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How Much Do British Columbians Love The Canucks?

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OK, this is one of my rare off-topic posts.  As my frequent readers know, while my home-base is Victoria, I travel throughout BC prosecuting injury claims.  I happened to be in Vancouver during Game 1 of the 2011 Stanley Cup Finals and thought I’d show the following photos demonstrating how hockey crazy this Province is.
The Before picture was taken during the third period with downtown being a virtual ghost town with little more than buses and taxis occupying the normally busy streets.   The After picture is of Granville Street which erupted into a instant street party with tens of thousands of celebrants minutes after Raffi Torres’ game winning goal.  Go Canucks Go!

Wrongful Death Law Reform in BC Closer to Reality

Written by admin on . Posted in Tort Reform, Uncategorized. 61 Comments on Wrongful Death Law Reform in BC Closer to Reality


As previously discussed BC’s Family Compensation Act(the statute dealing with lawsuits for damages for wrongful death in BC) is out of date, inadequate and in need of reform.  I’ve had the unfortunate experience of fielding too many phone calls over the years explaining that the wrongful death of many people was seen as worthless in the eyes of the law.  Members of the Trial Lawyers Association of BC along with other organizations such as the BC Coalition of People With Disabilities have been working for years to persuade the government that reform is needed in this area of law.  It seems all of this effort is slowly but surely paying off.
West Vancouver MLA Ralph Sultan has introduced a Bill which seeks to amend BC’s outdated Family Compensation Act.   Mr. Sultan stated as follows when introducing the Bill “The Family Compensation Act Amendment Act would permit the court to award damages up to specified limits for grief, and loss of guidance, care, and companionship to spouses of deceased persons as well as parents and children…This amendment is a carbon copy of the statute currently on the books in Alberta granting the potential for the court to grant awards, within limits, for those who have suffered the tragedy of wrongful death. The Family Compensation Act Amendment Act is consistent with the families-first agenda of this government.“
The Bill is titled “The Family Compensation Act Amendment Act” and can be found here.  It is designed to provide greater accountability for those who take the life of another in BC and will bring better compensation rights for families who lose a loved one through the wrongful act of another.  Specifically it seeks to amend section 3 of the FCA by adding the following provision:


(10) If an action brought under this Act, the court, without reference to any other damages that may be awarded and without evidence of damage, shall award damages for grief and loss of the guidance, care and companionship of the deceased person of

(a) subject to subsection (3), $75,000 to the spouse ofthe deceased person,

(b) $75,000 to the parent or parents of the deceased person to be divided equally if the action is brought for the benefit of both parents, and

(c) $45,000 to each child of the deceased person.

(11) The courts shall not award damages under subsection 10 (a) to the spouse if the spouse was living separate and apart from the deceased person at the time of death.




I should point out that this new Bill is not law yet and likely won’t go beyond first reading before the Legislature’s Spring session closes on June 2, 2011.  The proposed amendment is a step in the right direction but can certainly go further in bringing meaningful compensation to those who lose a loved one through others actions.  I suggest all who support this much needed reform take a brief moment to contact Ralph Sultan and thank him for tabling this welcome legislation  along with making suggestions to improve these amendments before they become law.

Government Introduces Bill Giving ICBC Direct Access to Your Medical Records

Written by admin on . Posted in ICBC Privacy Issues, Tort Reform, Uncategorized. 55 Comments on Government Introduces Bill Giving ICBC Direct Access to Your Medical Records


Today Bill 13 (The Miscellaneous Statutes Amendment Act No. 2) received First Reading. I’ve had a chance to review some of these newly proposed laws and came across a potentially troubling section seeking to give ICBC significant powers to access the medical records of British Columbians.
Specifically, the Government is proposing to amend section 25 of the Motor Vehicle Act as follows:






Information-sharing agreement for Medicare Protection Act purposes

25.02 (1) The Insurance Corporation of British Columbia may enter into an information-sharing agreement with the Medical Services Commission under the Medicare Protection Act for the purposes of collecting, using and disclosing personal information necessary for the administration of

(a) section 25 (1.3) of this Act, and

(b) the Medicare Protection Act, as it relates to the enrollment and renewal of enrollment of beneficiaries under that Act.

