Reasons for judgement were published this week by the BC Court of Appeal finding purported waivers of liability to be of no force and effect.
In this week’s case (Apps v. Grouse Mountain Resorts Ltd) the Plaintiff suffered a significant spinal injury at the C4/5 level, and was rendered quadriplegic while snowboarding the Defendant’s resort. He sued for damages but at trial the claim was dismissed with the Court finding posted waivers of liability prevented the claim.
The BC Court of Appeal overturned the result finding the posted waiver signs were not adequate. In reaching this conclusion BC’s highest court provided the following reasons:
One of the hallmarks of the current justice system in BC is individuals are treated uniquely when having their injuries and losses assessed. Something the current government is hoping to take away with their proposed ICBC no fault system. Reasons for judgement were published today showing this assessment of individual justice in action.
In today’s case (Fung v. Dhaliwal) the Plaintiff was injured in a 2013 collision. Most of the injuries were transient and fully healed. The Plaintiff, however, also suffered a cut to the middle of his long finger which went on to cause long term dysfunction. The level of impairment was modest in most areas of life however the young plaintiff was a ‘skilled piano player’ and took great joy in this activity. The injury compromised his musical abilities. In assessing this unique loss and assessing non-pecuniary damages at $42,000 Madam Justice Forth provided the following reasons:
Last year BC’s Attorney General introduced court rule changes creating a hard cap on how many experts individuals could present when prosecuting an injury claim in BC Supreme Court. It was designed to save ICBC money at the expense of people seeking a fair trial. The rule changes were swiftly struck down as being unconstitutional.
This week the government is at it again. They have introduced Bill 9 titled the Evidence Amendment Act, 2020 looking to bring in similar restrictions.
Like last year’s unconstitutional rule the bill looks to limit litigants with vehicle injury claims to one expert in fast track cases and no more than three in non fast track cases. The key difference is the new bill allows the Court to permit “additional experts to be tendered” if there are areas others requiring opinion evidence not covered by other experts and that without additional evidence the applicant “would suffer prejudice disproportionate to the benefit of not increasing the complexity and cost of the proceeding.“. The lack of judicial discretion was fatal to last year’s rule and this change will presumably save this bill from suffering the same fate.
Bill 9 goes further however and also looks to restrict disbursements in an arbitrary fashion. Bill 9 retroactively limits the recovery of necessary expenses that were lawfully, properly and reasonably incurred in full compliance with existing rules. The Bill gives the Lieutenant Governor in Council the power to cap the amount of disbursements payable as a percentage of the total amount recovered in an action. The Government announced they want the percentage to be 5%.
This rule, if implemented, will force people fighting ICBC to not call the evidence they need to prove their case unless they want to be stuck with an unrecoverable bill. This is a slanted rule designed to favour ICBC. The rule does not look after the public’s needs and instead favours a corporate institutional litigant.
A constitutional challenge will likely be launched if the government follows through with this ill conceived rule.
The full text of Bill 9 at first reading is as follows:
Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for myofascial pain developed secondary to a vehicle collision.
In today’s case (Tang v. Duong) the Plaintiff was injured in a 2015 collision where the Defendant turned into the plaintiff’s lane of travel at an intersection. The Plaintiff developed various soft tissue injuries which resulted in regional myofascial pain syndrome. By the time of trial the injuries were about 80% improved but the lingering symptoms were expected to persist. In assessing non-pecuniary damages at $80,000 Mr. Justice Thompson provided the following reasons:
The latest in a recent line of cases critical of ICBC litigation tactics was published today by the BC Supreme Court, Vancouver Registry, finding that ICBC’s neglect of timely trial preparation was deserving “sanction and rebuke”.
In today’s case (Diaz v. Nowack) the Plaintiff was injured in a collision and sued for damages. Fault was admitted by the Defendants and the matter was set for a 10 day trial. The Defendants failed to list all of their proposed witnesses by the deadline imposed at a Trial Management Conference and did not provide certain “will say” statements for some witnesses by the deadline.
The Plaintiff sought to exclude the late evidence but the Court found a trial adjournment was a more appropriate remedy. The Court found this was still prejudicial to the Plaintiff and ordered that the ICBC insured Defendants pay the Plaintiff “costs thrown away payableforthwith”
The reason provided for the late evidence was because “instructing client did not authorize work to mobilize witnesses until close to the commencement of the trial and only after mediation was unsuccessful“. In finding this unacceptable and deserving of rebuke Madam Justice Choi provided the following critical comments:
Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, dismissing short leave for three ‘last minute‘ applications.
In the recent case (Agelakis v. Xu) the Plaintiff was injured in a collision and sued for damages. One month before trial ICBC brought in a new defence lawyer. Two weeks before trial that lawyer sought short leave for three applications, namely for document disclosure; a further examination for discovery of the plaintiff; and removal of the proceedings from fast track litigation.
The Court held that these applications may have been dismissed on the merits however short leave was simply not appropriate as these last minute request would unfairly cause ‘dramatic upheaval‘ to the Plaintiff’s trial preparation efforts. In dismissing the request for short leave Master Muir provided the following reasons:
In the recent case (Tzotzolis v. Wyman) the Plaintiff was involved in a 2016 rear-end collision. Following the crash the Plaintiff suffered from persistent lower back pain. Although the case involved a BC crash ICBC retained a physician based out of Ontario who occasionally flies to BC to provide an independent medical exam. That physician opined that the persistent back pain the Plaintiff suffered from was not related to the crash which was merely coincidental. In rejecting this opinion and finding it deserves ‘no weight’ Mr. Justice Saunders provided the following comments:
While the BC Supreme Court Act allows parties to apply to transfer claims to small claims court such applications are rarely brought in personal injury claims where the quantum of claims can vary widely based on how evidence unfolds.
Today reasons for judgment were published by the BC Supreme Court, Vancouver Registry, hearing and rejecting such an application brought by ICBC.
In today’s case (Herrera v. Miller) the Plaintiff was injured in a collision and sued for damages. After examinations for discovery the Defendant brought an application to move the case to small claims court arguing the damages could not exceed the limit of that court because the collision was “relatively minor, that the plaintiff suffered insignificant injuries for which he received very little treatment, and that the injuries did not seriously affect the plaintiff’s enjoyment of recreational and sporting activities, or his employment“.
The Plaintiff opposed pointing to recent case law for injuries similar to his with quantum assessments in excess of the small claims court jurisdiction. In dismissing the application, ordering costs payable to the plaintiff and finding the claim could stay in Supreme Court Mr. Justice Giaschi provided the following reasons:
Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, addressing the needed form and contents of a Minster’s certificate to recover health care costs in a Plaintiff’s tort action.
In this week’s case (Woo v. Creme De La Crumb Bakeshop & Catering Ltd).the plaintiff fell from a ladder while working at premises leased by the defendant, resulting in “catastrophic injuries”. At trial the Plaintiff’s damages were assessed at $340,000 but then reduced by 50% to reflect an equal apportionment of liability between the plaintiff and the defendant.
The Plaintiff also sought to recovery Ministry expenses pursuant to the Health Care Costs Recovery Act but the Defendant objected arguing that the Minister’s certificate presented to the court was deficient suggesting that the legislation requires separate certificates to address the types of health care costs being claimed and their costs. In rejecting this argument and finding a single certificate is sufficient under the legislation Mr. Justice Skolrood provided the following reasons:
Although infrequent, Canadian courts have occasionally imposed civil and even criminal liability following injuries at sporting events. The latest such case was published this week out of Ontario.
In the recent case (Casterton v. MacIsaac) the Plaintiff successfully sued the Defendant after suffering injuries in a hockey game.
The parties were playing in a recreational senior hockey league. It was a no contact league though incidental contact was part of the game. The plaintiff accepted that accidental contact was part of the risk of playing. Blindside hits, however, were absolutely prohibited and the Court accepted that such hits were not consented to either expressly or implicitly as part of playing.
The Defendant collided with the Plaintiff resulting in fairly severe injury. He was initially charged criminally with assault for the incident. He was convicted but his conviction was overturned on appeal and the charge was ultimately stayed.
In the civil lawsuit the Court heard conflicting evidence but ultimately found that the Defendant was liable as the contact was from a prohibited blindside hit. The collision caused the Plaintiff to suffer a concussion, two broken teeth and various cuts. Damages of over $700,000 were assessed comprised of $63,000 in general damages, $199,512 in past lost income, and $440,039 in future income loss.
In imposing liability from the body check Justice Sally Gomery made the following findings and provided the below reasons: