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BC Court of Appeal Discusses Pain and Suffering Awards for Thoracic Outlet Syndrome

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases, Jury Trials, Uncategorized. 58 Comments on BC Court of Appeal Discusses Pain and Suffering Awards for Thoracic Outlet Syndrome

Reasons for Judgement were released today by the BC Court of Appeal addressing, amongst other things, a fair award for pain and suffering for accident related Thoracic Outlet Syndrome.
In today’s case (Bransford v. Yilmazcan) the Plaintiff was involved in a 2005 motor vehicle collision.  It was an intersection crash involving a taxi and the issue of fault was admitted.  The matter went to trial before a Jury and they were asked to decide the value of her claim.
The evidence showed that the Plaintiff suffered from post traumatic Thoracic Outlet Syndrome.   The Plaintiff had various therapies including surgical intervention but nothing provided long term relief.  By the time of trial her symptoms kept her from competitive employment.  The Jury ultimately awarded over $1million in total compensation for her injuries and losses.  This award included $385,000 for her non-pecuniary damages.
The non-pecuniary damages award was then reduced to $327,350 to bring it in line with the general Canadian cap on non-pecuniary damages in negligence cases.  The Defendant then appealed seeking a new trial.  The BC High Court largely dismissed the appeal but did reduce the non-pecuniary damages to $225,000 which is one of the highest valuations for pain and suffering in BC for Thoracic Outlet Syndrome that I’m aware of.  In doing so the Court provided the following reasons:
[22] It seems to me that this award of non-pecuniary damages is sufficiently anomalous that it calls for intervention by this Court and I therefore see this as an appropriate case for appellate intervention. One significant difference I have noted between this case and Moskaleva is that the award of the jury was beyond the rough upper limit in this case. Having regard to similar cases and accepting that the jury took a very favourable view of this young woman, it seems to me that an award of $225,000 under this head would be appropriate. I consider a generous award is indicated in this case, both because of the view the jury took of the matter and because of the dramatic consequences her injury has had on the life of this young respondent. I would allow the appeal under this head and alter the award ordered by the judge of $327,350.00 to an award of $225,000.00 under this head of damages.

Ontario Proposes Artificial Caps for "Minor Injuries"

Written by admin on . Posted in Tort Reform, Uncategorized.


Although this blog is focused almost exclusively on British Columbia legal issues relating to personal injury claims, I do like to keep my eye on other Canadian jurisdictions to stay appraised of significant legal developments.  One topic I particularly focus on is so called ‘tort-reform‘ which is generally code for efforts to change the law by limiting the right of compensation to those harmed through the carelessness of others.
As I recently posted, while Nova Scotia has recently taken steps to remove their long-standing artificial caps on pain and suffering awards for so called ‘minor injuries‘, Ontario seems to be moving in the opposite direction.
Today I came across this article from the Canadian Underwriter website which states that “Ontario’s insurance regulator, the Financial Services Commission of Ontario (FSCO), has posted its new Minor Injury Guideline (MIG), a key pillar of the province’s proposed new auto insurance reform package.”
Under the proposal people with ‘minor’ injuries are entitled to benefits “subject to a $3,500 limit“. The proposed definition of a “minor injury” according to the article is:
“a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation [a partial but not complete dislocation of the joint], and any clinically associated sequelae [symptoms following on these injuries].”
A whiplash-associated disorder is further described as a whiplash injury that “does not exhibit objective, demonstrable, definable and clinically relevant neurological signs and does not exhibit a fracture in or dislocation of the spine.”
Rarely is it wise public policy to limit the rights of those injured / affected by the actions of others as has now been demonstrated with the wisdom of hindsight with the public disdain at the $75 million oil liability cap which is drawing well deserved critisim south of the border.
Efforts to limit the rights of people to seek lawful compensation usually have one predictable result, and that is to deprive the most deserving people in the affected class of fair and meaningful restoration.  Hopefully this minor injury guideline will be reformed before it comes into force.

$45,000 Non-Pecuniary Damages Awarded for Chronic Mild-Moderate Soft Tissue Injury

Written by admin on . Posted in ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff $85,000 in total damages for chronic soft tissue injuries.
In today’s case (Fennell v. Hiebert) the Plaintiff was involved in a motor vehicle collision when she was 10 years old.  She was a passenger in a van that was rearended by a pickup truck.  The collision was “sharp, sudden and unexpected” and was forceful enough to send the van off the road and into a ditch.
Fault was admitted.  The focus was the value of the Plaintiff’s claim.   The Plaintiff suffered soft tissue injuries to her neck and shoulder and these continued to bother her by the time of trial (12 years after the collision).
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000 Mr. Justice Rogers made the following findings:

[20]         On the whole, the evidence at trial was sufficient to establish that it was more likely than not that the motor vehicle accident caused the plaintiff to suffer a mild to moderate soft?tissue injury to her neck and right shoulder. That injury continued to be symptomatic in the two or three years after the accident. The symptoms were not particularly acute, as evidenced by the fact that experiencing them has faded from the plaintiff’s memory, but they were severe enough to prompt her to make complaints and to seek treatment from her chiropractor and family physician. Those symptoms began to be aggravated on a more regular basis when the plaintiff became old enough to participate in heavier chores around the family farm. They were also regularly aggravated by her work in the country feed store.

[21]         Dr. Vallentyne opined that the plaintiff is one of the 7 percent or so of soft tissue injury sufferers whose symptoms simply do not disappear with time. Given the persistence of the plaintiff’s symptoms since the accident, I am persuaded that Dr. Vallentyne’s opinion accurately describes the plaintiff’s situation. She does, in fact, have a soft tissue injury which does and will continue to cause pain in her neck and right shoulder. That pain comes on with heavy physical activity or when the plaintiff sits hunched over a desk for more than an hour or two…

[25]         In the plaintiff’s case, the injuries are permanent. They may become somewhat more tolerable if the plaintiff adheres to a structured exercise regimen, but they will nevertheless plague the plaintiff for the rest of her days. The injuries will bother her when she does particularly heavy work with her arms and shoulders, or when she sits for a prolonged period. The plaintiff will, however, be able to enjoy the vast majority of what life has to offer her.

[26]         In my view the proper award for non?pecuniary damages in this case is $45,000.

More on BC Injury Claims and Improper Closing Arguments – Appealing to Juror's Emotion

Written by admin on . Posted in Civil Procedure, Jury Trials, Uncategorized.

Further to my recent post on this topic, part of a trial lawyer’s job is to convincingly advance their client’s case.  There are limits, however, on the types of statements a lawyer can make to a jury and if these boundaries are overstepped a mistrial may occur.  Today reasons for judgement were published on the BC Supreme Court website discussing the Court’s discretion to order a mistrial when improper statements are made in the course of trial.
In today’s case (Plensky v. Di Biase) the Plaintiff was injured and sued for her damages.  During closing arguments before a Jury the Plaintiff’s lawyer said “I have been carrying the burden (of the Plaintiff’s) file from the time she first walked into my office.  At this point I can hand that burden to you with the hope that she will be restored as much as money can restore her“.
The Defence lawyer objected to this arguing that the statement was made to “appeal to the jury’s sentiment and emotion, improperly interpose counsel in the proceedings and suggest a form of pact between the counsel and the jury“.  The Defence lawyer asked that the Jury be discharged and the verdict be pronounced by Judge alone.  Madam Justice Ross agreed that the statement was in fact inappropriate but chose not to discharge the jury.  In reaching this decision the Court reasoned as follows:

[4]             In such applications, the onus is on the applicant to establish that the misconduct was likely to prejudice the jury, or may have affected a verdict or deprived a party of a fair trial. See Giang v. Clayton, 2005 BCCA 54, 38 B.C.L.R. (4th) 17. The question is whether, with appropriate instructions in the circumstances, the jury will be able to dispel the matters of concern from their minds.