(2) If the Insurance Corporation of British Columbia enters into an information-sharing agreement under subsection (1), the Insurance Corporation of British Columbia may, in accordance with the agreement, collect and use personal information from, and disclose personal information to, the Medical Services Commission.







This new power is being given to ICBC to help introduce a new Care Card which is designed to cut down on fraud.  While fraud protection is laudable its important not to exceed this goal by unnecessary erosion of the privacy rights of British Columbians.  A review of the proposed change does not seem to put any concrete limits on ICBC’s power to access medical records or the use these can be put to once obtained.
If you have concerns about this new proposed power I suggest you contact your local MLA or BC’s current Minister of Public Safety and Solicitor General (Shirley Bond) and voice these before this bill passes into law.

Want of Prosecution, Proportionality and the New Rules of Court

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 22, BCSC Civil Rule 9, Uncategorized. 125 Comments on Want of Prosecution, Proportionality and the New Rules of Court

One of the overarching changes in the current Suprene Court Rules is the introduction of the principle of ‘proportionality’.  When any applicaiton is brought before the Court the presiding Judge or Master must consider this concept in applying the Supreme Court Rules.  Reasons for judgement were released last week by the BC Supreme Court, Chilliwack Registry, discussing this in the context of a dismissal application.
In last week’s case (Ellis v. Wiebe) the Plaintiff sued various Defendants for alleged misrepresentation in the course of a purchase and sale agreement relating to property.   The lawsuit started in 2004 and by 2011 still had not been resolved.
The Defendant Wiebe brought an application to dismiss the lawsuit for want of prosecution (failure to prosecute in a timely fashion).  Madam Justice Bruce held that while the delay in the prosecution was inordenate and inexcusable there was no prejudice and did not dismiss the claim for this reason.  The Court did, however, go on to dismiss the claim on it’s merits.  Prior to doing so the Court made the following findings with respect to the application of the proporitonality principle in want of prosecution applications:
[8] The parties do not dispute the test to be applied by the court in determining whether an action should be dismissed for want of prosecution. The test is concisely summarized in Shields v. Nishin Kanko Investments Ltd., 2008 BCSC 36 at para. 25, wherein Mr. Justice Parrett cites the comments of Scarth J. at para. 3 of March v. Tam, 2002 BCSC 1125:

… I conclude that the principles of law which govern the exercise of the Court’s discretion in the circumstances of this case may in summary form be stated as follows: The defendants must establish that there has been inordinate delay and that this delay is inexcusable. If those two factors are established a rebuttable presumption of prejudice arises and the onus shifts to the plaintiff to prove on a balance of probabilities that the defendants have not suffered prejudice or that on balance justice demands that the action not be dismissed.

[9] The authorities also consistently hold that the court must look to the objects of the Supreme Court Rules as these relate to the particular circumstances of the case to determine whether an action should be dismissed for want of prosecution….

[10] When the Supreme Court Rules were amended in July 2010, a new subsection was added to Rule 1-3 to further refine the meaning of “just, speedy and inexpensive determination”. Rule 1-3 (2) provides as follows:

(2)   Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a)      the amount involved in the proceeding,

(b)      the importance of the issues in dispute, and

(c)      the complexity of the proceeding.

[11] In my view, Rule 1-3 (2), in part, reflects the approach adopted by our Court of Appeal to the issue of dismissal for inordinate delay; that is, the facts of each case have a significant impact on the outcome of any particular application for dismissal based on want of prosecution. While the principles of law are relatively straightforward, it is the application of these principles to widely varied fact situations that is critical. As noted in Rhyolite Resources Inc. v. CanQuest Resource Corp., 1999 BCCA 36, at para. 16:

Cases vary so infinitely that it is not always easy to apply to one factual situation the decision in another very different factual situation. However, it is the task of the court to seek to apply in a rational fashion the principles that have been laid down in the decided cases, always bearing in mind that the facts in each case are going to have a significant influence on the actual outcome of the individual application. I believe, with respect, that this approach or principle can be found well expressed in a case that was cited to us, Lebon Construction Ltd. v. Wiebe (1995), 10 B.C.L.R. (3d) 102 (C.A.), a recent decision of this court. That was a builder’s lien case and in that class of case, one would expect a swifter pace to the action than might be the case of say a personal injury case where a very serious injury and the course of recovery of a plaintiff must be assessed over time. Although it is always desirable to move on promptly with litigation, the simple fact is that in certain cases the interests of justice demand a rather more stately and measured pace than would be proper with regard to another class of action. Although it is desirable that all cases proceed with reasonable promptitude, the key word is reasonable and the ultimate consideration must always be: what are the interests of justice?

Back From Maui and Back to Blogging

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If you’ve noticed the frequency of posts have been down over the past 10 days and the cases posted have been modestly dated, you’re right.  I was away in Maui with my family on a much enjoyed vacation.  I tried my best to leave work behind and that included this blog which I updated from archived posts while I was away.  I’m now back and look forward to continued blogging and growing this BC Injury Caselaw Database, Aloha!

The High Risk of Personal Injury Trials: The Costs and Disbursements Swing

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 9, Uncategorized. 44 Comments on The High Risk of Personal Injury Trials: The Costs and Disbursements Swing


As previously discussed, personal injury trials can be risky and expensive.  The British Columbia Supreme Court has a so-called ‘loser pays’ system which generally makes the losing side pay the winning side’s costs and disbursements (the hard expenses associated with running a trial such as court filing and expert witness fees).  Last month the BC Supreme Court, Victoria Registry, released reasons for judgement demonstrating this reality.
In this recent case (Sartori v. Gates) the Plaintiff was injured in 2005 when a truck owned by his friend accidentally struck him.  The Plaintiff sued for damages.  As the lawsuit progressed ICBC made a formal settlement offer of $230,000 plus costs and disbursements.
The Plaintiff presented his own formal offer of $600,000 plus costs and disbursements.   These offers were rejected and the claim proceeded to trial.  Ultimately a jury found the Plaintiff 33.3% at fault for the collision but accepted that he was injured and awarded damages.
When all the dust settled, the Plaintiff was awarded $234,000.  ICBC argued that since the final result was “within a knife’s edge” of their offer that the Plaintiff should be stripped of his post offer costs and disbursements.  This was a significant development because the Plaintiff spent over $120,000 in disbursements while advancing his claim.
Ultimately Mr. Justice Wilson found that this result would not be fair.  However, the Court disallowed disbursements associated with one of the Plaintiff’s expert witnesses and further reduced the disbursements the Plaintiff was entitled to by 1/3 to take into account the jury’s finding of fault and section 3 of the Negligence Act.  Some quick math reveals this results in about $40,000 of the real costs of advancing the claim not being recovered by the Plaintiff.  This large swing highlights the need to consider potential costs consequences when deciding whether to settle an ICBC claim or to proceed to trial.
This recent case is also noteworthy for a few other reasons.  ICBC argued that the usual rule of a winner receiving costs should not be followed given how close the settlement offer was to the jury verdict.   Mr. Justice Wilson rejected this argument providing the following useful reasons:

[42] The governing principle on the first issue, is R. 14-1(9).  The material words of that subrule, on this application, are:

… costs of a proceeding must be awarded to the successful party unless the court otherwise orders.

[43] The onus is on the defendant to persuade me why I should otherwise order….

