Uncategorized – Page 10

Trial Adjourned Where IME’s “Frustrated” Due to Misunderstanding of Covid-19 Related Deadlines

Written by ERIK MAGRAKEN on July 13, 2020. Posted in Uncategorized.

Interesting reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, granting a defence adjournment request where defence failed to obtain needed defense medical opinion evidence in part due to a misunderstanding of the waiver of service deadlines due to Covid-19.

In the recent case (Sidhu v. Sidhu) the parties agreed that the plaintiff would be examined by a defence physiatrist. When defence counsel selected a date the Plaintiff was of the view that it was beyond the date of the service of reports noting

“We write regarding your letter requesting the plaintiff’s attendance at an IME with a physiatrist.

We do not agree that the Rule 11-6 deadline for service of originating reports 84 days before trial has been suspended. You are now in receipt of the plaintiff’s expert reports. You are entitled to respond to those reports but the time for fresh opinion based on a physical assessment has passed. This is unrelated to the COVID‑19 epidemic.“

The Plaintiff did not attend. Defence counsel did not bring an application to compel attendance in part relying on the assertion of plaintiff;s counsel. In granting an adjournment the Court noted the above premise was incorrect as Covid-19 Notice #8 suspended the deadlines for the service of reports.

The court found that the IME process was ‘frustrated‘ by this misunderstanding and found a trial adjournment was an appropriate remedy. In reaching this conclusion Master Cameron provided the following reasons:

No Prejudice Adding Correct Defendants to Claim Where ICBC Provided Plaintiff With Wrong Names

Written by ERIK MAGRAKEN on June 23, 2020. Posted in Uncategorized.

Short but helpful reasons were published today by the BC Supreme Court, Victoria Registry, addressing a fact pattern that sometimes arises in litigation involving ICBC.

In today’s case (Littlejohn v. Clavelle) the Plaintiff was injured in a collision and sued for damages. Prior to staring the lawsuit counsel for the plaintiff asked ICBC to provide information concerning the identity of the Defendants. ICBC provided this information but did so partly in error. As a result the Plaintiff commenced the lawsuit but failed to name all appropriate parties.

The Plaintiff successfully applied to add the correct party to the litigation. Despite the passage of the two year limitation period the court noted there was no prejudice in allowing amendment. In doing so Mr. Justice Steeves provided the following reasons:

Court Rejects Expert Witness Who Gave “Evidence Unworthy of Reliance”

Written by ERIK MAGRAKEN on June 22, 2020. Posted in Uncategorized.

In one of the stronger judicial reasons rejecting expert witness evidence that I have read in recent years reasons for judgement were published today by the BC Supreme Court, Courtenay Registry, finding a defence expert gave evidence that was superficial, out of his area of expertise and “unworthy of reliance“.

In today’s case (Radewulf v. Kelly) the Plaintiff sustained chronic and disabling injuries in two collisions. The Defendants retained an orthopaedic surgeon who provided the court with evidence minimizing the plaintiff’s symptoms and their connection to the collisions. In outright rejecting this opinion the Court provided the following critical reasons noting that even the defence lawyer backed away from the witness’ opinions:

Defence Expert Evidence Rejected After Testimony With “Considerable Controversy”

Written by ERIK MAGRAKEN on June 22, 2020. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, rejecting the opinion evidence of a defence hired orthopaedic surgery on the grounds that the opinions were prohibited advocacy.

In today’s case (Dhugga v. Poirier) the Plaintiff was involved in 2 collisions that the Defendants conceded liability for. The collisions resulted in chronic injuries. In the course of the litigation the Defendants retained an orthopaedic surgeon who provided evidence minimizing the connection between the plaintiff’s symptoms and the collisions. In rejecting this evidence as advocacy in the guise of opinion Mr. Justice Jenkins provided the following critical comments:

BC Supreme Court Strikes Jury So Injury Trial Can Proceed

Written by ERIK MAGRAKEN on June 17, 2020. Posted in Uncategorized.

In the wake of the Covid-19 Pandemic one of the many directions of the BC Supreme Court was that jury trials could not proceed for the time being creating a balancing of interests between trials proceeding in a timely fashion vs the right of a party to have their preferred mode of trial.

Today reasons for judgement were pronounced considering this direction and ultimately striking a civil jury desired by a Defendant in a personal injury claim.

In today’s case (Cheung v. Dhaliwal) the Plaintiff was injured in a 2016 collision. The claim was set for trial on June 22, 2020. Both liability and quantum were at issue. The Defendant desired trial by jury which would have resulted in an adjournment. The plaintiff brought an application to strike the jury notice so it could proceed on the date set. In finding the prejudice to the Plaintiff in adjournment outweighed the prejudice to the Defendant by having a judge alone trial Master Vos provided the following reasons:

10% and 15% Contributory Negligence Findings for Failure to Wear a Seatbelt

Written by ERIK MAGRAKEN on June 12, 2020. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, allocating contributory negligence to plaintiffs who were injured in a vehicle collision without their seatbelt.

In today’s case (Goronzy v. Mcdonald) a multi vehicle collision occurred. Two of the plaintiffs who sustained injuries were not wearing a seatbelt and, as a result, were found partly at fault for their own injuries. In particular the driver of a taxi was found 10% contributorily negligent and his rear seat passenger 15%.

In reaching these differing percentages Madam Justice Humphries provided the following reasons:

BC Passes Order Giving Sporting Organizations Immunity From Covid Lawsuits

Written by ERIK MAGRAKEN on June 10, 2020. Posted in Uncategorized.

Today the BC Government passed Ministerial Order M183 which gives certain sporting organizations limited immunity to certain covid-19 related lawsuits. Suits can still be brought in cases of gross negligence.

The full order reads as follows:

PROTECTION AGAINST LIABILITY FOR SPORTS (COVID-19) ORDER

Definitions 1 In this order:

“Act” means the Emergency Program Act;

“disability sport organization” means a non-profit society operating with a sporting purpose that is responsible for the organization, growth or development of a disability sport or a group of disability sport disciplines;

“emergency and public health guidance”, in relation to an organized sport activity, means any of the following with respect to the COVID-19 pandemic: (a) an order made under the Act; (b) an instruction or order of a health officer, as defined in the Public Health Act; (c) guidelines of the British Columbia Centre for Disease Control; (d) guidelines of the Public Health Agency of Canada; (e) guidelines published on a website maintained by or on behalf of the government; (f) guidelines of a health authority; (g) guidelines of a sport organization with respect to organizing, administering, facilitating or providing the organized sport activity; (h) guidelines of the viaSport British Columbia Society issued in 2020 relating to the return to sports;

“exposed”, in relation to SARS-CoV-2, means to have been in contact with, or near, a person or thing that is or may be infected with SARS-CoV-2, in such a manner as to be at risk of being infected with SARS-CoV-2;

“health authority” means (a) a regional health board designated under the Health Authorities Act, (b) the First Nations Health Authority, or (c) the Provincial Health Services Authority;

“local sport organization” means a non-profit society operating with a sporting purpose that administers sport at a local level;

“multi-sport organization” means a non-profit society operating with a sporting purpose that leads or coordinates the delivery of services to other organizations;

“organized sport activity” means an amateur sport or physical activity in which a number of persons are engaged in an organized way and that is organized, administered, facilitated or provided by a sport organization;

“provincial sport organization” means a non-profit society operating with a sporting purpose that is responsible for the regulation, governance and development of all areas and levels of a sport within the Province;

“sport organization” means (a) a disability sport organization,(b) a local sport organization, (c) a multi-sport organization, or (d) a provincial sport organization.

Application

2 This order applies during the period that starts on the date this order is made and ends on the date on which the last extension of the declaration of a state of emergency made March 18, 2020 under section 9 (1) of the Emergency Program Act expires or is cancelled.
Reliance on emergency and public health guidance

3 (1) A sport organization, or a director, officer, employee or volunteer of a sport organization, is not liable for damages resulting, directly or indirectly, from an individual being or likely being infected with or exposed to SARS-CoV-2 as a result of the organization, administration, facilitation or provision of an organized sport activity if, at the relevant time, the sport organization, or director, officer, employee or volunteer of the sport organization, (a) was organizing, administering, facilitating or providing the organized sport activity in accordance with all applicable emergency and public health guidance, or (b) reasonably believed that the organization, administration, facilitation or provision of the organized sport activity was in accordance with all applicable emergency and public health guidance.

(2) Subsection (1) does not apply to a sport organization, or a director, officer, employee or volunteer of the sport organization if, in organizing, administering, facilitating or providing the organized sport activity, that sport organization or director, officer, employee or volunteer was grossly negligent.

Insurance Medical Expert Rejected as “Combative, Argumentative and Arrogant”

Written by ERIK MAGRAKEN on June 10, 2020. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court rejecting and harshly criticising the opinion evidence of doctor hired to provide a defence medical opinion in a personal injury claim.

In today’s case (Chavez-Babcock v. Peerens) the Plaintiff was involved in a 2014 collison that the Defendant admitted fault for. The crash resulted in chronic soft tissue injuries. In the course of the lawsuit the Defendants insurer hired an orthopaedic surgeon who provided an opinion minimizing the plaintiff’s symptoms to the crash. In rejecting this opinion and the physicians evidence as combative, argumentative and arrogant Madam Justice Matthews provided the following reasons:

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

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

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

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

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

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

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

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

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