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Only Two Ways to Get to UMP

Written by admin on . Posted in ICBC UMP Cases, Uncategorized. 99 Comments on Only Two Ways to Get to UMP

An important arbitration decision was released last year demonstrating that there are only two ways to get standing at an UMP arbitration proceeding; either with the consent of ICBC or by having an unsatisfied judgement against the tort feasor.  The case also addresses the effects of a tort release in subsequent UMP proceedings and lastly the consent requirement under s. 148.2(4)(b) of the Insurance (Vehicle) Regulation finding that ICBC needs to demonstrate real prejudice to rely on this section.
In last year’s case (GG v. ICBC) the Claimant was injured in a Washington State motor vehicle collision.  The at fault motorist had very low third party liability coverage and likely was underinsured for the circumstances.  The Claimant had Underinsured Motorist Protection (UMP) with ICBC.
The Claimant sued in Washington State and the at fault motorist admitted liability.   Since the Washington State court award would not be binding on ICBC regarding the value of the claim the Claimant sought ICBC’s permission to settle for policy limits and proceed to UMP arbitration to determine the value over and above this amount that would be payable.  ICBC would not consent to this.  The Claimant settled his claim and started an UMP proceeding.  ICBC challenged this arguing the Claimant did not have standing to do so.  Arbitrator Yule agreed finding there are only two ways to get standing in an UMP Claim. In dismissing the claim Arbitrator Yule provided the following reasons:
37.  The essence of the dispute between the parties regarding the entitlement issue is whether there is a “third way” for a Claimant to establish the right to proceed to arbitration.  ICBC says there are only two ways to establish that right, namely (1) an unsatisfied judgement against the tortfeasor or (2) the consent of ICBC.  The Claimant says there is a third way, namely, by admissions of the tortfeasor, both as to fault for the accident (legal liability and legal entitlement) and as to an inability to satisfy any damages that may be awarded…The Claimant asserts that in this case compelling him to obtain judgement in the Washington State action is unfair, particularly having in mind the uselessness of an assessment of damages under Washington State law.  I agree.  However, in light of the legal authorities, I am constrained to conclude that the Claimant is not entitled to UMP compensation because he has not established the necessary prerequisites.
This finding was fatal in and of itself to the Claim, however, Arbitrator Yule also addressed the effects of a full and final release as against the tort-feasor.  When the Claimant settled with the at fault driver the typical release was signed.  Arbitrator Yule found that signing this release absent ICBC’s consent compromised the Claimant’s rights to an UMP Claim and provided the following reasons:
61.  Accordingly, I am constrained to find that in the absence of the agreement of ICBC that the claimant may do so and still proceed to an arbitration of his UMP Claim, the entry of a Consent Dismissal Order in the Washington action and the provision of a Full and Final Release of SK mean that the claimant is no longer legally entitled to recover damages from SK and there is no “excess” damages that could be the subject of an UMP Claim.  Hence, the claimant is not entitled to advance an UMP claim now.

Hard Data About ICBC Bodily Injury Claim Frequency and Severity

Written by admin on . Posted in Tort Reform, Uncategorized. 55 Comments on Hard Data About ICBC Bodily Injury Claim Frequency and Severity

The BC Utilities Commission recently posted a number of documents which were filed in support of ICBC’s request for a modest insurance premium increase.  These are worth reviewing in full for information relating to ICBC’s fiscal health.  From a public perspective the good news is that ICBC operates profitably.
ICBC stresses “changes in investment income” as one of the main reasons behind the rate increase request.  As previously discussed, while their investment income is down, if the government didn’t scoop ICBC’s revenues when their investment income was high a rate increase would not even be contemplated at this time.  When your profits are taken from you its hard to save for a rainy day.
The other point stressed by ICBC relates to rising bodily injury claims.  Specifically ICBC’s Manager of Regulatory Affairs says “the main  change from past  years  being  higher  claims frequency“.  With this in mind perhaps the most interesting data in the documents are the hard statistics relating to the severity and frequency of bodily injury claims.  I reproduce some of the key charts below.
Its worth noting in analyzing the data from 1996-present there is an overall trend of bodily injury claims declining in frequency.  Specifically, Weekly Benefit Claims are down in frequency and have modestly increased in severity. Personal Medical Rehab Claims are down in frequency and steady in severity.  Personal Death Benefit payments are down in frequency and steady in severity and finally Personal Bodily Injury Claims continue to be down in frequency with a modest increase in severity.
I welcome this information being publicly available so British Columbians know that hard data supports BC’s full tort system as being financially viable.  We are fortunate to live in a Province where an informed public is not fooled into giving up their legal compensation rights and ability to access justice due to a perceived auto insurance “crisis“.



