Author: ERIK MAGRAKEN

ICBC Effort To Remove Case From Supreme Court Fails

While the BC Supreme Court Act allows parties to apply to transfer claims to small claims court such applications are rarely brought in personal injury claims where the quantum of claims can vary widely based on how evidence unfolds.

Today reasons for judgment were published by the BC Supreme Court, Vancouver Registry, hearing and rejecting such an application brought by ICBC.

In today’s case (Herrera v. Miller) the Plaintiff was injured in a collision and sued for damages.  After examinations for discovery the Defendant brought an application to move the case to small claims court arguing the damages could not exceed the limit of that court because the collision was “relatively minor, that the plaintiff suffered insignificant injuries for which he received very little treatment, and that the injuries did not seriously affect the plaintiff’s enjoyment of recreational and sporting activities, or his employment“.

The Plaintiff opposed pointing to recent case law for injuries similar to his with quantum assessments in excess of the small claims court jurisdiction.  In dismissing the application, ordering costs payable to the plaintiff and finding the claim could stay in Supreme Court Mr. Justice Giaschi provided the following reasons:

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Single Minister’s Certificate Sufficient Under the Health Care Costs Recovery Act

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, addressing the needed form and contents of a Minster’s certificate to recover health care costs in a Plaintiff’s tort action.

In this week’s case (Woo v. Creme De La Crumb Bakeshop & Catering Ltd).the plaintiff fell from a ladder while working at premises leased by the defendant, resulting in “catastrophic injuries”.  At trial the Plaintiff’s damages were assessed at $340,000 but then reduced by 50%  to reflect an equal apportionment of liability between the plaintiff and the defendant.

The Plaintiff also sought to recovery Ministry expenses pursuant to the Health Care Costs Recovery Act but the Defendant objected arguing that the Minister’s certificate presented to the court was deficient suggesting that the legislation requires separate certificates to address the types of health care costs being claimed and their costs.  In rejecting this argument and finding a single certificate is sufficient under the legislation Mr. Justice Skolrood provided the following reasons:

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Rec Legaue Hockey Bodycheck Results in $702,551 Damage Award

Although infrequent, Canadian courts have occasionally imposed civil and even criminal liability following injuries at sporting events.  The latest such case was published this week out of Ontario.

In the recent case (Casterton v. MacIsaac) the Plaintiff successfully sued the Defendant after suffering injuries in a hockey game.

The parties were playing in a recreational senior hockey league.  It was a no contact league though incidental contact was part of the game.  The plaintiff accepted that accidental contact was part of the risk of playing.  Blindside hits, however, were absolutely prohibited and the Court accepted that such hits were not consented to either expressly or implicitly as part of playing.

The Defendant collided with the Plaintiff resulting in fairly severe injury.  He was initially charged criminally with assault for the incident.  He was convicted but his conviction was overturned on appeal and the charge was ultimately stayed.

In the civil lawsuit the Court heard conflicting evidence but ultimately found that the Defendant was liable as the contact was from a prohibited blindside hit.  The collision caused the Plaintiff to suffer a concussion, two broken teeth and various cuts.  Damages of over $700,000 were assessed comprised of $63,000 in general damages, $199,512 in past lost income, and $440,039 in future income loss.

In imposing liability from the body check Justice Sally Gomery made the following findings and provided the below reasons:

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$90,000 Non Pecuniary Assessment for Chronic, Partly Limiting Soft Tissue Injuries

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries following a vehicle collision.

In today’s case (Lewis v. Wang) the Plaintiff was involved in an intersection collision in 2014.  The Defendant denied fault until shortly before trial .

The Court accepted the collision caused chronic soft tissue injuries which were expected to continue into the future and were partly limiting.  The Defendant called medical evidence minimizing the collison’s connections to the injuries but this was rejected.  In assessing non-pecuniary damages at $90,000 Mr. Justice Macintosh provided the following reasons:

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$110,000 Non-Pecuniary Assessment For Thoracic Outlet Syndrome and Chronic Pain

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in multiple vehicle collisions.

In today’s case (Winick v. Goddard) the Plaintiff was involved in 3 collisions.  The Defendants admitted fault for all. The collisions resulted in chronic soft tissue injuries and thoracic outlet syndrome.  Her symptoms were found to be likely permanent, partly disabling and not to improve significantly in the future.  In assessing non-pecuniary damages at $110,000 Mr. Justice Branch provided the following reasons:

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$229K in Damages Awarded for “Relentless” and “Extensive” Internet Defamation Postings

Reasons for judgment were released earlier this year (and published this week) by the BC Supreme Court, Vancouver Registry, awarding just over $229,000 in damages to a Plaintiff on the receiving end of a “relentless” and “extensive” on line defamation campaign.

In today’s case (Rook v. Halcrow) the parties were involved in a romantic relationship.  Shortly after it came to an end several on line postings were published across multiple platforms making disparaging remarks about the Plaintiff.

The Defendant denied making the multiple postings but the Court rejected this and found her liable for them.  In assessing general damages at $175,000, aggravated damages at $25,000 and further awarding special damages related to the Plaintiff hiring a reputation management company to remove the posts Mr. Justice Myers provided the following reasons:

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Congratulations 2019 Clawbie Winners

The Canadian Law Blog Awards (the Clawbies), are awarded once a year to recognize outstanding Canadian legal blogs and other on-line legal content.  The nomination process involves peer endorsement and from there a select number of blogs are chosen for recognition.

This blog is over 10 years old and first recognized for a Clawbie a decade ago.  I am proud to still be plugging away here and am honoured to receive a 2019 Clawbie under the “Best Blog and Commentary” category. Thank you for everyone who nominated this blog and to Emma, Jordan and Steve  for choosing this blog for recognition yet again.

Thank you to all of the readers of this blog which make the effort worthwhile.

Congratulations to all of this years other winners for the amazing content you put out there for all of us to benefit from.

Happy New Year folks!

Landlords Found Not Liable for Tenant Dog Attack

Reasons for judgement were published this week by the BC Supreme Court, New Westminster Registry, dismissing an injury claim following a dog attack.

In this week’s case (Ali v. Samra) the Plaintiff was walking to a park when a pitbull left a nearby property and attacked him in an alley where he was walking.  The incident was described as follows:

On May 3, 2015, the plaintiff left his house to meet his friends at a nearby school playground. As he had done on many occasions, he walked down the alley at the back of his house and reached the corner of the alley at 98A Avenue and 132A Street in Surrey, British Columbia, when a brown pit bull came from a nearby property at 13232 – 98A Avenue, (the “Property”), and ran towards him. The plaintiff ran away from the dog but it jumped on him and bit him severely on the back and under an arm. He had done nothing to provoke the dog.

The Plaintiff sued the homeowner where the dog came from along with tenants who supposedly owned the dog.  At the time of the attack the homeowners did not occupy the residence rather it was leased out to a tenant who sub leased the property to recovering heroin addicts.  The terms of the homeowners lease specified that no pets were permitted.

The Plaintiff sued the homeowner under the Occupier’s Liability Act and under the doctrines of negligence and scienter.  All three claims failed with the Mr. Justice Bowden providing the following reasons:

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“No Weight” Placed on Opinion of ICBC Medical Expert in Injury Case

In the latest example of a pattern that is all too common in injury litigation, reasons for judgment were published this week by the BC Supreme Court, Vancouver Registry, rejecting and placing “no weight” on the medical evidence of an expert retained by a Defendant’s insurer.

In today’s case (Sharma v. Chui) the Plaintiff was involved in a 2012 crash that the Defendant accepted liability for.  The Plaintiff suffered chronic soft tissue injuries as a consequence of the crash which were partially impairing in her functioning.  In the course of the lawsuit ICBC, the defendant’s insurer, retained an orthopaedic surgeon who provided an opinion minimizing the Plaintiff’s injuries and the likelihood of the injuries persisting into the future.  In rejecting this opinion and placing ‘no weight‘ on it Madam Justice Sharma provided the following critical comments:

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Yet To Be Produced Defence Medical Report Derails Request For Second Defence Medical Exam

Last week I highlighted reasons dismissing a defence application for a second independent medical exam where they had the benefit a first exam but no report was yet produced.  Today similar reasons were published by the BC Supreme Court, Vancouver Registry.

In today’s case (Rong v. Yelland) the Plaintiff was injured in a collision and sued for damages.  In the course of the lawsuit the Plaintiff consented to be assessed by an orthopedic surgeon of the Defendant’s choosing.  After the assessment but prior to any report from the assessment being produced the Defendant requested that the Plaintiff also attend a functional capacity evaluation with a kinesiologist.  The Plaintiff declined.

The Defendant brought an application to compel attendance.  In dismissing this application the Court noted there is no way of knowing whether the medical ‘playing field‘ was even without the defence surgeon’s report.  Master Cameron provided the following reasons:

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Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

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