Uncategorized – Page 11

$85,000 Non-Pecuniary Assessment for Chronic but not Disabling Back Pain

Written by ERIK MAGRAKEN on May 19, 2020. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for a long standing back injury sustained in two motor vehicle collisions.

In today’s case (Sehra v. Randhawa) the Plaintiff was involved in two separate collisions that the defendants accepted fault for. These resulted in ‘chronic daily back pain’ with a poor prognosis for full recovery thought the injureis were not disabling and the plaintiff could still undertake various physically challenging activities. In assessing non-pecuniary damages at $85,000 Madam Justice Douglas provided the following reasons:

97% of ICBC Disputes Dismissed by BC Civil Resolution Tribunal in 2020

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

Update May 13, 2020 – Today two further CRT decisions were release with ICBC as a party. Both ruling in ICBC’s favour.

Awan v. ICBC – 2020 BCCRT 521 – 2020-05-12

“I dismiss the applicant’s claims and this dispute.”

Luton v. ICBC – 2020 BCCRT 522 – 2020-05-12

“I dismiss Ms. Luton’s claims and this dispute.”

______________________________________

Update May 12, 2020- Since first writing this article the CRT responded to me via twitter and noted one case in 2020 involving ICBC sided with the applicant.

Sagert v. Christiansen, 2020 BCCRT 417

This decision did not appear in the below search as ICBC was not a named party

_______________________________________

The BC Government has passed laws forcing various disputes the public have with BC’s monopoly auto insurer, ICBC, away from court with federally appointed independent judges and into an online provincially created Civil Resolution Tribunal. The Province appoints their own adjudicators to the CRT.

The government thinks its a good idea to take even more of your judicial rights away because the CRT is so much better than court. Let’s see how this is going for British Columbians?

With a handful of cases now being reported one trend seems to be developing. When ICBC is a party the CRT seems to side with them with incredible frequency.

I conducted a simple search on the CRT’s website. Asking to pull up all cases where ICBC is named as a party for all of 2020. As of today 31 results came up.

Below is a link to each case that came up along with the Tribunal’s order. Not one applicant succeeded in fighting the insurance giant.

One applicant was bold enough to suggest there may be an apprehension of bias. The tribunal member said don’t be silly

“I find Ms. Mu has not established a reasonable apprehension of bias. Further, I find that recusing myself on the basis that the statutory appointment process gives rise to a reasonable apprehension of bias would frustrate the tribunal’s ability to discharge its statutory mandate, as every tribunal member would effectively be excluded from deciding cases within the tribunal’s exclusive jurisdiction.”

CRT – No “Placeholder” Lawsuits To Preserve Future ICBC Benefits

Written by ERIK MAGRAKEN on April 22, 2020. Posted in BC Civil Resolution Tribunal, Uncategorized.

In British Columbia the norm has long been that a collision victim could file a lawsuit against ICBC to preserve the right to future accident related medical/rehab benefits even if no past benefits were outstanding. The reason was simple, contractually ICBC Part 7 benefits could be payable over many years. However, if enough time passed without the need to access these benefits, the limitation period could expire thus thwarting the ability to claim future benefits if needed. A simple court filing could prevent this from occurring. The BC Supreme Court was reluctant to dismiss such claims understanding their role in preserving future benefits claims.

The BC Government has now diverted many ICBC disputes away from the courts and into a provincially created body known as the Civil Resolution Tribunal. In the first CRT decision I’m aware of addressing this practice the CRT ruled that such claims will not be accepted and will be dismissed.

In the recent case (Mu v. ICBC) the Applicant filed a ‘placeholder’ lawsuit to preserve her right to seek future ICBC benefits after being involved in a collision. No past benefits were outstanding. As ICBC looked to move the dispute forward the Applicant asked the CRT to “pause” the proceeding until such time as a dispute arose to future benefits. The CRT was not prepared to do so and ruled that under the new system placeholder claims to preserve limitation rights will not be allowed. In reaching this decision CRT Vice Chair Andrea Ritchie provided the following reasons:

“Hurried” Opinion That Chronic Pain Will “Inevitably Resolve” Rejected By Court

Written by ERIK MAGRAKEN on April 21, 2020. Posted in Uncategorized.

Adding to this site’s archives of judgements criticizing or rejecting expert opinion evidence reasons were published today by the BC Supreme Court dismissing the opinion of a defence retained orthopaedic surgeon commenting on chronic pain.

In today’s case (Adams v. Rhys-Williams) the Plaintiff was injured in a 2014 collision. The Defendants admitted liability. The crash resulted in injuries to the plaintiff which developed into myofascial pain and a chronic pain disorder.

In the course of the lawsuit the defendants retained a partially retired orthopaedic surgeon from Ontario who conducted an independent medical exam. That surgeon opined that the Plaintiff’s injuries were not disabling and ought to “inevitably resolve“. The Court rejected this opinion as being “hurried and more of an attempt to summarily dismiss the injuries claimed“. In rejecting the evidence Mr. Justice Jenkins provided the following reasons:

“Unlawful” Surreptitious Recording of Defense Medical Appointments Not Admissible At Trial

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

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, holding that a Plaintiff’s surreptitious recording of defence medical exams are not admissible at trial.

In today’s case (Cook v. Kang) the Plaintiff was injured in a collision and sued for damages. In the course of the lawsuit the defendant obtained a court order that the Plaintiff be assessed by defence selected physician. The Plaintiff also consented to see a second defence physician on similar terms as the court ordered appointment.

