Skip to main content

PTSD Claim By Accident Witness Dismissed as "Too Remote"

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC PTSD Cases, Uncategorized. 116 Comments on PTSD Claim By Accident Witness Dismissed as "Too Remote"


If a witness to a BC motor vehicle collision suffers psychological injuries as a result of what they see they can claim damages.  There are, however, restrictions on when these claims can succeed.  Reasons for judgement were released today addressing this area of law.
In today’s case (Deros v. McCauley) the Plaintiff witnessed a collision caused by an “inebriated” driver in 2001.  At the time the Plaintiff was working on Highway 97 near Bear Lake, BC.  The Plaintiff was installing rumble strips on the side of the highway.  The Plaintiff was operating a sweeper and his friend, (Mr. Lance) was operating a grinder nearby.  The Defendant lost control of a pickup truck and collided with the grinder.  The Plaintiff witnessed the crash and was concerned for his friend.  Fortunately Mr. Lance “was not seriously injured“.
The Plaintiff claimed the incident caused PTSD and sued for damages.  The Insurance company for the Defendant argued that even if the Plaintiff suffered from PTSD this injury was ‘too remote‘ and therefore not compensable.  Madam Justice Gerow agreed and dismissed the lawsuit.  In doing so the Court provided the following useful reasons addressing the restricted circumstances when a witness to a crash can successfully sue for psychological damages:
[17]         In order to show that the damage suffered is not too remote to be viewed as legally caused by Mr. McCauley’s negligence, Mr. Deros must show that it was foreseeable that a person of ordinary fortitude would suffer a mental injury from witnessing the accident. He has failed to do so…

[23]         The cases, to which I was referred, where damages for nervous shock have been awarded to witnesses of accidents who were not physically involved in the accidents, involve accidents or events which are more shocking than the accident in this case. All the cases involved accidents in which someone has died or been seriously injured: James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Arnold v. Cartwright Estate, 2007 BCSC 1602; Easton v. Ramadanovic Estate (1988), 27 B.C.L.R. (2d) 45; Stegemann v. Pasemko, 2007 BCSC 1062; James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Kwok v. British Columbia Ferry Corp. (1987), 20 B.C.L.R. (2d) 318 (S.C.).

[24]         As set out in Devji v. District of Burnaby, 1999 BCCA 599 at para. 75, the courts have been careful to limit the circumstances in which injuries for nervous shock are awarded:

The law in this province, as formulated by Rhodes, requires that the plaintiffs, in order to succeed, must experience something more than the surprise and other emotional responses that naturally follow from learning of the death of a friend or relative. Instead, there must be something more that separates actionable responses from the understandable grief, sorrow and loss that ordinarily follow the receipt of such information. In Rhodes, Taylor and Wood JJ.A. described the requisite experience as alarming and startling (and therefore sudden and unexpected), horrifying, shocking and frightening, and Southin J.A. referred to a “fright, terror or horror”.

[25]         In this case, Mr. Deros witnessed a collision that involved no serious injuries. Even if I accept Mr. Deros’ evidence at trial that he initially thought a rod had skewered Mr. Lance, he knew within minutes this did not occur and Mr. Lance had not suffered serious injury….

[29]         There is no evidence that a person of ordinary fortitude would have suffered nervous shock injury or mental illness as a result of witnessing this accident. The experts testified about Mr. Deros’ particular reaction to the accident, but not that a person of ordinary fortitude would have suffered mental injury.

[30]         Mr. Deros does not argue that a person of ordinary fortitude would suffer mental injury from witnessing this accident. Rather, Mr. Deros argues that the evidence from the experts establishes that he was more prone to suffer from PTSD than an ordinary person was from witnessing this accident. As stated earlier, Mr. Deros argues that the evidence supports a finding he suffered mental or psychological injury from witnessing this accident because he was more prone to injury as a result of his pre-existing condition, i.e. he was a thin skull, and was not a person of ordinary fortitude.

[31]         Having failed to establish that a person of ordinary fortitude would suffer a mental injury from witnessing this accident, it follows that Mr. Deros’ claim must fail.

Defence Medical Exams and Cancellation Fees

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 7, independent medical exams, Uncategorized.

Reason for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing cancellation fees charged by doctors when a Plaintiff fails to attend a previously agreed to independent medical exam.
In today’s case (Minhas v. Virk) the Plaintiff was involved in a 2007 BC motor vehicle collision.  The Plaintiff alleged brain injury.  The Plaintiff attended two independent examinations with specialists of the Defendant’s choosing and agreed to attend a third appointment.  As the third exam date approached the Plaintiff ultimately reneged on his agreement by adding a condition that the Defence was not prepared to agree to.
The doctor’s office had a policy to charge $1,650 unless he was given 2 months notice of cancellation.  The Plaintiff did not comply with this policy and instead gave just over 2 working days of notice.
The Defendant brought a motion seeking to have the Plaintiff assessed by the doctor and to pay the cancellation fee.  Master Caldwell ruled that it was inappropriate for the Plaintiff to “unilaterally rewrite” the previous agreement to see the doctor and ordered the Plaintiff undergo the independent medical exam.  The Court refused, however, to order that the Plaintiff pay the cancellation fee finding 2 days notice was sufficient.  Master Caldwell provided the following useful reasons:
[15] The request that the plaintiff be required to pay the cancellation fee for the December 21 appointment is dismissed.  There is no evidence before me which indicates what, if any, efforts the doctor made to fill that appointment slot or to otherwise mitigate his loss.  In addition, I find Dr. Wong’s requirement of 2 months notice to be unreasonable, particularly in the absence of any explanation.  In this case the cancellation occurred on either the 15th or 16th of December (if not earlier) thus providing at least 2 full working days notice and probably more.  The material before me which simply states the doctor’s cancellation policy and nothing more, simply does not support the order sought.
The Court was also asked to order a further medical exam with a different specialist.  This application was dismissed with the Court noting that one of the purposes of the New Rules of Court is to “move toward a focusing and limiting of experts and expert opinion“.

$55,000 Non-Pecuniary Damages for Thoracic Outlet Syndrome

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


Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, addressing quantum and liability following a motorcycle accident.
In this week’s case (Langley v. Heppner) the Plaintiff was injured in a 2003 BC collision.  The Plaintiff was operating a motorcycle and was following a vehicle operated by the Defendant.  Both vehicles were behind a slow moving van.  As the motorists approached a straight stretch of road both the Plaintiff and Defendant attempted to pass the van in the on-coming traffic lane.  They did so at almost the same time resulting in a violent crash catapulting the Plaintiff about 60 feet.
Mr. Justice Barrow held that both motorists were at fault with the Defendant bearing 80% of the blame.   Paragraphs 11-37 of the reasons for judgement are worth reviewing for the Courts discussion of liability.
The Plaintiff suffered various injuries.  Most of these went on to heal however he was left with persistent neck and shoulder pain.  Ultimately he was diagnosed with Thoracic Outlet Syndrome.  The limitations related to this were expected to continue to improve however there was a likelihood of long standing symptoms.  Mr. Justice Barrow assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000.  In doing so the Court provided the following reasons:
[43] Turning to Mr. Langley’s injuries more generally, he suffered a number of bruises and abrasions which resolved unremarkably. His low back was sore, and although it remained sore and painful for a considerable time following the accident, it was asymptomatic by the time of the trial (six years post-accident). His most significant and persistent injury is to his right shoulder and the right side of his neck…
[51] I am satisfied on a balance of probabilities that the plaintiff has thoracic outlet syndrome and that it is a result of the motor vehicle accident…
[58] Mr. Langley’s right shoulder and right neck pain are the most significant consequence of the accident. I accept that he is always in some degree of discomfort in these areas. His level of discomfort increases when he becomes fatigued, but it is most seriously aggravated when he does any activity that involves lifting his right arm to or above shoulder level…
I am satisfied that Mr. Langley’s functional abilities will improve in some respects, although not to a significant degree…
[81] In view of all of the foregoing, an appropriate award for non?pecuniary damages is $55,000.

