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The Times They Are A Changin' – Major Overhaul to BC Civil Rules As of July 1, 2010

Written by admin on . Posted in Civil Procedure, Uncategorized. 50 Comments on The Times They Are A Changin' – Major Overhaul to BC Civil Rules As of July 1, 2010

There are major changes coming to the landscape of Civil Litigation in the BC Supreme Court in the coming year.  Today, the BC Government issued a press release advising of a complete overhaul of the BC Supreme Court rules effective July 1, 2010.
These new civil rules have been the source of much controversy since the proposed changes were first announced.
Whatever side of the debate you were on these new rules appear to now be a reality and all lawyers (or people who will represent themselves in the BC Supreme Court) have just under one year to get up to speed.  In fact, Part 24 of the new Rules states that proceedings started under the current Supreme Court Rules will be “deemed to be a proceeding started under these Supreme Court Civil Rules‘ meaning that every current BC Supreme Court civil lawsuit that is not disposed of before July 1, 2010 will be under the force of the new rules at that time.
You can click here to access a copy of the new Civil Rules.
As the new BC Supreme Court Civil Rules were just released today in their final form I will need some time to review them to see what changes they contain with respect to the way ICBC Claims and Personal Injury Claims are prosecuted in the BC Supreme Court.  Over the course of the next year I hope to write extensively about these new rules and the way they will affect personal injury litigation.  In the meantime, according the the BC Government’s Press Release, some of the highlights of these new rules are as follows:

Under the new civil and family rules, the Province will provide up to three days of trial time before litigants are required to pay court fees. Current fees start at $156 for a half day or less. To encourage the use of mediation, court fees for filing or responding to a legal claim will be eliminated for parties that engage in mediation prior to commencing a civil action.

Additional reforms include changes to rules used by B.C.’s civil courts to speed up, simplify and lower the cost of resolving disputes. These include:

· Containing legal processes so that they are proportionate to the value, importance and complexity of the case.

· Allowing parties the option of having a judge set time limits on litigation events.

· Providing a new fast track process that greatly simplifies procedures when the amount in dispute is $100,000 or less or when the case can be tried in three days or less.

· Providing new family rules for minimizing family conflict, promoting co-operation and ensuring that the interests of children are paramount.

$85,000 Non-Pecuniary Damages Awarded in TOS Case

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases, Uncategorized.

Reasons for judgement were released today (Cimino v. Kwit) by the BC Supreme Court, New Westminster Registry, awarding damages for injuries and loss as a result of a 2006 BC rear end car crash.
One of the main issues at trial was whether the Plaintiff suffered from Thoracic Outlet Syndrome (TOS) as a result of the crash.  Madam Justice Dillon found that the Plaintiff indeed suffered a traumatic TOS as a result of this crash and in assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) summarized the Plaintiff’s injuries and effects on her life as follows:
[42] I accept that the plaintiff has and continues to suffer from thoracic outlet syndrome as a result of the accident and that the plaintiff’s ongoing symptoms related to pain in the right arm and hand relate to this syndrome. Whether the effect of this condition is small, as concluded by Dr. Keyes, or so significant as to disable the plaintiff from work as a certified dental assistant, as stated by Dr. Salvian, can best be determined by inclusion of considerations of the plaintiff’s daily need for significant pain medication, her work history since the accident, and the opinion of the vocation consultant that the plaintiff is competitively employable as a dental assistant, with subtle relatively mild limitations. On balance, I conclude that the plaintiff has permanent ongoing disability of such a significant degree as to require her to take daily multiple pain medications in order to achieve personal and work functionality. Surgery for her condition is not an option. The plaintiff has difficulty sleeping after a bad day, a situation that accumulates as the work days progress with continued use of the plaintiff’s dominant right arm and hand…

[46]         In this case, the plaintiff has demonstrated that she is able to work and participate is some recreational activities and family life. However, the culture within the family changed dramatically after the accident as the plaintiff could no longer perform all of the household activities and her sons and husband took on new roles. She suffers from thoracic outlet syndrome as a result of the accident, but does not have other recurring problems from the accident. This distinguishes her from cases where the gravamen of multiple injuries along with the syndrome results in the highest awards. While the plaintiff has certainly suffered loss of enjoyment of life, emotional suffering, and must face the daunting prospect of permanent daily pain, she has not lost the ability to work or her basic lifestyle.

[47]         Non-pecuniary damages are awarded in the amount of $85,000.

BC Supreme Court Calls LVI Defence a "Myth"

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

Reasons for judgement were released today dealing with a Low Velocity Impact (LVI).  ICBC, like many insurance companies, has set up a policy with respect to handling LVI Claims by denying that the Plaintiff could have sustained injuries where little vehicle damage occurred.
BC Courts have time and time again rejected such a position and in reasons for judgement released today by Mr. Justice Macaulay of the BC Supreme Court called out the LVI defence as a ‘myth’.
In today’s case (Thomas v.  Wormsley) The Plaintiff suffered mild to moderate soft tissue injuries in 2 rear-end car crashes.  The court awarded total damages of just over $30,000 for the Plaintiff’s injuries and losses.  In doing so, Mr. Justice Macaulay used the following strong language when referring to the defence often used by ICBC in response to Low Velocity Impacts:

[1] The plaintiff, Ms. Thomas, claims damages for injuries and losses caused by two car accidents, the first on October 3, 2005, and the second on October 13, 2007. According to Ms. Thomas, she suffered soft tissue injuries to her neck, shoulders and low back areas in each accident and was not fully recovered from the first accident at the time of the second.

[2] In each case, Ms. Thomas was at the wheel of her car in a stopped position when she was hit from behind by another vehicle. Both collisions occurred at minimal speeds. There was no damage to Ms. Thomas’ car in the first collision and minimal damage in the second. Nonetheless, as I and other judges have stated before, it is a myth to suggest that low impact correlates directly with lack of compensable injury: Lubick v. Mei, 2008 BCSC 555, at para. 5 and Jezdic v. Danielisz, 2008 BCSC 1863, at paras. 30 and 33.

[3] Persistent pain and discomfort may result from soft tissue injuries in such circumstances. Each case depends, of course, on the particular facts. There may be no injury in spite of a very severe impact or persistent injury after a minimal impact. While common sense suggests that one is less likely to be severely injured in a minimal impact collision, the real question is whether the injured party proved the injuries alleged to be caused by the collision on a balance of probabilities.

The Important Role of Treating Doctors in BC Personal Injury Claims

Written by admin on . Posted in Civil Procedure, ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court highlighting the valuable role treating physicians have in personal injury claims.
In today’s case (Deiter v. Briggs) the Plaintiff was injured in 2 BC car crashes.  Liability was admitted for both crashes leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s injuries and losses).
The Plaintiff called 2 physicians in the course of her claim to assist the court with opinion evidence explaining the extent and nature of her injuries.   These physicians were her family doctor (Dr. Cordoni) and a well respected rheumatologist, Dr. Shuckett.   Dr. Shuckett gave the following diagnosis and prognosis for the Plaintiff’s injuries:

[21]         Dr. Shuckett examined Ms. Deiter in December 2008.  Based on the patient’s own description of her history and Dr. Shuckett’s physical examination of her, Dr. Shuckett arrived at the following diagnosis as set out in her report:

1.               Cervicogenic headaches.

2.               Mechanical neck pain, mainly due to musculo-ligamentous injury with bilateral neck pain and some modest decrease of neck mobility.  She may very well have zygapophyseal joint capsular injury of the neck.

3a.     Myofascial pain syndrome of the left neck and shoulder girdle region with palpable muscle spasm.

3b.     Myofascial pain syndrome of right shoulder girdle region with palpable muscle spasm.

There is some myofascial pain syndrome with spasm of the muscle and rounding of the muscle adjacent to the right medial scapula.

3.               Right shoulder impingement and rotator cuff tendonitis suspected (appears to be mild).

[22]         Dr. Shuckett gave the opinion that the symptoms suffered by the plaintiff were related to the first accident and but for the accident, Ms. Deiter would not have these symptoms or diagnoses.  As to the future prognosis, Dr. Shuckett reported that the prospect of further recovery is guarded now that two and a half years have passed since the accident.  Dr. Shuckett gave the opinion that:

It is really not possible to measure degree of disability or impairment from work in an objective sense with chronic soft tissue pain.  I cannot rule out that she may find herself unable to pursue fulltime work in the longer term future due to her injuries, but this is not something I can predict.  However, based on her current status, it appears that she finds it difficult to contemplate increasing her work hours.

And further:

She may not improve from her current status as her pain is chronic by this time.

The Court largely accepted this evidence and awarded damages of just over $144,000 for the Plaintiff’s injuries and losses.

The Lawyer for the Defendants made critical comments about Dr. Shuckett’s expert opinion.  In rejecting the defence lawyers submissions Madame Justice Griffin said the following with respect to the important role treating physicians play in BC Personal Injury Lawsuits:

[28]         The defendants suggested in argument that Dr. Shuckett was an advocate but I do not accept that characterization.  I found her to be very clear and objective in her evidence which she was well qualified to give.  I pause here to note that the defendants appeared to me to show a lack of objectivity when assessing the role of physicians in litigation of this nature.  The defendants stated in written and oral argument:

In contrast to Dr. Shuckett, Dr. Cordoni presented as a [sic] impartial and unbiased physician which is highly unusual for a general practitioner.

[29]         This submission is what is known as a back?handed compliment.  It is a gratuitous attack on Dr. Shuckett to suggest that she was not impartial, a proposition which is entirely unfair on the evidence.  It is a suggestion that appears to praise Dr. Cordoni while it insults general physicians as a group, as if to say they are typically not able to provide independent medical evidence in soft tissue injury cases.  This cynical submission is outrageous and unduly partisan.

[30]         This court hears many cases involving plaintiffs with claims that someone else’s negligent action caused them personal injuries.  These are persons who are entitled to damages under the common law of this country if their claims are proven.  These are persons who may be suffering greatly from their injuries.  This court could not perform its function of determining these important claims without the help of treating medical physicians including general practitioners.

[31]         Thus, physicians who do testify despite the inconvenience are performing a very important professional and public duty.  Coming to court to testify and to face cross?examination may be the last thing a busy physician wants to do, faced with the burdens of practice.  Often a general physician is the one physician who knows the patient best and who will have the longest history of treating the plaintiff before and after the incident giving rise to the claim.  This court is extremely appreciative of the role physicians play in giving evidence.  I sincerely hope that counsel for the defendants in this case reflected only his views, and not a general culture amongst legal counsel who represent defendants or defendant’s insurers, when he decided to advance his submission which was so disrespectful of the important role of family doctors in personal injury cases.  It is true that in some cases a medical practitioner may be impartial but it reflects poorly on the defendants to simply advance this as a general proposition.

ICBC Soft Tissue Injury Claims Round-up

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

On Friday the  BC Supreme Court released reasons for judgement in 2 cases dealing with soft tissue injuries which I summarize below to continue to grow this free database of ICBC Injury Claims Judgements. Additionally, both of these cases contain a useful analysis of Plaintiff credibiilty and are worth reviewing for anyone interested in this area of the law.
In the first case, Skusek v. Gill, the Plaintiff was injured in 2 BC car crashes, the first in 2000 and the second in 2006.  Liability was admitted in both cases leaving the court to deal with quantum of damages (the value of the plaintiffs injuries and losses).
The Plaintiff was 22 years old by the time of trial.  She suffered various soft tissue injuries in both collisions which did not fully resolve.  Mr. Justice McEwan of the BC Supreme Court largely accepted the evidence of Dr. Ames who summarized the Plaintiff’s injuries as follows:

[20] The plaintiff saw Dr. Janet Ames on August 22, 2007.  Dr. Ames took a history which suggested significant ongoing pain from the first accident which was seriously aggravated by the second:

After the first accident on January 12, 2000 the symptoms included headaches, neck pain, lower back pain, pain between the shoulder blades and bilateral hip pain.  She commented her entire back hurts.  At the time of the second accident she was still going for chiropractor treatment and physiotherapy.  The patient would place her recovery at about 50 percent before the second accident.

After the second accident the patient describes becoming a lot worse in all of the previously symptomatic areas and specifically the right hip became worse.  There were bruises from the seat belt.  The left anterior ribs felt “out of place” (later resolved with chiropractor care).

[21] She note the following symptoms on her examination:

1. There is pain across the low back, left greater the right.  The pain does not consistently radiate down the legs.  There is occasional pain down both anterior thighs not going past mid thigh.  There is no tingling or numbness associated with this.  There is no history of bowel or bladder control problems.  The patient describes pain in the area of the right hip and points to the lateral aspect of the hip.

2. There is pain in the mid back area, left worse than right.  This does not radiate around the chest or through to the front.  There is no history of tingling or numbness.

3. There is a history of headaches described as frontal, temporal and from neck tension.  The frequency and severity varies.  There is no pain down the arms and no tingling or numbness.  Caffeine intake is 1 c. of coffee or tea every two or three weeks and chocolate about twice a week.  The patient will be seeing a Neurologist in February 2009, arranged by Harris Johnsen.

4. The patient comments that she has a lot of stomach aches daily.

5. Sleep varies depending on the pain level.

[22] The prognosis was as follows:

The prognosis for the various injuries is good as there are no clinical findings consistent with a serious injury.  This excludes the problem with the headaches.  The patient will be assessed by a Neurologist who will comment on the diagnosis and prognosis with regards to the headaches.

Determining when the symptoms will come under good control and/or resolve is very difficult.  The patient may benefit considerably from low dose Amitriptyline to improve sleep and a consistent core stability/strengthening program with one or one supervision.  The supervision from a Pilates instructor would continue until she was on a full program and was aware of how to progress the exercises.  This usually takes about eight sessions over eight weeks.  The patient then graduates to doing the exercises on their own or joining a small group.

Damages of $50,000 were awarded for the Plaintiffs non-pecuniary loss (money for pain and suffeirng and loss of enjoyment of life) and $60,000 was awarded for the young Plaintiff’s diminished earning capacity.

Paragraphs 41-48 of this judgement are worth reviewing for anyone interested in some of the factors courts look at when weighing a Plaintiff’s credibility in soft tissue injury cases.

In the second soft tissue injury case released on Friday (Mohamadi v. Tremblay) the Plaintiff was awarded $10,000 for non-pecuniary damages as a result of injuries sustained in a 2006 BC car crash.   In valuing the Plaintiff’s injuries at this modest figure Mr. Justice Truscott of the BC Supreme Court summarized the injuries as follows:

[91] It is extremely difficult to determine the value of the plaintiff’s claims with all of the inconsistent evidence he has given and the lack of supporting evidence from his doctors.

[92] I do accept that in the motor vehicle accident of February 14, 2006 the plaintiff sustained soft tissue injuries to his neck, back and left shoulder, accompanied by headaches.

[93] I am prepared to accept that his soft tissue injuries lingered on for a period in the order of two years on a mild basis but thereafter I conclude that he had recovered with no long term consequences.

[94] I accept that his headaches lasted for a short period of time but thereafter this complaint is not supported by his physicians and I reject his evidence that his headaches continued thereafter.

This case is also worth reviewing for the court’s discussion of plaintiff credibility in soft tissue injury claims.  Many of the Plaintiff’s claims were rejected by the Court.   Specifically in paragraphs 95-113 the court gives reasons for rejecting many of the Plaintiff’s claims and these paragraphs contain a useful discussion for anyone interested in some of the factors courts consider important when weighing credibility in ICBC Injury Claims.

$104,500 Non-Pecuniary Damages Awarded for TOS

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases, ICBC Wage Loss, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry (Hooper v. Nair) awarding damages for a 2003 motor vehicle collision.
The Plaintiff was struck while walking lawfully in a marked crosswalk in Burnaby, BC.  She suffered various injuries including Thoracic Outlet Syndrome (TOS).
Madam Justice Russell awarded the Plaintiff $104,500 for her non-pecuniary damages.  In valuing the plaintiffs pain and suffering the Court summarized the Plaintiff’s injuries and their effects on her life as follows:

[50] There are a number of factors that affect the plaintiff’s entitlement to non-pecuniary damages.  With respect to the duration of the pain, the plaintiff’s pain has become chronic in nature.  She continues to experience pain particularly in her neck, left shoulder and arm nearly six years since the onset of symptoms. The chronic nature of her pain means that she will have to deal with and manage the pain from her underlying TOS for the foreseeable future.  She has tried many different modalities of treatment with limited success.  There is some improvement but the pain is still present.  Further, the injuries led to the development of sleeping problems which cause the plaintiff to feel tired in the morning.   She can hope for some improvement over time with a regular exercise programme.  But overall, the prognosis for a full recovery is unclear and it appears that she will continue to be affected by the injuries indefinitely and will likely have to live, at a minimum, with background pain.

[51] The plaintiff’s lifestyle has been adversely affected in a number of ways.  She is determined to resume her jogging programme and to re-enter the Sun Run with her husband.  However, her early attempts to run resulted in a flare-up of neck and back pain.  Drs. Travlos and Salvian suggest that jogging may not be an activity she can do.  Dr. Travlos states she will have to pre-medicate for any activity which causes an exacerbation of her back pain.  Certainly golfing, an activity she enjoyed, will not be an activity she can participate in without pain.

[52] Both doctors also point out that the plaintiff is susceptible to further episodes of TOS should she have any increased neck injury or strain.  Dr. Salvian says that such increased neck strain could be caused by something as simple as “sleeping in a poor position or driving for long periods”.

[53] The plaintiff’s professional life was impacted by the Accident.  She has been able to cope fairly well with the duties of her job by minimizing the use of her left arm.  Luckily, she is right hand dominant.  But her evidence was clear that she maintained the earnings she had only by pushing through the pain and carrying on as best she could.  She gave evidence of struggling to carry on, taking her work home because she could not sit any longer in her office, and feeling tired and overwhelmed.  Because of her pain and fatigue, she believes she could not “court” clients as effectively at a time in her career when she was in a start-up mode and needed to do so.

[54] The Accident also caused emotional difficulties for the plaintiff which were no doubt situational and due to the chronic pain and resulting fatigue.  Fortunately, these problems have not continued and she appears to be coping well at this point.

[55] The plaintiff’s relationship with her husband was in some difficulty due to his business problems and their financial crises prior to the Accident but had improved by October 2005.  Mr. Hooper stated that her sleep difficulties meant she would often leave the marital bed and their relationship was negatively affected.  However, the plaintiff’s evidence about the effect of her injuries on her marital relations with her husband was not as clear.  But I accept his evidence that the plaintiff was irritable, fatigued and distant after the Accident and that her frustration with the slow progress of her recovery affected the happiness of the household.

[56] At the time of the Accident in December 2003, the plaintiff’s son was six years old.  She enjoyed skating with him.  She was not able to take part in active sports with him after the Accident and even cuddling him was painful for her for some time following the Accident.

[57] The plaintiff faced the difficulty of juggling many activities in her busy life:  she had a job which required time and concentration and some extra activities she needed to do as part of her marketing, she was the chief breadwinner for the family, and she had a young son at home and a house to care for.  Even before the Accident she was very busy but with the overlay of pain caused by the Accident, the plaintiff could not keep up her usual standard of housekeeping.  She relied on her older son and her husband to help but this was not always successful and caused friction in the family.  Vacuuming caused her intense pain as did reaching up to dust or clean above her shoulder.  This remains the case today.  She cannot vacuum, wash windows, or dust high corners.

[58] While Dr. Travlos suggests she use Noritryptiline to pre-medicate if she wants to do housework which would otherwise cause her pain, this is not always a practical solution and I accept that her inability to do housework has an impact on her life.

In addition to this case’s value as a precedent in Thoracic Outlet Syndrome cases the court discusses the thin skull and crumbling skull legal principles at paragraphs 59-66 and contains a very useful discussion of claims for past wage loss for commissioned sales-persons who are injured but not totally disabled as a result of accident related injuries.

2008 Lawyer and Doctor ICBC Billings Revealed

Written by admin on . Posted in Uncategorized.

Further to my previous posts on this topic (click here and here to read these) ICBC has now published their ‘statements and schedules of financial information’ for 2008 which reveals, amongst other things, the amount of money ICBC has paid to ‘suppliers for goods and services for the year ended December 31, 2008.’
Suppliers of Goods and Services include doctors who perform ‘independent’ medical exams for ICBC.   When ICBC sends and injured person to an independent medical exam these financial statements can be checked to see just how much money any given physician was paid by ICBC in a calendar year.
Another provider of ‘services’ revealed in these financial statements are law firms who do ICBC defence work. I have previously posted that some lawfirms and lawyers work both sides of the fence, that is on some cases they work for ICBC and in other cases they work for injured plaintiff’s suing someone insured by ICBC. According to the BC Law Society there is nothing wrong with this but these lawyers need to let their clients know if they signed the ICBC defence contract (known as the SAA) which restricts the lawyers ability to make claims against ICBC.  This is required so clients can make an informed decision when choosing to hire their lawyer.
If you hired a lawyer to advance your ICBC injury claim and are curious if your lawyer also works for ICBC you can check these annual reports to see just how much money any given lawfirm is paid by ICBC in each calendar year.

An Interesting but Short Lived Rule 37B Precedent

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Jury Trials, Uncategorized.

Reasons for judgement were transcribed today by the BC Supreme Court giving a new and interesting interpretation to Rule 37B.
In today’s case (Oliver v. Moen) the the Plaintiff sued for personal injuries as a result of a BC Car Crash.  The matter proceeded to trial by Jury.
Leading up to the trial the Plaintiff made a formal offer to settle under the now repealed Rule 37 for $400,000.  The Defendant countered with a formal offer of $100,000.  The Plaintiff then delivered a formal offer under Rule 37B for $185,000.  After 12 days of trial the Jury awarded approximately $14,000 in total damages for the Plaintiffs injuries and losses.
More often than not, when a defendant beats a formal settlement offer at trial they are entitled to costs under Rule 37B and in today’s case the defendant brought an application for such an order.  In an interesting twist, however, Mr. Justice Joyce of the BC Supreme Court declined to award the Defendant costs finding that when the Plaintiff made the formal counter offer of $185,000 this constituted a rejection of the Defendant’s offer.  A rejection of an offer, at common law, takes the offer off the table.  Mr. Justice Joyce held that since this occurred the Defendant did not have a valid offer to settle in existence from the time of the Plaintiff’s offer to settle onward thus the offer ‘cannot be considred under Rule 37B when deciding the issue of costs’
Specifically the Court reasoned as follows:

[12] Satanove J. noted that Rule 37(10) had been repealed when the counteroffer was made and Rule 37B did not contain an analogous provision. Accordingly, the common law rule relating to contract applied. At paras. 8 and 9 Madam Justice Satanove said:

8          Turning then to the common law of contracts, it is trite to say that a counteroffer constitutes non-acceptance of a previous offer. The previous offer must be revived in order to be accepted after a counteroffer has ensued. (United Pacific Capital v. Piché, 2004 BCSC 1524; Cowan v. Boyd (1921), 49 O.L.R. 335 (C.A.)).

9          Applying these principles to the chronology of facts in this case, when the plaintiffs issued the counteroffer of January 6, 2009, they were communicating non-acceptance of the Rule 37B offer of November 28, 2008 from the defendants, and this latter offer was no longer extant. [emphasis added]

[13] On the authority of More Marine, I am driven to conclude that when the plaintiff made its offer of January 30, 2009 that counteroffer constituted non-acceptance of the defendant’s offer of February 25, 2008 and rendered the earlier offer no longer extant because the saving provision of Rule 37(10) was no longer in effect.

[14] As the defendant’s offer was no longer in existence and therefore no longer capable of acceptance it cannot be considered under Rule 37B when deciding the issue of costs. This may seem a harsh result but it is one that, in my opinion, follows from the failure to preserve the saving effect of the former Rule 37(10) in Rule 37B.

[15] The defendant submits that More Marine is distinguishable because in that case the offer in question was made under Rule 37B whereas the defendant’s offer in this case was made under Rule 37 and at a time when the saving provision of Rule 37(10) was in effect. It is my view, however, that one must consider the law as it was when the counteroffer was made on January 30, 2009. At that time there was no enactment in place to alter the common law principle that the defendant had to revive his offer in order to give it effect once again.

[16] The defendant argues, in the alternative, that where no formal offer exists, s. 3 of the Supreme Court Act gives the Court a broad discretion over costs and that in the exercise of that discretion I should award the plaintiff costs up to the date of the defendant’s offer and award costs to the defendant from the date of that offer. The defendant relies on British Columbia v. Worthington (Canada) Inc., [1988] B.C.J. No. 1214 (C.A.). That case was concerned with the discretion of a trial judge to order a party who was successful in the action as a whole to pay the costs of an issue in the action to the party who was successful in that issue but who lost the entire action. That issue does not arise in this case. This case does not concern success on separate issues. Mr. Oliver was successful in his action but the jury saw fit to award him only modest damages.

[17] The usual rule as set out in Rule 57(9) is that the “costs of and incidental to a proceeding shall follow the event unless the court otherwise orders”. Having concluded that there is no offer by the defendant that can be considered under Rule 37B, the defendant has not persuaded me that there is any other circumstance that should cause me to depart from the usual rule.

[18] I therefore award the plaintiff the costs of the entire proceeding at scale B.

As far as I am aware this is a novel interpretation of Rule 37B.

Interesting as this case may be, and whether or not it is a correct interpretation of Rule 37B, the case’s value as a precedent will be short lived.  This case, although transcribed today, was pronounced in June, 2009.   As of July 1, 2009 Rule 37B has been amended adding a subrule which specifically states that “An offer to settle does not expire by reason that a counter offer is made.”   which in effect addresses the courts concerns about the short comings of this rule.

More on ICBC Injury Claims, Past Wage Loss and Tax Consequences

Written by admin on . Posted in ICBC Wage Loss, Uncategorized.

When advancing a personal injury claim against another as a result of a BC Car Crash claims for past wage loss are limited to wage loss less income tax.  This is so because of s. 98 of the Insurance (Vehicle) Act which reads as follows:
Despite any other enactment or rule of law but subject to this Part, a person who suffers a loss of income as a result of an accident or, if deceased, his or her personal representative, is entitled to recover from designated defendants, as damages for the income loss suffered after the accident and before the first day of trial of any action brought in relation to it, not more than the net income loss that the person suffered in that period as a result of the accident.
Over the years there was some uncertainty as to how this section of the Insurance (Vehicle) Act operated with respect to claims for past wage loss that extended for multiple years.  For example, if a person suffered 2 years of wage loss of $25,000 per year how would tax be calculated?  Would it be the tax payable on $25,000 per year or would it be the tax payable on the whole $50,000 as if it was earned on the date of trial or settlement?  In March, the BC Court of Appeal released reasons for judgement clarifying this section stating in essence that if income loss can be attributed to any given year then the taxes payable on that income for that year should be deducted.
There is one scenario, however, that has not been clarified by the BC Court of Appeal and that is what income taxes are payable when the amount of past wage loss for any given year is so small that the figure would be tax exempt but when added up with the other income earned by the Plaintiff the gross figure would be taxable?
Reasons for judgement were released this week by the BC Supreme Court dealing with this issue.  In this week’s case (Laxdal v. Robbins) the Plaintiff was involved in a 2006 BC Car Crash.  Madam Justice Gerow found that the Plaintiff suffered a past wage loss of $3,306.24 in 2006.  ICBC’s lawyers argued that this amount should be further reduced to reflect the income taxes payable when adding this figure to the Plaintiff’s total 2006 earnings.  In rejecting this argument the Court held as follows:
“In my view, the authorities support the conclusion that where the gross award is at or below the amount exempt from taxation, there would be no tax payable so that the net past income loss would be the same as the gross past income loss….Accordingly there will be no deduction for income tax as the amount of past wage loss is below the personal exemption.”
This is a great result for BC Plaintiff’s injured in car crashes who suffer a modest past wage loss as it permits the gross amount to be recovered so long as the award fall below the personal income tax exemption for any given calendar year.  I imagine ICBC is not as pleased as Plaintiff’s are with this interpretation and perhaps this issue will go up to the Court of Appeal for consideration.  If it does I will be sure to write about the result.

SFU Parking Fines Challenged in BC Class Proceedings Lawsuit

Written by admin on . Posted in Uncategorized. 58 Comments on SFU Parking Fines Challenged in BC Class Proceedings Lawsuit

(Reposted from the British Columbia Class Action Law Blog)
Fresh on the heels of the recent Class Proceedings Claim launched against UVic challenging the validity of parking fines collected by the University over the years, On June 22, 2009 a claim under the BC Class Proceedings Act (a Class Action lawsuit) was filed in the BC Supreme Court (Victoria Registry) against Simon Fraser University seeking repayment of  parking fines collected by the University.
The Claim was filed on behalf of a Plaintiff seeking to have the claim certified on behalf of Those people from whom fines were collected by the Defendant for violations of traffic and parking regulations.  You can click here to read the Statement of Claim.  In short, the Claim alleges that Parking Fines collected by Simon Fraser University (SFU) were collected unlawfully in that the University lacked the power to enact and collect parking fines.
As I previously posted, I normally don’t write about cases that I and my firm are directly involved in, however, Class Action lawsuits are by definition public and getting the word out to the potential class is essential.
If you or anyone you know paid a parking fine to the University of Victoria, Simon Fraser University (SFU) or the University of Northern BC (UNBC) and are interested in learning more about these claims you can click here to contact me.