Skip to main content

ICBC Claims and Proper Objections to Examination For Discovery Questions

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure, Uncategorized. 130 Comments on ICBC Claims and Proper Objections to Examination For Discovery Questions

In one of the more in-depth judicial discussions of examinations for discovery in the context of a personal injury claims, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the scope of proper objections at a Plaintiff’s examination.
In today’s case (Nwachukwu v. Ferreira) the Plaintiff was injured in a 2006 collision.  In the course of the lawsuit the Plaintiff attended three examinations for discovery.  The Plaintiff’s lawyer raised numerous objections during these and the discoveries were ultimately cut short.  The Defendant brought an application directing the Plaintiff to answer the questions which were objected to and further for permission to conduct a lengthier examination for discovery pursuant to Rule 7-2(2).
Mr. Justice Willcock granted the application finding there was “significant obstruction” at the previous discoveries.  In doing so the Court provided the following helpful comments about the scope of discovery and of common objections:

[32] The scope of examination for discovery has recently been canvassed by this court in Kendall v. Sun Life Assurance Company of Canada, 2010 BCSC 1556; More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166; and Day v. Hume, 2009 BCSC 587.  In those cases, the court reiterated the following principles:  the language of Rule 7-2(18) is identical to the former Rule 27(22) and the scope of examination for discovery has remained unchanged and is very broad.  Rigid limitations rigidly applied can destroy the right to a proper examination for discovery.  Useful or effective cross-examination would be impossible if counsel could only ask such questions as plainly revealed their purpose.  An examination for discovery is in the nature of cross-examination.  Counsel for the party being examined should not interfere except where it is clearly necessary to resolve ambiguity in a question or to prevent injustice.

[33] The time limit established by Rule 7-2(2) creates a greater obligation on counsel for the party being examined to avoid unduly objecting or interfering in a way that wastes the time available.  A largely hands-off approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality.  Allowing wide-ranging cross-examination on examination for discovery is far more cost effective than a practice that encourages objections which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections.  It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial rather than on examination for discovery.  Where intervention is appropriate, the proper conduct of counsel is to state the objection to the form of a question and the reasons for the objection, but it is not appropriate to make comments, suggestions or criticism.

Applicable Law

[34] Many of the specific objections in issue are addressed in an article by John Shields and Howard Shapray published in The Advocate, Vol. 68, pt. 5 (September 2010) at page 671, referred to by Mr. Markham-Zantvoort in argument.

(a) Relevance

[35] Counsel objects to many questions on the grounds that they are not relevant.  In addressing these objections, I proceed from the proposition that counsel should have broad discretion to frame appropriate questions for the examination of the plaintiff, respecting the principles described in the cases to which I have referred.

(b) Confusion

[36] Counsel objects to many questions on the grounds that he finds them confusing.  In Cominco Ltd. v. Westinghouse Canada Limited (1979), 11 B.C.L.R. 142 (C.A.), the Court of Appeal at para. 19 held:

If a question is difficult to answer, the witness can say so and can be cross-examined about the difficulty. It is for the witness, not counsel, to deal with that.  Difficulty in answering does not exclude a whole area. It excludes specific questions.  No area of fact is closed on the ground that to enter it would “open the floodgates”.

(c) Repetition

[37] Counsel objects to questions he considers repetitive.  As Shields and Shapray note, “asked and answered” is not an appropriate objection in Canada.  Madam Justice Boyd in Rec Holdings Co. v. Peat Marwick Thorne Holdings, [1995] B.C.J. No. 1964 (S.C.), held at para. 9:

It is trite law that an examination for discovery is in the nature of a cross-examination.  While there will be situations in which repeating the same allowable question over and over on cross-examination may amount to intimidation, the Court must be slow to interfere where that tactic is used relatively sparingly and particularly in circumstances in which there are good grounds for the cross-examiner’s belief the witness may be falsifying his evidence.

(d) Inadequate Foundation

[38] Shields and Shapray say there is no requirement that a foundation be laid for a question.  In Cominco, the court noted at para. 632:

The objection is that no foundation was laid for the questions.  That suggestion does not appear to have been made at the time and I think that, if one objects, one should say why.  Presuming that this objection can now be made, I merely say that I know of no requirement that a foundation be laid.  None was cited to us.  Those questions should have been answered by the witness without interruption by counsel.

(e) Compound Questions

[39] Counsel routinely objected to questions that he considered to be compounded questions.  Shields and Shapray say, properly in my view, that objection to the form of question should be used sparingly.

(f) Privelege

[40] Counsel objected, at the most recent examination, when the plaintiff was asked what he alleges or says in relation to the claim.  The plaintiff cannot be asked what counsel told him about his claim or how the case will be framed at trial.  He may not be asked how much he will say he has lost, if the answer requires disclosure of an opinion obtained by the solicitor.  Question 1152 on the examination for discovery seems to seek such information.

[41] The witness cannot be asked to disclose how the facts having assembled, weighed or analysed by counsel.  That is what was offensive in the general requests considered by the court inTriathlon Ltd. v. Kirkpatrick, 2006 BCSC 890.  The questions asked in that case were held to offend the description of the privilege afforded to the solicitor’s brief in Hodgkinson v. Simms(1988), 33 B.C.L.R. (2d) 129 (C.A.).  It was the manner of getting at the work product by asking what facts had been assembled by counsel or what facts would be relied upon, rather than by asking about specific facts, that was objectionable.  The manner in which facts have been marshalled is a question going to trial strategy.  It is for that reason that I expect that counsel have included in the book of authorities Blue Line Hockey Acquisition Co., Inc. v. Orca Bay Hockey Limited Partnership, 2007 BCSC 143, although no express reference was made to it in oral submissions.  In that case, questions were held to be objectionable because of what was being sought: conclusions reached by counsel, rather than the evidence of the witness.

[42] Questions that intrude upon privilege are generally objectionable.  That is expressly reflected in Rule 7-2(18).  Care should be taken to protect the solicitor/client relationship.

Chambers Advocacy: Legal Authorities To Be Disclosed in Notice of Application

Written by admin on . Posted in BCSC Civil Rule 8, Civil Procedure, Uncategorized.


One of the ongoing trends in civil litigation is a trend to greater pre-trial disclosure.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing this principle finding that caselaw should be disclosed ahead of Chambers Applications to avoid “chambers by ambush“.
Last week’s case (De Corde v. De Corde) involved a motor vehicle collision.  The Defendant brought a short notice application to compel the Plaintiff to be assessed by a psychiatrist.  The application was dismissed and in doing so Master Bouck provided the following feedback about case-law disclosure for Chambers applications:

[65] The defence took exception to plaintiff’s counsel relying on authorities that were not cited in the response to the notice of application. In fact, the plaintiff makes no reference to any case law in her response. In contrast, the defendants prepared a comprehensive notice of application – including a synopsis of the legal basis for the application with reference to all of the authorities presented in oral argument.

[66] The defence position is not without merit. Both the notice of application and response under the SCCR invite a party to provide a thoughtful written synopsis of legal argument. A properly prepared notice of application or response ensures that the opposing party knows the argument to be met. Thus, there should be no longer be occasion for “chambers by ambush”.

[67] Indeed, in my view, it should be only in the rare instance that a party will surprise the other by citing in oral argument authorities not mentioned in these forms.

[68] Nonetheless, an application brought on short notice would seem to me to be one of those rare instances. Plaintiff’s counsel should not be faulted for any apparent omission in a response necessarily prepared on the eve of the application.

$70,000 Non-Pecuniary Damage Assessment for Subligamentous Disc Herniation

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Spine Injury Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Kamloops Registry, assessing fault and damages stemming from a 2006 motor vehicle collision.
In last week’s case (Power v. Carswell) the Plaintiff was involved in a two vehicle collision in Kamloops, BC.   The Defendant blew a red light while attempting a left hand turn and collided with the Plaintiff’s vehicle.  Although he denied liability the Court found him fully at fault.
The Plaintiff suffered various injuries in this collision the most serious of which was a subligamentous disc herniation at L4-L5.

She was expected to have chronic lower back pain as a result of this injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $70,000 Madam Justice Gray provided the following reasons:

[178] Ms. Power suffered moderate soft tissue injuries to her chest, left neck, left shoulder, and lower back in the Accident. The Accident caused a subligamentous disc herniation at L4-L5 which has caused her significant pain in her lower back. Despite painful treatment by cortisone injections into her hips and epidurally, her pain persists.

[179] Ms. Power now experiences hip and lower back pain which limits her ability to sit, stand, walk, and bend. She also experiences shoulder pain which limits her ability to hold her hands near or above shoulder level. As a result of these limitations, she can no longer work as a hairstyling teacher. Ms. Power made significant efforts following the Accident to continue in that line of work, but even with significant modifications, she was not able to do so on a prolonged basis. She has made the reasonable decision to pursue a different career which will more likely suit her physical capacity.

[180] As a result of her injuries, Ms. Power is also less able to care for herself and her family. For example, she has difficulty styling her own hair and doing laundry and other chores.

[181] As a further result of her injuries, Ms. Power suffers pain and is less able to enjoy recreational activities. For example, she is less able to go on long walks, to dance, and to sit for long drives or movies…

[188] In all the circumstances, an appropriate award for Ms. Power’s non-pecuniary losses is $70,000.

Sex Abuse Settlements and the "Re-Victimization" of Confidentiality Agreements

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized.

Earlier this year I posed the question “are secret sex abuse settlements unethical?“.
This question was raised in the face of CBC’s reporting that Scouts Canada settled sex abuse claims and that confidentiality was a staple term.  CBC has continued to follow this matter.  Scouts Canada has softened their approach with respect to these settlements and now CBC reports that a historic abuse victim welcomes this development stating “It means freedom to speak as I wish — should I choose to speak — or not speak.”

When asked about the consequences of the confidentiality agreement following settlement CBC reports the following quote attributed to the victim of historic abuse “In a sense, you are revictimized...You become the isolated person who has to not tell anybody what the most important thing in your life is.”
Given this profound burden I repeat the question, is there any greater good that comes from the enforcement of these confidentiality agreements which outweighs their harm?

Court Can't "Ride Roughshod" Over Solicitor's Brief Privilege At a Case Planning Conference

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 5, BCSC Civil Rule 7, Civil Procedure, Uncategorized. 64 Comments on Court Can't "Ride Roughshod" Over Solicitor's Brief Privilege At a Case Planning Conference


Reasons for judgement were recently brought to my attention discussing the scope of powers of the Court at Case Planning Conferences. Specifically the Court found that Rule 5-3 does not provide the power to over-ride common law principles of privilege.
In the recent case (Galvon v. Hopkins) the Plaintiff was injured in a motor vehicle collision. She sued for damages. As the lawsuit progressed the Plaintiff did not provide any expert medico-legal evidence to the Defendant.
This concerned the Defendant who brought a Case Planning Conference and obtained an order requiring the Plaintiff to “notify counsel for the defendant of the name of the neurologist with whom the appointment had been made and the date of the appointment, and secondly, that the parties were to provide opposing counsel with written notice forthwith upon any appointment being set for the plaintiff with medical experts, such notice to include the name of the expert, the expertise of the expert, and the date of the appointment“.
The Plaintiff appealed arguing that the Court did not have jurisdiction to make such orders under the Rules of Court. Madam Justice Kloegman agreed and allowed the appeal. In doing so the Court provided the following reasons:
21. I agree with counsel for the plaintiff’s submission that Rule 5-3 cannot be read as to allow the Case Planning Conference Judge or Master to disregard the common law principle of privilege.
22. In my view, Master Bouck was fixated upon settlement of the litigation; always a commendable and important goal of a case planning conference, but not at the cost of ignoring the boundaries of her jurisdiction. It may well be that such information could have been exchanged at a settlement conference, which is a voluntary and without prejudice process, but it should not be mandated as part of trial preparation.
23. …She did not appear to consider that the object of the Rules to avoid trial by ambush only apply to evidence that would be used at trial, not to expert advice received through consultation.
24. By requiring the plaintiff to disclose the very fact of her attendance before a medical expert, and run the risk of an adverse inference if she did not call the expert at trial, the master was also interfering with the plaintiff’s right to elect which witnesses to call. Such interference is not sanctioned, or warranted, I might add, by our Supreme Court Rules.
25. Having concluded that our Rules do not grant the presider at a case planning conference the power to make the orders made by Master Bouck, it follows that she did not have the jurisdiciton to do so.
26. The appeal is allowed and Master Bouck’s orders will be set aside.

Formal Settlement Offers and Costs: A Matter of Discretion

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized. 53 Comments on Formal Settlement Offers and Costs: A Matter of Discretion


As recently discussed, costs consequences following trial where a formal settlement offer is not beat is a matter of judicial discretion.  While the principles behind the exercise of that discretion are reasonably well formulated the costs results can be a little trickier to predict.  Two sets of reasons for judgement were released this week by the BC Supreme Court demonstrating this discretion in action.
In the first case (Khunkhun v. Titus) the Plaintiff advanced a personal injury claim in excess of one million dollars.  She claimed she suffered from “a significant and disabling vestibular injury” as a result of a collision.  The jury largely rejected the Plaintiff’s sought damages and awarded $45,000.
ICBC made a more generous settlement offer prior to trial which the Plaintiff did not accept (about 30% higher than the jury award).   As a result, Mr. Justice Willcock stripped the Plaintiff of her costs from the time of the offer onward.  The Court did not go so far as to order that the Plaintiff pay the Defendant costs finding that it would be unjust.  Mr. Justice Willcock repeated the following reasoning from Madam Justice Humphries in Lumanlan v. Sadler:
Given the significant injury to the plaintiff, which was caused by the defendant’s foolish and reckless behaviour, and the effect on the award of a further reduction for costs, even if not doubled, and taking into account all of the above considerations, in my view it would not be fair or just to require the plaintiff to pay ICBC’s costs after the date of the offer.
In the second case released this week (Mazur v. Lucas) the Plaintiff was awarded $538,400 following a jury trial to compensate her for injuries sustained in a collision.  ICBC appealed and succeeded in having a new trial ordered.
Prior to the second trial ICBC made a formal settlement offer of $300,000.  The Plaintiff rejected this and proceeded to trial again.   This time the jury came in lower awarding $84,000 in damages.
ICBC brought an application seeking costs for both trial.  The result of this would have been financially significant.    Madam Justice Humphries declined to allow this and instead awarded the Plaintiff costs for both trials despite not besting ICBC’s offer.  In exercising its discretion the Court provided the following reasons:
[62] This court has stated many times that parties should be encouraged to settle, and if unreasonable in not doing so, may be punished in costs.  As well, the fact that an award of costs against a party may wipe out their award of damages is not determinative.  However, given all the circumstances that existed at the time the offer was made which did not change throughout the trial, I am not persuaded that the plaintiff ought to be denied her costs on the basis that she ought reasonably to have accepted the offer that was made twelve days before the trial began.  Having in mind the amount of the first award, the narrow issue upon which a new trial was ordered, the amount of the second offer, and the expected similarity of the evidence at the second trial, the plaintiff was reasonable in deciding not to accept the offer and to have the action adjudicated by a second jury.
In addition to this final result, this case is worth reviewing for the Court’s discussion of advance payment orders.  Prior to the second trial ICBC paid the Plaintiff $250,000 in exchange for a stay of execution so the Plaintiff would not collect the damages from the Defendants personally.  Madam Justice Humphries found that an advance payment after judgement should not be factored into a costs assessment.  The Corut provided the following reasons:

[14] The defendants argue that the plaintiff should be deprived of her costs of the second trial as of December 24, 2009, the date on which the negotiated agreement was signed.  They cite cases dealing with situations in which awards at trial are less than an advance, and in which plaintiffs have been deprived of costs as of the date of the advance (McElroy v. Embelton (1996), 19 B.C.L.R. (3d) 1 (B.C.C.A.); Baxter v. Brown (1997), 28 B.C.L.R. (3d) 351 (B.C.C.A.).

[15] However, those cases are all advances before trial.  The basis on which the Court of Appeal in those cases concluded that the date of the advance was relevant to costs was because the plaintiff “had in hand more at the start of the action than the amount of the jury’s verdict.” (see McElroy).  The plaintiff, upon receipt of an advance, must realistically assess his or her claim knowing that proceeding to trial carries a risk in costs (Carey v. McLean, 1999 BCCA 222).

[16] This advance was one paid to avoid execution on an existing judgment, pending an appeal that would proceed regardless of whether the plaintiff wished to accept the money in final settlement of the action or not.  That option was not open to her.  The agreement signed by the plaintiff required repayment if a new trial were ordered and the results were not favourable to her, but did not give her the option of accepting the money and ending the proceedings.  This advance payment, unlike those in the cases cited by the defendant, is not the equivalent of an offer to settle.

[17] The date of the advance is not appropriately considered in these circumstances.

Employer Not Vicariously Liable for Abuse Between Adult Co-Workers in Commercial Enterprise

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized. 51 Comments on Employer Not Vicariously Liable for Abuse Between Adult Co-Workers in Commercial Enterprise

Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing whether an employer should be found vicariously liable for harm caused by sexual abuse committed by one worker against another.  In short the Court found that without an employer giving more than an opportunity for abuse by virtue of “time and place” vicarious liability should not apply.
In last week’s case (Corfield v. Shaw) the Plaintiff was victimized on a number of occasions by her supervisor at work.   The supervisor was found liable and ordered to pay damages.  The Court was asked to find the employer vicariously liable for the abuse but refused to do so finding that the law should not extend liability in these circumstances.  In dismissing the claim against the employer Mr. Justice Butler provided the following reasons:

[73] The question a court must consider where there has been a sexual battery is whether the unauthorized acts of the employee are so connected with authorized acts that “they may be regarded as modes (albeit improper modes) of doing authorized acts”.  In Bazley, the court set out a two-step process for determining when an unauthorized act is so connected to the employer’s enterprises that vicarious liability should be imposed.  The first step is to consider whether there are precedents which unambiguously determine whether vicarious liability should apply in the circumstances.  The second step is to determine whether vicarious liability should be imposed in light of the policy rationales behind strict liability.

[74] The parties did not fully argue the first step analysis; whether there are precedents applicable to the vicarious liability analysis in this case.  This is likely because very few decisions which have considered the vicarious liability of employers since Bazley involve adult co-workers in commercial enterprises. ..

[76] In the absence of prior decisions which unambiguously determine whether vicarious liability should be found, I must proceed to the second step of the analysis.  This is described at paras. 41 and 42 in Bazley.  At this stage of the analysis, a court is to “openly confront the question of whether liability should lie against the employer”.  That is done by considering if there is “a significant connection between the creation or enhancement of a risk and the wrong that accrues”.  Incidental connections to the employment enterprise, like time and place (without more), will not suffice.  Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business.  In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer.

[77] At para. 41 of Bazley, McLachlin J. (as she then was) set out some of the factors that may be considered by a court to determine if there was a strong connection between what the employer was asking the employee to do (i.e. the risk created by the employer’s enterprise) and the wrongful act:

(a)   the opportunity that the enterprise afforded the employee to abuse his or her power;

(b)   the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);

(c)   the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;

(d)   the extent of power conferred on the employee in relation to the victim;

(e)   the vulnerability of potential victims to wrongful exercise of the employee’s power.

[78] At para. 46, McLachlin J. summarizes the approach to this step:

In summary, the test for vicarious liability for an employee’s sexual abuse of a client should focus on whether the employer’s enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm. The test must not be applied mechanically, but with a sensitive view to the policy considerations that justify the imposition of vicarious liability __ fair and efficient compensation for wrong and deterrence. This requires trial judges to investigate the employee’s specific duties and determine whether they gave rise to special opportunities for wrongdoing. Because of the peculiar exercises of power and trust that pervade cases such as child abuse, special attention should be paid to the existence of a power or dependency relationship, which on its own often creates a considerable risk of wrongdoing.

[79] When I apply the relevant factors to the circumstances of this case, I conclude that there was not a strong connection between what Mr. Shaw was asked to do and the sexual assaults he committed.  The opportunity afforded to Mr. Shaw to abuse his power was not significant or unusual.  The assignment of work was done openly.  There was ample opportunity for employees to raise issues about the work or work assignments with senior management, Mr. Baker.  The wrongful acts did not further the employer’s aims in any way.  It cannot be seriously contended that there was friction, confrontation or intimacy inherent in the business of Baker Industries.  There was nothing about the operation of a residential service plumbing business that created situations of intimacy between employees.  While Mr. Shaw was provided with supervisory authority in relation to Ms. Corfield and other employees, the power given to him was not extensive.  As I have already noted, it was not power that could be easily used for a wrongful purpose.  Finally, plumbers in the employ of Baker Industries would not be expected to be potentially vulnerable to the wrongful exercise of Mr. Shaw’s authority as a supervisor.

[80] In short, there is nothing about the enterprise of Baker Industries or the authority imparted to Mr. Shaw that materially increased the risk of sexual assault of fellow employees.  Quite simply, this is a situation where Mr. Shaw took advantage of incidental connections to Ms. Corfield that occurred in an employment relationship.  He took advantage of the opportunities of time and place.  That alone is not sufficient for a finding of vicarious liability.

Defendant Not Liable For Collision Caused By Black Ice

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


Reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, discussing the issue of fault for a crash involving black ice.
In this week’s case (Johns v. Friesen) the Plaintiff was a passenger in the Defendant’s vehicle.  The Defendant encountered black ice and lost control of his vehicle.  The Plaintiff was injured in this incident and sued for damages.  The value of the Plaintiff’s case was agreed to leaving the Court to deal only with the issue of fault.  Madam Justice Kloegman ultimately found that the Defendant was not driving negligently and dismissed the Plaintiff’s injury claim.  In doing so the Court provided the following reasons:

[35] In my opinion, this was an unfortunate case of accident that is not attributable to anyone. There is an insufficient evidentiary basis to find that the defendant Friesen was driving below the standard of care of a reasonable, prudent driver. In fact, the evidence established that although it was winter, the driving conditions were good. The Truck and tires were in new and excellent condition. The plaintiff and defendant Friesen were both well-rested. The road conditions were good the day before and that morning, both through Merritt and on the highway. There had been no warnings from any source of black ice. The black ice was invisible, and the defendant Friesen was driving at least 20 kilometers per hour below the speed limit.

[36] The standard of care of a driver in these circumstances is not one of perfection: Hadden v. Lynch, 2008 BCSC 295 at para. 69. The defendant Friesen admitted that he should not have braked, but braking in such a situation is an automatic reflex to try and regain control of a skidding vehicle. The plaintiff did not suggest that this automatic reaction of the defendant Friesen could be the sole foundation for a successful allegation of negligence.

[37] In conclusion, I dismiss the plaintiff’s case as having failed to show on a balance of probabilities that the plaintiff was negligent in the circumstances.

This case, along with the fast approaching winter season, makes this an opportune time to remind passengers injured in single vehicle collisions of the use their statement to ICBC can have on their injury claim.  My previous post addressing this topic can be found here.

$20,000 Non-Pecuniary Damages for "Minor Exacerbation of Pre-Existing Symptoms"

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for the aggravation of pre-existing injuries caused by a so-called Low Velocity Impact.
In today’s case (Pearlman v. Phelps Leasing Ltd.) the Plaintiff, a 77 year old retired lawyer, was involved in a 2007 collision.  He had pre-existing injuries from a 2004 collision and the Court found that these were exacerbated for a short while following the 2007 crash.  The Court expressed serious concern about the Plaintiff’s credibility with the following observation:
[3] The plaintiff’s credibility from the onset of the trial before me through to its conclusion dissipated like aspirin in a glass of water until all that remained was a murky, cloud-like substance. Amongst his many inconsistencies and exaggerations, the most shocking was that the testimony of his injuries in the trial before me was nearly identical to the testimony he gave at the 2008 trial, in which he blamed the 2004 Accident for all the problems he was experiencing in 2008.
Despite this the Court found that the Plaintiff did suffer injury in the 2007 crash.  In assessing non-pecuniary damages at $20,000 Madam Justice Kloegman provided the following comments:
[44] After having reviewed all of the exhibited medical records and reports, and after considering all of the viva voce testimony, it seems fair to conclude, on a balance of probabilities, that it is more likely than not that the plaintiff experienced from the 2007 Accident an exacerbation of his pre-existing symptoms. However, it appears to have been minor and not long in duration. The plaintiff developed no new symptoms. He was back doing physical labour within a few days, and his complaints from that time to the present would likely have continued, regardless of the 2007 Accident. His pre-existing condition was well described by Dr. Baird and Dr. Keyes and there was no reliable, positive evidence to indicate that he developed some further injury of a permanent nature as a result of the 2007 Accident. It is telling, indeed, that the plaintiff’s statement of claim with respect to the 2004 Accident is almost identical to his statement of claim respecting the 2007 Accident…
[47] The case law indicates that a reasonable award of non-pecuniary damages for the plaintiff’s aggravated injury is in the range of $15,000 to $20,000 (Hough v. Wyatt, 2011 BCSC 910; and Dempsey v. Oh, 2011 BCSC 216). It is interesting to note that in both these other cases, the plaintiff was found to be lacking credibility and the Court was obliged to rely on the medical evidence to determine the cause of the plaintiff’s claims of injury. I find myself in a similar position, and on the evidence before me, I award the plaintiff $20,000 in total damages arising from the 2007 Accident.

Future CPP Benefits and ICBC UMP Deductions

Written by admin on . Posted in ICBC UMP Cases, Uncategorized. 44 Comments on Future CPP Benefits and ICBC UMP Deductions

Last year an arbitration award was released addressing the deduction of future CPP benefits from an ICBC UMP Claim.
In last year’s case (ME v. ICBC) the 32 year old Claimant was severely injured in a 1997 motor vehicle collision.   She suffered serious brain trauma and as a result “was left functioning at a Grade 7 level in terms of her academics“.  Despite her long term injury the “very ambitious” claimant re-entered the workforce and by the time of her arbitration she had secured full time employment.  Prior to this the Claimant had received CPP benefits totally$78,542.94.  These benefits were terminated with the Plaintiff’s return to work.  It was agreed that ICBC could deduct this prior to paying out on the Claimant’s UMP Claim.
The parties could not agree as to how much more ICBC could deduct given the possibility of future CPP payments.  ICBC argued that the present day value of future CPP benefits should deducted, namely $135,652.  Arbitrator Boskovich found that while such a deduction would be unreasonable a modest deduction should apply to address the reality that the Plaintiff may at some point in the future receive CPP benefits.  Arbitrator Boskovitch reduced ICBC’s UMP payment by just over $20,000 to take this risk into account.  In doing so the following reasons were provided:
102.  I agree with Counsel that the standard of proof to be applied to future hypothetical events is simple probability and not the balance of probabilities.  That being said it remains that the probability, possibility or chance that a future event may occur, in this case the Claimant applying for and receiving CPP disability benefits in relation to her accident injuries, must be a real and substantial one.
103.  In addressing whether or not there is a real and substantial possibility of the Claimant receiving CPP disability benefits in the future one has to consider the relative likelihood of both positive and negative contingencies that might affect the Claimant’s ability to work and the anticipated course with respect to her accident injuries/disabilities…
116.  It has been 13 years since the accident.  2010 will be the first full year of employment the Claimant has maintained since the accident.  To assume the Claimant’s accident injuries, in particular, her very serious brain injury and deficits are going to have no impact on her ability to work to age 65 is unreasonable.
117.  However, it does not automatically mean that the impact translates into a real and substantial risk that the Claimant will face a severe and prolonged mental or physical disability such that she is not substantially gainfully employable as defined in the CPP Legislation.
118.  That is not to say there is no risk whatsoever.  I cannot ignore the concerns outlined by the Claimant’s Mother.  As well, I cannot ignore the evidence of Dr. LeBlanc.  It may be difficult for the Claimant to find jobs over the course of her working life.  Such jobs must have structured routine, few distractions and no multi-tasking.  Her cognitive issues may be aggravated in unfamiliar and stressful situations.
119.  Having regard to all of the evidence, I believe there is a 15% chance or possibility that the Claimant will apply for and receive disability benefits from CPP in connection with her accident injuries.
120.  The parties agree that the present day value of the CPP disability payments to the Claimant’s age 65 is $135,652.00 and, in this regard, the appropriate contingency deduction to be made pursuant to Regulation 148.1(1)(f) is $20,347.80
For more on this topic you can click here to read my summary of the 2008 UMP Arbitration Award in SPW v. ICBC.