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Personal Injury Claims, Settlement Agreements and Repudiation

Written by admin on . Posted in Civil Procedure, Uncategorized. 60 Comments on Personal Injury Claims, Settlement Agreements and Repudiation

When offers are made for the settlement of ICBC or other BC personal injury claims the parties involved must take care not to ‘demonstrate an unwillingness to be bound by the agreement’ otherwise they risk the settlement agreement being repudiated.  Reasons for judgement were released today illustrating this principle.
A bit of background is necessary before getting into the facts of this case.  Typically in BC Personal Injury Cases from car accidents ICBC insures both the Plaintiff and the Defendant.  This is so because ICBC is a statutory insurer with certain monopoly privileges so they insure almost all vehicles in British Columbia.  In some circumstances, of course, other insurance companies are involved (for example when the offending party is an out of Province motorist).
In today’s case the Plaintiff was insured with ICBC for ‘no-fault benefits’ (also known as Part 7 benefits) and the operator of the offending vehicle was insured with Progressive.  The Plaintiff ran into problems with both companies and started a lawsuit against ICBC for no-fault benefits which were allegedly outstanding and also made a tort claim against the motorist insured with Progressive.
The tort case apparently settled for “79,605.50 plus costs of no more than $19,767.13″.  The parties then apparently settled the costs amount with Defence Counsel writing to Plaintiff’s counsel stating
I have instructions to accept your offer to settle the costs.  The adjuster will be forwarding to your office a cheque in the sum of $97,936.70 Cdn to cover the settlement including costs.  The funds will be sent on your undertaking not to release any part of them to the plaintiff until the Release and Consent Dismissal Order that I plan to fax to you today are fully executed, and on your further undertaking to return the executed documents to me as soon as reasonably possible
A few days later counsel for the Plaintiff responded stating that the Plaintiff “was not prepared to execute the release because it referred to a “Part VII action”.  It stated that the defendant was released from all claims:”
The parties tried to resolve their differences but could not.   The Plaintiff brought an application for an order to enforce the settlement agreement that was allegedly reached.  Mr. Justice Williamson refused to do so finding that the Plaintiff had repudiated any settlement agreement that may have been reached.  The courts key reasoning is set out at paragraphs 14 – 20 of the judgement which I reproduce below:

[14]            The plaintiff relies upon Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., [1995] O.J. No. 721 (Ct. J. (Gen. Div.)). At para. 24 of that decision, Chapnik J. stated:

It is well established that settlement implies a promise to furnish a release unless there is agreement to the contrary.  On the other hand, no party is bound to execute a complex or unusual form of release: although implicit in the settlement, the terms of the release must reflect the agreement reached by the parties.  This principle accords with commons sense and normal business practice.

[15]            And further, at para. 36, the learned judge stated:

The onus is on the party claiming repudiation to show that the disagreement consequent upon the settlement constitutes a repudiation of it.  Subsequent disputes should be resolved by application to the court or by common sense within the framework of the settlement to which the parties have agreed and in accordance with the common practices which prevail amongst members of the bar.  It will be rare for conduct subsequent to a settlement agreement to amount to repudiation.

[16]            In so stating, Chapnik J. referred to a decision of McEachern C.J.B.C. in Fieguth v. Acklands Ltd. (1989), 59 D.L.R. (4th) 114, 37 B.C.L.R. (2d) 62 (C.A.).  In Fieguth, the Chief Justice noted that once there has been an agreement, one party can tender whatever documents thought appropriate to complete the agreement without actually rescinding the settlement.  At page 121, the Chief Justice stated:

If such documents are accepted and executed and returned then the contract, which has been executory, becomes executed.  If the documents are not accepted then there must be further discussion but neither is released or discharged unless the other party has demonstrated an unwillingness to be bound by the agreement by insisting upon terms or conditions which have not been agreed upon or are not reasonably implied in these circumstances.

[17]            Here, the release documents were not accepted.  There was further discussion.  The question is, in the words of McEachern C.J.B.C. as stated above, has one party demonstrated an unwillingness to be bound by the agreement by insisting upon terms or conditions which have not been agreed upon or are not reasonably implied?

[18]            I conclude that is the circumstance here.  The parties appear to have agreed to settle the matter for $97,936.70 Cdn.  However, when the necessary documents, in particular the release, was forwarded to counsel for the plaintiff, the plaintiff declined to execute the release unless something was done about the plaintiff’s right to continue with the other action against ICBC. 

[19]            I have referred to the December 1, 2008, email from counsel for the plaintiff to counsel for the defendant.  In my view, the wording of it is clear.  It states “my client will sign a full release once she has been compensated for Part 7’s in the sum of $7,000”.  In other words, the plaintiff took the position that she would not complete the November 19 agreement unless she was paid an additional $7,000 or, presumably, the defendant agreed that she could continue her action against ICBC.  I conclude that to take such a position is to repudiate the agreement allegedly reached on November 19. 

[20]            In the circumstances, the plaintiff’s application is dismissed.  The defendant will have its costs.

Botox Injections for Rehabilitation and ICBC No-Fault Benefits

Written by admin on . Posted in Civil Procedure, ICBC No-Fault (Part 7) Benefits, Uncategorized. 48 Comments on Botox Injections for Rehabilitation and ICBC No-Fault Benefits

You are insured with ICBC and are injured in a BC Car Accident.  You experience chronic pain and your doctor tells you that you will likely benefit from Botox Injections to aid in your rehabilitation.  Botox treatment is expensive, so you apply to ICBC to have this covered under your No-Fault Benefits (sometimes referred to as Part 7 benefits).  ICBC tells you, “sorry, Botox treatment for injury is not covered under Part 7.” Are they right?  Wrong.
Reasons for judgment were released today by the BC Supreme Court ordering that ICBC cover the expenses associated with a Plaintiff receiving Botox treatment.
The Plaintiff was injured in a 2005 BC car crash.  The Plaintiff applied for and received previous funding for various treatments of injuries from ICBC.  The Plaintiff then saw a rehabilitation specialist who recommended Botox injections.  The cost of these was expected to be $3,500.  ICBC, without a contrary medical opinion as to the reasonableness of this treatment, failed to fund it and took the position that this expense did not have to be covered.
Section 88 (1) of the Insurance (Vehicle) Regulation deals with ICBC’s no-fault medical and rehabilitation benefits and requires that ICBC cover all reasonable expenses incurred by the insured as a result of the injury for necessary services, therapy or treatment as set out in the Regulation.
Justice Macaulay, in very well thought out reasons for judgment, ordered that ICBC had to pay for the Botox injections in the circumstances of this case.  The key reasoning in the judgment can be found at paragraphs 33 – 40 which I will publish as soon as the judgement is released on the BC Court’s website.
This case is also very interesting to me from a procedural point of view.  The Plaintiff brought this application by way of summary trial under Rule 18-A.  The Plaintiff relied on his affidavit and a medico-legal report.  ICBC did not have the opportunity to cross examine the Plaintiff or the treating doctor and typically litigants are entitled to do so.  ICBC took the position that this application should not be heard until they had the chance to cross-examine.
Mr. Justice Macaulay disagreed with ICBC and allowed the application to proceed.  He ruled that “There is nothing to be gained by directing cross examination of either the doctor or the Plaintiff.  The doctor makes it clear that she recommends this treatment as one of several options because the plaintiff’s lower back problems have been intractable.  It is primarily a legal issue whether that is sufficient to trigger an obligation on ICBC under s. 88(1).  There is also no reason to expect that the cross examination of the plaintiff will result in any alteration of the evidence…cross examination will not be ordered [in Rule 18A summary trials] absent some likelihood that the procedure will produce evidence in support of the other side…I am satisfied that the proposed cross-examination of the plaintiff and his doctor are speculative and not likely to produce evidence in support of ICBC.”

ICBC Claims, Settlement Offers and Timelines for Acceptance

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

Interesting reasons for judgement were released today by the BC Court of Appeal setting aside a settlement of an ICBC injury claim.
In this case the Plaintiff was allegedly injured as a result of a 2001 BC motor vehicle collision.  In September, 2006 the parties attended a mediation and ICBC made an offer to settle the Plaintiff’s claim for $50,000 plus costs and disbursements.  The Plaintiff did not accept the offer at mediation and the mediation came to an end.  
The following month the Plaintiff’s lawyer attempted to accept the settlement offer.  The defendants refused to proceed with the settlement, stated that the offer was revoked and attempted to proceed to trial.
The Plaintiff brought an application to enforce the alleged settlement and appeared before the BC Supreme Court.  The presiding judge ordered that there was a binding settlement.  The Defendants appealed.  The Court of Appeal ordered that there was no settlement or if a settlement was reached it was ‘void for uncertainty and unenforceable‘.
The court’s key discussion is set out at paragraphs 15 – 21 which I set out below:

[15]            In my view, on the evidence presented in this rather unsatisfactory record, a settlement cannot be said to have been reached for two reasons.  First, the offer made in mediation was not accepted within a reasonable time.  Second, the terms of the purported settlement lacked certainty. 

[16]            What is a reasonable time is a question of fact.  However, it is a question to which the learned chambers judge never directed her attention in either of the two sets of reasons she gave.  In the absence of any express provision, a reasonable time for acceptance of the offer at mediation depended on all the circumstances.  The mediation concluded with no agreement.  The trial date was approaching.  Both sides were no doubt preparing for trial and incurring the attendant costs.  The reasonable observer would, if asked, have concluded that the time for acceptance of the offer, even if it continued after the mediation had ended, had gone by.

[17]            Nor can the terms of the purported settlement be said to be certain.  The offer at mediation was to pay $50,000 plus costs and disbursements.  The letter of 20 October 2006 purported to accept an offer of $50,000 “plus party and party costs in the tort action”.  The letter did not specify the date at which such costs were to be determined.  It did not specify the amount of the costs, nor the manner in which they were to be determined.  If the letter of 20 October 2006 can be said to have concluded an agreement, it was at best an agreement to agree. 

[18]            The learned chambers judge recognized this difficulty.  She said:

It is apparent that the parties have not agreed upon the matter of costs.

[19]            She then directed that the issue “be referred to the trial judge”.  There was no trial, and there was no trial judge.  Moreover, there was no order as to who should pay what costs, at what level, or for what period of time.  None of the factors which might guide a judge in making a ruling on costs were known or knowable.

[20]            Even if one were to read this direction as one for taxation of costs before the Registrar, there is nothing in the evidence to suggest that this was what either party intended, or the basis on which a Registrar could conduct a taxation.

[21]            If there was any kind of an agreement reached, it was void for uncertainty and unenforceable.  And in any event, the offer not having been accepted within a reasonable time, no agreement can be said to have been reached.

This case illustrates the fact that if an informal settlement offer is made (as opposed to a formal settlement offer under Rule 37B) it is important for the parties to have a meeting of the minds and know exactly what is being offered.  Does the offer include court costs?  Disbursements?  How long is the offer open for acceptance?  These and other questions are important factors when considering a settlement offer for an ICBC claim.  

ICBC Injury Claims, Criminal Charges and Police Records

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What kind of disclosure are you entitled to from the police if you are injured in a BC Car Accident that resulted from a criminal act?  For example, say you were injured by a drunk driver or someone fleeing from the police.  Are you entitled to the police departments records documenting their investigation in your ICBC claim or do you have to wait until criminal charges are finally dealt with?  Reasons for judgement were released today dealing with this issue.
In this case the Plaintiff was killed in a motor vehicle accident.  Charges were brought against the alleged operator of the vehicle alleging criminal negligence causing death.  In the ICBC claim the identity of the Defendant driver was put in issue.  The Plaintiff’s estate brought a motion seeking production of the Vancouver Police Departments documents concerning this accident.  The Attorney General, on behalf of the VPD,  opposed this motion.  Mr. Justice Pitfield ordered that the documents be disclosed finding that ‘the accused’ should not be in a better position with respect to the police evidence (such evidence typically gets disclosed to the accused as part of the criminal disclosure process) than the Plaintiff.  His key analysis can be found at paragraphs 43-47 of the judgment which I reproduce below:

[43]            The issue in the present application then is whether the actual or implied undertaking to refrain from using Crown disclosure documentation for any purpose other than making full answer and defence should be modified to permit disclosure to a plaintiff in a related civil action in which the accused is a defendant.  A number of factors must be considered:

1.         As with any request for production, the requested documentation or the information that may be derived from it, must relate to an issue in the proceeding in which use of the documentation is intended.

2.         The information likely to be obtained from the documentation must not be available from other sources, thereby necessitating production.

3.         The public interest in ensuring the conduct of a prosecution in a manner that is fair from the perspective of both the Crown and the defence must be balanced against the private interest of ensuring the capacity of a plaintiff to advance a bona fide and meritorious claim in a civil action.  In other words, the balance of convenience must favour disclosure.  As the Ontario Court of Appeal said in D.P. v. Wagg (2004), 239 D.L.R. (4th) 501, 71 O.R. (3d) 229, [2004] O.J. No. 2053, at para. 53:

53.       …Society has an interest in seeing that justice is done in civil cases as well as criminal cases, and generally speaking that will occur when the parties have the opportunity to put all relevant evidence before the court.  The Crown disclosure may be helpful to the parties in ensuring that they secure all relevant evidence.

[44]            The court may be required to engage in a screening process conducted with the participation of Crown, police and defence in order to identify the documentation that must be produced and to ensure that the preconditions to production have been satisfied.  The screening process will only be avoided in the event that consent to production is forthcoming.

[45]            I am persuaded by the affidavit evidence that documents in the VPD file that may afford evidence of, or point to the source of evidence regarding, the operator of the vehicle involved in Mr. Wong’s death and its manner of operation, are relevant and material in so far as the family compensation action is concerned.  I am also satisfied that the evidence cannot be obtained by the plaintiff from other sources available to him.  The plaintiff does not possess any of the investigative tools that were likely employed by the VPD in its attempts to identify the driver.

[46]            The remaining question is whether the balancing of the public and private interests should result in production of the relevant documents at this point in time.  The Crown has tendered affidavit evidence suggesting that the criminal prosecution might be jeopardized by disclosure of any documents to the plaintiff because the material might find its way to potential witnesses, to the jury pool, or to persons who could seek to subvert the course of justice.  While the affidavit evidence contains general statements of possible adverse effects resulting from premature disclosure, it does not identify any specific concerns in the context of the Antunes prosecution.  Moreover, the possibility of any adverse effect can be materially reduced, or eliminated, by an appropriate undertaking from counsel and the plaintiff in the civil action.

[47]            In sum, I can see no reason why, in the circumstances, the accused should be in a position to know of the police evidence or sources of evidence pertaining to the identity of the driver and the allegation of negligent operation of a motor vehicle, but the plaintiff who sues on behalf of the victim of the operator’s negligence should not.  

ICBC Injury Claims, Trials and Disbursements

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Generally speaking it can be very expensive to bring an ICBC injury claim to trial in British Columbia.  I’m not talking about lawyers fees here.  There are many very well qualified personal injury lawyers in BC who handle ICBC injury claims on a ‘contingency basis’ and most Plaintiffs with a good claim have the luxury of shopping around finding a lawyer that is the right fit for them.  What I’m referring to is the actual out of pocket cost of bringing a case to trial in the British Columbia Supreme Court.  These are called ‘disbursmemnts’.
Most ICBC injury claims focus heavily on the nature and extent of car accident related injuries.  To properly present such a case in court expert opinion evidence is necessary.  Doctors are entitled to charge fees for providing this service and these fees can quickly get into the thousands of dollars, particularly with complex injury cases such as brain injury claims and chronic pain disorders.  Other fees, such as court filing fees, witness fees, process servers fees, photocopying expenses (these can quickly add up particularly in ICBC jury trials where multiple copies of all exhibits must be made) are also commonly incurred.
Most lawyers that advance ICBC injury claims on a contingency basis fund the disbursements to bring the case to trial.  After judgement the court has certain powers set out in the Rules of Court to award the victorious party their ‘costs and disbursemnts’.  If the parties can’t agree on which disbursements were reasonable an application can be made to the Court to make a ruling.
Reasons for judgment were released today dealing with the issue of ‘reasonable disbursements’ following a BC personal injury claim.  Some of the more interesting expenses allowed, from my perspective, were 3 MRI scans paid for privately through Canadian Medial Imaging.  These were allowed because “(a doctor) clearly did recommend an MRI to try to assess the cause of (the Plaintiff’s) ongoing problems”.  Also, the Trust Administration Fee (a fee lawyers must charge in BC when opening a new file) was held to be reasonable and the Defendant was ordered to pay this cost.  
While this judgement does not create any new law it is worth reviewing to see the types of expenses that are sometimes incurred in prosecuting ICBC injury claims and to see how the BC Supreme Court deals with the issue of reimbursement of these expenses.  If you are advancing an ICBC injury claim in the BC Supreme Court you should keep judgement such as this one in mind when deciding what expenses you will incur while preparing your case for trial.

ICBC Injury Claims "Collateral Benefits" and the Rule Against Double Recovery

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Imagine if you are injured through the fault of another BC motorist and become disabled from work.  You are lucky enough to have wage loss disability benefits through your employment (or your spouse’s employment). When you advance your ICBC injury claim are you entitled to claim your past wage loss or will you be prohibited in claiming this money from ICBC because you already received money for past wage loss from your private insurer?  The short answer is you can claim this money provided that you paid some consideration for receipt of your private insurance benefits.  
Reasons for judgment were released this week by the BC Supreme Court dealing with the ‘private insurance’ exception to the rule against ‘double recovery’ in BC tort claims.
In this case the Plaintiff was injured in a BC car crash.  She needed therapies to treat her injuries.  The cost of these therapies were covered largely through an extended health plan through her husband’s employment.   The issue to be decided at trial was whether the Plaintiff could recover the actual costs of her therapies or only that portion not covered by the private insurer.
Madam Justice Bruce summarized the law addressing the ‘private insurance’ exception to the rule against double recovery as follows:

[7]                The general rule in an action for damages arising out of negligence is that the plaintiff is only entitled to be restored to the position she would have been in had the accident not occurred. The plaintiff is awarded damages for her actual loss and no more: Cunningham at para. 5 per McLachlin J. (dissenting in part)

[8]                The law has recognized a limited exception to the rule against double recovery which is referred to as the “private insurance” exception. In Cunningham at para. 75 Mr. Justice Cory, speaking for the majority, adopts the following passage from Bradburn v. Great Western Rail Co., [1874-80] All E.R. 195 as accurately describing the underlying rationale for the exception:

… I think that there would be no justice or principle in setting off an amount which the plaintiff has entitled himself to under a contract of insurance, such as any prudent man would make on the principle of, as the expression is, “laying away for a rainy day”. He pays the premiums upon a contract which, if he meets with an accident, entitles him to receive a sum of money. It is not because he meets with the accident, but because he made a contract with, and paid premiums to, the insurance company, for that express purpose, that he gets the money from them. …and I think that it ought not, upon any principle of justice, to be deducted from the amount of damages proved to have been sustained by him through the negligence of the defendant.

[9]                Whether the plaintiff has paid for private insurance or has obtained these benefits through an employment contract, the exception will apply. It is also irrelevant that it is the plaintiff’s husband who secured these benefits. See, Brennan at para. 182-3. However, the onus rests with the plaintiff to prove he or she has paid for the provision of insurance benefits in some fashion. As Cory J. says in Cunningham at para. 94:

In my view, Ratych v. Bloomer, supra, simply placed an evidentiary burden upon plaintiffs to establish that they had paid for the provision of disability benefits. I think the manner of payment may be found, for example, in evidence pertaining to the provisions of a collective bargaining agreement just as clearly as in a direct payroll deduction.

[10]            There is no evidence before the court as to what, if any, consideration passed between Mr. Napoleone and his employer in respect of the extended health benefits. There is no evidence of whether Mr. Napoleone pays all or a portion of the insurance cost or whether it was negotiated as a part of a collective bargaining scheme. The only evidence before the court is that the plan was secured through Mr. Napoleone’s employer and it covers 80% of Mrs. Napoleone’s health related expenses.

[11]            Without an evidentiary foundation to support the claim, I am unable to apply the private insurance exception to the case at hand. As Cory J. says at para. 93 of Cunningham, it is only when this evidentiary requirement is met that the court may be satisfied the plaintiff has shown the prudence and corresponding deprivation that underlies the exception and permits double recovery.

[12]            For these reasons, I must dismiss Ms. Napoleone’s claim for the gross cost of the special expenses.

This case shows that it is essential to lead evidence at trial that there was some cost associated with being entitled to receive the collateral benefits to be able to receive compensation for the losses those benefits covered in an ICBC tort claim.  This can be done in any number of ways such as showing deductions from a paycheque to pay for a private insurance plan or showing that the private insurance was negotiated from the employer at the expense of some salary.  This is a particulary important matter to think about when preparing for trial if you signed a ‘reimbursement agreement’ with you private insurer to pay back the benefits.  

Rule 37 Dies a Natural Death

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As most frequent visitors to this blog know, Rule 37 of the BC Supreme Court Rules (the rule that dealt with formal settlement offers and costs consequences in BC Supreme Court trials including ICBC personal injury claims) was replaced this summer with Rule 37B.  Rule 37B builds in a lot of judicial discretion in the process of awarding ‘costs’ to litigants where a formal offer was made compared to the old Rule 37 which had strict consequences resulting when a formal offer was made and beat at trial.
In what will likely be one of the last BC court cases dealing with the old Rule 37, unanimous reasons for judgment were released today by a 5 member panel of the BC Court of Appeal ruling that the old Rule 37 is not incompatible with the Negligence Act and both can work in harmony.
In this case the Plaintiff sued for injuries sustained as a result of a motor vehicle collision.  Pre-Trial the Defendant made a settlement offer under the old Rule 37 for $150,000.    The Plaintiff rejected this offer and proceeded to trial.  The trial judge found that the Plaintiff was 50% at fault and awarded damages of just over $56,000.
Having found that the Plaintiff was 50% at fault he awarded her 50% of her costs to the date the formal offer was made by the Defendant.  Since the Defendants ‘beat’ their formal offer the Court ordered that the Plaintiff pay all of the Defendants Tariff costs from the date of the formal offer through to trial.   This award of costs was apparently so significant that the Plaintiff ended up owing the Defendant money.
The Plaintiff appealed arguing that Rule 37 was in conflict with the Negligence Act, the relevant portions of which read as follows:

2.         The awarding of damage or loss in every action to which section 1 applies is governed by the following provisions:

(a)        the damage or loss, if any, sustained by each person shall be ascertained and expressed in dollars;

(b)        the degree to which each person was at fault shall be ascertained and expressed as a percentage of the total fault;

(c)        as between each person who has sustained damage or loss and each other person who is liable to make good the damage or loss, the person sustaining the damage or loss shall be entitled to recover from that other person the percentage of the damage or loss sustained as corresponds to the degree of fault of that other person;

(d)        as between 2 persons each of whom has sustained damage or loss and is entitled to recover a percentage of it from the other, the amounts to which they are respectively entitled shall be set off one against the other, and if either person is entitled to a greater amount than the other, he shall have judgment against that other for the excess.

3.         Unless the court otherwise directs, the liability for costs of the parties to every action shall be in the same proportion as their respective liability to make good the damage or loss. The provisions of section 2 governing the awarding of damage or loss apply, with the necessary changes and so far as applicable, to the awarding of costs, with the further provision that where, as between 2 persons, one is entitled to a judgment for an excess of damage or loss and the other to a judgment for an excess of costs there shall be a further set off of the respective amounts and judgment shall be given accordingly.

The relevant of the old Rule 37 read as follows:

R. 37(24) read:

37(24)  If the defendant has made an offer to settle a claim for money, and it has not expired or been withdrawn or been accepted,

(a)        if the plaintiff obtains judgment for the amount of money specified in the offer or a lesser amount, the plaintiff is entitled to costs assessed to the date the offer was delivered, and the defendant is entitled to costs assessed from that date.

(b)        if the plaintiff’s claim is dismissed, the defendant is entitled to costs assessed to the date the offer was delivered and to double costs assessed from that date.

The Plaintiff asked the Court of Appeal to find that Rule 37 was trumped by the Negligence Act and to adjust the costs award accordingly.
The Court of Appeal dismissed this argument finding that Rule 37 and the Negligence Act are not in conflict with each other and can stand together.  The Courts key analysis is set out at Paragraph 29 of the Reasons which I set out below:
[29]            I do not find this analysis altogether persuasive.  I would have thought that the Act, as superior legislation to the Rules, would be looked to first to determine each parties’ liability for costs in a situation to which s. 2 of the Act applies, and that R. 37, as an item of subordinate legislation, would then be applied if possible. Applying the classic definition of “conflict” – whether the two laws can “stand together and … operate without either interfering with the other” (see Tabernacle Permanent Building Society v. Knight [1892] A.C. 298 (H.L.) at 302, and the leading Canadian case, Friends of the Oldman River Society v. Canada (Minister of Transport) [1992] 1 S.C.R. 3, 88 D.L.R. (4th) 1 at para. 42) – however, I agree with the Court’s conclusion in Smith v. Knudsenthat s. 3 of the Negligence Act and R. 37(24) do not conflict.  I reach this conclusion not only on the basis of the opening phrase of s. 3, but also on a close construction of the Act.  As was held in Flatley, the phrase “person sustaining the damage or loss” in s. 2(c) is apt to refer only to the plaintiff in any case in which the defendant sustained no injury or damage.  Section 3 states that each party’s liability for costs shall be in the same proportion as his or her liability to make good the damage or loss.  Having sustained no damage or loss, the defendant has no ‘entitlement’ to recovery under s. 2(c) and thus his or her liability for costs does not “track” under s. 3.  As McFarlane J.A. stated in Lutes, s. 2(c) “does not provide for the awarding of damages as between persons who are at fault.  This sub-section cannot apply to entitle [a defendant] to recover anything because he has sustained no damage or loss.”  (Supra, at 466.)
This will be, in all likelihood, one of the last judgements dealing with the old Rule 37.  I look forward to continue reporting on judgements dealing with the new Rule 37B particularly in the context of ICBC injury claims.

More Judicial Interpretation of Rule 37B

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I have blogged many times about the relatively new BC Supreme Court Rule 37B (the rule dealing with formal settlement offers).  You can search the archives of this blog to find my previous entries.
Useful reasons were released today by the BC Supreme Court providing further clarity and development of this rule.  
The key facts are as follows:
1.  The Defendant delivered a formal offer under the old Rule 37 on August 27, 2007 (rule 37B was not in force at the time).  That offer complied with Rule 37.
2.  The offer was for a monetary amount within the Small Claims Court jurisdiction.
3.  On August 21, 2007 the Plaintiff accepted the offer.
4.  The Plaintiff and the Defendant could not agree to the costs consequences of the acceptance and brought application to court.
5.  The applicaiton was heard after Rule 37B came into force.
One of the issues that was decided was whether under these facts Rule 37B applied or should the court consider the costs consequences under the old Rule 37?  Madam Justice Garson held that Rule 37B applied because:

[10]            Whether R. 37B applies to the Offer in question is determined by the definition of “offer to settle” in R. 37B(1).  Rule 37B(1) provides three alternative situations that fall within the meaning of “offer to settle.”  The situation applicable to the case at hand is R. 37B(1)(a) and thus paras. (b) and (c) are not applicable.

[11]            Rule 37B(1)(a) requires three criteria to be met to satisfy the definition of “offer to settle”:  first, the offer to settle must have been made and delivered before July 2, 2008; second, the offer to settle must have been made under R. 37 as that rule read on the date of the offer to settle; and third, there must have been no order made under R. 37 in relation to the offer to settle.

[12]            Applying R. 37B(1)(a) to the facts in this case, I note, the Offer was drafted on August 28, 2007, and delivered on August 29, 2007.  This is prior to July 2, 2008; therefore the first criterion is met.  The Offer was made pursuant to R. 37 as that rule read on August 28, 2007, and thus the second criterion is met.  Lastly, no order was made under R. 37 in relation to the Offer.  Thus, R. 37B applies to the offer made by the defendants and the new regime applies.

[13]            In Bailey v. Jang, 2008 BCSC 1372 at para. 10, Hinkson J. held that R. 37B “… applies to offers to settle made both before and after July 1, 2008 where no order as to costs has been made.”  (See also Brewster v. Rominn Laboratories Inc., 2008 BCSC 1463 at para. 13.)

[14]            In this case the defendants argue that because the offer was made and accepted pursuant to R. 37, R. 37 should continue to apply.  I cannot accede to that argument in the face of clear legislation to the contrary as well as the two authorities of this Court just mentioned.

Having decided that Rule 37B applies to these facts (even though the offer was made and accepted before Rule 37B came into force) The court went on to award the Plaintiff her ‘costs’ despite the fact that the offer was within the small claims courts jurisdiction.  In doing so the court provided the following reasons:

[19]            The defendants contend that the plaintiff is not entitled to her costs of the entire proceeding because the settlement is within the monetary jurisdiction of the Provincial Court.  Old R. 37(37) provided that a plaintiff was not entitled to costs if the offer accepted was within the jurisdiction of the Provincial Court under the Small Claims Act and could have been appropriately brought in the Provincial Court.  Rule 37(37) was not carried forward to R. 37B.

[20]            I turn back to R. 37B(5).

Cost options

37B (5)            In a proceeding in which an offer to settle has been made, the court may do one or both of the following:

(a)      deprive a party, in whole or in part, of costs to which the party would otherwise be entitled in respect of the steps taken in the proceeding after the date of delivery of the offer to settle;

(b)      award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

[21]            On the basis, that I have already decided that the words “after the date of delivery of the offer to settle” means costs incurred from and after the day following delivery, subsection (b) is inapplicable because no costs were incurred by either party after delivery of the offer to settle.