The Plaintiff surreptitiously recorded both appointments. This came to light during trial and the existence of the recordings was not disclosed to the defence ahead of time. The Court ruled that the recordings were not admissible on two grounds, first because they were not listed in compliance with the rules, second that recordings of court ordered medical appointments are “unlawful” without an express term permitting this.

In excluding the evidence Mr. Justice Riley provided the following reasons:

Court Finds ICBC Did Not Meet Their Burden for s. 83 Deductions after Jury Trial

Written by ERIK MAGRAKEN on April 6, 2020. Posted in Uncategorized.

BC’s Insurance Vehicle legislation allows a court to deduct from a claim for future loss those damages that have benefits payable under ICBC’s part 7 scheme. ICBC’s track record of paying benefits and their position of a plaintiff’s entitlement to those benefits at trial don’t always align. The legislation was recently amended to direct a court not consider the likelihood that the benefits will be paid or provided when making such deductions.

In one of the first judgements to consider this new language reasons were published today by the BC Supreme Court refusing ICBC’s application for deductions following a jury trial.

In today’s case (Siverston v. Griffin) the Plaintiff was injured in a collision and sued for her damages. Following trial a jury assessed damages which included $60,000 for future care. The Defendant sought to have this award significantly reduced arguing many of the future care items could be paid by ICBC under their part 7 scheme. Madam Justice Jackson was not persuaded, however, and refused to reduce the award. In reaching this conclusion the court found the Defendant simply could not meet their burden with the jury’s lump sum award for future losses. The Court provided the following reasons:

BC Waives Liability From Covid-19 Exposure Claims to Essential Service Providers

Written by ERIK MAGRAKEN on April 2, 2020. Posted in Uncategorized.

Today BC’s Minister of Public Safety and Solicitor General enacted Ministerial Order M094.

This order provides legal immunity to ‘essential service’ providers from claims in negligence if someone alleges they were”infected with or exposed to SARS-CoV-2 as a result of the person’s operating or providing an essential service”.

The immunity does not apply to claims of gross negligence. Also, to have the benefit of the immunity the essential service provider must comply with the following section:

(a) was operating or providing the essential service in accordance with all
applicable emergency and public health guidance, or

(b) reasonably believed that the person was operating or providing the essential
service in accordance with all applicable emergency and public health
guidance.

The full order can be found here.

The key sections read as follows:

Lawyers Changing Firms and Disbursement Carriage

Written by ERIK MAGRAKEN on April 2, 2020. Posted in Uncategorized.

When a lawyer changes firms clients usually have a choice of whether to stay with their present firm or follow their lawyer to the new firm. In the case of personal injury files prosecuted on a contingency basis there are often disbursements associated with the files. When a client wishes to follow their lawyer to a new firm and have their file transfered who has the burden of paying for the disbursements? Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, tackling this issue.

In today’s case (Sagert v. Cascade Law Corporation) the Petitioner’s employment with the Respondent law firm ended. Approximately 58 of the Petitioner’s clients elected to have their claims stay with the Petitioner. The Respondent firm had incurred disbursements on these files. The firm argued that these had to be paid before the files would be transferred. The Petitioner brought an application to have the files transferred without up front payment of disbursements. The Court concluded that the firm was within their right to demand payment of disbursements prior to transfer. In reaching this conclusion Mr. Justice Wilson provided the following reasons:

$100,000 Non-Pecuniary Assessment For Incompletely Healed Tibia Fracture from Snowmobile Collision

Written by ERIK MAGRAKEN on April 1, 2020. Posted in Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic leg injury following a snowmobile collision.

In today’s case (Carothers v. Imus) the Plaintiff was a passenger on a snowmobile that collided with another snowmobile crushing the plaintiff’s left leg in between the two snowmobiles.

The impact resulted in a tibial fracture that required surgical intervention. The injury went on to incomplete resolution and resulted in chronic symptoms. In assessing non-pecuniary damages at $100,000 Madam Justice Horsman provided the following reasons:

Court Criticizes ICBC “Failure” To Pay For Necessary Treatments Highlighting Shortcomings of their so called “Care Based” Model

Written by ERIK MAGRAKEN on March 20, 2020. Posted in Uncategorized.

ICBC and the Provincial government have been working overtime trying to persuade British Columbians that stripping collision victims of the right to go to court to be fairly paid for their injuries is a good idea. They claim that by taking away these rights ICBC will treat victims fairly under a so-called ‘care based’ model.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, demonstrating that ICBC can be anything but fair when it comes to meeting their obligations to pay for long term injury treatments.

In today’s case (Del Bianco v. Yang) the Plaintiff sustained life long injuries in a collision. At trial he was awarded damages which included payment for future care for massage therapy and kinesiology. Despite being ordered to pay this money ICBC refused saying they will pay that portion of the judgement from the Plaintiff’s ‘no fault’ insurance with them over the years as the treatments are incurred. An ICBC adjuster swore an affidavit declaring payments would be made.

The Court did not accept that ICBC would make payments, however, noting that they refused to pay the mandated no-fault benefits in the years prior to trial leaving little confidence that they would fairly meet their future obligations. In refusing to deduct the vast majority of the awarded future care costs Mr. Justice Groves provided the following criticism of ICBC’s handling of the claim and their unexplained “failure” to pay past benefits they were obliged to: