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Can British Columbia Residents Sue in BC If They Are Injured Out of Province?

Written by admin on . Posted in Civil Procedure, Tort Reform, Uncategorized. 53 Comments on Can British Columbia Residents Sue in BC If They Are Injured Out of Province?


(The decision discussed below was upheld by the BC Court of Appeal in 2011, you can find the BCCA judgement here)
British Columbia remains the least ‘tort-reformed” Province in Canada and as a result we can be proud that in most instances BC offers fair adjudication of claims for those injured at the hands of others.  Many other Canadian jurisdictions offer fewer protections with compensation restrictions such as ‘no-fault‘ laws or ‘soft-tissue injury caps‘ on damages.
If a British Columbia resident is injured in another Province can they sue in BC to be compensated for their injuries?  Reasons for judgement were released today considering this issue.
In today’s case (Dembroski v. Rhainds) the Plaintiff was involved in a car crash in Alberta in 2007.  The Plaintiff was a British Columbia resident and was in Alberta for a short while to do some work as a farrier.    The Plaintiff was injured and unable to perform her work.  She returned to BC shortly after the car crash.  She had the majority of her treatments in BC.
The Plaintiff eventually sued the alleged at fault motorist for compensation in British Columbia.  The Defendant brought a motion to dismiss the claim arguing that BC Courts lack jurisdiction to preside overthis case.
Mr. Justice Truscott agreed with the defendants and dismissed the lawsuit.  In doing so he made the following points regarding BC Courts’ jurisdiction to preside over a lawsuit arising from an out of Province motor vehicle accident:

11] The court’s jurisdiction is governed by the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (CJPTA), which gives the court territorial jurisdiction in particular circumstances.

[12] From the facts here, the only circumstance set out in the legislation that might give the court jurisdiction is the provision in s. 3(e) that “there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.”…

[19] Defence counsel cites a number of court decisions in British Columbia that have denied jurisdiction on what are alleged to be similar circumstances, including: Canadian International Marketing Distributing Ltd. v. Nitsuko Ltd. (1990), 56 B.C.L.R. (2d) 130 (C.A.); Aubichon (Guardian ad litem of) v. Kazakoff, [1998] B.C.J. No. 3058 (S.C.); Jordan v. Schatz, 2000 BCCA 409; Sequin-Chand v. McAllister, [1992] B.C.J. No. 237 (S.C.); Williams v. TST Porter (c.o.b. 6422217 Canada Inc.), 2008 BCSC 1315; and Roed v. Scheffler, 2009 BCSC 731.

[20] All of these cases concluded that where a British Columbia resident plaintiff is injured in a foreign jurisdiction and then returns to British Columbia for treatment of injuries, there exists no real and substantial connection with British Columbia to give the courts of British Columbia jurisdiction because the only connection to this province is the fact that the plaintiff is a resident here at the time of the claim.

[21] In Jordan v. Schatz, Mr. Justice Cumming, writing the decision for the Court, said at para. 23:

What constitutes a “real and substantial connection” has not been fully defined. However, it has been well established by this Court in Nitsuko, supra, and in Ell, supra, that there is no real and substantial connection to British Columbia based on the bare residency of the Plaintiff in the jurisdiction. There must be some other or further sufficient connecting factor or “contacts” to this province. Clear examples of connecting factors include the residency of the defendant in the jurisdiction or the fact that the tortious act was committed or damages suffered here.

…

36] I can see no exception that would be applicable in this case to allow me to depart from the decisions in those cases that have denied jurisdiction to the court when the plaintiff’s only connection to the jurisdiction is the fact she continues to suffer from her injuries while she resides here. To accept jurisdiction here would be to accept jurisdiction for a plaintiff who moves to the jurisdiction after an accident in another province and continues to suffer from injuries here. That cannot be.

[37] There is no real and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based. There may be a real and substantial connection between British Columbia and the plaintiff, but that does not satisfy the words of s. 3.

[38] The action is dismissed for want of jurisdiction. The defendants will have their costs.

BC Court of Appeal Reverses UBC Parking Fine Class Action Lawsuit

Written by admin on . Posted in Tort Reform, Uncategorized. 80 Comments on BC Court of Appeal Reverses UBC Parking Fine Class Action Lawsuit


In 2009 Mr. Justice Goepel of the BC Supreme Court held that the University of British Columbia did not have the legal authority to issue and collect parking fines over the years and awarded judgement in favour of a class action lawsuit seeking to have the money repaid by UBC.
UBC appealed this decision.  Before the BC Court of Appeal had a chance to review the matter the BC Government passed a retroactive law which in essence stated that UBC had the power to issue the fines.    (Click here for some background information on this).
With the retroactive law on the books the matter then proceeded to BC’s highest Court and they were asked to determine if this law was valid and if so what effect it would have on the class action.   In reasons for judgement released today the BC Court of Appeal held that this law was valid and as a result the trial judgement was set aside.
The highlights of the Court’s reasons were as follows (for the sake of easy reading and at the risk of oversimplification ‘intra vires’ means something UBC had the power to do and ‘ultra vires’ means something that UBC did not have the power to do):
[26] Thus, on the general issue of interpretation, we conclude the Miscellaneous Statutes Amendment Act, 2009 applies to the circumstances before the court. This Act makes intra vires that which was conceded to be ultra vires at trial. Further because the foundation for the order declaring the class members entitled to restitution has been replaced, and because s. 16(2)(c) prohibits restitution of the fines or penalties referred to in the Supreme Court of British Columbia order, the declaration of entitlement to restitution cannot stand in light of the new legislation…

[32] We consider it is clear in Canada that the Legislature may enact legislation that has the effect of retroactively altering the law applicable to a dispute. While a Legislature may not interfere with the Court’s adjudicative role, it may amend the law which the court is required to apply in its adjudication. The difference between amending the law and interfering with the adjudicative function is fundamental to the proper roles of the legislature and courts in our parliamentary democracy.

[33] It follows we see no reason to “read down” the amending and transitional provisions to accommodate the concept of judicial independence…

39] The appeal is allowed and the order of the judge is set aside, to be replaced with a declaration answering common issue 1 in the negative, the Parking Regulations are intra vires the University. Given the answer to that question, there is no need to answer questions 2 and 3 (dealing with the rights in contract and proprietary rights of the University), or the other questions that depended upon a positive answer to question 1.

A Positive Tort Reform in the Works? Nova Scotia and the Minor Injury Cap

Written by admin on . Posted in Tort Reform, Uncategorized. 46 Comments on A Positive Tort Reform in the Works? Nova Scotia and the Minor Injury Cap


Tort reform generally refers to limiting the rights of those injured through the carelessness of others to the beneift of insurance company profits.  To this end Alberta and Nova Scotia enacted laws over the last several years artificially capping the compensation certain injured people can claim for non-pecuniniary damages (money for pain and suffering and loss of enjoyment of life).
These laws have been the subject of various court challenges and in 2009 the Alberta Court of Appeal found that Province’s Soft Tissue Injury Cap was constitutional and around the same time Nova Scotia’s Court of Appeal concluded that their ‘minor injury claims’ cap was also valid.
It’s against this background that I read a surprisingly refreshing headline today at The Lawyers Weekly.   The Nova Scotia government is considering abolishing their “minor injury cap” which limits non-pecuniary damages in that Province for certain injuries to $2,500.    One of the problems with the law is that many serious injuries such as broken bones and chronic soft tissue injuries could be considred ‘minor’ given the wording of the law.
The Lawyers Weekly reports that the Premier of Nova Scotia claims that the cap ‘is preventing people who have been seriously injured from pursuing compensation and will not survive in its present form‘.  I could not have summarized the unfairness of these laws better than the Premier himself did when he stated that “Insurance is a product designed to protect people.  If you exclude people from protection…then by definition you’re not delivering the product that has been paid for“.
Nova Scotia is apparently seeking public input on the best way to revise this 6 year old law.  The insurers who proffited under this law will likely rally against this change.  For this reason those interested in seeing this law overturned and having the rights of those injured throught he fault of others restored should make sure their voices are heard.  You can voice your support for this positive change by contacting the Government at the following address:
The Office of the Superintendent of Insurance
PO Box 2271
4th Floor
Provincial Finance Building
1723 Hollis Street
Halifax, NS B3J 3C8
You can click here to read the full story at The Lawyers Weekly.

Charles Adler Radio Interview on Frivolous Lawsuits in Canada

Written by admin on . Posted in BC Injury Claims Media Archives, Tort Reform, Uncategorized. 53 Comments on Charles Adler Radio Interview on Frivolous Lawsuits in Canada


Today I was interviewed by Charles Adler of Corus Radio on the topic of frivolous lawsuits.
The interview aired nationally.  You can click on the following link ( adler-and-erik-audio-clip ) to listen to my portion of the interview.
I’d like to credit CJOB 68 Winnipeg / Corus Radio Network for providing me with a copy of the clip.

ICBC Uninsured Motorist Claims and the Health Care Costs Recovery Act

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

Further to my previous posts on the Health Care Costs Recovery Act, I recently had the opportunity to scrutinize the Act’s application to Uninsured Motorist Claims under Section 20 of the BC Insurance (Vehicle) Act.  It was a a bit of a lengthy exercise so I thought I would share my findings for the benefit of anyone else researching this topic.
A representative of the Government familiar with the HCCRA told me that the BC Government’s initial position when the HCCRA came into force was that it applied to BC Car Crash cases where the Defendant is uninsured and in cases where the Defendant is in breach of their insurance.  In my recent experience suing Defendants who were in breach of their insurance the Government required notice about the claim but did not require recovery of health care costs.  (Please note I am not speaking on behalf of the BC Government here, I am simply highlighting my past experiences with this act, so if you are prosecuting such a claim please satisfy yourself whether or not the Act applies).
Where a Defendant is Uninsured at the time of the crash (as opposed to in breach of their insurance) the HCCRA appears to apply at first glance.
Section 24 of the Health Care Costs Recovery Act holds in part that:

(1) Subject to this section, this Act applies in relation to any personal injury suffered by a beneficiary, whether before or after this subsection comes into force….

(3) This Act does not apply in relation to health care services that are provided or are to be provided to a beneficiary in relation to

(a) personal injury or death arising out of a wrongdoer’s use or operation of a motor vehicle if the wrongdoer has, when the injury is caused, coverage under the plan, as those terms are defined in the Insurance (Vehicle) Act,

So on strict reading the HCCRA appears to apply to BC Car Crash Cases where a Defendant motorist is uninsured because in these circumstances the “wrongdoer” does not have “coverage under the plan“.  If a Plaintiff sues a Defendant in these circumstances the Government’s claim arguably should be advanced.  Practically speaking, however, Plaintiff’s rarely recover anything from Uninsured Defendants and instead take advantage of the Benefit available under section 20 of the Insurance (Vehicle) Act.

Specifically, Section 20 of the Insurance (Vehicle) Act permits people injured by Uninsured Motorists in BC to apply to ICBC for ‘payment of damages to which he or she claims to be entitled to’.
If you dig a little deeper ICBC appears to be under no obligation to pay HCCRA damages in a settlement or judgement in Section 20 Claims because of the Deductions set out in section 106 of the Insurance (Vehicle) Regulation which holds that “No amount shall be paid by (ICBC) under section 20…of the Act in respect of that part of a claim that is paid or payable as an insured claim“.
For the purpose of s. 106 of the Insurance (Vehicle) Regulation “insured claim” means “any benefit, compensation similar to benefits, right to indemnity or claim to indemnity accruing to a person entitled to benefits, compensation or indemnity...”
It is hard to imagine a successful argument holding that the right to Government Paid Health Care under MSP is not a ‘benefit‘ as used in the above definition of ‘insured claim‘.  So, in summary, while the Health Care Costs Recovery Act appears to be triggered in tort claims against Uninsured Motorists, ICBC appears to not have to pay any portion of such a claim when a Plaintiff applies for benefits to ICBC under s. 20 of the Insurance (Vehicle) Act because of the deduction they are entitled to under s. 106 of the Insurance (Vehicle) Regulation.  Clear as mud folks?

Does Your Injury Claims Lawyer Also Act for ICBC?

Written by admin on . Posted in Tort Reform, Uncategorized. 103 Comments on Does Your Injury Claims Lawyer Also Act for ICBC?

I’ve written about this topic before and below I reproduce my previous post on Injury Lawyers working both sides of the fence.  I’m doing this because  I have been approached by a number of people who recently found out that their lawyer also acts on ICBC’s behalf in other Injury Claims.  These individuals apparently were not told this when they first retained their lawyers and their displeasure in learning this after the fact is understandable.
Before reproducing my previous post, however, I’d like to share my usual advice when people are confronted with this situation.  If you hired a capable lawyer who is doing a good job for you try to work things out.  The reason being is that if you hire a second lawyer you will have to pay a second lawyer.  If the lawyer’s failure to disclose this potential conflict of interest is a deal breaker then so be it, however, if it isn’t and the lawyer is doing an otherwise decent job save yourself the extra legal fees that come with hiring a new lawyer.  While I certainly don’t condone this lack of candor (and in case you’re wondering, No I don’t act for ICBC) it is important to keep focused on the big picture which is whether your lawyer is doing a good job.
With that out of the way, here is my previous post on this issue:
You’ve been injured in an accident. You don’t feel comfortable with how things have progressed with ICBC in your settlement negotiations so you decide to hire a lawyer. You find a qualified ICBC claims lawyer and off you go. You assume, reasonably so, that the lawyer is acting for you and not ICBC, right? Not always…

Lawyers typically have many clients. Many ICBC claims lawyers work both sides of the fence, that is, they represent injured people in advancing ICBC claims on some files and on other files they represent ICBC in defending against ICBC injury claims. Other lawyers restrict their practice to one side or the other.
Many people see lawyers working both sides of the fence as an inherent conflict of interest. They want their lawyer to represent injured people only, not insurance companies. Others like the idea that their lawyer also represents ICBC sometimes because perhaps such a lawyer has better insight into the defence tactics used by ICBC.
The problem, and the reason why I write this post, is that sometimes the potential conflict of interest is much worse than simply having a lawyer who works both sides of the fence. It is a problem of a lack of informed consent.
ICBC has contracted with many law-firms in BC for services in the defence of motor vehicle accident claims. ICBC requires some of these firms to sign an agreement called the Strategic Alliance Agreement (SAA).
Under the SAA, law firms whose lawyers are retained to act for ICBC are not permitted, when representing a plaintiff on another file, to sue ICBC for bad faith or to seek punitive, aggravated or exemplary damages against ICBC.
Specifically, the SAA states that “ICBC may impose penalties against the firm…..(where) the firm, or any member of the legal team, in the performance of the legal services, fails to act in the best interests of ICBC or ICBC’s insureds…”
Also, that “members of the legal firms team will not directly or indirectly: commence or participate in claims or actions, or counsel or assist others in bringing claims or actions against ICBC which include allegations of bad faith, or claims for punitive, aggravated or exemplary damages.”
What a conflict of interest!
The Law Society of BC (the institution that governs lawyers in BC) has held that it is ok for a lawyer who represents ICBC and who is bound by the terms of the SAA to also act against ICBC in another claim. HOWEVER, clients need to be advised about this potential conflict of interest. Sepcifcially, “A lawyer (bound by the SAA) may properly act against ICBC for clients whose cases fall outside of the restrictions. However, a lawyer acting in these circumstancesMUST ADVISE THESE CLIENTS OF THE LAWYER’S RELATIONSHIP WITH ICBC AND THE IMLICATIONS OF THE RESTRICTIONS THE LAWYER IS UNDER.
It is all about informed consent. There is nothing wrong in hiring a lawyer to represent you who has signed the SAA but you are entitled to know about these restrictions. If you know about these restrictions you may not want to hire such a lawyer and instead retain an icbc claims lawyer who is not bound by any contractual restrictions with ICBC. Ask your lawyer if he signed the SAA, you may be surprised by the answer.
If your lawyer signed the SAA and did not tell you this up front, you were deprived of an opportunity to make an informed decision. If this occurred you may want to ask yourself why your lawyer kept this information from you…?

ICBC's Trial Policy Gets Judicial Attention

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Jury Trials, Tort Reform, Uncategorized. 59 Comments on ICBC's Trial Policy Gets Judicial Attention

It used to be that when ICBC claims went to trial ICBC would only require the people they insure to participate at trial as necessary.  For example if fault was at issue the defendant would testify as to how the crash happened or if the Plaintiff seemed uninjured at the scene the Defendant would share his/her observations with the court.
More recently, ICBC has created a policy where the people they insure have to get extensively involved in the trial even if they have no vital role to play.   Reasons for judgement were released today by the BC Supreme Court discussing this ICBC trial policy.
In today’s case (Coates v. Marioni) the Plaintiff was injured 2006 car crash.  The at fault driver was insured by ICBC.  In the lawsuit the issue of fault was admitted leaving the court to only deal with the issue of the value of the ICBC claim.  The matter went to jury trial.  Just before trial ICBC made an offer to settle.  The Victoria jury returned a verdict just below ICBC’s formal settlement offer.  The trial judge was asked to decide what costs consequences should follow under Rule 37B since ICBC beat their formal offer (click here to read my previous posts about Rule 37B in ICBC Claims).
Madam Justice Gerow, who presided over this jury trial, refused to give the Defendant their costs despite beating their formal offer.  The Plaintiff was awarded costs through trial.  2 factors leading to this decision were the late delivery of ICBC’s formal settlement offer and the fact that the jury award was very close to the formal offer.
In asking that the Plaintiff be deprived of trial costs the lawyer hired by ICBC noted that the Plaintiff attended fewer days of the trial than the Defendant.  The court rejected this argument and in doing so discussed ICBC’s policy of forcing their insured defendants to sit through trial even if they have nothing to add to the evidence at trial.  Below are the highlights of this discussion:

[53] The defendant also argues that the plaintiff should be deprived of her costs because the defendant attended all of the trial and the plaintiff did not.  However, the defendant chose to attend the trial.  Although she testified, her evidence was very brief as liability had been admitted.  There was no requirement that the defendant attend throughout the trial, particularly in circumstances where she had to take time off work and travel to Victoria.

[54] The plaintiff argues the fact that the defendant attended more of the trial than the plaintiff is not a factor to be considered in assessing whether the plaintiff should be deprived of her costs.  The plaintiff points to an ICBC claims bulletin dated June 13, 2008 outlining a policy that requires defendants to attend the trials from start to finish.  In the bulletin it sets out that:  “This policy applies even if they will not be testifying.  The intent of the new requirement is to present a ‘face’ for the defendant to the court.  Defence counsel will be instructed to have the defendant sit at counsel’s table if possible.”  In the circumstances, I do not accept the defendant argument that her attendance at the trial is a factor that should favour depriving the plaintiff of her costs.

[55] Having considered the factors set out in subrule 6, including the relationship between the offer and the award, I have concluded that this is not an appropriate case in which to exercise my discretion to deprive the plaintiff of her costs on the basis of the offer to settle.

If you are insured with ICBC and are at fault for a car crash and injure another do you think there is any value in being forced to trial even if you have nothing to add?  Does giving a ‘face to the defendant’ make any sense when the lawsuit is an insured claim?  As always, feedback is welcome.

The Health Care Costs Recovery Act and Your BC Personal Injury Claim

Written by admin on . Posted in Civil Procedure, Tort Reform.

Very important legislation is coming into force in April 1, 2009 that applies to many BC Personal Injury Claims.   The new legislation is the Health Care Costs Recovery Act (and the Health Care Costs Recovery Regulation) and all BC Personal Injury Lawyers and people advancing their own BC Personal Injury Claims need to be familiar with this new law.
In a nutshell this act applies to all BC Injury Claims except for claims where the defendant is insured with ICBC, litigation under the Tobacco Damages and Health Care Costs Recovery Act and WCB Claims.   If you are advancing an applicable BC Personal Injury Claim after April 1 and are covered by MSP you must advance a claim for the cost of past and future health care services.  
Section 3 of the act requires that people with applicable claims, whether or not they have a lawyer, must “include a health care services claim in that legal proceeding”
Section 4 requires Notice to the Government after you start your lawsuit in BC Supreme Court.  This applies whether or not you have a lawyer for your BC Personal Injury Claim.  Spcifically this section states that the government must be notified of applicable claims “within 21 days after commencing a legal proceeding referred to in section 3(1), written notice of the legal proceeding must be given to the government“.
Section 5 of the act is perhaps the most important which stats that “a legal proceeding referred to in section 3(1) must not be discontinued or dismissed by consent unless the consent of the minister is filed with the court.”
This Act requires people with applicable BC Personal Injury Claims to advance a claim on behalf of the Government for recovery of their past and future health care costs and to not settle a claim without the governments permission first.  
In addition to the above the Act has some unique sections requiring co-operation with the government and giving the government significant power to intervene in current lawsuits.  This law will change the way BC Personal Injury Claims are prosecuted and advanced by lawyers and non-lawyers and it is vital that people become quickly familiar with this new law.
One of the biggest concerns I have as a BC Personal Injury Lawyer is that this Act will create a lot of red tape in the settlement of BC personal injury claims.  I have developed a pro-active practice of notifying the government of applicable claims even before the legislation requires to minimize the red tape that will now be involved with claim settlement.  If you are advancing an applicable claim, with or without a lawyer, I suggest you do the same because the Governments involvement in the settlement process will undoubtedly add delay to the settlement of many BC personal injury claims.
If you have an active BC Personal Injury Claim that is not settled by April 1, 2009 or if you advance a Claim after April 1, 2009 you need to comply with this new law.  If you have a lawyer you should make sure that your Injury Claim Lawyer is familiar with this new law as it may apply to your claim.  Lastly, if you are advancing your own Injury Claim and have questions about how this will effect your claim seek legal advice promptly because this act imposes significant obligations that must be complied with.

More on ICBC Claims Lawyers and ICBC's 'Strategic Alliance Agreement"

Written by admin on . Posted in Tort Reform, Uncategorized.

Is your ICBC Claims Lawyer also in partnership with ICBC?  Depending on who your lawyer is the answer could be yes. It is very important for any injured person looking to hire a lawyer for their ICBC Injury Claim to ask whether their lawyer has signed ICBC’s SAA.  (for background see my previous article Does your Lawyer act fo ICBC, ask you may be surprised by the answer).
Today the BC Court of Appel released reasons for judgement (Tepei v. ICBC) confirming that lawyers (or law firms) that have signed ICBC’s Strategic Alliance Agreement are in a ‘partnership’ type relationship with ICBC.
In upholding a previous judgement ruling that an arbitrator who signed ICBC’s SAA agreement gave rise to a ‘reasonable apprehension of bias’ in presiding over an ICBC Injury Claim the Court of Appeal said the following about ICBC’s SAA and ICBC’s relationship with lawyers who signed it:

[1]                KIRKPATRICK J.A.: This is an appeal from an order removing an arbitrator and vacating his rulings founded on a reasonable apprehension of bias.  The chambers judge found that the Strategic Alliance Agreement entered into by ICBC and lawyers it retains provided comprehensive terms which emphasized the firm’s commitment to ICBC as “partners” in its enterprise rather than simply as counsel acting from time to time on individual cases.

[2]                For substantially the reasons given by the chambers judge (2007 BCSC 1694, [2008] 3 W.W.R. 664, 78 B.C.L.R. (4th) 95), I would dismiss the appeal.  In my opinion, a reasonable and right minded person would expect the arbitrator to disclose the fact that his firm was a signatory to the Strategic Alliance Agreement and that the arbitrator was the principal contact between his firm and ICBC.  Similarly, the fact that the arbitrator’s firm had signed a Strategic Alliance Agreement would give rise to a reasonable apprehension of bias.

[3]                I am also not persuaded that the chambers judge erred in finding that the respondents’ failure to comply with the rules of B.C. International Commercial Arbitration Centre (Domestic Commercial Arbitration Rules of Procedure of the British Columbia International Commercial Arbitration Centre) (“BCICAC”) did not preclude them from claiming relief under s. 18 of   Arbitration Act, R.S.B.C. 1996, c. 55.  Section 18 of the Act permits a party, at any time, to apply to the Supreme Court for removal of an arbitrator who commits “arbitral error”, which would include a reasonable apprehension of bias.  The Act provides remedies wider in scope than a challenge to impartiality and independence under s. 15 of the BCICAC rules, including vacating the arbitrator’s rulings and awards.

[4]                It is obvious that arbitral error is central to the jurisdiction of the arbitrator.  The jurisdiction of the Supreme Court cannot in these circumstances be trumped by the rules of the BCICAC.

How a Telephone Pole can be Responsible for a Car Crash

Written by admin on . Posted in ICBC Liability (fault) Cases, Tort Reform, Uncategorized. 115 Comments on How a Telephone Pole can be Responsible for a Car Crash

One thing that I find irritating as a personal injury lawyer is when cases with merit are mis-reported by the media and spun as ‘frivolous lawsuits’.
Yes there are frivolous lawsuits out there.  Yes some of the facts behind such cases are, to say the least, embarrassing for the profession.  But there are many cases with merit that at quick glance can appear frivolous but with deeper digging simply are not so.
Reasons for judgement in such a case were released today by the BC Court of Appeal.  In this case the Plaintiff suffered serious injuries when struck by a motor vehicle while crossing a marked cross-walk.  The trial court found that the District of Campbell River and the Telus Corporation were each 20% at fault for this crash for the negligent placement of a utility pole.  How can a utility pole be at fault for a crash between a motorist and a pedestrian?  I could see this getting spun the wrong way so I thought I would take the first crack at reporting this case.
The facts of the case are well summarized in paragraphs 6-7 of the reasons for judgment.  I reproduce these below:

[6]                Around 9:00 p.m. on 3 January 2003, in Campbell River, Robert Simpson was walking home from his job as a pharmacist.  It was dark and raining.  Mr. Simpson, who was wearing dark clothing and carrying an umbrella, stepped into a marked crosswalk from the south side of a wooden utility pole and was struck by a southbound pick-up truck driven by Mr. Baechler.

[7]                Mr. Simpson’s injuries were serious: they included a fracture of both knees that required surgery and will require future surgical attention, a fractured pelvis, an abrasion to the forehead, and a moderate closed head injury that has impaired Mr. Simpson’s functional capacity

A Claim was made against the driver of the vehicle, the City and the telephone Company (who were co-owners of the pole).  The Claim against the City and the utility company were that they placed the pole in a hazardous place in relationship to the road and the pedestrian crossing.  Frivolous?  Consider these facts that the Court of Appeal reviewed in upholding the trial judge’s finding that the City and the telephone company were partially to blame for this crash:

[12]            The utility pole was embedded in the sidewalk on the northwest corner of the intersection.  Its near edge was about 14.6 inches from the curb.  Telus Corporation, part owner of the utility pole, had installed a plastic pilaster on the westerly aspect of the pole, to protect some cables.  With the pilaster, the pole was about 18.9 inches wide at eye level and 23.6 inches wide at its base. (BC Hydro was co-owner of the utility pole.  Mr. Simpson’s action against BC Hydro settled and was dismissed by consent).

[13]            The pole had not always been embedded in the sidewalk.  It was originally west of the sidewalk, but in the process of widening Dogwood Street in the 1980s the pole’s base was incorporated into the sidewalk.

[14]            In 1996, Campbell River, the RCMP and the Insurance Corporation of British Columbia identified Dogwood Street between 11th and 13th Avenues as accident prone and problematic with respect to traffic operations.  An engineering firm studied the corridor, found that the pole obscured pedestrians from the view of southbound drivers, and recommended (among other things) the relocation of the utility pole.

[15]            In 1997, Campbell River authorized relocation of the pole.  BC Hydro agreed. Telus Corporation was opposed, apparently because its cables were an impediment. All of the other recommended improvements to the intersection were made, but the pole remained where it had been.

[16]            The location of the utility pole was a continuing safety concern for Campbell River.  It was recognized as a safety hazard by the City’s engineering services manager.  In 2001, a second safety review of the Dogwood corridor found that the Dogwood Street and 12th Avenue intersection had a low accident frequency and severity history, but that rear-end collisions occurred in the southbound lanes with “relatively high” “pedestrian involvement”.  A new plan to modify the corridor was approved.

[17]            The trial judge held that the T intersection at 12th Avenue and Dogwood Street had “long been considered dangerous among Campbell River residents (para. 6).  He also found that Mr. Baechler was familiar with the intersection (para. 40) and with its “dangerous nature” (para. 23).

[18]             In 2003, after the accident involving Mr. Simpson and Mr. Baechler, the utility pole was relocated about 3 metres away and the other Telus equipment reinstalled.  The cost of about $3,000 was shared by Telus, BC Hydro, and Campbell River.  The obstruction to visibility was eliminated.

[19]            Embedded in the sidewalk as the utility pole remained at 9:00 p.m. on the night of 3 January 2003, when Mr. Baechler was driving home after dinner with some friends, and Mr. Simpson was walking home after work, the pole continued to obscure the view of pedestrians on its south side looking north for vehicles and the view of southbound drivers looking for pedestrians on the northwest corner of the intersection.

In upholding the liability of the City and the Telephone Company the court gave the following reasons:

[52]            There was ample evidence to support the finding that the pole was a contributing cause of the accident.  There was evidence that the pole presented a hazard known to both Telus and Campbell River that they had failed to remove.  The learned trial judge found that had the pole not obstructed his view, Mr. Simpson would have been able to see and would have seen Mr. Baechler’s vehicle approaching.  Telus and Campbell River have not established any error with respect to that factual finding.  Mr. Simpson’s failure to see oncoming traffic when he had the opportunity to do so does not render “irrelevant” the fact of his view’s being obstructed by the hazardous utility pole as he waited to cross the street.  I would not disturb the finding of the trial judge that the utility pole was a cause of the accident.

When frivolous lawsuits are reported the cases are worth taking a detailed look at.  In this case there was compelling pre accident evidence that the pole “obscured pedestrians from view of drivers” and that this created a hazard with “relatively high”  “pedestrian involvment” yet to save about $3,000 this known hazard was not moved!  

Don’t always believe the headlines that summarize lengthy legal proceedings in a sound bite.  Surly there are frivolous cases out there but decisions such as this one show that things are not always as they first appear.  This case also illustrates that the discovery powers given to litigants in the BC Supreme Court can go a long way in uncovering blameworthy conduct which is not so apparent at first glance.