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No "Principled Basis" To Award ICBC Costs Following Trial in Place of Defendant

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized.


As previously discussed, the BC Supreme Court has a “loser pays” system.  In short this means that the losing party generally has to pay the winning sides costs.  Since most personal injury lawsuits are defended by ICBC (or other insurance companies) do they get the benefit of a costs award when they are on the winning side of a lawsuit or do the costs get paid to the insured Defendant?  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this interesting issue.
In last week’s case (Wong v. Lee) the Plaintiff sued for damages following a motor vehicle collision.  The lawsuit was dismissed with Jury finding that the Defendant was not responsible for the crash.  Ultimately the Plaintiff was ordred to pay the Defendant costs.  ICBC argued the costs award should be in their favour (presumably to make it easier to exercise their collections rights under the Insurance (Vehicle) Act).  Madam Justice Dardi refused to make this order finding that there is no ‘principled basis’  to do so.  The Court provided the following reasons:
[35] The defendants contend that any costs awarded to them ought to be paid directly to ICBC, who is not a party to this proceeding. The defendants acknowledge that there does not appear to be any authority directly on point.


[36] The paramount principle to be derived from the authorities is that any discretionary exceptions to the usual costs rules must be made judicially: Bailey v. Victory (1995) 4 B.C.L.R. (3d) 388, 57 B.C.A.C. 23 (C.A.) at para. 13.

[37] The defendants primarily anchor their submissions on s. 84(1) of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 [formerly s. 26 of the Insurance (Motor Vehicle) Act]. Section 84(1) of the Insurance (Vehicle) Act provides as follows:

84  (1) On making a payment of benefits or insurance money or assuming liability for payment of benefits or insurance money, an insurer

(a) is subrogated to and is deemed to be the assignee of all rights of recovery against any other person liable in respect of the loss, damage, bodily injury or death of a person to whom, on whose behalf or in respect of whom the payment of benefits or insurance money is made or to be made, and

(b) may bring action in the name of the insured or in its own name to enforce the rights referred to in paragraph (a).

[38] On a plain reading of s. 84(1) of the Insurance (Vehicle) Act, the provisions pertain to the statutory subrogation issues between the insured and the insurer, which issues were not before me in this litigation. It is axiomatic that this subsection is not determinative of the dispute between the plaintiff and the defendants in this case. An award of costs to ICBC, who is not a party to this proceeding, would constitute a departure from the usual rule that the defendants who were the successful parties in this litigation be awarded costs. In my view, these statutory provisions do not establish a basis for an order displacing the usual rule…

[44] While the Court of Appeal in Perez v. Galambos, 2008 BCCA 382, recognized the jurisdiction to make a costs award in relation to a non-party, the Court observed that such an award is unusual and exceptional, and should only be made in “special circumstances” (at para. 17). The Court stated that a non-party who is funding litigation can be liable for costs as the real litigant if they have put forward an insolvent party as a “man of straw” to avoid liability for costs or if the non-party has promoted the litigation improperly so as to be liable for the tort of maintenance. The Court in Perez declined to order that the insurer who defended the action pay the costs of the successful plaintiff. Since the facts in this case are clearly distinguishable from those in Perez, that case does not assist the defendants. Moreover, I also note that neither counsel brought it to the Court’s attention that this decision was reversed by the Supreme Court of Canada and the issue of costs was left to the parties to resolve or, in the alternative, remanded back to the Court of Appeal for further consideration. It does not appear that there has been any further consideration by the Court of Appeal.

[45] In their submissions the defendants also cite Qureshi (Guardian ad litem of) v. Nickerson (1991), 77 D.L.R. (4th) 1, 53 B.C.L.R. (2d) 379 (C.A.). However, in my view there is no principle to be derived from Qureshi that supports the defendants’ submission that ICBC should be entitled to an award of costs in this case. In that case, the plaintiff argued that the defendant had not incurred any costs in his successful defence of a medical malpractice claim because those costs had been paid on his behalf by the Canadian Medical Protective Association. The Court of Appeal found that there was no contract of indemnification and no right of subrogation between the defendant and the Canadian Medical Protective Association. The Court concluded that in the absence of a right of subrogation, and having not incurred any liability for fees and disbursements in defending the claim, the defendant was not entitled to a costs award against the plaintiff.

[46] In summary on this issue, I am not persuaded that in the circumstances of this case, there is any principled basis upon which this Court should order that the plaintiff pay costs to the non-party ICBC.


CPP Benefits Deductions in UMP Claims Discussed – The Likelihood of Payment Test

Written by admin on . Posted in ICBC Hip Injury Cases, ICBC Knee Injury Cases, ICBC UMP Cases, Uncategorized. 48 Comments on CPP Benefits Deductions in UMP Claims Discussed – The Likelihood of Payment Test

Section 148.1 of the Insurance (Vehicle) Regulation requires “an amount to which an insured is entitled to under the Canada Pension Plan” to be deducted from UMP claims.  Continuing in my efforts to summarize ICBC UMP decisions, reasons were released addressing this deduction following a serious injury caused by an uninsured motorist.
In SPW v. ICBC the Claimant suffered various injures due the carelessness of an uninsured motorist.  Following arbitration the Claimant’s diminished earning capacity (future wage loss) was assessed at $575,000.  The Claimant was receiving CPP disability payments and if these were continued to be received the present value of the future payments equalled $123,500.  Arbitrator Boskovich had to determine what amount of these benefits should be deducted pursuant to section 148.1.  In deducting 50% of these benefits the Arbitrator provided the following reasons:
165.  In order to determine if future payments should be considered as “applicable deductible amounts” under the Regulations the law is quite settled that there has to be some evidentiary foundation to determine likelihood of the continuance and certainty of such future payments.  The onus of proof that these payments will continue is on the Respondent (ICBC).  While the evidence given with respect to payments having been received in the past is of assistance, it does not provide conclusive evidence that the payments will continue in the future.
166.  That being said, having regard to the submissions delivered by counsel and the admissions made by the Claimant and his counsel and my own findings that the Claimant does have some residual earning capacity, which may or may not translate into income depending on what the Claimant does vocationally, I find there is a 50% contingency of the likelihood that his CPP payments will continue in the future and in this regard 50% of the net present value of the future payments should be deducted from the award.
This case is also worth reviewing for the assessment of non-pecuniary damages for the Claimant’s serious injuries.  In assessing this loss at $175,000 the Arbitrator made the following findings:

23  ….he had suffered multiple injuries, including a complex pelvic fracture with separation of the symphysis pubis and fracture of the right sacrum, a left tibiofibular fracture, a fractured right humeral shaft, fracture of his left second rib, as well as a large laceration to his right thigh and multiple cuts and abrasions.
74.  …those injuries have impacted his ability to walk, his gait and balance and have resulted in neck and lower back pain.  He has been left with chronic discomfort, restricted mobility and reduced ability to participate in physical activities.  I find that his present disability is entirely related to the motor vehicle accident…
77.  After considering the authorities submitted I find, having regard to the horrific circumstances of this accident, the nature of the injuries, the ongoing pain and the residual permanent disability which has resulted in a devastating change in the Claimant’s quality of life, that he is entitled to non-pecuniary damages of $175,000.

$125,000 Non-Pecuniary Damage Assessment for TBI – Adverse Inference Discussed

Written by admin on . Posted in Civil Procedure, ICBC Ankle Injury Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Elbow Injury Cases, ICBC Headache Cases, ICBC Knee Injury Cases, ICBC Liability (fault) Cases, ICBC Shoulder Injury Cases, Uncategorized.

Update March 21, 2014 – the Liability findings in the below case were upheld today by the  BC Court of Appeal
_____________________________________
Adding to this site’s ICBC Case Summary Archives, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, assessing non-pecuniary damages for a traumatic brain injury sustained in a BC vehicle collision.
In this week’s case (Meghji v. Lee) the Plaintiff was struck by a vehicle while walking in a marked cross-walk in 2003.  Both the Defendant driver and BC Ministry of Transportation and Highways were found at fault for the crash.  The former for failing to keep a proper lookout while driving, the latter for designing the intersection at question with inadequate overhead lighting.  The driver was found 90% at fault with the Ministry shouldering 10% of the blame.
The Plaintiff suffered a fracture near her left shoulder, left elbow, ankle, knee and a traumatic brain injury.   The consequences of these were expected to cause permanent dysfunction.  In assessing non-pecuniary damages at $125,000 Mr. Justice Johnston provided the following reasons:
 
 
 
 
 
 
 
 
 
 

[134]Mr. Lee struck Ms. Meghji on her left side. That caused a significant fracture to Ms. Meghji’s left upper arm, a less significant fracture just below and into her left knee and an injury to her left ankle, all of which required immediate medical intervention. There were also the soft tissue injuries that would reasonably be expected to accompany such trauma.

[135]Within a day of the accident, Ms. Meghji had surgery to her left upper arm that involved the insertion of a rod that was fixed by screws just below her shoulder and just above her left elbow. She also had a screw placed into her left ankle…

 
 
 
 
 
 
 
 
 
 

[270]Based upon the evidence of Dr. Ali and Mr. Brozak of the substantial change noted in Ms. Meghji during this time, as supported by similar observations from Ms. Chauncey’s and Ms. Wyeth’s description of Ms. Meghji’s abilities in her math class and as a teaching assistant before the accident, I conclude that Ms. Meghji has more likely than not suffered a brain injury in the accident, and that the combination of the effects of the brain injury and the depression and chronic pain disorder, which I also find was caused by the accident or flows from injuries suffered in the accident, are so inextricably intertwined that they cannot possibly be disentangled.

[271]In all of the circumstances, the defendants are ordered to pay Ms. Meghji $125,000 for non-pecuniary damages for pain, suffering, and loss of amenities and enjoyment of life.

This case is also worth reviewing for the Court’s application of the ‘adverse inference’ principle.  In the course of the lawsuit the Plaintiff’s lawyers had her assessed by a neurologist.  The neurologist did not tender evidence at trial.  Mr. Justice Johnston used his discretion to draw an adverse inference in these circumstances finding that the privately hired doctor likely did not have helpful evidence to give in support of the Plaintiff’s claim.  The court provided the following reasons:

 
 
 
 
 
 
 
 
 
 

[240]In ordinary circumstances, I would agree that a claim of litigation privilege should be sufficient explanation for the failure to produce evidence from an expert who examined a party, and no inference adverse to that party should be drawn from the failure to produce the evidence.

[241]However, where, as here, counsel has assumed control of medical management of a plaintiff’s injuries, the circumstances are not ordinary.

[242]Dr. Grimwood would ordinarily have been expected to coordinate Ms. Meghji’s treatment, including referrals to specialists as he thought advisable. In this case, Dr. Grimwood appears to have largely ceded that responsibility to Ms. Meghji’s counsel, largely because counsel were able to arrange examinations by medical specialists much sooner than could Dr. Grimwood.

[243]Where counsel becomes actively involved in arranging treatment, or in treatment decisions, or in selection of treatment providers to the extent that it becomes difficult or impossible to determine whether any particular doctor is involved for treatment purposes, or to advise counsel, the protective cloak of litigation privilege becomes tattered.

[244]In such circumstances, counsel and the party who permit the line between treating physicians and physicians retained to advise counsel to become blurred must accept some risk that the protection ordinarily afforded by litigation privilege might be lost.

[245]Ms. Meghji testified that she saw Dr. Cameron for headaches. In the face of that evidence, I infer, from the refusal to produce evidence from Dr. Cameron, that any opinion generated as a result of his examination of Ms. Meghji was not helpful to the claims she makes in this trial. I also infer that, while examining for headache, had Dr. Cameron observed any signs that suggested to him that Ms. Meghji had suffered a traumatic brain injury in the accident, his observations or opinion would have been produced at trial.

 
 
 
 
 
 
 
 
 
 

Welcome CKNW Listeners

Written by admin on . Posted in BC Injury Claims Media Archives, Uncategorized.


This afternoon I had the pleasure of being interviewed with Sean Leslie from CKNW.  The show focused on the recent bus collision in Richmond, BC which injured numerous passengers.
Thank you to all my new visitors.  If you are looking for more information regarding the topics discussed you can click on the following links to access my archived posts addressing no-fault benefits, unidentified motorist claims and the two roles of ICBC.

More on the Production of Case Planning Conference Transcripts: Contested Applications

Written by admin on . Posted in BCSC Civil Rule 5, Uncategorized.


As discussed earlier this year,  Rule 5-2(7) states that “proceedings at a case planning conference must be recorded, but no part of that recording may be made available to or used by any person without court order“.  Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, addressing the test to be met for production of these transcripts when opposed by other litigants.
In last month’s case (Parti v. Pokorny) the Plaintiff was injured in a motor vehicle collision.  In the course of her lawsuit a Case Planning Conference was held.  ICBC asked for a transcript of this hearing to be produced.  The Plaintiff opposed following which ICBC brought an application for the Court to order production under Rule 5-2(7).  ICBC’s application was dismissed and in doing so Mr. Justice Verhoeven provided the following reasons:
[27] The words of R. 5-2(7) in their grammatical and ordinary sense support the view that a production order may be granted only exceptionally on reasonable grounds to support the making of the order. The wording of R. 5-2(7) is prohibitory in nature: “no part of that recording [of a CPC] may be made available to or used by any person without court order”.  The legislature expressly required that the court exercise discretion before allowing access to or use of the recording. The legislature must have intended that the court exercise its discretion on reasonable grounds. Thus, the order permitting access to the recording or for a transcript must only be made where there are reasonable grounds to do so….






[35] Litigants and counsel attending a CPC should be free to discuss openly and candidly all aspects of the case, including matters relating to the narrowing of the issues, the merits of the case and the issues, management of the case, or settlement prospects and procedures, without concern that some unguarded comment made during the course of the conference may later be sought to be used to their detriment. The ready availability of transcripts of the proceedings would inevitably inhibit such discussions and frustrate the objectives of the CPC procedures as well as the object of the Rules.

[36] The open court principle is well-recognized in the caselaw. The legislature is presumed to have been aware of the open court principle when it enacted R. 5-2(7) of the SCCR, limiting the application of that principle in the context of CPCs…

[48] I reject the argument of the defendant that there ought to be a presumption in favour of production of the CPC transcript. The defendant’s application fails as it has not established any compelling grounds for the exercise of the court’s discretion for the order sought.

[49] The plaintiff argued that there should be a presumption against the making of an order for the availability or use of a CPC recording. Strictly speaking, the application of the rule does not require a presumption. I simply interpret the rule to require compelling grounds for the exercise of the court’s discretion to make the order. It makes no difference whether that is considered a presumption.

[50] The plaintiff also argues that the necessary grounds arise out of the specific case before the court. That would seem logical; however, that is not an issue I need to decide as the defendant has not demonstrated any compelling grounds for the order, whether arising out of this case or not.

[51] The application of the defendant for an order pursuant to R. 5-2(7) is dismissed, with costs.






Can You Sue Twice For Damages From the Same Event?

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized. 104 Comments on Can You Sue Twice For Damages From the Same Event?


(UPDATE June 28, 2012 – the case discussed in the below post was reversed by the BC Court of Appeal in reasons for judgement released today; you can click here to read the Court of Appeal’s reasons)
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this topic.
In last week’s case (Singh v. McHatten) the Plaintiff was involved in a 2006 motor vehicle collision.  Following the collision ICBC found the Plaintiff at fault.  Displeased with this decision, the Plaintiff sued the Defendants in small claims court asking the Court to decide the issue of liability.  The Plaintiff sought damages for his deductible and increased insurance premiums.  His trial succeeded with the Court finding the Defendants at fault and awarding damages to the Plaintiff.
Before the limitation period expired the Plaintiff sued for damages stemming from his personal injuries from the same collision.  He did so in the BC Supreme Court.  ICBC brought a motion to dismiss the lawsuit arguing that the Plaintiff was “estopped” from suing again due to the small claims court trial.  Madam Justice Loo disagreed and allowed the personal injury lawsuit to proceed.  In dismissing ICBC’s motion the Court provided the following reasons:

[31] In my view the cause of action in the prior Small Claims action is distinct from the cause of action in this Court. While the Notice of Claim filed by the plaintiff in Small Claims Court claimed “vehicle damage & repair costs”, it is clear on a review of the transcript of the proceedings that the plaintiff’s vehicle had been repaired by ICBC; he was not seeking damages for repair costs because ICBC had paid the repair costs. The primary issue was ICBC’s determination that the plaintiff was wholly at fault for the accident and the plaintiff’s increased insurance premiums. Counsel for the plaintiff made it clear that the claim for personal injuries and damages would be dealt with later, and that was understood by counsel for ICBC. On that basis neither the third nor the fourth criteria for cause of action estoppel, or the first criteria for issue estoppel have been met.

[32] The facts of this case are similar to the facts in Innes v. Bui and Evans v. Campbell. Whether issue estoppel or cause of action estoppel is applicable, at the end of the day the court must determine whether it should exercise its discretion to bar the action by reason of res judicata or whether there are exceptional or special circumstances that should apply.

[33] I find that all of the criteria necessary for cause of action estoppel or issue estoppel have not been met. If I am wrong, there are special circumstances not to apply res judicata for to do so would cause a real injustice to the plaintiff. The plaintiff has not had his day in court on his claim for damages for personal injuries arising out of the accident. It may be that the issue of liability isres judicata, but the application was not argued on that basis. Rather, it is argued that the plaintiff should have brought his claim for personal injuries at the same time he brought his action in Small Claims Court. In certain circumstances that may be correct but only if the claim can be brought within the monetary limit of Small Claims Court. However, the fact remains that the plaintiff’s claim for damages for personal injuries has never been before a court and considered. To dismiss the plaintiff’s claim at this stage of the litigation would be denying the plaintiff an opportunity to be heard on that issue and unjust.

[34] The application is dismissed with costs.

As a point of interest, the recent BC Court of Appeal case of Innes v. Bui is worth reviewing for the Court’s comments on appropriate parties to sue when the only dispute following a collision is ICBC’s determination of fault and the premium consequences that flow from this.

"Black Box" Data Evidence and Courtroom Admissibility

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 49 Comments on "Black Box" Data Evidence and Courtroom Admissibility


The July, 2011 edition of the Advocate has a useful article titled “Electronic Crash Data in Cars: Technical and Legal Perspectives“.  The authors (Arthur Ross and Jonathan Lawrence) take time to discuss the increasing availability of Event Data Recorder (“EDR”) information following motor vehicle collisions and the legal hurdles this data can pose when being introduced in evidence.
I recommend that anyone interested in this topic review the article in full.  In short, the authors conclude that “We suggest that the approach taken in Gratton more appropriately reflects the correct judicial approach when a court is asked to admit and then weight any EDR evidence and any opinion derived from it. There is no legislation in Canada specifically governing the admission into evidence of EDR data.  The federal and provincial Evidence Acts should be amended to permit the admission of the evidence either as a “business record” or on a basis similar to blood-alcohol test devices“.
The authors reference the following useful authorities:
R v. Berner
R v. Cianchino
R v. Gill
R v. Moxam
R v. Brander
R v. Lanza
R v. Gratton

"Special Costs" Clause Takes the Teeth Out of ICBC's Formal Settlement Offer

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 9, Uncategorized.


I’ve written many times about the risks and consequences formal settlement offers can create in the course of a personal injury lawsuit.  Interesting reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, refusing to give ICBC double costs after the dismissal of a lawsuit because of a ‘special costs‘ clause in their formal offer.
In this week’s case (Wong v. Lee) the Plaintiff was injured in a 2003 motor vehicle collision.  She sued her driver but the lawsuit was dismissed with a Jury finding the driver was not negligent.  Typically such a result obligates the Plaintiff to pay the Defendant’s costs due to the BC Supreme Court’s Loser Pays system.
Prior to trial ICBC made a formal settlement offer of $60,000.  In these circumstances the Court has the discretion to award ‘Double Costs‘.  ICBC, on the Defendant’s behalf, asked for the Court to make such an order.  Madam Justice Dardi refused, however, finding that the ‘special costs’ clause which is contained in many of ICBC’s formal settlement offers operates to create uncertainty in the settlement process.  The Court provided the following useful reasons:








[27] The plaintiff’s overarching submission is that the inclusion of para. 6 in Appendix A of the Offer to Settle is fatal to the defendants’ application for double costs. The Offer to Settle was subject to the conditions in Appendix A which provides in para. 6 as follows:

Nothing in this offer detracts from the Defendants’ right to seek special costs against the Plaintiff or his counsel above and beyond the Defendants’ entitlement to costs under this offer. Neither the making nor the acceptance of this offer shall be deemed a waiver or estoppel by the Defendants in respect to any reprehensible or improper conduct on the part of the Plaintiff and / or his counsel in respect of this proceeding. [Emphasis added.]

[28] Based upon these terms, even if the plaintiff had accepted the Offer to Settle, the defendants nonetheless would have been at liberty to pursue the plaintiff for special costs. Thus, there was a potential risk that the acceptance of the offer may not have ended all of the outstanding disputes between the parties.

[29] The Court of Appeal, in discussing Rule 9-1(5) in Evans v. Jensen, 2011 BCCA 279, articulated at para. 35 that “the most obvious and accepted intent of this Rule, namely to promote settlement by providing certainty to the parties as to what to expect if they make, or refuse to accept, an offer to settle”. The Court reasoned as follows:

[41]      This conclusion is consistent with the importance the Legislature has placed on the role of settlement offers in encouraging the determination of disputes in a cost-efficient and expeditious manner. It has placed a premium on certainty of result as a key factor which parties consider in determining whether to make or accept an offer to settle. If the parties know in advance the consequences of their decision to make or accept an offer, whether by way of reward or punishment, they are in a better position to make a reasoned decision. If they think they may be excused from the otherwise punitive effect of a costs rule in relation to an offer to settle, they will be more inclined to take their chances in refusing to accept an offer. If they know they will have to live with the consequences set forth in the Rule, they are more likely to avoid the risk.

[42]      This certainty in terms of the result of either making, accepting or refusing to accept an offer is also more conducive to the overall object of the Rules, which is “to secure the just, speedy and inexpensive determination of every proceeding on its merits”.

[30] It clearly emerges from the authorities that an important objective of offers to settle under the Rules is to bring certainty and finality to litigation. The reservation of the defendants’ right to seek special costs from the plaintiff after the acceptance of the offer is antithetical to this objective. It cannot be said that the Offer to Settle provided a genuine incentive to settle. As was stated inGiles v. Westminster Savings and Credit Union, 2010 BCCA 282 at para. 88, “plaintiffs should not be penalized for declining an offer that did not provide a genuine incentive to settle in the circumstances”.

[31] In short, para. 6 in Appendix A of the Offer to Settle militates against an award of double costs…





[34] In weighing all of the factors, the most significant being the inclusion of para. 6 in Appendix A of the Offer to Settle, I conclude that the plaintiff should not be required to pay double costs.



ICBC Ordered to Provide Particulars in Support of "Wilfully False Statement" Pleading

Written by admin on . Posted in BCSC Civil Rule 3, Uncategorized. 53 Comments on ICBC Ordered to Provide Particulars in Support of "Wilfully False Statement" Pleading

Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, ordering ICBC to provide particulars in support of an allegation that the Plaintiff provided a wilfully false statement.
In last week’s case (Biedermann v. ICBC) the Plaintiff was sued for damages following three motor vehicle collisions.  ICBC refused to indemnify the Plaintiff arguing that he was in breach of his insurance by making a wilfully false statement.
The Plaintiff sued ICBC for coverage.  ICBC denied liability and repeated the ‘willfully false statement‘ allegation in their pleadings.  The Plaintiff asked for particulars of this allegation but ICBC refused to provide these.  Ultimately the Plaintiff brought a successful application to compel ICBC to provide particulars.  In making the order Master Bouck provided the following helpful reasons:








[16] The plaintiff relies on Rule 3-7(22) of the Supreme Court Civil Rules (“SCCR”) which provides that the court may order a party to serve further and better particulars of a matter stated in a pleading (my emphasis).

[17] In its response, the defendant helpfully outlines the legal principles relevant to the application and interpretation of this Rule.

[18] One of the stated purposes for ordering particulars is to ensure that the “real issues between the parties” are brought “fairly forward without surprise”: Cansulex Ltd. v. Perry, 1982 CarswellBC (C.A.) at para. 16. The six objectives of an order for particulars are said to be:

· to inform the other side of the nature of the case they have to meet as distinguished from the mode in which the case is to be proved;

· to prevent the other side from being taken by surprise at trial;

· to enable the other side to know what evidence they ought to be prepared with and to prepare for trial;

· to limit the generality of the pleadings;

· to limit and decide the issues to be tried, and as to which discovery is required; and

· to tie the hands of the party so that he cannot without leave go into any matters not included.

Cansulex Ltd. v. Perry at para. 15

[19] These factors are consistent with the present objectives of the SCCR in having a matter determined in a proportionate, just, speedy and inexpensive manner: Rule 1-3…

[21] After reviewing the pleadings and relevant authorities, I have concluded that the Response to Civil Claim does not provide sufficient particularity to meet the objectives of both the SCCRand those outlined by the court in Cansulex.

[22] Neither the Response to Civil Claim nor the response to this application identify the nature of the “wilfully false statement”. The Response separately pleads (and the defendant discloses in its affidavit material) that the plaintiff may have failed to update both the territory and rating for the Volkswagen Golf and also misrepresented the principal operator. Those details provide some information to the plaintiff as to the basis for denying the sought after insurance coverage. However, it is not at all clear from the Response whether these documents represent the “wilfully false statement” or whether the defence is relying on some other written or oral statement or representation given by the plaintiff.

[23] Nor does the Response address in any particularity the basis on which coverage is denied for the July 2008 accident. The Response simply says that Mr. Biedermann was no longer the legal owner of the vehicle involved in the accident.

[24] What is being sought by the plaintiff is not so much evidence which might support a finding that Mr. Biedermann made a statement or statements which were  “wilfully false”, but rather identification of what that “statement or representation” might be. Is it an insurance application form; a post-accident statement or representation; or some other form of communication? Without these particulars, the plaintiff (and the court) is left to guess whether such a statement or representation even exists…

[26] The defence has separately pled s. 75 (a) (ii) with respect to the 2009 accidents. However, s. 75 (c) is so broadly worded that the plaintiff (and the court) is unable to identify the nature of the impugned statement of misrepresentation with respect to any of the accidents.

[27] Accordingly, the order sought by the plaintiff is granted. Costs of the application will be to the plaintiff in the cause.









The Other Side of Bradley: Indivisible Injuries and Damage Deductions

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


In 2010 the BC Court of Appeal released welcome reasons for judgement (Bradley v. Groves) which made it easier for individuals to recover damages for “indivisible” injuries.  In short the Court confirmed that if two or more incidents caused an indivisible injury you could sue any of the party’s responsible for causing the harm and recover the whole of the loss.
There is, however, a downside to the benefits of Bradley v. Groves.  If you sustain an indivisible injury and receive compensation for it from one tortfeasor a subsequent tort feasor may be able to reduce their liability by the amount of the previous settlement or judgement.  This argument was considered in reasons for judgement released this week by the BC Supreme Court.
In this week’s case (Thomas v. Thompson) the Plaintiff sued for damages from a 2005 motor vehicle collision.  The trial judge found that some of the Plaintiff’s injuries were indivisible from those sustained in a 2002 collision.   The Plaintiff settled his claim for damages from the 2002 collision for $10,000.  Following trial the Defendant argued that the damage assessment for the 2005 collision should be reduced by $10,000 to take into account the previous settlement.
The Court noted that damages were assessed taking the Plaintiff’s pre-existing issues into account and that it would not be just to re-open the trial to allow for such a result.  Implicit in the Court’s judgement is that if the right evidence is tendered at trial such a deduction could be allowed.  Mr. Justice Brooke provided the following illustrative reasons:






[7] I did not accept the evidence of the plaintiff that he had made a full recovery from the 2002 accident. In assessing non-pecuniary damages for the effects of the accident of June 27, 2005, I took the plaintiff in the position he then occupied; that is, as continuing to make recovery from the earlier injuries. I did not treat him as if he were whole at the time of the second accident. Thus, I reject the submission that the settlement funds paid to the plaintiff following the first accident be deducted from the award for the damages sustained in the second accident. There is no double recovery.

[8] I refer to the decision of the British Columbia Court of Appeal in Bradley v. Groves, 2010 BCCA 361 where the plaintiff had been injured in a second accident which aggravated injuries sustained in the first accident. At paragraph 38 the Court said this:

Without a finding of divisibility, the appellant’s arguments cannot succeed. The trial judge found as a fact that the plaintiff’s injuries from the first accident and the second accident were indivisible. The defendant and the other motorist both caused and contributed to the plaintiff’s soft tissue injuries. He also found those injuries were not separable. There is no basis on which to interfere with these findings of fact. Flowing from them is the conclusion of joint and several liability.

[9] On all of the evidence before me, I found that the plaintiff’s injuries in the first and second accident were indivisible.

[10] While I accept that I have discretion to reopen the trial, I am not satisfied that it is right and just to do so.







For an example of this deduction argument succeeding see the 2008 BC Court of Appeal decision of Ashcroft v. Dhaliwal.