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Driver Faultless For Loss of Control Caused by "Agony of Collision"

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.

(Update May 30, 2012 – The Plaintiff’s appeal from the below decision was dismissed by the BC Court of Appeal in reasons for judgement released today)
As previously discussed, the principle of “agony of collision” can excuse a driver who loses control of their vehicle if the loss of control is preceded by an unexpected imminent danger not caused by them.  Reasons for judgement were released this week by the BC Supreme Court, Penticton Registry, demonstrating this.
In this week’s case (Robbins v. Webb) the Defendant was driving a pick-up truck in a southbound direction.  The roads were ‘very slippery‘ due to winter driving conditions.  The Plaintiff was approaching in the on-coming direction and began to fishtail.  The Defendant responded by hitting his brakes.  This caused the Defendant’s vehicle to lock up and proceed into the oncoming lane of travel.  The vehicles collided.
The Plaintiff sued the Defendant for the injuries he sustained in this crash.  The case was dismissed with the Court finding that the Plaintiff was careless in initially losing control and this resulted in the Defendants reasonable reaction.  In dismissing the lawsuit Mr. Justice Melnick provided the following reasons:








[13] Thus, I accept that Mr. Webb was fully in his own southbound lane when he first commenced braking. I also find that the reason Mr. Webb applied his brakes hard, locking them and causing his vehicle to slide into the northbound lane, was because Mr. Robbins had temporarily lost control of his vehicle due to the poor tread on the Cobalt’s tires coupled with his driving too fast for the icy road conditions, which caused the left rear of the Cobalt to skid sideways in a clockwise direction, crossing partially into the southbound lane. Mr. Webb reacted to a situation precipitated by Mr. Robbins, not the other way around.

[14] It may well be that if Mr. Webb had not braked, his vehicle would not have skidded into the oncoming lane. Mr. Robbins was probably in the process of regaining control of the Cobalt when he was struck. But, in the heat of the moment, one cannot say that Mr. Webb’s reaction was inappropriate. To his right was a steep uphill bank, so his options were very limited. He reacted to the position he found himself in as a result of the negligence of Mr. Robbins.









$210,000 Non-Pecuniary Damage Assessment for Frontal Lobe and Brachial Plexus Injuries

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Liability (fault) Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for severe injuries following a motor vehicle collision.
In last week’s case (Harrington v. Sangha) the Plaintiff was struck by a tractor trailer in 2007.  Another motorist who initially lost control causing the tractor-trailer to collide with the Plaintiff was found fully liable for the incident.   The Plaintiff suffered a frontal lobe brain injury in addition to a brachial plexus injury.

(Frontal Lobe Graphic via Wikipedia)
The Plaintiff was disabled from employment as a result of the pain from the brachial plexus injury and the cognitive changes due to the frontal lobe injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $210,000 Mr. Justice Willcock provided the following reasons:




[183] There is no doubt that the plaintiff has been severely and dramatically affected by the injuries sustained in the January 18, 2007, motor vehicle accident. There is no doubt with respect to the extent of her physical injuries. There is convincing evidence that she has suffered a traumatic brain injury. That injury has affected her cognition and may have reduced her global intelligence. There is ample evidence from her family and friends that her behaviour has been significantly affected. She is irritable and disinhibited. Her memory and concentration are poor. These changes are typical of those experienced by people who have suffered frontal lobe injuries of the sort sustained by Ms. Harrington. She is affected by chronic pain and headaches. She requires significant medication to deal with her pain and that has further impacted her emotional state and her intellectual functioning. By all accounts she is now unemployable.

[184] Fortunately, she is still largely independent and capable. As the defendants point out, she appears, to the casual observer and even to trained professionals on first encounter, to be someone who is functioning well and behaving appropriately. She is still capable of enjoying many of the amenities of life and may do so to a greater extent if she benefits from certain of the chronic pain management programs recommended to her.

