Author: ERIK MAGRAKEN

“Concerning” Affidavit Makes ICBC Benefits Deduction Application Come Up Short

Written by ERIK MAGRAKEN on July 24, 2020. Posted in Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, largely rejecting an ICBC application to have future care benefits from a tort judgment significantly reduced.

In today’s case (Luck v. Shack) the Plaintiff was in a collision and was awarded damages for prolonged injuries including $85,000 for future care costs. The Defendant argued that much of the services covered by this award can be accessed through ICBC no-fault benefits and asked that the award be reduced by $65,000. The Court noted ‘concern‘ about ICBC’s affidavit evidence leaving some uncertainty as to whether discretionary no fault benefits would be paid or denied in the future. In only allowing $3,540 in deductions Madam Justice MacDonald provided the following reasons:

“Extremely Problematic” Testimony Gives Rise to Modest Damage Assessment For Chronic Injury

Written by ERIK MAGRAKEN on July 24, 2020. Posted in Uncategorized.

Given the personal and subjective ways chronic injuries can impact an individual giving reliable evidence is important. If adverse credibility findings are made in the course of an injury trial this can significantly impact a court’s overall view of the evidence. Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, dealing with such a fact pattern.

In today’s case (Kaur v. Tse) the Plaintiff was injured in a 2016 collison. The Defendant admitted fault. The Court found that the Plaintiff suffered from chronic myofascial cervical pain and chronic mechanical pain localized on her coccyx as a result of the collision and some symptoms were ongoing at the time of trial. However non-pecuniary damages were only assessed at $17,000 in part due to mitigation issues and further in part to credibility issues the court had with the Plaintiff’s evidence. In reaching this quantum and criticizing aspects of the Plaintiff’s evidence Madam Justice Tucker provided the following reasons:

Supreme Court of Canada – “Waiver of Tort” Is Not a Recognized Cause of Action

Written by ERIK MAGRAKEN on July 24, 2020. Posted in Uncategorized.

Today the Supreme Court of Canada published reasons for judgement finding that there is no recognized cause of action for “waiver of tort” in Canada.

In today’s case (Atlantic Lottery Corp. Inc. v. Babstock) the Plaintiff sought to certify a class action against the Defendants for damages from gambling after playing video lottery terminals. Establishments that used the terminals had to be licenced by the Defendant. Among the Plaintiff’s claims were that the gaming devices were dangerous and tricked players.

The plaintiff sought disgorgement of the Defendants profits relying on the concept of ‘waiver of tort’. The Supreme Court of Canada overturned lower court decisions and found the purported class action should not be certified as it had no realistic chance of success. In clarifying some confusion and confirming that ‘waiver of tort’ is not an independent cause of action in Canada but simply a potential remedy in appropriate circumstances where an established cause of action is made out the majority provided the following reasons:

CRT Assesses Damages for “Relatively Minor” Injury at Only $1,500

Written by ERIK MAGRAKEN on July 17, 2020. Posted in Uncategorized.

Reasons for judgement were published this week by BC’s Civil Resolution Tribunal (“CRT”) addressing fault and damages following a collision. In what is one of the lowest assessments of non-pecuniary damages I have seen the CRT awarded $1,500 for injuries which lasted several months.

In today’s case (Thandi v. Uggal) the Applicant was involved in a 2019 collision. The Respondent denied fault but was found liable for the crash.

The Applicant, who was self represented, gave evidence that he suffered various soft tissue injuries. These required 3 physiotherapy sessions and two doctors visits. The Applicant did not bring medico-legal evidence in support of his claim.

Tribunal Member Kristin Gardner accepted he was injured but awarded non-pecuniary damages at only $1,500. In doing so the Member cited a BC Provincial Court authority from 14 years ago, took the lowest end of the suggested range of applicable damages and did not adjust it for inflation. In reaching this assessment the following reasons were given:

StatsCanada Earnings Data Ruled Admissible in Injury Trial Without Economist or Other Introductory Witness

Written by ERIK MAGRAKEN on July 14, 2020. Posted in Uncategorized.

Helpful reasons for judgement were recently shared with me finding that StatsCan evidence about wages were admissible in a personal injury trial even without them being incorporated in an economists report or otherwise being introduced by a witness.

In the recent case (Reddy v. Enokson) the Plaintiff was seeking damages following injuries in a vehicle collision. In the course of the trial the Plaintiff sought to introduce data from StatsCan “concerning the average hourly wage rate of persons 15 years and over in Canada“. The Defendant objected arguing “these statistics ought not to replace a proper expert’s opinion. ”

Mr. Justice Blok found the evidence admissible as a public document meeting the admissibility provisions of s. 29 of BC’s Evidence Act.

In reaching this conclusion the Court provided the following reasons:

Jury Notice Struck So Judge Alone Trial Can Proceed Amidst Covid-19 Pandemic

Written by ERIK MAGRAKEN on July 13, 2020. Posted in BCSC Civil Rule 12.

Reasons were published today by the BC Supreme Court, Vancouver Registry, striking a jury notice so a trial could proceed without the need for a lengthy adjournment.

In today’s case (Vacchiano v. Chen) the Plaintiff was injured in a 2015 collision. Both liability and damages were contested. ICBC elected trial by jury which was scheduled in July, 2020. Due to Covid-19 all civil jury selections were suspended and jury trials cancelled up to and including September 7, 2020 everywhere in the province. As a result the trial would face a lengthy adjournment, about 2 years, if the matter was to proceed with a jury.

The Plaintiff brought an application for the jury notice to be struck. The Court agreed that doing so would be fair as a 2 year adjournment would be more prejudicial to the parties than the Defendant losing their prefered mode of trial. In reaching this decision Master Muir provided the following reasons:

Trial Adjourned Where IME’s “Frustrated” Due to Misunderstanding of Covid-19 Related Deadlines

Written by ERIK MAGRAKEN on July 13, 2020. Posted in Uncategorized.

Interesting reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, granting a defence adjournment request where defence failed to obtain needed defense medical opinion evidence in part due to a misunderstanding of the waiver of service deadlines due to Covid-19.

In the recent case (Sidhu v. Sidhu) the parties agreed that the plaintiff would be examined by a defence physiatrist. When defence counsel selected a date the Plaintiff was of the view that it was beyond the date of the service of reports noting

“We write regarding your letter requesting the plaintiff’s attendance at an IME with a physiatrist.

We do not agree that the Rule 11-6 deadline for service of originating reports 84 days before trial has been suspended. You are now in receipt of the plaintiff’s expert reports. You are entitled to respond to those reports but the time for fresh opinion based on a physical assessment has passed. This is unrelated to the COVID‑19 epidemic.“

The Plaintiff did not attend. Defence counsel did not bring an application to compel attendance in part relying on the assertion of plaintiff;s counsel. In granting an adjournment the Court noted the above premise was incorrect as Covid-19 Notice #8 suspended the deadlines for the service of reports.

The court found that the IME process was ‘frustrated‘ by this misunderstanding and found a trial adjournment was an appropriate remedy. In reaching this conclusion Master Cameron provided the following reasons:

No Prejudice Adding Correct Defendants to Claim Where ICBC Provided Plaintiff With Wrong Names

Written by ERIK MAGRAKEN on June 23, 2020. Posted in Uncategorized.

Short but helpful reasons were published today by the BC Supreme Court, Victoria Registry, addressing a fact pattern that sometimes arises in litigation involving ICBC.

In today’s case (Littlejohn v. Clavelle) the Plaintiff was injured in a collision and sued for damages. Prior to staring the lawsuit counsel for the plaintiff asked ICBC to provide information concerning the identity of the Defendants. ICBC provided this information but did so partly in error. As a result the Plaintiff commenced the lawsuit but failed to name all appropriate parties.

The Plaintiff successfully applied to add the correct party to the litigation. Despite the passage of the two year limitation period the court noted there was no prejudice in allowing amendment. In doing so Mr. Justice Steeves provided the following reasons:

Court Rejects Expert Witness Who Gave “Evidence Unworthy of Reliance”

Written by ERIK MAGRAKEN on June 22, 2020. Posted in Uncategorized.

In one of the stronger judicial reasons rejecting expert witness evidence that I have read in recent years reasons for judgement were published today by the BC Supreme Court, Courtenay Registry, finding a defence expert gave evidence that was superficial, out of his area of expertise and “unworthy of reliance“.

In today’s case (Radewulf v. Kelly) the Plaintiff sustained chronic and disabling injuries in two collisions. The Defendants retained an orthopaedic surgeon who provided the court with evidence minimizing the plaintiff’s symptoms and their connection to the collisions. In outright rejecting this opinion the Court provided the following critical reasons noting that even the defence lawyer backed away from the witness’ opinions:

Defence Expert Evidence Rejected After Testimony With “Considerable Controversy”

Written by ERIK MAGRAKEN on June 22, 2020. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, rejecting the opinion evidence of a defence hired orthopaedic surgery on the grounds that the opinions were prohibited advocacy.

In today’s case (Dhugga v. Poirier) the Plaintiff was involved in 2 collisions that the Defendants conceded liability for. The collisions resulted in chronic injuries. In the course of the litigation the Defendants retained an orthopaedic surgeon who provided evidence minimizing the connection between the plaintiff’s symptoms and the collisions. In rejecting this evidence as advocacy in the guise of opinion Mr. Justice Jenkins provided the following critical comments: