Skip to main content

British Columbia's "Minor" Injury Law Says One Year Actually Means Forever

Written by admin on . Posted in ICBC Minor Injury Caps, Uncategorized.

Yes, you read that right.  12 months is 1 year but according to new Laws and Regulations passed by British Columbia 12 months actually means forever.
What am I talking about?  Earlier this year the BC Government passed a law capping non-pecuniary damages for what they call ‘minor’ injuries.  The law states that if the injuries cause “serious impairment“, however, that they are no longer minor and not subject to the cap.  Seems fair enough right?  Read on.
To meet the definition of ‘serious impairment‘ in section 101(1) of the Insurance (Vehicle) Act the injury must not “be resolved within 12 months” and meet whatever further criteria the government dog-piles on via Regulation.
Last week the Government published their Regulations which added the requirement in addition to the 12 month duration required in the Act the injury must basically be disabling to lead to ‘serious impairment‘.  Then, they went further and said the 12 month injury also has to be permanent with a requirement that “the impairment is not expected to improve substantially”.
So when the Government tells you that injuries that last more than 12 months are not subject to the cap they are lying.  They in fact require the injuries to be disabling and permanent to shed the restrictions of the cap.
This inconsistency between the Act and Regulations appears illogical, incoherent and contrary to the stated intention of capping minor injuries.  A situation that opens the harsh Regulation to judicial challenge.  Probably one of many to come by British Columbians impacted by these new laws in 2019.

Understanding ICBC's "Minor Injuries" For Crashes After April 1, 2019

Written by admin on . Posted in ICBC Minor Injury Caps, Uncategorized.

This week the BC Government released their regulations setting out the framework for ICBC’s ‘minor injury’ scheme which will be in force for people involved in BC collisions after April 1, 2019.
First and foremost it should be emphasized that the term ‘minor injury’ is misleading.  It is a political term used to make the public ok with having your rights stripped.  In short many injuries that no-one should consider minor (such as brain injuries) are caught in this definition.  With the regulations now in force, however, British Columbians now have a better understanding of what the future will hold.  Here is the rundown.
Section 103 of the Insurance (Vehicle) Act notes that everyone in a BC crash after April 1, 2019 that suffers ‘minor’ injuries have their non-pecuniary damages capped at an amount set by regulation.  The regulations released last week set the cap at $5,500.
The term “minor injury” is defined in section 101 of the Act as follows:

a physical or mental injury, whether or not chronic, that

(a)subject to subsection (2), does not result in a serious impairment or a permanent serious disfigurement of the claimant, and

(b)is one of the following: 

(i)an abrasion, a contusion, a laceration, a sprain or a strain; 

(ii)a pain syndrome;

(iii)a psychological or psychiatric condition; 

(iv)a prescribed injury or an injury in a prescribed type or class of injury;

The Regulations went on to expand this list with the following ‘prescribed’ injuries

a. a concussion that does not result in an incapacity

b. A TMJ disorder

c. a WAD injury

A TMJ disorder was defined to mean “an injury that involves or surrounds the tempomandibular joint.“.

A WAD injury was defined to mean “a whiplash associated disorder other than one that exhibits one or both of the following:

(a) decreased or absent deep tendon reflexes, deep tendon weakness or sensory deficits, or other demonstrable and clinically relevant neurological symptoms;

(b) a fracture or dislocation of the spine”

Sprain was defined to mean “an injury to one or more ligaments unless all the fibres of at least one of the injured ligaments are torn“.

Strain was defined to mean “an injury to one or more muscles unless all the fibres of at least one of the injured muscles are torn“.

Psychological or Psychiatric Condition is defined as follows:

a clinical condition that

(a) is of a psychological or psychiatric nature, and

(b) does not result in an incapacity

The word “incapacity” was defined as well with the Regulations noting as follows:

in relation to a claimant, means a mental or physical incapacity that

(a) is not resolved within 16 weeks after the date the incapacity arises, and

(b) is the primary cause of a substantial inability of the claimant to perform

(i) essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s employment, occupation or profession.

(ii) the essential tasks of the claimants training or education in a program or course that the claimant was enrolled in or had been accepted for enrollment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s training or education, or

(iii) the claimant’s activities of daily living.

So, if you have any of the above “minor injuries” you are facing capped non-pecuniary damages.  A concussion by default is minor but if it does result in the above definition of ‘incapacity’ it will not be subject to the cap.  The same goes for psychological or psychiatric conditions.

A “minor” injury can also get around the cap if it results in  “serious impairment or a permanent serious disfigurement“.

These terms have also been defined as follows:

“permanent serious disfigurement”, in relation to a claimant, means a permanent disfigurement that, having regard to any prescribed criteria, significantly detracts from the claimant’s physical appearance;

“serious impairment”, in relation to a claimant, means a physical or mental impairment that

(a)is not resolved within 12 months, or another prescribed period, if any, after the date of an accident, and

(b)meets prescribed criteria.

The “prescribed criteria” set out in the regulations basically mirror the test for ‘incapacity’ with the regulations stating as follows:

The claimant’s physical or mental impairment must meet the following  prescribed criteria:

(a) the impairment results in a substantial inability of the claimant to perform

(i) the essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s employment, occupation or profession,

(ii) the essential tasks of the claimants training or education in a program or course that the claimant was enrolled in or had been accepted for enrollment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s training or education, or

(iii) the claimant’s activities of daily living.

(b) the impairment is primarily caused by the accident and is ongoing since the accident;

(c) the impairment is not expected to improve substantially.

You will see from this combination the injury not only has to last more than 12 months as set out in the Act but the Regulations went on to basically require the injury to be permanent to not be considered minor.

Even if a ‘minor’ injury goes on to meet the test for no longer being considered minor ICBC has the right to argue that it is still minor if you did not follow their treatment protocols with s. 101(2)(3)(4) of the Act holding as follows

(2)Subject to subsection (3) and the regulations, an injury that, at the time of the accident or when it first manifested, was an injury within the definition of “minor injury” in subsection (1) is deemed to be a minor injury if

(a)the claimant, without reasonable excuse, fails to seek a diagnosis or comply with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury, and

(b)the injury

(i)results in a serious impairment or a permanent serious disfigurement of the claimant, or

(ii)develops into an injury other than an injury within the definition of “minor injury” in subsection (1).

(3)An injury is not deemed, under subsection (2), to be a minor injury if the claimant establishes that either of the circumstances referred to in subsection (2) (b) would have resulted even if the claimant had sought a diagnosis and complied with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury.

(4)For the purposes of this Part, a minor injury includes a symptom or a condition associated with the injury whether or not the symptom or condition resolves within 12 months, or another prescribed period, if any, after the date of an accident.

And who has the burden of proving an injury is minor?  Not ICBC.  You must prove your injury is not minor if ICBC suggests otherwise with the regulations noting “In civil proceedings relating to an injury, the burden of proof that the injury is not a minor injury is on the party making the allegation that it is not a minor injury“.

$100,000 Non-Pecuniary Assessment For Disc Herniation With Poor Prognosis

Written by admin on . Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and likely permanent back pain arising from a vehicle collision.
In today’s case (Domijan v. Jeon) the Plaintiff was involved in a 2012 collision the Defendant accepted fault for.  The crash caused an L4-5 intervertebral disc injury with central disc herniation.  The prognosis for recovery was poor and the Plaintiff was expected to have some degree of back pain for the rest of his life.  In assessing non-pecuniary damages at $100,000 Madam Justice MacDonald provided the following reasons:

[109]     I am not convinced that the plaintiff’s issue is simply pain relating to lumbar facet joint syndrome as put forward by Dr. Rickards. In fairness to Dr. Rickards, he stated this diagnosis in guarded terms using the word “possibly” numerous times. I prefer the testimony of Dr. Nikolakis and Dr. Appleby, that the plaintiff has a disc protrusion, specifically an L4-5 intervertebral disc injury with central disc herniation. This is based on the onset of pain being temporally related to the accident and the objective findings in the scans. As Dr. Nikolakis reported:

I was able to view the images from this diagnostic study [the March 3, 2014 MRI scan]… This investigation reveals desiccation of the L4-5 intervertebral disc along with a central disc herniation posteriorly and bulging of the intervertebral disc and anteriorly as well. There is a loss of disc height, which is significantly different relative to the healthy disc above and below this level….

[110]     I accept Dr. Nikolakis’ and Dr. Appleby’s evidence regarding diagnosis and am satisfied on the balance of probabilities that Mr. Domijan’s pain is due to an L4-5 disc protrusion in his lower back, which was caused by the motor vehicle accident. It is more likely than not that the plaintiff will have ongoing, albeit partially resolved, back pain for the remainder of his life…

[128]     Here there was no evidence that the plaintiff suffered from psychiatric issues, such as depression, from the accident. He has demonstrated success post-accident despite the demanding physical labour of his work. He works through the pain, although he often suffers. He is certainly not completely disabled. It is clear that the plaintiff is not a complainer, he keeps his pain largely to himself, and overall presents as a stoic young man.

[129]     It would be improper to penalize Mr. Domijan for his stoicism, a factor that should not, generally speaking, be held against a plaintiff: Stapley at para. 46; Clark v. Kouba, 2014 BCCA 50; and Giang v. Clayton, 2005 BCCA 54 at para. 54.

[130]     I note that the plaintiff was a relatively young man at the time of the accident and now faces his adult life with chronic pain, although his pain has diminished since he changed his career to that of a railway conductor.

[131]     I do not give much weight to the defendant’s submissions that participation in sport typically decreases with age as career and family obligations increase, or that the plaintiff never intended to pursue soccer professionally, in my assessment of non-pecuniary damages. The evidence suggests that Mr. Domijan was an avid soccer player and would have continued to play regularly but for the accident.

[132]     In all the circumstances, I consider an appropriate award of non-pecuniary damages to be $100,000. This amount recognizes the plaintiff’s ongoing pain, loss of enjoyment of life, especially his inability to participate in sports, and the longevity of his claim.

BC Lawsuit For Alberta Car Crash Dismissed for Lack of Jurisdiction

Written by admin on . Posted in Uncategorized.

Reasons for judgment were published today by the BC Supreme Court, Victoria Registry, dismissing a BC lawsuit on grounds that it had no jurisdiction over an Alberta based collision claim.
In today’s case (Brooks v. Leithoff) the Plaintiff was involved in a total of 5 collisions.  Four of the five occured in BC.  The third occured in Alberta.  The Plaintiff sued the Alberta motorist in BC alleging the crashes all gave rise to a single indivisible injury.
The Defendant sought to have the claim dismissed on the basis that there was no connection to BC to the crash.  The Court agreed with the Defendant and dismissed the lawsuit.  In doing so and finding the claim should have been filed in Alberta Madam Justice Power provided the following reasons:

[49]         When I consider the plaintiff’s arguments, I am not persuaded that the facts that the plaintiff points to are sufficient to displace what I view to be the clear weight of case law in British Columbia:  neither the plaintiff’s residency in British Columbia, nor the fact of indivisible injuries, nor the fact that the plaintiff is suffering ongoing damages in British Columbia, are, by themselves, sufficient to establish a clear and substantial connection to British Columbia.  When these three elements are combined, do these elements together then prove sufficient to ground jurisdiction?  I cannot conclude that they do.

[50]         During the course of argument, the plaintiff fairly conceded that some of the plaintiff’s arguments related to forums conveniens, which is not something I should take into account at this stage.  The plaintiff may have to mount two separate trials on substantially the same evidence as a result of this ruling, but again, that is not a factor I should take into when determining whether jurisdiction has been established.

[51]         During arguments, counsel for the plaintiff also suggested that if I did not accept that there was jurisdiction under s. 3(e) of the CJPTA, I could nevertheless exercise my residual discretion under s. 6 of the Act to find that this Court has jurisdiction.

[52]         In my view, this argument must fail because the exercise of discretion under s. 6 requires that either a) there is no court outside British Columbia in which the plaintiff can commence the proceeding, or b) that the commencement of the proceeding in a court outside British Columbia cannot reasonably be required.  The fact that the plaintiff has already commenced an action in Alberta leads me to conclude that it is open to the plaintiff to continue litigation of this matter in that jurisdiction.

[53]         During the arguments before me, counsel for the plaintiff also pointed to concerns relating to fairness, and the practical difficulties that Ms. Brooks would face in bringing two separate but essentially identical claims in two separate jurisdictions.  While I appreciate these practical difficulties, there are times when appeals to fairness in the law must yield to the demands for clarity and order in the law.  The words of Mr. Justice La Forest in Tolofson v. Jensen, [1994] 3 S.C.R. 1022 at 1058, although made in a somewhat different context, are nevertheless applicable here:

While, no doubt … the underlying principles of private international law are order and fairness, order comes first.  Order is a precondition to justice.

[54]         Overall, it is my view that the weight of the case law clearly establishes that the facts here are not sufficient to establish a real and substantial connection to British Columbia.

[55]         In the result, the defendant’s application to strike and dismiss the plaintiff’s claim for want of jurisdiction in British Columbia is granted.

 

$70,000 Non-Pecuniary Assessment After Sheriffs Negligently "Takedown" Courthouse Visitor

Written by admin on . Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, ordering Sheriff’s to pay just under $70,000 in total damages to a plaintiff who was injured when they were forcibly removing him from a BC courthouse.
In the recent case (Sweeney v. British Columbia) the Plaintiff was attending the Victoria Registry of the BC Supreme Court to file some papers pertaining to a Residential Tenancy matter.  Sheriff’s approached him and asked to search his backpack.  After some misunderstanding about his consent to do so he was forcibly removed.  In the process the Plaintiff was actively resisting in that “he was trying to pull his arm away from Acting Sergeant Kain’s hold on it because of the pain in his arm” and displayed “a negative attitude towards the authority of the sheriffs“.
A sheriff executed a takedown of the Plaintiff and the court found they were negligent in doing so.  The takedown caused various injuries including “a laceration to his forehead, a concussion, exacerbation of pre-existing injuries to his right arm and shoulder and a rotator cuff tear to his right shoulder.“.   The court assessed non-pecuniary damages for these injuries at $70,000 but reduced the award by 5% for contributory negligence on the part of the plaintiff.
In explaining why the sheriffs were negligent Madam Justice Matthews provided the following reasons:

[90]         I find that both sheriffs believed that Mr. Sweeney was trying to break free. I find that they were in a dangerous situation because they were at the top of two sets of cement stairs separated by a set of glass doors. While they both testify that they never lost control of Mr. Sweeney, they both testified that they were concerned that they would lose control and that would be dangerous to them. Acting Sergeant Kain was also concerned about the woman coming up the stairs.

[91]         I am mindful to not second guess the sheriffs given the dangerous situation they were in. However, I am of the view that they created this dangerous situation by marching towards the stairs notwithstanding the hazards the stairs presented and that Mr. Sweeney was struggling from the outset.

[92]         Both sheriffs decided to cease the escort and to execute maneuvers to maintain control over Mr. Sweeney. They decided this independently and made different decision about what to do to manage the situation.

[93]         The Sheriff Policy Manual requires the sheriffs to use the minimum amount of force necessary to gain control of a subject. I accept the opinion of Mr. Summerville, supported by the evidence of Acting Sergeant Kain, that putting Mr. Sweeney against the wall was far safer than a takedown in the circumstances given the stairs and a very hard ground surface onto which Mr. Sweeney was forcibly put down. A takedown was not, as the Sheriff Policy Manual requires, the minimum force necessary in the circumstances. I conclude that a takedown was not within the reasonable range of options available.

[94]         I find that the sheriffs both breached the standard of care in taking physical control of Mr. Sweeney at the outset, in not communicating about what they were going to do in the face of danger they both recognized as soon as they took control of him and in not changing course prior to being in the dangerous position of being on the stairs. I conclude that they sheriffs breached the standard of care by failing to communicate after each of them decided to change course their course of action. I find that Deputy Sheriff Bergen breached the standard of care in executing a takedown.

[95]         The defendants do not dispute that the takedown caused injury to Mr. Sweeney. Accordingly, the plaintiff has established negligence against the sheriffs.

BC Court of Appeal – "Segregated" Non-Pecuniary Awards Should be Avoided

Written by admin on . Posted in Uncategorized.

Several years ago it was more common to see BC courts awarding damages for ‘diminished housekeeping capacity‘ as a stand alone head of damage in injury litigation.  More recently the common practice is for courts to roll these in to the general damages awarded for non-pecuniary loss without a stand alone analysis.  Last week the BC Court of Appeal published reasons indicating the latter is the preferred practice.
In the recent case (Riley v. Ritsco) the Plaintiff was injured in a vehicle collision and sued for damages.  At trial non-pecuniary damages of $65,000 were assessed.  The Plaintiff successfully appealed and in doing so the BC Court of Appeal increased this head of damage to $85,000.  The Plaintiff also argued that the judge erred in not assessing damages for loss of housekeeping capacity as a stand alone head of damage.  In finding no error occured here the BC Court of Appeal provided the following guidance:

[101]     It is now well-established that where a plaintiff’s injuries lead to a requirement that they pay for housekeeping services, or where the services are routinely performed for them gratuitously by family members or friends, a pecuniary award is appropriate. Where the situation does not meet the requirements for a pecuniary award, a judge may take the incapacity into account in assessing the award for non‑pecuniary damages.

[102]     I acknowledge what was said in Kroeker about segregated non-pecuniary awards “where the special facts of a case” warrant them. In my view, however, segregated non-pecuniary awards should be avoided in the absence of special circumstances. There is no reason to slice up a general damages award into individual components addressed to particular aspects of a plaintiff’s lifestyle. While such an award might give an illusion of precision, or suggest that the court has been fastidious in searching out heads of damages, it serves no real purpose. An assessment of non-pecuniary damages involves a global assessment of the pain and suffering, loss of amenities, and loss of enjoyment of life suffered by a plaintiff. By its nature, it is a rough assessment and not a mathematical exercise.

[103]     The $85,000 figure that I have proposed for non-pecuniary loss takes into account all of the general damages the plaintiff has suffered and will suffer. It should not be augmented by a segregated award for loss of housekeeping capacity.

ICBC Vehicle Theft Claim Denied With Help of Damaging Cell Phone Records

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dismissing a lawsuit seeking insurance coverage for vehicle theft.
In the recent case (Winterbottom v. ICBC) the Plaintiff owned a Ford F150 which he reported stolen.  It was located a few days later in a remote location and was destroyed by fire.
ICBC denied coverage to the Plaintiff and he sued.  In dismissing the lawsuit the Court noted that cell phone records placed the Plaintiff in the vicinity where the truck was ultimately recovered.  Mr. Justice Blok provided the following reasons highlighting the utility of these records in dismissing the claim:

[113]     Cell phone calls involving Mr. Winterbottom’s phone were the central focus of the case.  At the risk of repetition, I summarize these as follows:

a)    Six calls (three incoming, three outgoing) made between 6:08 pm and 7:21 pm, all of which utilized a cell phone tower located at Ross Road, west of Abbotsford.  This suggests that Mr. Winterbottom’s phone was located south of the Fraser River, and not at his residence, which is where he said he was located at the time;

b)    Two incoming calls, both from Mr. Waardenburg’s phone, made at 9:32 pm and 9:48 pm, which utilized a north-side Sumas Mountain cell phone tower that serviced the very area where the burned-out Truck was found;

c)     An outgoing call to “Todd” at 9:49 pm, which involved a hand-off from the north-side Sumas Mountain tower to a tower located near the Mission Bridge, indicating a movement of the cell phone from east to west.  This would be consistent, for example, with the movement of the phone along Lougheed Highway on the north side of the Fraser River;

d)    Nine calls made between 10:01 pm on October 21 and 12:25 am on October 22, which utilized a cell tower site west of Mission, a location consistent with Mr. Winterbottom being located either at the Mission Springs pub or at his home;

e)    One call to Mr. Nygaard-Peterson made at 12:25 am on October 22 that involved a hand-off from the west Mission cell phone tower to an Abbotsford-area cell phone tower, indicating southbound movement of the phone, plus a second call at 12:46 am that utilized the second tower only.  These calls suggest Mr. Winterbottom was not located at his home or at the pub; and

f)      Three calls made in the morning of October 22, beginning at 8:39 am.  The first call involved a hand-off between two Abbotsford-area cell towers, indicating either movement of the phone or a call made in an overlap area.  The second call utilized the Ross Road cell tower west of Abbotsford.  A third call utilized the Ross Road tower and then handed the call off to a cell tower near Sumas Mountain, thus indicating a west to east movement of the cell phone.  In all cases, the calls are not consistent with Mr. Winterbottom being located at his home.

[114]     Neither Mr. Winterbottom nor Mr. Nygaard-Peterson had any explanation why they would have been phoning one another during the time they had said both of them were located at the Mission Spring pub, although Mr. Nygaard-Peterson speculated that he might have lost his phone or stepped outside.  Mr. Waardenburg had no recollection of the calls and had no idea why he would have been in phone contact with Mr. Winterbottom so often during the relevant time frame.  Both Mr. Winterbottom and Mr. Nygaard-Peterson denied being anywhere other than the Mission Springs pub or the Winterbottom home that night.

[115]     I conclude that the cell phone and cell tower evidence given by Mr. Funk is reasonably reliable and accurate.  His evidence was not undermined in cross-examination.  The plaintiff’s assertion that all cell towers utilized by Mr. Winterbottom’s cell phone were within their standard 35 km range in relation to the pub or the Winterbottom residence ignores Mr. Funk’s evidence that the 35 km figure is merely the licenced range and does not reflect the actual range or coverage.  Mr. Funk’s extensive field testing of actual coverages satisfies me that his evidence can be reasonably relied upon to determine general areas where a cell phone was located or where a cell phone was not located.  While there may be room for occasional aberrations due to topology or physical barriers, etc., for the large number of calls involved in this case to be inaccurate would mean that there would have to be aberrations in almost every instance.  I am satisfied from Mr. Funk’s evidence that this is unlikely in the extreme.

[116]     I agree with the observation of plaintiff’s counsel that the plaintiff appeared to give his evidence in a forthright manner.  So did his witnesses, although their evidence was generally to the effect that they were too drunk to remember much.  There were, however, problems with their evidence.  For example, there was no consistency between the plaintiff and his witnesses about how he got home from the pub.  I agree that those particular inconsistencies might be explained by extreme drunkenness, but the cell phone calls are not so easily explained away.  There is no explanation why the plaintiff and Mr. Nygaard-Peterson were phoning one another when, according to their evidence, they were both at the pub or, later, at the Winterbottom residence.  Mr. Winterbottom agreed he woke up at 10 am the next morning, but he could not explain how that testimony reconciled with the five cell phone calls made from his phone between 8:39 am and 9:43 am that morning other than to say he did not remember them.  Critically, his testimony about where he was located contradicted with the evidence of his cell phone location at various points that night and the next morning.  None of this evidence adds up.

[117]     The cell phone evidence is reliable and cogent, and it persuades me that Mr. Winterbottom was not where he said he was that night.  It also indicates that at one point in the evening Mr. Winterbottom’s cell phone utilized a cell tower that serviced the same rural area where the burned-out Truck was found.  Perhaps most importantly, the cell phone and cell tower evidence persuades me that Mr. Winterbottom’s evidence cannot be relied upon.

[118]      In a case such as this, the burden is first on the insured to show a loss falling within the scope of the insurance coverage, which here is theft.  The only evidence of theft comes from Mr. Winterbottom.  I conclude that there are so many difficulties with the evidence of Mr. Winterbottom, centred on the discrepancies between his testimony about where he was compared to the cell phone location evidence, that I cannot rely on his evidence to prove that a theft occurred.

BC Court of Appeal Discusses When Special Costs Against Lawyers Personally Should be Ordered

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized.

In exceptional circumstances lawyers can be ordered to be personally on the hook for costs when litigation goes awry.  Today the BC Court of Appeal discussed when such orders are warranted and when they are not.
In today’s case (Nuttall v. Krekovich) the Plaintiff was seriously injured in a hit and run accident.  A lawsuit was started suing ICBC as a nominal defendant pursuant to s. 24 of the Insurance (Vehicle) Act.  As the litigation progressed the Plaintiff’s lawyer came to believe that the Defendant may have been the driver and brought an application to add him to the lawsuit.  Shortly after obtaining this order the lawyer realized he was mistaken and discontinued the lawsuit against the Defendant.
The Defendant sought costs against the lawyer personally and the Chambers judge made such an order finding  the lawyers actions were “indefensible and an abuse of process meriting sanction in the form of an order of special costs payable by him personally”.
The lawyer successfully appealed the order with the BC Court of Appeal noting the chambers judge made several errors in ordering special costs against the lawyer.  In discussing the scope of special costs being ordered against a lawyer personally BC’s highest court provided the following reasons:

[25]         It is my view that the chambers judge made several errors that warrant intervention by this Court.

[26]         First, special costs have a punitive or deterrent element and are only appropriate where the conduct in issue is deserving of punishment or rebuke. This well-known principle stems from numerous cases, most recently enunciated in J.P. v. British Columbia (Children and Family Development), 2018 BCCA 325 at para. 28. The chambers judge erred in principle by failing to consider the cautious approach to an award of special costs against a lawyer personally, as well as the kind of reprehensible conduct that would justify such an award, mandated by the Supreme Court of Canada in Young v. Young, [1993] 4 S.C.R. 3 and more recently in Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26.

[27]         In Young the court directed judges to be “extremely cautious” in awarding costs personally against lawyers given their duties to guard confidentiality of instructions and to bring forward with courage even unpopular causes:

… A lawyer should not be placed in a situation where his or her fear of an adverse order of costs may conflict with these fundamental duties or his or her calling.

[28]         In Jodoin, the court confirmed that the threshold for exercising the power to award costs against lawyers is high, such that there must be a finding of reprehensible conduct by the lawyer. Reprehensible conduct “represents a marked and unacceptable departure from the standard of reasonable conduct expected of a player in the judicial system” (at para. 27). Mr. Justice Gascon, for the majority, described the kind of conduct that would justify such an order at para. 29:

[29]      In my opinion, therefore, an award of costs against a lawyer personally can be justified only on an exceptional basis where the lawyer’s acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice. This high threshold is met where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that is deliberate…

[29]         Consistent with these decisions, this Court has long held that such orders should be made only in “very special circumstances”, and not on the basis of mistake, error in judgment or even negligence: see Hannigan v. Ikon Office Solutions Inc. (1998), 61 B.C.L.R. (3d) 270 (C.A.); Pierce v. Baynham, 2015 BCCA 188 at para. 41.

[30]         Second, the chambers judge erred in concluding that Mr. Krekovic’s failure to disclose the entire circumstances of his investigation was in itself sufficient to justify an order for special costs. A special costs order is not justified only because counsel fails to disclose evidence that ultimately proves to be material or incorrect: see Pierce at para. 43. The chambers judge made no finding of dishonesty, accepting that Mr. Krekovic’s motivation to bring the application was “in pursuance of his duty to his client”. Given that, his failure to disclose more about his investigation does not constitute reprehensible conduct sufficient to justify an award of special costs. This is particularly so in the context of the evidence in the application that Mr. Krekovic clearly informed the court that his own investigation had not yielded any reliable information and he was relying only on information provided to him from another lawyer, the basis for which had not been disclosed.

[31]         Moreover, I cannot agree that disclosure of further information would necessarily have yielded a different outcome in the application. The chambers judge placed considerable importance on “the discrepancy between the date of birth that he had given for the Mr. Dhillon identified by Mr. Folick, and the date of birth of the Mr. Dhillon whom his investigation had previously identified as a potential defendant”. In fact, there was no discrepancy in the most recent date of birth provided by the investigator, Mr. Loncaric, and the date of birth later provided by Mr. Folick. The only discrepancy was with the earlier information Mr. Loncaric had given, which had not been confirmed. Had the application judge been informed of these or other details – such as the inconclusive information pointing to another Mr. Dhillon – the order may have nonetheless been granted. It is also important, in my view, that Mr. Dhillon did not attend himself to oppose the application. Instead, the application was opposed only by ICBC, who put the issue of the sufficiency of the information squarely before the court.

[32]         Additionally, Mr. Krekovic’s conduct after the order was granted demonstrates an effort to be prudent. He did not enter the order or serve the amended notice of civil claim without making further inquiries of Mr. Folick’s office about the reliability of the information, and as soon as he learned that the information was in fact incorrect, he advised Mr. Dhillon’s’ counsel that the action would be discontinued against him.

[33]         In my opinion, Mr. Krekovic’s conduct was far from being characterized as reprehensible.

[34]         Finally, the chambers judge referred to Rule 14-1(33) as allowing for an order for special costs. Rule 14-1(33) gives the court discretion to make various orders if it considers that a party’s lawyer “has caused costs to be incurred without reasonable cause, or has caused costs to be wasted through delay, neglect or some other fault”. One of those orders is that the lawyer “be personally liable for all or part of any costs that his or her client has been ordered to pay to another party”.

[35]         This rule, which does not distinguish between party and party costs and special costs, has expanded the scope of conduct which might support a costs order against a lawyer. As explained in Nazmdeh v. Spraggs, 2010 BCCA 131, there is no requirement for “serious misconduct” to justify an order that a lawyer pay party and party costs, but it is still necessary to find reprehensible conduct on the part of the lawyer to justify an order for special costs. Moreover, the lower standard mandated by Rule 14-1(33) must also be exercised with restraint, as the Court reasoned at paras. 103‒104:

[103]    The power to make an order for costs against a lawyer personally is discretionary. As the plain meaning of the Rule and the case law indicate, the power can be exercised on the judge’s own volition, at the instigation of the client, or at the instigation of the opposing party. However, while the discretion is broad, it is, as it has always been, a power to be exercised with restraint. All cases are consistent in holding that the power, whatever its source, is to be used sparingly and only in rare or exceptional cases.

[104]    The restraint required in the exercise of the court’s discretion is not to be confused with the standard of conduct which may support its use. Care and restraint are called for because whether the unsuccessful party or his lawyer caused the costs to be wasted may not always be clear, and lawyer and client privilege is always deserving of a high degree of protection.

[36]         In conclusion, it is my view that Mr. Krekovic’s conduct in making the application to add Mr. Dhillon as a defendant did not approach the kind of reprehensible conduct required to justify an order for special costs against him as counsel.

[37]         I would allow the appeal and set aside the order of the chambers judge that Mr. Krekovic personally pay the special costs of Mr. Dhillon. I would also award costs to the appellant of this appeal and for the application for special costs in the court below.

BC Supreme Court Gives Scathing Reasons Rejecting ICBC Doctor as "Advocate"

Written by admin on . Posted in Uncategorized.

Adding to this site’s archived judgments of judicial criticism of expert witness ‘advocacy’, reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, holding a defence expert witness report as inadmissible due to advocacy.
In today’s case (Tathgur v. Dobson) the Plaintiff was injured in two separate vehicle collisions.  Fault was admitted for both by the Defendants.  In the course of the lawsuit the Defendants had the Plaintiff assessed by a physician who provided an opinion minimizing the Plaintiff’s injuries and their connection to the collisions.  In finding the opinion inadmissible and worth no weight Madam Justice Warren provided the following harsh reasons calling the doctor an “advocate” for the defence:

[93]         The question then is whether Dr. Grypma was in fact biased, impartial, or acting as an advocate for the defence.  If I find he was, he is clearly unwilling or unable to fulfill his duty, and his evidence is inadmissible as not meeting the threshold requirement of “qualified expert”.

[94]         Dr. Grypma included the certification required by Rule 11-2(2) in each of his reports, but that is not the end of the matter: see White at para. 48.  The concern is that notwithstanding the inclusion of this certification in his reports, Dr. Grypma assumed the role of advocate for the defence.  For the following reasons, I have determined that Dr. Grypma was acting as an advocate for the defence and, as a result, was not able and willing to provide fair, objective and non-partisan evidence.

[95]         As noted, Dr. Grypma’s opinions rested on five primary footings.  The second and third footings concerning Dr. Grypma’s rear-end accident theories are themselves opinions for which no foundation was expressed in the reports.  The failure to expressly note the foundation for those opinions would not, on its own, be sufficient to exclude the reports at the initial stage on grounds of bias or advocacy.  However, it became apparent that Dr. Grypma is not actually aware of an adequate foundation for these views.  When asked, in cross-examination, to explain the foundation for the opinion that a rear-end accident rarely causes injury to the lower back, Dr. Grypma testified that he had attended courses with others who agreed that an injury to the lower back is rare in a rear-end accident.  He did not say when he attended these courses.  He did not identify the entities or institutions that offered the courses or even their subject matters.  He did not identify who these others were who agreed with him.  He also said that he relied on the conclusions of two professors.  He did not say when those conclusions had been relayed to him or in what form, and he was able to name only one of these professors, having forgotten the name of the other.  He acknowledged not having referred to any scientific publication supportive of this opinion.

[96]         In the circumstances, it is not possible to evaluate the soundness Dr. Grypma’s rear-end accident theories or even determine whether they fall within the scope of his expertise.  More fundamentally, however, Dr. Grypma relied so heavily on opinions for which he had no proper foundation strongly suggests that he had taken up the role of advocate for the defence.  Any doubt about that was removed by Dr. Grypma’s response to being provided with a more complete set of Mr. Tathgur’s clinical records, which undermined another of the foundational footings for Dr. Grypma’s opinion.

[97]         It is not clear to me why Dr. Grypma did not have all of Mr. Tathgur’s medical records, including Dr. Manga’s clinical records and the 2009 MRI, before he wrote his first report in 2011.  It is apparent from his May 31, 2011 summary of the history provided by Mr. Tathgur that Dr. Grypma was aware that Mr. Tathgur had been treated by his family doctor, and that x-rays and an MRI had been performed.  In other words, he knew that relevant records existed.  While he is not required to conduct an investigation (Edmondson at para. 77) it would have been more helpful had he obtained access to these before offering an opinion, particularly before challenging the credibility of Mr. Tathgur’s complaints.

[98]         Nevertheless, irrespective of what Mr. Tathgur told Dr. Grypma about the initial onset of pain following the first accident, it is beyond dispute that Mr. Tathgur did report pain to Dr. Manga the day after the accident and, by the time Dr. Grypma wrote his August 21, 2015 report, he must have been aware of this.  Dr. Manga’s handwritten clinical records are not easy to read but the words “pain neck, low back” are legible in the clinical record for May 27, 2008, and there is also a hand-drawn sketch of Mr. Tathgur’s back with diagonal lines on it at the left side of the neck and the left low back, which is obviously intended to record the specific locations of reported symptoms.  In his August 21, 2015 report, Dr. Grypma complained that Dr. Manga’s records were not legible and he said he had to “go on Mr. Tathgur’s memory as [he found] the family physician’s records were not helpful”, yet he went on to specifically note that the family physician’s records indicated normal range of motion on May 27, 2008, the day after the first accident and the same day that the words “pain neck, low back” and the sketch appear.  He also referred to notations in the clinical records for September 5, 2009 and December 18, 2011 that support his theory, but made no mention of other references that did not support his theory, such as the references to spasm.

[99]         Again, Dr. Manga’s records are not easy to read.  It would have been understandable if Dr. Grypma had refused to comment on the clinical records at all unless they were transcribed.  However, he clearly could read some of the entries and he relied on those that were consistent with his previously stated views.  He cannot overcome the inescapable conclusion that he cherry-picked entries, ignoring those that undermined his opinion.

[100]     Similarly, in his December 3, 2015 report, he noted that the history given to Dr. Hershler concerning symptoms the day after the first accident was materially different from that which he said Mr. Tathgur gave him such that clarification was required, but then he went on to reiterate the same opinion (that significant injury from the first accident was unlikely) based largely on the fact that Mr. Tathgur experienced little or no pain after that accident.  Again, by this time he also had Dr. Manga’s clinical records, which clearly indicated complaints of pain on the day after the first accident.

[101]     For the foregoing reasons, I find that Dr. Grypma lost sight of his duty to the court and instead became an advocate for the defence.  His evidence is inadmissible as a result.  Even if I was not prepared to exclude the evidence, for the same reasons I would give it no weight.  Further and in any event, as discussed below, I accept Mr. Tathgur’s evidence that he did have significant pain the day after the first accident.  Leaving aside concerns of bias, partiality and lack of independence, this finding is incompatible with a key footing for Dr. Grypma’s core opinion and, for that reason alone, I would give his opinion no weight.

Inspire Sports Victoria Opens Doors to BC's Biggest Gymnastics Facility

Written by admin on . Posted in Uncategorized.

Inspire Sports Victoria Logo
Apologies for this off-topic post but I am proud to announce that a project I have been involved with has reached completion.
Inspire Sports Victoria, BC’s largest and newest gymnastics facility, has opened its doors in Greater Victoria!  We had a great open house this weekend.  Thank you to everyone who came by!
We couldn’t be prouder of our team for their efforts in hosting an amazing open house or more grateful to everyone from greater Victoria who took the time to come through our doors!
With the open house complete our final flooring will be installed and final equipment assembled in the coming days.  Thank you everyone who helped make the dream of bringing a world class recreational and competitive gymnastics facility to Victoria a reality!  See you all at the gym this week!
I want to thank Cleve Dheensaw of the Victoria Times Colonist for this excellent article announcing our opening.
Inspire Sports Victoria caters to physical literacy for all, from entry level recreational classes to competitive training for elite athletes.
Our website can be found here and you can also follow us on Facebook and Instagram!