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It Ain't Over Till It's Over- Fresh Evidence Allowed After Close of Injury Prosecution

Written by admin on . Posted in Civil Procedure, Uncategorized. 67 Comments on It Ain't Over Till It's Over- Fresh Evidence Allowed After Close of Injury Prosecution

After the conclusion of a personal injury trial it can take several weeks if not months before judgement is granted.  If relevant developments occur during this time the Court has discretion to re-open the trial.  Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, canvassing this area of the law.
In today’s case (Miley v. Abulaban) the Plaintiff sued for damages as a result of personal injuries.  42 days after the Defendant closed their case the Plaintiff sought to introduce fresh evidence that the Plaintiff was fired from his employment.  Despite the Defendant’s objections the Court allowed the evidence to be introduced and in doing so Madam Justice Hyslop provided the following reasons:
[8]             The plaintiff and defendants agree as to the law for the introduction of fresh evidence. The law is as stated by Madam Justice Satanove in Inmet Mining Corp. [v.] Homestake Canada Inc., 2002 BCSC 681, as follows:
[5]        The principles of law governing when a trial judge may re-open a case after judgment has been rendered, but before the order has been entered, has been discussed by our courts in a number of decisions. I have endeavoured to consolidate the applicable principles as follows:
1.         A trial judge has the unfettered discretion to re-open a case before the entry of the order, but the discretion must be exercised judicially and sparingly. (Sykes v Sykes (1995), 6 B.C.L.R. (3d) 296 (C.A.)).
2.         The purpose of the discretion to re-open is not intended to be an alternative method of appeal. (Cheema v. Cheema (2001), 89 B.C.L.R. (3d) 179 (S.C.)).
3.         Filing of a notice of appeal does not remove the discretion of a trial judge when a factual error has been identified (my emphasis). (Banyay v. Actton Petroleum Sales Ltd. (1996), 17 B.C.L.R. (3d) 216 (C.A.)).
4.         The discretion may be properly exercised where the trial judge is satisfied that the original judgment is in error because it overlooked or misconstrued material evidence or misapplied the law. (Clayton v. British American Securities Ltd., [1934] 3 W.W.R. 257 (B.C.C.A.)).
5.         It is not a proper basis for exercising the discretion if the applicant merely advances an alternative argument which could easily have been advanced at trial. (Cheema v.Cheema; Sykes v. Sykes). Where a court of competent jurisdiction has adjudicated upon a matter it will not (except under exceptional circumstances) re-open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but were not. (Maynard v. Maynard, [1951] S.C.R. 346; Angle v. Canada (Ministry of National Revenue), [1975] 2 S.C.R. 248).
6.         New evidence is not an essential prerequisite to exercising the discretion. (Sykes v. Sykes).
[9]             Mr. Justice Ehrcke stated in Zhu v. Li, 2007 BCSC 1467, at para. 14:
The principles governing an application to adduce fresh evidence on an appeal are well-known. They were summarized succinctly by McIntyre J. in Palmer and Palmer v. The Queen, [1980] 1 S.C.R. 759 at p. 775:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, [1964] S.C.R. 484.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[10]         The plaintiff offered to be examined by the defendants on this matter and the defendants have chosen not to do so. I see no purpose in the defendants pursuing this course of action as Mr. Miley may not have new employment and this would cause delay
[11]         I must say that it is not surprising that Mr. Miley lost his employment as a result of his lie. An employer relies on integrity and honesty of an employee. This is particularly so when a person applies for employment and represents his or her qualifications. Based on representations in résumés, an employee is given duties, responsibilities and remuneration accordingly.
[12]         Applying the principles set out above, Mr. Miley’s termination could not have been discovered by due diligence because the event of his firing had not occurred. The defendants argue that Mr. Miley knew that his résumé was false as to the representation that he had a degree when he knew he did not, and that he could have brought this to the attention of his employer at any time. That is true, but Mr. Miley did not know he would be caught and that his employer would terminate him, although as I stated earlier, it should not have been a surprise to Mr. Miley.
[13]         The evidence is credible as the documents are disclosed terminating Mr. Miley’s employment. I find that the documents produced by the plaintiff as to his termination are credible.
[14]         The evidence is relevant because although Mr. Miley is without employment, it may affect the issue of earning capacity or it may not, as at the time of trial Mr. Miley’s responsibilities and remunerations with Coast Capital were likely based, in part, on his having a degree. However, Mr. Miley testified that being a professional writer could be attained by education or by experience. Whether this testimony, given by Mr. Miley, was in anticipation that his lack of a degree would be revealed, I do not know.
[15]         The evidence of his termination is neutral.
[16]         I allow the plaintiff’s application and the evidence allowed is that Mr. Miley’s employment by Coast Capital has been terminated by them.

 

 

Failure to Pay Jury Fees Nullifies Jury Notice In Rescheduled Trial

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Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, confirming that failure to pay jury fees nullifies  jury notice even when a trial is adjourned.
In today’s case (Blaikie v. Penafiel) the Plaintiff was injured in a collision and sued for damages.  The Defendant filed a jury notice but did not pay the fees in the required time frame prior to the initial trial being adjourned by consent.  The Defendant sought to rely on the jury notice in the subsequent trial and the Plaintiff objected.  The Court found that the initial failure to pay the fees nullified the jury notice.  In reaching this conclusion the Court provided the following reasons:
[2]             The basic facts are that the plaintiff was injured in a motor vehicle accident on March 15, 2008. Liability has been admitted by the defendants. The trial was first set to proceed on December 2, 2013, and jury notices were filed by both the plaintiff and the defendants. On October 18, 2013, jury fees were due and payable. Neither the plaintiff nor the defendants paid the jury fees. On November 22, 2013 the defendants applied to adjourn the trial, and it was ultimately adjourned by consent and rescheduled to September 29, 2014. On January 3, 2014, the defendants purported to file a new jury notice.
[3]             It is my conclusion that the application of the plaintiff should be allowed. In my view, the law is clear that, having failed to perfect their right to a jury by both issuing the jury notice in time and paying the fees as required under the Supreme Court Civil Rules, B.C. Reg. 168/2009 (the “Rules”), the defendants have relinquished voluntarily the right to a trial with a jury.
[4]             I refer to the decision in Clark v. D. & M. McBicycle Shop Ltd. (1992), 75 B.C.L.R. (2d) 133, where the Court concluded:
In this case, the Plaintiffs voluntarily chose to relinquish their right to a trial with a jury by not paying the jury fees. The provisions of the Jury Act clearly provide that a party can maintain their right to a trial with a jury provided that the jury fees are paid. The right to a trial with a jury is exercised when the jury notice is filed and served and belongs to the party filing and serving that notice. That right will be maintained, as long as the court does not order otherwise, or as long as the jury fees are paid.
[5]             The respondent here says that in fact the jury fees will be paid. They will be paid in advance of the new trial date, as provided for under the Rules.
[6]             The defendants relied upon the decision of the Supreme Court of Canada in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490. In my view that decision is completely inapplicable to a right that is extinguished in accordance with the time limits set out in the Rules. In my view, their voluntary relinquishment of the right to a jury was not and cannot be bound by the law of waiver.
[7]             In the circumstances, it is my view that, having failed to pay the jury fees in a timely fashion, the defendant is restrained from filing a new jury notice or paying the fees now.
[8]             I am confirmed in that view by the decision in Hoare v. Firestone Canada Inc. (1989), 42 B.C.L.R. (2d) 237 (C.A.) in which the court held at para. 21:
The learned judge below was, in my view, quite correct in concluding that the opportunity to issue a new notice of trial, when a trial has been adjourned from the original trial date, cannot automatically carry with it a renewed right to issue a jury notice. …

Court Has Jurisdiction to Overturn an IME Order After the Examination is Complete

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

If a party to a lawsuit is ordered to attend an independent medical exam can a Court hear an appeal of the order after the examination is complete?  The BC Court of Appeal addressed this in reasons for judgement released today and the answer is yes.
In finding that an appeal of an IME order is not moot even after the examination takes place the Court provided the following reasons:
[23]         The Insurers submit that the appeal is moot because prior to commencement of his appeal Dr. Wright attended the IME, answered the questions posed by Dr. Connell, completed and submitted the 13-page questionnaire referenced in the order, and completed and submitted the Authorization and Consent form and the Governing Law and Jurisdiction Agreement form referenced at para. 4 of the order. In consequence, the respondents say Dr. Wright has now complied with all of the substantive provisions of the order and given that compliance, the appeal should be quashed as moot…
[29]         Items 7 to 11, generally speaking, deal with the consequences of the IME order and seek certain specific relief arising out of that order. For example, item 8 seeks that the expert witness report prepared by Dr. Connell, together with copies of his notes and medical records, be destroyed. These issues give life to the appeal and items 1 and 2 which seek to set aside the order granting the IME. Given that the Insurers may rely on that report at trial, it cannot be said that the issue is moot. If this Court concludes that the IME order should not have been made, it will be necessary to determine what relief, if any, is available to Dr. Wright and that relief could arguably include some prohibition or restriction on the use of Dr. Connell’s report.
[30]         In the circumstances therefore I would dismiss the application to quash.

"Walk Away" Offer Fails to Trigger Double Costs in Liability Trial

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing a defence application for double costs after a Plaintiff’s personal injury claim was dismissed.
In this week’s case (Miller v. Emil Anderson Co. Ltd.) the Plaintiff was involved in a motor vehicle collision alleging that an unidentified vehicle contributed to the incident.  Prior to trial the Defendant made a formal settlement offer of $1 which “expressed the defendants’ belief that the Court would conclude that Mr. Miller had suffered no compensable injury.”
Ultimately the Plaintiff’s claim was rejected with the Court concluding that “memory and perception of the key events preceding his loss of control of his vehicle were not reliable.”.  Despite this the Court found the walk-away offer was not reasonable as the plaintiff had a sincere belief in his perception of the event and that “ had he accepted the defendants’ offer, he would have been giving up, without adjudication, a claim that he believed had merit“.
In dismissing the Defendant’s request for double costs Madam Justice Ballance provided the following reasons:
[15]                      In the present case, Mr. Miller proceeded upon his hypothesis as to how the accident occurred, including the purported role of another vehicle.  He tendered no expert evidence in the field of engineering and/or accident reconstruction in support of his theory.  In weighing the evidence, I concluded that Mr. Miller had not proved his case on a balance of probabilities.  In reaching that conclusion, I found that his memory and perception of the key events preceding his loss of control of his vehicle were not reliable.
[16]                      Despite the frailties in Mr. Miller’s testimony and his faulty recall of events, I did not doubt that Mr. Miller’s perception of events, including his theory as to how the accident occurred, was sincere.  He did not attempt to mislead or deceive the Court.  Had he accepted the defendants’ offer, he would have been giving up, without adjudication, a claim that he believed had merit.  A belief that was neither groundless nor frivolous…
[18]                      The Offer is to be considered in the context of a serious liability issue where neither side called expert engineering or accident reconstruction evidence in relation to the pivotal issue of what had caused the accident.  Mr. Miller was aware that he and the defendants held conflicting versions of the material events and that there was a risk that, if the Court found that the evidence did not support his case, his action would be dismissed.  However, it does not follow that the nominal Offer ought reasonably to have been accepted by Mr. Miller at any time.  As was the case in Stuart, the Offer provided nothing to Mr. Miller in relation to the claim itself and proffered little meaningful benefit to him.
[19]                      The evidence indicates that Mr. Miller was in his early 70s at the time of the accident and was retired or semi-retired from prospecting.  Beyond that, there was no cogent evidence of his financial circumstances and I am therefore unable to agree with his counsel’s submission that it was clear he is impecunious.
[20]                      Although Mr. Miller ultimately failed to make out his case on a balance of probabilities, I would not characterize his refusal to accept the Offer as unreasonable.
[21]                      Weighing the pertinent factors and giving the most weight to the fact that I am unable to say that it was unreasonable for Mr. Miller to refuse the Offer, I consider it a fair exercise of my discretion to decline to order double costs.  An award of costs at Scale B in favour of the defendants is appropriate in this case and will likely be of significant consequence to Mr. Miller.
[22]                      Accordingly, the defendants’ application for double costs is dismissed.  They will have their costs at Scale B.

60/40 Liability Split After Pedestrian Steps in Front of Bus

Written by admin on . Posted in ICBC Liability (fault) Cases.

Corrected reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing fault between a pedestrian and a bus driver.
In today’s case (Whelan v. BC Transit) the Plaintiff pedestrian “was struck and had his foot run over by a BC Transit bus driven by the defendant Henry Kobbero, after Mr. Whelan had stepped onto the road to avoid some other pedestrians on the sidewalk.”
The bus was stopped shortly before the incident dropping off passengers and moved forward with the driver seeking to merge back with traffic.  Mr. Justice Schultes found both parties were to blame with the Plaintiff bearing the lion’s share of fault.  In reaching this decision the Court provided the following reasons:
[71]         On all the evidence I am satisfied that there was a period of time, of more than transitory length, during which the bus was travelling forward, still in the curb lane, but the focus of Mr. Kobbero’s attention was on his left mirror and the act of merging. It was during this period that Mr. Whelan stepped out on the road and, had Mr. Kobbero’s attention been prudently apportioned between merging and the curb lane in front of him, he could have seen and reacted to the pedestrian in time of avoid a collision. His focus on merging reflected an assumption, which I find was not reasonable in light of his overall awareness of the range of pedestrian hazards, that his forward check earlier in the process was sufficient. However briefly, I conclude that he did fall below his required standard of care.
[72]         As was obvious from my earlier comments in this discussion, Mr. Whelan was himself contributorily negligent in this accident. In addition to his disregard for the bus’s right of way and his needless decision to place himself onto the travelled portion of the roadway simply to avoid a moment’s pause in his progress, he made an assumption that was even less grounded in objective fact than Mr. Kobbero’s — that the driver checking his shoulder meant that the bus would have moved into the left lane before it reached the area where he stepped off the sidewalk…
75]         I would characterize Mr. Kobbero’s lapse of care in conduct as falling more towards the momentary or minor end of the spectrum than towards the extremely careless end. I have found that it was a decision to focus his attention fairly briefly on an admittedly more pressing task, based on the faulty assumption that there were no risks directly ahead of him. This was not the kind of lapse that was inevitably going to cause harm; it required a pedestrian to do one of the foolish things that Mr. Kobbero has been trained to expect in order for that to happen. I conclude that Mr. Kobbero should bear 40% of the liability for this accident.
[76]         Mr. Whelan’s actions conversely, demonstrate a higher degree of carelessness. As a pedestrian he was extremely vulnerable to the oncoming bus and there were no safe circumstances under which he could have stepped on the road with it still moving forward in that curb lane. It was in essence a gamble on things playing out as he assumed they would, with a large downside, fortunately only a small part of which materialized here, to being wrong. Accordingly I fix his liability at 60%.

"Upper Limit" Non-Pecuniary Damages Awarded Following Brain Stem Injury

Written by admin on . Posted in ICBC Brain Injury Cases, Uncategorized.

Adding to this site’s archives addressing non-pecuniary assessments for traumatic brain injury, reasons for judgement were released today addressing a brain stem injury.
In today’s case (Van v. Howlett) the Plaintiff was a passenger involved in a 2007 collision.  The force of the collision ejected the plaintiff causing various injuries inclucing a brain stem injury.  Her prognosis for meaningful recovery was poor and in fact her functioning was expected to deteriorate as time went on.  In assessing damages at the maximum amount of $351,000 Mr. Justice Grauer provided the following reasons:
[26]         Dr. Jason Clement, a radiologist and a specialist in neuroimaging, provided the lead opinion concerning Ms. Van’s brain injury, and I do not hesitate to accept his evidence.  He noted that MRI investigation disclosed severe diffuse axonal injury (“DAI”) including grade 1, 2 and 3 lesions, as well as additional intracranial injuries in the form of subdural and subarachnoid haemorrhage.  A grade 3 DAI lesion involves the brainstem and is the most severe grade.  These lesions act as markers for diffuse underlying injury throughout the brain resulting in significant chronic cognitive dysfunction and impairment in all cognitive domains.  In fact, Dr. Clement explained, this type of injury is more consistent with people in a persistent vegetative state, which Ms. Van is not. 
[27]         The severe DAI sustained by Ms. Van is also known to trigger progressive cerebral atrophy leading to an increased risk of progressive cognitive decline and premature dementia.  In addition, the multiple focal brain injuries have left her with a lifelong increased risk of seizures. 
[28]         Dr. Clement explained that people do not recover from this sort of injury, and that the treatment focus must be on reducing further decline to the extent possible…
[50]         On the evidence before me, I have no difficulty in concluding that the injuries suffered by Ms. Van are catastrophic.  We are, in any practical sense, our brains.  A brain injury of this degree of severity is a loss of one’s very self.  Like Ms. Spehar, Ms. Van “has lost what to many is one of the most valuable aspects of being an adult human — the ability to have control over one’s own life” (Spehar at para 13).  No aspect of her life, including her closest relationships, has been left unimpaired.  Her outlook for the future is dismal.  Her days are filled with pain and frustration.  There is no possibility of recovery.  The best she can hope for is that her deterioration will be slowed, and that her anger, frustration and depression can be addressed through medication and distraction.  At worst, she will experience a premature and accelerated descent into dementia, losing what little has been left to her.
[51]         In these circumstances, I conclude that Ms. Van is entitled to an award at the upper limit.  I assess her non-pecuniary damages at $351,000.

$50,000 Non-Pecuniary Assessment for Lingering PTSD Following Collision

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC PTSD Cases.

Adding to this site’s archived posts addressing damages for Post Traumatic Stress Disorder, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing such an injury.
In this week’s case (Field v. Bains) the Plaintiff was 7 year old when her vehicle was struck by a semi trailer and dragged along the highway. She suffered from PTSD which had some lingering symptoms by the time of trial some 10 years later.  In assessing non-pecuniary damages at $50,000 Madam Justice Duncan provided the following reasons:
[44]         Rebecca was a seven-year-old child when she was involved in a frightening car accident with her mother. She suffered from recurrent nightmares about the accident for approximately a year and intermittent nightmares for some time after. She would not get in a car for a number of months after the accident. When she finally did she was hypervigilant, on the lookout for large trucks. The sight of a large truck near the family car caused her to go into a severe anxiety phase. She would curl up in a ball in the back of the car and obsessively talk about the truck. Rebecca also had a fear of loud noises from buses and trucks, which at its most severe caused her to run and hide or avoid taking the school bus for outings with her classmates. She never returned to ballet classes.
[45]         Rebecca is now a mature and well-spoken 17-year-old. She has worked very hard to overcome the effects of the accident by seeking out counselling and successfully integrating coping techniques into her daily life.
[46]         I accept the opinions of Dr. Weiss and Dr. Kaushansky that the plaintiff developed PTSD as a result of the accident. I accept their opinions that Rebecca’s fear of large trucks spilled over into a generalized anxiety about a number of different things. While it appears Rebecca has recovered from the psychological effects of the accident, the PTSD and anxiety are in remission rather than completely eradicated.
[47]         As for the plaintiff’s prognosis, I prefer Dr. Kaushanky’s opinion over that of Dr. Weiss. Dr. Kaushansky was of the view that Rebecca would live quite a normal life but be significantly more affected by life stressors than other people. He described it as a waxing and waning effect which would necessitate periodic visits with a counsellor. This appears to have been the case, as Rebecca sought out assistance from Ms. Hildebrandt when her stress and anxiety levels over the accident as well as family matters became too much for her to deal with on her own. Ms. Hildebrandt’s intervention appears to have been successful in assisting Rebecca with an abatement of her anxiety.
[48]         Dr. Weiss’s prognosis that the plaintiff would have marked functional impairment in her life as a result of the PTSD has not, in my view, come to fruition. Rebecca has managed to attain her driver’s licence despite the frightening after-effects of the accident. She graduated from high school, has a positive group of friends and has realistic ambitions for future career paths which she will further investigate after a year off…
[55]         Taking into account the findings of fact in this case, the factors in Stapley, and the comparable authorities involving children with PTSD, I award the plaintiff $50,000 in non-pecuniary damages.

The Evidentiary Value of Past Tax Returns In Undeclared Income Claims

Written by admin on . Posted in ICBC Wage Loss. 54 Comments on The Evidentiary Value of Past Tax Returns In Undeclared Income Claims

Although damages for past loss of income can be assessed even if a Plaintiff does not accurately report income to Revenue Canada, the figures reported on tax filings have a high evidentiary value in Court.  This was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Saadati v. Moorhead) the Plaintiff was involved in a number of collisions.  The Plaintiff worked as a truck driver and advanced a claim for lost income of $6,000 per month for a period of two years.  Prior to trial the Plaintiff  was declared mentally incompetent and could not testify on his own behalf.   The Court was presented with evidence addressing the Plaintiff’s claim for past loss of income, most notably evidence of very low reported earnings in the years prior to the collision.  The Court relied heavily on this, accepting the reported earnings as accurate, and dismissed the Plaintiff’s claim for past loss of income.  In reaching this decision Mr. Justice Funt provided the following reasons:
[74]         It is also clear that the plaintiff earned very little income during his 2001 to 2004 taxation years. The plaintiff did not report any income for his 2001, 2002 and 2003 taxation years and for 2004 only $12,796 in taxable capital gains was reported. In sum, his tax returns for the years prior to the accident show very little income. I note that in 2007 the plaintiff reported $22,500 in employment income.
[75]         There was evidence that the plaintiff during the years prior to the July 5, 2005 accident did not appear to be in financial difficulties and was able to provide for his wife and two sons. The Court will not impute income to the plaintiff for these years. He filed tax returns which he would have certified to be correct (the Income Tax Act, RSC, 1985, c. 1(5th supp.) also provides significant penalties for a false tax return). As many people do, he may have kept his financial affairs to himself. The imputation of income would be tantamount to finding possibly gross negligence or tax evasion which is unwarranted, especially having regard to the fact that the plaintiff is not able to testify to explain matters and defend his reputation.
[76]         In Hoy v. Williams, 2014 BCSC 234, Justice Kent set forth the test to determine whether an award for past income loss should be made.
[141]    Compensation for past loss of earning capacity is to be based on what the plaintiff would have, not could have, earned but for the injury that was sustained: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; M.B. v. British Columbia, 2003 SCC 53 at para. 49. The burden of proof of actual past events is a balance of probabilities. An assessment of loss of both past and future earning capacity involves consideration of hypothetical events. The plaintiff is not required to prove these hypothetical events on a balance of probabilities. The future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: Athey v. Leonati at para. 27; Morlan v. Barrett, 2012 BCCA 66 at para. 38.
[77]         As stated previously, I have found that the July 5, 2005 accident did not aggravate the plaintiff’s pre-existing physical injuries but that it did cause a personality change and cognitive difficulties.
[78]         The plaintiff has not provided sufficient evidence that “by reason of his [psychological] injuries, [he was] unable to do many things that, but for his injuries, he could have done to earn income” (Rowe v. Bobell Express Ltd., 2005 BCCA 141, at para. 34) or would have earned income.
[79]         The Court, therefore, dismisses the plaintiff’s claim for an award for past wage loss.
 

BC Court of Appeal – Lawyers Using "ICBC" in Domain Name Does not Confuse Consumers

Written by admin on . Posted in Uncategorized.

Update February 6, 2015 – This week the Supreme Court of Canada dismissed ICBC’s bid to appeal this decision.
_____________________________________
Reasons for judgement were released today by the BC Court of Appeal confirming that plaintiff lawyers can use “ICBC” in their website domain name and that this does not lead to consumer confusion.
In this week’s case (ICBC v. Stainton Ventures) ICBC alleged that the use of ‘icbc’ in a domain name used as a marketing tool for personal injury lawyers was misleading and in breach of ICBC’s intellectual property rights.   This argument was dismissed at trial.  ICBC appealed arguing “the relevant consumer, having the familiarity but imperfect recollection of the ICBC Official Marks, would likely be led to believe that ICBC itself is offering advice on its business, wares and services, when viewing such marks as a matter of first impression”.ICBC 
The BC Court of Appeal disagreed and dismissed ICBC’s appeal.  In doing so the Court provided the following reasons:
[37]         I am unable to accept this argument as it fails to give the “relevant consumer”, i.e., an Internet user, credit for even the most basic understanding of the function of a domain name.  Even though there is some resemblance between ICBCadvice.com and ICBC’s family of marks, the average Internet user with an imperfect recollection of ICBC’s marks would not likely be mistaken by the domain name.  They understand, for example, that a domain name which, in part, contains the name of a business or its acronym will not necessarily be affiliated with or endorsed by that business and may, instead, be the subject matter of the website or entirely unrelated to that business.  As well, they understand that it is necessary to view a website to determine whose site it is.  While I appreciate that Mattel, Inc. v. 3894207 Canada Inc., 2006 SCC 22, [2006] 1 S.C.R. 772, involved a dispute over a trade-mark rather than an official mark, it is noteworthy that the Court attributed a reasonable level of intelligence to “the casual consumer somewhat in a hurry”:  paras. 56-58.  In the present context, to paraphrase a passage from Michelin & Cie v. Astro Tire & Rubber Co. of Canada Ltd. (1982), 69 C.P.R. (2d) 260 (F.C.T.D.), quoted with approval in Mattel, Inc., one must not proceed on the assumption that average Internet users are completely devoid of intelligence or of normal powers of recollections or are uninformed as to what goes on around them.
[38]         ICBC submits this Court must be cautious to avoid failing to differentiate the test applicable to official marks from the “source confusion” test applicable to trade-marks under s. 6 of the Trade-marks Act.  In its oral submissions it repeatedly adverted to the need to avoid applying the “source confusion” test in the context of official marks.  While different tests do apply, it must be kept in mind that any mark, including an official mark, serves an identification function, whether as to source, endorsement, or otherwise.  ICBC’s submission that “the relevant consumer, having the familiarly but imperfect recollection of the ICBC Official Marks, would likely be led to believe that ICBC itself is offering advice”, suggests that ICBC appreciates that one of the objectives of the official-marks regime is to protect the public by prohibiting the use of a mark which so nearly resembles an official mark that a person seeing that mark would mistakenly believe it to be the rights-holder’s mark.
[39]         As indicated above, I am unable to accept that the average Internet user does not appreciate that domain names—which are limited to short combinations of alphanumeric characters—are often merely descriptive of the subject matter of the website to which the domain name resolves, rather than indicating affiliation, source, or endorsement.  Put otherwise, a person who conducted a search—using, for example, the terms “ICBC” and “advice”—which returned ICBCadvice.com in its list of results would not, based solely on observing that domain name, mistakenly believe that the “advice” referred to is provided or endorsed by ICBC.  Neither would they, as a matter of first impression, be mistaken by the fact that the domain name starts with “ICBC”.  The most that person would conclude is that the website likely had something to do with the corporation.
[40]         In the result, I agree with the trial judge that the website ICBCadvice.com and its related domain names do not contravene ss. 9 and 11 of the Trade-marks Act.

Defence Expert Witness Found Biased After Presenting "a Distorted Recording of his Interview" With Plaintiff

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Adding to this site’s archived cases criticizing expert witnesses for advocacy, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, criticizing the evidence of a defense hired psychiatrist.
In today’s case (Yang v. Engen) the Plaintiff was injured in a 2011 intersection collision.  Fault was admitted by the Defendant.
The Plaintiff suffered moderate soft tissue injuries but her recovery was complicated by “ever-increasing emotional difficulties and mood disorders“.
The Defendant retained a psychiatrist who minimized the connection between the collision and these psychological difficulties.  In finding the expert witness crossed the line into advocacy Mr. Justice Davies provided the following comments:
[53]         After hearing those submissions and reviewing Dr. Levin’s original and rebuttal reports, I concluded that it was necessary to excise as inadmissible the following parts of his reports:
1)    The observation in the body of his opinion that:
It should be mentioned at the beginning of this summary that Ms. Yang’s diagnostic formulation should be viewed in the context of her interview in my office that revealed numerous discrepancies and inconsistencies between her subjectively-reported complaints of anxiety and her virtually-unimpaired social, occupational and interpersonal functioning. Ms. Yang initially omitted and under-reported her pre-existent history of psychological/emotional disturbances, attributing her current subjectively-presented complaints of “generalized” anxiety specifically and selectively to the subject MVA.
2)    The observation in Appendix C of his opinion that:
From a diagnostic perspective, however, the above-reviewed psychological clinical notes do not identify any specific PTSD symptomatology or reports of any type of generalized anxiety described by Ms. Yang during the interview in my office. It seems that Ms. Yang’s “generalized anxiety” disturbances had a somewhat rapid onset following her reported psychiatric consultation with Dr. Lu (organized by her lawyer).
[54]         I excised those paragraphs because:
1)    The excised observations in the body of his opinion not only crossed the line into an improper assessment of credibility but also constituted advocacy in the guise of expertise; and
2)    The excised observations in Appendix C demonstrated an unwarranted and unsubstantiated personal attack not only on the credibility of the plaintiff but also upon a well-qualified psychiatrist and upon plaintiff’s counsel.
[55]         I did not, however, rule that the totality of Dr. Levin’s reports should be determined to be inadmissible at that stage of the proceeding because I was satisfied that fairness to the impugned expert and to the defendant who had relied upon his evidence required that such a ruling should not be made without the benefit of hearing Dr. Levin’s evidence in chief and in cross-examination
[56]         I reached that conclusion also because of the complexities of the subject matter on which Dr. Levin was seeking to opine and in the context of the breadth of the attack by counsel for Ms. Yang upon not only his substantive opinion but also the methodology employed by Dr. Levin in rendering it.
[57]         After hearing his evidence at trial and having the opportunity to consider the totality of his evidence, including both written opinions and the entirety of his testimony at trial, I have concluded that Dr. Levin’s opinion presents a distorted recording of his interview with Ms. Yang by failing to identify with preciseness the questions which he asked of her and by his interspersed editorializing as to what answers he would have expected, all of which constituted his assessment of her lack of credibility which he then used as the basis for his diagnosis. That in turn resulted in a resort to advocacy on behalf of the defendant in relation to issues of causation and, in my view, demonstrated a personal investment in the litigation sufficient to constitute bias.
[58]         Those concerns were even more dramatically highlighted by a highly personalized, and, in my view, entirely unwarranted attack upon Dr. Lu’s opinion and professionalism in Dr. Levin’s rebuttal report delivered in response to Dr. Lu’s critique of Dr. Levin’s analysis.
[59]         In result, I have concluded that Dr. Levin’s opinions suffer so greatly from overstepping the proper bounds of opinion evidence into the assessment of credibility (a function for the trier of fact), advocacy and bias, that they are inadmissible.
[60]         I must also observe that even if I had concluded that some part or parts of his opinions could be determined to be admissible, I would in any event have been required to give such opinions little or no weight because of the many shortcomings to which I have adverted.
[61]         That conclusion is also mandated because while Dr. Levin improperly questioned the veracity of many of Ms. Yang’s responses to his questions and offered his versions of what responses he would have “expected,” counsel for the defendants did not confront Ms. Yang with the alleged “inconsistencies” and “discrepancies” relied upon by Dr. Levin in rendering his opinions.
[62]         What is left is simply an array of unfounded and untested allegations of dishonesty and exaggeration that do not accord with my own assessment of Ms. Yang as a witness.
[63]         Notwithstanding that English is Ms. Yang’s second language she is fluent in it and well able to express herself. She impressed me as a stoical, careful and honest witness who listened carefully to the questions asked of her and responded without exaggeration.
[64]         Although the anxiety she testified about now suffering related to seemingly common everyday life situations may seem wholly disproportionate to the circumstances she related in her evidence which manifest in those reactions, the totality of the evidence, including most importantly the psychological evidence of Dr. Lu to which I have referred in detail, convinces me that the anxiety she expresses is genuine.
[65]         In summary, I find that I can safely rely on the veracity of Ms. Yang’s testimony concerning the injuries she suffered in the collision, the progress of those injuries and the extent to which they have impacted her life both on a physical and emotional level.