Skip to main content

LVI Collision "Like Bumping a Shopping Cart" Results in Damage Award

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.


As I’ve discussed on many occasions, there is little credible medical evidence to suggest that a low impact collision cannot result in injury.  The LVI defense fails at trial far more than it succeeds.  That said, there is no denying that a claim for damages can be met with more skepticism if the triggering event is a low impact collision as opposed to a severe crash.  For this reason ICBC and other insurers like to highlight the minimal forces involved when Low Velocity Impact claims proceed to trial.  This was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s claim (Ryan v. Klakowich) the Plaintiff was involved in a 2008 collision.  Fault for the crash was admitted.  The collision involved minimal forces with the defendant testifying that the impact was “like bumping a shopping cart against a counter“.  Despite this, and despite some reliability concerns the trial judge raised with the Plaintiff’s evidence, the Court accepted the Plaintiff sustained real injury.  In assessing non-pecuniary damages at $25,000 Madam Justice Ross provided the following reasons:



[73] Ms. Ryan’s complaints arise from a collision of very low impact, producing minimal damage to her vehicle and none to the defendant’s. Her injuries are said to be soft tissue injuries for which there are no objective indicators. In such circumstances Ms. Ryan’s credibility is of particular importance since the physicians are to large extent dependent upon her subjective reports in reaching their opinions.

[74] I find Ms. Ryan to be a poor historian. It is my impression that she minimized the extent and duration of the injuries she suffered in previous accidents, both in her testimony and in her reports to physicians in preparation for this litigation. She also minimized the significance of the other medical conditions with which she was dealing. It is her testimony that the burden of taking care of her mother did not interfere with her work or with her social life because her other siblings would fill in. However, this was inconsistent with what she told Dr. Anderson. He reported that she was in considerable distress concerning the care of her mother on several occasions, reporting that the disproportionate burden fell upon her and that her siblings were not providing sufficient assistance…

[78] The medical evidence is of limited assistance since the opinions are to a great extent dependent upon Ms. Ryan’s subjective reports. In addition, Dr. Anderson had not treated Ms. Ryan before the 2008 Accident and so had no personal knowledge of Ms. Ryan’s condition prior to the 2008 Accident. Ms. Ryan did not provide Dr. Jung with a full history. Finally, the additional investigations that Dr. Jung and Dr. Bishop recommended have not been undertaken. In the result, there is no medical opinion that bears on the causation of the neurological symptoms Ms. Ryan now complains of in her right arm.

[79] I accept that Ms. Ryan suffered mild to moderate soft tissue injuries to her neck and shoulder girdle in the 2008 Accident. As a consequence, she experienced pain and stiffness in her neck, upper back and shoulder and headaches. I accept that these symptoms have lingered. While it is the case that many, perhaps most people, would not have suffered such injuries in such an accident, I accept that the combination of her previous injuries, scoliosis and osteoporosis would render her more fragile and susceptible of injury…

[83] I award $25,000 in non-pecuniary damages.

More on Registered Owner Liability and the Implied Consent Test

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 108 Comments on More on Registered Owner Liability and the Implied Consent Test


As previously discussed, section 86 of the BC Motor Vehicle Act makes owners or lessees of vehicles responsible for any damage or loss caused by the operation of their vehicle by an individual to whom consent was given.  In other words, if you let someone drive your vehicle and they cause a collision you can be sued to pay the damages.
Usually owners admit they allowed the driver to operate the vehicle.  In these cases there is ‘express consent‘.  Where there is no express agreement the law looks into the circumstances to decide if there was ‘implied consent‘.   Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dealing with this area of law.
In this week’s case (Green v. Pelley) two plaintiffs sustained serious injuries when their vehicle was struck by a vehicle (owned by the Defendant McIvor) and driven by the Defendant Pelley.
The Plaintiff’s sued for damages.   There was no issue that Pelley did not have express consent to drive McIvor’s vehicle.  The Plaintiff’s alleged that there was implied consent.  Mr. Justice Saunders disagreed and dismissed the claim against the Defendant McIvor.  In doing so the Court summarized the legal principles with respect to ‘implied consent‘ as follows:





[39] The test for a finding of implied consent under s. 86, in situations where consent has been given to one person but the vehicle ends up being driven by a third party, is as set out in Hartley v. Saunders (1962), 33 D.L.R. (2d) 638 (B.C.S.C.), and in Godsman v. Peck (1997), 29 B.C.L.R. (3d) 37 (C.A.). The evidence must establish that the vehicle owner had both an expectation and willingness that a third party would drive the vehicle.  Both an expectation and willingness must be shown.  One without the other will not suffice: L’Heureux v. Eustache, 2003 BCSC 347 at para. 9.

[40] The requirement that an owner have an actual expectation of a third party driving the vehicle is relaxed, where it is clear from the circumstances that consent would have been given, if sought, as a matter of course in the particular circumstances confronting the person who is in possession by consent: dissenting judgment of Porter J.A. in Palsky v. Humphrey (1963), [1964] 41 D.L.R. (2d) 156 (Alta. S.C. (A.D.)), as approved of and adopted by the Supreme Court of Canada on appeal, [1964] S.C.R. 580 at 662…

[53] The plaintiffs urge me to take a broad view of the concept of consent in light of the legislative intent behind s. 86, which is said to be that of maximizing the availability of compensation for injured parties.  Indeed, Macdonell J. stated in the Bareham decision, at para. 27, that the only public policy reasons to be considered in interpreting s. 86:

. . . are those in favour of protecting innocent third parties seeking compensation for injuries suffered at the hands of negligent automobile drivers and, vicariously, owners.  . . .

Bareham, as I have noted, is a case in which consent was found.  In Bareham, the public policy argument addresses the subject of whether the consent had been vitiated by the driver’s illegal use of the vehicle.

[54] The same public policy considerations were cited by the B.C. Court of Appeal in Morrison (Committee of) v. Cormier Vegetation Control Ltd. (1996), [1997] 28 B.C.L.R. (3d) 280 (C.A.), at para. 24, as justifying the legislation’s departure from the common law’s strict approach to vicarious liability.  These same considerations were also cited in Barreiro v. Arana, 2003 BCCA 58, as justifying the statute’s modification of the law of agency.

[55] Godsman, in which the Court of Appeal approved of and restated the “willingness and expectation” test, was decided after Morrison and Bareham.  I do not read Barreiro as having modified the Godsman test in any way.

[56] I find that there is no evidence of Mr. McIvor having consented by implication to Pelley’s operation of the vehicle.  Therefore, as I understand the issue before me, the claim of the plaintiffs against Mr. McIvor based on vicarious liability is to be dismissed.





When Servient Motorists Become Dominant

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 43 Comments on When Servient Motorists Become Dominant

Section 175 of the Motor Vehicle Act addresses when a motorist faced with a stop sign gains the right of way when crossing a highway.   In short, motorists faced with a stop sign can enter an intersection after stopping provided that approaching traffic is not “so close that it constitutes an immediate hazard“.  Once a motorist complies with this requirement and “proceeds with caution” into the intersection they gain the right of way and approaching traffic must yield the right of way.
Anyone who has spent any time on the road knows that this reversal of the right of way is not always honoured by motorists.  However, failure to follow section 175 of the Motor Vehicle Act can not only lead to a moving violation, but also to a significant apportionment of fault following a collision.  This was discussed in reasons for judgement released last week by the BC Court of Appeal.
In last week’s case (Lutley v. Southern) the Defendant (Appellant) was attempting to cross Oak Street in Vancouver, BC.  The Defendant was travelling on 67th Avenue.  She had a stop sign in her direction of travel.  At the intersection Oak Street had 6 lanes of travel.  The Plaintiff (Respondent) was travelling in the lane furthest away from where the Defendant entered the intersection.  As the Plaintiff approached the intersection she was faced with a flashing green light.  Neither party saw each other’s vehicle until it was too late and a collision occurred.

(Accident Reconstruction Software courtesy of SmartDraw)
At trial both parties were found at fault with a 60/40 split of liability in the Plaintiff’s favour.  The Defendant appealed arguing the Plaintiff should have shouldered more than 40% of the blame.  The BCCA dismissed the Appeal finding that while there was a range of acceptable outcomes in apportioning blame there was no error in law in the trial judge’s assessment.  There was, however, a strong dissent written by Mr. Justice Chiasson stating as follows:












[48] The respondent was under a positive obligation to be able to stop before entering the intersection.  She was unable to do so.   The appellant was lawfully in the intersection and entitled to the right of way.  The respondent was passing stopped vehicles on her left with clear knowledge of potential danger at the intersection.  On the evidence of the respondent and Mr. Nagy, it is apparent that the appellant had been in the intersection for some time.  The respondent gave various estimates of how long the 67th Avenue light had been green (from four to six seconds; it turned green when she was approximately three normal city blocks away; there was ample time for a pedestrian or motor vehicle to traverse the intersection). The appellant had no indication that there was a vehicle in the curb lane or that the respondent would enter the intersection in complete disregard of her statutory obligations.

[49] Lane six presented a new danger to the appellant. While in my view her speed through the intersection was not inappropriate, she testified that she did not slow down before entering lane six.  The judge rejected her evidence that she looked up the lane and he concluded both vehicles were, at that point, travelling too quickly.  Had the appellant slowed it is possible that she may have seen the respondent, although this also may have placed her into a position where the collision would have been more serious.

[50] While a dominant driver is entitled to assume servient drivers will obey the rules of the road, a dominant driver cannot act unrealistically.  It is an unfortunate reality that servient drivers like the respondent do disregard their obligations and dominant drivers cannot ignore that fact.  A dominant driver passing through an intersection who is confronted with a new risk – a seemingly empty curb lane the view of which is obstructed – must proceed with some caution.

[51] An appellate court rarely will interfere with a trial judge’s apportionment of liability (MacDonald (litigation guardian of) v. Goertz, 2009 BCCA 358, para. 58), but will do so if the judge has made a palpable and overriding error of fact, misapprehended the evidence or erred in principle.  It is an error of law not to take into account the fact a party was the dominant driver (Bedwell v. McGill, 2008 BCCA 6, para. 59) or to fail to recognize the significance of a servient driver’s negligence (Gautreau v. Hollige, 2000 BCCA 390, para. 18; quoted in Bedwell)

[52] In my view, the trial judge erred in law by failing to conclude that the appellant was lawfully in the intersection and had the right of way and in failing to address the onerous responsibility of the respondent. The respondent was passing on the right of stopped vehicles, was the servient driver and obliged to yield the right of way to the appellant and was entering an intersection with a flashing green light with the obligation to be able to stop her vehicle before entering the intersection.  I would place the majority of fault on the respondent and would apportion liability 85% against her and 15% against the appellant.













The First Anniversary of BC's "New" Rules of Court

Written by admin on . Posted in Uncategorized.


It’s now been one year since the new BC Supreme Court Civil Rules have come into force.   While there has been a fair amount of judicial interpretation and application of the New Rules there is still a long way to go before there is clarity and certainty with respect to the application of all of the new provisions.
Here are some quick links to my archived posts following the judicial development of some of the more commented on new Rules:
Proportionality Cases
Expert Reports
“Independent” Medical Exams
Case Planning Conferences
Trial Management Conferences
Summary Trials and the Severance of Issues
Adjournment Applications
Deposition Evidence
Examination for Discovery
Costs
Fast Track Litigation (Rule 15)
Document Production
Litigation Guardians
Affidavit Evidence
The Transition Rule (Rule 24)
Particulars
Amending Pleadings
The Implied Undertaking of Confidentiality
Chambers Applications
Formal Settlement Offers
It’s also worth noting that Order in Council # 191 comes into force today making some further changes to the BC Supreme Court Civil Rules.

What's Sex Got to do With It? Gender and Damages for Diminished Earning Capacity

Written by admin on . Posted in ICBC Wage Loss, Uncategorized. 117 Comments on What's Sex Got to do With It? Gender and Damages for Diminished Earning Capacity


Imagine two individuals catastrophically injured due to the negligence of others.  The injuries will be totally disabling over the course of their lifetime.  The individuals are identical in every way except for their gender.  Statistics tell us that the man’s lifetime earnings absent injury would likely exceed those of the woman.  In these circumstances is it fair to award the woman less damages in a personal injury lawsuit for diminished earning capacity (future wage loss)?
The BC Court of Appeal addressed this issue in reasons for judgement released this week (Steinebach v. O’Brien).  In short the BC Court of Appeal held that while it is improper to reduce a female’s diminished earning capacity award based on “simply discriminatory” components, statistics as to the difference of lifetime earnings cannot wholly be ignored.  However, the Court went further and stated that it would be proper to offset this difference in part by adding an economic value to females statistically greater participation in child-rearing and housekeeping activities and addressing this in damages for pecuniary loss.   Mr. Justice Groberbam provided the following useful reasons for judgement:

[60] There are, in fact, a number of different components that account for the difference between women’s average earnings and those of men. Some are simply discriminatory – they reflect historical patterns of undervaluing the work that women do, and paying them less than men for similar work. The defendants appear to concede that such factors should not be used to reduce damage awards for infant female plaintiffs.

[61] It seems to me that such a concession is appropriate. It is no longer seen as acceptable that women should earn less than men simply by virtue of their sex. It would appear that such blatant discrimination is vanishing; in any event, the courts should not countenance such discrimination by incorporating it into damages awards.

[62] Others components of the difference between men’s and women’s average earnings may, indeed, reflect lifestyle choices. Of particular importance are patterns of earning related to childbearing and child-rearing. Women, to a much greater extent than men, leave the workforce or engage in part-time work so that they are able to bear and raise children.

[63] In MacCabe v. Westlock Roman Catholic Separate School District No. 110, 2001 ABCA 257, 96 Alta. L.R. (3d) 217, it was held that it was an error in principle for the trial judge not to have taken into account negative contingencies associated with childbirth and child-rearing in assessing future income loss for a female plaintiff who had indicated, before she suffered her injury, that she wished to have several children and would consider staying home with them…

[65] To some extent, I agree with the reasoning of the Alberta Court of Appeal. The fundamental purpose of tort damages is compensation of victims. It would be highly artificial to impose on that system of compensation a regime designed to deal with inequalities that are inherent in the lifestyle choices that people actually make.

[66] The difficulty I have with the approach in MacCabe, however, is that it treats child-rearing as an activity having no economic value. I do not believe that this reflects the reality for most parents who choose to withdraw from the paid workforce to raise children, or choose to take part-time work in preference to full-time work. Nor am I of the view that the law requires child-rearing to be treated as a non-economic activity.

[67] The value of child-rearing has long been recognized in the domain of family law. Spouses are treated as economic partners. Where one takes over child-rearing responsibilities that would otherwise have to be paid for or shared by a spouse, he or she is still seen as contributing to the family’s economic well-being, and this may have an effect on family asset division in the case of marital breakdown.

[68] This is not a mere quirk of family law, but the reality of most family units where one spouse withdraws from the workforce (or reduces his or her working hours) in order to raise children. Such a decision is rarely taken lightly, and is typically accompanied by a re-allocation of family resources rather than being a hardship suffered by the non-income-earning spouse alone.

[69] The burden of economic costs being a shared one, it can be misleading to represent it as simply being borne by the spouse who does not earn an income. Yet, for the purposes of earnings tables, this is exactly how the burden is reflected. For certain purposes, it would be more accurate to account for the shared burden by notionally transferring earnings from the income-earning partner to the partner who decreases his or her income in order to devote time and effort to child-rearing.

[70] Women are much more likely than men to leave the workforce temporarily or reduce their paid work in order to take on homemaking or child-rearing roles. The result is that earnings tables reflect the economic costs associated with such decisions as falling disproportionately on women. Earnings for men are thereby overstated, while those for women are understated.

[71] Even if it were to reject the idea of treating the costs associated with such decisions as shared ones, the Court would still have to adjust earnings table amounts to reflect the economic value of child-rearing. At one time, it may have been debatable whether a spouse who took on child-rearing or housekeeping responsibilities could claim compensation if, as a result of a tort, s/he became unable to continue to perform them (see Regina Graycar, “Hoovering as a Hobby and other Stories: Gendered Assessments of Personal Injury Damages” (1997) 31 U.B.C. L. Rev. 17). It is now established, however, that a person who undertakes housekeeping activities and is disabled from doing so can make a claim to pecuniary damages: Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d) 178 (B.C. C.A.).

[72] It seems to me that, in line with Kroeker, the courts must not presume that the absence of monetary recompense for an activity necessarily means that pecuniary damages will be unavailable to a plaintiff who is disabled from engaging in it. Because earnings tables fail to account for the value of such unpaid activities as child-rearing and housekeeping, they will tend to represent under-estimates of a plaintiff’s loss of future earnings.

A Tale of Two Accidents: More on the Importance of Independent Witnesses

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

As previously discussed, where motorists have different versions of events following a collision the evidence of independent witnesses can be crucial in addressing the issue of fault.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Chang v. Alcuaz) the Plaintiff was involved in a two vehicle collision in 2008.  As she was travelling Eastbound on 33rd Avenue her vehicle was struck as she crossed Main Street.  The Defendant was travelling Southbound on Main Street at the time the vehicles collided.

The impact was severe with the plaintiff testifying that as she approached the intersection “she recalled that the colour of the traffic light was green” and that “she has no other recollection of the accident.  Her next memory is of waking up two days later in the hospital.”
The Defendant disputed this version and gave evidence that he had the green light.  Mr. Justice McEwan ultimately preferred the Defendant’s evidence and dismissed the Plaintiff’s claim.  In reaching this conclusion the Court placed significant weight on the evidence of two independent witnesses who saw the collision.  Mr. Justice McEwan provided the following reasons for judgement:
[28] The evidence in this case is contradictory and unreliable in many of its details.  It is often difficult, in cases of this kind, to put much reliance on estimates of time and distance given by witnesses in connection with a surprising and traumatic event…


[29] Liability comes down to two questions:

(1)  who had the benefit of the light, and

(2)  was the operator of the vehicle with the benefit of the light, nonetheless responsible to some degree, in the circumstances.

[30] Respecting the first question, there is reason to doubt the plaintiff’s assertion that she had the benefit of a green light as she now asserts.  She was unconscious following the accident and her original statement is at odds with what she presently says.  It would be difficult to accept her version of the event without corroboration.

[31] The assistance offered by the witness, Ms. Currimbhoy, is highly debatable.  She, alone, among the witnesses, suggests that the event happened in daylight.  On a common sense basis, as I have indicated, she could not be right about her proximity to the plaintiff at the time of the collision.  There is also the difficulty that none of the other witnesses saw any other vehicle proximate to the collision.  There is a further difficulty posed by Mr. Humphrey’s flatly stated observation that he saw the woman who identified herself as a co-worker pull up after the collision.  It is not conclusively established that that was the same person, but it is telling that neither Mr. Jantzen, nor Mr. Humphrey, who observed the entire incident, noted any other vehicle near the scene.

[32] The defendant, Mr. Jantzen and Mr. Humphrey all say firmly that the defendant had the benefit of the green light when he entered the intersection.  Mr. Jantzen’s impression that the defendant may have been “timing” the light is borne out in the defendant’s description of what occurred, in that he says he slowed and then accelerated when he saw the light turn green.

[33] The evidence from the City of Vancouver respecting the timing of the lights that day at that intersection is also useful.  If the light was turning, an eastbound driver had 3.5 seconds of an amber light before the change.  For 1.5 seconds traffic in all directions is governed by a red light.  This means that by the time the light turns to green, eastbound traffic, at any reasonable speed, has had a warning and ample time to stop.

[34] The scenario posted by the plaintiff that the light was green or green turning amber as she hit the intersection would imply a red light north and southbound that continued for five seconds after the defendant entered the intersection.  This would preclude any impression of the defendant “timing” the light because he would have entered fully on red.  That is not in accordance with the observation of Mr. Jantzen or of his passenger, Mr. Humphrey.  Both were credible and balanced witnesses who were not caught up in the event themselves except to witness it.  Mr. Jantzen, in particular, was paying specific attention to the light because he had been waiting for it to change.  His view was unobstructed.

[35] I am satisfied, on the basis of a consideration of all the evidence, that at the time the collision occurred the defendant had the benefit of the green light and that the plaintiff should not have been in the intersection when the collision occurred.

This case is also worth reviewing for the Court’s discussion of fault for motorists who “time a green light“.  The Plaintiff argued that if she did run a red light the Defendant was partially to blame because he timed his green light.  Mr. Justice McEwan dismissed this argument but in doing so provided a useful overview of the law at paragraphs 36-46 of the reasons for judgement.

Deposition Applications Under the New Rules of Court

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized. 56 Comments on Deposition Applications Under the New Rules of Court


Earlier this year Mr. Justice Harris provided reasons in obiter setting out some concerns as to why parties should limit the use of deposition evidence at trial.  This week, reasons for judgement were released considering a contested application for a witness to testify by way pre trial deposition.  This is the first reported case I’m aware of dealing with such an application under the new Rules of Court.
In this week’s case (Seder v. ICBC) the Plaintiff was injured in a motor vehicle collision.  ICBC spoke with the Plaintiff’s employer and wished to call her as a witness at trial.  The employer lived in Alberta so ICBC asked for permission to conduct a pre-trial deposition and introduce that evidence at trial.  The Plaintiff opposed this but was willing to accommodate the witness by allowing her to testify via video-link.  ICBC did not agree to this compromise and brought an application for an order requiring the witness to attend a deposition.
Master Young dismissed ICBC’s application but did give the witness permission to testify via video-conferencing.  In doing so the Court provided the following reasons:

[3] In determining whether to exercise its discretion to order an examination under subrule (1), the court must take into account:

(a)         the convenience of the person sought to be examined,

(b)        the possibility that the person may be unavailable to testify at the trial by reason of death, infirmity, sickness or absence,

(c)        the possibility that the person will be beyond the jurisdiction of the court at the time of the trial,

(d)        the possibility and desirability of having the person testify at trial by video conferencing or other electronic means, and

(e)        the expense of bringing the person to the trial.

[4] The former Rule 38 is essentially the same rule as the new Rule 7-8, with the exception that a new ground has been included at 7-8(3)(d) regarding the possibility of testifying at trial by video conferencing…








[5] In Abermin Corp. v. Granges Exploration Ltd., [1990] B.C.J. No. 1830, Mr. Justice McColl discussed the purpose and intent of Rule 38 shortly after it was incorporated into the Rules. The Rule, he said, is attempting to strike a balance between the fundamental principle that witnesses should testify live before the court and the preservation of evidence which might not be available at trial because it is not always possible to get witnesses, willingly or otherwise, before the courts. His Lordship said that Rule 38 intended to provide the parties with the opportunity to preserve and present evidence when there is a possibility that a witness would not otherwise be heard and thus adversely affect one of the litigants at trial. The emphasis was on the availability of the evidence, not the convenience of counsel.

[6] The mischief to avoid in interpreting the Rule, is that trial would become a “hodge-podge of deposition evidence along with viva voce evidence in the conduct of a trial merely to convenience counsel or indeed potential witnesses” (Abermin at p. 3)…

[33] Ms. Jacob is not a central witness. She is being called to give brief evidence relating to loss of earnings. It is not proportionate to pay three days’ travel expenses to have her testify for an hour and fly home the same day. This travel expense could be avoided by permitting her to attend at the trial by video conference. She is a cooperative witness, but out of an abundance of caution the third party still intends to subpoena her. The cost of the applications cannot be avoided if the third party wants to ensure her attendance. That cost would be incurred whether she attended for a deposition or for a trial.

[34] I have to keep in mind the problems with preparing defence evidence prior to the trial without a judge presiding, as articulated by Justice Harris in Byer. It strikes me that these problems which interfere with the effectiveness and usefulness of the evidence at trial should only be ordered in exceptional circumstances where the evidence will be lost if not recorded prior to trial.

[35] In cases such as this case before me with the most unexceptional facts, the proportionate procedure would be video conferencing.

[36] I dismiss the third party’s application.








What Do ICBC's 2010 Annual Report and Hot Coffee Have in Common?

Written by admin on . Posted in Tort Reform, Uncategorized. 55 Comments on What Do ICBC's 2010 Annual Report and Hot Coffee Have in Common?


ICBC’s 2010 Annual Report was recently released to little media attention.   Perhaps little attention accompanied the release because there were few exciting facts in the report.  At $361 million of Net Income last year alone ICBC continues to be very financially sound and stable.
This stability, however, is newsworthy on its own.  British Columbia has Canada’s fullest tort system for motor vehicle collision victims.  That means if you are injured through the fault of another you will have access to more meaningful compensation here than anywhere else in Canada.  The important underlying story here is that victim rights don’t need to be stripped (as other Provinces have done or proposed) to have a viable auto insurance system.
This story dovetails nicely into another newsworthy matter.  HBO’s much anticipated documentary Hot Coffee has now aired.  This movie documents, amongst other things, the infamous story of the 1990’s American lawsuit against McDonald’s after a patron burned herself with their coffee.  This is a classic example of frivolous lawsuits run a muck, right?  Watch the movie and decide for yourself.  You can click here to listen to my take on the Hot Coffee case as discussed with Charles Adler last year.
If you don’t have time to watch the documentary I’ll summarize one of the important points made.  Stories of a broken system and frivolous claims are often bandied about by the insurance industry.  These generate a lot more headlines than stories of financial insurance company stability.
The insurance industry often uses the momentum of these stories to argue that “reform” is necessary because the system is failing due to abuse.  As Hot Coffee illustrates, it is important to step back and scrutinize any claims that victim rights need to be stripped in order to have a functioning insurance system.  This usually is not the case.  When tort reformers ask for proof, point proudly to British Columbia’s full tort system and ICBC’s 2010 Annual Report.

Is an Unentered BC Supreme Court Order Effective?

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


After a BC Supreme Court Judge or Master makes an Order, the parties to the lawsuit typically agree to the order’s terms, reduce it to writing, sign it and enter it with the Court Registry.  Can an order be effective if parties fail to take these usual steps?  The answer is yes and Reasons for Judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this area of the law.
In this week’s case (Hable v. Hable) the parties were involved in a family law dispute.  In the course of the lawsuit a Court Order was obtained.  The order was never entered and the lawsuit was eventually discontinued.  After this the parties could not agree as to whether the unentered order was effective and the Court was asked to address this issue.  The respondent argued that the order could not be entred because the underlying lawsuit was discontinued.  The Court disagreed and in finding that the order was valid and effective Mr. Justice Bowden provided the following helpful reasons:









[7] The law in British Columbia regarding the effect of an order that has not been entered, as found in Metro Trust Co. of Can. v. MacDonald, (1988) CanLII 3025 (B.C.S.C.), is that it is “provisionally effective and can be treated as a subsisting order in cases where the justice of the case requires it and the right of withdrawal would not be thereby prevented or prejudiced.” That view of the law reflects an earlier decision of the B.C. Court of Appeal in Allard v. Manahan, [1974] B.C.J. No. 933, where the Court of Appeal said at para 10:

What is meant by the statement that an unentered order is only “provisionally effective”? I think that it means that the Judge who made it may, in his discretion, alter it or set it aside.

[8] A superior court is not functus officio with respect to an unentered order. (Clayton v. British American Securities Ltd., [1935] 1 D.L.R. 432 (B.C.C.A.).  Unlike the dismissal of an action, which is a final order, a discontinuance leaves matters open and is not a bar to further proceedings. (Chrétien v. Canada (Attorney General), 2005 FC 925 (Federal Court) and Davis v. Campbell (1986), 54 O.R. (2d) 443 (H.C.)

[9] I have concluded that the discontinuance filed in this matter does not preclude me from signing and entering the Order without the signatures of counsel.  By doing so, I am simply confirming an order which was made prior to the filing of a discontinuance.  Either party is at liberty to apply to settle the order before me or the Registrar, provided that such application is made before July 16, 2011.  If no application is made by that date, the Order will be entered.









Google's Driverless Cars: Coming Soon To a Location Near You?

Written by admin on . Posted in Uncategorized. 59 Comments on Google's Driverless Cars: Coming Soon To a Location Near You?


After lobbying by Google regarding their Driverless Car Project the State of Nevada is reported to have passed Assembly Bill No. 511 into law which paves the way for Driverless vehicles to become lawfully sanctioned.   The law requires the Nevada Department of Transportaiton to “adopt regulations authorizing the operation of autonomous vehicles on highways within the State of Nevada“.
The following parameters were set out regarding these regulations:
The  regulations  required  to  be  adopted  by  subsection  1
must:
(a) Set forth requirements that an autonomous vehicle must meet before it may be operated on a highway within this State;
(b)  Set forth requirements for the insurance that is required to test or operate an autonomous vehicle on a highway within this State;
(c) Establish minimum safety standards for autonomous vehicles and their operation;
(d) Provide for the testing of autonomous vehicles;
(e) Restrict the testing of autonomous vehicles to specified geographic areas; and
(f)  Set  forth  such  other  requirements  as  the  Department determines to be necessary.
If anyone is aware of any lobbying efforts by Google to change Provincial laws to pave the way for Driverless Vehicles to come to Canada please feel free to contact me and let me know.