[185] It is true, as the plaintiff submits, that there is no “range” of devastating injuries. All devastating injuries should attract an award of general damages at the upper limit permissible. I am of the view, however, that while Ms. Harrington will be seriously affected for the balance of her life by the significant injury she sustained, her injury cannot properly be described as devastating. Unlike the plaintiff in Morrison v. Cormier Vegetation Control, she is not limited to minimal participation in the activities of daily living. She is unlikely to be shunned and the range of relationships open to her should not be forever limited. She appears, still, to have reasonable insight into her situation and condition and has in fact formed relationships since her accident. By suggesting an award that is marginally less than the upper limit, the plaintiff’s counsel implicitly acknowledges that this is not a case where the rough upper limit of general damages is an appropriate award.

[186] On the other hand, the defendants, by referring only to the examining experts’ first impressions of Ms. Harrington and her appearance in the witness box at trial, underestimate the dramatic effect of the injury upon her. There is no reference in the defendant’s submissions to the common findings of the neuropsychologists with respect to the nature and extent of the consequences of the head injury.  Nor is there any reference to the testimony of the many family and friends who testified with respect to the dramatic change in the plaintiff’s behaviour. Taking into account both the very significant limitations in her physical activities associated with her brachial plexus injury and the functional impact of her head injury, I am of the view that general damages in this case should be assessed at $210,000.




BC's Auto Insurance System: Not "Perfect" But Better than Most

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

In response to criticism of BC’s auto insurance rates ICBC’s CEO Jon Schubert recently commented that while BC’s auto insurance system is not“perfect” it works due to it’s robust compensation rights.   Jon provided the following comments:
You can travel across Canada and find a range of public and private auto insurance and diverse arguments both for and against each system. We believe our system in British Columbia works for a number of reasons. We know some provinces offer lower-priced auto insurance but we also know some others offer higher-priced auto insurance — including some with private insurance. Any discussion on insurance should be based not just on what you pay but what you get for your money. Our medical and rehab benefits, for example, are three times more than those offered in Alberta….
This is one instance where I agree with ICBC.  While I won’t get into the debate about whether a system of private auto insurance is better than public insurance, one thing BC has done right is keeping a full tort system in place.
While other Provinces have stripped the rights of those injured to the benefit of insurance company profits, British Columbia has continued to preserve the right of victims to seek full lawful compensation when injured through the fault of other’s carelessness.
It is artificial to compare BC rates to those of other Provinces without looking behind the rates to the rights of auto-collision victims to seek compensation.   As an example, if a person suffers severe soft tissue injuries in BC due to another person’s careless driving they can seek meaningful damages for pain and suffering and loss of enjoyment of life.
The same injuries have been artificially capped in Provinces such as Alberta and Nova Scotia.  Ontario has also limited collision victim compensation rights and in a double blow are looking to reduce access to no-fault benefits.  Other Provinces like Manitoba and Saskatchewan have gone so far as to strip collision victims of the right to to sue for damages and instead instituted a WCB-like no-fault system.
Low rates are a good thing and provided the Government does not continue to raid ICBC’s revenues there is no reason why British Columbians could not continue to enjoy competitive rates and meaningful compensation rights when injured through the fault of others.

ICBC Under "No Obligation" To Advise You of Your Legal Rights

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

As previously discussed ICBC adjusters often operate in a legally permissible conflict of interest.  When dealing with ICBC it is important to know that “your” adjuster has no obligation to advise you of your legal rights regarding a claim for compensation against the at fault motorist.  This was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Morris v. Doe) the Plaintiff was injured in a hit and run collision.  She sued ICBC under s. 24 of the Insurance (Vehicle) Act although the claim was dismissed at trial with Madam Justice Ker finding that the Plaintiff failed to make all reasonable efforts to identify the at-fault motorist.
The Plaintiff was ordered to pay ICBC costs following trial.  The Plaintiff opposed arguing this would “financially cripple” her and that such a result would be unfair because ICBC failed to advise the Plaintiff of the steps she needs to take to make a successful claim for compensation.  Madam Justice Ker rejected this argument finding that the law imposes no duty on ICBC adjusters to do so.  In upholding the costs award against the Plaintiff the Court provided the following reasons:











[8] During his oral submissions, counsel for the plaintiff argued that costs ought not to be awarded against the plaintiff as the defendant, the Insurance Corporation of British Columbia (“ICBC”), through its adjusters ought to have advised the plaintiff of the importance of immediately obtaining legal advice on the steps she needed to take to satisfy the unidentified motorist provisions of the Act.  Counsel appears to argue that it is this failure and circumstance connected with the case that renders it manifestly unfair to award costs against the plaintiff in this case, citing Currie v. Thomas Estate (1985), 19 D.L.R. (4th) 594 (B.C.C.A.) at para. 47 and the reference therein to the speech of Viscount Cave in Donald Campbell & Co. v. Pollack, [1927] A.C. 732 (H.L).

[9] No statutory authority or case authority was provided to support the proposition that ICBC through its employees has a duty to provide a potential plaintiff with a warning that it is in their interests to obtain legal advice.  Indeed, counsel recognized and seemed to suggest that the law, although not there yet, ought to be moving in that direction. ..

[51] It is clear from the decisions cited in my original judgment dismissing the action that ICBC has no obligation to advise a plaintiff of the nature of the steps they need to take in order to satisfy the court they have taken all necessary and reasonable steps to ascertain the identity of the offending unidentified driver.

[52] I do not understand the jurisprudence or the governing statutory provisions to place any sort of positive obligation on ICBC through its employees to either advise a plaintiff of the steps they must take to ascertain an unknown driver’s identity or of the need to obtain independent legal advice on this provision.

[53] I cannot accede to counsel’s suggestion that ICBC or an insurer has a positive obligation to advise an insured of the need to obtain legal advice.  To do so would fundamentally change the nature of the contractual relationship between the insurer and insured and place the insurer in a position of quasi-authority requiring it to provide an element of legal advice, something adjusters and claims managers may not be well suited to do and may create a host of unanticipated and unforeseen consequences.

[54] While the comments of Barrow J. in Tessier are compelling as to the fairness that at least notifying a plaintiff of the provisions of the Act would appear to create, the fact of the matter is that there is no statutory authority mandating that ICBC advise or alert a potential plaintiff of the provisions of s. 24(5) of the Act.

[55] Moreover, the jurisprudence since 2003, and most recently re-stated in Wah Fai Plumbing, establishes that denying a successful litigant its costs based on pre-litigation conduct or for reasons that appear to impose quasi-liability on the successful party and sanction non-actionable conduct is not an appropriate or principled application of the costs rules.

[56] I must say again that, in this case, I have a great deal of sympathy for the unsuccessful plaintiff, particularly in light of ICBC’s failure to set her straight at the outset when it was apparent she did not understand the process.  However, by the time the statement of defence was issued in October 2007, it would have been clear to the plaintiff and her counsel that her case was in peril, or definitely not nearly as strong as initially believed.













If all of this seems unfair you can click here to read my views regarding a solution to this conflict of interest.

More From the BC Court of Appeal on Causation in Personal Injury Lawsuits

Written by admin on . Posted in Uncategorized.

The BC Court of Appeal released reasons for judgment this week providing a short and useful summary of the law of causation in personal injury lawsuits.
In this week’s case (Farrant v. Laktin) the Plaintiff was injured in a 2004 collision.  He had pre-existing problems due to spinal degeneration which continued to bother him at the time of the collision.  Following the collision the Plaintiff’s symptoms worsened.  At trial the Court rejected the argument that the Plaintiff’s on-going symptoms were related to the crash.  The BC Court of Appeal ordered a new trial finding that the Trial Judge did not apply the proper legal test for causation.  In doing so the Court provided the following helpful summary of the law:






[8] To justify compensation for his disabling pain, the plaintiff must establish a causal connection between the defendant’s negligence and that pain.

[9] The general test for causation, established in Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17, is the “but for” test: “but for” the accident, would the plaintiff have suffered the disabling pain? In Athey, the Court also stated that a plaintiff need not establish that the defendant’s negligence was the sole cause of the injury. If there are other potential non-tortious causes, such as the plaintiff’s spinal degeneration in this case, the defendant will still be found liable if the plaintiff can prove the accident caused or materially contributed to the disabling pain, beyond the de minimus range.

[10] In Resurfice Corp. v. Hanke, 2007 SCC 7, 1 S.C.R. 333, the Supreme Court affirmed the “but for” test remains the basic test for determining causation, but developed the concept of “material contribution” in a different manner than that used in Athey, formulating a “material contribution” test as an exception to the “but for” test, a matter that is not relevant to this appeal. The Court replaced the Athey definition of “material contribution” to the plaintiff’s injury with the concept of “a substantial connection” between the injury and the defendant’s conduct. These developments were usefully summarized by Mr. Justice Smith, writing for the majority, in Sam v. Wilson, 2007 BCCA 622 at para. 109:

“Material contribution”, as that phrase was used in Athey v. Leonati, is synonymous with “substantial connection”, as that phrase was used by McLachlin C.J.C. above in Resurfice Corp. v. Hanke.  This causal yardstick should not be confused with the “material contribution test”.  As McLachlin C.J.C. explained in Resurfice Corp. v. Hanke, at paras. 24 – 29, the “material contribution test” applies as an exception to the “but for” test of causation when it is impossible for the plaintiff to prove that the defendant’s negligent conduct caused the plaintiff’s injury using the “but for” test, where it is clear that the defendant breached a duty of care owed the plaintiff thereby exposing the plaintiff to an unreasonable risk of injury, and where the plaintiff’s injury falls within the ambit of the risk. …

[11] Thus, in applying the “but for” test, the trial judge was required to consider not just whether the defendant’s conduct was the sole cause of the plaintiff’s disabling pain, but also whether the plaintiff had established a substantial connection between the accident and that pain, beyond the de minimus level.







QEEG Evidence Not Admissible In BC Brain Injury Claim

Written by admin on . Posted in Civil Procedure, ICBC Brain Injury Cases, Uncategorized. 60 Comments on QEEG Evidence Not Admissible In BC Brain Injury Claim

(Image courtesy of Wikipedia)
Reasons for judgement were published this week by the BC Supreme Court, Victoria Registry, addressing the admissibility of QEEG Evidence in a brain injury claim.  In short the Court held that while such evidence may be admissible in appropriate cases, the evidence presented in the case was insufficient to meet the threshold test of reliability to admit “novel” evidence.
In this week’s case (Bialkowski v. Banfield) the Plaintiff was injured in a motor vehicle collision.  He allegedly suffered a traumatic brain injury.  In support of his claim he tired to introduce QEEG evidence  tendered through a neuropsychologist.  Mr. Justice Bracken declined to let the evidence in finding that the neuropsychologist was not properly qualified to introduce the QEEG evidence and further the evidence was not proven to be reliable.  In excluding the evidence Mr. Justice Bracken provided the following summary of his findings:



[3] Electroencephalography (“EEG”) is a means of recording the electrical activity of the brain.  Typically, electrical signals are received through 19 electrodes placed on certain areas of the scalp by attaching the electrodes to a cap that fits snugly over the patient’s head.  The electrical activity is then recorded either on paper, or digitally on a computer.  The clinician can then visually examine the recorded data to analyze the patterns of activity.

[4] QEEG is a relatively new neuroimaging technique.  It uses computer assisted analysis of EEG tests.  The raw EEG data is digitized and analyzed by means of a mathematical algorithm.  It is said that the computer analysis is capable of extracting more information from the raw EEG data and enables the clinician to observe more subtle anomalies than can be seen with the eye on standard visual analysis.  Using another program the digitized data is then compared to a normative database to determine if the data are consistent with what is normal for a comparable group of individuals…

[58] While there may be cases where QEEG evidence will be accepted as part of expert opinion in Canadian Courts it should only be through a neurologist who is trained and qualified in EEG testing and analysis.  In my view, only a trained electroencephalographer who has the skill, knowledge and training to recognize the potential for error is qualified to give opinion evidence of QEEG analysis.

[59] On the evidence presented in this case, I find the QEEG evidence to be novel science and not sufficiently reliable for admission into evidence on the principles established in J.L.J. andMohan.  I conclude it will not assist the trier of fact.  As science progresses this may change and the evidence may meet the test of reliability so as to be admissible at some point in the future.  As was noted in Seifert, the fact that expert evidence conflicts does not, by itself, make it inadmissible.  Coburn, et al, recognize this in the conclusion of their report at p. 23, where it is stated:

Used cautiously and with appropriate recognition of its limitations, QEEG offers the clinician an accurate laboratory test to aid in the detection and differential diagnosis of several common neuropsychiatric disorders.  …  Additional uses of QEEG showing promise but not yet sufficiently developed for routine clinical application include the prediction of medication efficacy and the prediction of the clinical cause of a disorder.

There is nothing in that conclusion to suggest it will become clinically useful in diagnosing traumatic brain injury in the near future; however, it remains open for such evidence to be offered through an appropriate expert if and when it satisfies the evidentiary requirements of Canadian Courts.

[60] The evidence of QEEG analysis given by Dr. Malcolm is rejected as not being offered by a qualified expert.  QEEG does not meet the requisite reliability threshold and is still novel science.



Striking Pleadings Under Rule 9-5: The "No Reasonable Prospect of Success" Test

Written by admin on . Posted in BCSC Civil Rule 9, Uncategorized. 109 Comments on Striking Pleadings Under Rule 9-5: The "No Reasonable Prospect of Success" Test


The Supreme Court of Canada recently addressed the legal framework for striking pleadings pursuant to Rule 9-5.  In short, the Court repeated the longstanding test that pleadings will only be dismissed under the BC Supreme Court Rules if they have ‘no reasonable prospect of success‘ and that the parties cannot tender evidence in support of these applications.
In the recent case (R v. Imperial Tobacco Ltd.) the Court was faced with a lawsuit by British Columbia seeking to recover health care costs for tobacco related illnesses.  In the course of defending the lawsuit the tobacco companies issued Third Party Pleadings against the Government of Canada pleading that if they are held liable to the Government of BC the Federal Government should indemnify the Tobacco Companies for damages payable.  The Government of Canada brought an application to dismiss the Third Party Pleadings.
The Supreme Court of Canada granted the application and dismissed the Third Party Pleadings.  In doing so the Court provided the following legal framework for Pleading strike applications:
This Court has reiterated the test on many occasions.  A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action… Another way of putting the test is that the claim has no reasonable prospect of success.  Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial…

[19] The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation.  It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.

[20] This promotes two goods — efficiency in the conduct of the litigation and correct results.  Striking out claims that have no reasonable prospect of success promotes litigation efficiency, reducing time and cost.  The litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless.  The same applies to judges and juries, whose attention is focused where it should be — on claims that have a reasonable chance of success.  The efficiency gained by weeding out unmeritorious claims in turn contributes to better justice.  The more the evidence and arguments are trained on the real issues, the more likely it is that the trial process will successfully come to grips with the parties’ respective positions on those issues and the merits of the case.

[21] Valuable as it is, the motion to strike is a tool that must be used with care.  The law is not static and unchanging.  Actions that yesterday were deemed hopeless may tomorrow succeed.  Before Donoghue v. Stevenson, [1932] A.C. 562 (H.L.) introduced a general duty of care to one’s neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer.  Before Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), a tort action for negligent misstatement would have been regarded as incapable of success.  The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim.   The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed.  The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

[22] A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven: Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 455.  No evidence is admissible on such a motion: r. 19(27) of the Supreme Court Rules (now r. 9-5(2) of the Supreme Court Civil Rules).  It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim.  A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses.  The claimant may not be in a position to prove the facts pleaded at the time of the motion.  It may only hope to be able to prove them.  But plead them it must.  The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated.  If they are not pleaded, the exercise cannot be properly conducted…

It is not about evidence, but the pleadings.  The facts pleaded are taken as true.  Whether the evidence substantiates the pleaded facts, now or at some future date, is irrelevant to the motion to strike.  The judge on the motion to strike cannot consider what evidence adduced in the future might or might not show.  To require the judge to do so would be to gut the motion to strike of its logic and ultimately render it useless.

[24] This is not unfair to the claimant.  The presumption that the facts pleaded are true operates in the claimant’s favour.  The claimant chooses what facts to plead, with a view to the cause of action it is asserting.  If new developments raise new possibilities — as they sometimes do — the remedy is to amend the pleadings to plead new facts at that time.

[25] Related to the issue of whether the motion should be refused because of the possibility of unknown evidence appearing at a future date is the issue of speculation.  The judge on a motion to strike asks if the claim has any reasonable prospect of success.  In the world of abstract speculation, there is a mathematical chance that any number of things might happen.  That is not what the test on a motion to strike seeks to determine.  Rather, it operates on the assumption that the claim will proceed through the court system in the usual way — in an adversarial system where judges are under a duty to apply the law as set out in (and as it may develop from) statutes and precedent.  The question is whether, considered in the context of the law and the litigation process, the claim has no reasonable chance of succeeding.

This decision is also worth reviewing for the Court’s discussion of the concepts of proximity, forseeability, and private law duties of care which I will address in a separate post.

Lawyer Shopping Not Enough to Create Conflict of Interest in Personal Injury Claim

Written by admin on . Posted in Uncategorized. 53 Comments on Lawyer Shopping Not Enough to Create Conflict of Interest in Personal Injury Claim


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing conflicts of interest when a lawyer sues a person who previously contacted their firm following a motor vehicle collision.
In last week’s case (Caballero v. O’Callaghan) the Defendant was the owner of a vehicle which was involved in a single vehicle collision.  The Plaintiff was a passenger in the vehicle and was injured.  Shortly after the collision the Defendant owner contacted several lawfirms including the firm that eventually was retained by the Plaintiff.
The Plaintiff ultimately sued both the owner and driver of the vehicle he was in.  A few years into the lawsuit the Defendant owner brought an application to dismiss the Plaintiff’s lawyer arguing he was acting in a conflict of interest.   Madam Justice Loo disagreed finding that while the Defendant did phone the Plaintiff’s lawfirm, he never spoke with the Plaintiff’s lawyer nor did he retain the firm.  In dismissing the application the Court provided the following reasons:



[36] The facts in this case fall within what is often referred to in these types of cases as a “shopping case”. Mr. Wells was looking or shopping for a lawyer and for legal advice. What he told Ms. D’Souza is most likely what he told the “numerous” lawyers he contacted on September 20, 2006.

[37] A reasonable person informed of all of the facts would not conclude there is a risk that Mr. Wells will be prejudiced by the information he provided to Ms. D’Souza or Slater Vecchio, or that anything unjust would arise.

[38] If I am wrong, there are other facts that I can take into account in deciding whether this application should succeed or whether Mr. Cantu should maintain his right to be represented by the counsel of his choice. Mr. Wells has known about this action since at least in or around October 20, 2008 when Quinlan Abrioux entered an appearance on his behalf. Yet he delayed almost two years before he first raised the issue of a conflict. Since December 2006 Slater Vecchio has done a significant amount of preparatory work for the trial which is set for ten days commencing February 6, 2012. Mr. Cantu selected Slater Vecchio as his counsel. As a result of the injuries he sustained in the accident, Mr. Cantu had to close his business, has been unable to find other employment, and is currently working with a vocation counsellor to consider his future employment options. He has either undergone or expects to undergo hip surgery with an expected long and painful recovery period. He is anxious to have the action resolved and move on with his life.

[39] However, apart from any delay argument, I conclude that the interests of justice do not require this Court to remove Slater Vecchio as lawyer for the plaintiff and the application is dismissed with costs.



$30,000 Non-Pecuniary Damage Assessment for "Moderate" Soft Tissue Injuries

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

Adding to this site’s ICBC claims pain and suffering database, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a moderate soft tissue injury.
In today’s case (Olianka v. Spagnol) the Plaintiff was injured in a 2008 collision.  Fault was admitted.   The evidence was not particularly contested and the trial proceeded summarily.  The Court found the Plaintiff suffered moderate soft tissue injuries that were temporarily disabling with symptoms that were expected to linger into the future.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $30,000 Mr. Justice Blair provided the following reasons:




[21] Mr. Olianka suffered what Dr. Neumann describes as a moderate soft tissue injury to the neck, a moderate soft tissue injury to the mid-back and a mild soft tissue injury to his lower back. I accept Mr. Olianka’s evidence with respect to his collision-related injuries and that these injuries precluded him from working for a four-month period. I also accept that Mr. Olianka continues to experience intermittent pain in his neck and upper back which is expected to last for some unknown period. Dr. Neumann opined that by January 14, 2011, Mr. Olianka had made a significant recovery from his injuries and concluded that his residual pain should gradually subside in intensity and frequency. He did not expect Mr. Olianka to suffer any permanent consequences from his collision-related injuries.

[22] Nevertheless, the optimism expressed by Dr. Neumann and reflected in Mr. Olianka’s increased activity level does not overshadow Mr. Olianka’s difficulties for the 27-month period between the collision and Dr. Neumann’s report dated January 14, 2011. In that period, Mr. Olianka, due to his injuries, was unable to work for four months and subsequently those injuries compromised his ability to fully perform his work as he had done prior to the collision. In addition, he was unable to enjoy the leisure activities in which he had participated prior to the collision. This 27-month recovery period must be considered when ascertaining the non-pecuniary damages award to which Mr. Olianka is entitled. I accept that he continues, to some lesser degree, to suffer intermittent pain from his collision-related injuries as described by both Mr. Olianka and Dr. Neumann…





[28] Based on the authorities and the unique evidence found in this case, I find that the appropriate award for Mr. Olianka’s non-pecuniary damages is $30,000, taking into account all contingencies, given the extent of the soft tissue injuries to his neck and back, the disability period of 27 months post-collision, as well as the lingering and ongoing aspect of his injuries, the limitations that the injuries imposed, not just on his ability to work, but also on his ability to partake in those physical activities which occupied his life prior to the collision and which he has only recently been able to resume albeit to a limited extent.

BC Supreme Court Declines Jurisdiction in Out of Province Sexual Abuse Action

Written by admin on . Posted in Civil Procedure, Sexual Assault Civil Cases, Uncategorized. 43 Comments on BC Supreme Court Declines Jurisdiction in Out of Province Sexual Abuse Action


Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing the jurisdiction of the BC Supreme Court to hear a claim involving alleged sexual abuse which took place out of  Province.
In this week’s case (TC v. AM) the Plaintiff sued her former father in law in the BC Supreme Court claiming he sexually abused her in Montreal.  The Defendant, at all material times, lived in Montreal and continued to reside there when the lawsuit started.  He did not respond to the lawsuit.  The Court ultimately found that no jurisdiction existed to hear this case pursuant to the Court Jurisdiction and Proceedings Transfer Act.  In doing so the Mr. Justice Harvey provided the following reasons:





[8] None of the presumptive categories under s. 10 of the CJPTA apply in these circumstances; however, the language of s. 10 clearly indicates that those categories do not limit “the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based.”

[9] The common law threshold for a real and substantial connection is high. In Josephson v. Balfour Recreation Commission, 2010 BCSC 603, Loo J. stated:

[79] The real and substantial connection test requires that there be a significant or substantial connection: Beals v. Saldanha, [2003] 3 S.C.R. 416; and UniNet Technologies Inc. v. Communication Services Inc., 2005 BCCA 114.

[10] The jurisprudence in British Columbia suggests that the mere residence of the plaintiff in British Columbia is not sufficient to establish jurisdiction over a defendant resident outside of the province. Something more is required. This was discussed in Dembroski v. Rhainds, 2011 BCCA 185, where Hall J. referred to the decision of Bruce J. in Roed v. Scheffler, 2009 BCSC 731…

[11] This case lacks the additional element, beyond the mere residence of the plaintiff in this jurisdiction, to support a finding that there is a real and substantial connection between British Columbia and the facts on which a proceeding is based. The action concerns allegations of sexual assault in Quebec in relation to a defendant who continues to reside in Quebec. There is not a “significant connection” as required by the Supreme Court of Canada in Beals v. Saldanha, [2003] 3 S.C.R. 416.

[12] That the plaintiff suffers damages here is, as was the case in Roed, purely as a result of her residence in British Columbia. As stated by Dickson J. in Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, and referred to in Dembroski, if the essence of a tort is injury, “a paramount factor in determining situs must be the place of the invasion of one’s right to bodily security.” That location in this case is Quebec. The motor vehicle scenarios in Roed and Dembroski are analogous for the purposes of determining territorial competence, as they concern tortious conduct in another jurisdiction. The presence of the plaintiff in British Columbia alone does not establish a real and substantial connection in relation to events that occurred in another jurisdiction where the defendant continues to reside.

[13] Accordingly, I dismiss the plaintiff’s application.