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Reasonable Disbursements – What's Good for the Goose is Good for the Gander

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Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, ordering a Defendant to disclose the cost of their medico-legal reports where they were contesting the reasonableness of the Plaintiff’s disbursements.
In the recent case (Sturdy v. Dhadda) the Plaintiff was injured in a collision and sued for damages.  The claim was eventually settled for $300,000 plus costs and disbursements.  The Defendant disputed the reasonableness of the costs of some the plaintiff’s expert reports.  The Plaintiff applied for and was granted an order for the Defendant to disclose the cost of their expert reports.  In finding this was fair District Registrar Nielsen provided the following reasons:
[18]         What these cases demonstrate is that a comparison of the same or like expert within the same litigation is relevant. By allowing the party who challenges the reasonableness of the assessments charged by the assessing party’s experts to cherry pick what accounts they will or will not disclose leads to selective and inconsistent disclosure. If disclosure suggests the other party’s accounts are too high, they are readily disclosed for that purpose. On the other hand, if they do not, those records, for strategic reasons, are simply not produced. In my view, this leads to an imbalance which requires the levelling of the playing field…

[29]         The onus of proving the reasonableness of the plaintiff’s expert’s charges clearly rests upon the shoulders of the plaintiff who is the assessing party. The accounts of the plaintiff’s experts have been disclosed and scrutinized by the defendants, following which the defendants have alleged those charges are unreasonable within the context of Supreme Court Civil Rule 14-1(5).

[30]         In these circumstances, where the defendants have served their expert reports upon the plaintiff, the amounts paid by the defendants to their experts in the same specialities, involving the same patient, with the same clinical history, will be relevant. While a comparison of fees and charges would not be determinative and is only a single factor in the analysis, it is a matter properly considered in the context of this case, where the defendants are directly challenging the reasonableness of the plaintiff’s experts’ accounts.

[31]         The plaintiff’s application is allowed with respect to Dr. Pullmer and Dr. Dost. The plaintiff’s application with respect to Dr. Grypma is dismissed. I am not satisfied that the evidence before me provides a sufficient basis to establish the relevance of the invoices of Dr. Grypma, orthopedic surgeon, to those of Dr. Adrian, physiatrist.

[32]         Since the plaintiff has been substantially successful, they are entitled to the costs of their application.

$25,000 Non-Pecuniary Assessment for 18 Month Aggravation of Pre-Existing Injuries

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Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages of $25,000 for the aggravation of chronic pre-existing injuries.
In this week’s case (Dorsey v. Bhindi) the Plaintiff was involved in a 2013 rear end collision.  Liability was not at issue.  The court voiced some credibility concerns regarding the plaintiff and did not accept her claim in its entirety.  The Court did accept, however, that the collision caused an 18 month aggravation of pre-existing symptoms.  In assessing non-pecuniary damages at $25,000 for these injuries Madam Justice Warren provided the following reasons:
[108]     In summary, I make the following findings on causation:

  • Ms. Dorsey injured her shoulders in the slip at work, but did not exacerbate that injury in the accident.  She currently suffers from frozen shoulder on the left side, but I am not persuaded that the accident caused or materially contributed to that condition.
  • The accident caused a temporary and relatively minor exacerbation of Ms. Dorsey’s pre-existing neck and back symptoms that gradually improved over about 18 months, and by late September 2014 Ms. Dorsey’s condition had returned to its pre-accident state.
  • Ms. Dorsey has suffered from some anxiety and depressive symptoms but I am not persuaded that the accident caused or materially contributed to those conditions.

[117]     Of the authorities cited by the defendants, Kearns v. Marples, 2009 BCSC 802, bears the most similarity to this case.  In that case damages were assessed on the basis that the 51-year-old plaintiff had suffered injuries to her shoulders, right elbow, and neck that largely resolved within about eight months, but for the right shoulder which remained injured and was predisposed to further injury which occurred in two subsequent motor vehicle accidents.  These injuries were superimposed on pre-existing conditions.  Non-pecuniary damages of $25,000 were awarded. In that case, Justice Verhoeven referred to Job v. Van Blankers, 2009 BCSC 230, where Justice Ker awarded non-pecuniary damages of $25,000 to a plaintiff who had suffered a mild to moderate soft tissue injury that resulted in sustained disability, pain and suffering, and interfered with the plaintiff’s life for about 14 months: Kearns at para. 134.

[118]     Awards of damages in other cases provide a guideline only.  Ultimately, each case turns on its own facts.  I have found that the accident caused a temporary and relatively minor exacerbation of Ms. Dorsey’s pre-existing neck and back symptoms that gradually improved over about 18 months.  The exacerbation was not so significant as to materially interfere with her ability to work.  There is very little evidence of any material impairment of her physical abilities or significant loss of lifestyle.  Considering the principles discussed in the cases referred to me and the criteria considered in the assessment of damages in Stapley, I assess Ms. Dorsey’s non-pecuniary damages at $25,000.

Arbitration Clause Derails CFL Concussion Lawsuit

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a CFL concussion lawsuit on the basis of wording in the league and player’s collective bargaining agreement.
In today’s case (Bruce v. Cohon) the Plaintiff, who played professional football with the CFL from 2001 – 2014, sued the league and its individual teams alleging that his career led to multiple concussions and sub-concussive injuries and he was negligently allowed to continue playing while displaying these symptoms.
The Defendants argued the Court had no jurisdiction to resolve the dispute as the league’s collective bargaining agreement required the complained to be dealt with via private arbitration.  In siding with the CFL and dismissing the lawsuit Mr. Justice Hinkson provided the following reasons:

[86]        Ultimately, the 2014 Collective Agreement allows for effective redress for any workplace injuries that Mr. Bruce may have sustained and thus is consistent with the policies of the Workers Compensation Board.

[87]        It is clear that at the time that he filed his notice of civil claim in these proceedings, Mr. Bruce, as a former player, could have filed a grievance under the 2014 Collective Agreement for compensation arising from the injuries for which he seeks compensation and based upon the duties he asserts in these proceedings.

[88]        He is still arguably eligible to file a grievance, although he would apparently require a ruling from an arbitrator to do so, as grievances under the 2014 Collective Agreement must be initiated within one year from the latter of the date of occurrence or non-occurrence upon which the grievance is based, or within one year from the date upon which the facts of the matter became known or reasonably should have been known to him.

[89]        There are no monetary limits to the compensation that a player can seek pursuant to the 2014 Collective Agreement.

[90]        Even if Mr. Bruce is not now permitted an extension of time to file a grievance, I accept the view of Mr. Justice Oland in Gillian at para. 46 that:

[46]      As stated in St. Anne Nackawic at p. 729 and in Weber at para. 54 and para. 57, the courts possess limited residual jurisdiction in certain situations involving labour relations. In this situation, where the appellant could have sought effective remedies under the Collective Agreement, there is no need for the exercise of that residual jurisdiction.

[Emphasis added.]

[91]        As Mr. Justice Joyce stated in Moznik v. Richmond (City), 2006 BCSC 1848 at para. 81:

The question is not whether the plaintiff can obtain the precise remedy she seeks through the court; it is whether she can obtain effective redress of the alleged harm through the mandatory arbitration provisions of the collective agreement and the Code.

[92]        I therefore find that Mr. Bruce was entitled to seek compensation by way of grievance and arbitration under the 2014 Collective Agreement for the matters raised in his notice of civil claim in these proceedings and had he done so, could have obtained a meaningful remedy for those complaints.

[93]        I find that the disputes raised by Mr. Bruce arise from the 2014 Collective Agreement and can only be resolved through the grievance and arbitration process.

[94]        In the result, I find that this Court lacks the jurisdiction to entertain Mr. Bruce’s claim and order that his notice of civil claim be struck in its entirety.

Unclear Prognosis Leads to Injury Trial Adjournment

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, granting an adjournment application in the face of uncertain medical evidence addressing prognosis.
In today’s case (Gee v. Basra) the Plaintiff was injured in a 2011 collision for whcih the Defendant accepted liability.  The Plaintiff had chronic headaches and the Plaintiff’s physicain was uncertain as to her prognosis noting that a course of Botox injections may prove helpful with the following evidence –

Jodene [the plaintiff] is now four years post injury and has fully participated in the range of therapy offered to her. She continues to experience significant headache, which interferes with her ability to perform at work, at home with household duties, and fully participate in social activities. Headache which is resistant to therapy after such a prolonged period of time has a low probability of recovery, but I feel I could not fully comment on prognosis until she has had a trial of Botox injections. I would recommend Botox, 200 units, every three months for a minimum of three cycles following the pre-empt Chase The Pain [sic] protocol.

The Plaintiff sought an adjournment on the basis of this evidence with the Defendant opposing noting the trial was set to commence in one week.  Master McDiarmid granted the adjournment noting that while the application was brought very late in the process an uncertain prognosis could lead to an unfair trial.  In granting the application the Court provided the following reasons:

[20]         I conclude that this is not a situation similar to Sidoroff. All questions affecting the justice of the case will not be before the trial judge. He will not know whether Botox is effective to ameliorate the headaches. The judge will not even be able to have estimates of the chance of the Botox working. No such evidence is in the materials, and in fact in the passage I previously cited from Dr. Spacey, she cannot fully comment on prognosis until the plaintiff has undergone a trial.

[21]         That prejudice caused to the plaintiff if she cannot undergo the treatment and assess its results significantly outweighs prejudice to the defendants, who, as noted, have admitted liability. The prejudice to the defendants can be ameliorated largely in costs.

[22]         Accordingly, I grant the adjournment with the following terms:

1)     The defendant is entitled to costs thrown away, which I am going to assess summarily at $1,000. That is for trial preparation. They are also entitled to full reimbursement for the cost for arranging videoconferencing testimony of Dr. Richards. Those costs are to be set off from any amount recovered by the plaintiff; in other words, they are not payable forthwith;

2)     The defendant is entitled to a further independent medical examination of the plaintiff by a specialist of its choosing; and

3)     The defendant is entitled to a further half day discovery.

$30,000 Non-Pecuniary Assessment for Aggravation of Chronic Pain

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for the aggravation of a long standing chronic pain disorder.
In today’s case (Ben-Yosef v. Dasanjh) the Plaintiff was struck in 2011 by the Defendant’s vehicle while crossing a cross-walk.  The Plaintiff suffered from a pre-existing and longstanding chronic pain disorder.    The collision resulted in soft tissue injuries and aggravated the pre-existing condition.  In assessing non-pecuniary damages at $30,000 Mr. Justice Bowden provided the following reasons:

[52]        I am not prepared to attach much weight to the plaintiff’s description of the change in his condition following the 2011 accident without corroboration from someone other than Ms. Ben-Yosef and their son.

[53]        The evidence shows that the majority of the symptoms that the plaintiff attributes to injuries from the 2011 accident probably were present before that accident. The expert evidence is that the plaintiff was suffering from chronic pain syndrome before the 2011 accident. It appears that he was taking anti-inflammatory drugs before that accident as well as medication for hypertension and pain.

[54]        The 2011 accident was not significant. While the plaintiff was knocked down in a cross walk, he described the event to his family doctor as being “bumped”. He said that he got up, exchanged information with the defendant and then continued on his way to do some shopping before going home.

[55]        Nevertheless, I accept that the plaintiff suffered some soft tissue injuries to his lower back and left hip and that the 2011 accident caused some aggravation to his pre-existing chronic pain…

[60]        While I accept that the plaintiff’s pre-existing condition was somewhat aggravated by the 2011 accident, he had developed chronic pain syndrome before that accident presumably following his injuries in the 1998 accident. Some of his continuing symptoms also appear to be related to the degeneration which has occurred in his spine which is unrelated to the 2011 accident.

[61]        It is difficult to differentiate the impact of the 1998 accident and the 2011 accident on the plaintiff’s quality and enjoyment of life. It appears that the 1998 accident left him unable to work, caused him intermittent pain that ultimately became chronic and limited his activities. The 2011 accident aggravated his condition somewhat but the degree of aggravation cannot be determined with any certainty.

[62]        I have concluded that in the circumstances of this case and considering the factors in Athey, an award of $30,000 is appropriate.

ICBC Ordered to Pay $350,000 in Punitive Damages for False Fraud Allegation

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering ICBC to pay $350,000 in punitive damages for malicious prosecution following assertions that the Plaintiff acted fraudulently following a pedestrian collision.
In today’s case (Arsenovski v. Bodin) the Plaintiff was walking with her husband when he was struck by a vehicle.  The Plaintiff was not struck by the vehicle but did fall down and suffer some modest injuries during the incident and she reported this to ICBC.  Specifically she told ICBC that “the last thing I remember was stepping off the curb to cross the street.   I don’t know how far we had walked on the street.  The next thing I remember was being on the pavement“.
ICBC, through a Special Investigations Unit officer employed with them,  requested that Crown Counsel prosecute the Plaintiff for fraud as she was not struck by the vehicle.  Charges for making a false statement to ICBC were approved.
The problem is the statement was not false.  The charges were stayed on the day of the start of the criminal trial.
The Plaintiff sued ICBC for malicious prosecution and succeeded with Madam Justice Griffin finding that ICBC’s false fraud allegations and actions were “so high-handed,  reprehensible and malicious that it offends this Court’s sense of decency“.  In finding $350,000 in punitive damages were appropriate the Court provided the following reasons:
Screenshot decision

$40,000 Non-Pecuniary Assessment for Bicep Tendon and Soft Tissue Injuries

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a bicep tendon injury along with some soft tissue damage.
In today’s case (Pavan v. Guolo) the Plaintiff was involved in a 2010 T-bone collision caused by the Defendant.  The Plaintiff suffered a strain to the tendons in his right bicep along with soft tissue injuries to his shoulder and low back.  The Plaintiff missed little time from work but some of his symptoms persisted at the time of trial albeit not significantly.  In assessing non-pecuniary damages at $40,000 Mr. Justice Butler provided the following reasons:

[21]         Counsel for both parties provided detailed written argument to explain why I should accept their positions regarding the nature of the plaintiff’s injuries and the duration of the symptoms. I thank them for the thorough and detailed argument. I much prefer the defendants’ approach to the assessment of causation and analysis of the evidence. In other words, it is preferable to consider the three symptomatic areas separately and assess the development of symptoms in light of all of the evidence including the limited medical evidence. When I do that, I make the following findings of fact regarding injuries and the duration of symptoms:

1)       Right Arm:  The plaintiff suffered a strain to tendons in his right biceps. That injury has improved significantly over time, but has not resolved and will likely not do so. However, it is not disabling and does not significantly impact the plaintiff’s activities. It still causes the plaintiff momentary discomfort when he performs certain activities.

2)       Right Shoulder:  The plaintiff suffered a grade 2 strain to his neck, upper back and right shoulder. This was the most serious injury sustained in the accident. That injury substantially resolved within about 18 months of the accident. The accident left the shoulder susceptible to what the plaintiff calls flare-ups or aggravations. The plaintiff does not have ongoing persistent pain or discomfort. His occasional flare-ups do not last for long and are not disabling.

3)       Low Back:  The plaintiff suffered a very mild low back strain in the accident. That injury resolved in a few months. The incidents of low back pain suffered by the plaintiff since that time are unrelated to the injuries suffered in the accident.

…

[45]         Of course, the appropriate award for non-pecuniary loss must take into account, all of the particular circumstances of the plaintiff before the court. The cases cited by counsel were helpful as a guide. I do not propose to examine and compare those cases with the facts I have found here. I will note that the cases relied on by the defendants involved circumstances that are somewhat closer to the facts I have found with regard to the nature of the soft tissue injuries with an exception. I have concluded that the plaintiff has ongoing difficulties with his right arm, albeit relatively minor, and that his right shoulder can still have flare-ups, which are contributed to by the injuries suffered in the accident. Further, the cases cited by the defendants are somewhat dated.

[46]         When I consider all of the relevant factors in light of the facts I have found, I conclude that a fair award for non-pecuniary damages is $40,000.

$31,000 Non-Pecuniary Assessment for Orbital Floor Fracture

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Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, assessing damages for an orbital floor fracture at $31,000.
In today’s case (Bunna (Guardian ad litem of) v. Bunah) the Plaintiff, who was 5 at the time of the collision, was involved in a 2012 crash.  He suffered a fracture to his orbital floor along with some lingering anxiety following the crash.  In assessing non-pecuniary damages at $31,000 Madam Justice Watchuk provided the following reasons:

[13]         The most serious injury sustained in the accident was a displaced fracture of the orbital floor on the right side of his face.  It also healed.  The orbital floor is adjacent to the maxillary sinus and it is not known if there was also a fracture of the maxillary sinus.  As surgery was not required, there was no further investigation of the fracture and possible fracture which would be adjacent to each other in this young boy’s facial area. 

[14]         The extensive swelling was described by a doctor on February 20, 2012 to be “severe swelling in the right facial region with severe bruising, almost unable to open his right eye”.  The bruising lasted a maximum of six months.  There has been no scarring.

[15]         In summary, during the night in the hospital in Mackenzie, Julien had pain and cried quite a bit as he did on the way home to Quesnel.  He had some pain for a few weeks, and for few months he had occasional pain if his face was touched.  He had some anxiety for about six months following the accident.  The long-term effect has been upset and stress and crying from the worry when his mother is late.  He worries that she has been in a car accident if she is late.  This has occurred ongoingly, and a couple of times in 2015, most recently in November 2015…

[18]         With regard to the nature of the injury, the most serious is the fracture of the orbital floor on the right side of the face.  It was accompanied by extensive bruising and swelling.  It resolved without surgery within six months.

[19]         With regard to loss or impairment of life, emotional suffering and severity of duration of pain, due to Julien’s young age at the time, just turned five years old, the evidence is obtained primarily from his aunt’s observations in her frequent visits with him.  From the descriptions, Julien is a stoic and resilient child and recovered quickly, also within six months.  The only lingering effect is that he becomes fearful and upset when his mother is late in arriving to pick him up because he is worried that there has been another accident.  This fear has occurred repeatedly.  In 2015 it happened twice when his mother was late, most recently in November 2015…

[23]         In this case particular weight is given to the plaintiff’s age, his stoicism in the circumstances of the accident, and the emotional suffering of such a young plaintiff.  Non-pecuniary damages are assessed at $31,000.

Court of Appeal Split on Whether Credibility Finding on Misapprehended Evidence Warrants New Trial

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Reasons for judgement were released today with split reasons but the BC Court of Appeal addressing whether a new trial is warranted where a Court makes an adverse credibility finding based in part on misapprehended evidence.
In today’s case (Zajaczkowski v. Grauer) the Plaintiff was injured in a collision and sued for damages.  At trial the Plaintiff’s diminished earning capacity claims were dismissed with the Court finding there were issues with the Plaintiff’s credibility.  The trial judge misapprehended some of the Plaintiff’s evidence with respect to his education.  The Plaintiff’s appeal was dismissed but dissenting reasons were provided finding a a new trial was warranted in these circumstances.
The majority provided the following reasons:
[44]         While the judge clearly accepted the thrust of this evidence, which was evidence of fatigue and pain, he also found that it afforded “an insufficient factual underpinning for any compensation for loss of earning capacity”. In my view, the inability of the trial judge to find a factual underpinning for the claim lay not in an error of law; the trial judge expressly noted, at para. 51, that “a plaintiff need only show a real and substantial possibility of a future event leading to an income loss, in accordance with Perren v. Lalari, 2010 BCCA 140”. The claim for loss of earning capacity failed because the judge found the appellant had not met the evidentiary burden described in Perren. He did not accept the appellant’s own evidence of his limitations. The witnesses provided some anecdotal evidence of occasions when the appellant was limited in his work but that did not establish the appellant was, overall, unable to work as much as he had worked before his injury. As the respondents’ counsel submitted, the impact of the appellant’s lingering pain upon his capacity to work may have been so minimal as to be difficult to assess. I cannot say the trial judge erred in coming to the conclusion that the evidence did not support a claim under this head of damages. I would also dismiss the appeal founded upon this argument.
In dissent Madam Justice Saunders reasoned as follows:
[53]         The question on both past and future earnings loss is not whether the appellant’s income was diminished or will be diminished from that which he had earned before the accident, but whether it was diminished or will be diminished from that which he could have earned but for the accident. It appears that the appellant’s business was thriving, considerable work was available to him and it was, in the vernacular, a time in which he could “make hay”. If the appellant’s earnings were lessened by reason of the injury from the accident, the appellant is entitled to be compensated for the diminishment.
[54]         The evidence of the three witnesses discussed above supports the appellant’s evidence that from time to time his injury limited his hours and intensity of work. If accepted, the evidence of these witnesses alone, and combined with the appellant’s evidence, supported a claim for past wage loss of some amount, and possibly a claim for future wage loss on the capital asset approach of Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.)per Finch J., although certainly not in the scale claimed by the appellant at trial.
[55]         The judge did not review the evidence of these witnesses in any detail and said only that “I accept the thrust of the evidence from those witnesses, that Mr. Zajaczkowski had less energy and more pain after the accident”. The judge concluded, “Their testimony … did not lead to the further conclusion, that in the result, the Plaintiff worked less overall and earned less overall.”
[56]         It is here, I consider, that the judge’s assessment of the appellant’s credibility creates the impact that requires this court to interfere with the order appealed. In my view, one cannot say that absent the error in that credibility assessment, there would have been such a lack of credit given to the substance of the evidence of these witnesses. In other words, the misapprehension of evidence in the credibility assessment leaks into the result of the trial, with the effect that the order made by the judge in respect to earnings loss cannot stand, in my view.
[57]         In reaching this conclusion I have not addressed the last strong conclusion of the judge concerning evidence of the Balano invoice. I agree that such evidence was understood correctly by the judge, and that alone it could have supported rejection of the appellant’s evidence. However, the judge made the appellant’s evidence of his education one leg of what was a relatively brief discussion of credibility, and that leg is broken.
[58]         I would echo the words of Mr. Justice Hall in Loveridge v. British Columbia, 2007 BCCA 425: “The appellant was entitled to a correct consideration of the full substance of his case”. In the circumstances I have described, I do not consider the appellant received that consideration. I therefore conclude that the appeal should be allowed and a new trial ordered.
 

Revenge Porn Leads to $100,000 Award in First of its Kind Case in Canada

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When a person shares sexually explicit images with another in confidence and has that confidence betrayed by the recipient posting the images publicly on line are there recognized grounds to sue for damages?  A recent case in Ontario considered this for what I believe to be the first time and  found that such actions indeed attract liability under the existing framework of Canadian tort law.
In the recent case ( Jane Doe464533 v. Doe h/t to the Globe and Mail’s Sean Fine for sharing the case) the court set out the following facts
Screenshot caselaw
 
The video was on line for three weeks and the amount of views it received was unknown.  Justice Stinson awarded $50,000 in compensatory damages, $25,000 in aggravated damages and a further $25,000 in punitive damages along with interest and costs.
In finding this conduct to be tortious the court concluded that the torts of Breach of Confidence, Intentional Infliction of Mental Distress and Invasion of Privacy were all made out by such behavior.