Uncategorized – Page 31

Liberal Use of Discovery Transcripts Granted in Case of Indivisible Injuries

Written by admin on October 27, 2015. Posted in Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, considering whether defendants in separate actions could use each others examination for discovery transcripts of the Plaintiff in trial.
In today’s case (Elworthy v. Tillit) the Plaintiff alleged personal injury from two separate matters. Both parties agreed the separate lawsuits should be heard together given overlapping injury but could not agree if both defendants could use the Plaintiff’s examination for discovery transcripts from the separate actions. In finding they could Master Bouck provided the following reasons:

6] The defendant Stewart led the submissions on the law with references to several common law authorities including Gill v. Gill, 2013 BCSC 2365. In that case, the court decided that the implied undertaking rule could be waived so that a transcript of the plaintiff’s examination for discovery in a Part 7 action could be used in the plaintiff’s tort action, and vice versa.

[7] Although not precisely the same factual matrix as the case at bar, I find that the legal analysis and result in Gill v. Gill should be followed here. The same concerns raised by the plaintiff in this case were considered and rejected by the court in Gill. Here, the issues of causation and indivisible injuries provide the commonality between the actions.

[8] The defendants differ on the language to be used in this particular case plan order. In my view, the appropriate language is that found in Peel v. Western Delta, 2003 BCSC 784 at para. 30. The order pronounced is that the evidence that is otherwise admissible and relevant, obtained at the examination for discovery in Victoria Registry action no.14-0946 (either concluded or future) will be admissible both in that action and in Victoria Registry action no. 15-2263 as if the evidence had been obtained in the other action.

Failing to Overtake Traffic "As Quickly and as Reasonably As Possible" Found Negligent

Written by admin on October 22, 2015. Posted in ICBC Liability (fault) Cases, Uncategorized.

Update July 20, 2016 – the below decision was overturned today by the BC Court of Appeal.
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Interesting reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that it is negligent for a motorist to not drive ‘as quickly and as reasonably as possible‘ when overtaking another vehicle on a highway.
In today’s case (Borgiford v. Thue) the Plaintiff vehicle was in the left hand lane of a highway overtaking tractor-trailers who were travelling at a low rate of speed as they ascended a steep hill. The Plaintiff vehicle’s motorist was a ‘timid’ driver and was overtaking the slow moving vehicles at a speed of 85 kmph despite a speed limit of 110 kmph. At the same time a Suburban approached the vehicles at a high rate of speed, clipped one of the slow moving tractor-trailers and lost control resulting in apparent profound injuries to his passengers.
The Court found the speeding motorist clearly negligent but went on to find the slow passing plaintiff vehicle was also negligent for not passing the tractor trailers as quickly as possible. In reaching this finding Mr. Justice Rogers provided the following reasons:
[99] In my view, the standard of care owed by a reasonable and prudent driver in Mrs. Boizard’s situation required that hypothetical driver to overtake Mr. Einarson’s unit as quickly as reasonably possible. I find that is the standard because the speed limit on the highway was 110 kph and any reasonable operator on that road would have known that motorists often go faster, sometimes much faster, than the speed limit. A reasonable driver in Mrs. Boizard’s situation would have known that for so long as he was in the left-most lane the entire width of the highway was occupied by relatively slow moving traffic. A motorist approaching from the rear and traveling at 110 kph would find his way blocked by the slower vehicle in the left-most lane.

[100] I must therefore ask myself: was Mrs. Boizard overtaking Mr. Einarson as quickly as reasonably possible? Here Mr. Fiorin’s opinion does not really help Mrs. Boizard. That is because the key element of Mr. Foirin’s opinion is that operators of large vehicles are entitled to take steps to keep up the momentum of their units as they ascend a hill. That may be true, but it does not apply to Mrs. Boizard. That is because on Mrs. Boizard’s own evidence the pickup truck she was driving was capable of going up Larson Hill faster than 85 kph. This was not a case of the Boizard truck struggling to keep up its speed of 80 to 85 kph. This was a case of Mrs. Boizard making a conscious and deliberate decision to not go faster than 85 kph.

[101] I do not doubt Mrs. Boizard’s sincerity when she testifies that she felt that it was safer to go 85 kph while passing Mr. Einarson. However, her subjective opinion cannot carry the day. The real question is whether a reasonable and prudent motorist in her situation could have and would have overtaken Mr. Einarson more quickly. The evidence does not satisfy me that a higher speed for the camper while passing would, in fact, have created an unsafe circumstance for either the Boizards or Mr. Einarson. I am thoroughly satisfied, however, that clearing the left-most lane would have created a safer circumstance for other motorists approaching from the rear. Put another way, the less time that Mrs. Boizard stayed in the left-most lane, the safer it would be for other, faster traveling, motorists who also wished to overtake Mr. Einarson’s unit.

[102] In short, I find that Mrs. Boizard was a timid driver – she could have driven her camper faster and could have overtaken Mr. Einarson’s tractor-trailer more quickly. Instead, Mrs. Boizard chose to drive at a relatively leisurely pace and in so doing, she blocked the left-most lane for a longer period of time than was reasonably necessary. I find that Mrs. Boizard’s decision to drive as slowly as she did and to occupy the overtaking lane for as long as she did fell below the standard of care that she owed to other users of the highway. I find that she was negligent in that regard.

[103] The question now arises whether either of Mrs. Boizard’s negligent acts was a cause of the accident. As we know from Athey it is not necessary that Mrs. Boizard’s negligence be the sole cause of the accident. The law is also clear that causation is not determined by which of the defendants had the last clear chance to avoid the mishap. All that is necessary is for Mrs. Boizard’s negligence to be a cause; that is to say, but for her negligence, the accident would not have happened.

[104] In my view, the link between Mrs. Boizard’s negligence in changing lanes as she did is too weak to support a finding that that particular act caused the accident. I have come to that conclusion because the Thue Suburban was not in sight when Mrs. Boizard changed lanes. The Suburban came around the first curve on Larson Hill after Mrs. Boizard was in the left-most lane. The lane change itself did not put Mr. Thue and his passengers in jeopardy.

[105] However, had Mrs. Boizard accelerated her camper to a reasonable overtaking speed, she would have blocked the overtaking lane for a shorter period of time. Given that when the accident happened the camper was at the junction between Mr. Einarson’s tractor and trailer, it would not have taken much more speed on Mrs. Boizard’s part to have gotten past Mr. Einarson ahead of Mr. Thue’s arrival. In my opinion, there is a sufficient causal link between Mrs. Boizard’s decision to overtake at a leisurely pace and the accident to support a finding that but for that decision, the accident may not have happened. Put another way, in order for the accident to have happened the way it did, it was necessary for Mrs. Boizard to have blocked the overtaking lane.

Indivisible Injuries Cannot Get Around the Worker/Worker Defence to Recovery

Written by admin on October 19, 2015. Posted in Uncategorized.

Update May 16, 2016 – the below decision was apparently appealed and a settlement was reached prior to judicial disposition. For a case calling the below reasoning “highly debatable” you can click here.
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Adding to this site’s archives addressing the law of indivisible injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether the principle of indivisible injury allows a claimant to collect damages for a claim that is otherwise barred by the Workers Compensation Act. In short the Court ruled that this cannot be done.
In today’s case (Pinch v. Hofstee) the Plaintiff was injured in a 2010 collision and sued for damages. In 2013 the Plaintiff was involved in a second collision which proceeded through WorkSafeBC as both motorists were in the course of their employment at the time.
At the trial for the first collision the Court found that both crashes resulted in indivisible injury. The general rule with indivisible injuries from two non at-fault events is that the Plaintiff can seek full compensation for these from a single tortfeasor. In finding this general rule does not apply in the case of indivisible injuries contributed to by an event caught by the worker/worker bar Mr. Justice Burnyeat provided the following reasons:

[53] Having concluded that the injuries suffered were indivisible, the question that arises is whether Mr. Pinch is in a position to claim against Mr. Hofstee for the injuries suffered by him in MVA #2. Despite my conclusion that the injuries suffered by Mr. Pinch in MVA #1 and MVA #2 were indivisible, I nevertheless conclude that Mr. Pinch is not in a position to claim damages against Mr. Hofstee arising out of the injuries that were incurred as a result of MVA #2. I am satisfied that the effect of s. 10 of the Act precludes seeking damages arising from what are said to be indivisible damages.

[54] Section 10(1) of the Act makes it clear that the provisions of that Part of the Act are “…in lieu of any right and rights of action, statutory or otherwise, founded on a breach of duty of care or any cause of action…” [emphasis added]. Therefore, s.10(1) refers not only to “rights of action” but “any right…founded on a breach of duty of care or any other cause of action…” I am satisfied that the “right” to claim for recovery for indivisible damages is a right that is precluded by s. 10(1) of the Act, being a right which is separate and distinct from a right to commence an action. In this regard, s. 10(1) provides not only that the provision of the Part of the Act is in lieu of “any right and rights of action…” founded on the breach of duty of care that Mr. Pinch may have against an employee or an employer but also that “no action in respect of it lies” and that “any right…founded in a breach of duty of care” is precluded. I am satisfied that this precludes any right that Mr. Pinch may have which is founded on a breach of duty of care by Mr. Hofstee.

[55] The purpose of this section of the Act is to remove from the jurisdiction of the court the ability to deal with the rights of employees such as Mr. Pinch and the liability of employers when personal injuries are suffered in the course of employment. In this regard see DiCarlo v. DiSimone (1982), 39 O.R. (2d) 445 (H.C.) and Mitrunen v. Anthes Equipment Ltd. (1984) 57 B.C.L.R. 287. In Mitrunen, Gould J. dealt with an action against Dominion Construction Company Limited which was an employer and Anthes Equipment Ltd. that was not. After citing with approval the decision in DiCarlo, supra, in deciding that he was not bound by the unreported decision in Middleton v. Chen (C810663‑October 25, 1982), Gould J. determined that the Act governed and that it relieved the non‑employer defendant for liability for damages caused by the fault of the employer defendant. On appeal, (1985) 17 D.L.R. (4th) 567, Seaton J.A., on behalf of the Court made this statement:

Section 10 first, in s-s (1), takes away the plaintiffs right of action against his employer and against co-employees. Subsections (2) to (5) deal with compensation and the bringing of an action against others. Subsection (6) talks about the worker, his dependant or the board bringing an action against some person other than an employer or worker. Subsection (6) thus leads logically to s-s (7) which, in its beginning words, clearly encompasses actions against those not employers or fellow workers. What it then says is that in that action if it is found that the death was due partly to a breach of duty of the employer or worker, then no damages are recoverable for the portion of the loss or damage caused by the negligence of the employer or worker. It does not say no damages are recoverable against the employer or worker; it is simply no damages are recoverable. On the face of it that must mean against anyone. The subsection, as I have mentioned, deals with an action brought against some person other than an employer or worker and it deals with actions brought by workers, dependants or by the board. It does not appear to deal with actions against employers or workers; they are covered by s-s (1).

(at para. 14)

[56] The statement of Seaton J.A. is clear – “No damages are recoverable”. I am satisfied that the decisions in Mitrunen, supra, relieve a non‑employer defendant such as Mr. Hofstee from liability for damages caused by his or her fault.

[57] Section 10(2) reinforces this interpretation as it describes the ability of Mr. Pinch to “claim compensation” or “bring an action”. I cannot conclude that the ability to “claim compensation” expands the right of Mr. Pinch to claim against Mr. Hofstee that which he could not claim directly against the driver of the vehicle involved in MVA #2.

[58] Section 10(7) of the Act also re-enforces this interpretation of s. 10(1) of the Act as it is clear that “no damages, contributions or indemnity are recoverable for the portion of the loss or damage caused by the negligence of that employer or worker…” If no “damages, contributions or indemnity” are recoverable by Mr. Pinch against the other driver involved in MVA #2, I cannot conclude that the indivisible damages caused by the negligence of the individual who caused MVA #2 would be recoverable against Mr. Hofstee.

[59] Section 10(7) of the Act is broad enough to exclude the ability of the Mr. Hofstee to claim contribution or indemnity against the driver involved in MVA #2: Storey v. Canada Post Corp. (2006) 55 B.C.L.R. (4th) 131 (C.A.) at paras. 42‑45. It could not have been intended by the Legislature that there be an exception to the general rule that no damages were recoverable and that a claim for contribution was not available, but that the full amount of the damages from MVA #1 and MVA #2 would be available against Mr. Hofstee despite the fact that he would not be in a position to look to the driver involved in MVA #2 for contribution. I conclude that the effect of s. 10(7) of the Act was intended by the Legislature to protect not only those who were immune from suit under the scheme created by the Act from exposure to joint liability but also those who were not in a position to call upon another tortfeasor for contribution.

[60] I conclude that the Legislature has made it clear that the principles set out in Bradley, supra, do not apply where there is a statutory bar to recovery of what may be found to be indivisible damages. Section 10(1) of the Act is but one example of the inability to recover indivisible damages arising out of a separate breach of duty of care. A further example might be illustrated by a situation whereby proceedings relating to a first tortious act were not commenced within the limitation period and a second tortious act occurred. In those circumstances, I cannot conclude that damages would be available where an action was not commenced relating to the first act, a subsequent act caused injuries which were found to be indivisible from the first act, and a claim was advanced against the second tortfeasor for damages for the injuries caused both by the first and the second tortious acts. Just as a claim for damages for a second tortious act could not “give life to” recovery of damages for a first act where a limitation period had expired so also s. 10(1) of the Act has taken away “any right and rights of action” available to Mr. Pinch and any recoverable “damages, contributions or indemnity” that might have been available to Mr. Pinch as a result of MVA #2.

[61] I propose to deal with the damages suffered by Mr. Pinch as a result of MVA #1 as if MVA #2 had not occurred. However, despite finding that the damages suffered in the two accidents were indivisible, I will then assess separately those damages which I can attribute only to MVA #2. I do so in order to comply with s.10(7) of the Act which requires that I determine “…the portion of the loss or damages caused by…[the negligence of the driver in MVA #2]…although the…worker is not a party to the action”. While it may seem inappropriate to determine the loss or damage caused by the driver involved in MVA #2 where a determination has been made that the damages arising out of MVA #1 and MVA #2 are indivisible, where the driver involved in MVA #2 is not a party to these proceedings, and where there has been no finding of liability for MVA #2, I will nevertheless do so because that is what is required under s. 10(7) of the Act.

Court Rejects Request to Produce Settlement Documents From Previous Injury Claim

Written by admin on October 16, 2015. Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing a request to produce documents relating to the settlement of a previous personal injury claim in the prosecution of a subsequent claim.
In today’s case (Gamble v. Brown) the Plaintiff was injured in a 2009 collision, brought a claim for damages and ultimately settled. She was then injured in a 2011 collision. In the current lawsuit the Defendant requested broad production of the previous file information including “any mediation brief, settlement letter, file memo, communication or similar document” . The Plaintiff agreed to produce relevant medical records but not all records captured in the broad request. The Defendant applied to court for an order to produce these documents but this was dismissed. In finding the sought order was inappropriate Master Taylor provided the following reasons:

[29] In the case at bar, the first accident occurred on March 19, 2009. The subject accident occurred on September 1, 2011. By account of some of her physicians, and at least one expert report prepared for the defendant, the plaintiff was doing well and not suffering any effects from the 2009 accident well before the occurrence of the 2011 accident.

[30] As well, the plaintiff has offered the defendant a letter from her previous solicitor confirming the terms of the settlement she received for the injuries she sustained in the 2009 accident, together with medical-legal documents from the previous accident.

[31] In this case, I am of the view that the defendant/applicant has not shown that the public interest in preventing double compensation has taken precedence over the public interest in encouraging settlement such that I should order the production of the mediation brief, settlement letter, file memo, communication or similar document prepared by the plaintiff’s previous solicitor.

[32] The final question becomes whether or not the plaintiff should place any terms on the production and disclosure of the documents she has provided to the defendant. In my view that is a matter for the trial judge to determine at the outset of the trial and in the absence of the jury, aside from the issue of the plaintiff maintaining her solicitor-client privilege with Mr. Wytrychowski, which should be preserved in any event.

[33] In conclusion, I determine that the defendant has not satisfied me that I should order breach of the settlement privilege attached to the documents prepared by the plaintiff’s previous counsel for the plaintiff in the 2009 Alberta case. Accordingly, the defendant’s application is dismissed with costs to the plaintiff.

Court Critical of ICBC Practices Following Hit and Run Collisions

Written by admin on October 14, 2015. Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, with critical comments aimed at ICBC for their practices in dealing with hit and run claims.
In today’s case (Fitger v. John Doe) the Plaintiff was injured by the actions of an unidentified motorist. The Plaintiff contacted ICBC shortly after the collision and “essentially took the actions suggested by his ICBC claim adjuster“. In the lawsuit for damages ICBC then raised the standard s. 24 defence arguing the Plaintiff did not take all reasonable steps to identify the at fault motorist. The Plaintiff argued the defense should be struck as he relied on ICBC’s guidance. The court, while critical of ICBC’s practices, noted their actions did not go so far as to strip them of the protections of the statutory defense. In addressing ICBC’s practices Mr. Justice Meiklem commented as follows:
[10] Ignorance of the provisions of s. 24(5) is not an uncommon phenomenon. I do not know whether ICBC has a policy of deliberately not informing claimants such as Mr. Fitger of their s. 24(5) obligations, but there certainly does appear to be a practice of not advising claimants of their obligations, despite comments from the court about the unfairness that is apparent when lay people place reliance on claims being processed as if valid, and are then belatedly faced with the invocation of s. 24(5) if settlement is not reached: Springer v. Kee, 2012 BCSC 1210 at paras. 82-93 and Li v. John Doe 1, 2015 BCSC 1010 at paras. 105-116…

[16] While the doctrine of estoppel can, as a general proposition, be applied in respect of interfering with statutory rights, s. 24(5) of the Act is as much about creating an obligation on the courts to enforce an obligation on a class of claimants in the cause of preventing fraudulent claims as it is about providing a defence to ICBC.

[17] In my view, ICBC’s failure to inform the plaintiff of his s. 24(5) obligation was ill-advised from a public interest perspective. To continue to process his claim without comment on his accident-day inaction and then surprise him by pleading and pursuing a s. 24(5) defence was unfair from the plaintiff’s perspective. These facts do not, in the circumstances of this case, amount to conduct warranting the application of the doctrine of estoppel to the limited remaining issue in regard to s. 24(5).

Passengers Operating Vehicles are "Users" Covered By ICBC Insurance Scheme

Written by admin on September 23, 2015. Posted in Uncategorized.

Important reasons for judgement were released today by the BC Court of Appeal addressing the scope of ICBC insurance coverage when a collision is caused by a passenger intervening in the use and operation of a vehicle.
In today’s case (Felix v. ICBC) the Plaintiff was driving her vehicle when her boyfriend, who was riding as a passenger, “grabbed the steering wheel causing the vehicle to leave the highway and overturn.” He was killed in the collision and the Plaintiff suffered numerous physical injuries.
The passenger was found at fault for the crash. The Plaintiff, who was a verbatim reporter, suffered injuries which seriously compromised her abilities both vocationally and recreationally. The matter proceeded to trial and damages of over $800,000 were assessed. The Defendant motorist was insured with ICBC at the time. ICBC refused to pay arguing they had no responsibility to cover the damages.
The trial judge sided with ICBC and found no coverage existed in these circumstances. The BC Court of Appeal overturned this judgement finding the trial judge erred. In finding ICBC liable to cover the damages the Court provided the following reasons:

[46] The word “use” is to be considered in the context of the legislative scheme to provide “access to compensation for those who suffer losses” as a result of a motor vehicle accident, along with the legislative history, context and jurisprudence noted above. The word has been given a broad meaning in other judicial authorities. Considering all of these factors, as noted in Rizzo Shoes, I can only conclude that the word “use” in s. 63(b) includes use by a passenger in a motor vehicle when it is used as a motor vehicle.

ii) In the context of the facts of this case, is there some nexus or causal relationship between Ms. Felix’s injuries and the use of her vehicle by Mr. Hearne?

[47] The Court in Vytlingam addressed the issues of causation at para. 25, and said:

For coverage to exist, there must be an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made.

[48] I would adopt the analysis and rephrase it in this context, as, “For coverage to exist, there must be an unbroken chain of causation linking the conduct of the user as a user of a motor vehicle to the injuries in respect of which the claim is made.”

[49] In Amos, the Court said, at para. 26, “Generally speaking, where the use or operation of a motor vehicle in some manner contributes to or adds to the injury, the plaintiff is entitled to coverage.” See also Westmount (City) v. Rossy, 2012 SCC 30 at para. 42.

[50] While a passenger, or user, in a moving automobile, Mr. Hearne grabbed the steering wheel causing the accident that led to Ms. Felix’s injuries. It matters not for these purposes that he did not intend to take control of the car. He intentionally (and negligently) grabbed the wheel while he was “using” the vehicle. As a result, Ms. Felix suffered injury. There is, in my view, a clear unbroken chain of causation from his negligent act to her injuries. I would not disagree with the trial judge on this point.

Hospital Found Liable For Brain Injury Following Patient Suicide Attempt

Written by admin on September 22, 2015. Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a hospital liable for a profound and permanent brain injury a patient suffered during a suicide attempt by hanging while in the care of the Defendant.
In today’s case (Paur v. Providence Health Care) the Plaintiff “suffered a brain injury when he attempted suicide by hanging in a bathroom at St. Paul’s Hospital“. He was there certified under the mental health act following having suicidal thoughts. In finding the hospital was negligent in their care of the Plaintiff and finding them liable for his damages Madam Justice Griffin provided the following reasons:

[6] I have conclude that SPH was negligent because, in summary:

a) as part of its patient mix, SPH had a large number of suicidal, intoxicated patients treated in the ER who were certified and held involuntarily, many of them held in the Comox Unit;

b) SPH knew or ought to have known of the real risk that a suicidal, intoxicated certified patient might attempt suicide by hanging in the hospital;

c) SPH knew or ought to have known that the bathroom in the Comox Unit was unsafe for such a patient as the bathroom had not been made ligature-proof;

d) SPH knew or ought to have known that the risk to a patient who attempts hanging is a very grave risk, as serious irreversible brain damage can be done to the patient quickly, within the range of five minutes, and the hanging can be fatal beyond ten minutes; and

e) SPH had no policies or protocols for nursing staff in place to ensure that such patients were not permitted to be unmonitored in an unsafe locked bathroom for a period of time approaching five minutes or more.

[7] This is not a case where, in the exercise of clinical judgment as to the degree of suicide risk Mr. Paur presented, medical professionals made a decision to allow Mr. Paur the freedom to be unmonitored for a period of time in an environment in which he might attempt hanging. Because he was intoxicated, Mr. Paur’s level of suicide risk had yet to be assessed beyond the fact that he was a suicide risk.

[8] Nor is it a case where, after weighing the known risks, costs and benefits, SPH made a decision as to how to deal with the risk of suicidal patients attempting suicide by hanging in the bathroom in the Comox Unit, either by designing the bathroom a certain way or by instituting nursing policies to deal with the risk. Rather, this is a case where SPH ought to have known there was a significant risk to suicidal patients posed by the bathroom in the Comox Unit and by the lack of protective policies concerning bathroom use, but did nothing about this risk.

[9] Mr. Paur was left unmonitored in the bathroom for a long enough period to be able to wrap a hospital gown around his neck, open up the ceiling tiles, tie the gown around fixtures in the ceiling, and hang himself to the point of unconsciousness, causing brain damage.

[10] It would have been relatively simple and not too costly for SPH to design the bathroom facilities safely to prevent the risk of suicide by hanging; or, alternatively, to establish policies to mitigate the risk of a suicidal patient being left alone in the bathroom unmonitored for a sufficiently long period of time as to cause serious harm from hanging.

ICBC Punished 25% for Unproven Fraud Allegation

Written by admin on September 21, 2015. Posted in BC Supreme Court Costs Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, finding that unproven allegations of fraud can be used as a factor to minimize a successful party’s costs entitlement after beating a formal offer.
In today’s case (Gupta v. Doe) the Plaintiff was involved in three separate collisions and sued for damages. At trial the Plaintiff was awarded just over $43,000. Priro to trial ICBC made several formal offers, the first at $90,000 and the last at $164,000. Having beaten their formal offer by a considerable margin ICBC asked for post offer costs.
The Court agreed that ICBC was entitled to post offer costs and would have awarded these fully but did not due to ICBC’s unproven allegations of fraud with respect to one of the collisions. In reducing ICBC’s costs award Mr. Justice Jenkins reasoned as follows –

[27] One additional factor which I consider to be appropriate for consideration was the allegation of fraud on the part of the defence in the defence of the 2009 accident. The circumstances of that accident which involved a hit and run driver were included in the testimony of the plaintiff and no explanation was provided by the defence to support this most serious of allegations which subsequently was abandoned by the defence.

[28] In these circumstances, it is appropriate that the plaintiff be awarded costs of the action for damages arising from the 2009 action. Such allegations should never be made without serious consideration by the accuser of the ability to be able to prove the allegations. In this case, it would appear as though the allegations could never have been substantiated and as a result, it is a factor in favour of the plaintiff in considering costs. The problem that follows is how to reflect this conduct on the part of ICBC in the award of costs.

[29] I have come to the conclusion that this factor, i.e. the unproven and abandoned allegation of fraud and the third factor enumerated under Rule 9-1(6), i.e. the relative financial circumstances of the parties should be reflected in the award of costs with a 25% reduction in any amount of costs otherwise payable to the defendants.

[30] Accordingly, the plaintiff is entitled to her full costs on Scale B in all three actions to August 14, 2014.

[31] Considering the options available to a judge under R. 9-1(5), the factors which may be considered under R. 9-1(6) and all other factors where an offer has been made, I award 75% of one set of costs on Scale B to the defence in respect of all steps taken after delivery of the offer of settlement of August 14, 2014 as contemplated under R. 9-1(5)(d).

BigLaw the Novel – Exposing the Guts of Big Firm Life

Written by admin on September 8, 2015. Posted in Uncategorized.

A bit of an off-topic post from this site’s personal injury theme, but a quick shout out to my sister in law, Lindsay Cameron, who has just published her first novel, Big Law, a story influenced after being involved in the grind in both Canadian and US top tier lawfirms.
If you are looking for a fun read this fall its great for lawyers, lawyers to be and those with the sense to steer clear from the profession altogether!
You can find it on amazon.ca, amazon.com for you US folks and Barnes and Noble.
You can follow Lindsay on twitter here. Enjoy!

Pain Clinic Treatment a "Mandatory" Item Under ICBC's Part 7 Benefits

Written by admin on August 31, 2015. Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether ICBC’s no-fault benefits cover payment for treatment at a pain clinic. In short the Court found they do.
In today’s case (Park v. Targonski) the Plaintiff was injured in a collision and sued for damages. At trial future care costs were awarded including $8,500 for treatments from a pain clinic. The Defenant argued that these damages should be deducted as ICBC must cover the cost under the Plaintiff’s no fault beneifts. In agreeing with this submission and finding such treatments are included in ICBC’s no-fault coverage Mr. Justice Fitch provided the following reasons:

[44] …The narrow issue before me is whether a pain clinic that is focussed on “necessary physical therapy” is a mandatory benefit as contemplated by s. 88(1).

[45] The mere fact that psychological and/or cognitive obstacles to optimal physical rehabilitation are likely to arise in the administration of what amounts, at its core, to a physical rehabilitation program does not negate the fact that the program is designed to achieve “necessary physical therapy.” The law must take cognizance of our growing awareness of the intersection between physical and mental therapy. Indeed, it is difficult to envision aggressive implementation of the sort of active rehabilitation Back in Motion has in mind without necessarily engaging psychological and/or cognitive issues, particularly for an individual in the plaintiff’s situation. Looking at the issue this way, it is unnecessary and unrealistic to hold that a physical therapy program that incidentally engages psychological and/or cognitive issues ought not to be characterized as a s. 88(1) benefit in circumstances where the language of the provision does not dictate this result. Further, it is undesirable for courts to embark upon the impossible task of deciding which discrete components of a holistic pain program constitute s. 88(1) benefits because they are purely given to physical therapy, and which components fall outside the scope of s. 88(1) because they engage psychological issues that stand as barriers to the successful implementation of an active rehabilitation program. Such an approach is not only artificial, it is one that would breed uncertainty and spawn further litigation in an area already beset by what the Court of Appeal in Raguin charitably described as “jurisprudential inconsistencies”.

[46] As is evident from the foregoing, I favour the result reached on this point in Klonarakis. In the result, I am of the view that a pain clinic focused on “necessary physical therapy” is a mandatory benefit; one that shall be paid by ICBC even in circumstances where it is anticipated that psychological issues may arise in the implementation of the program.

[47] As noted in Ayles v. Talastasi, 2000 BCCA 87 at para. 32:

As a claim covered by s. 88(1) I.C.B.C. is obliged to pay the benefits. It is not a matter of discretion under s. 88(2) where entitlement depends “on the opinion of the corporation’s medical adviser”. The risk in deducting too much from the tort award for discretionary benefits is that I.C.B.C. may ultimately refuse to pay on items which although found to be compensable in the tort claim were deducted on the assumption that they would be paid as a no fault benefit. In that instance the claimant is out of pocket for the expense and I.C.B.C. enjoys a windfall. But here the class of future expense is obligatory, not discretionary, and so the plaintiff does not stand to lose anything by the deduction. It is only in circumstances where the classification of the future cost is unclear or an issue arises whether the item is covered by Part 7 at all, that some caution is required.

[48] As I am satisfied in this case that the pain clinic is a mandatory benefit and that ICBC is obliged to reimburse the plaintiff for all reasonable expenses associated with her attendance at the clinic, there is no uncertainty as to whether this benefit will be paid.