[5]             The jury’s role is to be an impartial arbiter and accordingly, direct appeals to the jurors’ sympathies divert them from this important responsibility. In that regard, see Brophy v. Hutchinson, 2003 BCCA 21, 9 B.C.L.R. (4th) 46. In that case, at para. 46 the Supreme Court of Canada decision in Hesse v. The Saint John Railway Company (1899), 30 S.C.R. 218 was cited, in which the court stated at 239:

It is perhaps impossible to prevent jurors looking at a case in this way, but at least they ought not to be invited to do so, and such direct resorts or appeals to the feelings and interests of the individual jurymen can only exercise a disturbing or misleading influence.

[6]             In Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), the court continued with further commentary with respect to this issue noting at para. 15:

Some restrictions apply to both opening and closing addresses. For example, the expression by counsel of personal opinions, beliefs or feelings regarding the merits of a case has no place in either an opening or a closing address to a jury. That restraint is designed to prevent lawyers from putting their own credibility and reputations in issue, and to avoid any indirect invitation to a jury to decide a case based on information or opinion not established in the evidence . . .

Similarly, comments to a jury which impede the objective consideration of the evidence by the jurors, and which encourage assessment based on emotion or irrelevant considerations, are objectionable at any time. Such comments are “inflammatory”, in the sense that they appeal to the emotions of the jurors and invite prohibited reasoning. If left unchecked, inflammatory comments can undermine both the appearance and the reality of trial fairness . . . requesting a jury to act in a representative capacity will result in a mistrial.

[7]             In Gemmell v. Reddicopp, 2005 BCCA 628, 48 B.C.L.R. (4th) 349, the court noted at para. 37 that the address in that case:

. . . invited the jury to identify and sympathize with the plaintiff. It put [counsel’s] personal and professional life before the jury and invited the jury to identify with his cause.

[8]             With respect to the issue of misconduct and intention, I note that misconduct is not to be limited to deliberate wrongdoing and authority for that is found in Birkan v. Barnes, 69 B.C.L.R. (2d) 132 (C.A.).

[9]             I am mindful of the importance of trial by jury and the plaintiff’s selection of that mode of trial. Such a selection should not be lightly set aside. I am also mindful that the jury deliberations are confidential and if limiting instructions are given, one must take on faith that they will be observed. That consideration makes this decision a very difficult one, however, I have concluded that this was an isolated transgression and that it can be addressed with a strong limiting instruction to the jury that will be given prior to the time that defence counsel commences his closing.

Defendant Awarded Double Costs for Successfully Defeating Claim Where "Walk Away" Offer was Made

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized.


Rule 37B, the BC Supreme Court Rule dealing with formal settlement offers, continues to be shaped by the Courts.  One factor that is not yet firmly established is what effect a “walk away” offer made by a Defendant has after a Plaintiff’s claim is dismissed at trial.
When a party sues for damages in the BC Supreme Court and later decides that their lawsuit is likely going to lose at trial they can discontinue.  If this is done the Defendant is able to seek their costs at the time of discontinuance unless they waive this right.  A common strategy of Defendants when they are confident they will win at trial is to make a formal “walk away” offer where they waive their right to costs if the Plaintiff discontinues.  If the Plaintiff does not take the offer and goes on to lose at trial the Defendant may be entitled to ‘double costs’ which could easily add up to tens of thousands of dollars.  Reasons for judgement were released this week by the BC Supreme Court dealing with a walk away offer.
In this week’s case (Riley v. Riley) the parties were involved in a lawsuit involving the transfer of real-estate between family members.  (although this was not a personal injury case there is no reason why the Court’s reasoning cannot be used in the injury claims context).  Prior to trial the Defendant made a formal offer under Rule 37B for the Plaintiff to walk away from the lawsuit on a ‘no costs‘ basis.  The Plaintiff refused the offer, went to trial where her case was dismissed.  The Defendant then asked the Court to award ‘double costs‘ and Mr. Justice Greyell agreed to do so.  In concluding that this was a fair result the Court provided the following reasons:

[20] In MacKinlay v. MacKinlay Estate, 2008 BCSC 1570, Savage J. also considered the effect of Rule 37B when a nominal offer was made.  The issue was whether double costs should be awarded where the successful defendant had made a nominal offer to settle.  He held, at paras. 34-35:

[34]      While a nominal offer might be described as strategic, it was a strategy aimed at persuading the Plaintiffs to discontinue the proceeding, an outcome that is favourable as compared to the outcome the Plaintiffs obtained at trial.  Such an offer is one of the few tools in the arsenal of a defendant of relatively modest means which might exert pressure on a plaintiff pursuing an unmeritorious claim.

[35]      In this regard, albeit in the context of the former Rule, the Court of Appeal in Kurylo v. Rai 2006 BCCA 176, 53 B.C.L.R. (4th) 214, at ¶ 7 said:

…. When a defendant assesses his position in litigation of any kind he may consider that the plaintiff has no case and if the case goes to trial, will fail.  But the defendant may also be willing to make some minor offer which would carry with it the costs in the hope that the action will go away and that he will not, thereafter, incur large legal bills to establish his legal position that the plaintiff has no case.

[21] I see no logical distinction between a nominal offer and an offer such as that made by the defendant in this case.  The principle is the same.  One party is provided with an offer to settle and if not successful at trial in advancing its position relative to the offer it may be held accountable for costs of pursuing the matter to trial.

[22] The second factor referred to in Rule 37B(6) clearly favours the defendant.  The judgment upheld the position she outlined in the offer to settle.  Had the plaintiff accepted it he would have saved not only his legal costs but also the legal costs he must pay to the defendant as the successful party.

[23] There are no other relevant circumstances which bear on my determination of double costs.  The caution expressed by Hall J.A. in Catalyst Paper Corporation v. Companhia de Navegaçäo Norsul, 2009 BCCA 16, 86 B.C.L.R. (4th) 17, is applicable in this case.  Based on the considerations in the above paragraphs, I conclude the plaintiff shall pay double costs to the defendant.  Those double costs shall commence seven days from the date the offer was made.

As mentioned at the start of this article, the formal offer Rule is still being shaped and the result of a ‘walk away’ offer is still not certain.  To read a case where the Court refused to award double costs where a walk away offer was made you can click here.
In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B so the issue of the effect of ‘walk away’ offers will continue to be judicially shaped moving forward.

Gas Station Found Liable for Slip and Fall on Ice; $40,000 Non-Pecs for Dislocated Kneecap

Written by admin on . Posted in ICBC Knee Injury Cases, Occupier's liability claims, Uncategorized.

Reasons for judgement were released this week dealing with fault and damages arising from a slip and fall incident at a North Vancouver gas station.
In this week’s case (Foley v. Imperial Oil Limited) the Plaintiff, an insurance adjuster for ICBC, slipped and fell on ice located near a car wash at an Esso Station in North Vancouver.   He suffered various injuries, the most serious being a dislocated knee.  He claimed the Defendants were liable for his injuries and sued for damages.  The Defendants disagreed arguing that they took reasonable care to keep the area clear of ice.
Mr. Justice MacKenzie agreed with the Plaintiff and found the Defendant responsible for the incident.  The evidence showed that when cars left the car wash water would drip down and sometimes freeze causing ice.  The Court found that the Defendant did not take adequate steps to warn of this known hazard.  In finding the gas station at fault the Court reasoned as follows:

[69] The defendants maintained no regular patrol for ice, but left the frequency of patrol for ice to the employees. Mr. Morrow testified that when he did patrol, he occasionally found ice, and then he would apply fresh salt. So the presence of ice would move him to reapply salt. This indicates either that he was not salting enough, or the defendants were not sufficiently addressing the problem. Both Mr. Morrow and Mr. Christian knew that dripping water from cars would wash the salt away.

[70] In short, the washing away of salt by the water dripping from cars leaving the car wash bay, and then freezing, constituted an unusual hazard of which the defendants were aware, but the plaintiff was not. Mr. Morrow knew the ice was hard to see, particularly if it was clear, and covered by water dripping from cars. He saw the ice on which the plaintiff slipped and it was covered by water. Therefore, it was hard to see.

[71] The defendants did nothing to warn users of the car wash about the risk of ice. They could easily have put out the orange warning cones that conventionally alert people to risk, or posted readily visible signs warning of the risk of ice. The expense would have been minimal. They could also have improved the drainage to avoid the washing away of the salt, or closed the car wash, as they had done on a couple of occasions before when it was cold enough for ice to form at the known area of risk. The patrol for ice, and salting could have been more frequent.

[72] In MacLeod v. Yong, [1997] B.C.J. No. 2108 (S.C.) at para. 8, Mr. Justice Burnyeat listed a series of factors that are relevant in considering whether an occupier has fulfilled the duty imposed by s. 3 of the Occupiers Liability Act. These factors include “whether an unusual danger was present, whether a warning had been provided to the plaintiff, the ease or difficulty and the expense with which the unusual danger could have been remedied, and any prior record of safe usage of the premises by others or by the plaintiff.”

[73] In considering whether the defendants have breached their duty to take reasonable care to ensure the plaintiff would be reasonably safe on the premises, I must consider all the circumstances of the case, including: the slip and fall was reasonably foreseeable and the defendants were clearly aware of it; the efforts made by the defendants depended on the judgment of employees who were prone to human error and who were occupied with other duties; and it would have been easy and inexpensive for the defendants to put up a warning sign, or orange cones at the location they knew was particularly hazardous.

The Court went on to award the Plaintiff $40,000 for his injuries which included a dislocated knee cap.  In reaching this award Mr. Justice MacKenzie provided the following reasons:

[126]     The plaintiff’s most serious injury in the slip and fall was his dislocated right patella (kneecap). He also had a minor scrape on his head and strained wrists and abrasions that were bandaged at the hospital. He took nine days off work as the combined result of his knee and wrist injuries.

[127]     The dislocated kneecap caused the plaintiff excruciating pain. There was profuse swelling and a very large bruise. It was swollen and red for a few weeks or a month or more after the fall.

[128]     The plaintiff initially required crutches because he could not bear his weight. He also used a brace afterward, and tapered off his use of both the crutches and brace. The evidence as to how long he used both varies somewhat, but is simply a matter of inaccurate recording or memory, and not the plaintiff’s dishonesty.

[129]     The wrist pain lasted a month or two, and he had a very stiff neck with pain for a week or two…

[135] The knee pain, while gradually abating, had essentially plateaued by the spring of 2007. It was getting stronger and better, but he still felt pain and instability in the right knee in the spring of 2007. He saw his doctor in the spring and summer of 2007 and the doctor recommended he see a specialist, Dr. Forsyth, at the McGavin Clinic at UBC…

[140] In the summer of 2008, the plaintiff’s symptoms improved again and he noticed fewer symptoms. The pain ranged from nothing to 20 out of 100, or quite modest discomfort. However, knee stamina for walking and standing had not improved. Sitting for prolonged periods made his knee ache. He also noticed increased joint sounds in his knee, especially when climbing stairs. The plaintiff was forthright in admitting that he had some such sounds in both knees before the slip and fall, but after it, he noticed increased joint sounds in his right knee which he still notices…

[168]     The damages awarded in each case are specific to the particular facts. In this case, the plaintiff has suffered, and continues to suffer chronic pain and loss of enjoyment of life. His condition is likely to remain stable, although there is a risk that he may develop post-traumatic arthritis in the future, which could have further negative impact on his daily activities.

[169]     Based on my findings and upon reviewing the cases, I find an award of non-pecuniary damages of $40,000 is appropriate.

BC Injury Law Podcast: Non-Pecuniary Damages

Written by admin on . Posted in BC Injury Claims Media Archives, Uncategorized.


This is the first in what I intend to be a series of podcasts discussing topics of interest involving ICBC and other BC personal injury claims.
Today’s topic is valuing a person’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) as a result of injuries caused by the fault of another.  To listen simply click on the following link:  bc-injury-law-podcast-non-pecuniary-damages
The case discussed in this Podcast is Stapley v. Hejslet, 2006 BCCA 34 and can be found by clicking here.

ICBC Claims, Uninsured Motorists, and the Definition of "Highway"

Written by admin on . Posted in Uncategorized. 60 Comments on ICBC Claims, Uninsured Motorists, and the Definition of "Highway"


Did you know that if you are injured in BC by a motorist who does not have any insurance at all you can still seek coverage of your tort claim directly from ICBC?  The reason you can do this is because of Section 20 of the Insurance (Vehicle) Act which requires ICBC to pay the damages directly when an uninsured motorist negligently injures others.
There are limits to ICBC’s liability under this section, and one such limitation is that the collision has to occur on a ‘highway‘.  If the crash does not occur on a ‘highway‘ then ICBC does not need to pay damages under section 20.  Reasons for judgement were released today by the BC Supreme Court, Prince George registry, dealing with exception.
In today’s case (Pierre v. Miller) the Plaintiff was injured in a motor vehicle collision.  The collision took place on Finlay Forest Service Road, a fairly remote road in British Columbia.   The Defendant was not insured and ICBC defended the case directly by the authority given to them under section 20 of the Insurance (Vehicle) Act.    ICBC’s lawyer brought a motion for a declaration that Finlay Forest Service Road is not a highway.
Mr. Justice Meiklem agreed with ICBC finding that the road was “a forest service road” and therefore not a highway and ordered that ICBC did not have to pay the Plaintiff anything for his injuries under section 20.
In reaching this conclusion the Court gave the following summary of the definition of “Highway” for the purpose of Uninsured Motorist Claims:

[3]             In order for ICBC to be liable to pay a claim under the provisions of the s. 20 of the IMV Act, the claim must arise out of the use or operation of a motor vehicle on a highway in British Columbia.  This follows from the definition of “claimant” and “uninsured motorist” in s. 20 of the IMV Act.  “Highway” is defined in the IMV Act as meaning a highway as defined in the Motor Vehicle Act, R.S.B.C. 1996. c. 318 (“MVA”).  The MVA definition of highway is:

“highway” includes

(a) every highway within the meaning of the Transportation Act,

(b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and

(c) every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited,

but does not include an industrial road;

[4]             The MVA also defines “industrial road” as follows:

“industrial road” means industrial road as defined in the Industrial Roads Act, and includes a forest service road as defined in the Forest Act and land designated as a development road under section 8 (1) of the Petroleum and Natural Gas Act;

[5]             The definition of an industrial road in the Industrial Roads Act, R.S.B.C. 1996, c. 189 is not applicable in this case but the Forest Act, R.S.B.C. 1996, c. 157 definition of forest service road which is part of the definition of an industrial road in the MVA is in issue.  The Forest Act defines a “forest service road” as follows:

“forest service road” means a road on Crown land that

(a) is declared a forest service road under section 115 (5),

(b) is constructed or maintained by the minister under section 121,

(c) was a forest service road under this definition as it was immediately before the coming into force of this paragraph, or

(d) meets prescribed requirements;

[6]             The motor vehicle accident in this case occurred on a road known and marked as the Finlay Forest Service Road.  The applicant ICBC argues that the Finlay Forest Service Road falls within the Forest Act definition because it is declared to be a forest service road and because it was constructed or maintained by the Minister of Forests.  The respondent plaintiff argues that the Finlay Forest Service Road is a highway by way of public expenditure to which s. 42 of the Transportation Act, S.B.C. 2004, c. 44 applies and also because it is used by the general public for the passage of vehicles.  Alternatively the plaintiff argues that if the Finlay Forest Service Road is a forest service road it does not satisfy the definition under the IMV Act because it is a Community Use Forest Service Road rather than an Industrial Use Forest Service Road, it is not primarily for the transportation of natural resources or machinery materials or personal and it is not maintained by the Ministry of Forests and Range.

[7]             Another statutory provision of interest although not directly helpful in characterizing the Finlay Forest Service Road is s. 56 of the Transportation Act which enables the Lieutenant Governor and Council, with the consent of the Minister of Transportation and Highways and Minister of Forests and Range to order that a forest service road cease to be a forest service road and become an arterial highway or a rural highway.  There is no evidence that this has occurred in this case.

BC Court of Appeal: No Litigation Privilege During Investigative Stage

Written by admin on . Posted in Civil Procedure, Uncategorized.


As I’ve previously written, litigation privilege is a principle which allows parties in a law suit to keep evidence from the other side.  In order to successfully take advantage of litigation privilege the document not only has to have been created in the reasonable contemplation of a lawsuit but also for the ‘dominant purpose‘ of use in such a lawsuit.
If a document was made for multiple reasons (ie – investigating a potential claim and defending against a potential claim) the law will likely require disclosure.  Today the BC Court of Appeal released useful reasons summarizing this area of law.
In today’s case (Mathew v. Delta School District #37) the Plaintiff ‘slipped and fell on some ice at a school’.  Shortly after the incident the school’s principal, a teaching assistant and a custodian made notes documenting what occurred.  The Plaintiff started a lawsuit and asked for these.  The Defendant refused to produce these claiming they were privileged.  The dispute made it all the way to the BC Court of Appeal who found that the documents were not privileged as they were made during the ‘investigatory stage‘.  The BC High Court provided the following very useful reasons:

[11] The investigatory stage to which the master referred is well recognized in the authorities. In Hamalainen at para. 24, the following was quoted from a speech in Waugh v. British Railways Board, [1980] A.C. 521 at 541, attributing it to what Lord Denning had said in that case:

If material comes into being for a dual purpose – one to find out the cause of the accident – the other to furnish information to the solicitor – it should be disclosed, because it is not then “wholly or mainly” for litigation. On this basis all the reports and inquiries into accidents – which are made shortly after the accident – should be disclosed on discovery and made available in evidence at the trial.

[12]         The investigatory stage was discussed in Hamalainen as follows:

[26]      Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

[13]         It was, on the evidence, open to the master to regard the notes as being made in the investigatory stage as opposed to the later litigation stage. They were made directly following Mr. Mathew’s accident. I recognize it may be argued that, in the circumstances, there was little in the way of an investigatory stage here. But that is a matter to be determined on the peculiar facts of each case and I am unable to accept that the evidence foreclosed the significance the master appears to have attached to the notes being made as quickly as they were in relation to the incident.

The Problem With Losing An ICBC Injury Claim at Trial

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized. 60 Comments on The Problem With Losing An ICBC Injury Claim at Trial


When Plaintiffs have their injury claim dismissed in the BC Supreme Court, not only do they get nothing to compensate them for their injuries, they actually end up having to pay the Defendant money.   How can this be?  The reason is something called “costs“.  Generally speaking, the loser has to pay the winner’s Court costs and disbursements.
So how much money are we talking about here?  The answer is thousands, sometimes tens of thousands, sometimes even over one hundred thousand dollars.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, demonstrating this.
In this week’s case (Pearlman v. Atlantic Trading Company Ltd.) the Plaintiff was involved in a motor vehicle collision in 2004.  He sued the party he claimed was responsible for his injuries.  He also sued ICBC alleging that ICBC “had requested a medical report from his family doctor whose authorization to provide the report had been revoked by the Plaintiff.”.
A jury dismissed the Plaintiff’s first claim and a Judge dismissed the Plaintiff’s second claim.  ICBC was awarded their Court costs.  The BC Supreme Court assessed these at $66,000 for the two claims combined.    The Plaintiff then appealed these costs awards.    Madam Justice Gropper dismissed the Plaintiff’s appeals and upheld the awards.
While this case does not contain any unique or novel principles of law, it is worth reviewing because it demonstrates the stark realty that people can pay a very high price if they are on the losing end of an ICBC claim in the BC Supreme Court.
If you are interested in more information on costs consequences in BC Supreme Court injury lawsuits you can click here to read my archived posts on this topic.