Author: ERIK MAGRAKEN

BC Court of Appeal – It Is Negligent To “Not See What’s There To Be Seen”

Written by ERIK MAGRAKEN on June 9, 2020. Posted in ICBC Liability (fault) Cases.

“I never saw the other vehicle before the crash” is rarely a satisfactory answer in absolving a party from liability. Reasons for judgement were published today by the BC Court of Appeal discussing this principle finding that it is reversible legal error not to consider if a party is liable for failing to see something that is there to be seen.

In today’s case (Sharma v. Kandola) the Plaintiff was injured in a two vehicle collision. At the time she was in the process of making a U‑turn from the south to the north side of the street in a school zone. The Defendant, who was travelling behind her, attempted to pass her in the westbound lane. The vehicles collided. The Plaintiff never saw the Defendant prior to the crash.

At trial the Court found the Defendant fully liable for “travelling too close to Ms. Sharma’s car and driving too fast, he failed to keep a proper look out, and he was attempting to pass Ms. Sharma’s vehicle in the westbound lane, an activity prohibited in a school zone“.

The Defendant appealed. The BC Court of Appeal found that the Defendant was largely to blame but the plaintiff also bore some liability for failing to see the Defendant prior to the crash. In reaching this decision the Court provided the following reasons:

Plaintiff Lawyer Copies of MSP and Pharmanet Printouts Subject to Litigation Privilege

Written by ERIK MAGRAKEN on June 5, 2020. Posted in Uncategorized.

Reasons for judgment were published today by the BC Supreme Court, New Westminster Registry, finding that plaintiff’s counsel was correct in listing ‘copies’ of MSP and pharmanet printouts as privileged and refusing to produce a copy to the Defendant.

In today’s case (Kang v. Sahota) the plaintiff was advancing an injury claim and in the course of doing so plaintiff’s counsel ordered copies of their clients MSP and Pharmanet printouts. These were used as tools in deciding what further records to order to advance the claim. The Defendant brought an application for production of these records. The Court dismissed this noting that counsel was correct to list these as privileged and the application should seek production of these directly from the Ministry of Health. In reaching this decision Mr. Justice Riley provided the following reasons:

Court Says Plaintiff Should Have Questioned Hells Angels in Unidentified Motorist Claim

Written by ERIK MAGRAKEN on June 4, 2020. Posted in Uncategorized.

Reasons for judgement were published this week dismissing a Plaintiff’s unidentified motorist ICBC claim finding he failed to take reasonable efforts to follow up on the identify of the unknown motorist with the Hells Angels.

In the recent case (Gorst v. ICBC) the Plaintiff was riding a motorcycle and was passed by a group of bikers travelling in the opposite direction. One of the biker’s entered the plaintiff’s lane causing him to take evasive action leading to his collision and injuries. The biker carried on and remained unidentified.

The Plaintiff sued ICBC under the unidentified motorist provisions. The Court found the unidentified biker was indeed partly liable for the crash but dismissed the claim finding the Plaintiff could have made further inquiries with the bikers as to the identity of the offending motorist. The Plaintiff claimed he was fearful to do so as they were believed to be Hell’s Angels. The Court found that was not a satisfactory excuse and in dismissing this aspect of the claim Mr. Justice Hori provided the following reasons:

CRT Dismisses Accelerated Depreciation Claim Because Applicant Named Wrong Party

Written by ERIK MAGRAKEN on May 29, 2020. Posted in BC Civil Resolution Tribunal.

Reasons for judgement were recently published by BC’s Civil Resolution Tribunal (“CRT”) dismissing a claim for accelerated depreciation following a serious vehicle collision because the applicant named the wrong party.

In the recent case (Liang v. ICBC) the Applicant’s vehicle was involved in a collision where it sustained over $17,000 in damages. When the vehicle was repaired the Applicant believed its market value was compromised with an accelerated depreciation of several thousand dollars.

Instead of suing the at fault motorists she sued ICBC who presumably were their insurance company. The CRT dismissed the claim finding that the wrong party was sued. Legally it is true that ICBC would not be contractually liable to pay for accelerated depreciation to a plaintiff as that is a tort claim and such cases do need to be brought directly against negligent motorists, not their insurance company. Insurers do, however, pay damages for accelerated depreciation once their insured at fault motorist is held liable.

Interestingly the CRT refused to substitute the motorists in for ICBC finding that since the limitation period expired it would be prejudicial to do so. It is a bit difficult to follow this logic, assuming ICBC was the motorists insurer, as they are the ones who would ultimately be dealing with the claim in any event once the correct parties were named. The Applicant appeared reluctant to name the correct party at the outset which is equally hard to understand. It is worth noting that the BC Supreme Court can and regularly does allow the addition/substitution of parties after the expiration of a lawsuit and does so quite frequently. In any event below are the reasons Vice Chair Andrea Richie provided in dismissing the claim:

BC Court of Appeal Harshly Criticizes Civil Resolution Tribunal for “Flawed” and “Unreasonable” Decision Refusing Right To Counsel

Written by ERIK MAGRAKEN on May 29, 2020. Posted in BC Civil Resolution Tribunal.

Reasons for judgement were published today by the BC Court of Appeal criticizing BC’s Civil Resolution Tribunal for an “unreasonable” and “flawed” analysis when reviewing a party’s request to be represented by a lawyer.

In today’s case (The Owners, Strata Plan NW 2575 v. Booth) the owners of a strata unit filed a dispute against their Strata Corporation asking for some repair costs to be paid. They filed their claim in BC’s Civil Resolution Tribunal (“CRT”) under their jurisdiction to resolve strata property disputes. The applicants then tagged on a claim seeking a further $25,000 in damages for “loss of enjoyment of life, threats, abuse, and stress” despite the CRT only having Small Claims authority of up to $5,000.

The Strata Corporation had insurance in place which would pay for a lawyer to represent them in the dispute. The CRT limits the use of lawyers and the CRT’s permission is required for a party to be represented in most cases. When the Strata asked for permission to be represented by lawyer this was denied with the CRT stating there was nothing ‘complex’ about the dispute giving rise to the ‘exceptional’ circumstances warranting a lawyer’s involvement. The CRT noted that the Strata could simply get legal advice behind the scenes instead of formally being represented by a lawyer.

The BC Court of Appeal overturned this decision finding the CRT flawed in their characterization of this dispute and their suggestion that legal advice only be utilized behind the scenes. The court noted there were complexities including issues as to whether the CRT could even hear such a dispute and hinted that Charter and Constitutional issues could be in play as well. In sending the matter back for a fresh determination the Court provided the following reasons:

Claim Alleging “Emotional Injury” After Cat Attacks Dog Dismissed

Written by ERIK MAGRAKEN on May 27, 2020. Posted in BC Civil Resolution Tribunal.

Today BC’s Civil Resolution Tribunal published reasons for judgement dismissing a claim based on alleged emotional injury following a cat attack.

In today’s case (Kvinlaug v. Schuchort) the Applicant alleged that a cat owned by the Respondents attacked her dog. She argued “that she sustained emotional injury resulting from her dog being attacked“. The Tribunal dismissed the claim before even getting to a damages analysis on the basis that no liability could be proven under any of the known principles for fault following animal attacks.

In finding that cat attacks are fundamentally different than dog attacks under a negligence analysis Tribunal Member Sherelle Goodwin provided the following reasons:

Trial Adjourned After Plaintiff “Comedy of Errors” Leads to Lack of Medico-Legal Evidence

Written by ERIK MAGRAKEN on May 27, 2020. Posted in BCSC Civil Rule 12.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, granting a trial adjournment after a plaintiff failed to obtain needed medico-legal evidence.

In today’s case (Raniga v. Poirier) the Plaintiff was involved in a 2015 collision. The Defendant admitted fault. As the trial neared plaintiff’s counsel realizes they failed to obtain medico-legal evidence and could not in time for trial. The Defendant would not consent to adjournment but the court granted the requested despite the ‘comedy of errors‘ creating the situation. Despite the court being critical of the evidence and circumstances presented in favour of the request one of the key reasons in granting it was the failure of the Defendant to point to any real prejudice who simply relied on an affidavit of an administrative assistant at the defence firm who had “no personal knowledge of the matters set out in her affidavit“.

In declining to award the Defendant any costs the Court went so far as to say that despite the shortcomings of the circumstances leading to the request “It should have been obvious from the outset that an adjournment would be granted.”

In granting the adjournment Mr. Justice Kent provided the following reasons:

RCMP Constable Ordered to Pay $55,000 Following Wrongful Detention

Written by ERIK MAGRAKEN on May 25, 2020. Posted in Damages for Charter Breaches.

Reasons for judgement were published today by the BC Supreme Court, Smithers Registry, ordering an RCMP constable and the crown to pay $55,000 in damages to a Plaintiff who was injured during a wrongful detention.

In today’s case (Joseph v Meier) the Plaintiff was shopping at a retail store when another woman shopping in the same area of the store put a scarf into her bag and then, when confronted, threw the scarf to the floor and fled. The plaintiff, who was elderly with limited mobility, continued shopping. The store manager mistakenly believed the two women were together and had the police called.

When the Defendant RCMP constable confronted the plaintiff she “refused to stop or provide information to him. She repeatedly told him that she had done nothing wrong and did not need to talk to him” . He took her to the ground and attempted to handcuff her while she resisted. The Plaintiff was injured in the altercation. In finding the Constable liable for false arrest, false imprisonment, assault and battery Madam Justice Brown provided the following reasons:

$72,500 Non Pecuniary Damages for Longstanding Back Injury With Some Room For Improvement

Written by ERIK MAGRAKEN on May 22, 2020. Posted in ICBC Back Injury (soft tissue) Cases.

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for a long standing soft tissue injury with some room for improvement.

In today’s case (Lluncor v. Anderson) the Plaintiff was involved in a 2014 rear-end collision that the Defendant accepted fault for. The crash resulted in a soft tissue injury to the Plaintiff’s back which lingered to the time of trial. Despite the longstanding nature of the injury the Court found there was prospect for further improvement. In assessing non pecuniary damages at $72,500 Mr. Justice Armstrong provided the following reasons:

$85,000 Non-Pecuniary Assessment for Chronic but not Disabling Back Pain

Written by ERIK MAGRAKEN on May 19, 2020. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for a long standing back injury sustained in two motor vehicle collisions.

In today’s case (Sehra v. Randhawa) the Plaintiff was involved in two separate collisions that the defendants accepted fault for. These resulted in ‘chronic daily back pain’ with a poor prognosis for full recovery thought the injureis were not disabling and the plaintiff could still undertake various physically challenging activities. In assessing non-pecuniary damages at $85,000 Madam Justice Douglas provided the following reasons: