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$90,000 Non-Pecuniary Damages Awarded for Torn Bicep Tendon; Video Surveillance Discussed

Written by admin on . Posted in ICBC Elbow Injury Cases, ICBC Privacy Issues, Uncategorized. 99 Comments on $90,000 Non-Pecuniary Damages Awarded for Torn Bicep Tendon; Video Surveillance Discussed

(photo depicting muscle deformity from ruptured distal bicep tendon)
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding damages for a rather unique injury, a ruptured bicep tendon.
In this week’s case (Taylor v. Grundholm) the Plaintiff was involved in motor vehicle collision.  His vehicle was struck by the Defendant’s as the Plaintiff “opened the driver’s side door to reach into the back to retrieve a box of soap….His left hand was holding the steering wheel and he was leaning into the back seat area when the collision occurred.”
The Plaintiff’s vehicle sustained significant damage and was written off.  Fault for the collision was admitted.
The Plaintiff sustained a variety of soft tissue injuries.  The Plaintiff also tore his bicep tendon which caused a muscle deformity.  The most contentious issue was whether the tendon was torn as a result of the collision.  Ultimately the Court concluded that it was and went on to assess the non-pecuniary loss for this injury at $90,000.  In reaching this decision Madam Justice Maisonville noted as follows:

[42]         I find the injury to Mr. Taylor’s biceps tendon and to his upper left quadrant did occur as a result of the accident. Nowhere in the medical records is there a note of this injury — now described by Dr. Leith as a “noticeable deformity” — prior to the accident. The evidence from the physicians was that there would have to have been a significant event to cause this type of injury.

[43]         The biceps tendons are attached to the bone, which anchors the muscle.  When flexed, the muscle will appear to be at about the middle of the upper arm. If an individual has sustained a biceps tendon tear near the elbow (distal), the muscle is no longer anchored and will bunch up proximally, appearing much like the cartoon character Popeye’s arm. This is a noticeable deformity…

49] Dr. Leith further testified that a distal biceps tear is almost never repaired unless it is acute because people with this injury usually have no problems with function; rather (as noted), they will have problems with strength.  Mr. Taylor is thus left with a lifelong cosmetic deformity in addition to the attendant loss of strength…

[60] There is no issue that the plaintiff has suffered a debilitating loss. He will no longer be able to look after his cabin and it will have to be sold. He will no longer be able to enjoy the activities that he enjoyed with his friends and family. Additionally, Mr. Taylor was nearing retirement. As Griffin J. noted in Fata v. Heinonen at para. 88:

The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality. When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life. Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age. The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.)…

[67] In all the circumstances, I award the plaintiff $90,000 in non-pecuniary damages..

The Court went on to reduce this award by 10% finding that the Plaintiff failed to mitigate his damages by not attending physiotherapy which was recommended by his treating physicians.

______________________________________________________________________________________________

  • Video Surveillance

This case is also worth reviewing for the Court’s discussion of the impact of video surveillance in injury litigation.

As I’ve previously posted, video surveillance can and does occur and it can be intrusive.  However, video surveillance in and of itself does not harm a person’s injury claim.  Damage is only done if the video demonstrates that the Plaintiff has not been truthful about their injuries / limitations.   In today’s case Madam Justice Maisonville was quick to dismiss the impact of video that did not contradict the Plaintiff’s evidence as can be seen from the following passage:

[50] Mr. Taylor had been placed under surveillance and videotaped by investigators retained by the defendant on certain days in March and April of 2010. I find he was not shown to be doing anything inconsistent with his statement that he sustained an injury and was in pain. At one point, he was shown seated in the driver’s seat of his vehicle and reaching to about ear level with his left arm to grab the seatbelt. It was not a movement where he had to twist his body in any way, significantly arch his back or lift his arm directly over his head. Similarly, he was shown removing his hat with his right hand and smoothing his hair down with his left. I do not find those motions to be inconsistent with his injury. He was not directed by his physicians to cease using his left arm. The fact that he did not show obvious signs of distress when doing these movements is not inconsistent with his injury. He was not observed to be lifting anything. Accordingly, I do not find the videotape surveillance inconsistent with the evidence of the plaintiff and his physicians.

What You Need to Know About ICBC's Use of Twitter

Written by admin on . Posted in ICBC Privacy Issues, Uncategorized.


If you are making an ICBC Personal Injury Claim and if you use social media such as Twitter ICBC is probably watching you.
You may be asking yourself ‘how can ICBC find my tweets if they’re not one of my followers?‘.  The answer is simple, ICBC monitors the phrase ‘ICBC’ and each time these letters are used the tweet comes to their attention whether they are one of your followers or not.  Want proof?  Here’s a recent exchange demonstrating this use in action.
An individual made an ICBC claim and posted the following on Twitter:

ICBC quickly responded to this individual as follows:

ICBC was not a follower of this indvidual and he was surprised that ICBC saw his tweet as can be seen from the following reply:

From a customer service standpoint this is probably good stratgy by ICBC.  If a customer is unhappy respond and see if you can help.  I have nothing critical to say about this.  However, from an injury claims perspective, people need to know that their social media use is being monitored perhaps by people they don’t want watching them.
I don’t write this post to scare you from using social media or even to discourage you from discussing your ICBC claim on-line.  You need to be aware, however, that your audience can be bigger then you expect.

More on ICBC Injury Claims and the "Implied Undertaking of Confidentiality"

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 132 Comments on More on ICBC Injury Claims and the "Implied Undertaking of Confidentiality"


As I’ve previously written, when a lawsuit for damages is brought in the BC Supreme Court, the parties are required to make disclosure of certain relevant documents even if such disclosure is harmful to their interests.
In order to strike a balance between fulsome disclosure and privacy rights, the Courts have developed a law known as the “implied undertaking of confidentiality” which prohibits a party who receives this forced disclosure from making use of the documents/information outside of the lawsuit without consent of the other parties or a court order.  Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, dealing with this area of the law.
In today’s case (ICBC v. Titanich) the Defendant was involved in a motor vehicle accident and apparently injured another party named Swan.  Swan sued the Defendant.  ICBC apparently held that the Defendant was in breach of his policy of insurance and defended the lawsuit as a ‘statutory third party‘.  ICBC obtained a Court Order for disclosure of the RCMP records relating to the accident and then settled the Plaintiff’s personal injury lawsuit for some $346,000.  ICBC then sued the Defendant to recover the $346,000 on the basis that they alleged he was in breach of his insurance.
ICBC apparently relied on some of the information obtained in the RCMP files to base their decision to pursue the Defendant for repayment of the $346,000.  The Defendant brought a motion to dismiss the lawsuit arguing that ICBC “breached its implied undertaking of confidentiality in relation to the documents it obtained from the RCMP“:.
The Court ultimately dismissed the motion holding that while ICBC did indeed breach their implied undertaking, no remedy was necessary since ICBC would be granted judicial permission to use the RCMP records in the current lawsuit had they brought a motion seeking such an order.  In reaching this conclusion Mr. Justice Barrow summarized and applied the law of the “implied undertaking” as follows:

[13]        In Juman v. Doucette, [2008] 1 S.C.R. 157, 2008 SCC 8, Binnie J. addressed the scope of the implied undertaking and its underlying rationale. At para. 4, he wrote:

[4]        Thus the rule is that both documentary and oral information obtained on discovery, including information thought by one of the parties to disclose some sort of criminal conduct, is subject to the implied undertaking. It is not to be used by the other parties except for the purpose of that litigation, unless and until the scope of the undertaking is varied by a court order or other judicial order or a situation of immediate and serious danger emerges.

[Emphasis in the original]

[14]        The rationale for the rule is, in part, to promote complete and candid oral and documentary discovery which, in turn, advances the orderly and effective administration of justice. It does that by providing the litigant making discovery with some confidence that the material produced will be used only for the purpose of securing justice in that proceeding.

[15]        Given this rationale, it is worthy of note that the discovery in issue in the matter at hand did not emanate from a party to the litigation. It does not consist of either oral or documentary discovery produced by Mr. Spinks. It is, rather, information gathered by the police in a process entirely independent of this litigation. I note this not because it necessarily follows that documents produced by third parties are not subject to the implied undertaking but rather because it is a factor that may be taken into account in determining whether a remedy ought to be granted…

[17]        The next issue is whether the plaintiff has used the discovery. The “use” that the plaintiff has made of the information is limited to listing those documents in a list of documents. That constitutes “use” within the meaning of the rule (Chonn v. DCFS Canada Corp. dba Mercedez-Benz Credit Canada, 2009 BCSC 1474 at paras. 47?52).

[18]        Assuming that the undertaking extends to documents produced by third parties to earlier litigation but relating to the conduct or affairs of a party to that litigation, I am satisfied that the plaintiff breached the implied undertaking.

[19]        In Juman, Binnie J. wrote this about the range of available remedies for breach of the implied undertaking:

[29]      Breach of the undertaking may be remedied by a variety of means including a stay or dismissal of the proceeding, or striking a defence, or, in the absence of a less drastic remedy, contempt proceedings for breach of the undertaking owed to the court…

Further, it may be that the breach can be remedied by precluding the party in breach from using the evidence in question. That was the remedy applied in Edgeworth Construction Ltd. v. Thurber Consultants Ltd., 2000 BCCA 453, 78 B.C.L.R. (3d) 200.

[20]        Another possible remedy, and the one sought in Chonn is removal of counsel of record for the party in breach…Voith J. concluded that the defendant was in breach of the implied undertaking but declined to grant a remedy. In doing so, he made four points. First, he noted that the documents were relevant. Second, he observed that had the defendant applied to obtain the court’s leave to make use of the documents, leave would have been granted. Third, he noted that although counsel ought to have made an application, his error was not, in all the circumstances, serious. Finally, and largely as a result of the above, there was no prejudice to the plaintiff. As a result, he ordered that the plaintiff produce the documents and that the defendants were at liberty to use them.