[55] The plaintiff reminds me that the discretion conferred by the cost rules must be exercised judicially.  The parameters of that judicial duty were referred to in Stiles v. B.C. (Workers’ Compensation Board), and iterated consistently thereafter.  The court said:

… The discretion must be exercised judicially, i.e. not arbitrarily or capriciously.  And, as I have said, it must be exercised consistently with the Rules of Court.  But it would be a sorry result if like cases were not decided in like ways with respect to costs.  So, by judicial comity, principles have developed which guide the exercise of the discretion of a judge with respect to costs.  Those principles should be consistently applied; if a judge declines to apply them, without a reason for doing so, he may be considered to have acted arbitrarily or capriciously and not judicially.

[56] The Rules of Court mentioned in that extract are those cited above.  The “principles … developed …” or “purposes”, were referred to in Giles v. Westminster Savings and Credit Union:

The purposes for which costs rules exist must be kept in mind in determining whether appellate intervention is warranted.  In addition to indemnifying a successful litigant, those purposes have been described as follows by this Court:

•     “[D]eterring frivolous actions or defences”:  Houweling Nurseries Ltd. v. Fisons Western Corp. (1988), 37 B.C.L.R. (2d) 2 at 25 (C.A.), leave ref’d, [1988] S.C.C.A. No. 200, [1988] 1 S.C.R. ix;

•     “[T]o encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the opposite effect”:  Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201 at para. 28 (C.A.);

•     “[E]ncouraging litigants to settle whenever possible, thus freeing up judicial resources for other cases”:  Bedwell v. McGill, 2008 BCCA 526, 86 B.C.L.R. (4th) 343 at para. 33;

•     “[T]o have a winnowing function in the litigation process” by “requir[ing] litigants to make a careful assessment of the strength or lack thereof of their cases at the commencement and throughout the course of the litigation”, and by “discourag[ing] the continuance of doubtful cases or defences”:  Catalyst Paper Corporation v. Companhia de Navegaçao Norsul, 2009 BCCA 16, 88 B.C.L.R. (4th) 17 at para. 16.

[57] Giles is also authority for the proposition that the “usual rule” is that costs follow the event…

Here, this plaintiff did succeed.  The defendant’s argument is that he did not succeed to the extent of his aspirations.  Therefore, goes the argument, the defendant should have the costs of establishing that failure.

[81] In my opinion, that proposition is not a phenomenon contemplated by R. 14?1(14) or Forrest v. Gaidner.

[82] My conclusion on the first issue is that the defendant has not persuaded me that this is a case on which I should otherwise order.  The plaintiff is entitled to his costs, subject to the disallowance of one day of trial and disbursements associated with Dr. Hunt’s involvement.

Prior Expert Reports, Cross-Examination and Notice

Written by admin on . Posted in BCSC Civil Rule 11, Civil Procedure, Uncategorized. 50 Comments on Prior Expert Reports, Cross-Examination and Notice


When a Plaintiff is cross examined in the trial of a personal injury claim can opinions from medico-legal reports from prior litigation be introduced into evidence without complying with the notice requirements set out in the Rules of Court?  Reasons for judgement were recently released by the BC Supreme Court addressing this issue.
In the recent case (Hosking v. Mahoney) the Plaintiff was injured in three separate motor vehicle collisions.  The first collision was in 2000, the second in 2001 and the third in 2004.
The Plaintiff advanced claims for compensation as a result of all three collisions.  In the course of the first two claims the Plaintiff’s physician authored a medico-legal report in 2003 addressing the extent of her injuries.  The Plaintiff settled both these claims prior to her third collision.
The claim arising from the third collision did not settle and proceeded to trial.  At trial the Defendant introduced the prior medico-legal report during cross examination.  The Court allowed this and further permitted the previous opinion to go into evidence even though the usual notice requirements for the introduction of opinion evidence were not complied with.  In permitting this evidence to be introduced Mr. Justice Warren provided the following reasons:
[171] I found the medical opinion of Dr. Gurdeep Parhar, the plaintiff’s attending physician for the first two accidents and the author of the medical/legal report of March 10, 2003, important and difficult to resolve with the evidence and submissions of the plaintiff that she had largely recovered prior to the February 2004 accident.  This evidence was entered by the defendant when cross-examining the plaintiff and was not rebutted or varied by Dr. Parhar who was not called to testify.  The court is entitled to draw an adverse inference when a witness who could provide relevant evidence on an issue before the court, is not called.  In my view the defendant was entitled to rely upon the letter and opinion of Dr. Parhar without providing the usual notice.  It was a report prepared for and at the request of the plaintiff and it was identified and portions adopted by the plaintiff in cross-examination.  The plaintiff had the opportunity to call Dr. Parhar or evidence to rebut the opinion or to object to its introduction prior to its use in cross-examination.

"Frightened" Claimant Excused From Obtaining Information From Motorist in s. 24 ICBC Claim

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As previously discussed, one of the conditions to successfully sue ICBC under section 24 of the Insurance (Vehicle) Act following a hit and run collision is to take “all reasonable efforts” to ascertain the identity of the at fault motorist.  Failure to do so can be fatal to the claim.  Reasons for judgement were released this week by the BC Supreme Court, Duncan Registry, discussing this requirement.
In this week’s case (Burton v. ICBC) the Plaintiff was involved in a rear-end crash in 2008.  It was a dark and rainy night and the Plaintiff was travelling alone.  Following the collision the rear motorist “immediatley began banging on the windows (of the Plaintiff’s vehicle)…(and) yelled ‘move the car off the road, let’s get this over and done with bitch’ “.  The Plaintiff remained in her vehicle and the rear motorist then “slammed (the Plaintiff’s) door, returned to his vehicle, backed away and then passed by on her right side…and disappeared from her view”.
The Plaintiff sued ICBC for damages under section 24 of the Insurance (Vehicle) Act.  ICBC denied liability arguing that the Plaintiff had a reasonable opportunity to obtain the at fault motorists details and she failed to discharge her responsibilities under this section.  Mr. Justice Macaulay rejected ICBC’s arguments and awarded the Plaintiff damages.  In doing so the Court provided the following reasons:

[26] Section 24 and its predecessor have been judicially considered and applied many times. While the fact patterns in the cases are understandably divergent, there is little, if any, controversy in the law. In Leggett v. Insurance Corp. of British Columbia (1992), 72 B.C.L.R. (2d) 201 (B.C.C.A.), the Court of Appeal, referring to the predecessor section, set the bar fairly high for plaintiffs, stating at para. 9:

In my view the overall purpose of the section is to limit the exposure of [ICBC] to claims brought by persons who, in the matter of seeking to identify those responsible for the accident, have done everything they reasonably could to protect what ordinarily would be in their own interests, and which, by virtue of the section, become the interests of the corporation.

…

[31] I am persuaded that the fear and anxiety that Mrs. Burton felt in the circumstances provides a reasonable justification for her failure to ask the driver to properly identify himself or to attempt to identify the license plate. As a woman alone in a car at night, faced with aggressive threatening behaviour, her first concern was legitimately for her safety and to avoid confronting the driver.

[32] I accept that Mrs. Burton never chose, as did the plaintiff in Leggett, not to pursue her obligation. Instead, after reporting the matter to the police, she and her husband, along with friends, looked for the other vehicle. When they thought they might have found it, Mrs. Burton appropriately passed the information on to the police. At that point, it was reasonable, given the location of the vehicle on private property and the conduct of the driver at the time of the collision, that the police, rather than Mrs. Burton, take the investigative steps necessary to confirm whether the vehicle parked on Gibbons Road was involved. She is not responsible for their failure to do so.

[33] Also, Mrs. Burton’s obligation did not extend, in the circumstances, to doing more. I am not persuaded that postings or advertising for witnesses had any realistic prospect of eliciting information that would identify the other vehicle or the driver.

[34] I am satisfied that Mrs. Burton has satisfied the obligations that s. 24(1) places on her. She is entitled to judgment against ICBC as the nominal defendant.

$60,000 Non-Pecuniary Damage Assessment for STI's Imposed on Pre-Existing Injuries

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

Reasons for judgement were released this week dealing with damages for soft tissue injuries imposed on pre-existing symptomatic injuries.
In this recent case, (Hosking v. Mahoney), the Plaintiff was injured in a 2004 motor vehicle collision.  She had pre-existing injuries from previous collisions and as a result had some on-going symptoms.  Mr. Justice Warren found that the new injuries would likely continue well into the future and assessed non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $80,000 then reduced this award by 25% to account for the Plaintiff’s pre-existing injuries.  In reaching this result the Court provided the following reasons:

[178] I find that the plaintiff suffered a mild to moderate soft tissue injury to her cervical and upper thoracic areas as a result of the February 2004 accident.  This was superimposed on her already symptomatic condition caused by the earlier accidents and although she had started to make the expected recovery, the process was interrupted by her falls.  Normally, these would not have affected the plaintiff but she was more vulnerable as a result of the three accidents.  There is no orthopaedic or neurological cause.  It is probable that these complaints will continue well into the future but can be managed and alleviated by an appropriate exercise programme (as recommended by her medical advisors as early as Dr. Parhar in March 2003) and by such passive therapies as may, from time to time, help alleviate her symptoms.

[179] Using the authorities relied upon by counsel as a template, for each case depends on its own unique features, I assess the plaintiff’s general damages at $80,000 which I reduce by 25% as attributable to or an apportionment for her pre-existing symptomatic injuries and her intervening falls.

Court Finds Plaintiffs Can Face Costs Risks If Defendant Succeeds in Contributory Negligence Claim

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized. 59 Comments on Court Finds Plaintiffs Can Face Costs Risks If Defendant Succeeds in Contributory Negligence Claim


Reasons for judgement were released last week by the BC Supreme Court finding that Rule 14-1(15) provides the court with discretion to award costs to a Defendant following a finding of contributory negligence as against a Plaintiff.
In last week’s case (Brooks-Martin v. Martin) the Plaintiff was involved in a motorcycle collision.  At trial she was found 30% at fault with the Defendant bearing 70% of the blame.  The Court awarded the Plaintiff 70% of her costs in accordance with the BC Negligence Act.  Although not specifically asked to address this issue, the Court went further and found that the Rules of Court permit a costs award to be made against a Plaintiff if they are found contributorily negligent.  Mr. Justice Halfyard provided the following reasons:

[41] Section 3 of the Negligence Act directs that the plaintiff shall receive 70% of her costs of this proceeding, from the defendant Martin. But that statute does not entitle the defendant Martin to receive 30% of his costs of the proceeding, from the plaintiff, because he sustained no damage or loss. See Bedwell v. McGill 2008 BCCA 526 at paras. 29-30 and 32.

[42] However, the defendant Martin was successful on the issue of contributory negligence on the part of the plaintiff. In my opinion, the costs entitlement of the plaintiff is defined solely by theNegligence Act. That statute directs that the plaintiff shall recover 70% of her costs of the proceeding from the defendant Martin. It seems to me that the Rules of Court relating to costs should govern the issue of whether the defendant Martin should recover any of his costs from the plaintiff. Rule 14-1(15) reads in part:

(15)      The court may award costs

. . .

(b)        that relate to some particular application, step or matter in or related to the proceeding . . .

[44] I think that the issue of whether the plaintiff was contributorily negligent is a “matter in or related to the proceeding” under the new rule… I conclude that the court has the discretion to award costs of the contributory negligence issue, to the defendant Martin. I am not suggesting that such costs should be awarded, only that the court has jurisdiction to entertain such an application under the Rules of Court.