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ICBC Expert Rejected in Injury Claim, $100,000 Awarded for Myofacial Pain

Written by admin on January 31, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 115 Comments on ICBC Expert Rejected in Injury Claim, $100,000 Awarded for Myofacial Pain

Reasons for judgement were released today by the BC Supreme Court awarding a 22 year old Plaintiff $50,000 for pain and suffering and a further $50,000 for loss of earning capacity as a result of soft tissue injuries.
The court’s findings of injuries are summarized at paragraphs 45-46 which stated as follows:

[45] In the final analysis, I am unable to place much weight to Dr. Schweigel’s report. I accept Dr. Anton’s evidence that as a result of the accident, the plaintiff has suffered soft tissue injuries of the cervical and thoracic spine and shoulder girdle, which in turn have given rise to a myofascial pain syndrome.

[46] I accept his evidence that while there is some room for improvement, the plaintiff will likely suffer intermittent headaches and neck and upper back pain indefinitely. She must be careful to modify her activities and avoid bending, leaning, heavy lifting or repetitive lifting—particularly those involving sustained postures of the neck and upper arms or repetitive use of the upper arms—which will exacerbate her pain.

What interested me most in this judgement was the judges discussion weighing the Plaintiff’s medical evidence against the evidence tendered by the Defendant. The Defendant relied on Dr. Schweigel, a senior orthopaedic surgeon who is often retained by ICBC to review injury claims and often disagrees with Plaintiff’s physicians regarding the long term prognosis of soft tissue injuries. In today’s case the court largely rejected his opinion and offered the following analysis:

[36] The defence relies heavily on the evidence of Dr. Schweigel, an orthopaedic surgeon who examined the plaintiff in January 2008. Dr. Schweigel concluded the plaintiff suffered no more than a very minor soft tissue injury to the cervical and upper back area.

[37] In Dr. Schweigel’s opinion, cervical soft tissue injuries may be classified as either minor, moderate or severe, depending on the presence of various findings and complaints. In his opinion, a cervical soft tissue injury must be in the moderate to severe category before it will give rise to a chronic myofascial pain syndrome.

[38] In his opinion, before being diagnosed with a moderate to severe soft tissue injury the patient must present with a constellation of at least three complaints including: moderate to severe spasm, moderate to severe deformity, and a moderate loss of motion. Sometimes the patient will also present with neurological findings and/or x-ray changes and sometimes the patient will require strong pain medication for a few days.

[39] Based on his review of Dr. Fahim’s clinical records, including the CL-19 report, which he understood was completed on March 3, 2003, Dr. Schweigel concluded that the plaintiff did not suffer a moderate to severe soft tissue injury. In his view, since the CL-19 report reflects pain and tenderness of the neck and upper back, a good range of motion of the neck and upper back and mild tenderness of the neck and upper back, the physical abnormalities noted at this time were “extremely minimal”. He noted that “(s)he had mild tenderness of the neck muscles with good range of motion”.

[40] The difficulty here is that the CL-19 report relied upon by Dr. Schweigel was actually authored on March 3, 2004 rather than March 3, 2003. At that time the plaintiff was in Grade 12, she was dancing regularly and the intensive final examination study period had not begun. She was in fact doing quite well.

[41] This is in contrast to her condition just over a year earlier when Dr. Fahim examined her on February 15, 2003. At that point he noted her complaints of pain and tenderness in both the trapezius and upper back areas, and the decreased range of motion of her neck in all directions. There is no recording of “mild” tenderness with a good range of motion as Dr. Schweigel suggests in his report of January 14, 2008.

[42] While Dr. Fahim’s clinical records were available for review, Dr. Schweigel made no reference to them in his report. Nor did he refer to the records of the physiotherapist, Dawn Stevens, who, three weeks post accident, noted that the plaintiff’s neck was “very stiff” and that it was “very hard to mobilize (her) neck”.

[43] Quite apart from his erroneous reliance on the March 3, 2004 CL-19 report, I am not persuaded that Dr. Schweigel’s rigid classification of soft tissue injuries and his insistence that a myofascial pain syndrome may only arise in the case of a moderate to severe soft tissue injury case are reliable.

[44] While I accept that Dr. Schweigel is a very senior and experienced orthopaedic surgeon, with a long career focused particularly on spinal cord injury, in my view he did not demonstrate the same degree of expertise as Dr. Anton in the diagnosis and treatment of soft tissue injury. His categorization of soft tissue injuries struck me as both rigid and simplistic. No peer reviewed journals or other medical literature were produced to support his analysis. Nor did he demonstrate any in depth appreciation of the characteristics of a “trigger point”, as described by Dr. Anton.

Even More Analysis of Rule 37B

Written by admin on January 28, 2009. Posted in Civil Procedure, Uncategorized. 70 Comments on Even More Analysis of Rule 37B

Well the cases seem to be coming in at a good pace and hopefully Rule 37B will start seeing some consistency in its interpretation by the BC Supreme Court.
Today another case was released by the BC Supreme Court applying and interpreting this rule. In this case the Plaintiff was involved in a motor vehicle collision and sued for damages. The Defendants made an offer to settle for $16,000 plus costs under the old Rule 37. The Plaintiff rejected the offer, went to trial and was awarded just over $12,000. Madam Justice Morrison made the following findings about the costs consequences flowing from these facts:

Policy Reasons for the Offer to Settle Rule

[42] I turn first to the policy reasons behind the new rule.

[43] The Court of Appeal commented on the purpose of the former Rule 37 in several cases. Although Rule 37 was repealed and replaced with Rule 37B, the underlying rationale of Rule 37 is, in my opinion, still informative. Rule 37 was designed to encourage settlement. In MacKenzie v. Brooks, 1999 BCCA 623, 130 B.C.A.C. 95, the court made the following comment on the purpose of Rule 37:

[21] Rule 37 is clearly designed to encourage the early settlement of actions. It does so by rewarding the party who makes an early and reasonable settlement offer, and by penalizing the party who declines to accept such an offer. The reward or penalty takes the form of costs (in some cases, double costs) from the date the offer is made. The significant role which costs now play in the litigation process operates as a powerful incentive to parties to make early offers of settlement under the Rule and to accept reasonable offers.

[44] In Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201, 122 D.L.R. (4th) 330 (C.A.), the Court of Appeal commented on an older version of Rule 37 and Rule 57(9) (costs follow the event) at para. 37:

[37] These Rules are designed to discourage frivolous actions and defences and to encourage the parties to make reasonable offers to settle as early as possible. Thus, party and party costs serve many functions. They partially indemnify the successful litigant, deter frivolous actions and defences, encourage both parties to deliver reasonable offers to settle, and discourage improper or unnecessary steps in the litigation.

[45] Rule 37B is still designed to discourage frivolous actions and encourage parties to make and accept reasonable offers. In Alan Seckel & James MacInnis, B.C. Supreme Court Rules Annotated 2009 (Toronto: Thomson, 2008), the authors commented on the introduction of Rule 37B. They say that the new rule was necessary because the old rules had become dysfunctional, largely because of the lack of flexibility. They describe the new rule as a welcome improvement. They add at 373 that “the difficulty with Rule 37B will invariably be its lack of direction for parties and trial judges as to how to effect fairness in the face of the same problems which made interpretation and application of Rules 37 and 37A so difficult.”

[46] I agree in this respect with the following observation by Hinkson J. in Bailey v. Jang, 2008 BCSC 1372, a personal injury case heard before a jury, at paras. 17-18:

[17] In Mackenzie v. Brooks et al, 1999 BCCA 623 (sub nom. Mackenzie v. Brooks et al) 130 B.C.A.C. 95 at p. 21, the British Columbia Court of Appeal described the predecessor rules to Rule 37B as designed to encourage settlement by, among other things, “penalizing the party who declines to accept” an offer to settle.

[18] While Rule 37B has brought about the reversion from a strict code to a reliance on judicial discretion with respect to costs, the use of costs to encourage or to deter certain types of conduct remains, albeit based upon the factors set out in subrule 37B(6).

The Factors under Rule 37B

[47] I turn now to the factors under Rule 37B.

[48] In my opinion, given the fact that the offer was made three years and almost four months after the date of the accident and well over a year after the action was commenced, the plaintiff should have known what medical information was available to him. I agree with the defendants that this is a case where Mr. Leus was working full time from the date of the accident. It is true that in Fast Track Litigation it is not cost efficient to end up with several medical legal reports from one doctor. However, Mr. Leus did not have any information from Dr. Hodgeson, informal or otherwise, at the time of the offer.

[49] As the defendants point out, the plaintiff could have contacted Dr. Hodgeson earlier. By the time the report was requested, it was already 60 days before the trial so the rule requiring notice could not have been met in any event. The further requests that were made were well within the 60 days.

[50] The offer was made in timely manner and at a time when the plaintiff should have known his case. It was an offer that ought reasonably to have been accepted at the date of the offer.

[51] While I have considered the argument that the defendants, because of the participation of ICBC, can take advantage of making an early, low offer, in my opinion there is no such unfairness demonstrated.

[52] In this case, $16,000 is a more favourable amount to the plaintiff than the $12,748.48 ordered by the court. This factor favours the plaintiff being penalized for not accepting an award 20 percent greater than the judgment. The fact that the numbers are low does not change the analysis.

[53] The plaintiff argues that he should get preference under this factor because ICBC has significantly more resources to absorb the costs of litigation than he does and, as a result, ICBC is in a unique position to make early offers to settle.

[54] The defendants argue that ICBC is not a party and the legal principles that developed under the old rule should still apply. It would not be fair, they argue, if they were forced to pay the entire judgment, disbursements, and their own costs after they made a reasonable formal offer that was more than the final award.

[55] Different views have been expressed by members of the court on the question of the relevance of fact that the defendants have insurance.

[56] Mr. Justice Hinkson made the following comments in Bailey at paras. 32-34:

[32] Second, [the plaintiff] places her financial position against that of ICBC, as opposed to that of the defendants.

[33] While I accept that it is likely that most drivers in British Columbia are insured by ICBC, the wording of subrule 37B does not invite consideration of a defendant’s insurance coverage. There may be good policy reasons for this. Insurance coverage limits with ICBC are not universal, and will vary from insured to insured. Certain activities may result in a breach of an individual’s insurance coverage, or the defence of an action under a reservation of rights by ICBC. A plaintiff will not and likely should not be privy to such matters of insurance coverage between a defendant and ICBC.

[34] The contest in this case was between the plaintiff and the defendants, and the insurance benefits available to the defendants do not, in my view, fall within the rubric of their financial circumstances, any more than any collateral benefit entitlement that a plaintiff may have would affect that person’s financial circumstances for the purpose of determining their loss.

[57] Mr. Justice Butler in Arnold said that the mere fact that the defendant is insured is not enough to deprive the defendant of costs at para. 23:

[23] Mr. Arnold has asked that I take into account the relative financial circumstances of the parties when exercising my discretion. I find that I am unable to do so. First, Mr. Arnold has provided no evidence regarding his financial circumstances other than the assertion that the likely result of a costs award in favour of the defendant will leave him with no recovery from the action. Rule 37B gives this Court greater discretion than it had under the old Rule 37. It specifically allows the Court to consider the relative financial circumstances of the parties. However, there will always be a substantial difference between the relative financial circumstances of the usual personal injury plaintiff and the defendant’s motor vehicle insurer. That difference, in and of itself, is not enough for the Court to exercise its discretion to deprive the defendant of costs. If that was the intent of the new rule, it would have been more clearly articulated.

[58] Conversely, Madam Justice Boyd in Radke v. Parry, 2008 BCSC 1397, did consider the fact that the defendants were insured by ICBC at para. 42, a case where costs were awarded against the defendants:

[42] In the case at bar, on a review of the Rule and the authorities, I conclude that the plaintiff is indeed entitled to double costs from the date of the August 12th offer of settlement forward…It is also clear that there is a substantial disparity in financial circumstances between the parties. The defendants, represented by ICBC, had substantially greater resources to finance a trial than the individual plaintiff. Had the defendants accepted the plaintiff’s initial reasonable offer, the plaintiff would not have had to incur the significant costs associated with nearly two weeks of trial.

[59] Even if there may be cases in which the fact that a party is insured may be relevant to that party’s financial circumstances and hence the party’s ability to pay a costs award, this is not one of those cases. Here, there is very little information about the actual financial circumstances of the plaintiff, Mr. Leus. Though Mr. Leus says he has a mortgage and a family to support, no details are provided as to his actual income and expenses. Nor is there much information about the actual financial information of the defendants, John Laidman, Marjorie Laidman, and Ference Sandor. The Court cannot draw permissible inferences from the very

[60] The defendants argue that Rule 57(10) should be considered whereas the plaintiff says that the Court is only being asked to decide entitlement to costs and not quantum, so Rule 57(10) is not applicable.

[61] Rule 57(10) says:

A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

[62] I am satisfied that Mr. Leus has shown that at the time his claim was initiated, there was a sufficient reason to bring the action in Supreme Court. The amount he was claiming was close to the line; it was appropriate to use the discovery process to obtain evidence of the others involved in the accident: Reimann v. Aziz, 2007 BCCA 448, 72 B.C.L.R. (4th) 1.

Conclusion

[63] In conclusion, the purpose of Rule 37B is to encourage settlement and avoid frivolous use of court resources by imposing punitive cost sanctions. In the present case, the defendants made a reasonable offer to settle that ought to have been accepted by the plaintiff. The offer was 20 percent higher than the plaintiff’s final award. Given the overarching purpose of Rule 37B, Mr. Leus should be denied his costs, including his disbursements of $7,500, from the date of the offer, because he failed to accept the offer to settle.

[64] However, though the court could award the defendants single costs, I have decided it is not appropriate to do that in the particular circumstances of this case. The decision depriving the plaintiff of his costs meets the objectives of the Rule. I have considered, in particular, the size of the award, the fact that it was less than $4,000 lower than the offer, and the impact of this decision on what Mr. Leus will actually receive.

The Old, The New and The Ugly – Costs Consequences Involving Rule 37 and Rule 37B

Written by admin on January 28, 2009. Posted in Civil Procedure, Uncategorized.

I’ve blogged about most if not all of the recent reported BC Supreme Court judgements applying the new Rule 37B and don’t intend to summarize a history of the rule here (for a history of the rule and to read my previous articles on Rule 37B cases simply use the search feature on this site and type Rule 37B).
Reasons for judgement were released today considering an interesting issue. Rule 37B, once it came into force, repealed Rule 37. In recognizing that a transition period was necessary the rule permitted costs consequences to flow from formal offers delivered under the old Rule 37 if those offers were made before July 2, 2008. Today;s case decided what costs consequences should flow when an old Rule 37 offer is accepted after Rule 37B comes into effect.
In this case the Defendants made a formal offer in April, 2008 under the old Rule 37. The Plaintiff accepted the offer in November of 2008, after Rule 37B took effect. The parties could not agree on the costs consequences of the acceptance and application was brought to the BC Supreme Court. The point of contention was who should be responsible for the costs incurred after delivery of the offer to the time of acceptance. The court dealt with this issue delivering the following reasons:

[11] Both parties advanced arguments that the court has discretion under Rule 37B to make an order regarding costs. However, it is my opinion that the court has no discretion to make an order regarding costs in this matter. Mr. Buttar accepted the offer put forth by the defendants, including the offer regarding costs, without reservation. It is my view that Rule 37B does not confer a discretion on the court to set aside an agreement that has been entered into between the parties regarding costs.

[12] The offer made by the defendants reads as follows:

TAKE NOTICE that the Defendants offer to settle this proceeding on the following terms:

1. the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00), less deductible benefits paid or payable pursuant to Part 7 of the Insurance (Vehicle) Regulation, and Section 83 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, and less any advances paid to date; and,

2. Costs to be taxed in accordance with Rule 37(22) and (37).

[13] Although Rule 37 was repealed and replaced by Rule 37B, by incorporating the wording of Rule 37(22), the offer provided that the defendants would pay costs to the plaintiff to the date the offer was delivered and that, if the matter were to continue, the defendants would be entitled to their costs from the date of delivery. Former Rule 37(22) provided that if an offer made by a defendant was accepted by a plaintiff, the plaintiff is entitled to costs to the day of the offer, and the defendant is entitled to costs from the date of the offer.

[14] In this case, there has been no determination of any issues in this lawsuit. Rather, Mr. Buttar accepted the offer to settle as presented by the defendants.

[15] The letter of acceptance is unequivocal and states the following:

We confirm that there have been no advances under Tort or under Part 7 to our client.

We accept the Defendants’ Offer to Settle dated April 28, 2008.

I note that the Defendants’ Offer to Settle was made under the old Rule 37, but our acceptance of that offer is clearly under the new Rule 37B which does not provide a form for acceptance. As such, out of an abundance of caution, I also enclose an Acceptance of Offer in Form 65A.

[16] On this application, the parties argued the effects of Rule 37B(4),which provides that the award of costs is discretionary, and Rule 37B(5)(a), which provides that the court may do one or both of the following: deprive a party, in whole or in part, to costs that would otherwise be entitled to and award double costs of all, or some, of the steps taken in litigation after the date of the delivery of the offer to settle.

[17] I agree that subrules 37B(4) and (5) are permissive. However, it is my view that the court has no discretion to consider costs in this matter because Mr. Buttar accepted an offer which contained a term as to when costs would be payable and to whom.

[18] Accordingly, Mr. Buttar’s application is dismissed. The defendants are entitled to the costs of this application.

How Can $125,000 really equal $0 in an ICBC Claim?

Written by admin on January 26, 2009. Posted in Civil Procedure, Uncategorized.

Costs consequences, that’s how. If ICBC beats their formal offer at trial they can be awarded costs under Rule 37B. These costs can sometimes exceed the amount of a judgement and reasons for judgement were released today by the BC Supreme Court demonstrating this principle.
Trials can be risky and expensive and to the victor go the spoils. In today’s case the Plaintiff claimed she suffered a brain injury as a result of 2 collisions. The Defendants collectively offered to settle the Plaintiff’s claims for $450,000. The Plaintiff made a settlement offer of $1,500,000. After a 41 day trial Mr. Justice Gropper of the BC Supreme Court rejected the brain injury claim and awarded damages of $125,349. The Defendants brought an application to be awarded costs from the date of their respective formal offers and succeeded. In reading the judgement it appears that these consequences are so significant that the Plaintiff may be left with $0 or perhaps even owe money to the Defendants after all the dust settles. In addressing this reality the court held that such an outcome in and ofitself is not enough to extinguish the Defendant’s entitlement to costs. Specifically, Mr. Justice Gropper reasoned as follows:
As stated, the plaintiff received judgment. The defendants’ costs and disbursements from the time of the offers may exceed the judgment. This is an appropriate factor to consider in determining the appropriate order for costs. It is not sufficient, in my view, to deny the defendants their costs arising from the offers to settle. If the aim of the rule is to encourage reasonable settlements, denying the defendants their costs in the circumstance does not meet that aim. It may be a reason to deny the defendants double costs, but the defendants have not sought double costs in this matter. While it is an important factor to consider, it is not sufficient, in and of itself, to extinguish defendants’ entitlement to the costs.
Cases such as this which illustrate the potential costs consequences of an unsuccessful ICBC claim need to be reviewed when considering claim settlement. Trials come with risk and settlement offers have to be weighed against this risk. Reasons for judgement don’t always reflect who the real winner is. In ICBC claims the real winner is often the party that beats their formal settlement offer and this is not always revealed in judgements.
In addition to illustrating the significant costs consequences which parties can be exposed to in the BC Supreme Court, this case does a good job in discussing Rule 37B. Mr. Justice Gropper summarized the authorities to date applying Rule 37B as follows:

[18] The jurisprudence is developing in this court under Rule 37B(5) in regard to the effect of offers to settle on costs. The following principles have been stated:

1. “…Rule 37B is permissive in nature and provides the Court with a broad discretion to award double costs”: Radke v. Parry, 2008 BCSC 1397 at ¶37.

2. “…there are important differences between Rule 37B and the predecessor rules, Rule 37 and Rule 37A. Notwithstanding the differences … the underlying legislative policy remains the same. The goal has been and remains to encourage the early settlement of disputes ‘… by rewarding the party who makes an early and reasonable settlement offer, and by penalizing the party who declines to accept such an offer’ (see MacKenzie v. Brooks, 1999 BCCA 623, 130 BCAC 95…)”:Radke ¶38.

3. “Subrule (5) is permissive. It empowers the court to make either type of order mentioned in the subrule. By necessary implication, it contemplates that the court may make an order that denies one of the two forms of relief set out in the subrule”: BCSPCA v. Baker, 2008 BCSC 947at ¶ 15.

4. “[Subrule (5)] does not specifically state that it is possible for the court to order costs to a defendant where an offer to settle was in an amount greater than the judgment. Nevertheless, that is implied in the rule. If the court can deprive a party of costs or order double costs, it must also be able to order costs, the intermediate step between those two extremes”: Arnold v. Cartwright Estate, 2008 BCSC 1575 at ¶15.

5. “One of the goals of Rule 37B … is to promote settlements by providing that there will be consequences in the amount of costs payable when a party fails to accept an offer that ought reasonably to have been accepted. That goal would be frustrated if Rule 37B(5) did not permit the court the option of awarding costs of all or some of the steps taken in a proceeding after the date of delivery of an offer to settle”: Arnold at ¶16.

He then went on to decide that the Defendants ought to be awarded their costs in the present case and came to the following conclusion:

[35] In all of the circumstances, applying the factors addressed by the Rules and the parties, I find that it is reasonable that the defendants recover their taxable costs and disbursements in this action.

[36] I therefore order that the defendants Paul be awarded their taxable costs and disbursements from June 8, 2005 onwards. The plaintiff is entitled to her taxable costs and disbursements in the Paul action up to June 8, 2005 only.

[37] The defendants Brandy are awarded their taxable costs and disbursements from October 26, 2006 onwards and the plaintiff is entitled to recover her taxable costs and disbursements in the Brandy action up until October 26, 2006.

What interested me most in these reasons was the judge’s refusal to look at the fact that the Defendant was insured with ICBC when weighing the relative financial circumstances of the parties under Rule 37B(6). The courts are currently split on whether this is a relevant factor and once the BC Courts come up with a consistent analysis of this topic it will be easier for ICBC claims lawyers to better predict the costs consequences for their clients following trial. Hopefully the BC Court of Appeal has an opportunity to shed some light on this subject in the near future.

More on BC Supreme Court Costs and ICBC Claims

Written by admin on January 26, 2009. Posted in Civil Procedure, Uncategorized.

Just last week I posted about ‘costs’ awards in Supreme Court when an ICBC clam’s value is assessed below $25,000 (the current monetary jurisdiction of BC’s small claims court). Today, reasons for judgment were released shedding more light on this topic.
In today’s case the Plaintiff was injured in a 2005 rear-end crash. ICBC took the ‘low velocity impact’ position and argued that the Plaintiff did not suffer any compensable damages as a result of this crash. The Plaintiff disagreed and argued that he suffered injuries worth several thousand dollars.
Both the Plaintiff and ICBC agreed on at least one thing, and that is that this claim was for injuries with a financial value that was in the Small Claims Court’s jurisdiction and this was obvious even before the Plaintiff filed in Supreme Court.
As discussed in my previous post, the key analysis to Supreme Court ‘costs’ in such a case is governed by Rule 57 and whether the Plaintiff had ‘sufficient reason’ for bringing the lawsuit in Supreme Court. Clearly if the Plaintiff knew the case was worth less than $25,000 at the time he started the lawsuit he could not have had sufficient reason for suing in Supreme Court, right? Not necessarily.
Today’s case demonstrated the principle that the choice of forum is not governed by financial considerations alone. A Plaintiff can have sufficient reason for suing in Supreme Court for factors other than the value of the claim. Here the Plaintiff was awarded costs because the court found it was sufficient to sue in Supreme Court to take advantage of the Supreme Court’s pre trial discovery procedures. The court’s key reasoning can be found at paragraphs 39-43 which I reproduce below:

[39] The Plaintiff here emphasizes the “opportunity to take advantage of the pre-trial preparation to which [the Plaintiff] was entitled”. In this case liability was denied. Causation was denied. Contributory negligence was alleged. At trial a failure to mitigate was alleged.

[40] In this case the Defendant by denying liability, causation, and reimbursement for special damages, required that the Plaintiff to prove all of these things in court. The Defendant gave important evidence regarding the speed of impact, the consequences of the impact, and concern over the Plaintiff’s condition, which, I am advised, was revealed on discovery.

[41] In my view the position of the Defendant justified the Plaintiff pursuing this case in Supreme Court, where pre-trial discovery is available. A similar determination was made in cases such as Tucker v. Brown, 2008 BCSC 734, Faedo v. Dowell and Wacher, 2007 BCSC 1985, and Kanani v. Misiurna, 2008 BCSC 1274.

[42] There is the additional factor that, as in Faedo and Kanani, the Plaintiff faced an institutional defendant which, in the ordinary course, has counsel. To obtain any recovery the Plaintiff is forced to go to court, where he is facing counsel and counsel is reasonably required, but in Provincial Court there is no way of recovering the costs of counsel.

[43] In the circumstances, the Plaintiff is entitled to costs, pursuant to Rule 66.

BC Personal Injury Claims and Sick Leave Benefits

Written by admin on January 24, 2009. Posted in Civil Procedure, ICBC Wage Loss, Uncategorized. 127 Comments on BC Personal Injury Claims and Sick Leave Benefits

Imagine that you are injured through the fault of another in British Columbia. As a result of your injuries you become disabled and are unable to return to work for a period of time. Fortunately you have a good job and have built up a ‘sick bank’ at work and you are able to draw from this during your period of disability. When you bring your claim against the person responsible for injuring you are you able to claim your lost wages? Reasons for judgement were released yesterday by the BC Supreme Court addressing this issue.
In this case the Plaintiff was injured in 2005 in a motor vehicle collision. The Plaintiff was unable to work for a few weeks as a result of injury. The Plaintiff had built up a sick bank and drew from this. In her ICBC claim she claimed compensation in an amount equivalent to the hours depleted from her sick bank. In awarding the Plaintiff this money the court engaged in a very thorough and well reasoned discussion of the law addressing this topic which I am pleased to reproduce below:

[56] This court has long recognized the loss of sick bank credits as a compensable loss (see generally: McCready v. Munroe (1965), 55 D.L.R. (2d) 338, 54 W.W.R. 65 (B.C.S.C.)). InLavigne v. Doucet (1976), 14 N.B.R (2d) 700 at para. 12 (C.A.), the New Brunswick Court of Appeal held that the depletion of a plaintiff’s accumulated sick leave arising from injuries suffered in an accident removed a benefit that he or she would otherwise have and, therefore, constitutes a genuine loss. That conceptual approach was approved of by McLachlin J. (now the Chief Justice) in Ratych v. Bloomer, [1990] 1 S.C.R. 940 at 972, 69 D.L.R. (4th) 25:

I accept that if an employee can establish that he or she has suffered a loss in exchange for obtaining wages during the time he or she could not work, the employee should be compensated for that loss. Thus in Lavigne v. Doucet the New Brunswick Court of Appeal quite rightly allowed damages for loss of accumulated sick benefits.

[57] Some years later the issue was revived before the Supreme Court of Canada in Cunningham v. Wheeler, [1994] 1 S.C.R. 359, 113 DLR (4^th) 1, where Cory J. confirmed at 13 that an employee who uses sick leave in order to receive wages while off work and loses those sick day credits is entitled to receive compensation.

[58] In Roberts v. Earthy, 1995 CanLII 1421 (B.C.S.C.) [Roberts], Clancy J. held at para. 8 that it was not necessary to adduce evidence showing that any consideration was paid by the plaintiff or negotiated on the plaintiff’s behalf through a collective agreement or other employment arrangement. He did so on the basis that the accumulation of sick days is not related to what has come to be known as the insurance exception to the compensatory principle where such supporting evidence is generally required.

[59] The case authorities do not appear to support a universal approach to the quantification of the loss flowing from the depletion of sick leave benefits. For example, in Collins v. Ma, 1990 CanLII 1634 (B.C.S.C.), the court endorsed a contingency calculation being applied in order to take into consideration the likelihood of an employee drawing on the lost banked sick days in the future. That approach was followed by the court in Olson v. Nixon, [1991] B.C.J. No. 155, 1991 CarswellBC 1346 (S.C.).

[60] In Roberts, however, Clancy J. made no deduction for contingencies. Likewise, more recently in Choromanski v. Malaspina University College, 2002 BCSC 771, the court rejected the defence argument that there should be a reduction of the loss taken based on the plaintiff’s work history and the rate at which he had traditionally availed himself of his sick benefits.

[61] In my view, whether it is appropriate to make deductions for contingencies in quantifying the loss will depend upon the presence or absence of certain factors. Those would include, for example, whether there is a maximum limit of accumulated sick leave, whether the plaintiff is able to cash out accumulated sick leave days on termination or retirement, whether the plaintiff has several years of employment remaining in which to potentially use the sick leave or has only a few months of employment left until retirement with a significant sick leave remaining, or whether the plaintiff has left the employment in which he earned the sick day credits altogether. It cannot be predicted with any degree of certainty whether a person who is healthy today will be so tomorrow. Illness or injury can afflict any one of us at any time. Placing much if any reliance on the plaintiff’s past use of sick benefits strikes me as an unsound and potentially unfair approach because it fails to adequately protect a plaintiff against an unexpected serious or catastrophic illness in the future which could occur in any otherwise healthy plaintiff, or against a future injury, which, by its nature, is unpredictable. In neither case would those future events necessarily be related to the plaintiff’s past use of sick benefits.

[62] I accept that had Ms. Fenwick not used her sick leave credits, she would have been entitled to transfer them from her then employer, the Vancouver School Board, to her new employer, the Coquitlam School Board. As well I am satisfied that, pursuant to her collective agreement, any monies awarded to Ms. Fenwick on account of lost sick days is repayable to her then employer in order to replenish her sick leave bank. Beyond that, the evidence pertaining to the details of the portability of Ms. Fenwick’s sick day credits was not well developed. I do not have cogent evidence as to whether there is a maximum number of sick days allowable, the formula for which she has earned them or whether she is able to cash them out on retirement or termination.

[63] As best I can decipher from the evidence, the loss that Ms. Fenwick has sustained is a potential future loss in the sense that it would only be experienced if she has insufficient sick leave credits to adequately cover a future period of absence due to illness in respect of which she could have drawn upon the lost sick bank for income continuation.

[64] Ms. Fenwick thoroughly exhausted her accumulated sick leave as a result of the accident. She is a relatively young woman in the early stages of her career as a teacher. I have found that she likely will experience flare-ups of her symptoms caused by this accident from time to time in the future which may require her to miss brief intervals of time from work. She may also suffer from other illness or medical conditions in the future which will keep her from work.

[65] I am satisfied that fair and reasonable damages for this loss is compensation which reflects the actual hours Ms. Fenwick missed from work and used as sick time, multiplied by her approximate average hourly rate, without deduction. To that, I would add her wage loss stemming from fifteen hours of unpaid absences attributable to her injuries. The total damages amount to $5,469.18.

[66] Ms. Fenwick’s counsel raised a concern about whether damages for Ms. Fenwick’s lost sick bank entitlement could be validly characterized as pre-trial earnings or income and thereby attract a deduction for income tax pursuant to sections 95 and 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231. In my view, this kind of loss is not in the character of past wage loss. Accordingly, there will be no deduction for income tax.

ICBC Claims and Court 'Costs'

Written by admin on January 23, 2009. Posted in Civil Procedure, Uncategorized.

One important difference between the BC Supreme Court and BC Small Claims Court is the availability of court ‘costs’ to the winning litigant.
A winning party in the Provincial Court is usually awarded their disbursements, that is, the money it cost to bring the legal proceedings such as court filing fees, the cost of producing medical evidence etc. The winner cannot, however, be awarded Tariff Costs (money to compensate the party for the various steps they took in the lawsuit). This can be contrasted with the Supreme Court where a winning party can be awarded Costs and Disbursements. This can make a big difference as a ‘costs’ award after a Supreme Court trial could easily exceed $10,000.
What if you bring your ICBC injury claim in Supreme Court but are awarded an amount of money in the Small Claims Court’s jurisdiction (currently up to $25,000). Could you still get awarded Tariff Costs? The answer is sometimes and the starting point is to look at Rule 57(10) which states:
(10) A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
So, the question is when is there sufficient reason for bringing an ICBC injury claim in Supreme Court when the claim ends up being worth less than $25,000? Reasons for judgement were released today by the BC Supreme Court addressing exactly this question.
In today’s case the Plaintiff was awarded $20,000 in damages as a result of a 2005 BC motor vehicle collision. In deciding that the Plaintiff is entitled to costs Mr. Justice Truscott summarized and applied the law with the following reasons for judgment:

[17] The plaintiff Truong relies upon a decision of this court in Caldwell v. Maga [1997] B.C.J. No. 2166 (BCSC) where there were two plaintiffs, one being awarded $5,500 for damages and the other $4,500 for damages, both involved in a rear end accident. This was at a time when the limit in small claims actions was $10,000.

[18] Mr. Justice Drost referred to a previous decision of Mr. Justice Drake where he also dealt with two plaintiffs, who were each awarded under $10,000, and said in awarding them costs that the totality of the two judgments amounted to more than the small claims limit and they were entitled to costs.

[19] Mr. Justice Drost determined to follow the reasoning of Mr. Justice Drake in that decision (Phosy & White v. Island Pacific Transport Ltd. [1996] B.C.J. No. 1037, (2 May 1996), Victoria Registry No. 95/1123).

[20] I question the correctness of these two decisions as I tend to agree with defence counsel that taken to its logical conclusion that reasoning would mean that 26 claimants each with $1,000 claims would be entitled to sue in Supreme Court in one writ because the total would exceed $25,000, the present limit of small claims jurisdiction.

[21] I consider it far more likely that the $25,000 limit of small claims jurisdiction should apply to each claim of each plaintiff no matter how many plaintiffs there might be.

[22] However, I am obliged to follow the previous decisions of this Court which would probably entitle the two plaintiffs to sue in Supreme Court.

[23] Apart from this, at the best of times I consider it difficult for any plaintiff’s counsel to estimate the appropriate range involved for personal injury claims of his clients at the initiation of the action. The medical conditions of many plaintiffs continue to change following the initiation of the action as they continue to recover from their injuries or continue to suffer.

[24] Here, even after Dr. Yong’s optimistic report of March 14, 2006, by January 26, 2008 he was still saying that it was likely that the plaintiff Truong would continue to suffer some degree of left shoulder pain probably for another one or two years.

[25] The award to the plaintiff Truong of $20,000 is by itself less than the limit of jurisdiction in small claims of $25,000, but is not less by any large amount, and with the difficulty facing counsel of accurately estimating the range for a personal injury for his client at the initiation of litigation, knowing that if action is commenced in small claims his client will be limited to $25,000 no matter that the assessment might be in excess of $25,000, I am satisfied this plaintiff did have sufficient reason for bringing her claim in Supreme Court.

[26] The plaintiff Truong will therefore have her costs of her claim at Scale B, only attributable to her claim.

Why a Speeding Vehicle is not Always at Fault for a Car Crash

Written by admin on January 19, 2009. Posted in ICBC Liability (fault) Cases, Uncategorized. 100 Comments on Why a Speeding Vehicle is not Always at Fault for a Car Crash

As a personal injury lawyer I often hear comments along the following lines during initial consulrations “The cops didn’t give me a ticket so I’m not at fault” or “the other guy was ticketed for speeding so he was totally at fault“.
A common misconception is that if a driver is in violation of the motor vehicle act they are always at fault if involved in a motor vehicle collision. This is not the case and reasons for judgement were released today by the BC Supreme Court illustrating this principle.
If a person is violating the motor vehicle act at the time of the collision that violation has to be a causative factor in a collision for the act to constitute negligence. For example, a drunk driver who is clearly in violation of the motor vehicle act could have his/her vehicle rear-ended and be faultless for the collision despite being drunk.
In today’s case the Plaintiff (a taxi driver) was travelling through an intersection in Vancouver, BC with the right of way. He was travelling an estimated 85 kmph which was above the posted speed limit. At the same time the Defendant, coming from the opposite direction, turned left in the path of the Plaintiff’s vehicle and a collision occurred.
The Plaintiff argued that the defendant was fully at fault for failing to yield the right of way, the Defendant argued that the Plaintiff was at fault for speeding and had the Plaintiff been driving a lawful speed this collision would not have occurred.
Here the court found that the left hand turning vehicle was 100% at fault for this collision despite the Plaintiff’s speeding. The key analysis takes place at paragraphs 35-45 of the reasons for judgement which I reproduce below:

[35] Section 174 of the MVA provides:

174 When a vehicle is in an intersection and its driver intends to turn left, the driver must yield the right of way to traffic approaching from the opposite direction that is in the intersection or so close as to constitute an immediate hazard, but having yielded and given a signal as required by sections 171 and 172, the driver may turn the vehicle to the left, and traffic approaching the intersection from the opposite direction must yield the right of way to the vehicle making the left turn.

[36] In Raie v. Thorpe (1963), 43 W.W.R. 405 (B.C.C.A.), Tysoe J.A. stated at 410 that:

[18] …if an approaching car is so close to the intersection when a driver attempts to make a left turn that a collision threatens unless there be some violent or sudden avoiding action on the part of the driver of the approaching car, the approaching car is an “immediate hazard” within the meaning of sec. 164 [now s. 174].

[37] Mr. Naeem was entitled to assume that all other drivers would observe the rules of the road. He was not required by law to slow down as he approached the intersection. The existence of the eastbound left turn lane did not cast a duty on Mr. Naeem to take extra care: Pacheco at para. 15.

[38] Mr. Garrett never saw the taxi before the collision so that those cases where a left-turning driver wrongly estimates the speed of the approaching vehicle are not of assistance.

[39] Mr. Garrett, if he exercised reasonable care, should have been able to see the taxi coming east past Fremlin Street more than a block away. While he suggests that perhaps a traffic sign partially blocked his view, I find, based on the videotape, that was not the case. If I am wrong and the traffic sign partially blocked his view, he should have taken more reasonable care before he encroached into the westbound lane.

[40] Mr. Garrett would have seen the taxi if he had been looking. He saw the two westbound vehicles turn right onto the Oak Street on-ramp. He saw the right turn signal of one of those vehicles. He may have been so focussed on the right-turning vehicles that he did not see Mr. Naeem, but that does not absolve him from liability. The law required him to yield the right of way to the westbound vehicles.

[41] If Mr. Garrett seeks to cast any blame onto Mr. Naeem for the collision, he must establish that after Mr. Naeem became aware, or by the exercise of reasonable care should have become aware, of Mr. Garrett’s disregard of the law, he had sufficient opportunity to avoid the accident: Walker v. Brownlee at 461.

[42] Travelling over the speed limit will only constitute negligence if the speed prevented the driver from taking reasonable measure to avoid the collision. However, the experts agree that the moment that Mr. Garrett encroached onto the westbound lane, it was impossible for Mr. Naeem to avoid the collision.

[43] The next issue is whether the collision could have been avoided if Mr. Naeem drove at a lower speed or at the speed limit. The speed of a vehicle and the location of the vehicle are related. It is impossible for Mr. Naeem to have been travelling at about 85 kilometres per hour along Marine Drive and then instantly change to the posted speed limit 40 metres from where the collision occurred. As Mr. Naeem argues, if he had kept to 30 kilometres per hour from the outset, he would have been back in Burnaby when Mr. Garrett ploughed across oncoming traffic that morning. If he sped along at 120 kilometres per hour he would have cleared the area well before Mr. Garrett made his left-hand turn.

[44] While it seems attractive to attribute blame based on the speed of the dominant driver and hypothesize on what would have happened if Mr. Naeem kept to the speed limit, the fact is that Mr. Naeem drove at the speed he did and there was nothing he could have done, driving at the speed he did, to avoid the collision. When Mr. Garrett decided to proceed with his left-hand turn, Mr. Naeem was approximately 40 metres away. He was an immediate hazard and Mr. Garrett should have yielded to him.

[45] I find Mr. Garrett fully at fault for the accident.

[46] I note that counsel for the plaintiffs made no argument as to the costs. If the parties have not otherwise agreed, I find Mr. Garrett liable for the costs of the two actions.

How a Telephone Pole can be Responsible for a Car Crash

Written by admin on January 16, 2009. Posted in ICBC Liability (fault) Cases, Tort Reform, Uncategorized. 115 Comments on How a Telephone Pole can be Responsible for a Car Crash

One thing that I find irritating as a personal injury lawyer is when cases with merit are mis-reported by the media and spun as ‘frivolous lawsuits’.
Yes there are frivolous lawsuits out there. Yes some of the facts behind such cases are, to say the least, embarrassing for the profession. But there are many cases with merit that at quick glance can appear frivolous but with deeper digging simply are not so.
Reasons for judgement in such a case were released today by the BC Court of Appeal. In this case the Plaintiff suffered serious injuries when struck by a motor vehicle while crossing a marked cross-walk. The trial court found that the District of Campbell River and the Telus Corporation were each 20% at fault for this crash for the negligent placement of a utility pole. How can a utility pole be at fault for a crash between a motorist and a pedestrian? I could see this getting spun the wrong way so I thought I would take the first crack at reporting this case.
The facts of the case are well summarized in paragraphs 6-7 of the reasons for judgment. I reproduce these below:

[6] Around 9:00 p.m. on 3 January 2003, in Campbell River, Robert Simpson was walking home from his job as a pharmacist. It was dark and raining. Mr. Simpson, who was wearing dark clothing and carrying an umbrella, stepped into a marked crosswalk from the south side of a wooden utility pole and was struck by a southbound pick-up truck driven by Mr. Baechler.

[7] Mr. Simpson’s injuries were serious: they included a fracture of both knees that required surgery and will require future surgical attention, a fractured pelvis, an abrasion to the forehead, and a moderate closed head injury that has impaired Mr. Simpson’s functional capacity

A Claim was made against the driver of the vehicle, the City and the telephone Company (who were co-owners of the pole). The Claim against the City and the utility company were that they placed the pole in a hazardous place in relationship to the road and the pedestrian crossing. Frivolous? Consider these facts that the Court of Appeal reviewed in upholding the trial judge’s finding that the City and the telephone company were partially to blame for this crash:

[12] The utility pole was embedded in the sidewalk on the northwest corner of the intersection. Its near edge was about 14.6 inches from the curb. Telus Corporation, part owner of the utility pole, had installed a plastic pilaster on the westerly aspect of the pole, to protect some cables. With the pilaster, the pole was about 18.9 inches wide at eye level and 23.6 inches wide at its base. (BC Hydro was co-owner of the utility pole. Mr. Simpson’s action against BC Hydro settled and was dismissed by consent).

[13] The pole had not always been embedded in the sidewalk. It was originally west of the sidewalk, but in the process of widening Dogwood Street in the 1980s the pole’s base was incorporated into the sidewalk.

[14] In 1996, Campbell River, the RCMP and the Insurance Corporation of British Columbia identified Dogwood Street between 11^th and 13^th Avenues as accident prone and problematic with respect to traffic operations. An engineering firm studied the corridor, found that the pole obscured pedestrians from the view of southbound drivers, and recommended (among other things) the relocation of the utility pole.

[15] In 1997, Campbell River authorized relocation of the pole. BC Hydro agreed. Telus Corporation was opposed, apparently because its cables were an impediment. All of the other recommended improvements to the intersection were made, but the pole remained where it had been.

[16] The location of the utility pole was a continuing safety concern for Campbell River. It was recognized as a safety hazard by the City’s engineering services manager. In 2001, a second safety review of the Dogwood corridor found that the Dogwood Street and 12^th Avenue intersection had a low accident frequency and severity history, but that rear-end collisions occurred in the southbound lanes with “relatively high” “pedestrian involvement”. A new plan to modify the corridor was approved.

[17] The trial judge held that the T intersection at 12^th Avenue and Dogwood Street had “long been considered dangerous among Campbell River residents (para. 6). He also found that Mr. Baechler was familiar with the intersection (para. 40) and with its “dangerous nature” (para. 23).

[18] In 2003, after the accident involving Mr. Simpson and Mr. Baechler, the utility pole was relocated about 3 metres away and the other Telus equipment reinstalled. The cost of about $3,000 was shared by Telus, BC Hydro, and Campbell River. The obstruction to visibility was eliminated.

[19] Embedded in the sidewalk as the utility pole remained at 9:00 p.m. on the night of 3 January 2003, when Mr. Baechler was driving home after dinner with some friends, and Mr. Simpson was walking home after work, the pole continued to obscure the view of pedestrians on its south side looking north for vehicles and the view of southbound drivers looking for pedestrians on the northwest corner of the intersection.

In upholding the liability of the City and the Telephone Company the court gave the following reasons:

[52] There was ample evidence to support the finding that the pole was a contributing cause of the accident. There was evidence that the pole presented a hazard known to both Telus and Campbell River that they had failed to remove. The learned trial judge found that had the pole not obstructed his view, Mr. Simpson would have been able to see and would have seen Mr. Baechler’s vehicle approaching. Telus and Campbell River have not established any error with respect to that factual finding. Mr. Simpson’s failure to see oncoming traffic when he had the opportunity to do so does not render “irrelevant” the fact of his view’s being obstructed by the hazardous utility pole as he waited to cross the street. I would not disturb the finding of the trial judge that the utility pole was a cause of the accident.

When frivolous lawsuits are reported the cases are worth taking a detailed look at. In this case there was compelling pre accident evidence that the pole “obscured pedestrians from view of drivers” and that this created a hazard with “relatively high” “pedestrian involvment” yet to save about $3,000 this known hazard was not moved!

Don’t always believe the headlines that summarize lengthy legal proceedings in a sound bite. Surly there are frivolous cases out there but decisions such as this one show that things are not always as they first appear. This case also illustrates that the discovery powers given to litigants in the BC Supreme Court can go a long way in uncovering blameworthy conduct which is not so apparent at first glance.

More on ICBC Injury Claims and Independent Medical Exams

Written by admin on January 14, 2009. Posted in Civil Procedure, Uncategorized.

One of the most frequently litigated issues in ICBC claims is the nature and number of ‘indpendent’ medical examiners (“IME”) that Defendants are entitled to have Plaintiffs examined by.
Reasons for judgement were released today by the BC Supreme Court ordering a Plaintiff to be examined by a psychiatrist of the Defendant’s choosing. In this case the Defendant’s need for a psychiatric IME of the Plaintiff was not seriously challenged, what was challenged was the timing.
Rule 40-A of the Supreme Court Rules deals with the admissibility of expert opinion evidence in Supreme Court trials. Rule 40A(5) requires such expert evidence to be exchanged with the other party 60 days before it is tendered in evidence.
In today’s case the requested examination would take place less than 60 days from trial. The Plaintiff argued that if the medical exam went ahead he would be prejudiced because the Plaintiff would have insufficient time to hire his own expert to respond to the opinion that was being sought. This, the Plaintiff argued, would likely lead to an adjournment which would be prejudicial to the Plaintiff.
Master Tokarek of the BC Supreme Court ordered that the medical exam proceed despite the Plaintiff’s objection. In doing so he stated that “the timing of the application, without more, is largely irrelevant”. The key reasons are set out in paragraphs 23-27 which I set out below:

[23] The comment about the balancing of prejudice is of some significance in the context of submissions made in the case at bar with respect to when defence counsel could or would be able to seek an IME. Plaintiff’s counsel submitted that whenever the plaintiff would be unable to obtain expert evidence to rebut or deal with any defence IME report, an order should not be made. Counsel indicated that his dilemma would be the same even if this application was brought in December because he would need approximately one year to get an appointment with his own expert. The logic of that seems to be that unless defence counsel applied for the psychiatric IME a year or more in advance of the trial date, the application should be denied because plaintiff’s counsel would be in exactly the same position of not being able to get his expert to deal with it and prejudiced because of an adjournment. I utterly reject that logic

[24] I believe the more appropriate approach is to balance the prejudice of a potential adjournment against the prejudice to the defendant in not obtaining relevant evidence. Here the requested IME is not with respect to an inconsequential or insignificant issue. The defendant seeks to reasonably establish that the plaintiff’s complaints are wholly or largely unconnected to the MVA.

[25] The balance of the authorities are similarly either distinguishable or unhelpful. Master Barber, in the Bubra decision said:

. . . the defendant has had full opportunity to have this matter brought forward at an earlier date so that these matters could be dealt with in a reasonable way. For their own reasons, they have not done so.

I do not find that to be the situation here.

[26] The last authority, the Barron case, is another decision of Master Patterson. At paragraph 21 he said:

. . . it seems to me that it is the obligation of the defence to not sit and wait until the last minute and then scramble to bring an application like this on.

With all due respect, the timing of the application without more, is largely irrelevant. All of the authorities relied on by the plaintiff came to the conclusion, in some fashion unknown to me, certainly not discernable from the reasons, that the timing would lead to an adjournment and that an adjournment would prejudice the plaintiff. Apart from the Mackichan decision, there is nothing to suggest that any consideration was given to balancing the prejudice to the plaintiff against that of the defendant.

[27] In this case, I have no evidence to conclude that there would be an adjournment or that if that was so, it would amount to a prejudice that outweighs the prejudice to the defendant in not being able to obtain material evidence going to the heart of the plaintiff’s claim. Consequently I grant the application and order that an IME take place as requested.