[21]        The same four observations apply in the case at bar. The documents are relevant. The outcome of an application to be relieved of the implied undertaking, had it been made, is predictable. Binnie J. commented on the manner in which a court’s discretion might be exercised when faced with such an application. At para. 35, he wrote:

[35]      The case law provides some guidance to the exercise of the court’s discretion. For example, where discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the examinee is virtually non-existent and leave will generally be granted…

The example posited is this case. Next counsel’s conduct in this case is, if anything, less serious than that in Chonn. As in Chonn, plaintiff’s counsel in the present case raised the issue of the implied undertaking in his first conversation with Mr. Titanich’s lawyer. In doing so, he noted that he was of the view that he required the consent of the plaintiff in the previous action before disclosing the documents. He did not suggest that he needed Mr. Titanich’s consent presumably because Mr. Titanich was not a party of record in the earlier action. Mr. Titanich’s counsel did not suggest otherwise. She simply asked that the documents be forwarded to her. The understanding that Mr. Spinks had from the conversation with Ms. Roy was that they would each list the documents and that all he needed to do was obtain the consent of the plaintiff in the previous action. He obtained that consent and listed the documents.

[22]        Although for the reasons indicated, I think Mr. Spinks was required to obtain the consent of Mr. Titanich, in concluding otherwise, he was not acting in a cavalier manner but was rather proceeding carefully and on the basis of an analysis that appeared to have been shared Mr. Titanich’s own lawyer.

[23]        In all of these circumstances, there is, in my judgment, no need for any remedy.

While ICBC was not penalized for breaching the implied undertaking this case serves as a reminder that lawyers must respect the limits the law imposes on the use of documents which come within their possession through the compelled disclosure of the BC Rules of Court.  Failing to heed these restrictions can result in severe consequences as outlined in today’s case including removal from the case, exclusion of evidence or even dismissal of a lawsuit or a defence

More on ICBC Injury Claims and Video Surveillance; "Golden Years" Doctrine Discussed

Written by admin on . Posted in ICBC Privacy Issues, ICBC Shoulder Injury Cases, Uncategorized. 48 Comments on More on ICBC Injury Claims and Video Surveillance; "Golden Years" Doctrine Discussed


As I’ve previously written, video surveillance in and of itself does not harm a persons ICBC claim, being caught in a lie does.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this fact.
In today’s case (Fata v. Heinonen) the Plaintiff was involved in a 2006 BC collision.  Fault was admitted.  The Plaintiff suffered several injuries including “an obvious impingement syndrome at the shoulder“.  The Defendant disputed the severity of the Plaintiff’s injuries at trial.  Instead of relying on independent medical evidence, the Defendant sought to harm the Plaintiff’s case by relying on video surveillance which was taken the year following the collision.
The surveillance showed the Plaintiff doing various activities such as grocery shopping and unloading and loading objects into his vehicle.  This video surveillance did not harm the Plaintiff’s claim.  Why?  Because it did not show anything that contradicted the Plaintiff’s evidence at trial.  In explaining why the surveillance did not harm the Plaintiff’s claim Madam Justice Griffin held as follows:

[45] The videotape surveillance was not inconsistent with Mr. Fata’s evidence or that of his physicians.  Mr. Fata’s evidence was that his physicians and physiotherapist had recommended that he continue to use his left arm and shoulder, and that he attempts to do so.  No one has suggested that he has no use of his left arm and shoulder.   Neither Mr. Fata nor the physicians, who gave expert opinions on his behalf, suggested any marked limitation in Mr. Fata’s range of motion.  His primary complaint is that he has pain when he uses his left arm and shoulder.  The videotape did not disprove this evidence, nor did it seriously cast doubt on it.  A videotape cannot capture all pain but may illustrate signs of severe pain, for example, if the person being watched grimaces on doing certain activities.  Mr. Fata was not displaying obvious signs of pain.  The videotape perhaps illustrates that whatever pain Mr. Fata might have with ordinary day-to-day activities is manageable.

[46] I have concluded from reviewing the videotape evidence carefully and considering Mr. Fata’s explanations of it, as well as from my review of the medical evidence and Mr. Fata’s evidence of his ongoing symptoms, that Mr. Fata does continue to suffer ongoing symptoms in his left arm and shoulder that were caused by the motor vehicle accident of November 13, 2006.  Given the passage of time, it is likely these symptoms will continue indefinitely.  These symptoms are not severe, as Mr. Fata still has use of his left arm and can do most activities.  However, the symptoms are such that Mr. Fata does suffer pain with the use of his left arm and particularly with excessive use or lifting his arm over his shoulder.  The pain restricts him from some of these types of activities he might otherwise do.

The Court went on to award the Plaintiff $45,000 in non-pecuniary damages for his soft tissue injuries and shoulder impingement.

This case is also worth also worth reviewing for the Court’s explanation of the “Golden Years” doctrine.

  • The “Golden Years Doctrine” Explained

In personal injury claims BC Courts recognize that no two cases are exactly alike and the assessment of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) depends on the unique facts of any given case.

One principle that is sometimes used in assessing non-pecuniary damages is the “Golden Years” doctrine.  This principle recognizes the fact that the retirement years are particularly special and an injury affecting a person in their golden years may warrant a greater award for non-pecuniary damages.  Madam Justice Griffin succinctly summarized this principle as follows:

[88] The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality.  When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life.  Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age.  The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.).

[89] In short, it is Mr. Fata’s loss of enjoyment of life in recreation, home chores, and work that should be compensated for in an award for non-pecuniary damages…

[91] On the facts of this case, where Mr. Fata has suffered a loss of some enjoyment of life in every aspect of his life, I conclude that an appropriate award for non-pecuniary damages is $45,000.

Privacy Rights – Personal Injury Claims and Your Computer Hard Drive

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 56 Comments on Privacy Rights – Personal Injury Claims and Your Computer Hard Drive


A developing area of law is electronic discovery.
In the personal injury context the BC Supreme Court Rules require relevant, non privileged documents to be disclosed to opposing counsel.  The definition of document includes “any information recorded or stored by any means of any device“.  So, if there is relevant information, be it printed, on a computer or even on a cell phone, discovery needs to be made in compliance with the Rules of Court.
In recent years electronic documents have been the subject of court applications and Insurance companies / Defendants have sometimes been successful in gaining access to a Plaintiff computer’s hard drive.  Reasons for judgement were released today by the Supreme Court of Canada discussing court orders for the seizure of computer hard drives.
Today’s case (R v. Morelli) dealt with a criminal law matter.  However the Canadian High Court’s reasons may be of some use in the personal injury context.
By way of background the Defendant was charged with a criminal code offence.  One of the reasons for the charges was evidence that was apparently obtained from the Defendant’s computer which was seized pursuant to a search warrant.
The Defendant was convicted at trial.  The Supreme Court of Canada, in a very close split decision (4-3) overturned the conviction on the basis that the search warrant never should have been ordered because there were no reasonable and probable grounds to issue it.
While this case strictly dealt with criminal search warrants and the necessary evidence to obtain one, the Canadian High Court made some very strong comments about the intrusive effects of computer searches and this reasoning very well may have persuasive value for Courts considering whether they should give insurance companies access to Plaintiffs computers.  Specifically the Supreme Court of Canada provided the following comments:

[1]   This case concerns the right of everyone in Canada, including the appellant, to be secure against unreasonable search and seizure.  And it relates, more particularly, to the search and seizure of personal computers.

[2]  It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer.

3]  First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you.  There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created.  The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet — generally by design, but sometimes by accident.

[4]  That is precisely the kind of search that was authorized in this case.  And it was authorized on the strength of an Information to Obtain a Search Warrant (“ITO”) that was carelessly drafted, materially misleading, and factually incomplete.  The ITO invoked an unsupported stereotype of an ill-defined “type of offender” and imputed that stereotype to the appellant.  In addition, it presented a distorted portrait of the appellant and of his surroundings and conduct in his own home at the relevant time…

[105] As I mentioned at the outset, it is difficult to imagine a more intrusive invasion of privacy than the search of one’s home and personal computer.  Computers often contain our most intimate correspondence.  They contain the details of our financial, medical, and personal situations.  They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet. ..

[111] The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause.  To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term.

When considering whether a Defendant should be allowed access to a Plaintiff’s computer in a personal injury lawsuit I should point out that the New BC Supreme Court Civil Rules will change the scope of documents that need to be disclosed.  Specifically, the test for what documents are discoverable will be altered.

Under the current system parties must disclose documents “relating to every matter in question in the action“.  Under the new rules this test has been changed to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“.

This new test is supposed to be narrower in scope than the current one.  Time will tell how this new test will change disclosure requirements in the prosecution of personal injury actions however, given the fact that this new test will be applied alongside principles of proportionality there very well may be narrower disclosure requirements in smaller personal injury claims and greater obligations in the prosecution of more serious claims.
I will continue to write about this area of British Columbia personal injury law as it develops in the coming months.

BC Injury Claims and Document Disclosure – Can a Court Order a Plaintiff to "Consent"?

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 51 Comments on BC Injury Claims and Document Disclosure – Can a Court Order a Plaintiff to "Consent"?

Important reasons for judgement came to my attention today dealing with discovery of documents in BC Injury Litigation.
The BC Supreme Court Rules require parties to give discovery of relevant documents in their possession or control.  Often times there are relevant documents that are not in the Plaintiff’s possession or control but the Plaintiff has the ability to easily get these documents.  (For example medical records documenting accident related injuries.)  Such records are commonly referred to as “Third Party Records”.
When a Defendant requests Third Party Records Plaintiff’s often consent, obtain the documents, and then exchange a copy of the relevant records.  When the parties don’t consent a Court Motion can be brought.
With this background in mind today’s case dealt with an important topic; when a motion for Third Party Records is brought can the Court order that the Plaintiff sign authorizations to allow the Defendant to get the records directly?  Mr. Justice Hinkson held that such a shortcut is not allowed under the Rules of Court.
In today’s case (Stead v. Brown) the Defendant “brought an application to require the plaintiff to execute consent forms for the production of the records of some ten doctors, three hospitals, two groups of physiotherapists, WorkSafeBC, the Ministry of Housing, and Service Canada“.
The Plaintiff opposed the application on the basis that the Court lacked the power to make such an order.  Mr. Justice Hinkson agreed and held that even if the requests were relevant a Court could not compel disclosure in this fashion, instead the Defendant would have to follow the procedure set out in Rule 26(11) of the BC Supreme Court Rules.
In reaching this conclusion Mr. Justice Hinkson was referred to the BC Court of Appeal decision Peel Financial Holdings Ltd. v. Western Delta Lands where the BC High Court held that “The Supreme Court judge cited no authority fo rhis power to compel a party to consent, and no authority for such a power was provided to us.  As I jhave said, a consent given pursuant to an order is a contradiciton in terms“.
Mr. Justice Hinkson went on to find that while there was another case (Lewis v. Frye) which held that a Supreme Court judge could compel a party to sign an authorization, that decision was wrong.  Specifically Mr. Justice Hinkson held as follows:
Regrettably the decision of the Court of Appeal in Peel Financial Holdings Ltd. was not considered which Hood J. and I am persuaded that the binding nature of that authority if considered would have altered the conclusion reached by him had the authority been brought to his attention.
I conclude that the plaintiff in this case cannot be ordered to execute authorizations for the release of records in the (hands) of third parties.  The mechanism that must be pursued in order to obtain the hospital and doctors’ records is pursuant to Rule 26(11) of the Rules of Court.
This decision is important because it clarifies the procedures that must be used when Defendants in Injury Lawsuits wish to obtain the records in the hands of Third Parties and the Plaintiff does not consent.  Time will tell whether the New Rules of Court which soon come into force will effect this reasoning.

Neck, Low Back and Knee Soft Tissue Injuries Discussed

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Knee Injury Cases, ICBC Privacy Issues, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry awarding a Plaintiff damages for injuries sustained in two BC motor vehicle collisions.
In today’s case (MacIntyre v. Pitt Meadows Secondary School) the Plaintiff was involved in a total of three seperate accidents and sued.  All three trials were heard together.  His claim for the first accident (a claim against his school for being injured while in shop class) was dismissed.  This left the court to deal with the Plaintiff’s motor vehicle accident claims.
The first motor vehicle collision happened in 2003.  The Plaintiff was 15 at the time.  He was struck by a vehicle at low speed on his right leg while he was walking in a crosswalk.  The issue of fault was admitted.  The Plaintiff suffered a knee injury and eventually had arthroscopic surgery.  Mr. Justice Butler awarded the Plaintiff $35,000 for his non-pecuniary damages as a result of this injury.  In arriving at this figure the Court highlighted the following facts:
86] There is no question that Evan’s right knee suffered a significant blow in the Second Accident.  He suffered discomfort and a restriction in his activities.  In the first three weeks after the Second Accident, Evan missed six full days of school.  He found it difficult to crouch or kneel and felt that the knee was unstable.  He was not able to carry out his part-time job as a football referee.  He used crutches for a month or two and then used a cane.  He found it difficult to use the crutches because this caused additional pain in his right wrist.  His parents rented a wheelchair for him to use at home.  He was unable to take part in part-time work over the Christmas holidays…

[100] There is no controversy between the expert orthopaedic surgeons regarding the nature of the injury and the current condition of Evan’s right knee.  The structural injury was mild.  If there was damage to the ACL, it was not significant and healed quickly.  As of the date of the arthroscopic investigation, the knee compartment exhibited no abnormalities as a result of the injury.  All of the doctors accept that there was a severe strain to the right knee.  The impact of the injury was likely worse than it would have been for most people because of the pre-existing laxity in Evan’s knee joint.

[101] The experts also agree that Evan should have been symptom free sometime after June 2006.  However, as Dr. McCormack notes, there is a small subset of individuals who continue to experience residual symptoms.  The question that remains is whether Evan falls within that small subset.  If I can accept Evan’s subjective complaints of continuing pain and limitation of movement, I can conclude that he falls within that small subset in that his condition has reached a plateau.  This question raises the issue of Evan’s credibility….

I have concluded that I cannot accept his evidence regarding the continuing symptoms that he says he has experienced and is currently experiencing as a result of the three accidents.  There are simply too many inconsistencies in his case to accept his assertions at face value…

[105] In summary, I find that Evan suffered a severe strain to his right knee as a result of the Second Accident.  There is no lasting damage to his knee compartment or the knee structure. There is no possibility of future problems with the knee as a result of the Second Accident.  I also find that Evan’s knee symptoms persisted longer than they would have normally because of the laxity in his knee joints.  I accept Dr. McCormack’s evidence that normally after a couple of months of therapy following arthroscopy patients are able to return to their pre-injury status.  In the circumstances of this case, I conclude that Evan’s knee functioned well within three or four months after the arthroscopy, although some activities continued to cause him pain or discomfort.  Specifically, I find that the symptoms persisted for four or five years…

[111] Taking into account the incapacity Evan suffered after the initial injury and after the surgery, the aggravated injury to his right wrist, and the persistence of the symptoms for four to five years, I fix non-pecuniary damages at $35,000.

The second accident was a rear-end car crash.  Fault was admitted.   The Court had some problems with the Plaintiff’s credibility but ultimately did find that the crash caused a compensable injury.  In assessing the Plaintiff’s non-pecuniary damages at $22,500 for this crash Mister Justice Butler found as follows:

[132] On the basis of all of the evidence, I conclude that the Third Accident resulted in a soft tissue injury to the cervical and lumbar regions of Evan’s spine.  In general, I accept Dr. Hill’s opinion evidence regarding the nature and extent of the injury Evan suffered.  While I do not accept Evan’s complaints of ongoing pain, I find that his symptoms persisted somewhat longer than predicted by Dr. Hill.  Given the level of physical activity Evan was able to maintain in the years following the accident, I conclude that the impairment to his work and leisure activities was not significant.  By the date of the trial, approximately two years after the Third Accident, the injuries were substantially healed…

[135] Given my findings, the cases referred to by the plaintiff are of little assistance.  In light of my finding that Evan’s symptoms persisted for two years, the only case referred to by the defendants that has some similarity to the present case is Levasseur.  Of course, in addition to the soft tissue injuries, Evan also suffered from disruption to his vision, which resulted in the strabismus operation.  In all of the circumstances of this case, I assess non-pecuniary damages at $22,500.

In addition to the Court’s discussion of pain and suffering awards this decision is worth reviewing for the extensive reasons given with respect to credibility.  In a tort claim involving soft tissue injuries Plaintiff credibility plays a key role.  Here the Court made some unfavourable findings with respect to some of the Plaintiff’s evidence.   Some of the evidence that influenced the Court’s findings were “facebook photographs…(showing the Plaintiff) performing many other activities without apparent difficulty.” and video showing the Plaintiff “winning the limbo contest with an impressive limbo move“.  This case is worth a read to see the damaging impact photographic / video evidence can in BC injury litigation.

More on BC Injury Claims and Discovery – Balancing Document Disclosure with Privacy

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 101 Comments on More on BC Injury Claims and Discovery – Balancing Document Disclosure with Privacy


As I’ve previously written, when a person sues for damages in the BC Supreme Court they give up certain privacy rights with respect to records (both theirs and those in the hands of third parties) to the extent necessary to ensure that relevant unprivileged documents are disclosed to have a fair trial.
In the context of personal injury litigation documents in the hands of third parties are often requested.  For example, where a Plaintiff is injured the Defendant often wishes to obtain the clinical records documenting the injuries.  Where a serious injury claim is made seeking damages for past and future wage loss often time employment records, tax records and pre-accident medical records demonstrating pre-existing disabilities are sought.
Once it’s determined that these ‘third party’ records are relevant how are they to be produced?  Often times if the records are clearly relevant the Plaintiff lawyer will obtain them and share a copy with the defence lawyer.  In cases where the parties can’t consent the party seeking the records can bring a court motion for production.
The BC Supreme Court has come up with two typical routes of disclosure; the “Jones” order and the “Halliday” order.  At the risk of over-simplification, a Jones order means ordering that the third party produce records relating to the Plaintiff directly to to the Defendant and a Halliday order means producing the records directly to the Plaintiff who then can vet clearly irrelevant entries before providing the defence lawyer with a copy.
With this introduction out of the way, reasons for judgement were released today by the BC Supreme Court providing perhaps the most thorough analysis of when each format should be used and what is required to trigger the protection of the “Halliday” format.
In today’s case (Gorse v. Straker) both parties sought various third party records relating to the litigants.  In considering the applications Mr. Justice Macaulay provided the following detailed and useful overview of this area of the law:

[6]             My general conclusions are as follows. It is necessary to start with a review of the pleadings to determine the matters in issue. Some applications fail at this preliminary point because it is obvious from the specific nature of the documents sought that the party seeking production is engaged in a fishing expedition. There is, at law, no obligation on any third party to produce irrelevant documents. See Dufault.

[7]             Assuming the application survives the initial review for relevancy, the court must then consider the evidence that the parties rely on. It is, at this point, that some of the potential inconsistency appears in the chambers decisions. I discuss some of the cases below and list others that I have reviewed.

[8]             In short, I conclude that a Halliday order is not a default order for medical or other records in which the subject of the record has an obvious privacy interest. The court should grant a Halliday order if satisfied, on the evidence, that there is a likelihood that a Jones order will also result in the inappropriate production and disclosure of irrelevant or privileged documents.

[9]             The problem that frequently presents is that one party seeks access to records of a non-party respecting the other party that are of a type in which it is reasonable to expect that some will be relevant and others irrelevant. A similar problem often arises respecting litigation privilege. It is often reasonable to assume that counsel for the party, who is the subject of the records, will have communicated with the non-party concerning the litigation. Such communications, if in existence, are likely subject to litigation privilege. It is arguable that, inHalliday, Lambert J.A. anticipated that the mechanism he described would operate in all such cases without requiring an evidentiary base. As I set out later, I do not accept that contention.

[10]         The threshold for making a Halliday rather than a Jones order is low. Nonetheless, some admissible evidence is necessary to meet it.

[11]         This leads to another issue that has attracted attention in the case law: whether the party who alleges an adverse impact on his or her privacy interest arising from the production of irrelevant, private information must personally provide evidence. After all, the affected party is ordinarily in the best position to explain how his or her privacy interest would be adversely impacted.

[12]         In my view, the party alleging the adverse impact should ordinarily swear an affidavit setting out, at least in general terms, the nature of the privacy interest but that is not an absolute requirement so long as there is other admissible evidence on the point. These are not final orders so affidavits sworn on information and belief are admissible.

[13]         Keeping in mind that the evidentiary threshold is relatively low, the evidence does not necessarily need to disclose all the details of the privacy interest but must be sufficient to reasonably identify the nature of the interest and why it appears to be unrelated to any material issue in the litigation…

[24]         When a Halliday order is made, so long as counsel fulfills his or her obligations, there is, apart from the minimal delay associated with the two-step process, no prejudice to the opposing party’s discovery rights. If the opposing party feels that relevant information may not have been disclosed, he or she can still apply to the court to make a determination, as with other disclosure concerns. Further, as suggested in Halliday, at 200, any abuse of the order by overextending claims of privilege or unduly restricting relevance can be dealt with in a costs order.

[25]         In my view, privacy considerations add to the justification for making Halliday orders for the production of medical and some other types of records. The reasoning in this regard may be followed through various decisions since Halliday, up to and including the Supreme Court decision in Keller v. Poulin (16 September 2009), Nanaimo S41497 (S.C.)…

[37]         In the result, I am satisfied that, when the record sought is likely to contain not only relevant, producible information but also irrelevant, private information, the order for production should be in Halliday format. This is very often the case with medical records and may also be applicable to MSP, disability, workers’ compensation, employment or educational records.

[38]         When the records at issue relate to medical or psychological assessment or treatment of the plaintiff after a motor vehicle accident, they may well include relevant, producible documents; irrelevant, private, non-producible documents; and documents properly subject to litigation privilege. Counsel for the plaintiff should take care to present evidence to demonstrate that there is, in fact, some irrelevant, private information or documents, properly subject to litigation privilege. It is not enough to identify the mere possibility because the court cannot properly draw an inference from a possibility.

[39]         It follows that I accept the contention of counsel for the defendants that the decision whether to make an order in Halliday format must be evidence based. In his written submissions, counsel asserts, relying on the Supreme Court decision in Grewal at para. 17, that:

A bare assertion of privacy or confidentiality over the records to be produced in the absence of any evidence regarding irrelevant or privileged information does not meet the requisite threshold for a Halliday type order.

The passage in Grewal summarizes authority for the proposition that a bare assertion of privacy or confidentiality, “in the absence of any evidence regarding irrelevant or privileged information,” is an insufficient basis for a Halliday order. In the same paragraph, the judge also referred to authority that an “expression of mere concern” that the records might contain irrelevant or privileged information is not sufficient.

[40]         I agree with those statements. It is not enough for a party or, as is often the case, a paralegal assisting the party’s lawyer to swear an affidavit raising a mere possibility of privileged or irrelevant, private information. In reaching this conclusion, I also considered and followed the reasoning in the following chambers decisions: Wieler v. Bercier, 2004 BCSC 752; Sullivan v. Lockhart, 2002 BCSC 1891; Bhandari v. Waddington, 2003 BCSC 498, 13 B.C.L.R. (4th) 373; and finally, Ross (Committee of) v. Lai, 2002 BCSC 1864.

[41]         The evidentiary burden is not an onerous one. The evidence necessary to support a conclusion that the particular records sought are irrelevant will vary according to the content of the pleadings and the nature of the record. In some cases, it may be possible to conclude, on an analysis of the pleadings, that they are irrelevant and, accordingly, not required to be produced at all. When it is apparent that some, but not necessarily all, of the records should be produced, there must be some evidence respecting the content of the records said to require the review by counsel contemplated by a Halliday order.

[42]         When the documents at issue are said to be private and irrelevant, it is usually the party who provides the evidence. For example, in Grewal, the plaintiff deposed that the consultation with her gynaecologist related to the delivery of her two children and that, in her view, the records were not relevant to the claims that she had advanced. If the question relates to litigation privilege, an appropriate agent or employee of the party’s lawyer should swear to the fact of the communications said to give rise to the privilege without disclosing actual content…

[88] I return to my suggestion that counsel should, wherever possible, work through the questions of non-party document production in a manner that recognizes and balances the often competing interests. The present applications would likely have been unnecessary if counsel had done that. In the circumstances, neither succeeded in their primary positions in any meaningful fashion. Both sides will bear their own costs as a result.


Defence Medical Exams – BCSC More Than Just A "Rubber Stamp"

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, independent medical exams, Uncategorized. 56 Comments on Defence Medical Exams – BCSC More Than Just A "Rubber Stamp"


As readers of this blog know when people sue for damages in the BC Supreme Court as a result of an Injury Claim they give up certain privacy rights.  Documents need to be disclosed to opposing counsel, examinations for discovery can be compelled, even ‘independent‘ medical exams can be ordered.
In the course of an Injury Claim Rule 30 of the BC Supreme Court Rules permits a Court to order that a Plaintiff undergo a Defence Medical Exam(DME) in order to “level the playing field“.   It is generally accepted that at least one DME will be ordered by the Court if requested in a typical personal injury claim.  Such an order, however, is not an automatic right and reasons for judgement were released today demonstrating this.
In today’s case (Chapman v. Magee) the Plaintiff was injured in “a reasonably nasty motor vehicle accident involving…a car and a motorcycle“.  The Injuries included a flailed chest and a broken ankle.
The Defence lawyer asked that the Plaintiff attend a defence medical exam with a respirologist and an orthopaedic surgeon.   The Plaintiff’s lawyer did not consent and a court motion was brought to compel attendance.  Master Caldwell dismissed the application finding that the materials in support were “significantly wanting“.    The Court noted that while the evidentiary burden on these applications is not high the Court is not a ‘rubber stamp‘ and some evidence needs to be tendered.  Specifically Master Caldwell stated:

There is nothing in the material where counsel opines as to the need for these reports or these examinations to be done, which, as I see the case authority, and in particular, Astels, para. 23, where the court says:

In addition to the paralegal’s affidavit, there was also in evidence a letter from counsel for the defendants to counsel for the plaintiff concerning the proposed medical examination in which counsel for the defendant said:

You will be asking the court to retrospectively decide whether or not the plaintiff was totally disabled the date the action was commenced.  Clearly medical opinion in that regard is relevant.

[5] He is opining there as counsel as to the importance and purpose of the Rule 30 examinations.  In my view, that sets out a bare minimum, and I do not want to be overly technical because it may or may not be efficient to go on that basis, but in my view there is not a scintilla of evidence here from counsel or otherwise as to the use that this information would be put to.  I can certainly speculate and it would appear from the pleadings that I could speculate as to what use it might be made, but far and away from what the minimum level is, it would be nice on these applications to have letters or some kind of material from a doctor opining as to why they need to see the person.  That certainly goes beyond what would be needed, but in my view, Astels puts down a bare minimum.

[6] And as I say, I may be being overly technical, but I do not think so.  These are not rubber-stamp applications and they cannot become rubber-stamp applications.  There must be some substance relating to what this information is going to be used for and what the focus is going to be.  And, frankly, having gone over the lunch hour and again read the letters, I can find no such supporting evidence in the material filed by the defendant.

[7] On that basis, this application for today by the defendants is dismissed.  It is dismissed without prejudice to their right to re-bring the application on proper material because I think there may be something out there and I think Rule 1(5) does say “on the merits” and it should not be just simply a technical slam-dunk there.  But the application on the basis of the material before me has to be dismissed in my respectful view.  It has to be dismissed on the basis that costs will be to the plaintiff in any event of the cause on this because the material brought by the defence simply is not adequate.  The issue of costs in subsequent application, should the defence seek to bring such an application, can be dealt with by the court that hears that application.

As with all civil procedure cases I will cross reference this with the New BC Supreme Court Civil Rules.  Rule 30 is replaced with Rule 7-6 and the wording is almost identical under the new rules making precedents such as this one useful under the soon to be in place new system.

Leave For Appeal Denied in Computer Hard-drive Disclosure Case

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 61 Comments on Leave For Appeal Denied in Computer Hard-drive Disclosure Case


In April of this year the BC Supreme Court ordered that a Plaintiff involved in a Brain Injury Claim from a BC Car Crash “produce for inspection by an independent expert a duplicate copy of his computer hard-drive and that the expert prepare a report identifying the number, nature, and time for all files relating to the use of the plaintiff’s Facebook account between the hours of 11:00 p.m. and 5:00 a.m., dating from July 23, 2005 to the present.” (Click here to read my post summarizing the trial decision).
The Defendant in this case sought greater disclosure including “production of information (from the Plaintiff’s computer hard drive) regarding the number, nature and time of the information files that related to the Plaintiff’s Hotmail account and all other computer activity occurring between the hours of 11:00 pm and 5:00 am.”  This application was dismissed by the Chambers Judge.
The Defendant asked the BC Court of Appeal permission to appeal this order arguing that such information would have been relevant in assessing the Plaintiff’s brain injury claim and that the Judge failed to turn his mind to the application properly.
The Court of Appeal refused to hear the appeal holding that the sought order was not supported by the evidence, specifically the Court of Appeal held as follows:

[22] At the plaintiff’s examination for discovery, he testified that he communicated with a friend on Facebook at night.  He also testified that he does have a Hotmail account but he had not “checked it forever”.  His mother testified that if anyone used the computer after 11:00 p.m. on weekdays, it would be the plaintiff (as opposed to other family members), and that he would probably be on the computer most nights.

[23] In the psychiatric assessment dated March 10, 2008, the plaintiff had apparently reported to his psychiatrist as follows:

[H]is sleep varies with the time one of his friends goes to bed.  This is because he spends a lot of time on Facebook chatting with this friend.

[24] I conclude that this appeal is prima facie without merit.  It is true that the chambers judge did not explain his reasons for dismissing that part of the application that is the subject of the appeal, but having reviewed the evidence that was before the chamber judge, it does not appear to me there was an evidentiary foundation for the request for the electronic records of his computer usage beyond Facebook.  Any other usage, such as was suggested in the argument before me (that the plaintiff may be using gaming websites or other such websites late into the night), appears to be somewhat speculative.

[25] I dismiss the application for leave to appeal.

You can read the full judgement by clicking here (Bishop v. Minichiello)

Unfortunately the Court of Appeal did not highlight any factors which will be of use in considering when applications for computer hard drives will be meritorious in personal injury claims.  With more and more information being stored on computers these days, however, such applications will become more frequent and it will only be a matter of time before the Court of Appeal has a chance to weigh in on this important issue.