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Excluding Prejudicial Evidence in BC Civil Claims

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure, Uncategorized. 73 Comments on Excluding Prejudicial Evidence in BC Civil Claims


One exception to the general rule that relevant evidence should be admitted in a civil trial deals with prejudice.  If the prejudicial effect of relevant evidence outweighs it’s probative value a trial judge has the discretion of excluding it.  The BC Court of Appeal recently discussed this principle in the context of an ICBC claim.
In today’s case (Gray v. ICBC) the Plaintiff was involved in a motor vehicle collision.  She was allegedly at fault for this crash and was sued by the driver and passenger in the other vehicle involved in the collision.  The Plaintiff was insured with ICBC.  ICBC denied coverage to the Plaintiff arguing that she was impaired at the time of the crash and therefore in breach of her insurance.  The Plaintiff sued ICBC arguing she was not impaired and that ICBC was required to provide her coverage.
After the crash the Plaintiff was given a breathalyzer test by the Vancouver Police Department and her test yielded readings well above the legal limit.  At trial the Plaintiff argued that the breathalyzer readings were faulty because the machine was not set up properly.  ICBC responded with expert evidence stating that “there is nothing to indicate that the Breath Test Supervisor did not set up this instrument correctly“.   The Plaintiff countered pointing out that there was nothing in the police files indicating what set up steps were taken by the Breathalyzer Supervisor.  This left ICBC scrambling and in the course of trial they were able to locate the Breathalyzer Supervisor and the notes detailing the set up steps that were taken at the relevant time.
The Plaintiff objected to this evidence being introduced arguing that it’s late disclosure was severely prejudicial.  The trial judge agreed.  The Court held that while the supervisor could testify he could not rely on  or refer to the breathalyzer maintenance notes in giving his evidence.  Ultimately the Plaintiff succeeded at trial with the judge finding that she was not in breach of her insurance.  ICBC appealed arguing the trial judge was wrong in excluding the evidence.  The BC Court of Appeal allowed the appeal and ordered a new trial.  In doing so the BC High Court provided the following reasons about the exclusion of prejudicial evidence:
As Mr. Justice Wood said, speaking for this Court in Anderson (Guardian ad litem) v. Erickson (1992), 71 B.C.L.R. (2d) 68 (C.A.), “There is no doubt that a Judge trying a civil case in Canada has a discretion to exclude relevant evidence on the ground that its prejudicial effect outweighs its probative value”…

[27]         In my view, the trial judge erred in her approach to the exclusion of the documentary evidence prepared by Mr. Czech. In exercising her discretion, she was required to balance the probative value of the evidence against the potential prejudice to Ms. Gray of its admission and to make a judgment whether the prejudice outweighed the probative value. It is apparent that she did not undertake this exercise. Rather, she excluded the evidence after balancing the prejudice to the respondent, Ms. Gray, if the evidence were admitted against the prejudice to the appellants if it were excluded. Thus, she erred in principle in her approach and in failing to take into account a critically important factor – the probative value of the impugned evidence. It follows that she did not exercise her discretion judicially.

[28]         Moreover, the trial judge erred in prohibiting Mr. Czech from using his records to refresh his memory. Witnesses are entitled to refresh their memory by any means, including by inadmissible evidence: see R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535.

Interestingly the BC Court of Appeal did not determine whether the evidence should have been excluded, rather that the wrong test was used.  The Court directed a new trial requiring the correct principle to be applied in deciding whether the evidence should be admitted.

We Don't Need Your Consent! – ICBC Claims and Medical Reports

Written by admin on . Posted in ICBC Privacy Issues, independent medical exams, Uncategorized. 112 Comments on We Don't Need Your Consent! – ICBC Claims and Medical Reports


If you’re involved in a BC motor vehicle collision and have your injuries treated by a “medical practitioner” ICBC can compel the medical practitioner to provide them with a report documenting your injuries.  This is so even if you are not insured with ICBC and even if you don’t consent.  Reasons for judgement were published this week on the BC Supreme Court’s website discussing this area of law.
In today’s case (Pearlman v. ICBC) the Plaintiff was involved in collision in 2004.  He was insured with a carrier from Washington State.  The other motorist was insured with ICBC.   The Plaintiff initially contacted ICBC and signed an authorization permitting ICBC to obtain medical information relating to his injuries.  About a year later the Plaintiff hired a lawyer and cancelled the authorization.  Despite this ICBC contacted a physician who treated the Plaintiff after the accident (Dr. Lubin) and requested “a narrative medical report“.
Ultimately the Plaintiff’s lawsuit against the other motorist was dismissed at trial.  The Plaintiff then sued Dr. Lubin arguing that the physician breached the Plaintiff’s confidence by providing ICBC a medical report when the Plaintiff withdrew his consent for ICBC to obtain his medical information.  The Plaintiff also sued ICBC directly arguing that ICBC improperly requested the medico-legal report.  Both of these lawsuits were dismissed with the BC Supreme Court finding that whether or not ICBC has written authority, section 28 of the Insurance (Vehicle) Act permits ICBC to obtain reports from treating medical practitioners and that practitioners have “no legal choice” other than to comply with such requests.
In the claim against Dr. Lubin Madam Justice Morrison stated as follows about the mandatory nature of section 28 of the Insurance (Vehicle) Act:
[] Dr. Lubin was obligated to provide ICBC with the report as requested.  Dr. Lubin had no legal choice other than to comply with the mandatory request to submit a medical legal report to ICBC.  This did not amount to a breach of confidentiality as alleged by the plaintiff.
In the claim against ICBC Mr. Justice Smith found that it would be an ‘abuse of process‘ to permit the Jury in that action to make findings contrary to Madam Justice Morrison’s previous decision.  Mr. Justice Smith held as follows:

[14]         The plaintiff also sued Dr. Lubin, alleging a number of causes of action, including negligence and breach of confidence.  That action went to trial before Madam Justice Morrison and was dismissed in reasons for judgment dated March 11, 2009.  Madam Justice Morrison held that when ICBC requested the report, Dr. Lubin was obliged to provide it.  She found that obligation arose out of s. 28 of the Insurance (Vehicle) Act, which reads:

If any of the following persons attends to, diagnoses, treats or is consulted by a person injured in a motor vehicle accident in British Columbia, he or she must, whenever the corporation requests, provide the corporation, as soon as reasonably practicable, with a report of the injuries and their diagnosis and treatment and a prognosis, in the form the corporation prescribes …

The persons then listed include a medical practitioner….

[20] Madam Justice Morrison’s findings regarding Dr. Lubin’s conduct were made on the same or very similar evidence that is before the Court in this case, and I conclude it would indeed be an abuse of process to invite this jury to make contrary findings.

The Plaintiff appealed Madam Justice Morrison’s decision.  In the course of the Appeal the Plaintiff was ordered to post security for costs in the event he lost the appeal.  In reviewing this decision the BC Court of Appeal made the following comments on the matter of ICBC ordering reports not in the ‘prescribed form‘:

[19] Even if Mr. Pearlman were to succeed in his argument that the judge erred in finding that Dr. Lubin was required to provide the report under statute – I note, in that regard, that the report was not prepared in form CL 19, which is ICBC’s prescribed form under s. 28 of theInsurance (Vehicle) Act) – it is difficult to see how his appeal could succeed given the trial judge’s clear finding that Dr. Lubin did not cause him any loss.

These decisions illustrate ICBC’s power to get medical reports even absent patient consent.  It can be argued that the Court of Appeal’s comments can leave individuals with little recourse if ICBC goes further than ordering a CL-19 and in fact obtains a full medico-legal report.  A solution, at least insofar as tort claims are concerned, is for plaintiffs to bring this power to the Courts attention when ICBC insured defendants try to obtain independent medical exams in order to ‘level the playing field‘ under the BC Supreme Court Rules.

No Income Tax Deductions for Depleted Sick Bank Damages

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Wage Loss, Uncategorized.


As previously discussed, when a person becomes disabled from work due to injuries and uses up banked sick time they can claim damages to be reimbursed for this loss in a tort claim.
If the tort claim arises from a BC motor vehicle accident the Insurance (Vehicle) Act requires awards for past wage loss to be reduced to take income tax consequences into account resulting in damages only for “net income loss”.  So, when damages are paid for use of banked sick time does the award need to be reduced to take income tax into account?   The answer is no and reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this issue.
In last week’s case (Chalmers v. Russell) the Plaintiff was a school teacher who was involved in two motor vehicle collisions.  The Plaintiff was not at fault for either of these crashes.  As a consequence of injuries sustained the Plaintiff had to use up several thousand dollars of banked sick time available to her through her employment.  Madam Justice Griffin awarded the Plaintiff damages for this loss and in doing so provided the following useful reasons explaining that these awards are not to be reduced to take income tax consequences into account:

[85]         I accept Ms. Chalmers’ evidence that following the first accident, she was so sore and painful that she felt it necessary to take time off work prior to the birth of her child in order to expedite her recovery.  I am mindful that she did not obtain any medical evidence in support of her decision to take time from work.  Regardless, given her advanced state of pregnancy, the trauma of the accident and the pain she was in after the first accident, I consider her decision not to return to work to be reasonable and due to her injuries.  The cost to reimburse the sick bank during this time period is $342.45 per day, totalling $3,766.95.

[86]         As noted in Bjarnason v. Parks, 2009 BCSC 48, depletion of a sick bank is a compensable loss: at para. 56.  However, it is not an income loss so there should be no deduction for income tax in accordance with ss. 95 and 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231: Bjarnason at para. 66.

In addition to the above, today’s case is worth reviewing for the Court’s discussion of non-pecuniary damages for mothers whose injuries affect their ability to look after their young children.  In today’s case the Plaintiff sustained various soft tissue injuries which, while not disabling, continued to affect the Plaintiff and interfered with her ability to look after her infant children.  Madam Justice Griffin assessed non-pecuniary damages at $50,000 and in doing so provided the following reasons:

[123] Importantly, Ms. Chalmers has lost the experience of being a relatively pain-free, physically active mother of her infant children during an important period in their young lives.  This is clearly a huge loss for Ms. Chalmers.

[124] I conclude that a reasonable award of non pecuniary damages, that is fair to all parties, is $50,000.

This is not the first time that pain interfering with parenting has been considered a relevant matter by the BC Supreme Court in addressing non-pecuniary damages and you can click here to read a previous post further discussing this topic.

BC Supreme Court Reminds ICBC That The LVI Defence is "Illogical"

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, Uncategorized.

I’ve written numerous times about the so-called “Low Velocity Impact Defence” to tort claims and that is has been soundly rejected by the BC Supreme Court.  Reasons for judgement were published this week on the BC Supreme Court website further criticizing the LVI Defence.
In this week’s case (Lee v. Hawari) the Plaintiff was injured in 2006 motor vehicle collision.  The Defendant argued that the Plaintiff could not have been injured because this was a low velocity crash.  Madam Justice Adair disagreed and found that the Plaintiff suffered “mild to moderate soft-tissue injuries to her neck, shoulder (including the right trapezius strain) and back, and she continues to suffer some symptoms, including pain, from those injuries as of trial“.  The Court went on to award the Plaintiff $21,000 for her non-pecuniary damages.  Prior to doing so Madam Justice Adair provided the following sound criticism of the LVI defence:
[53] Mr. Hawari appears to suggest that because this was a low velocity collision, Ms. Lee could not have suffered any injury, or could only have suffered minor injuries.  However, this does not follow, either as a matter of logic or legal principle,  as Mr. Justice Thackray reminded litigants (and their insurers) in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.), at para. 4 to 6.  See also Jackman v. All Season Labour Supplies Ltd., 2006 BCSC 2053, at paras 12 to 13, and Ceraldi v. Dathie, 2008 BCSC 1812, at para. 27.  The presence and extent of injuries are to be determined on the basis of evidence given in court.
Published reasons such as these aimed at insurance companies behind the defendants are a welcome reminder that deciding whether compensable injuries were sustained in a collision should be determined by viewing all of the evidence, not by artificial standards giving undue focus to vehicle repair costs.

