Uncategorized – Page 13

Rec Legaue Hockey Bodycheck Results in $702,551 Damage Award

Written by ERIK MAGRAKEN on January 15, 2020. Posted in Uncategorized.

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:

$229K in Damages Awarded for “Relentless” and “Extensive” Internet Defamation Postings

Written by ERIK MAGRAKEN on January 3, 2020. Posted in Uncategorized.

Reasons for judgment were released earlier this year (and published this week) by the BC Supreme Court, Vancouver Registry, awarding just over $229,000 in damages to a Plaintiff on the receiving end of a “relentless” and “extensive” on line defamation campaign.

In today’s case (Rook v. Halcrow) the parties were involved in a romantic relationship. Shortly after it came to an end several on line postings were published across multiple platforms making disparaging remarks about the Plaintiff.

The Defendant denied making the multiple postings but the Court rejected this and found her liable for them. In assessing general damages at $175,000, aggravated damages at $25,000 and further awarding special damages related to the Plaintiff hiring a reputation management company to remove the posts Mr. Justice Myers provided the following reasons:

Congratulations 2019 Clawbie Winners

Written by ERIK MAGRAKEN on December 31, 2019. Posted in Uncategorized.

The Canadian Law Blog Awards (the Clawbies), are awarded once a year to recognize outstanding Canadian legal blogs and other on-line legal content. The nomination process involves peer endorsement and from there a select number of blogs are chosen for recognition.

This blog is over 10 years old and first recognized for a Clawbie a decade ago. I am proud to still be plugging away here and am honoured to receive a 2019 Clawbie under the “Best Blog and Commentary” category. Thank you for everyone who nominated this blog and to Emma, Jordan and Steve for choosing this blog for recognition yet again.

Thank you to all of the readers of this blog which make the effort worthwhile.

Congratulations to all of this years other winners for the amazing content you put out there for all of us to benefit from.

Happy New Year folks!

Landlords Found Not Liable for Tenant Dog Attack

Written by ERIK MAGRAKEN on December 27, 2019. Posted in Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, New Westminster Registry, dismissing an injury claim following a dog attack.

In this week’s case (Ali v. Samra) the Plaintiff was walking to a park when a pitbull left a nearby property and attacked him in an alley where he was walking. The incident was described as follows:

On May 3, 2015, the plaintiff left his house to meet his friends at a nearby school playground. As he had done on many occasions, he walked down the alley at the back of his house and reached the corner of the alley at 98A Avenue and 132A Street in Surrey, British Columbia, when a brown pit bull came from a nearby property at 13232 – 98A Avenue, (the “Property”), and ran towards him. The plaintiff ran away from the dog but it jumped on him and bit him severely on the back and under an arm. He had done nothing to provoke the dog.

The Plaintiff sued the homeowner where the dog came from along with tenants who supposedly owned the dog. At the time of the attack the homeowners did not occupy the residence rather it was leased out to a tenant who sub leased the property to recovering heroin addicts. The terms of the homeowners lease specified that no pets were permitted.

The Plaintiff sued the homeowner under the Occupier’s Liability Act and under the doctrines of negligence and scienter. All three claims failed with the Mr. Justice Bowden providing the following reasons:

“No Weight” Placed on Opinion of ICBC Medical Expert in Injury Case

Written by ERIK MAGRAKEN on December 10, 2019. Posted in Uncategorized.

In the latest example of a pattern that is all too common in injury litigation, reasons for judgment were published this week by the BC Supreme Court, Vancouver Registry, rejecting and placing “no weight” on the medical evidence of an expert retained by a Defendant’s insurer.

In today’s case (Sharma v. Chui) the Plaintiff was involved in a 2012 crash that the Defendant accepted liability for. The Plaintiff suffered chronic soft tissue injuries as a consequence of the crash which were partially impairing in her functioning. In the course of the lawsuit ICBC, the defendant’s insurer, retained an orthopaedic surgeon who provided an opinion minimizing the Plaintiff’s injuries and the likelihood of the injuries persisting into the future. In rejecting this opinion and placing ‘no weight‘ on it Madam Justice Sharma provided the following critical comments:

Yet To Be Produced Defence Medical Report Derails Request For Second Defence Medical Exam

Written by ERIK MAGRAKEN on December 3, 2019. Posted in Uncategorized.

Last week I highlighted reasons dismissing a defence application for a second independent medical exam where they had the benefit a first exam but no report was yet produced. Today similar reasons were published by the BC Supreme Court, Vancouver Registry.

In today’s case (Rong v. Yelland) the Plaintiff was injured in a collision and sued for damages. In the course of the lawsuit the Plaintiff consented to be assessed by an orthopedic surgeon of the Defendant’s choosing. After the assessment but prior to any report from the assessment being produced the Defendant requested that the Plaintiff also attend a functional capacity evaluation with a kinesiologist. The Plaintiff declined.

The Defendant brought an application to compel attendance. In dismissing this application the Court noted there is no way of knowing whether the medical ‘playing field‘ was even without the defence surgeon’s report. Master Cameron provided the following reasons:

Non Disclosed Defence Report Thwarts Request for Second Independent Medical Examination

Written by ERIK MAGRAKEN on November 22, 2019. Posted in Uncategorized.

Reasons for judgement were recently given by the BC Supreme Court, New Westminster Registry, dismissing a defence request for an independent medical examination of a Plaintiff where the Plaintiff already saw an expert of the Defendants choosing but the Defendants have yet to produce a report from that expert.

In the recent case (Khan v. Cabrera) the Plaintiff was involved in a collision and sued for damages. In the course of the litigation the Plaintiff consented to be explained by a neurologist of the Defendant’s choosing and “that report has not yet been disclosed by the defence to the plaintiff“.

The Defendant requested that the Plaintiff also be assessed by an orthopaedic surgeon arguing that such an exam is necessary to provide an opinion about a pre-accident orthopaedic injury the plaintiff had sustained and also to address collision related injuries.

The Court dismissed the application in large part because it was unclear what opinion the Defendants would already have the benefit of from the first appointment. In short the litigation ‘playing field’ may already be even. In dismissing the application Master Keighley provided the following reasons:

Imminent Trial Thwarts Defense Clinical Record and Medical Examination Request

Written by ERIK MAGRAKEN on November 20, 2019. Posted in Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, denying a defence application for production of various clinical records and requesting a defence medical exam largely based on the proximity of trial.

In the recent case (Shannon v. Cook) the Plaintiff was involved in a vehicle collision and claimed damages. Various pre collision medical records were produced. With trial only three months away the Defendant brought an application for a host of further records to be produced along with a request for a further defence medical examination.

The Court dismissed both applications finding that with the trial being just around the corner the expert medical evidence should be mature and it was simply too late in the process for such an application to be granted. In dismissing the applications Master Cameron provided the following reasons:

Expert Report Privilege Waived With Disclsoure to Disability Carrier

Written by ERIK MAGRAKEN on November 19, 2019. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff involved in a vehicle collision injury claim to turn over an otherwise privileged report to the Defendant because the report had been previously disclosed to the Plaintiff’s disability benefits provider.

In today’s case (Malimon v. Kwok) the Plaintiff was involved in a 2015 collision and sued for damages. In the course of the lawsuit the Plaintiff obtained a medico-legal report from a physiatrist. The Plaintiff did not disclose the report to the Defendants maintaining a claim of litigation privilege.

The Plaintiff did share a copy of the report with her long-term disability benefits provider hoping it would assist in their assessment of her claim.

The Defendants succeeded in obtaining an order that the above disclosure waived litigation privilege and the BC Supreme Court ordered that a copy be provided to them. In reaching this decision Master Elwood provided the following reasons:

Motorist Ordered To Pay $34,980 in Damages Following “Road Rage Incident”

Written by ERIK MAGRAKEN on November 18, 2019. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, ordering a motorist to pay almost $35,000 in damages after striking another motorist in the face.

In today’s case (Henderson v. McGregor) the parties were both operating motor vehicle moving in the same direction of travel. The Plaintiff was concerned that the Defendant was not paying adequate attention. The vehicles stopped close to each other and the Plaintiff exited his vehicle and approached the Defendant. The Defendant “struck him without warning, grabbing and scratching his face causing lacerations and bruising and drew blood.”.

The Court found the Defendant liable for the torts of assault and battery and ordered damages just shy of $35,ooo to be paid including $2,000 in aggravated damages. Mr. Justice Walker provided the following findings regarding liability: