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ICBC Injury Claims and Formal Settlement Offers; What You Need to Know

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

When taking an ICBC or other BC personal injury claim to trial in the Supreme Court it is vital to understand the financial consequences that can be triggered when formal settlement offers are made. I have written dozens of articles on this topic and you can access these here.
Below is a brief video discussing some of the key factors you need to consider when reviewing ICBC’s formal settlement offer under the BC Supreme Court Rules and further the issues you should consider when making your own formal settlement offer. I hope this information is of assistance.

More on BC Personal Injury Claims and Radiologists Evidence

Written by admin on . Posted in Civil Procedure, Uncategorized. 54 Comments on More on BC Personal Injury Claims and Radiologists Evidence


(Please note the topic discussed in this post should be reviewed keeping a subsequent October 2010 BC  Court of Appeal in mind)
Further to my previoius article on this topic, if you are advancing a BC Injury Claim and intend to rely on X-Rays, MRI’s or other diagnostic studies which demonstrate injury in support of your case it is vital that you serve the opposing party appropriate Notice under the Rules of Court.  Failure to give proper notice can keep not only the actual studies out of Court but also the opinions of radiologists discussing what these studies show.  Excluding such evidence can be fatal to a claim.  2 judgements were released today demonstrating this principle.
In the first case (Anderson v. Dwyer) the Plaintiff was injured in 2004 BC Car Crash.  At trial her lawyer attempted to put X-rays into evidence and to have a chiropractor give ‘evidence with respect to the contents of the x-rays‘.  The Defendant objected arguing that appropriate Notice of the proposed exhibit and the expert opinion was not given.  Mr. Justice Schultes agreed and in doing so gave the following reasons:





[3] The stated relevance of this evidence is that the x-rays taken after the accident will allegedly show some abnormality in some of the plaintiff’s vertebrae that could have been caused by the accident.  This, it is said, will rebut the defendant’s position that the plaintiff’s pain is largely the result of a degenerative condition rather than of the accident.

[4] The basis for the objection to Dr. Wooden’s evidence is that he is an expert witness and no notice of his evidence has been given as required by Rule 40A of the Rules of Court.  In addition, the defendant has not been given an opportunity to inspect the x-rays as required by Rule 40(13). ..

…While on the evidence by Dr. Wooden seeking to offer an opinion about the plaintiff’s injuries such as the inferences to be drawn from the observations in the x-rays or with respect to the cause or mechanism of the injury would be prohibited because of the plaintiff’s failure to comply with Rule 40A.


[16] As to the lack of compliance with Rule 40(13) the cases make it clear that in such circumstances the court has a discretion to admit the evidence (see, for example, Golden Capital Securities Ltd. v. Holmes, 2002 BCSC 516), but that in exercising its discretion it should take into account the absence of any proper explanation for the failure to disclose…

[17] In this case, the explanation is that counsel for the plaintiff thought it sufficient to simply notify the defendant of the existence of the x-rays and invite counsel to contact Dr. Wooden directly to inspect them.

[18] I do not think such a passive approach was sufficient.  The requirement in the Rule that the parties be “given the opportunity to inspect” an item connotes some positive action on the part of the party in possession of it.  At the very minimum, efforts should have been made by counsel for the plaintiff to facilitate the viewing of the x-rays.  It was not appropriate for the defendant to be invited to seek out the treating chiropractor himself even if consent by the plaintiff was said to be readily forthcoming.

[19] The very importance to her case ascribed by the plaintiff to the x-rays speaks to the necessity of her having obtained and disclosed copies of the exhibits in a proactive manner.

[20] There being no satisfactory explanation of the failure to comply with Rule 40(13) I decline to exercise my discretion to allow copies of the X-rays themselves to be admitted in evidence.  Because a witness may refresh his memory from anything that will assist him that process, even if that source itself is inadmissible (see R. v. Fliss, 2002 SCC 16 at para. 45) Dr. Wooden may refresh his memory by reviewing the x-rays should the need arise during his evidence.

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In the second case released today, Gregory v. ICBC, the Plaintiff wished to put an expert report into evidence that gave an opinion based on the assumption that “there has been a partial tear of (the Plaintiff’s) subscapularis tendon.”  The doctor relied on a radiologist’s interpretation of an MRI as the source of this opinion.  The radiologists report was not put into evidence and the radiologist was not called as a witness.
The Defence lawyer argued that the opinion of the expert should be inadmissible in these circumstances.  The Court agreed.  In doing so Madam Justice Kloegman gave the following reasons:

[3] Dr. Chu’s second report discloses that his opinion is based on an assumption   that there has been a partial tear of the subscapularis tendon.  The defendant takes issue with that alleged fact.  The plaintiff has taken no steps to prove the truth of this assumption.  Originally, she did not intend to enter the radiologist reports interpreting the MRI scans.  Now counsel advises that she could lead them through Dr. Chu.  However, all this would do is show the source of Dr. Chu’s assumption.  It would not prove the truth of the radiologist’s interpretation, which in effect is just another expert opinion.

[4] Although the radiologist reports are expert opinions, the plaintiff has not served them pursuant to Rule 40, nor has she given notice of any intention to call the radiologists.  Therefore, it is obvious that she does not intend to prove as a fact this assumption about the partial tear.  Dr. Chu’s second report is based solely on this assumption of a partial tear.  There will not be any evidence proving the truth of this assumption, therefore, any opinions that are based on the partial tear as the primary assumption must be considered irrelevant and inadmissible.

These cases illustrate that if you wish to prove an injury through diagnostic imaging care should be taken to ensure that appropriate witnesses are available to get the evidence before the Court and further that appropriate notice is given to opposing counsel.

More on ICBC Injury Claims, Lawyers and Binding Settlements

Written by admin on . Posted in Settlement Law, Uncategorized. 63 Comments on More on ICBC Injury Claims, Lawyers and Binding Settlements


Further to my previous post on this topic, reasons for judgement were released today by the BC Court of Appeal discussing the principles behind binding settlement agreements in ICBC injury claims when lawyers accept an offer on their client’s behalf.
As I wrote earlier:
Lawyers act as agents for their clients.  Lawyers can, therefore, bind their clients to a settlement.   Typically a client will give a lawyer authority to settle their claim for X dollars and the lawyer will attempt to get that amount or more.  If a lawyer accepts an ICBC settlement offer on behalf of their client the client is typically bound to the settlement, even if the client later wishes to get out of the settlement by not signing ICBC’s full and final release.
Today’s case (Lacroix v. Loewen) demonstrated this principle.  In Lacroix, the Plaintiff gave her lawyer instructions to accept a settlement offer.  The lawyer then did accept ICBC’s settlement offer.  The client, after speaking with some friends, decided not to proceed with the settlement and did not sign ICBC’s settlement contract.  The client proceeded with her Injury Claim and ICBC brought an application to dismiss the lawsuit on the basis that it was already settled.  The Chamber’s judge ruled that the case was not settled because ICBC insisted on a term beyond the scope of the initial settlement agreement thus ‘repudiating‘ the contract.  ICBC appealed and succeeded.  In setting aside the lower court’s judgement the BC Court of Appeal found there was no repudiation and set out the following principles:
25] The chambers judge held that there was a settlement and that ICBC then repudiated the agreement by insisting upon terms that were not agreed upon….

[38] Applying the principles of contractual interpretation, the communications between Mr. Mickelson and the adjuster, Mr. Per, objectively indicate that there was an enforceable settlement including both tort and Part 7 claims. Looking at all the material facts, the reasonable objective bystander would conclude that the parties intended to make a final settlement of both tort and Part 7 claims.

[39] At the time of the discussions between Mr. Mickelson and Mr. Per, there was no outstanding action for either tort damages or Part 7 benefits. There was simply a “file” which included both tort and Part 7 claims. When Mr. Mickelson and Mr. Per spoke, the evidence indicates that their discussions concerned the “file” as a whole, and the “merits” of her claims. No differentiation was made between tort and Part 7. Their discussions about “settlement” were directed to settling the “file”/“matter”. This is clear from Mr. Per’s affidavit, which states:

3.   On March 11, 2004, I received a telephone call from John Mickelson with respect to special expenses which he wanted covered. After a discussion of the merits of the file I offered to settle the matter for $5,500.00. John Mickelson stated that he would speak to his client and get back to me…

9.   On March 16, 2004, I spoke to John Mickelson by telephone with respect to the returned cheque and release. I specifically asked Mr. Mickelson if he had instructions from Ms. Lacroix to settle the matter at the time that the counter offer was made and accepted by myself. He told me that he did have such instructions.

[40] The judge correctly noted at para. 30 of his reasons that, “There was no mention of the fate of any subsequent Part 7 claims until the release was forwarded to counsel for the plaintiff”. However, the trial judge failed to acknowledge that there was little or no specific mention of individual aspects of any claims, tort or Part 7. The objective observer would conclude that was so because Mr. Mickelson and Mr. Per’s discussions were directed to a settlement of the “file” or “matter” as a whole. Both sides understood the benefits and advantages of settling early, and concluding the matter in its entirety. To an objective observer, they did so.

[41] While the above conclusion makes it unnecessary to consider the repudiation issue, a word or two is warranted. While the chambers judge cited proper authority in Fieguth in relation to repudiation, he incorrectly applied that authority. The judge concluded that the mere tendering of documents with terms that have not been agreed upon can constitute repudiation. That is an error. As set out above, in Fieguth Chief Justice McEachern said at p. 70:

…One can tender whatever documents he thinks appropriate without rescinding the settlement agreement. If such documents are accepted and executed and returned then the contract, which has been executory, becomes executed. If the documents are not accepted then there must be further discussion but neither party is released or discharged unless the other party has demonstrated an unwillingness to be bound by the agreement by insisting upon terms or conditions which have not been agreed upon or are not reasonably implied in the circumstances.

[42] This passage continues to be a correct statement of the law and to accord with sound practice.

I repeat my advice that the lesson in this case is to make sure that when you give your lawyer settlement instructions understand that he/she can make a binding commitment on your behalf based on these instructions.  Better yet, if you don’t know your lawyers negotiation tactics consider asking him or her to negotiate on a non-binding basis giving you, the client, the final say when the claim settlement paperwork is presented to you.

More on Formal Settlement Offers – Relevance of Insurance and a Novel Use of Rule 37B

Written by admin on . Posted in Settlement Law, Uncategorized. 44 Comments on More on Formal Settlement Offers – Relevance of Insurance and a Novel Use of Rule 37B


In my continued efforts to write about the development of Rule 37B (the rule that deals with costs consequences after a party beats a formal settlement offer at trial) two cases were released this week further interpreting this rule.
The first case (Ostiguy v. Hui) the Plaintiff was injured in a 2003 BC car crash.  She ultimately represented herself.  In the course of the lawsuit ICBC made a formal settlement offer under the old Rule 37 for $30,000.  The Plaintiff did not accept this offer and went to trial.  The Jury awarded the Plaintiff $10,000.   The Defendants brought a motion for costs.
After addressing a technical issue about the offer’s general compliance with the old Rule 37 Mr. Justice Williams decided that the offer was capable of triggering costs consequences under the new Rule 37B.  The Court went on to award the Defendant 60% of their costs from the time that liability was admitted onward.  In reaching this decision the Court held that whether the Defendant was insured with ICBC was not to be considered (an issue the BC Supreme Court cannot agree on and needs to be addressed by the Court of Appeal).
The Court made the following notable comments:
[68] I have no knowledge as to the circumstances of the defendants; I will proceed on the basis that they are ordinary people of ordinary means. I should note parenthetically that, although they were represented by an insurer, it is their circumstances and not those of the insurer which are to be considered…

[71] In this case, the costs which the plaintiff is liable to pay are substantial. That is attributable in significant part to the fact that this litigation dragged on considerably. The plaintiff hired and subsequently discharged two different lawyers before proceeding to act for herself. There were a number of delays. Costs have mounted.

[72] The law is clear that sympathy is not a basis to determine the outcome of matters such as this. Nevertheless, it is quite disconcerting to see the plaintiff’s award of damages for her injury completely obliterated and overshadowed by a costs obligation, and for the consequences in fact to go further, to leave the plaintiff with a huge bill to pay as well.

[73] At the same time, the Court must be cautious that the sound and basic principles that underlie the costs regime are not simply disregarded because the plaintiff chose to represent herself and chose to proceed as she did.

[74] In the final result, the matter requires a balancing of a number of considerations and a significant application of judgment to try and fashion an outcome that is fair in the circumstances. Approaching the task in that fashion, I have decided as follows:

(a)      The effective date of the Offer will be July 14, 2008, when the defendants advised the plaintiff that liability was being admitted.

(b)      Up to July 14, 2008, the plaintiff is entitled to recover from the defendants her costs and disbursements.

(c)      For the time period following July 14, 2008, the defendants are entitled to recover from the plaintiff their disbursements and 60% of their costs.

For my readers not familiar with the potential extent of cost consequences I should point out that on these findings there is a good chance that the Plaintiff, despite being awarded $10,000 by the Jury, would end up owing ICBC money.  When preparing for trial it is imperative that parties consider the potential consequences of formal settlement offers.

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The second case released this week was interesting because the Defendant made what appears to be a novel use of Rule 37B.  Usually parties restrict formal settlement offers to the issues to be addressed at trial.  In this week’s case (Moro v. El Mantari) the Defendant used Rule 37B in a Chambers application.

The parties could not agree on a lot of issues in the lawsuit.  Prior to trial the Parties brought cross motions to be decided in Chambers.  Prior to this pre-trial hearing the Defendant made a formal settlement offer under Rule 37B asking that the Plaintiff consent to various aspects of their motion.

The Defendant was largely successful in Chambers.  The Court was asked to award the Defendant double costs for Chambers because of the formal offer.  In the first case that I’m aware of using Rule 37B in this fashion Mr. Justice Chamberlist agreed that it was a permitted use of the Rule.  Specifically the Court held as follows:

[18] The defendant submits that it should be entitled to double costs on the basis of its offer to settle to the plaintiff made on June 26, 2009.  At that time the defendant asked the plaintiff to consent to items 1, 4, 6, 7, 8, and 10 of her notice of motion.

[19] The fact is that R. 37 has since 2008 been amended by deleting the subrules that an offer to settle did not apply to interlocutory proceedings.  The overriding fact is that there must be substantial success.  ..

22] Thus R. 37B(4) permits the court to consider an offer to settle when exercising the court’s discretion in relation to costs.

[23] As a result, the fact that the defendant has failed to meet the terms of the offer to settle will no longer necessarily mean that she would be deprived of her double costs.  In various decisions of this court it would appear that an issue which has been discussed in many cases is whether the offer to settle is one that ought reasonably to have been accepted (R. 37B(6)(a))….

[26] The enactment of R. 37B so that it now applies to interlocutory applications as well as trial, demonstrates the purpose of the new rule is to allow an offer to settle to be made, and if I were to follow the plaintiff’s position it would completely ignore the important deterrent function of the rule…

[32] In this case the offer to settle was made on June 26, 2009, and I find that the defendant was substantially successful.  The defendant shall have her costs of her attendance before me on August 27 and 28, 2009, as calculated in accordance with R. 37B, namely double costs.

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 which should help cases such as these retain their value as precedents.

Damages for "Chronic Pain" Assessed at $80,000; Dr. Schweigel Criticized

Written by admin on . Posted in ICBC Chronic Pain Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court awarding an injured Plaintiff just over $112,000 in total damages as a result of 2 BC car crashes.  In reaching verdict the court had some critical words for Dr. Schweigel who is one of ICBC’s biggest billing physicians.
In this week’s case (Frangolias v. Parry) the Plaintiff was injured in two collisions in December, 2004.  Fault was admitted for both crashes.  Both cases were tried at the same time with the Court focusing on the value of the claims.  As is usual in these types of claims there was competing medical evidence.  Ultimately the Court preferred the evidence of the Plaintiff’s physicians and in assessing her non-pecuniary damages at $80,000 the Court made the following findings:

[97]    I find that Mrs. Frangolias continues to suffer debilitating chronic pain symptoms arising from soft tissue injuries caused by the December MVAs. She suffers headaches, and pain that begins in her head and extends down through her shoulders and then extends through her back to her tail bone.

[98]    Mrs. Frangolias’ headaches and pain caused by the December MVAs have had an adverse effect on her life. I accept as accurate the limitations on Mrs. Frangolias’ lifestyle described by Mr. Frangolias and Effie Ainsley. While Mrs. Frangolias is able to carry out light housekeeping duties and do some minor cooking, she is otherwise prevented from engaging in active housekeeping, cooking, and gardening.

[99]    While there are no objective signs of injury at this time such as muscle spasm, Mrs. Frangolias continues to display tenderness during medical examinations.

Mr. Justice Walker went on to make some critical comments of Dr. Scwheigel.  Specifically his objectivity as a witness was questioned as illustrated by the following paragraphs of the judgement:

[85]    The defendants relied upon the medical-legal report of Dr. Schweigel, which followed his independent medical examination of Mrs. Frangolias that took place on October 20, 2008. I have considerable concerns about the reliability of the opinions expressed in that report. My concerns arise in respect of Dr. Schweigel’s opinions relating to surveillance videos of Mrs. Frangolias taken on May 12 to 14, 2006, March 14 to April 26, 2008, and May 17 to May 23, 2008, and in respect of some of the comments contained in his report concerning his findings on examination.

[86]    The surveillance videos were marked in evidence and shown to me during the trial. The videos show Mrs. Frangolias in her front yard, driving to a grocery store, and driving to a medical appointment. Surveillance of Mrs. Frangolias must have been taken at some distance away or with a camera of poor quality since with the exception of one sequence, none of Mrs. Frangolias’ facial features are discernable.

[87]    In respect of the first DVD containing the videos from May 12 to May 14, 2006, Dr. Schweigel wrote:

This lady is seen walking in a very normal fashion. She bends quite easily on repeated occasions to inspect her flowers on the May 13, 2006 section of this video. She rotates her neck in a very agile fashion with no obvious discomfort both right and left.

[88]    I carefully watched the images on the first DVD. There were a number of occasions where Mrs. Frangolias appeared to be moving stiffly, moving her head with her body in a stiff manner, as if they were all one stiff board. There are times when Mrs. Frangolias bends over to look at the flowers in her front garden, but due to the quality of the video images, it is impossible to tell whether Mrs. Frangolias was in discomfort when she did or indeed, at any time. My concern with Dr. Schweigel’s remarks is for overstatement and more importantly, for the failure to remark on those images showing Mrs. Frangolias to be moving more slowly or stiffly…

[96]    The foregoing excerpts as some examples of the remarks that cause me to be concerned that some of the opinions expressed in Dr. Schweigel’s report lack balance and objectivity. I am, therefore, most concerned about the reliability of the opinions expressed in the report. In the circumstances, I prefer to rely upon the evidence of Drs. Liu and Travlos as well as my assessment of Mrs. Frangolias and the accounts provided by Mr. Frangolias and Effie Ainsley.

$5.2 Million Dollar Assessment For Cost of Future Care for Cyclist Struck by Tractor-Trailer

Written by admin on . Posted in Cost of Future Care Cases, ICBC Brain Injury Cases, ICBC Liability (fault) Cases, Uncategorized.


In what is one of the biggest personal injury trial awards in Canadian History, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing losses and damages of over $5.5 million dollars as a result of a BC motor vehicle collision.
In today’s case (MacEachern v. Rennie) the Plaintiff suffered a “severe brain injury when her head struck a passing tractor-trailer…in Surrey, BC.  She was 27 years old at the time. “.  The court found that as a result of her serious injuries “she will now require care for the rest of her life. ”
The trial was hotly contested and went on for many months starting back in March of 2009 (You can click here to read my archived posts documenting some of the contested interlocutory trial applications) Ultimately the driver of the tractor trailer was found 80% responsible for the crash for not keeping a proper lookout.  The Plaintiff herself was found 20% at fault for “making the careless decision to proceed (around a pickup truck) when she did, instead of waiting for traffic to clear“.
Given the Plaintiff’s catastrophic injuries she was found to require care for the rest of her life.   $5,275,000 was awarded to take care of these expenses.  The Plaintiff was also awarded the maximum Canadian law allows for negligently caused personal injuries for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
The parties to the lawsuit agreed that this upper limit was an appropriate award.  In reaching this assessment Mr. Justice Ehrcke made the following comments:

[673] Following the accident, the plaintiff had a Glasgow Coma Score of 3. She was intubated and taken by ambulance to Royal Columbian Hospital, where she required emergency surgery upon admission. Dr. Lee, a neurosurgeon, performed a craniotomy to treat her depressed skull fracture and inserted a monitor for her intracranial pressure.

[674] Ms. MacEachern remained unconscious for weeks. She underwent further surgeries. When she eventually opened her eyes, she still did not recognize her family for months. Her coma slowly lifted, but she became severely agitated as a result of her brain injury.

[675] On June 20, 2006, she was transferred to the specialized Neuropsychiatric Program at UBC Hospital for three months, where she received one-on-one care, 24 hours per day. Through the care she received and through adjustments in her medications, she became stabilized and her behaviour dramatically improved. On September 15, 2006, she was discharged back to Royal Columbian Hospital, with a primary diagnosis of Disinhibited Frontal Lobe Syndrome. Although she remained severely disabled, she was now mobile and was able to speak and communicate.

[676] At Royal Columbian Hospital, her behaviour again deteriorated, and at times she required restraints and had to be locked in a padded room.

[677] In January 2007, Ms. MacEachern was transferred to Bear Creek Lodge. The upstairs part of this facility caters to geriatric patients, while the downstairs unit is a locked ward for persons with brain injuries. Ms. MacEachern currently lives there with 15-16 other persons ranging in age from 20-60 years. She has her own room. This facility has provided her with security, medications, and the basic necessities of life, but all parties are in agreement that Bear Creek Lodge is not suitable as a permanent placement for Ms. MacEachern.

[678] To summarize:  as a result of the accident, the plaintiff suffered a depressed and comminuted skull fracture of the right front and parietal bones, shear hemorrhages from diffuse axonal injury, and focal hemorrhage to the left frontal and left temporal lobes of her brain. These injuries will have profound implications for the rest of her life. She has little short-term memory, and her behaviour is disinhibited. Mentally and socially, she presents much like a young child, yet in a mature woman’s body. She clearly will require a significant level of care for the rest of her life. She will never be able to work or earn a living….

[680] As mentioned above, in three 1978 cases (the “Trilogy”), Thornton v. School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267, Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, and Arnold v. Teno, [1978] 2 S.C.R. 287, the Supreme Court of Canada set a rough upper limit of $100,000 for non-pecuniary damages in cases of catastrophic injury.

[681] All parties in the present case agree that the plaintiff suffered the kind of catastrophic injury that should attract the rough upper limit set by the Supreme Court of Canada, adjusted for inflation. The evidence of Mr. Carson is that the present value of the rough upper limit, as of the beginning of this trial, is $324,800.

[682] There shall be an award for non-pecuniary damages in that amount.

My Interview on National Radio Today with Charles Adler: Bars That Over Serve Patrons

Written by admin on . Posted in BC Injury Claims Media Archives, Uncategorized. 47 Comments on My Interview on National Radio Today with Charles Adler: Bars That Over Serve Patrons


Today I was interviewed by Charles Adler of Corus Radio on the topic of commercial hosts who over serve their patrons and civil lawsuits for damages.
The law in Canada has long recognized that a commercial host can be successfully sued if they serve patrons to the point of intoxication and those patrons then are injured or cause injury to others.  Coincidentally just last week I wrote an article discussing the responsibility of Canadian bars and nightclubs to take reasonable steps to see that their patrons are reasonably safe.
You can click on the following link to listen to my portion of the interview in full:
radio-interview-commercial-host-liability (I’d like to credit CJOB 68 Winnipeg / Corus Radio Network for providing me with a copy of the clip.)
This is my second interview with Mr. Adler and you can listen to my previous interview discussing ‘frivolous lawsuits‘ by clicking here.
As always, feedback is welcome!

ICBC Injury Claims, Breach of Insurance and the Health Care Costs Recovery Act

Written by admin on . Posted in Uncategorized.

Further to my previous posts on the BC Health Care Costs Recovery Act (click here for background information) I recently received clarification from the Ministry of Health Services about their position regarding the HCCRA’s applicability to ICBC Injury Claims where the Defendant is insured with ICBC but in breach of their policy.
After settling a recent claim ICBC’s lawyer and I requested clarification as to whether the Act applied.
I contacted Barbara Carmichael, a lawyer with the Legal Services Branch of the Ministry Attorney General.  Ms. Carmichael explained that the Governments position is that the HCCRA does not apply to these claims because Defendants in breach of insurance have an effective policy in place at the time “the injury is caused” thereby triggering the exception set out in 24(3)(a) of the Act.
Ms. Carmichael further explained that in cases where a Plaintiff is injured by an unidentified motorist or by an uninsured motorist (as opposed to a breached motorist) the Ministry takes the position that the HCCRA does apply.  (Click here to read my previous post discussing the HCCRA and Breach of Insurance situations where I conclude that it appears the Act applies but question whether any money needs to be paid under the HCCRA given the statutory deductions under s. 106 of the Insurance (Vehicle) Regulation).  It will be a welcome development if the BC Supreme Court gets a chance to address this issue and clarify the application of the law in uninsured and unidentified motorist situations.
I hope the above information is of value to other BC injury lawyers or people prosecuting their own claim where the Defendant is alleged to be in breach of their policy of insurance with ICBC.

More on Non-Pecuniary Damages in BC Civil Sexual Abuse Claims

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized. 107 Comments on More on Non-Pecuniary Damages in BC Civil Sexual Abuse Claims

As I previously posted, in British Columbia there is no ‘cap’ on non-pecuniary damages (compensation for pain and suffering and loss of enjoyment of life) when a victim successfully sues for harm caused as a result of sexual abuse.
So what compensation is a victim of abuse entitled to for non-pecuniary loss?  Recently a case was released by the BC Supreme Court, Victoria Registry, discussing this area of the law.  In this case (CCB v. IB) the Plaintiff succeeded in a civil suit for damages as a result of sexual abuse.  The trial focused of quantum of damages.
The Defendant was the Plaintiff’s natural father.  The abuse lasted for about 5 years when the Plaintiff was aged 5-9.  The father was criminally convicted and served time in prison.  The Plaintiff sued and was awarded close to $600,000 in total damages including $250,000 for her non-pecuniary loss.
One factor that is focused on in these claims is the severity and duration of the abuse.  I won’t repeat the facts here but the nature of the absue is set out at paragraph 8 of the reasons for judgement.    The plaintiff suffered harm as a result of the abuse.  She was, however, described as ‘resourceful‘ and ‘resilient‘ and had ‘a good prognosis for recovery from many of the effects of her traumatic, parentified and neglectful early life experiences with her father‘.
Madam Justice Gray made the following findings with respect to the Plaintiff’s injuries and prognosis:

[51]           I accept the opinions of Drs. Mills and Pullyblank described above.  In summary, I find that the defendant’s abuse of the plaintiff has caused her the following:

(a)      Generalized Anxiety Disorder, including additional features of trauma (including nightmares about the abuse and heightened trauma), phobia, and obsessive-compulsiveness/perfectionism;

(b)      depression and intrusive thoughts about the abuse;

(c)        lack of trust in others and lowered self-esteem;

(d)      educational underachievement, particularly in reading and math, which has so far resulted in a one to two year delay in her educational progression and may result in an inability to meet the potential she would have had without the abuse.

[52]           The plaintiff is described as resilient, and with proper assistance, her prognosis for increasing her education is good.  She is likely to suffer flare-ups of psychological symptoms, and is at risk for future mental health problems.

In valuing the Plaintiff’s non-pecuniary damages at $250,000 the Court reviewed a handful of useful precedents and provided the following helpful comments:

[54]           In the leading case Y.(S.) v. C.( F.G.) , (1996), 26 B.C.L.R. (3d) 155, [1997] 1 W.W.R. 229 (C.A.), the British Columbia Court of Appeal stated that the application of the “cap” on non-pecuniary damage awards set out by the Supreme Court of Canada in the trilogy Andrews v. Grand & Toy Alberta Ltd., , [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452, Arnold v. Teno, [1978] 2 S.C.R. 287, 83 D.L.R. (3d) 609, and Thornton v. School District no. 57 (Prince George), [1978] 2 S.C.R. 267, 83 D.L.R. 480, is not appropriate for intentional torts of a quasi-criminal nature, such as sexual abuse.

[55]           Because Y.(S.) lifted the cap on non-pecuniary damages in sexual abuse cases, the case law prior to Y.(S.) is of limited assistance.

[56]           In Y.(S.), the Court of Appeal also stated that in sexual abuse cases aggravated damages do not form a separate head of damages.  An award for non-pecuniary damages is assessed by taking into account aggravating circumstances, particularly in a case of sexual abuse, where the physical harm is not easily separated from the emotional and psychological harm.  Aggravating circumstances include the relationship between the parties, particularly if it is one of trust, the duration of the abuse, the number of assaults, the age of the victim, the degree of violence and coercion, the nature of the abuse, the physical pain and mental suffering associated with the abuse, as well as lack of remorse on the part of the defendant.

[57]           The Court of Appeal, at para. 55, noted the difficulties in quantifying damages in cases of sexual assault:

We are just beginning to understand the horrendous impact of sexual abuse.  To assess damages for the psychological impact of sexual abuse on a particular person is like trying to estimate the depth of the ocean by looking at the surface of the water.  The possible consequences of such abuse are not capable of critical measurement.

[58]           And further, at para. 56:

Comparison with the awards made in similar cases is helpful in maintaining consistency, and therefore giving fair and equivalent treatment to all victims.  But the impact on individuals in particular circumstances of sexual abuse is so difficult to measure that other cases can only provide a rough guide for assessment in this case.

[81]           The case law discusses the harm to the victims, but it is not a significant factor in determining quantum in such cases.  It is reasonable to presume harm, and as noted in Y.(S.), there are particular difficulties in measuring and predicting the lifelong effects of sexual abuse.  The fact that the plaintiff presently appears to be “resilient” is not a reason to diminish her award of damages.

[82]           The most significant aggravating factors are that the defendant was the plaintiff’s father and sole caregiver, that she was very young during the abuse, and that the acts were very invasive and serious.  The most similar case is Y.(S.).  In all the circumstances, the plaintiff is entitled to $250,000 for non-pecuniary damages.

I encourage anyone considering a BC Civil Lawsuit for damages for harm caused by historic sexual abuse to review this case and the precedents cited therein to gain a good understanding as to how BC Courts value pain and suffering and loss of enjoyment of life in these cases.

Another interesting aspect to this decision is the Plaintiff’s potential ability to collect on the judgement.  As previously discussed, a successful civil lawsuit for damages may not be worthwhile if the responsible defendant does not have the ability to pay.  Here the Defendant was criminally convicted and spent time in prison.  He very well may not have had the means to pay the judgement.  However, he was left an inheritance and the Court noted that this money “is available to be applied to a judgement in this case“.

Before getting into the time and expense of a civil lawsuit consideration should be given to the ability to collect on the judgement if the claim proves successful.  If the person directly responsible for the assault has no financial means the law of vicarious liability should also be canvassed.

Do Parties Have to Disclose Documents They Will Use to Impeach Opposing Expert Witnesses?

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


When a party to a personal injury lawsuit wishes to use documents at trial those documents have to be disclosed to the opposing side as per the BC Supreme Court Rules otherwise the evidence may not be admissible.  Two recent cases from the BC Court of Appeal have clearly highlighted this.  Today, reasons for judgement were released by the BC Supreme Court considering the scope of documents that need to be disclosed.
In today’s case (Beazley v. Suzuki Motor Coroporation) the Plaintiff called a witness to give expert evidence.  The witness testified that he had limited knowledge of something known as the “Critical Sliding Velocity standard” and that he had “never proposed such a standard to the National Highway Traffic Safety Administration“.
On cross-examination the Defence lawyer produced a letter written by the witness addressed to the National Highway Traffic Safety Administration apparently “supporting the use of a Critical Sliding Velocity Standard“.
The Plaintiff’s lawyer objected to this cross examination arguing that the letter was not listed on the Defendant’s list of documents and therefore could not be used.  Mr. Justice Goepel disagreed finding that documents that are used solely for impeaching an expert wittiness’ credibility do not necessarily have to be listed.  Specifically the Court reasoned as follows:

[7] A party is obliged to list all documents that fall within the purview of Rule 26(1) including those documents that can properly be described as forming part of the solicitor’s brief: Stone v. Ellerman, 2009 BCCA 294, 92 B.C.L.R. (4th) 203; Dykeman v. Porohowski, 2010 BCCA 36. Neither Stone, Dykeman or the cases cited therein deal with the use of documents being introduced to impeach the general credibility of an expert witness.

[8] A party who chooses to call an expert vouches for that expert’s credibility. The type and nature of documents that might challenge such credibility are endless. They may include articles, letters, testimony, speeches or statements that the expert has made in the past. There may be other articles which critically challenge the expert’s conclusion. Most documents which go to challenge an expert’s opinion or credibility are not documents which are related to the matter in question in the action. They only become relevant because of the expert’s testimony and do not fall under the purview of Rule 26.

[9] This ruling does not apply to all documents that the defendants may wish to put to this or other witnesses. If a document is otherwise related to a matter in question, it is not protected from disclosure merely because it will be used in cross examination or forms part of the solicitor’s brief.

[10] The August 5, 1994 letter, however, only becomes relevant because of Mr. Heitzman’s testimony. It was not a document that need be listed and the defendant is entitled to use the document in cross examination.

[11] To the extent the plaintiffs object to other documents the defendants might wish to put to Mr. Heitzman, those objections will be dealt with as they arise.