The plaintiff’s immediate wage losses were significantly reduced by his decision to return to work.  It is not at all apparent that any consequential increase in his non-pecuniary losses or subsequent wage losses would have offset the immediate gains.  Thus, the defendants have failed to show that the decision to return to work in August 2006 resulted in any net increase in the plaintiff’s damages.

Gazing at the Crystal Ball: ICBC Claims and Future Wage Loss

Written by admin on . Posted in ICBC Wage Loss, Uncategorized.


If you are injured through the fault of another and your injuries effect your ability to earn a living you can seek compensation for ‘diminished earning capacity‘.  Valuing this loss requires an assessment instead of a mathematical calculation.  Since these losses are ‘assessed‘ this gives rise to a wide latitude of legally justifiable awards. This latitude was discussed in Reasons for Judgement released yesterday by the BC Court of Appeal.
In yesterday’s case (Mackie v. Gruber) the Plaintiff was injured in a 2006 BC motor vehicle collision.  At trial the Plaintiff was awarded almost $250,000 including $130,000 for loss of future earning capacity.
Both the Plaintiff and ICBC appealed this award.  The Plaintiff argued it was too low claiming that the judge made a “palpable and over-riding error” in failing to consider the fair value of the Plaintiff’s entrepreneurial capacity.   ICBC appealed arguing that the award was too high since “the Plaintiff returned to work within two weeks of the accident and her past loss of earnings up to the date of trial was only $19,546“.
The BC Court of Appeal held that the trial judge did not err and dismissed both appeals.  In doing so the Court provided the following reasons addressing the wide latitude of permissible results in quantifying diminished earning capacity:

[18]         Quantifying an award for loss of future earning capacity is a notoriously difficult judicial task given the multitude of factors and future uncertainties at play. It is not a mathematical calculation, but a matter of assessment and judgment, guided by the basic principle that a plaintiff is entitled to be placed in the same position she would have been in but for the accident, and directed at producing an award that is reasonable and fair to all parties: Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158.

[19]         In Pallos, the case referred to by the trial judge, Mr. Justice Finch set out a number of approaches to this task:

[43]      The cases to which we were referred suggest various means of assigning a dollar value to the loss of capacity to earn income. One method is to postulate a minimum annual income loss for the plaintiff’s remaining years of work, to multiply the annual projected loss times the number of years remaining, and to calculate a present value of this sum. Another is to award the plaintiff’s entire annual income for one or more years. Another is to award the present value of some nominal percentage loss per annum applied against the plaintiff’s expected annual income. In the end, all of these methods seem equally arbitrary. It has, however, often been said that the difficulty of making a fair assessment of damages cannot relieve the court of its duty to do so. In all the circumstances, I would regard a fair award under this head to be the sum of $40,000.

[20]         I am not persuaded that the trial judge’s approach in this case resulted in an award that was unfair or unreasonable. In my view, both the appeal and cross-appeal must fail.

BC Court of Appeal Overturns $12 Million Jury Verdict

Written by admin on . Posted in Jury Trials, Uncategorized.

In a not unexpected development, the BC Court of Appeal released reasons for judgement today (Ciolli v. Galley) overturning a Jury Verdict awarding just over $12 Million dollars in damages to a Plaintiff who was injured in three separate motor vehicle collisions.
Following the Jury verdict the Defendants applied for a mistrial but the presiding Judge dismissed the defence motion.  The Defendants appealed the Jury Verdict arguing, amongst other reasons, that the trial judge failed to give appropriate instructions to the jury.  The BC Court of Appeal agreed and ordered a new trial.  In doing so the Court provided the following reasons:

[21]         As mentioned earlier, the defendants contend on appeal that the trial judge erred in refusing to grant the mistrial application and in failing to give an even-handed and fair summary of the evidence to the jury; and that the jury’s awards were without foundation or wholly out of proportion to the plaintiff’s losses.  I have already noted that the trial judge’s many references to the damages to which Ms. Ciolli was “entitled” may well have led the jury to be confused about the question of causation and about their duty to determine which of the plaintiff’s claims, if any, were properly attributable to the car accidents and in connection with the costs of future care, which were medically justified.  Fairness also required that in connection with loss of income-earning capacity and future care costs, the jury be instructed as to the need to apply a discount rate in order to assess the present value of the awards for future contingencies, and of course on the need to reduce such awards to reflect that they did represent contingencies rather than certain losses.  The law is clear that a trial judge’s failure to so instruct a jury constitutes error: see, e.g., Bell v. Stubbins (1991) 7 B.C.A.C. 177 at paras. 10-17; Halliday et al. v. Sanrud (1979) 15 B.C.L.R. 4 (C.A.) at 9.

[22]         It is also clear that the awards for non-pecuniary damages and loss of income-earning capacity were wholly out of proportion to what was justified by the evidence before the Court.  The non-pecuniary award of $327,000 would have been justified only had the plaintiff suffered a truly catastrophic injury, but the jury was not instructed to this effect.  (Counsel for Ms. Ciolli rightly acknowledged before us that her injuries were not catastrophic.)  With respect to loss of income-earning capacity, as Mr. Gunn submits, the sum of $5,600,000, if calculated over 23 years (i.e., until the plaintiff reaches age 65), constitutes an award of $243,478 per year.  It did not reflect the fact that the award is for a contingency rather than a certain loss, nor a discount rate required to represent the present value of the loss.

[23]         The foregoing errors are more than sufficient to warrant our interference with the jury’s award and to order a new trial.

Paragraphs 24-31 of the Judgement are also worth reviewing for the Court’s ‘obiter‘ discussion of when a trial judge should and should not declare a mistrial following an inordinately high Jury Verdict.