Costs Awards For Settlements Below $100,000

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 15, Uncategorized. 58 Comments on Costs Awards For Settlements Below $100,000


(Note: The case discussed below was upheld on appeal in July, 2011 by Madam Justice Ker)
As previously discussed, Rule 15 is the new BC Fast Track Litigation Rule and it is mandatory for cases for damages seeking less than $100,000 and for cases that “can be completed within 3 days“.
Rule 15-1(15) generally limits costs awards for fast track lawsuits to no more than $11,000.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing whether this limit applies to non-fast track cases that settle for less than $100,000.  In short, Master Keighley held that it can, however, when a case has been removed from the fast track the costs restriction does not apply.
In today’s case (Johnson v. Axten) the Plaintiff started the lawsuit under the former Rule 68.  The parties consented to remove the case from Rule 68 prior to trail and obtained a Court order to that effect.  The case then settled after the new Rule 15 came into force.  The settlement was for $90,000 plus costs and disbursements.  The Defendant argued that the Rule 15 cap on costs should apply.  Master Keighley disagreed finding that while it could apply, it should not in the circumstances of this case.  The Court provided the following useful reasons:

[17]         The Majewska case does, however, contain this helpful observation on the issue of “opting out” of Rule 66, at para. 34:

Moreover, it is important to recognize that parties to a R. 66 action are not compelled to remain in the fast track process. If the spectre of “special circumstances” emerges at any time during the action, whether in the form of complex issues, offers to settle, increased trial time, or any other situation, the parties may consent to removing the case from R. 66, or obtain an order to that effect under R. 66(8). Thus, if a concern arises that costs under R. 66(29) will not be adequate, this can be remedied by taking appropriate action during the proceeding.

and at para. 36:

“Here, if the plaintiff was concerned that R. 66 was no longer appropriate, the proper response was to apply for removal from the fast track litigation. If she chose not to take that step, she should have no basis for complaint that her costs are limited by R. 66(29).”

[18]         In other words, a party who opted out of Rule 66 prior to trial was not limited by Rule 66(29). It is noteworthy that Rule 68, which governed this action prior to the parties “opting out” contained no limitation on costs. Also noteworthy is that Rule 15?1 as well as the case with its predecessors, provides for opting out of the provisions for the Rule and in this case the parties did so.

[19]         Ms. Deane-Cloutier says that although Rule 15-1 does not, on its face, contemplate settlement, neither did Rule 66(29), but that did not prevent the court from holding that the subrule applied to settlement of cases governed by the Rule. That submission, with respect, ignores however the very clear statement of the Court of Appeal in Majewska: that once Rule 66 ceased to apply to an action, a party would not be limited to costs recoverable under Rule 66(29).

[20]         The plaintiff’s costs will be assessed pursuant to Schedule B of the Supreme Court Civil Rules. While I agree that Rule 15-1(1) provides that cost limitations apply to cases which were not “fast tracked” but should have been (regardless of the intentions of the parties), the rule nonetheless provides that even if otherwise applicable, it will not apply to cases where the court has ordered that it will cease to apply. The court did so here, with the consent of the parties and, as a result, the cost limitation set out in Rule 15-1, does not apply.

Scope of Discovery Under the New Rules of Court

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 7, Uncategorized. 100 Comments on Scope of Discovery Under the New Rules of Court


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the scope of both discovery of documents and examinations for discovery under the new Rules of Court.
In today’s case (More Marine Ltd. v. Shearwater Marine Ltd) the Plaintiff companies sued the Defendant alleging the breach of marine insurance policies.  The Plaintiff was self represented.  He examined an insurance adjuster that worked for the Defendant.  At discovery the Defendant raised numerous objections including an objection to questions addressing “general practices in the insurance industry“.  A motion was brought seeking guidance addressing whether these questions were permissible.
Mr. Justice Smith held that this line of questioning was appropriate and ordered that a further discovery take place.  In doing so the Court provided perhaps the most extensive judicial feedback to date about the changes with respect to discovery obligations under the New Rules of Court.  Mr. Justice Smith gave the following useful reasons:

[3]             The scope of proper questioning on an examination for discovery is set out in Rule 7-2 (18) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules]:

Unless the court otherwise orders, a person being examined for discovery

(a)        must answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action, and

(b)        is compellable to give the names and addresses of all persons who reasonably might be expected to have knowledge relating to any matter in question in the action.

[4]             The new Rules came into effect on July 1, 2010, but the language in rule 7-2 (18) is identical to the former rule 27 (22).  As Griffin J. said in Kendall v. Sun Life Assurance Company of Canada, 2010 BCSC 1556 [Kendall] at para. 7 “the scope of examination for discovery has remained unchanged and is very broad.”  In Cominco Ltd. v. Westinghouse Can Ltd. (1979), 11 B.C.L.R. 142 (C.A.) [Cominco], an early and leading case under the former rule, the Court of Appeal said at 151 that “rigid limitations rigidly applied can destroy the right to a proper examination for discovery.”  The court in Cominco also adopted the following statement from Hopper v. Dunsmuir No. 2 (1903), 10 B.C.R. 23 (C.A.) at 29:

It is also obvious that useful or effective cross-examination would be impossible if counsel could only ask such questions as plainly revealed their purpose, and it is needless to labour the proposition that in many cases much preliminary skirmishing is necessary to make possible a successful assault upon the citadel, especially where the adversary is the chief repository of the information required.

[5]             In Day v. Hume, 2009 BCSC 587 this court said at para. 20:

The principles emerging from the authorities are clear. An examination for discovery is in the nature of cross-examination and counsel for the party being examined should not interfere except where it is clearly necessary to resolve ambiguity in a question or to prevent injustice.

[6]               While Rule 7-2 (18) is the same as its predecessor, the new Rules create a distinction that did not previously exist between oral examination for discovery and discovery of documents.  The former rule 26 (1) required a party to list all documents “relating to every matter in question in the action.”  Although disclosure in those terms may still be ordered by the court under Rule 7-1 (14), the initial disclosure obligation is set out more narrowly in Rule 7-1(1):

(1)        Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period,

(a)        prepare a list of documents in Form 22 that lists

(i)         all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and

(ii)        all other documents to which the party intends to refer at trial, and

(b)        serve the list on all parties of record.

[7]             Under the former rules, the duty to disclose documents and the duty to answer questions on oral examination were therefore controlled by the same test for relevance.  Under the newRules, different tests apply, with the duty to answer questions on discovery being apparently broader than the duty to disclose documents.

[8]             Although that may appear to be an anomaly, there are at least two good reasons for the difference.  One reason is that if the court is to be persuaded that the broader document discovery made possible by rule 7-1(14) is appropriate in a particular case, some evidence of the existence and potential relevance of those additional documents will be required.  The examination for discovery is the most likely source of such evidence.

[9]             The second reason relates to the introduction of proportionality as a governing concept in the new Rules.  Rule 1-3 (2) states:

(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.

[10]         The  former rule governing discovery of documents was interpreted according to the long-established test in Compagnie Financière du Pacifique v. Peruvian Guano Company (1882), 11 Q.B.D. 55 at 63 (C.A.):

It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may — not which must — either directly or indirectly enable the party … either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable the party … either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences…

[11]         The new Rules recognize that application of a 19th century test to the vast quantity of paper and electronic documents produced and stored by 21st century technology had made document discovery an unduly onerous and costly task in many cases.  Some reasonable limitations had become necessary and Rule 7-1 (1) is intended to provide them.

[12]         The new Rules also impose limitations on oral examination for discovery, but do so through a different mechanism.  Rule 7-2 (2) now limits an examination for discovery to seven hours or to any longer period to which the person being examined consents.  Although the test for relevance of a particular question or group of questions remains very broad, examining parties who ask too many questions about marginally relevant matters, who spend too much time pursuing unproductive trains of inquiry or who elicit too much evidence that will not be admissible at trial risk leaving themselves with insufficient time for obtaining more important evidence and admissions.

[13]          As Griffin J. said in Kendall, the time limit imposes a “self-policing incentive” on the party conducting the examination: at para. 14.  At the same time, the existence of the time limit creates a greater obligation on counsel for the party being examined to avoid unduly objecting or interfering in a way that wastes the time available. This interplay was described in Kendall at para. 18:

A largely “hands off” approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality, effective July 1, 2010.  Allowing wide-ranging cross-examination on examination for discovery is far more cost-effective than a practice that encourages objections, which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections.  It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial, rather than on examination for discovery.

BC Court of Appeal Finds It Is Not "Misleading" To Use Competitors Names in Paid KeyWord Search

Written by admin on . Posted in Uncategorized.


Interesting reasons for judgement were released today by the BC Court of Appeal addressing professional regulation of paid keyword searches.  This of course has nothing to do with Injury Law, however, as very few professions spend more money on keyword advertising than injury lawyers I thought this decision would be of interest to some of my readers.
In today’s case (Private Career Training Institutions Agency v. Vancouver Career College (Burnaby) Inc.) the respondents “paid Internet search engines such as Google or Yahoo for the use of competitors’ names as a keyword“.
The respondent was precluded from engaging in “deceptive or misleading” advertising by virtue of Bylaw 29(1) of the Private Career Training Institutions Act.  The Appellant was the regulator in charge of this act and sought an injunction preventing this practice.   At trial the judge refused to grant the injunction finding this practice was not deceptive.  The BC Court of Appeal agreed and in doing so provided the following reasons:

6]             Internet search engines commonly sell the use of keywords to the highest bidder for a period of time on the basis that the purchaser’s name will appear at the top of a list of names or in a special section on the first page that appears when a user searches the Internet using the competitors’ name.  The purchaser’s listing may be identified as a “sponsor”, an “ad” or not at all.  Other names appear in an organic list below the purchasing company’s name in an order of priority developed by the search engine.

[7]             For example, a Google search of “Sprott-Shaw Community College” produced a page with a box at the top right of the page containing a list of “sponsored links”– the first one of which was the respondent Vancouver Career College.  Sprott-Shaw also appeared on the page.  A Google search of the term “vanarts” produced a page on the top of which was the name Vancouver Art College, the internet address of which was the respondent Vancouver College of Art and Design.  This was identified as a sponsored link.  The respondent’s competitor, Van Arts school, was listed next below the respondent….

[38]         It is important to understand what this case concerns.  It is not a dispute over intellectual property and the result should not be considered in that context.

[39]         The application before the chambers judge was for an injunction.  The burden was on the appellant to satisfy the judge that there were reasonable grounds to believe that the respondents’ use of keyword advertising was actually or potentially misleading.  He found as a fact that the appellant had not established that the respondents’ keyword advertising was actually or potentially misleading.  He stated that the appellant had not persuaded him that the respondents’ use of its competitors’ names in keyword advertising “could…lead a student astray or into making a harmful error of judgment”.  There was evidence to support those findings.

[40]         In my view, that evidence and the judge’s findings show that he was not satisfied that there were reasonable grounds to believe that the respondents contravened Bylaw 29(1).  There is no basis on which this Court should or could interfere.

Examination For Discovery and Continuations – A "Heavy Onus"

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure, Uncategorized.


One of the welcome developments in the New BC Supreme Court Rules is a cap on the length of examinations for discovery.   Examinations in conventional lawsuits are capped at 7 hours under Rule 7-2(a) and limited to 2 hours in Fast Track trials.  The Court has a general power to permit lengthier examinations in appropriate circumstances.
When parties conclude an examination for discovery there are typically requests for further information and parties usually agree to a follow up discovery to address matters arising from the further disclosure.  When a party wishes to further explore a topic already covered, however, they are usually not permitted to have a continuation of the discovery.  Reasons for judgement were released today addressing this area of law.
In today’s case (Lewis v Lewis) the Plaintiff was involved in a 2005 motor vehicle collision.  The Plaintiff alleged injury.  The Defendant denied that she was injured and alleged that her injuries were pre-existing.  In the course of the lawsuit the Plaintiff provided various medical records including pre-accident records.
The Plaintiff attended a discovery and was examined with respect to her injury claim.   After concluding the discovery the Defendants requested a continuation to further explore the issue of the Plaintiff’s pre-accident health.  The Plaintiff opposed arguing that she had already been examined with respect to this topic.  Mr. Justice Harvey agreed with the Plaintiff and dismissed the application for a further discovery.  In doing so the Court provided the following useful reasons:

[8]             The case law stands for the proposition that where a further examination for discovery is sought, there is a heavy onus on the applicant to justify that further examination, and that to justify same they must demonstrate that the complexion of the case has materially changed as a result of the passage of time, new heads of damage are being advanced, or intervening events having occurred since the last discovery, which would materially alter the prosecution of the case and the defence of it.

[9]             Alternatively, a party could produce evidence to show that full and frank disclosure was not made at the first discovery.

[10]         Here that is not the case. Here the defendant, together with its medical advisor, failed to see what was there to be seen. Specifically, each failed to note and act upon the references to previous shoulder complaints in clinical records that were in the hands of both the medical practitioner and the solicitor conducting the discovery.  I am not satisfied that the heavy onus that is set forth in the decisions I have been referred to, one of which was Sutherland (Public Trustee of) v. Lucas, has been met.

[11]         Accordingly the application for a further discovery by the defendant is dismissed.

The Shortcomings of "Occupant Dynamics" Expert Evidence

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 51 Comments on The Shortcomings of "Occupant Dynamics" Expert Evidence


Accident reconstrucion experts routinely give evidence during BC personal injury lawsuits when fault for a motor vehicle crash is at issue.  One subset of such expert evidence is “occupant dynamic” evidence which seeks to explain how a passenger would be thrown around following a collision.  While this evidence can have some value at trial it is accompanied with certain shortcomings.  These were discussed in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Byer v. Mills) the Plaintiff was one of two occupants in a vehicle which was involved in an at-fault collision.  The central issue at trial was who the driver of the vehicle was.  The Plaintiff was badly injured and had no recollection of who was driving.  The second occupant of the vehicle died shortly following the crash.  There were no independent witnesses addressing who was driving at the time of the crash and the Court had to decide this issue relying on circumstantial evidence.
In the course of the trial the Court heard evidence from an ‘occupant dynamic‘ expert.   Ultimatley Mr. Justice Harris dismissed the Plaintiff’s lawsuit finding that, on a balance of probabilities, he was likely the driver therefore he was at fault for his own injuries.  This decision was most influenced by lay witness evidence and the occupant dynamic expert testimony was of little value in this particular case.  Mr. Justice Harris provided the following short but useful comment addressing the shortcomings of occupant dynamic evidence:
[54] The principles of occupant dynamics are helpful up to a point. Certainly, they assist in identifying the principal direction of force exerted on occupants. They are also helpful in identifying the point at which an occupant might be expected to make initial contact with the interior of the passenger compartment. In my view, in the circumstances of this collision, the predictive value of principles of occupant dynamics rapidly diminishes once the movement of the passengers is affected by contact with the interior of the compartment and with each other. At that point the situation becomes inherently dynamic and fluid. There are far too many variables involved to make accurate predictions of how the occupants and parts of their bodies would move once they start hitting each other. It must be remembered that if unrestrained an occupant would be traveling within the compartment at a speed of about 55 km/h. I am sceptical that any reliable prediction of how the occupants would interact with each other, with the interior of the passenger compartment and move within it can be undertaken.

New Rules of Court Update: Contested Applications At CPC's and TMC's

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 5, Uncategorized. 47 Comments on New Rules of Court Update: Contested Applications At CPC's and TMC's


(Note: this area of law is still developing, for a further case addressing this issue click here)
Two of the biggest changes under the New Supreme Court Rules are the introduction of Case Planning Conferences and mandatory Trial Management Conferences (CPC’s and TMC’s).
The New Rules give the Court significant powers to make various orders with respect to the conduct of lawsuits at these hearings.  Interesting reasons were recently brought to my attention addressing the limit of the Court to address contested matters at CPC’s and TMC’s.
In the recent case (Vernon v. British Columbia (Liquor Distribution Branch)) the Plaintiff sued the Defendant for wrongful dismissal.  As the lawsuit progressed the parties attended a Trial Management Conference.  At the TMC the Defendant asked for various orders including an adjournment of the upcoming trial and a partial publication ban of the trial.  These applicaitons were contested by the Plaintiff.  Mr. Justice Goepel dismissed the applications finding that TMC’s and CPC’s were inappropriate forums for contested applications.  The Court provided the following reasons:

[21]        The issue in this case is whether counsel’s statements provide a sufficient evidentiary foundation for the orders that the defendant seeks. The applications for an adjournment and a publication ban both require the exercise of judicial discretion to consider competing interests. In the case of the adjournment, the contest is between the defendant’s need for additional time to prepare its case and the potential prejudice to the plaintiff if the case is adjourned. With regard to the publication ban, the court must weigh the salutary effect

[22]        The adjournment and publication ban applications both require a proper evidentiary foundation. Statements of counsel alone are not sufficient. To paraphrase Lambert J.A. in Nichols, where statements of counsel stand alone, it will be a rare case that such statements will be sufficient to justify a finding of fact that would permit the exercise of judicial discretion. This is not such a case.

[23]        While CPCs and TMCs have a role to play in the orderly progress of litigation, they are not generally the forum to determine contested applications. Such applications will usually require affidavit evidence and pursuant to the provisions of Rule 12-2(11) and 5-3(2) applications requiring affidavit evidence cannot to be heard at such conferences. In this case affidavit evidence is necessary to determine the defendant’s applications for an adjournment and a publication ban. Those applications cannot be heard at a TMC.

[24]        This is not to say that a judge cannot make orders at a CPC or a TMC. Clearly, a judge can. Many of the orders contemplated at such a conference will not require applications or affidavit evidence. The Rules allow a judge to make an order absent an application. Many of the orders suggested in the respective rules are procedural in nature and more in the nature of directions. Such orders can be based on the representations of counsel. An example is the present application concerning the order of proceedings at trial.

Why I Hate Insurance Fraud (and why you should too)

Written by admin on . Posted in Uncategorized. 46 Comments on Why I Hate Insurance Fraud (and why you should too)


Recently Canadian Underwriter reported that insurance fraud costs Canadian insurers over $540 million annually.  The article highlights the fact that “Insurance companies around the world are reporting a higher number of bogus claims from cash-strapped motorists, homeowners and other con artists“.
Insurance companies, however, are not the hardest hit victims of insurance fraud.  Legitimately injured people are.
This is the reason why I hate insurance fraud.  It’s not just that fraud costs ICBC and other insurers money.  It’s not just that fraud compensates undeserving people.  It’s not even that insurance fraud is a crime.  The main reason why I hate insurance fraud is that it casts doubt on legitimate claims.
When insurance companies process thousands of claims, a few fraudulent ones will appear.  If an adjuster deals with enough of these it’s natural to develop a level of skepticism.  This skepticism can then go on to skew the way legitimate claims are perceived.  This in turn results in some deserving individuals being denied their needed insurance benefits.
When insurance companies suspect fraud they have significant resources to pursue claims for damages, claimants who are denied disability or other insurance benefits are not always so fortunate.  When statistics are published about insurance fraud remember that deserving claimants are the greatest victims of this crime.