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Post Crash Alcoholism Claim Dismissed at Trial

Written by admin on . Posted in Uncategorized.


Last year I highlighted a claim which successfully advanced damages for alcoholism which developed following motor vehicle collision related injuries.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering a similar claim which was rejected at trial.
In this week’s case (Dennis v. Fothergill) the Plaintiff was injured in a 2007 rear-end collision.   She alleged that the injuries resulted in chronic pain which led to post collision alcoholism.  Madam Justice Bruce noted “serious reservations about the credibility of the plaintiff’s evidence overall” and dismissed the claim for post collision alcoholism.  In doing so the Court provided the following reasons:
87]         Turning to the superimposed illnesses of depression and alcoholism, I find there is insufficient, cogent evidence to establish a causal connection between these illnesses and the accident. While there is evidence that people who suffer from chronic pain can develop depression and alcohol dependence in response to the pain experience, there is a lack of evidence to establish a causal connection on the facts of this case. The plaintiff did not raise any concerns about her mood or her alcohol dependence with her physicians until December 2009 during an unrelated consultation with Dr. Zentner when asked about alcohol consumption and in December 2010, when she reported symptoms of depression to Dr. Swope. Thus there is a significant time gap.
[88]         Further, the only evidence of when and how the plaintiff began drinking to mask the pain subsequent to the accident is the plaintiff’s testimony, which is significantly inconsistent. The plaintiff’s disclosure to Dr. Zentner in December 2009 that recently her consumption of alcohol had increased to two or three glasses per day is not consistent with her testimony that since the accident she was consuming the same amount or more each night. The plaintiff’s testimony regarding the motivation for drinking is also inconsistent with her description of her past history with alcohol and her pre-accident injuries. The plaintiff testified that growing up with an alcoholic stepfather taught her to fear alcoholism and steeled her against becoming alcohol dependent as an adult. Prior to the accident she rarely drank and often abstained entirely. This positive attitude toward a healthy lifestyle and aversion to alcohol generally is quite inconsistent with a decision to immediately resort to drinking to lessen pain and improve sleep after the accident. Surely it would have taken some considerable time to break down a resolve to abstain from alcohol consumption that had sustained the plaintiff until she was 42 years old. The plaintiff’s description of how the drinking began is also inconsistent with a failure to develop alcohol dependence when faced with a similar history of chronic pain in her neck, shoulders and back prior to the accident. Lastly, the plaintiff’s evidence that she immediately began drinking alcohol for pain reduction after the accident is inconsistent with the fact that her neck pain was actually improving in early October 2007, just a few days after the accident.
[89]         I am also satisfied that there were many other stressors in the plaintiff’s life, apart from the injuries related to the accident, that are far more likely to be connected with her depression and alcoholism. The plaintiff had difficulties in her workplace; she left the Bee Hive because of disputes with clients that threatened the salon’s business. Had she not left voluntarily, Ms. White would have terminated her arrangement with the plaintiff. The plaintiff had significant financial problems. Her condominium leaked and she needed to raise $65,000 to pay for her share of the repairs. There was also an ongoing dispute with Visa over a $6,000 debt that led to a protracted lawsuit. She was behind on her mortgage, strata fees and income tax. It is significant that during the counselling sessions the plaintiff attended in 2011 and 2012, the subject of the accident never came up and pain was mentioned only once in the context of the plaintiff’s decision to go back to yoga for pain management. It was alcohol, relationships and financial problems that arose before the accident or were unrelated to the accident that formed the basis of her discussions with the counsellor. In addition, the plaintiff had a prior bout of depression in 2004 and 2005 that stemmed from financial worries and the troubling Visa lawsuit. She also had a significant family history of depression that created a risk for developing this illness.
[90]         While I find the evidence of Dr. Lu establishes that the plaintiff currently suffers from depression and alcoholism, I am unable to conclude on a balance of probabilities that these illnesses have a causal connection to the accident or to the injuries caused by the accident. Dr. Lu’s opinions about the causal connection to the accident are highly dependent upon the veracity of the plaintiff’s description of her chronic pain and its origins. As described above, the plaintiff has been dishonest with her physicians and has provided inconsistent evidence at trial. I found she was not a credible witness. Her explanations for these inconsistencies were neither candid nor reasonable. Dr. Lu agreed that alcoholics do not tell the truth about their drinking and try to appear functional when they are not. He testified that an alcoholic’s ability to work is the last to go. Thus the failure to call any corroborating witnesses outside of the workplace to describe the plaintiff’s drinking habits before the accident is a significant omission. I accept that the plaintiff may have lost contact with friends since the accident; however, this fact does not explain why she could not approach one of them to testify on her behalf about her pre-accident health and lifestyle. In all of the circumstances, it would be unsafe to accept the plaintiff’s description of her alcohol consumption as accurate either before or after the accident without some corroborating evidence. None of the collateral witnesses had any real knowledge of the plaintiff’s drinking habits because they did not socialize with her outside of the workplace. They could only say that she did not appear to come to work hung over. Ms. Hicks had no direct contact with her daughter until four years after the accident.
[91]         Accordingly, for these reasons I find that the plaintiff has failed to prove on a balance of probabilities that her current alcoholism and depression is causally related to the accident…

ICBC Denied Liability Withdrawal Following Examination for Discovery

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.

Reasons for judgement were recently shared with me by my colleague in Nanaimo addressing ICBC’s attempt to withdraw a formal admission of liability following examinations for discovery.
In the recent case (Smith v. Smith) the Plaintiff was injured while riding as a passenger in a vehicle involved in a 2008 roll-over collision.  ICBC initially took the position that the driver of this vehicle was negligent and responsible for the crash.  In the course of the lawsuit ICBC continued with this position and formally admitted liability.
Both the Plaintiff and Defendant were examined for discovery.  During these examinations evidence was adduced which made ICBC’s lawyer wish to raise the ‘inevitable accident‘ defence.  ICBC sought to withdraw their admission of liability arguing that ‘new information’ came to light through the discovery process.  Mr. Justice Greyell disagreed finding that the ‘new information’ was nothing more than the Defendant’s account of the collision and was available to ICBC all along.  In dismissing ICBC’s request for amended pleadings the Court provided the following reasons:
[28]  The evidence which was elicited at the examinations for discovery of the plaintiff and the defendant on February 21, 2012 was clearly available to ICBC had the adjuster chosen to request it.  There are, to use the words of Rholing at para. 18, no new facts which have come to the attention of the defendants which were not available when the admission was made.
[29]  What appears to have happened in this case is similar to what occurred in Boyd: counsel took a different view of the facts than did the adjuster when the matter was considered shortly after the accident.
[30]  Third, the plaintiff, in my view, would clearly be prejudiced should the Court allow the defendant to withdraw the admission at this late stage of these proceedings…
[31]  Accordingly, the interests of justice are not, in my view, served by permitting the defendant to withdraw his admission.
To my knowledge this recent case is not publicly available but as always I am happy to provide a copy to anyone who contacts me and requests one.

You Can't Be Forced to Show Your Hand: Litigation Privilege and Expert Reports

Written by admin on . Posted in Uncategorized. 78 Comments on You Can't Be Forced to Show Your Hand: Litigation Privilege and Expert Reports


Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, dealing with the limits of the Court’s power to order litigants to reveal which experts they may rely on at trial.
In the recent case (Amezcua v. Norlander) the Plaintiff was injured in two separate collisions.  The first took place some 14 years ago.  Commenting on the pace of litigation the Court noted that “the wheels of justice have ground so slowly that at times they stopped“.
The Defendant was apparently not aware of the nature of the injuries the Plaintiff was advancing.  An application was brought at a Case Planning Conference seeking the Plaintiff to “confirm which experts and expert reports it plans to rely on at trial“.  The Defendant argued that the Court can make such an order under Rule 5-3(1).
Master Baker noted that such an order would infringe on litigation privilege.  The Court did, however, order an accelerated date for the Plaintiff to serve his expert reports noting the slow pace of litigation.  Master Baker provided the following reasons:

[7]As I said above, the defendant Taylor asks for an order that the plaintiff “…confirm which experts and expert reports it plans to rely on at trial”.  In Galvon v. Hopkins, Kloegman J. declined to order that a party name a neurologist consulted by the party, along with the date of the appointment, or to advise of the names of subsequent experts or the dates of their appointments.  After considering several authorities, she concluded:

I do not see anything in Rule 5?3 governing case planning conferences that clearly, expressly, and specifically allows the presider to compel a party to provide another party with the details of any potential expert witnesses before that party has even consulted with the expert or made an election whether to call the witnesses’ evidence at trial.

Rule 5-3 does have clear and express provisions respecting experts: Rule 5-3(1)(k) permits the Court to direct the appointment of joint experts, to order that they consult, to limit the number of experts, to set dates for service of experts’ report (i.e. other than those set by Rules 11-6(3) and (4)), or to direct what issues upon which they may be called.  But none of these (other than by advancing the service date for reports) requires that a party disclose either the expert’s identity, or the area of his or her expertise before serving the report.

[8]Rule 5-3(1)(k) is not inconsistent, in my view, with the reasoning in Galvon.  The disclosure aspects of that Rule assume that evidence has been gathered, assessed, and considered essential to a party’s case.  The only question remaining then is when it will be disclosed, thus Rule 5-3(1)(k)(iv), permitting service dates other than those provided by Rule 11-6.  It is important and instructive to note the court’s reference to “potential” expert witnesses; it seems to me that Kloegman J. was concerned with protecting litigation privilege during the evidence-gathering phase, so that the party assembling his or her case is free to do so without the requirement of disclosing experts (or, I conclude, directions) that may prove fruitless and avoid adverse inferences.

[9]The defendant Taylor’s request, however, comes within Rule 5-3(1)(k) and does not ask the name or expertise of potential witnesses, but rather the details of the experts it will rely on at trial.

[10]This case, as I have mentioned, has an extraordinary aspect.  The first accident occurred approximately 13 years ago.  Such delays sometimes occur when, for example, the plaintiff is an infant.  That is not the case in this situation.  The defence is justified in its frustration and perplexity in not knowing, in any reliable way and after 13 years, the nature or extent of medical injuries suffered by the plaintiff.  That being the case, the plaintiff is ordered to deliver the reports of experts upon which she intends to rely at trial, no later than November 1, 2012.

ICBC Employees Escalate Job Action; Reduce Claims services

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In the ongoing contract dispute  between ICBC and their employees, COPE 378 has just announced escalating job action which will affect claims handling services.  The following specific measures have now come into force which individuals advancing personal injury claims should be aware of:
This new action will require members to stop attending meetings as follows:

  • Pretrial meetings
  • Committee Authority meetings
  • Risk Assessment Committee meetings
  • Mediations and Pretrial Committee Strategy meetings
  • Aligned Counsel team meetings

And/or any meetings that would be considered to be related to the above meetings.

Working Adjuster Caseloads per the 2009 Workload Guideline

The last workload guidelines by the Corporation were presented to the Workload Committee in 2009 and sets out the appropriate file levels for Claims Adjusters and Bodily Injury Adjusters as follows:
Workload Guidelines – Claims Field Services
Claims Adjuster
Guidelines:  51.25 CA files opened per adjuster per month
Bodily Injury Adjuster
Guidelines:  10.5 BI exposures opened per adjuster per month (Claim Centres)
Guidelines:  5 BI exposures opened per adjuster per month (Litigation Centres)
Claims Adjusters and Bodily Injury Adjusters are to work to these guidelines.  For example, Claims Adjusters from October 11 to November 11 take no more than 51 files per month.
Claims Forms
We are also placing a ban on specific forms being used by the claims division. These forms include:

  • Claim Plan Form – CL398
  • Interview notes forms WEB1362 & WEB1525
  • Call to/from Customer form – WEB 1751
  • Settlement form CL460

Please use CWMS notes in place of these forms where information needs to be captured for the purpose of file handling.

Jaywalking Pedestrian Found 75% at Fault For Collision

Written by admin on . Posted in Uncategorized. 61 Comments on Jaywalking Pedestrian Found 7561 at Fault For Collision

Adding to this site’s archived caselaw addressing fault for collisions involving jaywalking pedestrians, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with such an impact.
In last week’c case (Sandhu v. John Doe) the Plaintiff was attempting to cross a four lane road way.  She was not crossing in a designated crosswalk.  The vehicles in the curb land came to a stop and the lead motorist motioned for her to cross.  As she proceeded into the second lane she was struck by the Defendant motorist.
The Plaintiff sued the motorist that struck her and also the motorist that signalled for her to cross.  The Court dismissed the claims against the latter motorist and further found that both the Plaintiff and the motorist that struck her were at fault for the impact.  In assessing 75% of the blame on the Plaintiff Mr. Justice Bowden provided the following reasons:
[18]         In my view, as the plaintiff was not crossing the road in a crosswalk, the plaintiff was required to yield the right of way to Ahmed’s vehicle. At the same time, Ahmed was required to exercise due care to avoid colliding with a pedestrian on the highway.
[19]         I find that the plaintiff was negligent in attempting to cross the street where there was no crosswalk, marked or unmarked, and, more significantly, by walking into the lane in which the defendant Ahmed was travelling, without looking to determine if a vehicle was approaching before entering that lane.
[20]         The defendant Ahmed was also negligent in passing two stopped vehicles when the possibility of a pedestrian attempting to cross was reasonably apparent, even if he believed that the vehicles were also intending to turn into the mall after they stopped.
[21]         In my view, no liability attaches to John Doe. There is no evidence that the plaintiff made any attempt to locate John Doe. Even if he had been located, the mere act of indicating to the plaintiff to cross in front of his vehicle, in my view, would not attract liability nor relieve the plaintiff of her duty of care…
[25]         Considering the conduct of the plaintiff and the defendant Ahmed and the surrounding circumstances, I have concluded that a reasonable apportionment of liability is 25% to the defendant Ahmed and 75% to the plaintiff.

Supreme Court Holds Failure To Disclose HIV Status Can Still Vitiate Sexual Consent In Canada

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized. 79 Comments on Supreme Court Holds Failure To Disclose HIV Status Can Still Vitiate Sexual Consent In Canada

In 1998 the Supreme Court of Canada held that failure to disclose HIV positive status could vitiate consent making otherwise consensual sexual encounters criminal in nature and further exposing the non-disclosing party to civil suits for damages for sexual assault.  This reasoning has been controversial over the years and the Supreme Court of Canada revisited the issue in reasons for judgement released today.
In today’s case (R v. Mabior) Chief Justice McLachlin held that failure to disclose can still vitiate consent but not in all circumstances adding a “significant risk” factor to the analysis.  The Court provided the following reasons:
[104]                     To summarize, to obtain a conviction under ss. 265(3)(c) and 273, the Crown must show that the complainant’s consent to sexual intercourse was vitiated by the accused’s fraud as to his HIV status.  Failure to disclose (the dishonest act) amounts to fraud where the complainant would not have consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm (deprivation).  A significant risk of serious bodily harm is established by a realistic possibility of transmission of HIV.  On the evidence before us, a realistic possibility of transmission is negated by evidence that the accused’s viral load was low at the time of intercourse and that condom protection was used.  However, the general proposition that a low viral load combined with condom use negates a realistic possibility of transmission of HIV does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in the present case are at play.
 

Court Considers It "Unsafe" To Rely on Defence Doctor's Opinion In Chronic Headache Case

Written by admin on . Posted in ICBC Headache Cases, Uncategorized. 51 Comments on Court Considers It "Unsafe" To Rely on Defence Doctor's Opinion In Chronic Headache Case

In my continued efforts to highlight judicial scrutiny of expert testimony in BC injury litigation, reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, finding an expert “displayed a somewhat compromised objectivity” and that it was “unsafe” to rely on his opinion.
In this week’s case (Smith v. Moshrefzadeh) the 54 year old plaintiff was injured in a rear end collision in 2008.  As a result she suffered from soft tissue injuries to her neck and shoulders which caused chronic headaches.  At trial the Defendant produced an orthopaedic surgeon who provided opinion evidence that the probability that the crash resulted in the chronic symptoms was “negligible“.  Madam Justice Dardi did not accept this evidence and provided the following critical comments:
[62]         I accept the opinions of Dr. Helper, Dr. Robinson and Dr. Craig and, where they differed, I prefer their opinions to that of Dr. Wahl.  I found each of Dr. Robinson, Dr. Helper, and Dr. Craig, who are very well-qualified and experienced practitioners, to be careful and fair-minded in their testimony.  Their opinions, without exception, were not weakened in cross-examination.  Each of the doctors persuasively discounted Dr. Wahl’s opinion that the degeneration of Ms. Smith’s cervical spine shown on her x-rays is the cause of her current symptoms.  While Dr. Wahl is no doubt a well-qualified orthopaedic surgeon, his practice is focused on the surgical management, not the medical management, of the spine.  Dr. Wahl clearly had not reviewed Ms. Smith’s medical records as carefully as the other expert witnesses and as I mentioned earlier his report was predicated on a misconception as to the timing  of the onset of Ms. Smith’s symptoms.  Given the significant concessions he made in cross-examination and the Court’s impression that he displayed a somewhat compromised objectivity in preparing his report, I consider it unsafe to rely on his opinion.
In assessing non-pecuniary damages at $80,000 the court provided the following reasons:
[65]         In summary on this point, Ms. Smith’s chronic headaches and neck and upper back pain and discomfort which were caused by the accident have persisted for some three and a half years.  She experiences episodic flare-ups.  The pain fluctuates in intensity and is aggravated by physical activity.  Ms. Smith’s symptoms are exacerbated by the physical demands of the commercial salmon and herring fisheries.  She can no longer engage in the prawn fishery.  She has constant and daily headaches which vary in intensity.  The headaches are usually of a mild to moderate severity, but at least a few times per week they become severe enough that she needs to rest in a quiet environment.  For the most part, however, even though she describes feeling like she is “hanging on by a thread”, she forces herself to carry on with her fishing work and with maintaining her household routines and family life.  In order to carry on, she takes prescription medication on a daily basis.
[66]         There is a possibility that, by undertaking the treatments recommended by the specialists who testified at trial, Ms. Smith will experience some improvement in her symptoms and will be able to manage her pain and discomfort more effectively.  However, I find that it is unlikely that she will make a full recovery to her pre-accident status…
[76]         I have reviewed all of the authorities provided by both counsel.  Although the cases are instructive, I do not propose to review them in detail as they only provide general guidelines.  In broad terms, the cases relied upon by the defence involve plaintiffs with symptoms that had significantly improved by trial.  In considering Ms. Smith’s particular circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $80,000.

$300,000 Non-Pecuniary Assessment For Severe Brain and Orthopaedic Injuries

Written by admin on . Posted in ICBC Brain Injury Cases, Uncategorized.

The current judicial cap for non-pecuniary damages in Canada for negligently caused injuries rests at  just over $342,000.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing whether such an assessment was appropriate for a severe traumatic brain injury coupled with multiple orthopaedic injuries.
In last week’s case (Clost v. Relkie) the Plaintiff was involved in a 2009 collision described by the trial judge as “a shocking scene of mayhem”.  The Plaintiff suffered a severe traumatic brain injury and multiple bone fractures   These disabled her for life from her own occupation as a pharmacy technician.  The Plaintiff’s limitations were profound enough that a Committee was appointed to manage her affairs.  Despite this she made a satisfactory recovery to the point where she gained a fair level of independence in her daily life.  In assessing non-pecuniary damages at $300,000 Madam Justice Baker provided the following reasons:
[437]     Ms. Clost is seeking an award for non-pecuniary damages at the upper limit set by the Supreme Court of Canada.  Counsel agreed the upper limit, adjusted for inflation, was $342,500 at time of trial.  The defendants submitted that an award of $175,000 to $225,000 would adequately compensate Ms. Clost for the pain, suffering, and loss of enjoyment of life caused by the accident injuries. 
[438]     The submissions made by counsel largely focused on the issue of whether Ms. Clost’s injuries should be characterized as “catastrophic” ? the term most often used by judges who have awarded the upper limit for non-pecuniary damages.  The plaintiff says “catastrophic” is merely a synonym for “severe” or “devastating”; the defendants submit that given the significant recovery Ms. Clost has made, particularly in relation to her cognitive functioning, the injuries have not had a “catastrophic” impact on her life…
[442]     Ms. Clost does not, as did many of the plaintiffs in the cases referred to by plaintiff’s counsel, require constant supervision for her own protection.  She continues to enjoy a considerable degree of independence and to exercise control over most aspects of her life.   She has returned to living in her own home.  She is able to do most activities of daily living without assistance.  She is entirely capable of bathing, toileting, dressing and feeding herself.  She can walk, she can swim, she can drive, she can use a computer; she can cook, she can bake, she can shop ? for necessities and for enjoyment.  She goes out to the library; for lunch and visits with friends.  She can still do many household and outdoor chores although there are also some she cannot do or can only do in a modified way or with assistance.  She has continued to manage her own finances, taking care of banking and bill-paying on-line, as she did before the accident.  She has not demonstrated a propensity to engage in behaviours that make her a danger to herself or others, as was the case with the plaintiffs in Spehar andCoulter.   
[443]     I am of the view, however, that Ms. Clost has experienced pain, suffering and loss of enjoyment of life and will continue to experience losses for which she is entitled to very significant compensation and to an award above the range suggested by defendants’ counsel.  Having considered the various authorities, I have concluded that the appropriate award for non-pecuniary damages in this case is $300,000.
[444]     I have already reviewed the evidence of Ms. Clost’s numerous serious orthopedic injuries and the details of the injuries to her brain.  She was in a coma for a month and only gradually returned to consciousness.  She has a gap in her memory of events for some period before and after the accident.  She required two major orthopaedic surgeries within the month following the accident to repair numerous fractures.  I have concluded she will require at least one and possibly more surgeries in future to fuse the joint in her left foot and ankle; to remove hardware in the ankle and possibly in her wrists as well; and a possible ankle replacement surgery.   Her orthopedic injuries caused her considerable pain; and she was essentially confined to a hospital bed and unable to bear weight or to walk for several months.  There was a period during which she was unable to use her arms due to injuries to her arms, wrists and hands.   
[445]     In total, Ms. Clost was confined to one type of hospital or another for five months following the accident.  Her rehabilitation was ongoing at time of trial.  She continues to have pain or discomfort in many parts of her body.  She has frequent headaches.  The most significant and frequent sources of pain are her left foot and ankle; she also has swelling there and the injury disables her from walking or standing for extended periods of time.  Although a fusion of the joint may reduce the amount of discomfort she experiences, the medical opinions I accept indicate that she is unlikely to be pain-free.  At time of trial she still needed to take strong medications to control her pain and to help her to sleep.   
 

Known Poor Road Conditions Defeat Inevitable Accident Defence

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 47 Comments on Known Poor Road Conditions Defeat Inevitable Accident Defence

As previously discussed, although a driver can sometimes be faultless after rear-ending another vehicle, such a result is rare.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with a motorist trying to escape blame following a rear end collision.
In last week’s case (Vo v. Michl) the plaintiff pulled onto Kingsway from a parked position and proceeded to to the left hand lane.  At the same time the Defendant was proceeding in the same direction and saw the Plaintiff pull into his lane and brake ‘some four or five seconds’ before the vehicles impacted.  The Defendant argued that he could not avoid the collision due to icy  road conditions.  Mr. Justice Savage rejected this argument finding the Defendant was aware of the poor road conditions well prior to the impact and should have adjusted his driving accordingly.  In finding the Defendant fully liable for the impact the Court provided the following reasons:
[16]         I accept that Mr. Vo had his left turn signal on at that point which was his evidence and is not contradicted by Mr. Michl. Mr. Michl applied the brakes but because of the road conditions did not slow appreciably before impact. The road conditions were apparent to him as he had been driving in those conditions. He knew it was icy. This is not a case, for example, of their being a patch of “black ice” in otherwise deceptively benign conditions, as was the case in Borthwick v. Campa (1989), 67 Alta. L.R. (2d) 123 (Q.B.).
[17]         Mr. Michl was negligent in driving too quickly for the road conditions in traffic on Kingsway. There is no suggestion here that Mr. Vo’s actions in turning onto Kingsway were sudden and precipitous, as in some of the other cases referenced by the defence.
[18]         The defendant raises s. 151(a), and 170 of the Motor Vehicle Act, R.S.B.C. 1996, c.318, and s. 7.05(1) of the Motor Vehicle Act Regulations, B.C. Regulation 26/58. I accept the evidence of Mr. Vo that he checked the position of the westbound traffic before he made this turn from the parked position onto Kingsway, and the westbound vehicles were well back at that point. The defence has said all that could be said to support their position, however, in my opinion Mr. Michl is 100% to blame for the accident.

Short Leave Application Denied in Case of "Manufactured Urgency"

Written by admin on . Posted in BCSC Civil Rule 8, Uncategorized. 113 Comments on Short Leave Application Denied in Case of "Manufactured Urgency"


Rule 8-5 of the BC Supreme Court Rules allows an application to be brought on short notice in cases of “urgency”.
A transcript of proceedings from the BC Supreme Court, Nanaimo Registry, was recently shared with me denying a short leave application in a case of “manufactured urgency”.
In the recent case (Thuler v. Garcia) the Plaintiff was injured in a motor vehicle collision.  The Plaintiff exchanged various expert reports in compliance with the timelines set out in the Rules of Court.  The Defendant requested that the Plaintiff attend a Defence Medical Exam with an orthopaedic surgeon to obtain a responsive report.  The Plaintiff refused to attend unless compelled by the Court.
The Defendant brought a short leave application two days before the scheduled Defence Medical Exam seeking permission to bring the main application that same day.  The Plaintiff opposed short leave being granted arguing  “the reason that I say that this is manufactured urgency is that there is six weeks in order to have a response report prepared.  If it is the case that the plaintiff is eventually ordered to attend that independent medical exam, then there is no reason that this couldn’t be brought within the normal timelines”
When pressed on the point of urgency the defendant countered that “It’s urgent in the sense that we would like to just get it done.”
Mr. Justice Silverman agreed no urgency existed and dismissed the short leave application.  In doing so the Court provided the following comments to the Defendant:
“All right.  I’m against you on that…In my view, it’s not urgent.  You’ve got enough time to do it by giving appropriate notice.  The matter can be heard on that basis.  It may well be you’ll still be entitled to your order if the plaintiff is not willing to go, but in my view, it’s not urgent to require short leave so that I am denying that application“.
To my knowledge this Excerpt of Proceedings is not publicly available but as always I am happy to provide a copy to anyone who contacts me and requests one.