Uncategorized – Page 114

Applications Under the New Supreme Court Rules: How Much Detail Does Form 32 Require?

Written by admin on March 16, 2011. Posted in BCSC Civil Rule 8, Uncategorized.

Two of the changes in the new BC Supreme Court Civil Rules are the requirement under Rule 8-1(4) that pre-trial applications be brought using Form 32 and that parties are generally prohibited from providing the Court with written arguments during applications. Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing how much detail parties should include when filling out Form 32.
In today’s case (Zecher v. Josh) the Plaintiff was injured in a motor vehicle collision. The Defendant brought a motion asking the Plaintiff to produce a Pharmanet Printout, monthly statements from his student line of credit, and particulars of his wage loss claim. The applications were dismissed “largely due to the inadequacy of the material presented”. For this reason the judgement does not go far in addressing the substance of such applications under the new Civil Rules. However, in dismissing the applications Master Bouck provided the following helpful reasons guiding litigants when preparing Form 32:

[30] Form 32 of the SCCR lends itself to providing both the opposing party and the court with full disclosure of the argument to be made in chambers. Parties should put in as much thought to the necessary content of that Form as is done when preparing the supporting affidavits. When a party is represented, responsibility for that content lies with counsel.

[31] No doubt the Lieutenant Governor-in-Council intended Part 3 of Form 32 to contain more than a cursory listing of the Rules that might support the particular application. For example, common law authorities can and should be included as well as a brief legal analysis. Such an analysis is particularly helpful given that parties are not able to present a separate written argument in civil chambers unless the application is scheduled to take two hours or more of court time.

[32] In my experience and observation, a comprehensive legal analysis can easily be included in a 10-page notice of application. As well, Rule 8-1 (4) allows the parties to include a list of authorities in the application record.

[33] By providing an effective analysis of the legal basis for (or against) making the order, the parties may well be able to resolve the application without attending court.

"Feeds of Disaster" Injury Law Blogs Now Made in Canada?

Written by admin on March 16, 2011. Posted in Uncategorized. 55 Comments on "Feeds of Disaster" Injury Law Blogs Now Made in Canada?

We import a lot of great things from the US but one American innovation I don’t want to see in Canada are personal injury lawyer ‘feeds of disaster‘.
Legal blogger and former personal injury lawyer Kevin O’Keefe recently authored a thoughtful post discussing these feeds.
In short “feeds of disaster” are legal blogs that do little more than “grab the tragic headlines and post them one after the other after the other. It’s like a running feed of disaster.” Kevin concludes that lawyers that use blogs in this way create “a disaster to a lawyer’s reputation. A disaster in taste in using accident victims for your pecuniary gain. And a disaster to the reputation of our legal profession.”
Kevin, who is based in Washington State, occasionally calls out American lawyers for their on-line activities. Feeds of disaster are not limited to blogging but also to other social media outposts such as Twitter where this posting method paints a less than flattering image for personal injury lawyers.
After discussing Kevin’s views on Twitter Antonin Pribetic, a Canadian legal blogger and lawyer, notes that feeds of disaster may not be limited to the US. With the following tweet Antonin suggests I keep a lookout for Canadian feeds of disaster:

Now I’m not a lawyer watchdog and don’t have any demerits to hand out for lawyers’ blogging and social media methods. The public at large can judge whether various personal injury blogs are distasteful and valueless. However, I’d be interested if anyone has come across examples of disaster feeds by Canadian personal injury lawyers. Feel free to contact me if you come across Canadian injury lawyer advertisements that are in particularly poor taste.

Negligence Claims Against Road Maintenance Companies

Written by admin on March 15, 2011. Posted in ICBC Liability (fault) Cases, Uncategorized. 103 Comments on Negligence Claims Against Road Maintenance Companies

If a private contractor fails to clear ice, snow or other hazards on a roadway in British Columbia and this leads to a collision they can, depending on the circumstnaces, be sued for damages in negligence. This topic was discussed in reasons for judgement released yesterday by the BC Supreme Court, Smithers Registry.
In yesterday’s case (Billabong Road & Bridge Maintenance Inc. v. Brook) the Plaintiff was involved in a single vehicle collision on Highway 16E near Smithers, BC. She lost control of her vehicle on black-ice and left the roadway. At the time the Defendant had the contract with the Provincial Government to maintain that stretch of highway. They did not sand the road and the Plaintiff sued claiming they were at fault for the crash. The Defendant argued that the Plaintiff drove carelessly and was solely to blame for the crash.
At trial the presiding Judge found both the Plaintiff and Defendant were at fault. The road maintenance company appealed arguing that the Judge imposed an unfair standard on them. The appeal was dismissed with the BC Supreme Court finding that the contractor did not respond appropriately to the known slippery conditions. While the outcome of these cases are highly fact driven Madam Justice Bruce provided the following useful reasons discussing the law of road contractor liability in British Columbia:

[25] Where the Province delegates responsibility for road maintenance to a private contractor, the contractor inherits the same Crown immunity for policy decisions, but continues to be liable under private law for negligence arising out of operational decisions. For example, where the contract with the Provincial Government specifies that particular road work must be completed within two hours of certain events, compliance with this standard is sufficient to clothe the contractor with immunity for any claim in negligence by a pedestrian or motorist. This is because the time frame for the completion of the work is a matter of policy set by the Provincial Government after balancing the costs associated with the work with the need to ensure the safety of the travelling public. As Meiklem J. says in Holbrook v. Argo Road Maintenance Inc., [1996] B.C.J. No. 1855 (S.C.) at paras. 27-28:

[27] On the analysis prescribed by the majority of the Supreme Court of Canada in the Just and Brown cases, policy decisions of the Crown are not reviewable and in Brown it was expressly held that decisions as to the level of road maintenance are decisions of policy and cannot be reviewed on a private law standard of reasonableness. They are only reviewable if so irrational as not to be a proper exercise of discretion.

[28] The application of these principles of course allows the government ministry to indirectly establish the upper limits of the standard of care that they are then held to in their operational functions. Thus the courts defer in a substantial way to the government ministry and the operational standard of care slides up and down the scale according to the level of road maintenance that is set as a matter of policy. Thus if a private law standard of reasonableness in a certain storm condition might suggest hourly patrols but policy has set the frequency of patrols at daily, the latter would prevail as the applicable standard in a negligence action against the Ministry.

[26] On the other hand, where the negligence arises out of an operational decision, and is not based on a standard of care established as a matter of policy by the terms of the contract with the Provincial Government, a contractor must meet the private law standard. The Court of Appeal described this operational standard of care in Benoit v. Farrell Estate, 2004 BCCA 348 at para. 39:

[39] The parties agree that Mainroad’s duty is coterminous with the Crown’s duty of care to users of public highways in respect of operational matters. They agree that the decision whether to apply salt to Highway #4 was an operational decision and that the duty of Mainroad was to take reasonable care to prevent injury to users of the highway by icy conditions: Brown v. British Columbia, [1994] 1 S.C.R. 420 at 439. The standard of care in respect of highway maintenance was more recently described in Housen v. Nikolaisen at para. 38, quoting from Partridge v. Rural Municipality of Langenburg, [1929] 3 W.W.R. 555 at 558-59 (Sask. C.A.):

…the road must be kept in such a reasonable state of repair that those requiring to use it may, exercising ordinary care, travel upon it with safety. What is a reasonable state of repair is a question of fact, depending upon all the surrounding circumstances….

More on Mitigation of Damages: Working When Your Doctor Says Stop

Written by admin on March 14, 2011. Posted in ICBC Wage Loss, Uncategorized.

As previously discussed, if you sue for damages as a result of personal injuries you have a duty to minimize you losses. If you fail to take reasonable efforts to do so the damages you are entitled to can be reduced. This legal principle is called “failure to mitigate“.
The most common argument addressing mitigation relates to following doctor’s advice. If a person fails to follow medical advice without good reason their damages can be reduced. Earlier this week the BC Court of Appeal had an opportunity to address an interesting mitigation issue: Does a Plaintiff fail to mitigate their damages when they ignore their doctor’s advice to take time away from work?
In this week’s case (Bradshaw v. Matwick) the Plaintiff was in a 2006 rear-end crash. Following the collision the Plaintiff’s doctor “recommended that the plaintiff stop working and enter into a full-time rehabilitation program. He felt that the plaintiff’s recovery would be hastened by entering into such a program” The Plaintiff did not follow this advice. When asked why he explained that he simply could not afford time away from work testifying that “his financial situation was such that he needed to continue working“.
At trial the Plaintiff was awarded just over $268,000 in total damages for his injuries and loss. The Defendant appealed arguing, amongst other things, that the trial judge erred in failing to reduce the damages for the Plaintiff’s failure to follow his doctor’s advice. The BC Court of Appeal disagreed with this argument finding that the Plaintiff’s decision to continue working out of financial need was reasonable. In dismissing this aspect of the appeal the Court provided the following helpful reasons:

[16] The trial judge found that the plaintiff had acted reasonably in returning to work in August 2006, and that he had generally followed recommendations for rehabilitative exercise:

[40] In regards to Mr. Bradshaw continuing to work in August 2006, against his doctor’s advice, Mr. Bradshaw had no choice. The plaintiff had a less than accommodating employer. The plaintiff was aware that in order to keep his job, he had to work at his job. It would be reasonable for the plaintiff to conclude based on his job circumstances, that taking a substantial time off to recover would result in the loss of his job. The effects for the plaintiff in this respect would be devastating. He has worked for Rebelle for over twenty years. He has limited reading and writing skills which would make any new job which would require training difficult for him. It was not unreasonable for the plaintiff, in light of this circumstance, to make the decision to struggle on and hope for the best in his recovery while continuing to work.

[41] Additionally, the plaintiff had significant commitments to a wife and two children. He, at best, earns a moderate to good income in the $50,000 range. It is highly unlikely that he could have survived on the modest wage loss funds available to him either through the defendants’ insurer or through the employment insurance program. His wife, Ms. Bennett, has only ever worked part-time and although she no doubt contributes to the family expenses, the household consists of two adults, and two children, in a home they own with a mortgage.

[17] On appeal, the defendants point to evidence from the plaintiff’s doctor to the effect that he would have given the plaintiff a medical note recommending full-time rehabilitation if one had been requested, and to the employer’s evidence that it would have given the plaintiff a leave of absence if such a note had been provided. They also argue that the plaintiff presented only minimal evidence of his financial position in August 2006, and contend that the trial judge relied on inadmissible hearsay. The defendants say that, in the face of that evidence, the judge’s finding that it was reasonable for the plaintiff to return to work represents a palpable and overriding error.

[18] I am unable to accept the defendants’ assertion. There was considerable evidence concerning difficulties in the relationship between the plaintiff and his employer. In the circumstances, it was open to the trial judge to accept that the plaintiff had a reasonable apprehension that he might lose his employment if he did not return to work. While the evidence of the plaintiff’s precise financial position in August 2006 was limited, there was sufficient information before the trial judge to allow him to conclude that the plaintiff’s financial position was not sufficiently secure to allow him to risk losing his job.

[19] In any event, even if it had been unequivocally established that the plaintiff’s recovery was delayed by his decision to return to work in August 2006, it would not prove that the decision resulted in an exacerbation of his damages. The plaintiff’s immediate wage losses were significantly reduced by his decision to return to work. It is not at all apparent that any consequential increase in his non-pecuniary losses or subsequent wage losses would have offset the immediate gains. Thus, the defendants have failed to show that the decision to return to work in August 2006 resulted in any net increase in the plaintiff’s damages.

Gazing at the Crystal Ball: ICBC Claims and Future Wage Loss

Written by admin on March 11, 2011. Posted in ICBC Wage Loss, Uncategorized.

If you are injured through the fault of another and your injuries effect your ability to earn a living you can seek compensation for ‘diminished earning capacity‘. Valuing this loss requires an assessment instead of a mathematical calculation. Since these losses are ‘assessed‘ this gives rise to a wide latitude of legally justifiable awards. This latitude was discussed in Reasons for Judgement released yesterday by the BC Court of Appeal.
In yesterday’s case (Mackie v. Gruber) the Plaintiff was injured in a 2006 BC motor vehicle collision. At trial the Plaintiff was awarded almost $250,000 including $130,000 for loss of future earning capacity.
Both the Plaintiff and ICBC appealed this award. The Plaintiff argued it was too low claiming that the judge made a “palpable and over-riding error” in failing to consider the fair value of the Plaintiff’s entrepreneurial capacity. ICBC appealed arguing that the award was too high since “the Plaintiff returned to work within two weeks of the accident and her past loss of earnings up to the date of trial was only $19,546“.
The BC Court of Appeal held that the trial judge did not err and dismissed both appeals. In doing so the Court provided the following reasons addressing the wide latitude of permissible results in quantifying diminished earning capacity:

[18] Quantifying an award for loss of future earning capacity is a notoriously difficult judicial task given the multitude of factors and future uncertainties at play. It is not a mathematical calculation, but a matter of assessment and judgment, guided by the basic principle that a plaintiff is entitled to be placed in the same position she would have been in but for the accident, and directed at producing an award that is reasonable and fair to all parties: Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158.

[19] In Pallos, the case referred to by the trial judge, Mr. Justice Finch set out a number of approaches to this task:

[43] The cases to which we were referred suggest various means of assigning a dollar value to the loss of capacity to earn income. One method is to postulate a minimum annual income loss for the plaintiff’s remaining years of work, to multiply the annual projected loss times the number of years remaining, and to calculate a present value of this sum. Another is to award the plaintiff’s entire annual income for one or more years. Another is to award the present value of some nominal percentage loss per annum applied against the plaintiff’s expected annual income. In the end, all of these methods seem equally arbitrary. It has, however, often been said that the difficulty of making a fair assessment of damages cannot relieve the court of its duty to do so. In all the circumstances, I would regard a fair award under this head to be the sum of $40,000.

[20] I am not persuaded that the trial judge’s approach in this case resulted in an award that was unfair or unreasonable. In my view, both the appeal and cross-appeal must fail.

BC Court of Appeal Overturns $12 Million Jury Verdict

Written by admin on March 10, 2011. Posted in Jury Trials, Uncategorized.

In a not unexpected development, the BC Court of Appeal released reasons for judgement today (Ciolli v. Galley) overturning a Jury Verdict awarding just over $12 Million dollars in damages to a Plaintiff who was injured in three separate motor vehicle collisions.
Following the Jury verdict the Defendants applied for a mistrial but the presiding Judge dismissed the defence motion. The Defendants appealed the Jury Verdict arguing, amongst other reasons, that the trial judge failed to give appropriate instructions to the jury. The BC Court of Appeal agreed and ordered a new trial. In doing so the Court provided the following reasons:

[21] As mentioned earlier, the defendants contend on appeal that the trial judge erred in refusing to grant the mistrial application and in failing to give an even-handed and fair summary of the evidence to the jury; and that the jury’s awards were without foundation or wholly out of proportion to the plaintiff’s losses. I have already noted that the trial judge’s many references to the damages to which Ms. Ciolli was “entitled” may well have led the jury to be confused about the question of causation and about their duty to determine which of the plaintiff’s claims, if any, were properly attributable to the car accidents and in connection with the costs of future care, which were medically justified. Fairness also required that in connection with loss of income-earning capacity and future care costs, the jury be instructed as to the need to apply a discount rate in order to assess the present value of the awards for future contingencies, and of course on the need to reduce such awards to reflect that they did represent contingencies rather than certain losses. The law is clear that a trial judge’s failure to so instruct a jury constitutes error: see, e.g., Bell v. Stubbins (1991) 7 B.C.A.C. 177 at paras. 10-17; Halliday et al. v. Sanrud (1979) 15 B.C.L.R. 4 (C.A.) at 9.

[22] It is also clear that the awards for non-pecuniary damages and loss of income-earning capacity were wholly out of proportion to what was justified by the evidence before the Court. The non-pecuniary award of $327,000 would have been justified only had the plaintiff suffered a truly catastrophic injury, but the jury was not instructed to this effect. (Counsel for Ms. Ciolli rightly acknowledged before us that her injuries were not catastrophic.) With respect to loss of income-earning capacity, as Mr. Gunn submits, the sum of $5,600,000, if calculated over 23 years (i.e., until the plaintiff reaches age 65), constitutes an award of $243,478 per year. It did not reflect the fact that the award is for a contingency rather than a certain loss, nor a discount rate required to represent the present value of the loss.

[23] The foregoing errors are more than sufficient to warrant our interference with the jury’s award and to order a new trial.

Paragraphs 24-31 of the Judgement are also worth reviewing for the Court’s ‘obiter‘ discussion of when a trial judge should and should not declare a mistrial following an inordinately high Jury Verdict.

More on ICBC Claim Adjournments: Discretion and Court Ordered Conditions

Written by admin on March 8, 2011. Posted in BCSC Civil Rule 12, Uncategorized. 7 Comments on More on ICBC Claim Adjournments: Discretion and Court Ordered Conditions

Rule 12-1(9) gives the BC Supreme Court the discretion to adjourn trials. When asked for an adjournment the Court must balance the interests of the parties. When adjourning a trial the Court can attach a variety of conditions which can even include damage advancements in personal injury lawsuits. Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing this area of law.
In today’s case (Kailay v. ICBC) the Plaintiff was injured in two separate motor vehicle collisions. The matter was set for trial previously but was adjourned following an application by ICBC.
The Plaintiff became pregnant shortly before the rescheduled trial and this apparently aggravated some of her accident related stress and psychological symptoms. ICBC argued a further adjournment was necessary as a result of this development. Master Baker agreed and granted ICBC a second adjournment, however, the Court attached several conditions to this order. In doing so Master Baker discussed the Court’s ability to attach terms to adjournments and provided the following reasons:
[12] Taking these various positions, I am satisfied of the following. First, the court’s jurisdiction to make an order for conditions of an adjournment that include advances, whether to meet specific costs and expenses, or as simple advances on likely general damages cannot be seriously disputed. ..
13] I do not accept that liability must be absolutely established before an advance can be ordered. The real issue, in such a case, is: in the event the plaintiff is unsuccessful, can the advance be recovered? I see no reason why that would not be the case here, particularly assuming that any advance would be accompanied by an undertaking from Ms. Kailay in that respect…

[19] As a consequence of the above, I direct that the conditions of the adjournment will be:

1. The defence will fund up to 30 further counselling sessions at up to $200.00 per session;

2. Ms. Kailay will receive $20,000.00 toward her general damages claim;

3. The defence will advance $10,000.00 toward Ms. Kailay’s costs incurred to date, including, of course, her experts’ fees;

4. Ms. Kailay will give her undertaking that, in the event her claim fails at trial or that advances to date (including the above) exceed the damages awarded by the court, she will repay the advances as required.

These are the conditions of the adjournment. If, for any reason, the defence does not acknowledge and accept them by March 7 the trial will continue on April 4 as currently scheduled.

[20] Costs of this application will be costs in the cause.

Injury Trial Adjourned Due to Delayed Medico-Legal Report

Written by admin on March 7, 2011. Posted in BCSC Civil Rule 12, Uncategorized.

Reasons for judgement were recently published by the BC Supreme Court addressing the adjournment of a personal injury trial where the Plaintiff’s independently retained physician failed to author a medico-legal report in a timely fashion.
In the recent case (Barlow v. Smoch) the Plaintiff was injured in a 2006 collision. He was the passenger in a vehicle which collided with a dump truck-trailer. He apparently suffered serious injuries including a “severe traumatic brain injury with left sided hemiparesis“.
In the course of the lawsuit the Plaintiff hired a variety of independent experts to provide medico-legal opinion evidence at trial. One of the experts was a physiatrist who assessed the Plaintiff. The Plaintiff requested a report however no report was provided within the timelines required by the Rules of Court. The Plaintiff’s other experts required the physiatrist’s report in order to finalize their opinions. Because the physiatrist did not author the report in a timely fashion the Plaintiff was unable to adequately prepare his case for trial.
The Plaintiff brought an adjournment application. The Defendant opposed, arguing an adjournment would be prejudicial. Master Caldwell ultimately granted the adjournment finding that neither party were to blame for the need of the adjournment and that keeping the current trial date would result in prejudice to the Plaintiff. In granting the adjournment the Court had the following critical comments for the Plaintiff’s expert:

[20] The determination I have to make now is whether the plaintiff would be so prejudiced by having this matter proceed to trial, in light of all of the circumstances, or whether the defendant would be prejudiced to the extent that there would be some waning of the memory of the defendant Hilborn.

[21] Remembering of course that the plaintiff is a severely brain?injured individual with hemiparesis, it would behoove me ultimately to weigh the prejudice in favour of the plaintiff and make a determination that the trial ought to be adjourned, not through any fault of counsel or the parties, but more I think because there is an unexplained failure to provide a report following a medical assessment by a medical professional.

[22] When I say unexplained, I do not say that meaning plaintiff’s counsel has not explained it; I mean (the physiatrist) has not explained her lack of attention to requests for the report following her assessment of the plaintiff on the 31st of May last, which I think is unacceptable.

[23] I say parenthetically that this may be a matter that counsel and the parties should be taking up with the College of Physicians and Surgeons, because in this case it is, without a doubt, in my view, (the physiatrist’s) lack of production of the document requested that has ultimately resulted in the adjournment of the trial.

[24] As for costs, there is not a lot of blameworthy conduct here over which costs could be assessed. I think every party has had a legitimate rationale for having the positions they have taken with respect to the particular application, which I find to be somewhat unique in the circumstances. So I will say that I think each party should bear its own costs of this application.

More on the "Harsh" Reality of Part 7 Benefits Deductions in ICBC Tort Claims

Written by admin on March 4, 2011. Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized. 53 Comments on More on the "Harsh" Reality of Part 7 Benefits Deductions in ICBC Tort Claims

Two Judgements were recently released by the BC Supreme Court discussing the “harsh” reality of Part 7 Benefits Deductions in ICBC Injury Claims.
As previously discussed, if you are entitled to receive Part 7 Benefits under your policy of insurance and don’t pursue these a Defendant who is responsible for injuring you in a BC Motor Vehicle Collision can reduce the amount of damages that they have to pay you by the amount of benefits you should have received from your own insurance coverage. Often after trial ICBC will argue that some of the awarded damages should be reduced for this reason. The first of the two recent judgments demonstrates that these deductions could operate in a punishing way for Plaintiffs.
In the first case released this week (Kirk v. Kloosterman) the Plaintiff suffered “catastrophic and tragic” injuries in a motor vehicle collision. The Plaintiff, who had a learner’s licence to operate a motorcycle, failed to obtain a full licence at the end of his probation period and for this reason was considered uninsured by ICBC. He was struck by a vehicle operated by the Defendant and suffered serious injuries. He became paralyzed from near the waistline down. His spinal cord became infected while in hospital and this “literally chewed up a further portion of the spinal cord so that he has lost a great deal of his thoracic capacity and now his arms and shoulders must bear his weight and provide all his strength“.
A jury found the Plaintiff 15% at fault for the collision and the Defendant 85% at fault. Damages of nearly $4 million were awarded less 15% to reflect the Plaintiff’s liability. Following verdict the Defendant (who was insured with ICBC) applied to have some of these damages reduced because the Plaintiff was allegedly in breach of his no-fault plan with ICBC. Mr. Justice Crawford granted the motion and reduced the damages by approximately $200,000. In doing so the Court noted that while this was “harsh and even punitive” a Plaintiff who disentitles himself to his own ICBC coverage can be faced with a statutory deduction in their tort claim. Mr. Justice Crawford provided the following reasons:

[] Ms. Kloosterman says the law is clear and settled: if the plaintiff acts so as to disentitle himself, then the Court must calculate and apply the deduction. She argues that Mr. Kirk would have been entitled to benefits under Part 7, had he possessed a valid driver’s licence.

[] It is plain that the legislative intention is to prevent double recovery, that is, to prevent a plaintiff from recovering the same amount of monies both by way of the defendant through a tort action and by way of no-fault insurance coverage. Given the legislative intention, it seems harsh and even punitive to not only deny a plaintiff, who has been found substantially not at fault in a motor vehicle collision and awarded damages for losses sustained, no-fault benefits but also to deduct the amount of his or her potential entitlement to Part 7 from the tort award. However, the case law is binding on me, and can only be construed differently by the Court of Appeal: see Baart v. Kumar, (1985), 66 B.C.L.R. 1 (C.A.); Si v. Enns, , 2001 BCSC 1120.

[] Accordingly, I accept the defendant’s submissions on this issue and find that there must be a deduction.

In the second case released this week (Gignac v. Rozylo) the result was not nearly as harsh but the case still demonstrates the reality that applications for statutory deductions can be made following vehicle collision cases.
In Gignac the Plaintiff was injured in a 2004 motor vehicle collision. Following trial Mr. Justice Wilson awarded damages including $15,000 for ‘special damages‘ and just over $115,000 for ‘costs of future care‘. (UPDATE August 17, 2012 – the BC Court of Appeal reduced the cost of future care award by about $40,000. Their reasons can be found here) ICBC then argued that these awards should be reduced by $25,000 to account for the fact that the Plaintiff can obtain money from ICBC for these expenses under their own policy of insurance.
Mr. Justice Wilson largely rejected ICBC’s arguments and made a modest deduction of $2,000 of the awarded damages. In doing so the Court provided the following useful comments about the “level of abstraction” of ICBC’s permissive benefits scheme:

[23] As I understand Ms. Lewko, if a benefit is not “specifically listed”, then, an insured’s entitlement to the benefit is dependent upon “ICBC claims handling procedures”, or “ICBC claims handling policies”, or “ICBC policy”.

[24] Legislative support for this approach is s. 88(2)(f), the “other” category, referred to above.

[25] The statute does not direct me to determine entitlement to benefits pursuant to ICBC policy; the direction is to determine entitlement pursuant to the plan.

[26] Section 88(2)(f) is subject to the opinion of the corporation’s medical advisor that an expenditure is likely to promote the rehabilitation of an insured.

[27] The opinion of that medical advisor is a necessary condition before resort may be had to s. 88(2)(f) of the Regulation. Absent the necessary condition, the corporation is not authorized to pay benefits.

[28] Rehabilitation means restoration. This plaintiff’s debilitating condition is chronic pain. Current medical science has no cure for this condition. I find it improbable that a medical advisor would opine that any of the goods and services contained in the assessment of future care costs, would promote the rehabilitation of this plaintiff. Those goods are services were recommended by the occupational therapist as necessary to enable this plaintiff to maintain an optimum level of functioning, now and in the future, and to maximize independence and prevention of further disability.

[29] Alternatively, if I am wrong in my interpretation of the legislation, and ICBC policy is a relevant factor, then the applicant has not persuaded me that it is more likely than not that this plaintiff is entitled to the benefits in controversy. The scales are evenly balanced. Policy may authorize the benefit or it may not. According to Ms. Lewko:

11. It is ICBC policy that the exercise of discretion for permissive benefits must be rationally connected to the relevant factors governing an objective assessment of the entitlement to the benefit.

That is a level of abstraction which does not allow for a determination of entitlement on a balance of probability.

[30] In result, the cost of future care assessment is reduced by $2,000.