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"Use of Vacation Time Does Not Represent Lost Income" in ICBC Claim

Written by admin on November 20, 2014. Posted in ICBC Wage Loss.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, holding that used vacation time following an injury is not compensable as lost income in a personal injury lawsuit.
In today’s case (McCartney v. McArthur) the Plaintiff missed a week of work due to collision related injuries. He used up vacation time during this period and was paid accordingly by his employer during the week off. In finding that no claim for loss of income for this period can be advanced in his tort claim Mr. Justice Bowden provided the following brief reasons:

[82] At the time of the accident the plaintiff was working about 32 hours a week at Oak Hills Woodcraft. He received a base salary of $1,200, plus a car allowance of $150 every two weeks, for a total of $1,350. He took seven days off after the accident; however, he used his vacation time for that time off and continued to receive his regular salary. In 2010 his income was $36,549 which is slightly more than he received in the years before the accident.

[83] The plaintiff seeks $1,181.25, representing his salary for the seven days that he did not work shortly after the accident when he used his vacation time. The plaintiff argues that by using seven days of his vacation entitlement he gave up something that should be compensated for as past wage loss.

[84] While the use of days from a bank of sick leave days may entitle a plaintiff to compensation for the loss of past income because the plaintiff may have to pay to replace the sick days, in my view the use of vacation time does not represent lost income. (Roberts v. Earthy, 1995 CarswellBC 1800 (B.C.S.C.)). During that vacation time the plaintiff continued to receive his expected income.

$75,000 Non-Pecuniary Assessment for Chronic Aggravation of Pre-Existing Neck Symptoms

Written by admin on November 20, 2014. Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic aggravation of a pre-existing neck injury.
In today’s case (McCartney v. McArthur) the Plaintiff was involved in a 2010 rear end collision. The Defendant admitted fault for the crash. The 62 year old Plaintiff had a 20 year history of occasional neck complaints. The collision aggravated these and led to chronic symptoms which impacted the Plaintiff’s functioning. In assessing non-pecuniary damages at $75,000 Mr. Justice Bowden provided the following reasons:
69] I am satisfied that the defendant’s negligence, which has been admitted, contributed to the injuries complained of by the plaintiff. While the plaintiff’s pre-existing condition resulted in symptoms in his neck area that had some similarity to those he experienced after the accident, the degree of pain experienced by him clearly increased after the accident and, I find, became chronic in nature. In particular, Dr. Gittens testified that the plaintiff’s pre-existing condition, involving some degenerative changes in his spine, was aggravated by the accident. He said that his pain, which he described as neuropathic, occurs after the underlying trauma has resolved and is extremely difficult to resolve. He said it may be a permanent condition. In my view the evidence establishes that the symptoms suffered by the plaintiff after the accident were different and worse than before the accident. His neck condition was significantly aggravated by the accident…

[76] I have concluded that the plaintiff suffered aggravation to his neck pain as a result of the accident and his pain has become chronic in nature. For the first time, the pain that the plaintiff suffers imposes some functional limitations on him.

[77] The evidence also establishes that the plaintiff went from an outgoing pleasant person to someone who was easily irritated by other people. This has interfered with his ability to work effectively as a cabinet salesman.

[78] I am satisfied that the accident has negatively affected the quality and enjoyment of the plaintiff’s life and that may continue indefinitely. He will likely continue to suffer pain, together with the associated deleterious effects on his enjoyment of life.

[79] After considering the relevant case law referred to by counsel and keeping in mind that the award in each case is very dependent upon the unique facts of the case, I award the plaintiff $75,000 in non-pecuniary damages.

Addiction and Pain Management Programs Not Mandatory ICBC Benefits

Written by admin on November 19, 2014. Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized. 58 Comments on Addiction and Pain Management Programs Not Mandatory ICBC Benefits

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that an addiction program and a multi-disciplinary pain management program are not mandatory ICBC No Fault benefits.
In today’s case (MacDonald v. ICBC) the Plaintiff was inured in three separate motor vehicle collisions. She was insured with ICBC. She suffered a variety of injuries which resulted in chronic pain and addiction issues. Among the recommended treatments for the Plaintiff were an inpatient residential addiction treatment program along with a multi-disciplinary pain management program.
ICBC refused to fund these under the Plaintiff’s policy of insurance arguing that neither of these programs were ‘mandatory’ benefits covered under section 88(1) of the Insurance (Vehicle) Regulation. Madam Justice Fitzpatrick agreed finding components of the programs (such as physiotherapy) may be covered individually and further that the programs may be covered as ‘permissive’ ICBC benefits, they could not be compelled under section 88. In reaching this conclusion the Court reasoned as follows:
[83] The mandatory provisions in s. 88(1) stand in contrast to those in s. 88(2) where ICBC may provide funds to an insured at its discretion and where ICBC’s medical advisor advises that funded benefits under this section are likely to promote the rehabilitation of the insured who was injured in an accident…

[95] I am reluctantly driven to the conclusion that Ms. MacDonald’s position is not supportable. As ICBC argues, I think correctly, the Raguin decision has confirmed that the proper interpretation of the section is a more restrictive one in the sense that it is driven by the specific enumerated services that are described in s. 88(1). In accordance with that approach, I see no basis upon which services could be seen to be included as long as they are overseen or supervised by a medical doctor. Services provided by others do not become “medical services” simply because a medical doctor directs them or oversees or supervises them.

[96] From a public policy perspective, this strict interpretation of the enumerated services presents some difficulties. It is unlikely that the Legislature intended to adopt a rehabilitation-in-pieces approach to legislation that exists to promote reasonable and necessary benefit coverage to injured persons. However, in the absence of clear guidance in the Regulation that s. 88(1) is capable of supporting multi-disciplinary programs, these programs cannot be read-in to include other services not specifically enumerated, such as the court did in Raguin.

[97] Even accepting Ms. MacDonald’s proposition regarding medical supervision, there is no evidence that in fact, the services at Heartwood and the “other services” at Orion Health either were or would be under the supervision of a medical doctor (although I appreciate that Dr. Mead continued to treat Ms. MacDonald for pain and addiction issues throughout her stay at Heartwood).

[98] The difficulty is that the argument for both Heartwood and Orion Health is an all or nothing proposition. Both are, as described above, multi-disciplinary treatment programs that bring in various disciplines in order to offer a team approach to dealing with a host of problems, such as Ms. MacDonald has. I have no hesitation in finding that some of the services, such as provided by a medical doctor, were or would be covered under s. 88(1) but it is equally apparent that some are not. In my view, this leads to the conclusion that the treatment programs, as a whole, are not covered under s. 88(1).

Parties of Record Have Standing To Address Pre Trial Witness Examination Orders

Written by admin on November 19, 2014. Posted in BCSC Civil Rule 7, Civil Procedure. 60 Comments on Parties of Record Have Standing To Address Pre Trial Witness Examination Orders

Reasons for judgement were released this week (Brooks v. Abbey Adelaide Holdings Inc.) considering the procedural question of whether a party of record has standing to make submissions during an opposing party’s application for an order compelling the pre-trial examination of a witness. In short the Court held that all parties of record have standing to make submissions during these applications although the standing is limited. In reaching this decision Master Young provided the following reasons:

[1] THE COURT: I have been asked to decide whether a party to an action has standing in a hearing of an application by another party to examine a witness prior to trial under Rule 7-5 of our new Supreme Court Civil Rules.

[2] Apparently there is no authority on this point under the new Civil Rules..

[12] I find that the party has a right to make submissions on the scope and the duration of the examination as it relates to relevance and proportionality.

[13] So I find that they have limited standing. They do not have standing to object to a witness being questioned, because I think that infringes the common law right of property to a witness. But I do find that they do have standing to address procedural issues, proportionality issues and issues of privilege.

[14] Having said that then, I will allow the plaintiff to make submissions of the application.

Privacy A Rare Protection For Personal Injury Plaintiffs

Written by admin on November 18, 2014. Posted in ICBC Privacy Issues, Uncategorized. 50 Comments on Privacy A Rare Protection For Personal Injury Plaintiffs

When a personal injury claim proceeds to trial oftentimes publicly available reasons for judgement are published which are accessible by all. These frequently reveal details about a Plaintiff’s health, limitations, injuries and other personal details. Reasons for judgement were released discussing if a Plaintiff should be granted anonymity in published reasons for judgement. In short, the Court held that absent exceptional circumstances, such privacy protections should not be granted.
In the recent case (Davidge v. Fairholm) the Plaintiff, who was injured in a collision, asked for anonymity on the basis that “ publishing the plaintiff’s name might hurt him in his employment, as his employer might treat him differently after learning about his medical issues. This is because the plaintiff works in employment that involves some physical stress on his body”. ICBC objected to the reqest for privacy. In denying the Plaintiff’s request Madam Justice Griffin provided the following reasons:

[12] The law is clear that anonymizing a judgment by substituting initials for a litigant’s name should only occur in rare circumstances, such as where it is necessary to protect a vulnerable litigant or a vulnerable person who can be identified through the litigant.

[13] I find that there is nothing exceptional about this case which requires a publication ban on the name of the plaintiff. There is no more of an invasion of privacy in this case than in an ordinary case and the plaintiff is not a vulnerable person.

[14] I also note that if publication bans were a matter of course in personal injury trials this could negatively impact the administration of justice. There are sound reasons for publishing the names of litigants. One benefit of the open court principle is that it brings home to a person who testifies the importance of telling the truth and increases the potential consequences of failing to do so. This is one reason the Third Party’s opposition to such an application is an important factor to weigh.

[15] The application to anonymize the judgment is therefore refused.

BC Court of Appeal – Interest Disbursements Not Recoverable in Injury Litigation

Written by admin on November 17, 2014. Posted in Uncategorized.

Important reasons for judgement were released today by the BC Court of Appeal (MacKenzie v. Rogalasky) addressing an unsettled area of law, whether interest charges on disbursements incurred during the prosecution of an injury lawsuit could be recovered. In short BC’s highest court ruled they cannot.
In reaching this conclusion the Court provided the following reasons:

[78] In my opinion, the various iterations of the rule set out above permitting recovery of expenses focuses most naturally on the exigencies inherent in the particular litigation rather than capturing expenses arising from the financial circumstances or other choices of a party. Embedded in the rule is the requirement for a causal connection between the issues in the case and the expense incurred to prove or disprove them.

[79] The rule, in its current form, permits the recovery of “disbursements … incurred in the conduct of the proceeding”. In my view, quite apart from the language “incurred in the conduct of the proceeding” the term “disbursement”, when used in the context of a costs rule that relates to the taxation of costs in particular litigation, does contain limits that narrow its potential broad applicability. It appears to me that the purpose of permitting the recovery of disbursements in the context of a costs regime is to permit the recovery of those expenses that arise inherently and directly from the issues in the case which relate, as the appellants suggest, to the direction, management, or control of litigation and which pay for materials and services used to prove a claim or defence. These expenses arise directly from the nature and conduct of the allegations in a proceeding. By contrast, interest expenses do not arise from the nature of the allegations or the conduct of proceedings, they arise from unrelated causes including the financial circumstances of a party. In my view, as such, they do not fall within the meaning of the word “disbursements” in the context of a costs rule.

[80] It will be apparent that the conclusion I have reached does not depend on limiting the applicability of the word “disbursements” by reference to the phrase “incurred in the conduct of the proceeding”. I consider that the meaning of the words “disbursement” or “expense” has always excluded out-of-pocket interest expenses. The addition of the phrase “incurred in the conduct of the proceeding” in the rule in 1990 did not narrow or change the meaning of the word “disbursement” or otherwise limit its application. Rather, the phrase reinforces and confirms what has always been the case. To be recoverable a disbursement must arise directly from the exigencies of the proceeding and relate directly to the management and proof of allegations, facts and issues in litigation, not from other sources. In my view, that is what is captured by the phrase “the conduct of the proceeding”.

[81] In my opinion, this interpretation of the rule flows naturally from the purposes of a costs regime and the guidance provided on that subject by the Supreme Court of Canada, most particularly in Walker. Several points emerge which assist in interpreting the rule. The first is that a costs regime serves multiple functions, only one of which is indemnification. Even in respect of that function, the costs regime provides only partial, and not full, indemnity to a successful party. Accordingly, one is not compelled to conclude that interest expenses must be recoverable because the purpose of the rule is to make a successful party whole. To the contrary, partial indemnification underlies both the recovery of costs on a tariff and disbursements (because the reasonable amount awarded may not fully indemnify the cost of necessary or proper disbursements).

[82] Second, within the context of partial indemnification, costs awards should be predictable and consistent across similar cases. Only if this is the case can parties accurately assess the risks of engaging in litigation and make rational decisions about settling or prosecuting the case. Recognizing interest expenses as recoverable disbursements is inconsistent with this objective because exposure to costs and disbursements would not depend on the nature of the case itself, but on the particular circumstances of a party. These circumstances may well involve the relationship between the party and counsel and be matters the opposing party has no right to know.

[83] Third, although costs regimes may affect access to justice, the Supreme Court has made it clear that costs are not the means of securing access to justice, except in exceptional circumstances. Of this more below.

[84] Finally, costs awards relate to the particular case and are made as between the successful and the unsuccessful parties. On the facts of these appeals, it seems reasonable to infer that recognizing interest as an expense would lead to a transfer of resources between classes of parties in which unsuccessful defendants are exposed to the risks of paying high interest rates designed to pay for the cost of lending money, not just to the successful party in the case but other plaintiffs who receive financing but may not recover moneys to pay for their loans…

[93] I conclude that an out-of-pocket interest expense incurred to finance disbursements is not a recoverable disbursement under Rule 14-1(5). I acknowledge that this result is likely inconsistent with the position in New Brunswick and possibly Ontario. To the extent that this is the case, I am respectfully, and for the reasons set out above, unable to agree with the conclusion those courts reached.

The Big 2000!

Written by admin on November 13, 2014. Posted in Uncategorized.

While writing my last post I realized this site has passed the 2,000 article benchmark. Thank you to all my readers who make this ongoing effort worthwhile!

Clinical Record Disclosure Thwarts Adverse Inference Request

Written by admin on November 13, 2014. Posted in Uncategorized.

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, placing great weight on clinical record disclosure in denying a request for an adverse inference.
In the recent case (Beggs v. Stone) the Plaintiff was involved in a 2009 collision caused by the Defendant. The Plaintiff suffered a variety of soft tissue injuries with accompanying psychological difficulties which rendered her disabled. In the course of the trial the Plaintiff did not call a variety of treating physicians including one who treated her before and shortly after the collision and treating psychologists. In declining to draw an adverse inference Mr. Justice Smith placed ‘particular emphasis‘ on the fact that fulsome disclosure of these treating physicians records was made. In finding no inference should be made the Court provided the following reasons:

[22] Counsel for the defence seeks an adverse inference from the plaintiff’s failure to call the family physician who treated her before and in the year following the accident and more particularly the psychologists who treated her both here and in Winnipeg after the accident. The factors for drawing an adverse inference are set out in Buksh v. Miles, 2008 BCCA 318, at para. 35. These include the evidence before the court, the explanations for not calling the witness, the nature of the evidence that could be provided, the extent of disclosure of the witness’s clinical notes and the circumstances of the trial.

[23] In declining to draw an adverse inference, I place particular emphasis on the fact that the clinical records of all of these professionals were disclosed to defence counsel and were reviewed by all the experts who gave their opinions in part based upon those records. The plaintiff’s pre-accident condition and post-accident progress are well documented, and there is nothing to suggest that there is anything in those records that contradicts anything that the doctors who have testified have stated.

ICBC Claim for "Disastrous Losses on the Stock Market" Fails at Trial

Written by admin on November 12, 2014. Posted in ICBC Wage Loss.

Update February 23 2018 – An appeal of the below case was dismissed this week by the BC Court of Appeal
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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, considering whether a Plaintiff’s substantial losses in the stock market could be compensated as part of a personal injury lawsuit. On the facts of the case the Court rejected this claim.
In today’s case (Barta v. DaSilva) the Plaintiff was involved in a 2007 collision caused by the Defendant. The Plaintiff alleged that the collision caused a mild traumatic brain injury and this “destroyed his capacity to earn an income, trading securities on his own account, and has caused him to lose the capital he accumulated and invested in the stock market“.
Around the time of the crash the plaintiff’s total portfolio was valued around $1.8 million. By the end of the 2009 the value plummeted to less than $400,000. In rejecting the claim that a brain injury had anything to do with this diminished asset, Mr. Justice Affleck provided the following reasons:

[56] By July 31, 2008, a year after the accident, the plaintiff’s portfolio had increased to $2,790,301.95. He had made successful trades in that year increasing his portfolio by almost $921,000. There is no possible inference to be drawn that cognitive impairment had damaged his trading ability during this time period. Then disaster struck. In September 2008 the market “crashed” and the plaintiff testified that he was “hit hard”.

[57] The plaintiff had purchased Lehman Brothers Holdings prior to the crash and had made a considerable capital gain in a few days. This appeared to have encouraged the plaintiff to hold Lehman Brothers even as his own financial crisis deepened, as did that of the market generally. This the plaintiff argues indicates his impaired judgment following the accident. However, I have no basis to conclude his decision to retain the Lehman Brothers stock was irrational at the time it was made. He had made a substantial quick profit in a few days and I believe he concluded he could eventually continue to make money by holding on. He did not foresee Lehman Brothers would be forced into bankruptcy. Many investors suffered a similar fate…

…The plaintiff engaged in risky stock market trading over several years. He developed a level of expertise that permitted him to earn a reasonable income. However his unwise decisions made in 2008, coupled with the stock market collapse, and the judgment in favour of Mr. Palkovics created financial conditions from which he could not recover. In my opinion the effects of the accident did not compromise his ability to trade on the stock market.

[61] It is impossible not to have sympathy with Mr. Barta’s disastrous losses on the stock market but the evidence does not satisfy me that he has proven that the defendant’s negligence caused them.

Difference Between Amounts Claimed and Awarded "Not a Reason for Depriving Costs"

Written by admin on November 7, 2014. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14. 71 Comments on Difference Between Amounts Claimed and Awarded "Not a Reason for Depriving Costs"

Unreported reasons for judgement were recently provided to me confirming that, where a party receives substantially less at trial than they were seeking, that is not a reason in and of itself to deprive the successful party costs.
In the recent case (Fadai v. Cully) the Plaintiff was injured in a collision and sued for damages. At trial the Plaintiff was awarded damages but these “were substantially lower than he had claimed“. The trial judge initially awarded the Plaintiff only 75% as a result of this. The Court was asked to reconsider and after reviewing Loft v. Nat the Court reconsidered and awarded the Plaintiff full costs. In reaching this decision Mr. Justice Schultes provided the following reasons:
[4] When I look at the decisions that I have been provided…it is clear that a difference between the amounts claimed and those awarded is not, in itself, a reason for depriving a successful party of their costs.
[5] A proper allication of the law should lead Mr. Fadai receiving his costs of this trial, and not only the portion of them that I tentatively awarded him.