Author: ERIK MAGRAKEN

Damages Assessed for 5% Diminished Earning Capacity

Reasons for judgement were published last week by the BC Supreme Court, Vancouver Registry, demonstrating that even a modest level of disability can add up to substantial losses when calculated over working years.

In the recent case (Bhumrah v. McLeary) the Plaintiff was injured in a 2018 collision caused by the Defendant.  The court found the collision resulted in lingering injuries that, while not outright disabling, resulted in a 5% diminished earning capacity.  In assessing damages at $80,000 for future economic loss the Honourable Justice Winteringham provided the following reasons:

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Breaking – BC Supreme Court Declares Civil Resolution Tribunal Law Over Collision Claims Unconstitutional

Today the BC Supreme Court issued reasons for judgement striking down various laws giving the Provincial Civil Resolution Tribunal jurisdiction over certain collision claims as unconstitutional.  This is the second time in recent months that the BC government’s efforts to strip people’s rights in favour of ICBC have been declared in violation of their constitutional powers.

Section 133 of the Civil Resolution Tribunal Act reads as follows:

Claims within jurisdiction of tribunal for accident claims

133   (1) Except as otherwise provided in section 113 [restricted authority of tribunal] or in this Division, the tribunal has jurisdiction in a dispute, in respect of an accident, over a claim concerning one or more of the following:

(a) the determination of entitlement to benefits paid or payable under the Insurance (Vehicle) Act;

(b) the determination of whether an injury is a minor injury for the purposes of the Insurance (Vehicle) Act;

(c) liability and damages, if the amount, including loss or damage to property related to the accident but excluding interest and any expenses referred to under section 49 [order for payment of expenses], is less than or equal to the tribunal limit amount.

(2) For the purposes of this Act, the tribunal

(a) has exclusive jurisdiction in respect of claims described in subsection (1) (a) or (b) of this section, and

(b) is to be considered to have specialized expertise in respect of claims described in subsection (1) (c) of this section.

(3) For certainty, a person may make a request for tribunal resolution in more than one tribunal proceeding relating to an accident.

In today’s case (Trial Lawyers Association of British Columbia v. British Columbia (Attorney General)) The Chief Justice of the BC Supreme Court noted as follows in striking down subsections 133(1)(b) and (c):

402] In my view, it is unnecessary to address this argument. As I have determined that s. 133(1)(a) and (b) of the CRTA, which purports to empower the CRT to decide certain MVA claims, is unconstitutional, s. 16.1 is left with no application or meaning in relation to accident claims, except for accident benefits under s. 133(1)(a).

[403] As such, s. 16.1 should be read down insofar as it applies to accident claims, except for accident benefits under s. 133(1)(a). As explained above, s. 16.1(1) also applies to the other areas of jurisdiction assigned to the CRT (strata, small claims, and societies and cooperatives). Therefore, rather than strike down the entire provision, I have determined it should be declared invalid and of no force or effect only insofar as it applies to MVA claims, other than accident benefits under s. 133(1)(a).

[404] In light of this finding, it is unnecessary for me to decide whether s. 16.1 offends s. 96 of the Constitution Act, 1867 in the manner the plaintiffs argue.

VIII. REMEDY

[405] Section 52(1) of the Constitution Act, 1982 provides that any law that is inconsistent with the constitution is of no force and effect to the extent of the inconsistency.

[406] It is clear from the comments of Chief Justice Lamer, at 742 in MacMillan Bloedel, set out above, that part of a legislative scheme can be challenged. Chief Justice Lamer also made this clear in Schacter v. Canada, [1992] 2 S.C.R. 679 at 695–696 where he wrote:
A court has flexibility in determining what course of action to take following a violation of the Charter which does not survive s. 1 scrutiny. Section 52 of the Constitution Act, 1982 mandates the striking down of any law that is inconsistent with the provisions of the Constitution, but only “to the extent of the inconsistency”. Depending upon the circumstances, a court may simply strike down, it may strike down and temporarily suspend the declaration of invalidity, or it may resort to the techniques of reading down or reading in. In addition, s. 24 of the Charter extends to any court of competent jurisdiction the power to grant an “appropriate and just” remedy to “[a]nyone whose [Charter] rights and freedoms … have been infringed or denied”. In choosing how to apply s. 52 or s. 24 a court will determine its course of action with reference to the nature of the violation and the context of the specific legislation under consideration. A. The Doctrine of Severance The flexibility of the language of s. 52 is not a new development in Canadian constitutional law. The courts have always struck down laws only to the extent of the inconsistency using of the doctrine of severance or “reading down”. Severance is used by the courts so as to interfere with the laws adopted by the legislature as little as possible. Generally speaking, when only a part of a statute or provision violates the Constitution, it is common sense that only the offending portion should be declared to be of no force or effect, and the rest should be spared.  Far from being an unusual technique, severance is an ordinary and everyday part of constitutional adjudication. For instance if a single section of a statute violates the Constitution, normally that section may be severed from the rest of the statute so that the whole statute need not be struck down. To refuse to sever the offending part, and therefore declare inoperative parts of a legislative enactment which do not themselves violate the Constitution, is surely the more difficult course to justify.

[407] I accept the submission of the motor vehicle defendants that generally, the court should not deal piece-meal with what the Legislature intended to be a “package” of legislative measures, especially when consideration must be given to any legislative response.

[408] The Attorney General contends that if there is a finding that one or both of ss. 133 and 16.1 of the CRTA, either in whole or in part offend s. 96 of the Constitution Act, 1867, the issue of remedy is not straightforward.

[409] The motor vehicle defendants submit that if the plaintiffs have met their burden, the appropriate remedy is to sever any offending provision from the rest of the amendments. They argue, and I agree, that I should not remove constitutionally valid areas of the CRT’s jurisdiction.

[410] The plaintiffs have conceded that subsection (a) of s. 133(1) of the CRTA is not, in isolation, unconstitutional. In my view, this subsection is severable. Likewise, the CRT’s jurisdiction to determine liability and damages for motor vehicle claims under $50,000 under subsection (c) is severable from its jurisdiction to determine whether an injury is a minor injury for the purposes of the Insurance (Vehicle) Act under subsection (b).

[411] As for the plaintiffs’ challenge to s. 16.1, the Attorney General contends that that aspect of the claim is based on a fundamentally different legal argument from the one made in relation to s. 133(1).

[412] Given these differences, the Attorney General says that the options for the court to find unconstitutionality could involve an array of different permutations of the various subsections, on different bases. The Attorney General argues that crafting an appropriate remedy in these circumstances will require consideration of complicated issues relating to severance, reading down, temporal application, and effect on existing decisions and processes of the CRT, as canvassed, at least in part as to severance and temporal application, in the written submissions of ICBC. The Attorney General submits that these questions are appropriately deferred for the time being, with opportunity for further submissions following release of the Court’s reasons for judgment on the main issues. In this way, the scope and basis for any finding of unconstitutionality made may inform the submissions.

[413] The Attorney General submits that at the present there is no disability on the part of the Supreme Court of British Columbia from hearing claims that arise from MVAs. In the result, the ability of both claimants and defendants in such cases to have their disputes resolved will not be impaired if the impugned sections of the legislation are struck down.

[414] I will therefore accede to the plaintiffs’ request, in part, and grant an order declaring that ss. 133(1) (b) and (c) of the CRTA are unconstitutional and of no force or effect. I also declare that s. 16.1 is unconstitutional and should be read down insofar as it applies to accident claims, except for determination of accident benefits under s. 133(1)(a). I decline to grant any order with respect to the Accident Regulations associated therewith.

BC Passes 6% Disbursement Limit on “Vehicle Injury Proceedings”

This week the BC Government published their text for a retroactive disbursement limit for individuals seeking compensation for injuries caused by the carelessness of other motorists.

A 6% limit was put in place.  An arbitrary percentage divorced from the actual disbursements an individual may have to incur to meet their burden of proof.  A constitutional challenge is likely to be filed but unless the regulation is struck down this is another handicapping of the system in favour of BC’s insurance monopoly.  This regulation in essence forces a litigant to either not call the necessary evidence to prove their case or prove their case but be disallowed recovery of the actual expenses that must be incurred to do so.

The text of the disbursement limit is as follows:

Limits on amount of disbursements

5 (1) In this section:

“disbursement limit” means, in relation to a vehicle injury proceeding, (a) the amount that is 6% of the total award of damages assessed by the court in the vehicle injury proceeding or, if an offer to settle the vehicle injury proceeding is accepted, 6% of the amount offered, or (b) if the court dismisses the vehicle injury proceeding or, at the conclusion of the vehicle injury proceeding, does not make an award of damages, the amount determined by the court;

“excluded disbursements” means the following: (a) fees payable to the Crown under the Supreme Court Civil Rules; (b) fees payable to the sheriff for non-refundable deposits in civil jury trials under the Supreme Court Civil Rules; (c) disbursements incurred by a party if the court ordered the costs of the proceeding to be paid as special costs; (d) disbursements incurred for an expert report on the issue of liability, if the court ordered that those expenses are excluded disbursements.

(2) Only the following may be allowed or awarded to a party in a vehicle injury proceeding as disbursements: (a) disbursements up to the disbursement limit; (b) excluded disbursements.

(3) The limits set out in subsection (2) do not apply (a) to a vehicle injury proceeding if (i) a notice of trial was filed and served before August 12, 2020, and (ii) the trial date set out in the notice of trial filed in relation to the vehicle injury proceeding is before June 1, 2021, or (b) to a vehicle injury proceeding if (i) a notice of trial was filed and served before August 12, 2020, (ii) the trial date set out in the notice of trial filed in relation to the vehicle injury proceeding is on or after June 1, 2021, and (iii) the court is satisfied that the party necessarily or properly incurred disbursements before August 12, 2020 in excess of the disbursement limit

Baseball Bat Beating Leads to $7 million Damage Assessment

In a tragic case reasons for judgement were published by the BC Supreme Court, Kamloops Registry, assessing damages in a personal injury lawsuit at nearly $7 million following a baseball bat attack.

In the recent case (Simpson v. Teichrieb) the Defendant “savagely battered” the teenage plaintiff with a baseball bat leaving him with “a catastrophic brain injury, have left Jessie requiring constant care and eliminated any prospect of employability.“.

At the time of the assault the plaintiff was 18 years old, 5’5” in height and weighed about 135 pounds. The defendant was 39 years old, 6’0” tall and weighed about 220 pounds.  The Plaintiff was in the Defendant’s yard and the Defendant was concerned about possible theft.  He beat the plaintiff nearly to death resulting in “a severe skull fracture and significant brain swelling. He had facial fractures and a notable bruise to his lower back in the shape of a baseball bat.”.

The Defendant was criminally convicted and sentenced to prison.

The bulk of the assessed damages reflect estimates of a lifetime of lost earnings and future care.  In assessing non-pecuniary damages at Canada’s current rough upper limit of $393,000 Mr. Justice Dley provided the following reasons:

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Dental “Failure to Warn” Case Dismissed Where Court Finds Reasonable Person Would Have Consented To Risks

Reasons for judgement were published this week by the BC Court of Appeal finding that no error was made by a trial judge who dismissed a dental surgery negligence claim where risks of the procedure were not adequately canvassed with a patient.

In this week’s case (Warlow v. Sadeghi) the Plaintiff was a patient who underwent dental surgery by the Defendant.  The procedure resulted in an “injured a nerve in Ms. Warlow’s lower right jaw, resulting in permanent and debilitating nerve pain that has altered virtually every aspect of her life.“.  Prior to surgery the Defendant did not adequately inform the plaintiff of this potential risk.  Despite this the trial judge dismissed the claim finding a reasonable patient would have consented had the risk been canvassed.  In dississing the plaintiff’s appeal the BC Court of Appeal provided the following reasons:

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Canadian Court Asserts Jurisdiction in Defamation Lawsuit Against Twitter

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing an application to decline jurisdiction of a defamation lawsuit against twitter.

In today’s case (Giustra v. Twitter, Inc.) the Plaintiff brought a lawsuit against Twitter claiming damages and an injunction for defamatory tweets authored by others and relayed on Twitter’s internet platform.  Twitter argued that the lawsuit should be brought in the US and that there the claim was bound to fail as they enjoy the protections of Section 230 of the Communications Decency Act of 1996, 47 USC (1996), which “protects freedom of speech on the internet by providing internet platforms such as Twitter with immunity against liability for tort claims arising from the dissemination of content from third-party users.

The BC Supreme Court was unpersuaded and found to the extent that the tweets were published in Canada, involving a Canadian plaintiff, making personal allegations against that plaintiff and causing harm to him in Canada with the Defendant having over 500,000 users here the Court was firmly within its rights to accept jurisdiction.  In reaching this conclusion Mr. Justice Myers provided the following reasons:

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CRT Moves Ahead With “Minor Injury” Determination Despite Ongoing Indivisible Injury Litigation in BC Supreme Court

Reasons for judgement were published recently by BC’s Civil Resolution Tribunal declining to refuse to determine a minor injury determination dispute despite the party having previous injuries from previous crashes with ongoing litigation in the BC Supreme Court.

In the recent case (Godwin v. Bui) the parties were involved in a May, 2019 collision.  The Respondent was injured in the crash and proceedings were field in the CRT who wished to move ahead to decide both liability for the crash and whether the injuries at question were ‘minor’.

The Respondent noted it would be inappropriate to decide the issue as he was injured in two previous collisions that pre-date the CRT’s jurisdiction which were in active litigation in the BC Supreme Court.  He argued that “the issues are so intertwined with the other actions that it would be impractical for the CRT to make any minor injury determination in this dispute“.  The Applicant did not strongly oppose this with the CRT noting the Applicant “essentially agrees that all the matters should be heard together at the BCSC.“.

Despite this the CRT refused to decline to refuse their determination and noted they would go ahead with their decision.  In reaching this conclusion Vice Chair Andrea Ritchie provided the following reasons:

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Court Declines to Award Plaintiff Double Costs Where Adverse Liability Finding was a “Live Possibility”

Often times when a plaintiff is awarded damages beyond their formal settlement offer the BC Supreme Court awards double costs.  Such an outcome is discretionary and not automatic and occasionally double costs are declined.  Reasons for judgment were published this week by the BC Supreme Court, Chilliwack Registry, with such an outcome.

In this week’s case (Enns v. Corbett) the Plaintiff was injured in a collision and sued for damages.  The Plaintiff was awarded damages approximately $30,000 above their formal settlement offer.  Despite this the Court declined to award double costs noting there was a ‘live possibility‘ of an adverse liability outcome.

In reaching this conclusion Mr. Justice Riley provided the following reasons:

[7]             I do not agree with the plaintiff that the offer ought reasonably to have been accepted as contemplated in Rule 9-1(6)(a). Rather, I agree with the defendant that at the time the offer was made, there was uncertainty as to the strength of the plaintiff’s claim, due in large measure to issues of contributory negligence and potential apportionment of liability. Despite the live issues as to liability, the plaintiff’s offer expressly rested on the premise that the defendant would be found “fully liable” for the collision; it made no allowance for the contingent risk that the plaintiff might be found contributorily negligent, which was a live possibility based on the evidence available to the parties when the offer was made. To quote from the defendant’s submission, the plaintiff’s offer “did not account for the real risk that the plaintiff’s claim might have been dismissed entirely or that liability might be apportioned, based on information available to the parties at the time”. As explained in Owen v. Folster, 2019 BCSC 407 at para. 12, the plaintiff’s offer did not put forward a “genuine compromise or an incentive to settle” in view of the litigation risks, such that the defendant did not act unreasonably in declining to accept it.

[12]         In my view, the most telling feature of this case is the fact that the offer to settle was premised on the plaintiff’s position that the defendant would be found fully liable for the collision, when there were live issues as to apportionment of liability. In these circumstances, it cannot be said that the offer “ought reasonably to have been accepted”. The other factors are less important in this particular case. The judgment obtained at trial was higher than the amount in the offer, but only marginally so as a proportion of the overall amount in issue. And, although the defendant’s insurance coverage placed her at some degree of financial advantage in terms of the decision to proceed to trial, there is no evidence that the defendant or her insurer used their financial strength in an untoward manner. The plaintiff was successful at trial and is therefore entitled to costs of the action at Scale B, but not double costs.

$200,000 Non Pecuniary Damage Assessment for Chronic Disabling PTSD

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and disabling injuries following a fatal motor vehicle collision.

In this week’s case (Kempton v. Struke Estate) the Plaintiff was involved in a 2015 collision.  He was operating a tractor trailer when the Defendant, travelling in the opposite direction, crossed the centre line resulting in a head on crash.  The collision killed the Defendant instantly.   The Plaintiff suffered few physical injuries but sustained post traumatic stress disorder (“PTSD”) as a result of the horrific crash.  This condition disabled him and was not expected to improve.

In assessing non-pecuniary damages at $200,000 Mr. Justice Crerar provided the following reasons:

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Congratulations Clawbies2020 Winners and Thank you For the Hall of Fame!

The Canadian Law Blog Awards, which started as a quasi legal marketing blogging tool, have taken on a life of their own and have become a well recognized badge for many contributors in the Canadian legal field for their on line efforts in providing helpful content to the public.

With the awards handed out on New Years Eve the Clawbies pride themselves on being the latest awards of the year.

This morning the 2020 Clawbies were announced. Please check our the full list and follow all the worthwhile legal content providers highlighted there! A lot of great work by great lawyers and other legal professionals.

I was honoured to be ‘retired’ by the Clawbies losing eligibility for future awards by being inducted into their Hall of Fame. Thank you for this. It has been my pleasure to author thousands of articles here over the past decade plus and I have no intention of stopping still.  I am looking forward to all the future Clawbie winners for the great content they create and the creative ways the legal profession will continue to use social media to connect with the public.

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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