[22]            The “Cost options” as it is put in R. 37B are prescribed by the rule.  In this case the defendants argued that the plaintiff should be disentitled to all her costs because the case was one that ought to have been brought within the monetary jurisdiction of the Small Claims Court.  Even if that is one of the factors that could be taken into account under ss. (6), ss. (5) of R. 37B does not permit a court the option of depriving a party (in this case the plaintiff) of her costs before the date of delivery of the offer.

[23]            The rule only permits the Court to deprive a party, “in whole or in part” of her costs to which she “…would otherwise be entitled….after the date of delivery of the offer to settle;” [emphasis added].

[24]            Accordingly, there is no basis in R. 37B on which this Court could deprive the plaintiff of costs incurred before the date of the delivery of an offer regardless of whether the ultimate settlement is within the monetary jurisdiction of the Provincial Court.

Application of Rule 57(10)

[25]            Rule 57(10) of the Supreme Court Rules states as follows:

(10)        A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

[26]            The purpose of R. 57(10) is to encourage actions to be brought and continued in Provincial Court when there is no sufficient reason to expect that the claim might give rise to damages in excess of the monetary jurisdiction of that Court.  If the plaintiff proceeds in the Supreme Court, and the resulting monetary judgment falls within the jurisdictional limits of the Provincial Court, the plaintiff must justify his choice of forum or be denied costs other than disbursements.

[27]            However, as the action did not actually proceed to trial, R. 57(10) has no application to the case at hand.

As an ICBC claims lawyer I welcome this judgement and all other judgements giving clarity to Rule 37B.  The more consistency this rule receives in its interpretation from the BC Courts the better position all ICBC claims lawyers will be in advising clients about the potential costs consequences of accepting or rejecting formal ICBC settlement offers.  I intend to continue to blog about this rule as it receives further judicial interpretation.

Medical Exams and ICBC Tort and No-Fault Claims

Written by admin on . Posted in Civil Procedure, ICBC No-Fault (Part 7) Benefits, independent medical exams.

As many of you know ICBC is a Provincial auto insurer which enjoys certain statutory monopoly privileges in British Columbia.  Since ICBC insures almost every BC motorist when a crash happens there is a good chance ICBC represents both drivers.  When the faultless driver is injured and sues typically one adjuster is assigned to deal with his/her claim for ‘no-fault’ benefits under their own policy of insurance and that same adjuster is assigned to defend the tort claim (the claim for damages including pain and suffering) made against the offending driver.
This potential conflict of interest can create various problems.  One of which often comes up is the right of the ‘defendant’ (who is insured by ICBC) to obtain an independent medical exam in defence of the tort claim in circumstances where the ICBC adjuster already sent the Plaintiff to an independent medical exam in the process of reviewing the Plaintiff’s application for no-fault benefits.
Reasons for judgement were released today dealing with exactly such a problem.
Here the Plaintiff was allegedly injured in a 2005 motor vehicle collision.  He applied to ICBC for no-fault benefits under his own policy of insurance and also sued the other motorist in tort.  The other motorist was also insured with ICBC.  One adjuster was assigned to handle both claims.
That ICBC adjuster sent the plaintiff to be assessed with an orthopaedic surgeon.  That surgeon wrote a report .  The defence lawyer in the ICBC tort claim then applied to court for an order to send the Plaintiff to a different physician claiming that the first report was set up to review the Plaintiff’s claim for no-fault benefits and that the defendant was entitled to a report from a doctor of his own choosing to level the playing field.
Here, the court dismissed the Defendant’s application finding that when ICBC sent the Plaintiff to the first orthopaedic surgeon it may have been to assess the claim for no-fault benefits but the ICBC adjuster asked the doctor to comment on things that went beyond the scope of such an application.  The court concluded that the Defendant can ask the same doctor to comment on the Plaintiff’s condition if necessary but they were not entitled to a new doctor’s opinion in the circumstances.
The Court’s key analysis is found at paragraphs 13-15 which I reproduce below:

[13] It appears in the instant case that Ms. Dyrland was handling both the Part 7 and the tort claims arising out of the alleged accident.  Although she deposes that her intention was that the assessment by Dr. Bishop was for the purposes of the Part 7 claim only, her instructions to him suggest a wider scope.  In the case of Longva v. Phan, [2007] B.C.J. No. 1035, 2007 BCSC 690, Master Bolton considered instructions identical to those set out at paragraph 7 of these reasons.  He noted that, however specific or equivocal the adjuster’s requests might have been, a request for a “history” of the accident, recommendations concerning future treatments and surgery and, in particular, a request for comment on a contributory negligence (seat belt) issue, must be considered as solely referable to the plaintiff’s tort claim and not merely concerned with issues relating to a claim for disability benefits.  Thus, while the adjuster may have expressed her intention to limit the assessment to the Part 7 claim, the nature of her instructions suggests that she expected a report which would address not only the plaintiff’s current needs for treatment and rehabilitation but, as well, his prospects for recovery and other issues unrelated to the disability claim.  I have reached the same conclusion. The assessment prepared by Dr. Bishop on December 22, 2005 was a “first” examination. Having reached that conclusion, I must now consider whether the circumstances justify a “second” examination.

[14] A party seeking to have a second examination preformed by a practitioner practicing in the same speciality or discipline as a practitioner who has already examined a person faces an uphill battle: Hothi v Grewal, [1993] 45 B.C.L.R. (3d) 394 (SC); Hamada v. Semple, [1983] B.C.J. No. 1307 (SC). Successful applicants are those who are able to demonstrate that something has happened since the first examination which could not have been foreseen or which could not, for some other reasons, have been addressed by the first examiner.  It also seems to me that material filed in support of the application should indicate why a further examination by the doctor who performed the original assessment is not appropriate.

[15] In the circumstances of this case, there appears to be no good reason why Dr. Bishop could not be asked to comment on the relevance of the disk herniation noted in January 2006, and, if necessary, perform a further examination of the plaintiff.

The concern many Plaintiff’s ICBC injury claims lawyers have in cases where one ICBC adjuster is assigned to both the Plaintiff’s and Defenant’s claims is that of ‘report stacking’.  That is there is a concern amongst some ICBC injury lawyers that ICBC may use their position as insurer for both parties to get more ‘independent’ reports than a Defendant may otherwise be entitled to.  In deciding whether to consent to an application by a defendant insured with ICBC to a further examination it is important to review the factors discussed in this useful judgement.

ICBC Claims and Litigation Privilege

Written by admin on . Posted in Civil Procedure, Uncategorized. 56 Comments on ICBC Claims and Litigation Privilege

Reasons for judgement were released today by the BC Supreme Court ordering the production of certain documents that the defendants claimed were exempt from disclosure due to ‘litigation privilege.’
The Plaintiff suffered severe head injuries when struck as a pedestrian in 2006.   In the course of her lawsuit her lawyer served the defendants with a Demand for Discovery of Documents.  In exchanging their List of Documents the Defendants claimed ‘litigation privilege’ over some of the documents.  The Plaintiff brought motion to compel production of these documents and largely succeeded with the court holding that:
the defendants failed to provide sufficient information to enable the plaintiff to assess whether the defendants were correctly claiming litigation privilege over each of the documents found in P3 to P9 of their list of documents.
In reaching this conclusion Mr. Justice Blair provided a great overview of the legal principles relating to a claim of litigation privilege which I reproduce below:

[5]                Litigation privilege extends to those documents prepared for the dominant purpose of preparing for ongoing or reasonably anticipated litigation as discussed in Hamalainen (Committee of) v. Sippola, [1991] B.C.J. No. 3614; 2 W.W.R. 132; 9 B.C.A.C. 254; 62 B.C.L.R. (2d) 254.  Wood J.A. (as he then was) for the Court of Appeal stated at ¶18 that the two following factual findings required answering to determine whether litigation privilege applied to a document:

(a)        Was litigation in reasonable prospect at the time the document was produced, and

(b)        If so, what was the dominant purpose for the document’s production?

[6]                Wood J.A. held that the onus is on the party claiming privilege to establish on a balance of probabilities that both tests are met in connection each of the documents for which the party claimed litigation privilege.  With respect to the first factual finding, Wood J.A. wrote at ¶20 that

. . . litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all pertinent information including that peculiar to one party or the other, would conclude it is unlikely that the claim for loss will be resolved without it. The test is not one that will be particularly difficult to meet.

[7]                With respect to the second factual finding Wood J.A. wrote:

21.       A more difficult question to resolve is whether the dominant purpose of the author, or the person under whose direction each document was prepared, was “… [to use] it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation …”.

22.       When this Court adopted the dominant purpose test, it did so in response to a similar move by the House of Lords in Waugh v. British Railways Board, [1980] A.C. 521. In that case the majority opinion is to be found in the speech of Lord Wilberforce, who agreed “in substance” with the dissenting judgment of Lord Denning M.R. in the Court below. While the Court of Appeal judgments do not appear to have been reported, some excerpts from Lord Denning’s opinion are to be found in the speech of Lord Edmund-Davies, including the following at p.541 of the report:

If material comes into being for a dual purpose — one to find out the cause of the accident — the other to furnish information to the solicitor — it should be disclosed, because it is not then ‘wholly or mainly’ for litigation. On this basis all the reports and inquiries into accidents — which are made shortly after the accident — should be disclosed on discovery and made available in evidence at the trial.

23.       At the heart of the issue in the British Railways Board case was the fact that there was more than one identifiable purpose for the production of the report for which privilege was claimed. The result of the decision was to reject both the substantial purpose test previously adhered to by the English Court of Appeal and the sole purpose test which by then had been adopted by the majority of the Australian High Court in Grant v. Downs.

24.       Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

[8]                The dominant purpose test in the context of litigation privilege came before the Supreme Court of Canada in Blank v. Canada, 2006 SCC 39.  Fish J. for the majority noted at ¶60 that the dominant purposes standard was consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure.