Skip to main content

From Medical Marijuana to Surveillance and More

Written by admin on . Posted in Uncategorized.

As readers of this blog know, I often extract one point of interest when creating case summaries and when more than one point is noteworthy I create multiple point specific posts.  I do this because it makes it easier to search archived posts by case specific topics.
Reasons for judgement were released this week with so many nuggets it would be too burdensome to address them each individually so please excuse the multi point summary.   In short this judgement showcases video surveillance successfully attacking a claim, credibility findings, comments on self-serving medical appointments, claimed care costs for medical marijuana and other points of interest.  The entire judgement is worth a read.
In this week’s case (Datoc v. Raj) the Plaintiff was involved in an intersection t-bone collision.  Both motorists claimed they had a green light which simply could not be true.   The Court found that despite credibility problems with the Plaintiff his account of the collision appeared more reliable and the Defendant was found fully at fault.  The Plaintiff  claimed damages of over $450,000.  The Court rejected most of these claimed damages and in doing so illustrated the following points:
Video Surveillance Successfully Used
Video evidence was presented which documented inconsistent presentations of the Plaintiff in court versus out of court.  Mr. Justice Sigurdson provided the following comments in finding the plaintiff was “significantly exaggerating” his claims:
[103]     I was shown video surveillance evidence of the plaintiff taken over a number of days in the months shortly before the trial.  These videos showed the plaintiff getting in and out of his car, driving his car and taking photographs as a real estate photographer.  This included squatting, and holding a tripod above his head to take pictures.  He moved fluidly, in and out of the driver’s seat, apparently without discomfort.  He and his counsel acknowledge a dramatic difference between his presentation on the video and his presentation in court.  The plaintiff explains the difference by saying that he is capable of doing what he does on the surveillance video only because of medical marijuana he takes in the morning and at the end of the day.  However, the plaintiff introduced no medical expert report to support this contention, only his evidence that this was the effect on him of his taking medical marijuana.  I did not find persuasive his evidence that marijuana would have the dramatic and persisting effect that he asserts.  The video surveillance showed him during different times of the day, not simply in the morning (shortly after he would have ingested a marijuana cookie), but into the afternoon as well, and his condition appeared to be no different no matter what the time of day.
[104]     Generally, surveillance evidence can be relatively unhelpful to assess the condition of plaintiffs as to whether they are performing activities without pain, or whether their ability to perform activities is because of use of pain medication, or stoicism, or other factors.  However, the difference in this case between the manner in which the plaintiff presented himself in court and how he was shown on the surveillance video was dramatic.  I did not find the plaintiff’s explanation persuasive that the dramatic difference was from his taking marijuana while working, and not taking it while in court…
[106]     I have concluded, based on a consideration of all of the evidence, that the plaintiff is significantly exaggerating the extent of his injuries.
Medical Marijuana
The Plaintiff claimed damages of $20,000 for the cost of medical marijuana.  While damages for medical marijuana are not unprecedented in British Columbia, a common analysis involves a plaintiff’s recreational interest in marijuana.  The defendant pursued such an analysis with apparent success.  In rejecting these claimed damages the Court provided the following analysis:
[60]         On cross-examination, the plaintiff was asked about his posting on the internet under the name Nismo200sx in light of his comment that he had only taken marijuana once or twice before.  Although those postings suggested an interest in marijuana beyond simply as a treatment for his back pain, the plaintiff denied any recreational interest in marijuana…
[112]     The plaintiff said that prior to his prescription for medical marijuana, he tried marijuana once or twice, but he did not care for it.  However, there is evidence to suggest the plaintiff’s interest in marijuana is more than purely for medical treatment purposes.  His internet postings suggest that.  Given my concerns about the reliability of the plaintiff’s evidence, and in the absence of expert evidence, I am not persuaded that medical marijuana is required by the plaintiff to treat his injuries…
[120]     The plaintiff seeks future care costs for medical marijuana of $200 per month or $2,400 a year for a suggested award of $20,000.  The evidence does not support the claim that medical marijuana is reasonably necessary: see Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.).  As such, I award nothing for the cost of future care.
Frequency of Doctor Visits
The last point of interest deals with the Plaintiff’s frequency of doctor’s visits  I have canvassed this topic previously.  In this week’s case the Plaintiff pointed to having 128 doctor visits as supporting his claim for injury.  The Court, however, found that there was no reasonable justification for this and instead came to the conclusion that the Plaintiff was simply papering his claim.  The following observation was made by Justice Sigurdson:
 [65]         Up to June 2012, the plaintiff saw Dr. Irene Chan, a general practitioner, 128 times for his injuries.  From July 8, 2008 to June 2012, the complaints he made to her were virtually the same on each occasion.  Dr. Chen was not called as an expert witness but testified simply with respect to some of the observations she made…
[107]     It is difficult to know what to make of the fact that the plaintiff attended his general practitioner for 128 visits and appears to have repeated his symptoms almost without change on each visit.  He explained in his testimony that he went to his doctor to report changes in his condition; however his doctor noted each of his attendances with the plaintiff reporting no changes.  The evidence left me with the impression that the plaintiff was creating a record of his injuries for his claim as there appears to be no reasonable medical justification for the number of attendances before his family doctor.  Rather than supporting his credibility, this evidence of the numerous attendances on his family doctor left me with the opposite impression.
 

Hearsay of Reduced Vehicle Value Not Enough to Prove Accelerated Depreciation

Written by admin on . Posted in Uncategorized. 56 Comments on Hearsay of Reduced Vehicle Value Not Enough to Prove Accelerated Depreciation

I have previously discussed the fact that accelerated vehicle depreciation is a recognized damage in BC.  Reasons for judgement were released this week by the BC Court of Appeal addressing such a claim noting something more than hearsay is required to prove the loss.
In this week’s case (Kapelus v. Hu) the Plaintiff was injured in a 2006 collision.  She proceeded to trial and was awarded damages for her injuries but her claim for accelerated vehicle depreciation was dismissed.  The Plaintiff presented evidence of offers that others provided her for the purchase of the vehicle.  The Court of Appeal noted that if this was the only evidence then there was no error in dismissing this aspect of her claim.  The Court provided the following reasons:
24]         Finally, I should say that the argument advanced by Mrs. Kapelus, that the judge erred in rejecting evidence of the loss in value of her vehicle, based solely on her report of offers to purchase the vehicle, is without merit.  The judge ruled that Mrs. Kapelus’ evidence, that third parties had been prepared to purchase her car at a certain price prior to the accident, was hearsay.  I accept this ruling: it is hearsay and it is not rendered admissible under the business records exception in the Evidence Act, R.S.B.C. 1996, c. 124.

Want Your Day In Court? Mortgage Your Property First!

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

In a very rare display of the BC Supreme Court’s powers pursuant to its inherent jurisdiction, and a strong reminder of the potentially high financial consequences of BC’s loser pays legal system, Mr. Justice Burnyeat released reasons for judgement ordering a Plaintiff to mortgage her properties to the amount of $100,000 as security for costs prior to allowing her claim to proceed to trial.
In today’s decision (IJ v. JAM) the Plaintiff sued the Defendants alleging sexual harassment   The Plaintiff had other costs orders made against her and the Court found she had “a pattern of ignoring orders for costs that have been made“:  The current Defendants applied for an order requiring $100,000 to be paid into court as security for costs.  Mr. Justice Burnyeat agreed security was appropriate and provided the following reasons:
[18]         I am satisfied that “very special circumstances” are present so that an order for security for costs should be made.
[19]         First, the Plaintiff has a pattern of ignoring orders for costs that have been made:  in the Petition for judicial review of the British Columbia Human Rights Tribunal decision where costs were awarded in favour of J.A.M. and, in these proceedings where an order for costs was made against the Plaintiff arising out of the dismissal of the civil claim against the G.S. and J.S.
[20]         Second, I take into account the merits of the claim of the Plaintiff.  As I will be the trial judge for the lengthy trial that is scheduled for June 2013, I do not express any final opinion about the merits of the claim other than to observe that, as presently drafted, the claim against J.A.M. and J.M. is expressed in an often confusing, emotional and vitriolic manner, with many allegations not relating directly to the very serious claim that the Plaintiff makes against J.A.M.  and J.M.  It is not appropriate at this stage to make a fine assessment of the relative merits of the claim of the Plaintiff but only to observe that the claims are not so weak that they are bound to fail.  However, regarding the claim, I take into account the agreement that was executed by the Plaintiff releasing the Company and officers, including J.A.M. for previous acts which occurred.  It is a fair assessment at this point that the case of the Plaintiff has many problems…
[25]         The Defendants request the payment into Court of the sum of $100,000.  It is clearly the case that such a sum is not available and that to require that sum to be paid would effectively deny the Plaintiff access to the Court.  However, the affidavit of the Plaintiff is that the two Whistler properties have a value of approximately $729,000 and have charges against them of approximately $550,000 so that her equity is in the neighbourhood of $279,000.  The Plaintiff also states that her property in Ontario has an approximate value of $560,000 with a mortgage of approximately $164,000 against it so that the approximate equity is $396,000.
[26]         Taking into account all of the circumstances surrounding the claim of the Plaintiff, I am satisfied that there is good reason and very special circumstances why an order for security for costs should be made.  Accordingly, a mortgage in the amount of $100,000 without interest will be granted by the Plaintiff against her two properties in Whistler with the mortgagee being the Registrar of the Supreme Court of British Columbia.  The mortgage is not to be discharged or enforced without the further order of the Court.
[27]         The Plaintiff will be required to sign that mortgage within ten days of it being tendered on her for her signature.

Law of Spoliation of Evidence Discussed by BC Court of Appeal

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 5 Comments on Law of Spoliation of Evidence Discussed by BC Court of Appeal


Reasons for judgement were released this week by the BC Court of Appeal discussing the consequences that can flow when evidence is destroyed in the context of an ICBC Claim.
In this week’s case (Chow-Hidasi v. Hidasi) the Plaintiff was injured when involved in a single vehicle collision.  The claim was dismissed at trial with the Court finding there was no negligence on the part of the driver and instead a mechanical failure may have contributed to the collision.  The Plaintiff argued that the vehicle was prematurely destroyed and an adverse inference should be drawn that no mechanical failure took place.  The BC Court Appeal upheld the trial result and in doing so provided the following summary of the law relating to spoliation of evidence:
[27]         Finally, I turn to the plaintiff’s argument that ICBC’s (apparent) destruction of the Jeep “effectively destroyed” her ability to challenge the theory of mechanical failure, and that the court below should therefore have inferred that an examination of the vehicle would have shown no mechanical failure. The plaintiff makes this argument on the basis of the Court’s inherent jurisdiction to ensure the fairness of the trial process. She also says the trial judge erred in failing to recognize that ICBC, rather than the plaintiff personally, was the “real party in interest”, such that the vehicle was destroyed by a person who was in effect the defendant in this litigation.
[28]         I have considerable sympathy for the plaintiff’s position, but in my view the presumption she seeks may not be drawn in the circumstances of this case. First, the evidence as to the conditions under which the Jeep was destroyed is negligible: there is only the defendant’s hearsay evidence that he was told that it had been destroyed. Most importantly, there is no evidence as to whether ICBC was aware the plaintiff would be making a claim or if she made any effort to advise them or have the vehicle examined before it was destroyed. (It was Mr. Hidasi who requested that the vehicle not be destroyed.)
[29]         On the present state of the law, it is clear that spoliation requires intentional conduct: see St. Louis v. Canada (1896), 25 S.C.R. 649; McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at para. 29; Endean v. Canadian Red Cross Society (1998) 157 D.L.R. (4th) 465 (B.C.C.A.); Dawes v. Jajcaj, 1999 BCCA 237 at para. 68; and the discussion in Holland v. Marshall, 2008 BCCA 468 at paras. 70-2. (I understand ‘intentional’ to mean ‘with the knowledge that the evidence would be required for litigation purposes’.)  As stated in McDougall v. Black & Decker, “When the destruction is not intentional, it is not possible to draw the inference that the evidence would tell against the person who has destroyed it.”  (Para. 24).
[30]         The Court observed in McDougall that where evidence has been destroyed unintentionally, a court of law may fashion a civil remedy to assist in ensuring the fairness of a trial. A costs award may be made, or evidence may be excluded. We were not referred to any case binding on us, however, that would indicate that such remedies would include the drawing of an adverse inference such as that sought in this case by Ms. Chow-Hidasi. (See McDougall, para. 25, British Columbia Law Institute, Report on Spoliation of Evidence (2004), at 10-20.)
[31]         In my view, neither the state of the law nor the evidence as presented in this case could support the drawing of an adverse inference that an examination would have shown no mechanical failure in the brakes or steering wheel of the Jeep. Like all litigants, the plaintiff was required to prove her case on the evidence available to her at the time of trial. I would therefore dismiss this ground of appeal.

Producing False Witness To Collision Leads to $200,000 in Financial Consequences

Written by admin on . Posted in Uncategorized. 102 Comments on Producing False Witness To Collision Leads to $200,000 in Financial Consequences

In an illustration of BC’s motor vehicle insurance system having real teeth to punish fraudulent acts, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, ordering substantial damages against a couple who produced a false witness to ICBC following a motor vehicle collision.
In this week’s case (ICBC v. Panag) the Defendant was involved in a 2006 collision.  The parties had competing versions of how the collision occurred.  The Defendant produced a witness in support of her claim.  After investigation ICBC determined this individual in fact did not witness the collision and was known to the Defendant.
ICBC paid out over $188,000 in claims following the crash.  ICBC held the Defendant in breach of insurance and sued to recover this money on the basis that the Defendant attempted to commit insurance fraud.  Mr. Justice Grauer agreed and ordered repayment of these damages along with punitive damages.  In reaching this decision the Court provided the following reasons:
64]         In these circumstances I am satisfied that the Panags and Harinder Grewal were in fact involved in a conspiracy to put forward Mr. Grewal to ICBC as a witness to the collision knowing that he had not in fact witnessed it, and with the intention that he provide ICBC with evidence that he did not have and which they knew to be untrue.  The facts, in my view, cannot fairly admit of any other inference.  Speculation is not required…
[67]         It follows that both Mr. and Mrs. Panag participated in a conspiracy to deceive ICBC about both how the accident happened and the status of Mr. Grewal as a witness to the accident.  They clearly intended ICBC to rely upon their representations, and ICBC as a result was left scrambling for a considerable period of time as it embarked upon an extensive investigation in an attempt to straighten out what would otherwise have been and should have been a straightforward matter.  This amounts to fraud.  See, for instance, ICBC v. Nisbet, 2009 BCSC 1570, at para. 85.
[68]         In the result, the Panags have forfeited their right to coverage under s. 19(1)(d) of the IMVA as well as s. 19(1)(e), and ICBC is entitled to recover against both of them.  Whether directly as a consequence of the Panags’ conspiracy to commit fraud or as a result of the application of the principles of unjust enrichment, this would include the moneys paid out to Mr. Panag for his material damage claim and to Mrs. Panag for her Part VII claim.  The total amount awarded to ICBC in this regard is $188,722.86, which I am satisfied accurately represents what ICBC paid out, to which I add pre-judgment interest of $8,460.21.  I have deducted $305.06 from the interest claimed because of the absence of evidence concerning the date when expenses related to surveillance were incurred…
[70]         In providing ICBC with willfully false statements and in conspiring to commit fraud, the Panags undoubtedly engaged in conduct that was reprehensible.  In the particular circumstances of this case, however, I note that the consequences of their actions have exposed them to statutory liability far beyond the actual financial consequences of their actions.  Had they succeeded in their deception, they would have saved a mere $801 plus whatever might have been gained through a potential personal injury claim.  Now they must pay over $188,000 plus interest…

ICBC Projects Almost $1 Billion in Net Income From 2012-2015: Government Plans $539 Million Profit Scoop

Written by admin on . Posted in Uncategorized. 169 Comments on ICBC Projects Almost $1 Billion in Net Income From 2012-2015: Government Plans $539 Million Profit Scoop

The BC Government’s 2013-2014 Budget has just been released.  Included in the documents is ICBC’s Service Plan for 2013-2015 which reports robust net profit expectations.  Below I reproduce the Crown Corporation’s Summary Financial Outlook.  It is noteworthy that this current projection is up over 200 Million from ICBC Projections for 2012-2014 released last year.
The Government also reports a planned $539 Million profit scoop for ‘core government services’ with the Budget and Fiscal Plan reporting as follows:
Insurance Corporation of British Columbia – ICBC’s net income outlook is forecast at
$257 million in 2013, $222 million in 2014 and $205 million in 2015. The outlook
assumes average annual growth of 1.5 per cent in the number of insured vehicles and
a 3.6 per cent average annual increase in claims costs. Over the fiscal plan period,
ICBC is forecast to remit $539 million of its excess Optional insurance capital to the
consolidated revenue fund to support core government services.
 

Courts Must Not Shy Away From Waiving Court Hearing Fees for Those "In Need"

Written by admin on . Posted in Uncategorized.

Last year Mr. Justice McEwan blasted BC’s Attorney General stating that ‘some things cannot be for sale’ and struck down Provincially imposed Court ‘hearing fees’.  This decision has now been overturned by the Court of Appeal who have upheld BC’s Court hearing fees but held that in order to survive constitutional challenge the Judicial right to waive these fees much be applied to all ‘in need‘.
In last week’s decision (Vilardell v. Dunham) the Court of Appeal provided the following feedback in upholding BC’s Court hearing fees:
 [4]             In my opinion, were it not for the power of the courts to give relief from the hearing fees, they would be an unconstitutional impediment to justice.  The power is found in an enlarged interpretation of the indigency provision…
[31]         I am reluctant to take the course suggested by the respondents.  Cost recovery has been a legitimate government objective for centuries and our Constitution assigns administration of the superior courts to the province.  It is a drastic step to strike down an otherwise valid enactment for want of a saving provision that falls short of the mark.  A more surgical response is to remedy the deficiency by reading in the under-inclusive indigency provision in the Rules to include people who are “in need”: see Schachter v. Canada, [1992] 2 S.C.R. 679 at 718.  “In need” recognizes the fact that some litigants, while not destitute or impoverished, are still in need of relief or assistance in order to have their case heard before a superior court…
[35]         To the extent that the hearing fees have the potential to interfere with the core judicial function of running a trial, which I think they do, the courts should respond to the interference.  Judges must not shy away from dealing with such incursions.  The remedy I propose in this case is a measured response to the problem. ..
[41]         Granting an automatic exemption to recipients of employment or disability insurance suggests a more generous approach than was previously taken.  The enlarged scope of the exemption in Rule 20-5, then, should be read as saying “impoverished or in need”.  The phrase is intended to cover those who could not meet their everyday expenses if they were required to pay the fees.  Courts will continue to use their discretion to determine whether a litigant is impoverished or in need to the point that but for the hearing fees, they would be able to pursue their claim, thus qualifying for an exemption.
 

Facebook Photos Assist in Challenging Injury Claim

Written by admin on . Posted in ICBC Privacy Issues, Uncategorized.

In my continued efforts to track BC Caselaw addressing Facebook photos in personal injury lawsuits, reasons for judgement were released last week by the BC Supreme Court, Prince George Registry, highlighting the successful use of such photos in challenging an injury claim.
In last week’s case (Welygan v. Willms) the Plaintiff was injured in a 2008 motorcycle collision.  Liability was admitted by the defendant.  The Plaintiff advanced a claim alleging longstanding and disabling physical injuries.  The Defendant acknowledged some level of injury occurred but disputed the extent and severity of the claim.  Ultimately the Court rejected many of the Plaintiff’s advanced damages and in doing so provided the following comments addressing Facebook photos which were put into evidence:
 [107]     She was shown a Facebook photograph of her performing on stage and she says she does not recall what she was doing at the time…
[331]     …her Facebook photograph that shows her singing on stage in no apparent discomfort, and the evidence of Mr. Wall that he saw her singing and dancing on stage and jumping off the stage…
[369]     I find it persuasive that the plaintiff has been able to perform on stage with her band and twist her body as is shown in the photograph of her on stage. If her back is as badly injured as she says it is, I do not believe she would be able to perform as the photograph indicates.
[370]     In addition I accept the evidence of Mr. Wall that he saw her performing on stage with her band after the accident and she was dancing around on stage and in the crowd. When she came off the stage she sometimes put her hand on the stage and jumped off it, a distance estimated by him to be about four feet.

Expert Witness and Plaintiff Preparation Time Recoverable In Bill of Costs

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

Reasons for judgement were released last week by the BC Supreme Court, Kamloops Registry, addressing costs for witness preparation.
In last week’s case (Carson v. Henyecz) the Plaintiff was injured in a motor vehicle collision.  She succeed at both a liability trial and subsequently at a quantum assessment.  The Plaintiff was awarded costs.  With the exception of experts, the Plaintiff was the only witness at trial.  The Plaintiff sought costs for interviewing witnesses for both the Plaintiff and expert witnesses.  ICBC argued this was not recoverable as item 18 of the Tarriff does not include parties nor experts.  Master McDiarmid disagreed and allowed costs for these items.  In doing so the Court provided the following reasons:
[24]         The most significant dispute between counsel was with respect to item 18. The plaintiff submitted that the process associated with interviewing witnesses included interviewing those witnesses with respect to their attendance at trial. The plaintiff submitted that this included interviewing the plaintiff, who was of course a witness on her own behalf in both trials. It was also submitted by plaintiff’s counsel that item 18 would also permit units to be awarded for interviewing the experts with respect to their attendance at trial…
[30]         Forms 20 and 21, the case plan proposal and case plan order, have separate sections for expert witnesses and contain provisions for providing a witness list. Form 41, the trial brief, has a heading entitled “Witnesses to be Called On,” which requires the parties to provide the names and addresses of the witnesses the filing party intends to call at trial, together with an estimate for the time each witness will need for giving direct evidence. There is no differentiation on a trial brief between witnesses who are parties, witnesses who are representatives of corporate parties, expert witnesses, or other witnesses.
[31]         From this I conclude that a party can claim under item 18 with respect to all witnesses for all parties, including in this case the plaintiff and including expert witnesses.

Vicarious Liability Claim Dismissed In School-Ground Assault Lawsuit

Written by admin on . Posted in Uncategorized.


Adding to this site’s archived posts addressing claims of vicarious liability,  reasons for judgement were released this week by the BC Supreme Court, Penticton Registry, considering a claim seeking to hold a School District liable for a school-ground assault.
In this week’s case (Jackson v. School District No. 53) the Plaintiff sustained a traumatic brain injury after being punched by another student.  The Plaintiff sued the School District arguing the assailant was involved in a previous assault several months earlier and the School District failed to impose adequate discipline which “emboldened (the assailant) by lack of proper discipline“.
Mr. Justice Bernard rejected this argument and dismissed the Plaintiff’s claim finding that even if the school was not harsh enough in their prior discipline there is no chain of causation.  In dismissing the claim the Court provided the following reasons:
[42]         Even if, however, significantly harsher disciplinary measures than those taken ought to have been employed for the March 2 incident, I am unable to conclude that the plaintiff has established the requisite nexus between that failure and the subsequent assault upon him. In this regard, it is noteworthy that seven uneventful months transpired between the two incidents; that the incidents occurred in separate school years and at a time when children and their behaviours are changing rapidly; that it makes little sense that Tylor’s state of mind about Makwalla would have turned on his awareness of the discipline imposed on Makwalla rather than of the details of the incident itself; and, that it would require considerable speculation to conclude either that Makwalla would have been sufficiently deterred or rehabilitated such that the assault upon Tylor would probably not have occurred, or that the assault occurred because Makwalla was emboldened by the inadequacy of the discipline.