Binding ICBC Claims Settlements: Lawyers and Client Consent

Written by admin on . Posted in Settlement Law, Uncategorized. 46 Comments on Binding ICBC Claims Settlements: Lawyers and Client Consent


(Update:  The case discussed in the below post went to trial on February 15, 2011 with reasons for judgement released on February 18, 2011 with Mr. Justice Truscott finding that no binding settlements were entered into).
As previously discussed, lawyers act as agents for their clients and can enter into a binding settlement even if their client did not instruct the lawyer to do so.   (This, of course, would be improper and I address this at the bottom of this post).  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, further demonstrating this reality.
In this week’s case (Johnson v. Wells) the Plaintiff was involved in 2 motor vehicle collisions.  She hired a lawyer to deal with one of these claims.  In the lawyers dealings with ICBC he settled the claim that he was retained for apparently with his clients instructions.  However, a disagreement arose as to whether the settlement covered the second claim.   ICBC alleged that the lawyer entered into a settlement agreement for both claims.  The lawyer disagreed.  The BC Supreme Court was asked to decide whether there was a binding settlement.
The Plaintiff gave evidence that she “had not even retained (the lawyer for the second claim)…I had no intention of settling that claim and I did not instruct (my lawyer) to settle that claim“.  Ultimately the Court deemed that there was not enough information to decide whether there was a settlement for the second claim and that ICBC’s adjuster needed to be cross examined.  The reasons for judgment, however, do not focus on whether the client consented, rather, on the communications between the lawyer and ICBC and what was agreed to regardless of the client’s instructions.  In ordering that ICBC’s adjuster be cross-examined Mr. Justice Truscott provided the following reasons:

[40]         I have concluded that the plaintiff’s application to cross-examine Adjuster Johnston on her affidavit should be allowed.

[41]         The cross-examination will be restricted to why Adjuster Johnston attributed $5,000 to the 2006 accident and $2,500 to the 2008 accident, what was said between her and Mr. Albertson about the 2008 accident and its settlement, why she thought Mr. Albertson was retained by the plaintiff or the 2008 accident, what discussion there was between the two of them on the terms of the release, and what discussion there was between the two of them on settlement of any Part 7 benefits claim.

[42]         I see no usefulness in questioning Adjuster Johnston about Mr. Albertson’s authority to settle the 2006 accident because he clearly had that authority from the plaintiff given the plaintiff’s affidavit evidence.

Implicit in this judgment is that a binding settlement could have been entered into, regardless of the client instructions, depending on the discussion between the lawyer and ICBC.
If a lawyer enters into a binding settlement without a client’s consent the client’s remedy is against their lawyer as opposed to the Defendant in the ICBC Claim.  In the best interests of everyone involved it is vital that lawyers do not accept an ICBC settlement offer unless they have clear instructions from their clients to do so.  As previously discussed, a best practice when giving settlement instructions to a lawyer is to do so in writing to help avoid potential complications.

BC Supreme Court Finds Botox Covered Under ICBC's Part 7 Benefits

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized.


It is not uncommon for physicians to occasionally prescribe Botox Injections to treat symptoms of pain following motor vehicle collisions.  The Botox itself is not covered by the BC Medical Service Plan and people often turn to ICBC for funding of this expense.  Two recent decisions have addressed whether ICBC is obliged to fund Botox therapy when prescribed by a physician.
In 2008 Mr. Justice Macaulay provided reasons for judgement (Tiessen v. ICBC) finding that Botox is indeed a covered benefit under ICBC’s No-Fault Plan. The Court provided the following reasons:

[]           Counsel for ICBC seeks to impose too high a standard for proving that a recommended treatment is necessary.  I am satisfied that the treatment is necessary in the sense that the plaintiff needs short and long term pain relief for his lower back.  While it is impossible to predict that this particular treatment will succeed, it is nonetheless, on the evidence before me, a necessary physical treatment within the meaning of the section.

[]           There is no evidence to suggest that the proposed cost of the staged treatment is unreasonable.  The fact that the particular treatment is not covered by MSP does not establish that the cost is unreasonable.

[]           I am persuaded that the plaintiff is entitled to a declaration that he is an insured person to be benefited pursuant to Part 7 of the Regulations and a further declaration that he is entitled to receive medical rehabilitative benefits pursuant to the contract of insurance with the defendant under Policy Number 639 DER for the cost of Botox injections as recommended by Dr. Quartly.

Further reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, confirming that Botox is a benefit covered under Part 7.
In today’s case (Plensky v. Di Biase) the Plaintiff was injured in a 2004 motor vehicle collision.  A jury awarded the Plaintiff damages including just over $60,000 for the cost of her future medical care.   The court was then asked to reduce the award to take into account the future expenses that were covered directly by the Plaintiff’s Part 7 Benefits to avoid “double recovery”  (You can click here to read more about this topic).  Madam Justice Ross ultimately made a modest deduction to the Jury’s award.  Part of the deduction reflected the cost of future Botox injections which the Court accepted was a responsibility of ICBC’s under the Plaintiff’s Part 7 Benefits.
Today’s case coupled with Mr. Justice Macaulay’s 2008 decision make it clear that Botox can be covered under people’s own policies of ICBC Insurance.

ICBC Unidentified Motorist Claims and Post Accident Advertising

Written by admin on . Posted in BCSC Civil Rule 1, Uncategorized. 97 Comments on ICBC Unidentified Motorist Claims and Post Accident Advertising

(IPDATE:  The case discussed in the below post was upheld on Appeal on October 26, 2011)

As previously discussed, victims of injuries sustained in collisions caused by “unidentified motorists” can seek compensation directly from ICBC under section 24 of the Insurance (Vehicle) Act provided that they comply with this section.  One of the requirements of s. 24 is for the claimant to make “all reasonable efforts” to ascertain the identity of the at fault motorist.  One reasonable effort a Plaintiff can take is to advertise for witnesses.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing post accident advertisements and explaining that these are not always necessary to bring a successful s. 24 claim.
In today’s case (Nicholls v. Anderson) the Plaintiff was involved in a single vehicle motorcycle accident in 2005.  He lost control of his motorcycle when he “encountered a diesel fuel spill on the highway“.  He alleged an unknown motorist was at fault for leaving this spill on the road and sued ICBC directly for his damages.  ICBC applied to dismiss the lawsuit arguing the Plaintiff failed to make reasonable efforts to determine who was responsible for the diesel spill.  Mr. Justice Saunders disagreed and dismissed ICBC’s application.  In doing so the Court provided the following useful reasons about advertisements and s. 24 claims:

[13]         The last step contended by ICBC is one in which the claimant ought reasonably to have taken is the placing of a newspaper advertisement or advertisements. This aspect of ICBC’s argument has been of the greatest concern to me on this application because it is a step that could have been taken at relatively modest cost, and because in this particular case the claimant took absolutely no positive steps aimed at ascertaining the identity of the persons responsible.

[14]         I do not think that this argument can be answered solely by the claimant pointing — as was done in argument — to the fact that the accident did not happen in a well-defined geographic area or one where there was a specific readership of a specific newspaper likely identifiable. In my view, if there was an obligation to place a newspaper advertisement or advertisements, they could have been placed in community newspapers serving the north side of the Fraser in the areas of Mission and Hope and perhaps Maple Ridge, or alternatively, as ICBC argued today, in one or both of our Vancouver daily newspapers which enjoy a readership outside the greater Vancouver area.

[15]         Mr. Nicholls perceived himself in the statement that he gave within days of the accident as having sustained more than a trivial injury. If his only recourse legally were to pursue the tortfeasor, the person responsible for the spill, what steps would he have taken if acting rationally in pursuit of his own interests?  Would he have gone to the extent of placing such newspaper ads?

[16]         In my view, the reality is that there would have been only an extremely remote chance of such a line of enquiry being successful. If there ever was a time when the citizens of this province had a habit of scamming the legal notices printed in the daily or weekly newspapers’ classified sections, that day has long passed. The presumed target for any such advertisement would have been someone who would happen to have been following the truck in question in daylight in the vicinity of the accident scene, who would have seen the diesel oil splashing, would have made mental note of it as something significant, and then would have been able to make note of the truck’s appearance with sufficient particularity to identify the driver. That person, if one existed, would then have to read the advertisement in question. The possibility of all of this is so remote that in my view for the claimant in his position to have undertaken even the modest cost of taking out such an advertisement would have been absurd.

[17]         That is not to say that it would be inappropriate in any case for a claimant injured in a motor vehicle accident to take that step. As I say, the reasonableness of a person’s conduct depends in part on the benefit to be gained if they undertake  a course of action. I would not say, certainly not on this application today, that a person who had suffered a catastrophic injury involving quadriplegia or brain injury or the like could feel free not to take a positive step such as taking out a newspaper advertisement or posting an internet classified advertisement in an attempt to locate a tortfeasor, no matter how remote the chances of that being successful might seem; but in this case, given the claimant’s relatively modest injuries as alleged and as attested to in his statement, I do not think that would have been a reasonable requirement on his part.

This case is interesting because the Court went further and struck the paragraphs of ICBC’s Statement of Defence alleging that the identity of the offending motorist was ascertainable.  The Court cited the New BC Supreme Court principle of “proportionality” in arriving at this decision.   Mr. Justice Saunders provided the following reasons:

[18] So the application is dismissed, and in my view it is appropriate in this case to go further than that and to dispose of the defence. In my view in all likelihood I know as much about the reasonableness of the claimant’s actions, given the evidence that has been presented, as a trial judge would, and so I am able to rule conclusively on that issue. I also acknowledge the points made by counsel for ICBC and counsel for the claimant as to the need to under the new Rules to have regard to proportionality. So, in conjunction with dismissing the application, I rule that paras. 2 and 4 of the statement of defence of ICBC be struck. Those are the paragraphs in which it is alleged that the identity of the driver/owner was ascertainable and that the claimant has not complied with the Act in failing to make all reasonable efforts to ascertain the identity of the unknown driver.

More on Injury Claims and Plaintiff Credibility

Written by admin on . Posted in Uncategorized. 48 Comments on More on Injury Claims and Plaintiff Credibility


Further to my previous articles on this topic, little can do more damage to a lawsuit than a Court finding a Plaintiff lacks credibility.   When advancing an injury claim it’s important to know the types of factors Courts review in gauging whether a witness should be believed.  Reasons for judgement were recently published by the BC Supreme Court, Nanaimo Registry, discussing some of these.
In today’s case (S.T. v. S.K.) the Plaintiff was involved in a severe motor vehicle collision in 2007.  The driver of the offending vehicle admitted fault.  The Plaintiff sued for compensation for her personal injuries which included trauma to her left shoulder and right ankle.  The Plaintiff was ultimately awarded compensation for her injuries.  Prior to assessing damages, however, the Court highlighted some concerns with the Plaintiff’s credibility.  Madam Justice Smith provided the following criticism of the Plaintiff’s evidence:

[6]           I will begin with some observations about the credibility of the plaintiff.  I have concluded that, unfortunately, I cannot rely with entire confidence on her testimony.  The reasons for this conclusion are as follows.

[7]           First, some of her claims are exaggerated.  For example, at the examination for discovery, at Question 319, the plaintiff was asked:

Q         All right, so explain to me about the depression.  How is it that you relate that to the accident?

A          To give an example, if I said before the accident if I had – I was healthy, I was happy, I had good choice of boyfriends really to the point that they were motivated, outgoing, took care of me, respectful.  After the accident I couldn’t do sports, I couldn’t do anything that I did all my life with all my best friends that I grew up with for twelve years.  I couldn’t do to the best of my ability of sports that I used to do, and acting, and stuff like that.  And because of that it brought me down, it brought me extremely down to the point of where I – I was just so lonely and alone that I was pretty much willing to have any kind of boyfriend that would take me, literally, just because I was – I felt like I had nothing left by the time, you know.

[8]           The answer at discovery was an exaggeration, I must conclude, in light of the  plaintiff’s admission at trial, under cross-examination, that after the accident she led a very active social life, had a lead role in the school musical, and participated (though in a reduced way) in sports, including volleyball and soccer.

[9]           Second, where one might expect witnesses to be called to corroborate the plaintiff’s evidence regarding her symptoms, the plaintiff called only one witness in that respect, her mother.  I do not suggest that L.B. is not a credible witness, but she does have a very close relationship with her daughter and an obvious motive to view the evidence in a way that would be favourable to her daughter.  Also, L.B.’s ability to corroborate the plaintiff’s evidence was limited by the fact that the plaintiff has not lived at home for extended periods of time since the accident, and is currently not living at home.  No friends of the plaintiff were called, nor any fellow employees or supervisors, to relate their observations of the plaintiff experiencing the kinds of difficulties she described in her testimony.

[10]        Third, in her application for admission to the licensed practical nurse program at Vancouver Island University, the plaintiff wrote:  “I am also in very good health.  I know that working as a care aide is at times heavy work.”

[11]        Under cross-examination, she was asked whether she was in very good health and answered, “No.”  Asked whether she was misrepresenting her health in the application letter, she was unable to explain this discrepancy, as seen in the following extract from her evidence at trial.  I quote from page 73 of the transcript of the May 21 evidence, beginning at Line 29:

Q         Well, S.T. ??

A          At the time I’m sure I would not have been thinking about healthwise related to my pain in my shoulder or as of that time, pain in my ankle.  I would have probably been referring to my mental health and not thinking about my physical health.  I was ??

Q         Well, when you comment that you know that working as a care aide is at times heavy work, you’re specifically relating that to the physical requirements, certainly not heavy mental work.

A          Well, not heavy meaning literal heavy.  I mean ?? I meant hard work.  That doesn’t ?? that doesn’t include physical work.  Mental work.  For example, as a care aide, it’s very heavy work with dealing with seniors, seniors passing away.  Having that emotional part of it is very heavy too.  So —

Q         S.T., are you suggesting that when you wrote: “I know that working as a care aide is at times heavy work”, you were referring to the heavy emotional requirements of the job?

A          Not all but that is a big factor.  Hard work.  I would have rephrased it but that’s the way I wrote it.

[12]        That answer is, to put it charitably, disingenuous.

[13]        Fourth, the plaintiff was cross-examined at trial about a statement she made to the claims adjuster, David Beatty, on May 29, 2009, when she was in his office to discuss a possible settlement.  She agreed that she “may have said” that she had recovered and was able to do virtually all that she could do before the accident.  At trial, she said at one point that it was “not true”, and at another point that it was “true at the time”.

[14]        On her examination for discovery at questions 228 to 229, however, she said:

Q         So, will [the left shoulder] cause you some difficulty once a month, or –

A          I can’t estimate, it’s just kind of a random kind of act.

Q         Okay, and have you had any other problems as a result of the accident that weren’t specified in the Statement of Claim?  Any other injuries that haven’t been covered?

A          No.

[15]        At trial, she tried to suggest in her testimony that she had given that answer on discovery because at that exact time her shoulder was not troubling her.  Asked at trial whether she understood that the question was not about the exact time, but about that period of time, she said she did not know if she understood that, adding, “My shoulder hurts me when it is used:  If I sleep on it, I’m in pain, or if I reach with it I’m in pain.  I can’t put dates and times on it, it’s whenever I aggravate it.”

[16]        Having noted those reasons for viewing the plaintiff’s evidence with some caution, I will briefly review her testimony and the testimony of other witnesses relating to her injuries.

The BC Supreme Court and Adjournments of Lengthy Trials: The "20-Plus" Program

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure, Uncategorized.

I’ve previously written about adjournment applications in the BC Supreme Court and that Judges hearing such applications must consider a “balancing (of) the interests of the parties” . Reasons for judgement were released this week by the BC Supreme Court indicating that, at least with lengthy trials, a third factor is in play; specifically the “public interest” must be considered.
In this week’s case (Jones v. Donaghey) the Plaintiff sued for damages claiming he was seriously brain damaged when one of the Defendant’s assaulted him.   The Plaintiff was a newborn at the time of the alleged assault and would be four years old at the time of the proposed trial.
The defendants sought an adjournment of the trial arguing that further time was needed in order to obtain proper medical evidence.  Ultimately Mr. Justice Macaulay disagreed and refused the adjournment application.  Prior to doing so, however, the Court indicated that the interests of not only the parties must be considered in adjournment applications of lengthy trials, but also the public interest.  Mr. Justice Macaulay provided the following useful reasons:

[3] Although I address the balancing of the interests of the parties separately below, the public interest is also impacted by the scheduling, and any potential rescheduling of lengthy trials. Considerable public and judicial resources are tied up in the intensive pre-trial management and conduct of trials under what is colloquially known as the “20-plus” program. The court instituted the program some time ago to assist in the management and scheduling of complex civil cases.

[4] Generally, in my view, every effort should be made to avoid the adjournment of trials once set under the program, as litigants in other cases have had to forgo the opportunity to set down their applications or trials for hearing, because either or both the trial management judge’s rota time and court time have been reserved for a 20?plus case.

[5] In more general terms, perhaps, Levine J., as she then was, referred to the need to consider such broader interests of justice when deciding an adjournment application respecting a long trial in Strata Plan VR No. 2000 v. Shaw, at para. 26. Justice Dorgan referred to the above with apparent approval in denying a defence application for an adjournment in J.S. (Guardian ad litem of) v. D.S., at para 17.

Repost: Ice, Snow and Your ICBC Injury Claim

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 113 Comments on Repost: Ice, Snow and Your ICBC Injury Claim


The first snow of the year is falling and with it will come the usual increase in motor vehicle accidents.  With this in mind I’m republishing a post I originally wrote in the early days of this blog:
Snow in BC has two reliable results 1. Car Accidents, 2. Phone calls to ICBC and lawyers about those car accidents. The second is particularly true in Victoria and Vancouver because of the local populations relative inexperience dealing with winter driving conditions.
In anticipation of the almost certain phone calls I will receive this week I write this post.
If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits. There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering and other losses in these circumstances.  Your right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In single vehicle accidents drivers usually only have themselves or the weather to blame.
If someone else contributed to the accident (perhaps the road maintenance company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to claim against their policy of private insurance.
Now, if you are a passenger in a single vehicle, weather related accident, and your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you can bring a tort claim against them in addition to claiming your Part 7 Benefits.
If you are advancing a tort claim against a driver be weary of the defence of “inevitable accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven then the tort claim can be defeated.
People naturally don’t want to get those known to them in trouble and it is all too common for passengers reporting such a claim to ICBC to readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not careful and you give ICBC the alternate impression with a view towards helping the driver out, your statement may severely damage your ability to bring a tort claim.
Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that an accident was inevitable you will have a much harder time advancing or settling your tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will harm your claim for lawful compensation.