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BC Injury Litigation – An Expensive Business

Written by admin on . Posted in Civil Procedure, Uncategorized. 51 Comments on BC Injury Litigation – An Expensive Business


Ask any personal injury lawyer in BC and they will tell you that Injury Claim prosecution can be a very expensive business.
The greatest expense associated with this type of litigation involves the services of expert witnesses.  It is very rare to prosecute an injury claim without hiring at least one expert to address issues such as diagnosis of injury, cause of injury, prognosis and future care needs.  Medical experts cost money and these expenses are usually paid by Plaintiffs lawyers up front.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, demonstrating just how expensive the services of expert witnesses can be.
In today’s case (Hamo v. Khan) the Plaintiff was injured in a 2001 BC Motor Vehicle Accident.  After the accident the Plaintiff started to suffer from collapsing spells.  The Plaintiff’s lawyer retained Dr. Hurwitz who is trained as both a psychiatrist and a neurologist to provide an opinion with respect to the relationship of the collapsing spells to the trauma.  Dr. Hurwitz generated two reports and billed the Plaintiff’s lawyer $69,543 for his services.
The parties to the lawsuit could not agree whether this expense was reasonable and the matter was brought before the BC Supreme Court.  Ultimately Registrar Blok held that the disbursement as presented was not reasonable and considerably reduced the amount recoverable for the disbursement associated with Dr. Hurwitz’s services.  In addressing this disbursement Registrar Blok provided the following useful reasons:

[47] I conclude that the time spent on the summarizing of the collateral medical information was excessive; in fact, vastly excessive, particularly given that a fair amount of the pertinent history seems to have been summarized elsewhere in the reports.  I also agree that, based on Dr. Hurwitz’s own evidence, in the case of the first report there was inefficiency as a result of the lengthy time it took to complete the process.

[48] As Master Joyce made clear in Cloutier v. Wong, and also as stated in Chandi v. Atwell, there is simply no need to prepare meticulous summaries of medical information obtained from other sources.  I accept that there was a need for Dr. Hurwitz to read and fully absorb this other medical information, but there was no need to do it in this expensive and time-consuming way.  If that is the only way Dr. Hurwitz can accomplish this task then that is all very well as between Dr. Hurwitz and counsel who retain him, but for the purposes of costs between party and party it is excessive and that excessive element cannot be passed on to the opposing party.

[49] I turn now to the hourly rate.  This was the subject of much debate, mostly on the significance of the B.C.M.A. fee schedule, which at present has a guideline fee of $356 per hour for “court preparation” and a fee of $1,495 for preparation of a “medico-legal opinion”.  The defendant did not rely on the “medico-legal opinion” guideline fee (and here I note that the defendant’s own experts did not appear to adhere to it) but did rely on the court preparation fee as providing guidance when considering the $500 per hour rate charged by Dr. Hurwitz.  For her part the plaintiff cited Mohr v. Dent (1983), 40 C.P.C. 8 (B.C.S.C.), where the court said that the B.C.M.A. fee schedule was a guide to the medical profession and had “nothing to do with what is a proper fee for an unsuccessful defendant to pay” (at para. 62).

[50] Both submissions are correct, in their way.  The B.C.M.A. fee schedule is not determinative of the proper amount that ought to be allowed as a disbursement but, as was noted in Moore v. Dhillon, [1992] B.C.J. 3055 (S.C.), it is “of some assistance … to know what the medical profession, in this province, views as a fair, and, presumably, competitive rate, for that particular service” (at para. 212).

[51] In my experience the B.C.M.A. fee schedule can be somewhat helpful in more straightforward cases, but as the cases become more complicated and the medical experts more specialized or accomplished its utility is much less.  Of more relevance, in my view, is the $375 hourly rate charged to the defendant by Dr. Davis, a psychiatrist, who although he does not have a dual specialty in psychiatry and neurology like Dr. Hurwitz, does have a postgraduate specialist degree in both disciplines.  I accept that, all other things being equal, Dr. Hurwitz could rightly charge a higher hourly rate than Dr. Davis because of his additional specialty, but the question is whether the plaintiff has met the burden of showing that Dr. Hurwitz’s hourly rate ought to be 33% more than that of Dr. Davis.

[52] I should say, because it was argued, that I did not find any assistance in knowing the hourly rate of the neuropsychologist, Dr. Crockett.  His specialty is really quite different than that of the medically-trained experts.

[53] The plaintiff made much of the unique nature of Dr. Hurwitz’s qualifications, and submitted that since he is the only one around with this dual specialty “he is the market”.  But this is circular reasoning which could be used to justify any rate at all (he charges this rate, he is the market, therefore it is the market rate and it is ipso facto reasonable).  It also ignores the alternative avenue of retaining two experts instead of one very expensive expert.  Counsel for the defendant did not advance this argument, but it seems to me that a good case might have been made that the plaintiff ought to be limited in her costs recovery to the possibly cheaper reasonable alternative of retaining two experts.

[54] Although the plaintiff submitted that Dr. Hurwitz’s dual qualifications avoided the “wasteful” alternative of having to retain specialists in two different fields, that argument falls rather abruptly in light of the evidence of the charges of the other medical experts, neurologists Dr. Cameron ($2,182) and Dr. Robinson ($2,500), and psychiatrists Dr. O’Shaughnessy ($2,600) and Dr. Davis ($3,850 for his first report), compared to the $45,000 (exclusive of GST) charged by Dr. Hurwitz for his first report.

[55] For these reasons I have concluded that the plaintiff has not met the burden of showing that Dr. Hurwitz’s hourly rate is reasonable.  Doing the best I can on the evidence available I am satisfied that an hourly rate of $425 is a reasonable one in all the circumstances.

[56] For the first report I conclude that fees of $18,000 (plus GST) are appropriate.  In general, this reflects my conclusions on the hourly rate, the unproductive and unnecessary clinical records summaries (though accepting and allowing for time that had to be spent reviewing those records) and the element of inefficiency due to the lengthy report-creating process, while accepting the time spent on the examination of the plaintiff and related interviews (that is, all the time spent prior to February 16, 2005) and the time that was shown to have been spent on the actual preparation of the report.

[57] For the second report I would allow fees of $9,800, plus GST, based in general on the elimination of the time spent on the records summaries (while allowing for time to have been spent reviewing those records) and the reduction in the hourly rate.

[58] The trial preparation charges I would allow at $936.25, based solely on the reduction in the hourly rate.  For some reason GST was not included in the subject invoice and therefore GST is not to be added to this disbursement.

[59] I disallow the “administration and processing” charges included in the first two accounts.  While it may be an interesting debate whether these charges should be disallowed because they are part of overhead (as they usually are with lawyers’ bills) or may be charged in addition (which, for reasons unknown, is by case authority allowable for receivers and bankruptcy trustees), I leave the answer to that question for another time because in this case there is no (or at least, insufficient) evidence to show what Dr. Hurwitz’s actual costs were or the relationship between the round-figure charges of $500 and $250 and his actual costs.

$50,000 Non-Pecuniary Damages for Chronic Whiplash Injury

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 52 Comments on $50,000 Non-Pecuniary Damages for Chronic Whiplash Injury

Adding to this ever-growing BC “Pain and Suffering” Caselaw Database, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff close to $90,000 in total damages as a result of injuries and losses sustained in a 2006 car crash.
In today’s case (Cabral v. Brice) the Plaintiff was in a pick up truck which was rear-ended by a commercial truck driven by the Defendant.  The issue of fault was admitted leaving the Court to determine the value of the Plaintiff’s injury claim.
The Plaintiff had a pre-existing problem from a herniated disc at C6-7 but this made a complete pain free recovery in the years before the crash.  This previous injury did, however, make the Plaintiff more susceptible to being injured in a motor vehicle collision.  The crash caused a soft tissue injury to the Plaintiff’s neck which resulted in mechanical neck pain.  Although there was some improvement in his symptoms by the time of trial he continued to have ongoing intermittent symptoms which increased with activity.  In assessing the non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Madam Justice Wedge noted the following:

[63] In Unger v. Singh, 2000 BCCA 94, [2000] B.C.J. No. 246, Proudfoot J.A. observed the following at para. 32 concerning the quantum of general damages in soft-tissue injury cases:

After analyzing the many cases cited by both counsel (I will limit my comments to relevant material) I find that the range of damages is indeed wide. Cases involving primarily soft-tissue injury with some emotional problems including sleep disruption, nervousness, depression, seem to be from a low $35,000 to a high of $125,000. However, I caution though that these numbers are only guides.

[64] In Stapley v. Hejslet, 2006 BCCA 34, [2006] B.C.J. No. 128, Kirkpatrick J.A. (writing for the majority) outlined (at para. 46) the factors a trial judge should consider when assessing general damages:

The inexhaustive list of common factors cited in Boyd that influence an award of non-pecuniary damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list:

(g)        impairment of family, marital and social relationships;

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff:  Giang v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[69] Mr. Cabral performed light duties at work for one month following the accident, and then returned to his full duties. He undertook a three-month course of physiotherapy, and was participating in all of his pre-accident sports activities by the summer of 2006. He received several further physiotherapy treatments between October 2006 and February 2007. Thereafter, he again underwent treatment for his neck pain in December 2008.

[70] The medical evidence established that Mr. Cabral suffered a significant neck sprain in the accident which, while it does not prevent him from working full-time in his job and participating in his sports activities, continues to cause intermittent pain which increases his fatigue and stress at work and limits some of his activities at home. The evidence established that Mr. Cabral’s recovery has reached a plateau. The evidence further established that his condition will not worsen over time.

[71] Mr. Cabral’s medical condition is not as severe as those suffered by the plaintiffs in the decisions cited by his counsel, although it does share some of the features of those decisions. The medical evidence suggests that his neck pain may now be chronic in nature.

[72] Each personal injury case possesses its own unique facts, and Mr. Cabral’s is no different…

[73] I have concluded that an appropriate award for Mr. Cabral’s non-pecuniary loss is $50,000.

BC Injury Claims, Infant Settlements and the Office of the Public Trustee

Written by admin on . Posted in Civil Procedure, Uncategorized.


When an infant (in BC every person below the age of 19 is considered legally an ‘infant’) is involved in a BC Injury claim a settlement generally cannot be reached without the approval of the Office of the Public Guardian and Trustee.  This holds true whether the infants claim is prosecuted by a lawyer or not. Since infants cannot enter into legally binding contracts this protection is necessary both to bring certainty to the settlement process and to protect the interests of the child.
As with any bureaucratic organization, however, there are some limits in the discretionary factors the trustee takes into consideration when approving a proposed settlement.   Reasons for judgement were released today demonstrating this.
In today’s case (Lotocky v. Markle) the Plaintiff suffered a brain injury shortly before his birth.  A lawsuit was brought (through his parents who acted as his litigation guardians) alleging medical negligence against nurses, doctors and the hospital where the infant was born.  After a lengthy trial the case was dismissed by Mr. Justice Macaulay with costs being awarded to the Defendant.
In a very real demonstration of the extraordinary costs losing litigants can pay after a lengthy BC Supreme Court Trial the Defendants claimed over $330,000 in costs from the Plaintiff’s parents. The Plaintiff appealed the dismissal.  Before the appeal was heard the Defendants offered to walk away from their claimed costs if the Plaintiff abandoned the appeal.  This offer appealed to the Plaintiff’s parents given the ‘magnitude of the costs‘ and their prohibitive consequences on their financial future.
The Plaintiff’s parents wished to accept the offer and approached the Public Trustee’s office for permission.   The Public Trustee obtained their own legal opinion which concluded that the appeal had “merit“.  As a result the Trustee refused to consent to the infant abandoning the appeal.  In an unusual development the BC Court of Appeal was asked to intervene and approve the settlement.  They indeed did approve the settlement and provided the following useful reasons:

[66]         It is clear that payment of the trial costs would present a significant additional burden for the Lotocky family, and that this would inevitably affect Michael’s home life and future care.

[67]         Turning to the position of the Public Guardian and Trustee on the issue of costs, it takes no issue with the good intentions of the Lotockys, but says that their potential liability for trial costs creates an inevitable conflict of interest between them and Michael. It maintains that their endorsement of the settlement should therefore play no role in this Court’s examination of whether it is in Michael’s best interests to approve the settlement.

[68]         The Public Guardian and Trustee says that it, by contrast, is able to speak to Michael’s interests with the “purity of independence”. In that guise, it argues that the overarching issue must remain the merits of the appeal, and says it is not in Michael’s interests to abandon it. It maintains that it has acknowledged the parents’ burden of costs by offering to act as litigation guardian on the appeal, and carry the responsibility for the appeal costs. It is adamant, however, that it will not assume the parents’ responsibility for the trial costs.

[69]         While I do not doubt that the Public Guardian and Trustee’s position is well-intentioned, it is, with respect, artificial and misguided to judge the merits of the appeal in isolation from the financial ramifications that would arise from an unsuccessful appeal. This became abundantly clear when the Lotockys raised an argument that the offer of the Public Guardian and Trustee to undertake the appeal amounted to a determination under s. 7(3) of the Public Guardian and Trustee Act, R.S.B.C. 1996, c. 383, and that the Court should compel it to undertake the appeal on the same terms as the parents. Section 7(3) reads:

7(3)      If a litigation guardian is required for a young person under the Court Rules Act and is not otherwise provided for by the Infants Act, the Public Guardian and Trustee must act as litigation guardian for the young person if the Public Guardian and Trustee considers it is in the young person’s best interests to do so.

[70]         The Lotockys argued that they were not prepared to act as Michael’s litigation guardian for the appeal due to their financial circumstances. The Public Guardian and Trustee had nevertheless decided it was in Michael’s best interests that the appeal proceed. Thus a new litigation guardian was required, and under s. 7(3) the Public Guardian and Trustee must step into that role. As a trustee charged with acting in the best interests of the young person, it cannot properly use financial considerations as a reason to abandon its statutory role. It must accordingly take on the appeal by stepping into the same shoes as the former litigation guardian, and assuming her outstanding obligation for trial costs.

[71]         This argument was strenuously resisted by the Public Guardian and Trustee, and it ultimately withdrew its offer to undertake the appeal as litigation guardian and pay appeal costs, on the basis that it had not intended the offer to be an ultimate determination under s. 7(3). While its arguments were couched in terms of statutory construction, administrative policy, and budgetary constraints, I cannot resist the inference that its opposition was fuelled as well by the fact that, if the Court accepted the Lotockys’ argument, it faced significantly heightened financial risks in pursuing the appeal.

[72]         Essentially, it became evident that, if placed in the same position as the Lotockys, the Public Guardian and Trustee would decline to act on the appeal due to the financial risks. It was also apparent that if the Lotockys could have pursued Michael’s appeal on the terms proposed by the Public Guardian and Trustee, they would have had no hesitation in doing so.

[73]         In short, the outstanding obligation for Dr. Markle’s trial costs must play a part in deciding whether the settlement is in Michael’s best interests. While I appreciate the conflict of interest that potential liability creates for the litigation guardian, the financial burden and risks it represents cannot be ignored as the Public Guardian and Trustee advocates. His parents’ financial circumstances have significant repercussions for Michael’s well-being both now and in the future.

[74]         The Lotockys face a potential liability for $205,000 if the appeal is unsuccessful. I earlier indicated that I view the merits of the appeal as arguable at best. I am persuaded that those factors, taken together, make it untenable to proceed with the appeal. I am satisfied that it is in Michael’s best interests to approve the proposed settlement.

This post is not intended to be a criticism of the Public Trustee.  To the contrary the Public Trustee’s office has a difficult and sometimes thankless job which involves making critical decisions in the best interests of injured infants in BC.  However, settlement decisions are often made with the real world cost consequences of Supreme Court litigation in mind.  For this reason the BC Court of Appeal’s comments are most welcome in discussing these risks and requiring their consideration in a ‘best interest of the child’ analysis.

Late Applications for Defence Medical Exams in ICBC Injury Claims

Written by admin on . Posted in independent medical exams, Uncategorized.


Reasons for judgement were released this week by the BC Supreme Court considering the issue of timing of applications for compelled medical exams in the context of an ICBC Injury Claim.
Under the current BC Supreme Court Rules expert evidence that is not ‘responsive‘ is required to be served on opposing parties 60 days before it is tendered into evidence.  This requirement is set out in Rule 40A.  (As of July 1, 2010 a new set of BC Supreme Court Rules will come into force and Rule 11 will govern the admissibility of reports which makes some changes to timelines for exchange of expert evidence).
When a Defendant comes to court asking for a compelled exam BC Courts have considered the issue of timing and if the application is inside the timelines for service of a report the Defendant may have an uphill battle.  Reasons for judgement were released today demonstrating this.
In today’s case (Moore v. Hind) the Plaintiff was injured in 2 motor vehicle collisions.  Both trials were set to be heard together.  ICBC brought an application to compel the Plaintiff to be assessed by Dr. Ray Baker, a doctor who specializes in so-called ‘addiction medicine‘.  This application was brought late in the litigation process.  ICBC argued that the medical evidence served by the Plaintiff’s lawyer gave a “clear and emphatic indication that the plaintiff may suffer a drug addiction problem” and as a result the need for the late application.
The Plaintiff disagreed arguing that ICBC could have pursued this line of inquiry earlier in the process.  Master Keighley agreed with the Plaintiff and dismissed the motion.  In doing so the Court placed weight on the late timing of this application and this proved fatal to ICBC’s argument.  Specifically the Court stated as follows:

[10] This application raises certain practical difficulties.  One is the question of whether a further examination and the likely preparation of a report at this time will jeopardize the existing trial date.  There is certainly very little time left now between the date of this application and the trial.  It is unlikely that the plaintiff would have sufficient opportunity to in any way rebut the findings in a report prepared by Dr. Baker.  It seems to me there is a substantial likelihood that should the order sought be granted, an application may be made to adjourn the trial.

[11] It also seems to me that this application is unnecessarily brought at a late date.  There was, to my mind, a significant indication of overuse or misuse of prescription drugs as early as a year ago, and arrangements might then have been made in a more orderly fashion to have an examination by Dr. Baker or another, with respect to these issues.

[12] Having read portions of Dr. Smith’s report, it seems to me, however, that the third parties may well be afforded an opportunity to yet achieve a level playing field by having their own expert, Dr. Smith, consider the reports, the clinical records and other information relating to the claim with regard to assessing the issue of the plaintiff’s prescription drug use and its impact potentially upon her claim.

[13] In this regard it seems to me that the prejudice to be suffered by the third party in not having an opportunity to have a further assessment is minimized, whereas the potential prejudice to the plaintiff is substantial.  She is depicted in the medical reports as being a highly tense, anxious individual, and it would seem, and indeed she suggests that she will be extremely prejudiced if this claim is not resolved at the earliest possible date.  There is also an issue of inconvenience which is of a relatively minor nature, in that she has another medical examination scheduled for the morning of the proposed examination and would be obliged to cancel that if ordered by the court to attend for an appointment with Dr. Baker.  She also then had made plans to visit with her mother in the Christmas holidays, beginning on the night of December 22nd.  Those issues of inconvenience are of a relatively minor nature and would not be conclusive in themselves.

[14] I am satisfied that the application should be dismissed.  It is simply brought at too late a date and it is likely that it will result in an adjournment of this trial, which the material before me indicates, if adjourned, would likely not be rescheduled until perhaps June of 2011.

More on the Jurisdiction of BC Courts and Out Of Province Car Crash Cases

Written by admin on . Posted in Civil Procedure, Uncategorized. 58 Comments on More on the Jurisdiction of BC Courts and Out Of Province Car Crash Cases


Further to my post yesterday discussing this topic another case was released today by the BC Supreme Court discussing the jurisdiction of the British Columbia Courts in relation to out of province motor vehicle collision tort claims.
In today’s case (Sooparayachetty v. Fox) 8 separate plaintiffs were apparently involved in an Alberta motor vehicel accident.  The Defendants were Alberta residents.  Some of the Plaintiffs were BC Residents and others were resident in the UK.  All of the Plaintiff’s brought lawsuits in both Alberta and BC with respect to their injuries.
The Defendant’s brought a motion to dismiss the claim arguing that the BC Court had no jurisdiction to preside over the lawsuit.  Master Scarth, sitting in the Vancouver Registry, agreed with the Defendants and dismissed the BC lawsuits.  In coming to this conclusion the Court reasoned as follows:

[13] The Court of Appeal has recently confirmed that the question of jurisdiction is to be determined exclusively by the substantive rules set out in the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (“CJPTA”):  Stanway v. Wyeth Pharmaceuticals Inc., 2009 BCCA 592, at para. 12.

[14] Section 3 of the CJPTA sets out the circumstances in which a court has territorial jurisdiction as follows:

A court has territorial competence in a proceeding that is brought against a person only if:

(a)        that person is the plaintiff in another proceeding in the court to which the proceeding in question is a counterclaim,

(b)        during the course of the proceeding that person submits to the court’s jurisdiction,

(c)        there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the proceeding,

(d)        that person is ordinarily resident in British Columbia at the time of the commencement of the proceeding, or

(e)        there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.

[15] Section 10 of the CJPTA sets out a list of circumstances that presumptively constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based for the purposes of s. 3(e).  A plaintiff who is unable to bring herself within the statutory presumptions may nevertheless prove other circumstances which constitute a real and substantial connection.

[16] The plaintiffs rely on s. 3(e) of the CJPTA – real and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based.  In this case, the presumptive circumstances in section 10 of the CJPTA do not apply.  It is therefore for the plaintiffs to establish that there is the real and substantial connection necessary to found jurisdiction…

[20] While “real and substantial connection” has not been defined, the cases provide some guidance as to what connections are insufficient to found jurisdiction.

[21] It is clear that the fact that a plaintiff is resident in British Columbia is insufficient:  Roed v. Scheffler et al, 2009 BCSC 731, at para. 35, citing Jordan v. Schatz, 2000 BCCA 409, and Williams v. TST Porter (c.o.b. 6422217 Canada Inc.) 2008 BCSC 1315.

[22] The fact that a plaintiff continues to suffer damages in British Columbia is insufficient to establish a real and substantial connection on its own: Roed, supra, at para. 43…

[26] Since the hearing of this application, our Court of Appeal has rejected the approach set out in Muscutt: see Stanway, supra, paras. 71 to 73.  Smith J.A., writing for the court, held that:

In my view, any reliance on the Muscutt factors as a guide to determining the question of jurisdiction came to an end in British Columbia with the coming into force of the CJPTA.

[27] Accordingly, the test remains real and substantial connection which appears to require a straightforward determination of whether, on the facts, a real and substantial connection has been established.

[28] Applying Roed, the first connection upon which the plaintiff relies to found jurisdiction – damages suffered within British Columbia – is too tenuous.  The question therefore becomes whether the fact that, since the Alberta accident, the plaintiff has been injured in a second accident which occurred in British Columbia can provide the basis for a finding of jurisdiction.  These circumstances were not addressed in Roed.

[29] The parties appear to agree that a global assessment of Ms. Sooparayachetty’s injuries will be required.  I take this to mean that they accept that, in order to assess damages for which the Alberta defendants may be liable, the court will be required to assess “global damages” as of the date of trial in respect of both accidents.  Circumstances relating to the second accident will therefore be considered in the assessment of damages for the first.

[30] Section 3(e) of the CJPTA provides that the court has territorial competence if there is a real and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based.  While facts relating to the second accident may have to be canvassed in order to assess Ms. Sooparyachetty’s damages arising from the first accident, the two claims remain separate.  In my view, the circumstances relating to the second accident are not facts upon which the proceedings against these defendants are based, and therefore cannot provide the real and substantial connection required by s. 3(e).  The need to call evidence relating to the second accident in the trial of the first, while an appropriate consideration on the question of forum conveniens (see, for example, Stewart v. Stewart, [1995] 6 W.W.R. 402; 5 B.C.L.R. (3d) 350 (S.C.)), does not confer jurisdiction on this court in relation to the first accident, and Ms. Sooparaychetty’s action arising from it.

[31] The other plaintiffs did not press their argument in relation to territorial competence over their actions.

[32] I find that, the plaintiffs having failed to establish that there is a real and substantial connection between British Columbia and the facts on which these proceedings are based, the court does not have territorial competence in these proceedings.

[33] Where the court determines that it lacks territorial competence, s. 6 of the CJPTA gives the court a residual discretion to hear the proceeding if it considers that:

(b) the commencement of the proceeding in a court outside British Columbia cannot reasonably be required.

[34] In Lailey et al v. International Student Volunteers, Inc., 2008 BCSC 1344, at para. 47, Grauer J. interpreted s. 6 with reference to the Uniform Law Conference comment on the identical section in the uniform act:

Residual discretion permits the court to act as a “forum of last resort” where there is no other forum in which the Plaintiff could reasonably seek relief.

[35] It is clear that here, as in Lailey, British Columbia does not stand out as a forum of last resort.  There are no limitation concerns as the plaintiffs have commenced actions in Alberta as well.

[36] I do not propose to address the issue of forum conveniens given my finding regarding territorial competence, and the fact that the notice of motion did not seek relief of that nature.

[37] The plaintiffs having failed to plead, or adduce in affidavit form, facts sufficient to establish jurisdiction, the application by the defendants is allowed and the plaintiffs’ actions are stayed pursuant to Rule 14(6).

One of the reasons why Plaintiffs try to bring their lawsuits in BC versus Alberta is the fact that British Columbia has greater rights in place for those injured at the hands of others.  However, cases such as this one demonstrate that it is no easy task to establish jurisdiciton of BC Courts to hear cases inovlving foreign motor vehicle collisions.

The Death of Georgia Luge Competitor Nodar Kumaritashvili, A Preventable Tragedy?

Written by admin on . Posted in Uncategorized. 60 Comments on The Death of Georgia Luge Competitor Nodar Kumaritashvili, A Preventable Tragedy?

In what can only be described as a tragedy, the Vancouver Olympic Games have gotten off to a saddening start with the reported death of Georgian Luge competitor Nodar Kumaritashvili.
Video showed the athlete lose control while attempting to navigate one of the corners on the track and then fly into a steel beam.  Reports indicate that he died shortly after this.  The video was difficult to watch and has apparently been removed from many websites showing it due to a copywrite claim by the International Olympic Committee.  More to the point the video should have never been circulated out of respect to this athlete and his family.
Viewing the photos it struck me as odd to have exposed steel beams so close to what I assume is a difficult turn on the Luge track.   I won’t profess to be an expert in the safe design of luge courses but it seems that this type of an incident was foreseeable and perhaps preventable.
Luger’s travel at high speed.  Sometimes they lose control.  It seems that having exposed steel beams by the side of a luge track is every bit as dangerous as having exposed trees next to a dangerous turn on a downhill ski course.    Protective measures are taken to minimize collision risks for the latter (such as safety netting and padding).  If it is really necessary to have these exposed beams where they are I hope steps can be taken to minimize the hazard they pose to the other athletes of the world before the games get underway.
Assuming that this was a preventable death, the World’s media will shine a perhaps unwanted spotlight on the woeful British Columbia Family Compensation Act which places severe restrictions on compensation claims where a loved one is lost due to the carelessness of others.

Can British Columbia Residents Sue in BC If They Are Injured Out of Province?

Written by admin on . Posted in Civil Procedure, Tort Reform, Uncategorized. 53 Comments on Can British Columbia Residents Sue in BC If They Are Injured Out of Province?


(The decision discussed below was upheld by the BC Court of Appeal in 2011, you can find the BCCA judgement here)
British Columbia remains the least ‘tort-reformed” Province in Canada and as a result we can be proud that in most instances BC offers fair adjudication of claims for those injured at the hands of others.  Many other Canadian jurisdictions offer fewer protections with compensation restrictions such as ‘no-fault‘ laws or ‘soft-tissue injury caps‘ on damages.
If a British Columbia resident is injured in another Province can they sue in BC to be compensated for their injuries?  Reasons for judgement were released today considering this issue.
In today’s case (Dembroski v. Rhainds) the Plaintiff was involved in a car crash in Alberta in 2007.  The Plaintiff was a British Columbia resident and was in Alberta for a short while to do some work as a farrier.    The Plaintiff was injured and unable to perform her work.  She returned to BC shortly after the car crash.  She had the majority of her treatments in BC.
The Plaintiff eventually sued the alleged at fault motorist for compensation in British Columbia.  The Defendant brought a motion to dismiss the claim arguing that BC Courts lack jurisdiction to preside overthis case.
Mr. Justice Truscott agreed with the defendants and dismissed the lawsuit.  In doing so he made the following points regarding BC Courts’ jurisdiction to preside over a lawsuit arising from an out of Province motor vehicle accident:

11] The court’s jurisdiction is governed by the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (CJPTA), which gives the court territorial jurisdiction in particular circumstances.

[12] From the facts here, the only circumstance set out in the legislation that might give the court jurisdiction is the provision in s. 3(e) that “there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.”…

[19] Defence counsel cites a number of court decisions in British Columbia that have denied jurisdiction on what are alleged to be similar circumstances, including: Canadian International Marketing Distributing Ltd. v. Nitsuko Ltd. (1990), 56 B.C.L.R. (2d) 130 (C.A.); Aubichon (Guardian ad litem of) v. Kazakoff, [1998] B.C.J. No. 3058 (S.C.); Jordan v. Schatz, 2000 BCCA 409; Sequin-Chand v. McAllister, [1992] B.C.J. No. 237 (S.C.); Williams v. TST Porter (c.o.b. 6422217 Canada Inc.), 2008 BCSC 1315; and Roed v. Scheffler, 2009 BCSC 731.

[20] All of these cases concluded that where a British Columbia resident plaintiff is injured in a foreign jurisdiction and then returns to British Columbia for treatment of injuries, there exists no real and substantial connection with British Columbia to give the courts of British Columbia jurisdiction because the only connection to this province is the fact that the plaintiff is a resident here at the time of the claim.

[21] In Jordan v. Schatz, Mr. Justice Cumming, writing the decision for the Court, said at para. 23:

What constitutes a “real and substantial connection” has not been fully defined. However, it has been well established by this Court in Nitsuko, supra, and in Ell, supra, that there is no real and substantial connection to British Columbia based on the bare residency of the Plaintiff in the jurisdiction. There must be some other or further sufficient connecting factor or “contacts” to this province. Clear examples of connecting factors include the residency of the defendant in the jurisdiction or the fact that the tortious act was committed or damages suffered here.

…

36] I can see no exception that would be applicable in this case to allow me to depart from the decisions in those cases that have denied jurisdiction to the court when the plaintiff’s only connection to the jurisdiction is the fact she continues to suffer from her injuries while she resides here. To accept jurisdiction here would be to accept jurisdiction for a plaintiff who moves to the jurisdiction after an accident in another province and continues to suffer from injuries here. That cannot be.

[37] There is no real and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based. There may be a real and substantial connection between British Columbia and the plaintiff, but that does not satisfy the words of s. 3.

[38] The action is dismissed for want of jurisdiction. The defendants will have their costs.

Reduction of Damages for Contributing Effects of Pre-Existing Conditions in BC Injury Claims

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


In BC Injury Claims (tort claims) a damage award can be reduced to account for the extent that a pre-existing condition contributes to a subsequent impairment.  Reasons for judgement were released today by the BC Court of Appeal discussing this area of law in the context of a jury trial.
In today’s case (Laidlaw v. Couturier) the Plaintiff was involved in a 2004 motor vehicle accident.  The Plaintiff suffered from various pre-existing difficulties including depression.  He was injured in the car accident and following a Jury Trial his damages were assessed at $128,717.  The Jury went on to reduce this award by 85% to take into account the “measurable risk that the plaintiff would have suffered from the (post accident) physical and psychological complaints even if the (car accident) had not happened“.
The Plaintiff appealed this jury award arguing that the trial judge made a mistake in having the Jury give a general ‘across the board’ reduction of damages for the risk of difficulties the pre-existing conditions may have posed.  The BC Court of Appeal agreed that the trial judge did indeed err in instructing the Jury and ordered a new trial.  In coming to this conclusion the BC high court extensively discussed the law of reduction of damages to account for risks of pre-existing conditions.  The highlights of this discussion were as follows:

[42] Ultimately, this appeal turns on a significant error exposed in the jury charge, in the third jury question, and the ultimate verdict.

[43] As can be seen from the emphasized portion of the jury charge recited in paragraph 26 of these reasons, the trial judge instructed the jury that if they found that “if the May 2004 accident had not happened there was a material risk that Mr. Laidlaw would nevertheless have suffered from general anxiety or depression or back problems, then you should reduce Mr. Couturier’s liability by the amount of that material risk, whatever you find it to be.”…

[47] The wording of question 3, together with the judge’s charge on causation was overly simplistic.  The various conditions from which the plaintiff had suffered previously, and the symptoms to which they gave rise, were not capable of reduction to a single “measurable risk”.

[48] One, some or none of those previous conditions might have “detrimentally affected the plaintiff in the future”.  One or more of those conditions might have affected him at different points in time.  The degree to which each such condition might have affected him need not have been identical.

[49] To lump these variables together into one question and to invite a single mathematical adjustment was unfair and inappropriate.

[50] Athey was a case with a single identifiable injury, a disc herniation, occurring some months after the accidents giving rise to the plaintiff’s claim.  There was a single pre-existing condition, “a history of minor back problems”, which was alleged to have contributed to his injury.  I do not read the language in Athey, while appropriate to the kind of case with a single measurable risk, to be transferable to the facts of a more complex case such as this one, which involves the assessment of multiple and distinct measurable risks.

[51] The contributing effects of a pre-existing condition to a subsequent injury can be taken into account if the trier of fact considers that to be appropriate.  In many cases, it may well be a relevant factor for the jury to consider.  However, the jury should be told that the effect to be given to such a “measurable risk” should be carefully related to the specific facts of the case.  In a case such as this, where there were various pre-existing conditions, and where it was uncertain if, when, or to what degree those conditions might adversely affect the plaintiff in future, it was an error to invite a general reduction across the board, as is required by question 3.

[52] In my opinion, the first portion of the charge on causation and in question 3 directed the jury to undertake a formulaic approach to the assessment of damages attributable to the defendant rather than directing them to consider, in a nuanced fashion, all of the contingencies and risks inherent in Mr. Laidlaw’s individual circumstances and to arrive at a global assessment of damages.  Question sheets such as this one that ask the jury to answer questions that tend to reveal their deliberations are not helpful, invite appeals, and are to be avoided.

[53] It must be said that the second portion of the trial judge’s written instructions did not mirror the wording in question 3.  However, it stands to reason that by the time the jury was completing its deliberations, their focus must have been on the question sheet.  Question 3 is clear in its terms but, unfortunately, incorrect in its legal effect.  In my view, it amounts to misdirection…

[58] In the end, it is impossible to say with confidence that the jury properly understood its task in assessing the damages due to Mr. Laidlaw.  In my view, the only recourse available is to order a new trial.

BC Court of Appeal Reverses UBC Parking Fine Class Action Lawsuit

Written by admin on . Posted in Tort Reform, Uncategorized. 80 Comments on BC Court of Appeal Reverses UBC Parking Fine Class Action Lawsuit


In 2009 Mr. Justice Goepel of the BC Supreme Court held that the University of British Columbia did not have the legal authority to issue and collect parking fines over the years and awarded judgement in favour of a class action lawsuit seeking to have the money repaid by UBC.
UBC appealed this decision.  Before the BC Court of Appeal had a chance to review the matter the BC Government passed a retroactive law which in essence stated that UBC had the power to issue the fines.    (Click here for some background information on this).
With the retroactive law on the books the matter then proceeded to BC’s highest Court and they were asked to determine if this law was valid and if so what effect it would have on the class action.   In reasons for judgement released today the BC Court of Appeal held that this law was valid and as a result the trial judgement was set aside.
The highlights of the Court’s reasons were as follows (for the sake of easy reading and at the risk of oversimplification ‘intra vires’ means something UBC had the power to do and ‘ultra vires’ means something that UBC did not have the power to do):
[26] Thus, on the general issue of interpretation, we conclude the Miscellaneous Statutes Amendment Act, 2009 applies to the circumstances before the court. This Act makes intra vires that which was conceded to be ultra vires at trial. Further because the foundation for the order declaring the class members entitled to restitution has been replaced, and because s. 16(2)(c) prohibits restitution of the fines or penalties referred to in the Supreme Court of British Columbia order, the declaration of entitlement to restitution cannot stand in light of the new legislation…

[32] We consider it is clear in Canada that the Legislature may enact legislation that has the effect of retroactively altering the law applicable to a dispute. While a Legislature may not interfere with the Court’s adjudicative role, it may amend the law which the court is required to apply in its adjudication. The difference between amending the law and interfering with the adjudicative function is fundamental to the proper roles of the legislature and courts in our parliamentary democracy.

[33] It follows we see no reason to “read down” the amending and transitional provisions to accommodate the concept of judicial independence…

39] The appeal is allowed and the order of the judge is set aside, to be replaced with a declaration answering common issue 1 in the negative, the Parking Regulations are intra vires the University. Given the answer to that question, there is no need to answer questions 2 and 3 (dealing with the rights in contract and proprietary rights of the University), or the other questions that depended upon a positive answer to question 1.

Driver Found 100% Liable for Accident Caused During Careless U-Turn

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 133 Comments on Driver Found 100133 Liable for Accident Caused During Careless U-Turn


Reasons for judgement were released today by Mr. Justice Smith of the BC Supreme Court considering the issue of fault in a collision between a pick-up truck and a motorcycle.
In today’s case (Dhah v. Harris) the Plaintiff was driving his motorcycle northbound on River Road in Delta, BC.  As he was coming into the second turn of an ‘s-curve’ a pick up truck was making a U-Turn from the Southbound lane into the Northbound lane.  Approaching this truck the motorcyclist hit his brakes ‘pretty hard’, dropped his bike and then slid into the side of the pickup truck.
The driver of the pick up truck did not see the Plaintiff and only realized he was there upon impact.  Similarly the motorcyclist did not appreciate that the pick up truck was there until it was too late to avoid the collision.  There was no evidence that the motorcyclist was speeding.
Both driver’s claimed the other was at fault.  After a 3 day trial Mr. Justice Smith found the pick-up truck driver 100% at fault.  In coming to this conclusion he provided the following summary and application of the law relating to U-Turn collisions:

[22] I find it highly unlikely that the defendant was moving at the extremely slow speed that that would imply. I find it more likely that the defendant was focussed on the tightness of the turn and the need to avoid the ditch across the road and that he failed to pay sufficient attention to situation to his right. Either he allowed more time than he now recalls to elapse between looking right and beginning his turn or he simply failed to notice the plaintiff who was there to be seen.

[23] Even if the defendant was turning at an extremely slow speed and the plaintiff was not there to be seen when the defendant began his turn, the plaintiff obviously would have come into view at some point before the collision. On the defendant’s own evidence, he did not look to his right again before he crossed the double solid centre line.

[24] It is a matter of common knowledge that roads are typically marked with a double solid line at locations where drivers will have reduced visibility of the road ahead. Sections 155 (1)(a) and 156 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, read as follows:

155  (1) Despite anything in this Part, if a highway is marked with

(a) a solid double line, the driver of a vehicle must drive it to the right of the line only,

…

156  If the driver of a vehicle is causing the vehicle to enter or leave a highway and the driver has ascertained that he or she might do so with safety and does so without unreasonably affecting the travel of another vehicle, the provisions of sections 151 and 155 are suspended with respect to the driver while the vehicle is entering or leaving the highway.

[25] Counsel for the defendant argues that the defendant reasonably concluded that he could safely enter the roadway and was leaving enough distance for oncoming vehicles to adjust to his presence. He argues that the effect of s. 156, in those circumstances, is that once the defendant entered the roadway, other drivers including the plaintiff were required to “accommodate” his position. In effect, counsel argues that if the defendant determined on reasonable grounds that he could safely cross the centre line, he acquired the right of way from the moment he entered the roadway.

[26] I cannot accept that submission. Section 155(1)(a), standing alone, contains an outright prohibition against crossing a double solid line. Section 156 does no more than provide limited exceptions to that absolute prohibition. It does not, in my view, diminish the duty to proceed with caution and it does not remove the right of way from another driver who is approaching in his or her proper lane.

[27] In any event, the question of whether or not the defendant was in violation of the statutory provision is not determinative. The question is whether the defendant kept a proper lookout and took appropriate care in the circumstances:  Dickie Estate v. Dickie and De Sousa (1991), 5 B.C.A.C. 37 (C.A.).

[28] In Dickie, the plaintiff was in the process of making a u-turn across a double solid line when he was struck by the defendant who was approaching at an excessively high speed. The Court of Appeal said at para. 12:

[The plaintiff] was engaging in a manoeuvre that was fraught with danger. He placed himself and the oncoming drivers in a position of risk. That being so, in my opinion, the law required of him a very high degree of care which would manifest itself in a sharp lookout before he crossed over the solid double line into the northbound lanes on the causeway. There was nothing to prohibit Dickie from seeing the oncoming De Sousa vehicle before his vehicle entered the northbound lanes of travel.

[29] I find that the defendant in this case was similarly “engaging in a manoeuvre that was fraught with danger”. He was making a left turn across a double solid line at a point where there was no intersection or driveway—at a point where oncoming drivers would have no reason to anticipate vehicles entering the roadway. He knew there was a curve to his right and knew or ought to have known that oncoming drivers might have limited visibility. The location and the nature of his manoeuvre required him to pay particular attention to the ditch across the road and I have found that he did so at the expense of being attentive to oncoming traffic.

[30] I also note that the Court in Dickie referred to the need for a sharp lookout before the driver crossed the centre line and before he entered the northbound lanes. In the circumstances of this case, it was not sufficient for the defendant to form an opinion about the safety of his manoeuvre before he entered the roadway. He says that he looked right at that point, but, in my view, his duty to keep a sharp lookout continued beyond that. He gave no evidence of having looked again before crossing the centre line; in my view, reasonable prudence required that he should have done so.

[31] Therefore, I find that the collision at issue was caused by the negligence of the defendant. The question then becomes whether there was any contributory negligence on the part of the plaintiff.

Mr. Justice Smith went on to give reasons explaining why he found the Plaintiff faultless for this crash holding that “the Plaintiff was entitled to proceed on the assumption that all other vehicles will do what it is their duty to do, namely observe the rules regulating traffic”.  Paragraphs 32-37 of the reasons for judgement are worth reviewing for the Court’s full discussion of why this Plaintiff was faultless.