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Due to our rapidly growing personal injury practice MacIsaac & Company’s head office in Victoria, BC has an opening for an additional litigator.
We are looking for a lawyer with at least 5 years experience prosecuting injury claims.
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In recent months both ICBC and the Provincial Government have been vocal in criticizing the use of medico-legal reports in injury litigation resulting in rule changes restricting the rights of litigants in relying on such evidence. In reality ICBC has no reservations seeking out numerous expert reports when it suits their interests in litigation. This inconsistency resulted in critical comments today from the BC Supreme Court.
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Earlier this year BC’s Attorney General announced changes to the BC Supreme Court Rules limiting how many expert witnesses litigants can use when prosecuting a personal injury lawsuit arising from a motor vehicle collision. The rule change was brought in without notice and without support from the Rules committee.
The retroactive and without notice restriction was subject to much criticism and judicial challenges were swiftly brought. The Government has backed down and before a judicial challenge was ruled on they amended the rule to delay its application only to trials set from 2020 onward.
The new Order in Council, approved and ordered today, reads as follows:
1 Rule 11-8 (11) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, is repealed and the following substituted:
Transition – exceptions for existing vehicle actions
(11) The following exceptions apply in relation to a vehicle action for which a notice of claim was filed before February 11, 2019:
(a) the limits set out in subrule (3) do not apply (i) to any report of an expert that was served in accordance with these Supreme Court Civil Rules before February 11, 2019, or (ii) to the vehicle action if the trial date set out in the notice of trial filed in relation to the vehicle action is on or before December 31, 2019;
(b) the limits set out in subrule (8) do not apply (i) to amounts that were necessarily or properly incurred for expert opinion evidence before February 11, 2019, or (ii) to the vehicle action in the circumstances referred to in paragraph (a) (ii).
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Although the recent ICBC and BC Government narrative attempts to paint injury claimants in an unreasonable light in reality ICBC often refuses reasonable settlement offers only to be ordered to pay far more at trial. Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, demonstrating such a result.
In the recent case (Moreira v. Crichton) the Plaintiff was injured in a 2013 collision. The Defendant admitted fault. The crash resulted in chronic pain with a poor prognosis. This in turn resulted in real disability and significant past and future medical costs and wage loss. The Plaintiff made a formal settlement offer of $480,000. ICBC refused to pay and the matter proceeded to trial where the Plaintiff’s claim was valued over $800,000. ICBC was ordered to pay double costs for refusing the Plaintiff’s reasonable settlement efforts.
Today the Court assessed these costs at $33,264 and ordered that ICBC pay this over and above the value of the claim. Unreasonable positions by litigants have consequences. Here ICBC was ordered to pay a substantial penalty for refusing to treat the plaintiff fairly. In reaching this assessment of costs Master McDiarmid provided the following reasons:
[1] This is an assessment of costs following a trial before Mr. Justice Betton. The trial was heard in late January and early February 2018; Betton J.’s Reasons for Judgment were rendered on July 31, 2018 cited at Moreira v. Crichton, 2018 BCSC 1281. The total judgment was $804,914.48.
[2] The plaintiff had offered to settle for $480,000.00 by way of a formal offer to settle on May 23, 2017. In a subsequent hearing in front of Betton J. on December 18, 2018, he ordered that the plaintiff was entitled to costs, including double costs after May 23, 2017…
[94] That totals 270 units at $110.00 per unit for a subtotal of $29,700.00, plus 7% PST of $2,079.00 and 5% GST of $1,485.00 for a total of tariff item costs, inclusive of taxes, of $33,264.00. The disbursements on a Bill of Costs should reflect my decision, together with the effect of my decision on applicable taxes on disbursements.
[95] The disbursements on that Bill of Costs should reflect my decision, together with the effect of my decision on applicable taxes.
[96] If required, plaintiff’s counsel may submit to me a revised Bill of Costs and certificate, in accordance with these reasons.
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When awarding damages for future losses BC Courts have an obligation to use appropriate present value multipliers in arriving at the lump sum awarded. Normally this is achieved by relying on expert evidence in personal injury cases. Given the BC Government’s recent restrictions on expert evidence Justices will likely have increasingly fewer such reports to assist them.
To this end an interesting footnote appeared at the end of a recent personal injury judgment. In the recent case (MacGregor v. Bergen) the Plaintiff was injured in a 2013 collision. The crash left the plaintiff with residual partial disability. Damages were awarded for past and future losses. The Court noted that no expert evidence was led by either party addressing preset value calculations but this was not a problem as the Court could simply rely on the multipliers provided in BC’s Civil Jury Instructions. In explaining why this was appropriate Mr. Justice Branch provided the following thoughts in a footnote to his reasons for judgement:
Neither party provided expert testimony as to the appropriate present value multipliers. However, I find that I have an obligation to account for the present value of the future losses pursuant to s. 56 of the Law and Equity Act, R.S.B.C. 1996, c. 253. Multipliers are calculated using the designated 1.5% for the present value of future income loss and 2% for any other future losses. The amounts presented for female police officers and female university graduates were determined by inflating the 2015 data provided by Mr. Turnbull to 2018 dollars (resulting in figures of $99,300 versus $67,700), calculating the difference of $31,600, and then applying a present value multiplier of 26.23, assuming a retirement age of 65 (37 years hence). I find that I am entitled to make use of the multipliers provided at Appendix E of the Civil Jury Instructions for this purpose. I note that the court has relied on the Civil Jury Instructions for this purpose in other cases where expert evidence was not made available: Smith v. Fremlin, 2013 BCSC 800 at para. 38; Erickson v. Bowie, 2007 BCSC 1465 at para. 51, footnote 3; Hrnic v. Bero Investments Ltd., 2018 BCSC 1880 at para. 57; Barnes v. Richardson, 2008 BCSC 1349, aff’d 2010 BCCA 116; Duifhuis v. Bloom, 2013 BCSC 1180 at para. 62; Harris v. Ladner Centre Holdings Ltd., 2008 BCSC 1735 at para. 70.
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When a collision occurs involving injury, death or a prescribed amount of property damage, attending police officers are required to complete a written report of the crash. This can be a valuable resource for collision victims as it documents the parties involved, labels the probable offender for the crash, highlights contributing factors along with road conditions and also notes the names of known witnesses. The ‘prescribed amount’ historically was $1,000 for motor vehicles, $600 for motorcycles $600 and $100 for bicycles. This captured most collisions.
In a bit of a perplexing development the BC Government has changed this threshold to $10,000. A press briefing released last week noted as follows:
“Having traffic back up because of a minor collision where nobody was hurt doesn’t help anyone – and worse, it can lead frustrated drivers to take steps that are unsafe,” said Mike Farnworth, Minister of Public Safety and Solicitor General. “Today’s increase in the damage threshold for these kinds of crashes is long overdue and will allow people and police officers to move damaged vehicles out of the way without delay.”
Currently, officers who attend a PDO must complete a written report before any vehicles can be removed from the road if damage exceeds $1,000 (for motorcycles, $600; for bicycles, $100). By increasing the reporting threshold to $10,000 per PDO, regardless of vehicle type, government expects that provincial highways will be able to be unblocked more efficiently.
The BC Government has recently labelled almost every injury sustained in a collision as “minor”. They have now labelled all collisions causing under $10,000 in vehicle damage as “minor”. Few people would consider a crash causing $9,000 in damages as anything but severe. It makes little sense to crack down on speeding and distracted driving (activities which very well could cause collisions) but to ignore investigations when actual collisions occur.
This development takes an important tool away from collision victims who later need to advocate on their own behalf. If you are a collision victim in BC it is now more important than ever to document matters that the police used to record following a crash.
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Last month ICBC withdrew many settlement offers on open claims and replaced them with lower unrealistic offers which were not tied to judicially established legal principles but rather internally designated criteria. The media dubbed this strategy the “meat chart” which appears to be resulting in fewer settlements and more claims now clogging the courts. BC’s Attorney General, the man in charge of ICBC, has now come out and taken offence to the meat chart label and has outright denied its existence.
In a lengthy exchange with MLA Michael Lee BC’s Attorney General asked the opposition member to not call ICBC’s strategy a ‘meat chart‘ and said ‘they do not have a meat chart‘. Here is the full exchange as recorded in Hansard:
M. Lee: Well, I appreciate that we’ve had a great opportunity to have those discussions, in this House, between the Attorney General and myself. That’s partly because, I think, of the complexity of the roles. I will just conclude by saying that, specifically, the concern is over the multiple roles that the Attorney General carries. One is the responsibility to be the chief legal officer for this province, advising the Premier and the cabinet. The role that he played during the referendum, for example, comes to mind.
The second, of course, in no particular order, is the minister responsible for ICBC. As these changes are coming forward, does the Attorney General look at these changes through the lens of cost containment, as the minister responsible for ICBC, or through the lens of being the chief legal officer to this province, ensuring that individuals’ rights are protected?
There is, of course, great concern in terms of the need for expert reports, the manner in which this meat chart policy that ICBC now has…. There was a report that the Attorney General brought out in early January or December. That was the litigation review, which showed no systemic concern. At least, that was the headline. But clearly there was a change by ICBC coming forward, in terms of how they managed their litigation process.
These are the topics that, I think, are quite concerning, in terms of the pattern right now, of the way this has been approached, in the face of the concerns from members of the legal community. I look forward to discussing that further with the Attorney General in estimates and at other opportunities. I do thank the Attorney General today and the members of the ministry staff for that opportunity to have this discussion.
Hon. D. Eby: I can’t let go unchallenged the member’s suggestion that ICBC has a “meat chart.” They do not have a meat chart. That is incorrect; the member knows it’s incorrect. He shouldn’t repeat it.
That’s the end of my closing statement. I thank the member for his questions on the supplementary estimates, and I thank my staff for assistance.
ICBC has not been faring well in Court since their new strategy kicked in. I can appreciate politicians looking to distance themselves from it but to outright deny that a new policy has kicked in when assessing the claims of injured British Columbians is a turn for the bizarre. I will continue to report on judicial outcomes of recent cases as they come before the courts.
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Earlier this month BC’s Attorney General surprised the legal community with changes to the BC Supreme Court Rules limiting the number of expert reports in motor vehicle injury prosecutions. The rule changes were brought without notice to the profession, were retroactive and ultimately will lead to ICBC paying for countless expert reports already in existence that the new rule deems useless.
Today BC’s Attorney General candidly admitted that this rule change was brought unconventionally and without judicial approval. Legal challenges are being readied against this rule which appears to have been brought for an improper purpose, namely not to fix a procedural problem but rather to save a single institutional litigant money. In any event here are Attorney General Eby’s words confirming the judiciary did not approve this surprise rule change
“ The rules committee did not recommend these changes and was not asked to approve these changes. These changes were a decision made by government.”
Changes to the BC Supreme Court Rules require statutory consultation with the Chief Justice of the Court. It is unclear just how meaningful a consultation occurred but today’s press release makes it appear that the consultation may have been little more than window dressing.
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Post originally published here on my other legal blog combatsportslaw.com
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Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, allowing a lawsuit against a Brazilian Jiu Jitsu instructor to proceed for injuries a student sustained in a tournament.
In the recent case (Peters v. Soares) the Plaintiff was a student of the defendant’s BJJ academy. The Plaintiff participated in a tournament where he sustained injury. He sued for damages alleging his instructor was negligent in allowing him “to compete against a participant in a higher weight class and in a competition where stand up skills were required….(when the plaintiff) had no experience or training in stand up skills“.
As part of the plaintiff’s BJJ membership agreement he signed a waiver agreeing not to sue for injuries “in connection with my participating in the Classes“. The Defendant argued that this waiver should be upheld and the lawsuit dismissed. The Court disagreed noting that a waiver must be interpreted as only covering “matters specifically in the contemplation of the parties at the time the release was given“. Using this test the court found the waiver for injuries in classes could not extent to a tournament. In reaching this conclusion Madam Justice Matthews provided the following reasons:
[24] Mr. Soares argues that because Mr. Peters’ claim of negligence is that the defendants knew he had no standing skills training, his claim arises from or is connected with his participation in the classes.
[25] I do not accept that argument. Mr. Peters’ claim asserts a duty of care owed in relation to the competition, not the classes. While Mr. Peters alleges that Mr. Soares and Carlson Gracie knew his ability and training did not extend to standing skills and standing skills were required for the competition, it is not the training or lack of it that he asserts was negligent; it is inviting him to participate in the competition given what they knew about his training or lack of it. It is likely that at a trial of the negligence issue, Mr. Peters will seek to prove that the defendants’ had knowledge of his lack of standing skills training at least in part because of their interaction during the classes, but that is not the same thing as alleging negligence in relation to or arising from the classes.
[26] In addition, there is no evidence that the competition was in Mr. Peters’ contemplation at the time he signed the membership agreement, and so there is no factual basis on which to find that Mr. Peters contemplated that the waiver provisions of the membership agreement would apply to the competition. The membership agreement was signed on September 23, 2015. Mr. Peters signed up for the competition on May 13 or 14, 2016, two weeks before he participated in it. There is no evidence that Mr. Peters was aware of or contemplated participating in the competition at the time he signed the membership agreement.
[27] Mr. Soares has not led evidence that he had the competition in contemplation when Mr. Peters signed the membership agreement. In his affidavit, Mr. Soares described the waiver terms of the membership agreement. All of Mr. Soares’ evidence about the membership agreement and its waiver terms specifically reference the classes. He does not reference the competition at all when deposing about the waiver terms of the membership agreement.
[28] I find that neither Mr. Peters nor Mr. Soares had the competition in contemplation when Mr. Peters signed the membership agreement.
[29] The first Tercon inquiry is answered in the negative. The membership agreement waiver does not relate to Mr. Peters’ claim regarding the injuries he allegedly sustained in the competition and so cannot exclude Mr. Peters’ claim.
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Update February 25, 2019 – The below paragraph 71 was edited in revised reasons for judgement published today and now reads as follows:
[71] This is the type of case that was ripe for settlement, as demonstrated by the small difference between the plaintiff’s offer and the award made. Were it in my power to award more in costs in favour of the plaintiff I would have done so. This case did not need to occupy the court’s time at the expense to the taxpayer. It should have been settled.
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Earlier this year ICBC instructed its staff to ignore the law when valuing cases and instead make offers based on an internal injury ‘meat chart’. The result is cases not settling and going to trial.
The first wave of these has now hit the courts and the judiciary seems none too impressed by ICBC and their ‘institutional’ tactics.
In reasons for judgment released today (Tsai v. Murdoch) ICBC was harshly criticized. The Plaintiff was injured and sought to settle her case. ICBC declined and made a low settlement offer subject to their ‘meat chart’ guidelines. The plaintiff sensibly rejected the offer and went to trial where damages were assessed under the law and resulted in an award greater than what she was prepared to settle for.
The Court went on to award the plaintiff double costs for ICBC’s tactics and criticized their new approach. In doing so Madam Justice Sharma provided the following reasons:
[71] This is the type of case that was ripe for settlement, as demonstrated by the small difference between the plaintiff’s offer and the award made. I was informed the defendant had made a settlement offer, but withdrew it for “institutional” reasons. Whatever “institutional” reasons are they do not protect in any way a litigant from bearing the consequences of its choices in the litigation. Were it in my power to award more in costs in favour of the plaintiff I would have done so. This case did not need to occupy the court’s time at the expense to the taxpayer. It should have been settled.