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ICBC Claims and Litigation Privilege

Written by admin on December 3, 2008. Posted in Civil Procedure, Uncategorized. 56 Comments on ICBC Claims and Litigation Privilege

Reasons for judgement were released today by the BC Supreme Court ordering the production of certain documents that the defendants claimed were exempt from disclosure due to ‘litigation privilege.’
The Plaintiff suffered severe head injuries when struck as a pedestrian in 2006. In the course of her lawsuit her lawyer served the defendants with a Demand for Discovery of Documents. In exchanging their List of Documents the Defendants claimed ‘litigation privilege’ over some of the documents. The Plaintiff brought motion to compel production of these documents and largely succeeded with the court holding that:
the defendants failed to provide sufficient information to enable the plaintiff to assess whether the defendants were correctly claiming litigation privilege over each of the documents found in P3 to P9 of their list of documents.
In reaching this conclusion Mr. Justice Blair provided a great overview of the legal principles relating to a claim of litigation privilege which I reproduce below:

[5] Litigation privilege extends to those documents prepared for the dominant purpose of preparing for ongoing or reasonably anticipated litigation as discussed in Hamalainen (Committee of) v. Sippola, [1991] B.C.J. No. 3614; 2 W.W.R. 132; 9 B.C.A.C. 254; 62 B.C.L.R. (2d) 254. Wood J.A. (as he then was) for the Court of Appeal stated at ¶18 that the two following factual findings required answering to determine whether litigation privilege applied to a document:

(a) Was litigation in reasonable prospect at the time the document was produced, and

(b) If so, what was the dominant purpose for the document’s production?

[6] Wood J.A. held that the onus is on the party claiming privilege to establish on a balance of probabilities that both tests are met in connection each of the documents for which the party claimed litigation privilege. With respect to the first factual finding, Wood J.A. wrote at ¶20 that

. . . litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all pertinent information including that peculiar to one party or the other, would conclude it is unlikely that the claim for loss will be resolved without it. The test is not one that will be particularly difficult to meet.

[7] With respect to the second factual finding Wood J.A. wrote:

21. A more difficult question to resolve is whether the dominant purpose of the author, or the person under whose direction each document was prepared, was “… [to use] it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation …”.

22. When this Court adopted the dominant purpose test, it did so in response to a similar move by the House of Lords in Waugh v. British Railways Board, [1980] A.C. 521. In that case the majority opinion is to be found in the speech of Lord Wilberforce, who agreed “in substance” with the dissenting judgment of Lord Denning M.R. in the Court below. While the Court of Appeal judgments do not appear to have been reported, some excerpts from Lord Denning’s opinion are to be found in the speech of Lord Edmund-Davies, including the following at p.541 of the report:

If material comes into being for a dual purpose — one to find out the cause of the accident — the other to furnish information to the solicitor — it should be disclosed, because it is not then ‘wholly or mainly’ for litigation. On this basis all the reports and inquiries into accidents — which are made shortly after the accident — should be disclosed on discovery and made available in evidence at the trial.

23. At the heart of the issue in the British Railways Board case was the fact that there was more than one identifiable purpose for the production of the report for which privilege was claimed. The result of the decision was to reject both the substantial purpose test previously adhered to by the English Court of Appeal and the sole purpose test which by then had been adopted by the majority of the Australian High Court in Grant v. Downs.

24. Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

[8] The dominant purpose test in the context of litigation privilege came before the Supreme Court of Canada in Blank v. Canada, 2006 SCC 39. Fish J. for the majority noted at ¶60 that the dominant purposes standard was consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure.

More on BC Supreme Court 'Costs' and ICBC Claims

Written by admin on December 2, 2008. Posted in Civil Procedure, Uncategorized.

Except in certain circumstances (such as where formal settlement offers are bested at trial under Rule 37B) a Plaintiff who succeeds in an ICBC injury claim in the BC Supreme Court is entitled to ‘costs’ (money paid under a Tariff system to compensate the successful litigant for the fact that they had to engage the BC Supreme Court process to achieve justice). However, if a Plaintiff receives a sum of money within the jurisdiction of the Provincial Court (currently set at $25,000) then they typically are not entitled to costs. Specifically, BC Supreme Court Rule 57(10) reads as follows:
A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
Today, reasons for judgement were released awarding a Plaintiff Costs even though the judgement received was below $25,000.
The Plaintiff claimed injuries as a result of a BC motor vehicle accident. After trial the claim succeeded and damages just below $25,000 were awarded. In finding that the Plaintiff had ‘sufficient reason for bringing the proceeding in the Supreme Court’ and thus entitled to costs Madam Justice Dardi held as follows:

[10] Accordingly, the plaintiff must establish that as at May 31, 2007 when she commenced her action, she had sufficient reason for bringing the claim in the Supreme Court. When these proceedings were issued, the plaintiff was working full-time but continued to attend at physiotherapy treatments prescribed by her doctor. She attended 13 treatments from May 4, 2007 to September 5, 2007. On May 7, 2007, Dr. McGregor continued to note a decrease in neck flexion and tenderness to palpitation of the left shoulder muscles. The medical-legal report tendered by plaintiff’s counsel is dated September 15, 2007. In that report, the prognosis was that the plaintiff’s condition would gradually settle over the next 12 to 24 months and her injury was not likely to cause any permanent disability.

[11] Given that the plaintiff did not have a medical-legal report at the time of the initiation of the action, nor had the defendant tendered any expert medical opinion, her counsel was not in a position to assess the quantum of general damages that may be awarded: Tucker v. Brown, 2008 BCSC 734. As at May 31, 2007, in all the circumstances, there was a real and reasonable prospect that the plaintiff’s recoverable damages would exceed the Provincial Court jurisdiction. Furthermore, unlike Walia, at the time of filing the proceedings, liability was not admitted; rather, the plaintiff had been informed that her claim was denied pursuant to the Insurance Corporation of British Columbia Low Velocity Impact Guidelines.

[12] I have also considered the following comments of Mr. Justice Chiasson in Reimann at para. 35:

In my view, the approach generally taken by the Supreme Court is too limited. It overemphasizes the policy of encouraging parties to proceed in the Provincial Court, but fails to consider the equally compelling policy consideration that parties are entitled to have respected their legitimate choice of forum.

[13] In Bhanji v. Quezada, 2003 BCCA 445, 185 B.C.A.C. 301 at para. 9, the Court provided some guidance as to what would justify a plaintiff’s decision to proceed in the Supreme Court:

The purpose of R. 57(10) is to encourage actions to be brought and continued in Provincial Court when there is no sufficient reason to expect that the claim might give rise to damages in excess of $10,000. That is sometimes a difficult decision for a plaintiff or his solicitor to make. If the plaintiff decides to proceed in Supreme Court he must be prepared to justify that decision in the event he recovers less than $10,000. In many cases, where there is sufficient medical or other evidence capable of supporting the larger claim, it will not be too difficult to justify the decision, especially if the damage award approaches the Provincial Court limit. [emphasis added]

[14] The award in this case is $24,263.47 prior to pre-judgment interest.

[15] In summary, I have concluded that at the time the proceedings were commenced, there was a real and reasonable prospect that the plaintiff’s recoverable damages would exceed the Provincial Court jurisdiction. The fact that the actual amount of the damages awarded to the plaintiff is very close to the Provincial Court limit supports this conclusion. I am satisfied that the plaintiff has demonstrated sufficient reason for bringing her action in the Supreme Court. I order that the plaintiff is entitled to costs under Appendix B at Scale B.

Can a Claim be Brought Into BC Rule 68 by Unilateral Amended Writ? – BCSC says Yes

Written by admin on December 2, 2008. Posted in Civil Procedure.

Reasons for judgment were released today dismissing a defence motion to strike out an amended Writ of Summons bringing an action into Rule 68.
Rule 68 is the “expedited litigation’ rule and is mandatory for certain claims filed in the BC Supreme Court. Rule 68(2) deals with the types of claims that it applies to. The subrule reads as follows:

Actions to which this rule applies

(2) Subject to subrule (5), this rule applies to an action commenced in the Vancouver, Victoria, Prince George or Nelson registry after September 1, 2005, and to every action commenced in any registry after January 1, 2008, if

(a) the only claims in the action are for one or more of the following:

(i) money;

(ii) real property;

(iii) personal property, and

(b) the total of the following amounts is $100,000 or less, exclusive of interest and costs:

(i) the amount of any money claimed in the action by the plaintiff for pecuniary loss;

(ii) the amount of any money to be claimed in the action by the plaintiff for non-pecuniary loss;

(iii) the fair market value, as at the date the action is commenced, of all real property, all interests in real property, all personal property and all interests in personal property claimed in the action by the plaintiff.

In this case the Plaintiff filed the action but did not endorse the Writ of Summons or Statement of Claim to bring the claim within the scope of Rule 68. The Plaintiff then filed an amended Writ of Summons and Statement of Claim with a ‘subject to Rule 68’ endorsement. The Defendant brought an application to strike the amended pleadings. Master McCallum of the BCSC dismissed the defence application ruling that the failure to add the Rule 68 endorsement was a mere irregularity. His key reasons are given at paragraphs 12-13 reproduced below:

[12] Rule 68 is mandatory and requires that actions qualifying as expedited actions proceed under the provisions of the rule. The absence of the required endorsement is an irregularity that may be remedied by amendment. The commencement of a proceeding without the Rule 68 endorsement does not change the character of the proceeding to permit process outside the limits of the rule.

[13] The defendants’ motion is dismissed. The action is an expedited action and Rule 68 applies. The amendments stand. Costs of the motion will be to the plaintiff as costs in the cause.

Mechanics Found Liable for Single Vehicle Collision for Negligent Brake Repair

Written by admin on December 1, 2008. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Liability (fault) Cases, ICBC Spine Injury Cases, Uncategorized. 67 Comments on Mechanics Found Liable for Single Vehicle Collision for Negligent Brake Repair

Reasons for judgement were released today compensating a Plaintiff as a result of injuries and loss sustained in a 2006 single vehicle collision that occurred in Vancouver, BC.
The Plaintiff, an 80 year old woman, was driving her Nissan back home from the hair salon. She drove down hill, applied her brakes but they did not respond. She lost control of her vehicle and smashed into a lamp standard prior to coming to a stop. The collision was significant and caused numerous injuries.
The Plaintiff sued Kal Tire Ltd. who serviced her vehicle in the years prior to the crash. ICBC also sued Kal Tire Ltd. for repayment of funds they paid to the Plaintiff as a result of this crash.
The court found that Kal Tire was responsible for this collision and thus ordered that damages be paid to the Plaintiff and to ICBC. The key finding was made at paragraphs 51- 53 which I reproduce below:

[51] The evidence demonstrated on the balance of probabilities that Kal’s negligence in servicing the Nissan’s brake system caused the brakes to fail. Mr. Brown’s physical observations of undisturbed front bleed screws is consistent with a failure to properly perform the brake fluid flush. This would have left existing contaminated brake fluid in the system.

[52] Ms. D’Oliveira did not notice a change in the brake system functioning after the servicing. The brakes may have been performing poorly before the servicing, which led to the replacement of the rear wheel cylinders. If the brake fluid flush was done incorrectly, brake function would not improve despite the servicing. Alternatively, Ms. D’Oliveira may not have been particularly sensitive to the sponginess of the brakes. While it appeared sudden to Ms. D’Oliveira, the brake system was likely performing poorly even prior to servicing, and there simply continued to be a slow deterioration leading to complete failure.

[53] As a result, Kal is liable for Ms. D’Oliveira’s injuries arising from the accident, and for the sum agreed between the parties in the ICBC Action.

The Plaintiff suffered various injuries which are summarized at paragraphs 54-56 of the judgement which I reproduce below. The court assessed the Plaintiff’s non-pecuniary damages at $40,000.

[54] Ms. D’Oliveira suffered significant orthopaedic injuries of ten broken ribs, a crushed right heel, and a fracture to the C-7 vertebra. She had surgery on her heel to insert pins, had a cast on her leg for seven weeks, and was placed in a neck collar. She spent 52 days in a hospital setting. She was discharged using a wheelchair, but shortly afterwards was able to walk with a walker and then a cane. During this time she was assisted in household activities by her son and sister.

[55] Ms. D’Oliveira was able to walk unaided about nine months after the accident. By that time she was mostly pain-free, and able to resume most of her activities.

[56] Ms. D’Oliveira’s on-going problems are that she is unsteady on her feet. She has given up her regular stay-fit classes. She is more cautious in turning her head. She has to wear wide shoes to accommodate swelling.

ICBC Claims, Low Velocity Impacts and Engineering Evidence

Written by admin on November 28, 2008. Posted in Civil Procedure, ICBC LVI (Low Velocity Impact) Cases.

Like many insurance companies the ICBC has a “Low Velocity Impact Program” (LVI) where tort claims are denied on the basis of little vehicle damages in collision.
When these claims are prosecuted one of the strategies often used by ICBC defence lawyers is to try to have the trial focus on the amount of vehicle damage sustained in the collision. This can be done in many ways. Often the Defendant is called to give evidence on the lack of vehicle damage, photos of the vehicles can be put into evidence and evidence of ICBC Vehicle Repair Estimators is sometimes put before the court. Sometimes ICBC goes further and retains a professional engineer to give evidence about the amount of force involved in the collision.
British Columbia courts are not always receptive to engineering evidence being permitted in motor vehicle tort claims. Reasons for judgement were released today by the BC Supreme Court ordering that such a report was indeed inadmissible. Since the judgement is very succinct and easy to follow I reproduce it in its entirety below:

[1] The plaintiff applies for an order that the expert report prepared by James Bowler, a professional engineer, not be admitted as evidence on the basis that it is neither relevant nor necessary.

[2] Mr. Bowler graduated in 1995 and since then has worked for MEA Forensic Engineers & Scientists. The report makes the assumption that “the provided materials accurately describe the vehicle damages from this accident.”

[3] Some of the material that was provided and referred to in the report was a final I.C.B.C. CL14 Repair Estimate and an I.C.B.C. CL14E Low Velocity Impact claim form on the plaintiff’s vehicle, and an I.C.B.C. CL14E Low Velocity claim form on the defendant’s vehicle.

[4] None of this material is before me.

[5] The purpose of the report was to prove what speed change occurred when the plaintiff’s vehicle was struck by the defendant’s vehicle. The vehicles were not examined by the engineer. He relied entirely upon the photographs and the materials supplied by I.C.B.C.

[6] Mr. Bowler stated that the impact severity was assessed by comparing the damage in the incident with two staged collisions tests previously conducted by MEA.

[7] The tests involved a 1985 Mazda RX7 and a 1984 Chevrolet Celebrity. The plaintiff was driving a Nissan 2002 Sentra GXE 4-door sedan and the defendant was driving a Honda 2005 Element 4-door wagon.

[8] The experiment that was conducted by the MEA concluded that on the white Celebrity used in the experiment, which had a mass similar to that of the plaintiff’s vehicle, there was a speed change of 1.3 km/hour.

[9] The conclusion reached was that the plaintiff’s vehicle likely sustained a speed change (slowing of 1.3 km/hour to 2.9 km/hour in the accident).

[10] The defendant says that the change in speed is a factor that I can consider when determining the injuries suffered by the plaintiff. However, without medical evidence as to the effect of the change in speed, this information is not of assistance.

[11] It is trite to say that the opinion expressed by an expert is only as good as the facts that have been proven. Here, there is no evidence as to the validity of the two-stage collision test conducted by MEA. There is no evidence as to the qualifications of the people that performed these tests, whether or not this experiment was published in a peer review article, or whether or not Mr. Bowler had anything to do with those experiments. It seems from the evidence that he did not, as he reviewed two video tapes of these staged collisions. Additionally, the defendant has not put into evidence the I.C.B.C. Low Velocity Impact claim forms or the repair estimate.

[12] I find that the report is not admissible.

$60,000 Pain and Suffering for Chronic Soft Tissue Injuries

Written by admin on November 26, 2008. Posted in ICBC Chronic Pain Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgment were released today awarding a Plaintiff just over $73,000 in total damages as a result of injuries and loss sustained in a 2005 BC vehicle collision.
The Plaintiff’s vehicle was rear-ended. The collision was significant with enough force to brake the seat assembly in her vehicle. She was 59 years old at the time of impact. The Plaintiff suffered injuries to her neck, shoulder, wrists, knee and elbow. Most of her injuries healed in short order. The Plaintiff’s neck and shoulder injuries did not and she testified that those areas were painful everyday some 3 years after the collision.
The Plaintiff’s injuries and their effect are summarized well at paragraph 14 of the judgment which I reproduce below:
[14] The main complaints of the plaintiff are that she has suffered significant, ongoing, chronic and permanent left neck and shoulder pain, and continuing anxiety, all caused by the motor vehicle accident. She has kept working throughout, for the most part. She has continued to work long hours, and at the same time has, on the advice of her doctor, tried a number of different kinds of therapy. She has gone for two different kinds of physiotherapy, massage therapy, acupuncture, and has sought the services of a kinesiologist, a certified personal trainer. She also went once for counselling to a psychologist with regard to her anxiety. She applies ice and heat to alleviate her pain, and uses medications, with apparently limited results.
The Plaintiff called her husband to give ‘before and after’ evidence along with her treating chiropractor and family physician. The defence called no evidence which is somewhat unusual in a contested injury claim. In most ICBC injury claims that proceed to trial the court hears from both Plaintiff and Defence expert medical witnesses who provide opinion evidence as to the extent of injury and its relationship to the trauma in question. It appears here that the defence was content to simply rely on their cross examination of the Plaintiff’s physicians.
The court found that the Plaintiff and her husband were ‘extremely credible’. The court accepted that the Plaintiff’s ongoing complaints were caused by the collision. In justifying an award of $60,000 for pain and suffering Madam Justice Morrison made the following comments:
[58] In my view, there has been a significant loss of enjoyment of life for this plaintiff. She suffers the pain and discomfort that she has described while working, and particularly while sitting at a computer, which involves much of her day. She will continue to work. Perhaps even more significantly, she has and will continue to suffer the loss of enjoyment of life that has occurred in her life beyond work. There has been a significant and negative change in the lifestyle of Mrs. Larlee, ranging from her day-to-day household activities, her passion for gardening, her lifelong involvement with the piano and the accordion, and an active lifestyle which involved vacations and other activities. Her pain is chronic and ongoing.

$50,000 Punitive Damages Award Against LawFirm Upheld

Written by admin on November 26, 2008. Posted in Uncategorized.

Reasons for judgment were released today dealing with a fee dispute between a personal injury plaintiff and his lawfirm.
The Plaintiff was involved in a serious motor vehicle collision in 1995. The Plaintiff hired a lawyer and ultimately a $860,000 settlement was reached.
A fee dispute arose after this settlement and litigation ensued. At trial the Plaintiff’s were granted judgement in the sum of $300,404.17 against the law firm. This award included a punitive damages award of $50,000 finding that the law firm acted in a ‘malicious, oppressive and high-handed‘ manner to their client.
The lawfirm appealed for various grounds. In a split decision, the BC Court of Appeal dismissed the major grounds of appeal but did reduce the over-all judgement by $27,413.58.
The award of punitive damages was based on a finding that ‘the totality of the actions and conduct of the appellant (lawfirm) in its abuse of power in its relationship with its clients, as well as in its approach to the litigation, established the need for an award of punitive damages to express the court’s disapproval of such conduct and to serve as a general deterrent‘
The court summarized the actions of the lawfirm as follows:
[99] I think that any legal professional would find the conduct of the appellant in this matter to be most disquieting. The appellant took substantial legal fees after deceiving the respondents and without addressing the position of conflict it was in. It placed its own interests ahead of those of its unsophisticated clients. The appellant provided inadequate supervision of Mr. Shaw with full knowledge of the requirements of the Law Society. Instead of denouncing the obviously reprehensible conduct of Mr. Shaw and setting matters right, it sought to take the benefit of that conduct. The appellant is vicariously liable for the conduct of Mr. Shaw and is directly liable for its own failure to take remedial action when such action was obviously called for.
The BC Court of Appeal did not disturb the trial judge’s award of $50,000 in punitive damages.
This case is worth reviewing in its entirety for anyone interested in the law dealing with contingency fee agreements and the duties of lawyers to their clients in British Columbia.

ICBC Claims and Formal Admissions

Written by admin on November 24, 2008. Posted in Civil Procedure. 50 Comments on ICBC Claims and Formal Admissions

ICBC personal injury claims lawyers know all too well that the true issues in an ICBC injury claim are not always narrowed down at the beginning of a claim.
Typically, after a Writ of Summons and Statement of Claim are filed, rather boiler-plate Statements of Defence are filed. Oftentimes not only is the issue of fault not admitted but allegations are made that the Plaintiff was not injured, if injured the Plaintiff is at fault for such injuries, if injured the injuries are not connected to the trauma and on and on. Such defences can significantly broaden the scope of a lawuit. As the lawsuit progresses the true focus of the claim often times becomes narrower.
One of the tools in a litigants arsenal in the BC Supreme Court to help narrow the focus of a lawsuit is the Notice to Admit. Rule 31 permits either side in a BC Supreme Court lawsuit to ask the other side to make formal admissions. This tool can be effective in helping narrow the scope of an ICBC injury claim. If a side fails to make reasonable admissions in a BC lawsuit the court can penalize that party with a costs order pursuant to Rule 31(4).
Rule 31 reads as follows:

Rule 31 — Admissions

Notice to admit

(1) In a proceeding in which a statement of defence, answer or answer and counter petition has been filed, a party may, by delivery of a notice to admit in Form 23, request any party of record to admit, for the purposes of the proceeding only, the truth of a fact or the authenticity of a document specified in the notice.

[en. B.C. Reg. 143/94, s. 6.]

Effect of notice to admit

(2) Unless the court otherwise orders, the truth of a fact or the authenticity of a document specified in the notice to admit shall be deemed to be admitted, for the purposes of the proceeding only, unless, within 14 days, the party receiving the notice delivers to the party giving the notice a written statement that

(a) specifically denies the truth of that fact or the authenticity of that document,

(b) sets forth in detail the reasons why the party cannot make the admission, or

(c) states that the refusal to admit the truth of that fact or the authenticity of that document is made on the grounds of privilege or irrelevancy or that the request is otherwise improper, and sets forth in detail the reasons for the refusal.

Copy of document to be attached

(3) Unless the court otherwise orders, a copy of a document specified in a notice to admit shall be attached to the notice when it is delivered.

Unreasonable refusal to admit

(4) Where a party unreasonably denies or refuses to admit the truth of a fact or the authenticity of a document, the court may order the party to pay the costs of proving the truth of the fact or the authenticity of the document and may award as a penalty additional costs, or deprive a party of costs, as the court thinks just.

Withdrawal of admission

(5) A party is not entitled to withdraw

(a) an admission made in response to a notice to admit,

(b) a deemed admission under subrule (2), or

(c) an admission made in a pleading

except by consent or with leave of the court.

Application for order on admissions

(6) An application for judgment or any other application may be made to the court using as evidence

(a) admissions of the truth of a fact or the authenticity of a document made

(i) in an affidavit or pleading filed by a party,

(ii) in an examination for discovery of a party or a person examined for discovery on behalf of a party, or

(iii) in response to a notice to admit, or

(b) admissions of the truth of a fact or the authenticity of a document deemed to be made under subrule (2)

and the court may, without waiting for the determination of any other question between the parties, make any order it thinks just.

Repealed

(7) to (9) Repealed. [B.C. Reg. 95/96, s. 14.]

The reason why I author this blog post is because interesting reasons for judgement were released today dealing with the issue of when ‘deemed’ admissions can be set aside.
In this case the Plaintiff delivered a Notice to Admit. The Defendant failed to deliver a response as required by Rule 31thus deeming that the facts noted in the Notice to Admit being admitted by the Defendant.
The Defendant brought a motion asking that the deemed admissions be set aside. The court granted the motion noting that ‘the interests of justice require that the Defendants be at liberty to withdraw (their admissions)‘
In doing so the court summarized the following factors which can be considered when considering whether deemed admissions should be judicially set aside:

1) That the test is whether there is a triable issue which, in the interests of justice, should be determined on the merits and not disposed of by an admission of fact.

2) That in applying that test, all the circumstances should be taken into account including the following:

3) That the admission has been made inadvertently, hastily, or without knowledge of the facts.

4) That the fact admitted was not within the knowledge of the party making the admission.

5) That the fact admitted is not true.

6) That the fact admitted is one of mixed fact and law.

7) That the withdrawal of the admission would not prejudice a party.

8) That there has been no delay in applying to withdraw the admission.

If you are involved in an ICBC injury claim in the BC Supreme Court and beleive the focus of your lawsuit can be narrowed you may wish to consider delivering a Notice to Admit under Rule 31.

More on ICBC Claims, Impaired Driving and Civil Consequences in BC

Written by admin on November 23, 2008. Posted in Civil Procedure, ICBC Chronic Pain Cases, Uncategorized.

Reasons for judgment were released on November 21, 2008 awarding a Plaintiff just over $230,000 in damages as a result of injuries and losses sustained in a 2004 Vancouver Island motor vehicle collision.
The Defendant was impaired by alcohol when the collision occurred. As a result the Defendant was in breach of his ICBC insurance and ICBC defended the action as a statutory Third Party. In such situations the issue of fault is rarely admitted and although that was the case here liability was not seriously contested at trial and the court found the impaired driver wholly liable for the crash.
It was a significant crash and the Plaintiff sustained various injuries. The most contentious injury of the Plaintiff was a hip injury and the reasons for judgment focus largely on whether the Plaintiff’s hip ongoing hip problems were causally related to the collision. The court found in the Plaintiff’s favor with the key findings being made at paragraphs 75-79 which I reproduce below:

[75] The findings of Dr. Leith indicate a causal connection between the plaintiff’s hip injury and the Accident. Dr. Leith found that Mr. Hartnett’s left hip injury is a soft tissue injury to the left greater trochanter region of the hip. Dr. Leith concluded, at pages 4 and 5 of his report, that Mr. Hartnett’s hip symptoms are “most likely the result of the subject MVA based on the temporal relationship to the Accident and the fact that there is no indication that Mr. Hartnett had any pre-existing conditions to these areas”.

[76] Dr. Leith’s finding that Mr. Hartnett had no prior injuries to his hip is consistent with the evidence led at trial. The evidence did not disclose that Mr. Hartnett had any hip problems, or physical limitations in performing road service prior to the Accident. Further, the evidence of Mr. Hartnett and his wife demonstrates Mr. Hartnett’s willingness to work through pain and his stoic nature. Mr. Hartnett’s reluctance to disclose his hip injury to his physicians does not indicate a lack of connection between the Accident and the injury. Rather, it simply demonstrates that Mr. Hartnett was reluctant to complain about his hip injury based on his personality and his hope that it would gradually heal on its own.

[77] I find Mr. Hartnett’s hip injury is casually related to the Accident since the evidence demonstrates, on a balance of probabilities, that he would not be suffering a hip pain but for the Accident.

FUTURE PROGNOSIS:

[78] The reports of Drs. Leith and Gilbart both indicate the prognosis for Mr. Hartnett’s injuries is positive and that surgery will not be required. Neither examination finds any substantive problems in Mr. Hartnett’s hip, which is his principal, ongoing complaint, along with his shoulder and lower back. Based on an initial review of these reports, it may seem that the severity of Mr. Hartnett’s injuries is minimal and any corresponding impacts on his work and personal life would also be negligible. However, I am persuaded, based on the evidence of Mr. Hartnett and his wife, that the injuries to his hip, lower back and shoulder are in fact significant and continue to cause him considerable pain during various physical activities, especially certain aspects of his employment, recreation and home maintenance activities. I found that both Mr. Hartnett and his wife gave their evidence in a straightforward and honest manner with respect to their recollections and assessments of the Accident and its impact on Mr. Hartnett and the family. I also agree with the conclusion reached by Dr. Leith, that given the time elapsed since the Accident and the extent of Mr. Hartnett’s pain, it is likely that these injuries will continue to affect him in the future.

[79] It is clear that Mr. Hartnett experiences greater amounts of pain while working road service, as compared to yard service. He has twice attempted to work road service since the Accident, for a total of 12 months, and found the job duties resulted in a significant increase in pain. As a result, he was forced to elect yard service because the job requirements in that position, while still painful, were more manageable. Based on all of the evidence, I find these injuries will continue to adversely affect Mr. Hartnett for the foreseeable future.

The court awarded the following damages:

· Non-pecuniary damages: $60,000

· Loss of income-earning capacity: $150,000

· Loss of home maintenance capacity: $10,000

· Past wage loss: $16,280

Future cost of care: $1,000

I have previoulsy blogged about the civil consequences of impaired driving in BC and cases like this serve a stark reminder that the financial consequences can be significant. As an ICBC personal injury claims lawyer I have unfortunately seen the long term impact of impaired driving too many times. If a person drives drunk in BC and negligently causes injury to another they can be held in breach of their insurance. If this happens ICBC (assuming they follow the statutory protocol) have the right to defend resulting tort claims as a ‘statutory third party’ and after they pay the settlement or judgement can come after the Defendant directly for repayment. Unlike most creditors ICBC enjoys certain statutory rights which give them greater teeth to collect from a breached defendant. This case shows that the financial consequences of impaired driving causing injury in BC can easily be in the hundreds of thousands of dollars.

ICBC Claims, CPP Disability and Deductibility of Wage Loss Awards

Written by admin on November 21, 2008. Posted in Civil Procedure, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Wage Loss.

Reasons for judgement were released today dealing with the issue of whether a defendant ordered to pay a plaintiff money for future wage loss as a result of a BC motor vehicle accident can deduct from such an award disability benefits the Plaintiff will receive from the Canada Pension Plan (CPP).
The Plaintiff was injured in a 2005 motor vehicle collision. Liability was not seriously contested and the Defendant was found 100% at fault at trial. The Plaintiff suffered serious injuries including a

1. Fractured sternum; and

2. Head injury with probable significant cerebral concussion; and

3. Contused lower thoracic spine and upper lumbar spine; and

4. Multiple rib contusions.

The most contested injury was whether the Plaintiff suffered from on-going problems as a result of a brain injury allegedly sustained in the collision. The court found for the Plaintiff noting that
[71] On balance I conclude that I accept the expert evidence to the effect that it is more likely than not that there are persisting, but very mild, sequelae from the mild traumatic brain injury affecting cognition. The effects on Mr. Kean’s cognition are so subtle as to be virtually indistinguishable from the concurrent effects from the other operating causes, namely pain, pain medication, and depressed mood.
The Court assessed damages as follows:

Non-pecuniary damages:	$180,000.00
Past wage loss:	$32,506.38
Future earning capacity loss:	$100,000.00
Future care costs:	$51,032.28
Special damages:	$10,672.95

ICBC argued that money the plaintiff has/will receive from CPP should be deducted from his awards for past wage loss and future wage loss awards. The court dismissed this argument concluding that “the law in this jurisdiction is settled to the effect that CPP disability benefits fall within the insurance exception to the rule against double recovery and should not be deducted from tort awards for past or future wage loss”
The key discussion took place at paragraphs 102 – 111 which I reproduce below:

[102] Counsel for the defendant and the third party argued that CPP disability benefits received by Mr. Kean should be deducted from his award for past wage loss, and the present value of future CPP disability benefits should be deducted from his future income award. The thrust of their argument is that this is necessary to prevent double recovery. The defendant argues that CPP disability benefits are a form of mandatory social insurance that workers cannot negotiate out of, and the scheme is a form of income replacement.

[103] The defendant’s argument is essentially the same argument that these same counsel made unsuccessfully in the case of Maillet v. Rosenau 2006 BCSC 10. In Maillet, the plaintiff had received social assistance payments which were deducted from the past wage loss, but Powers J. did not accede to the defendant’s argument that future CPP disability benefits should be deducted from the award for losses of future earnings. As here, the defendants relied on the case of M.B v. British Columbia, 2003 SCC 53, suggesting that the rationale applied in that case to conclude that social assistance payments were deductible from a future wage loss award, was equally applicable to CPP disability benefits and that the decision represented a change in the law.

[104] In Maillet, Powers J. followed a line of authority which had held that the CPP disability pension scheme was essentially an insurance scheme and covered by the insurance exception to the rule against double recovery. This line of authority includes Canadian Pacific v. Gill,[1973] S.C.R. 654, Hayre v. Walz (1992), 67 B.C.L.R. (2d) 296 (BCCA) and Cugliari v. White, (1998) 159 D.L.R. 4^th 254 (Ont.C.A.).

[105] Like Powers J, I do not see the reasoning in M.B. as effecting a change in the law as it applies to CPP disability payments. The analysis undertaken in that case was outlined in ¶24 of the decision:

The first question is whether social assistance is a form of income replacement. If it is not, no duplication arises. If it is, the further question arises of whether social assistance can be excluded from the non-duplication rule under an existing or new exception.

[106] The court determined that social assistance was a form of income replacement and then stated in ¶28:

It follows that the only way in which they can be non-deductible at common law is if they fit within the charitable benefits exception, or if this court carves out a new exception. Otherwise, retention of them would amount to double recovery.

[107] After holding that social assistance payments did not fit the charitable benefits exception (because the rationale for that exception did not concern the purpose of charitable donations, but its effect on the owners and the difficulties of valuation), the court discussed whether it should carve out a new policy- based exception. The court decided that it should not do so. Clearly there was no viable argument that the insurance exception might be applicable to social assistance and that was not considered.

[108] The defendant wishes to characterize the CPP disability payments as a form of social security because it is a legislative creature and contributions are mandatory. But, unlike social assistance, it is funded by contributions and only those who have contributed can benefit. There is an overlap of recovery, but that is inherent in the insurance exception to the rule against double recovery. The other side of the coin is that to deduct the CPP benefits from a tort award is to force the injured contributor to share the benefits of his contributions, (which represent deductions from his former earnings), with the tortfeasor.

[109] The defendant’s book of authorities included, in fairness, the case of Sulz v. Minister of Public Safety and Solicitor General 2006 BCCA 582, which was decided shortly after theMaillet decision. In Sulz, the British Columbia Court of Appeal quotes from Mr, Justice Iacobucci in Sarvanis v. Canada 2002 SCC 28 at ¶33:

….it has already been held by this court that CPP disability payments are not to be considered indemnity payments, and therefore that they are not to be deducted from tort damages compensating injuries that actually caused or contributed to the relevant disability. See Canadian Pacific Ltd. v. Gill; Cugliari, supra. This rule is passed on the contractual or contradictory nature of the CPP. Only contributors are eligible, at the outset received benefits, provided that they then meet the requisite further conditions.

[110] The issue in Sulz was the deduction of superannuation pension from a tort award. The British Columbia Court of Appeal, in a decision written by Madam Justice Levine, (who was the trial judge in M.B. whose deduction of social assistance payments was upheld by the Supreme Court of Canada) said, at ¶65:

The superannuation pension received by the respondent is of the same character as CPP disability benefits and other pension payments, which have consistently held to be non-deductible from tort damages.

[111] I conclude, as did the court in Maillet, that the law in this jurisdiction is settled to the effect that CPP disability benefits fall within the insurance exception to the rule against double recovery and should not be deducted from tort awards for past or future wage loss.

NOTE – the reasoning of this case may not apply to all ICBC claims. For example in ICBC UMP Claims where ICBC is entitled to certain statutory deductions from the damages they need to pay to an insured.