BC Sexual Abuse Civil Cases and the Law of "Indivisible Injury"

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

As previously discussed, the law of damages in BC has developed as follows with respect to indivisible injury compensation:
[55] Indivisible injuries are those that cannot be separated, such as aggravation or exacerbation of an earlier injury, an injury to the same area of the body, or global symptoms that are impossible to separate: Bradley, at para. 20; see also Athey, at paras. 22-25.

[56] If the injuries are indivisible, the court must apply the “but for” test in respect of the defendant’s act. Even though there may be several tortuous or non-tortuous causes of injury, so long as the defendant’s act is a cause, the defendant is fully liable for that damage: Bradley, at paras. 32-37; see also Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 19-23.

This principle becomes particularly important with respect to civil sexual abuse claims.  The sad reality is that many abused people are repeat victims with a number of different wrongdoers taking advantage of them.  If this is the case, and if the overall harm caused by the abuse is “indivisible” then the victim can collect their damages for the whole of the indivisible injury from any one of their perpetrators.  This principle was demonstrated in reasons for judgment released this week by the BC Supreme Court, Victoria Registry.
In this week’s case (Corfield v. Shaw) the Plaintiff was the victim of childhood sexual abuse at the hands of her stepfather.  The abuse was “egregious and prolonged“.  Later she was the victim of sexual abuse at work.  The latter abuse was of a less severe character.  She sued for damages as a result of the workplace abuse.  The Defendant was ultimately found liable.
The Defendant argued that the damages should be modest because the Plaintiff “was still experiencing emotional and psychological difficulties from the Childhood abuse” and that these consequences “would have continued thereafter even without Mr. Shaw’s wrongful actions“.  Mr. Justice Butler rejected this argument and assessed damages on an indivisible basis.  In doing so the Court provided the following reasons:

[101] There is no question that the nature of the emotional and psychological injuries she suffered as a result of the Childhood Abuse is similar to, if not the same as, what she has experienced since the Assaults.  Any attempt to divide those injuries into causes as between the two tortfeasors would be artificial.  There was no evidence proffered which would allow me to conclude that some of the symptoms or emotional difficulties suffered by Ms. Corfield since 2005 were caused solely by the Childhood Abuse.  Accordingly, I conclude that all of Ms. Corfield’s emotional and psychological difficulties since 2005 were caused or contributed to by the Assaults.  In other words, the injuries she has suffered from since 2005 are indivisible from those injuries suffered from the Childhood Abuse.

[102] In reaching that conclusion, I am not suggesting that the Assaults were the only cause of her injuries, just that her “damage and loss has been caused by the fault of two or more persons”, one of whom is Mr. Shaw.  As a result, in accordance with the provisions of s. 4 of the Negligence Act, R.S.B.C. 1996, c. 333, Mr. Shaw is jointly and severally liable for the injuries suffered since the Assaults, and he is responsible for the full cost of loss and damage suffered since the Assaults subject to consideration of the crumbling skull principle.

[103] The difference between a thin skull and a crumbling skull is described in Athey at paras. 34 and 35:

… The “crumbling skull” doctrine is an awkward label for a fairly simple idea.  It is named after the well-known “thin skull” rule, which makes the tortfeasor liable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though the plaintiff’s losses are more dramatic than they would be for the average person.

The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”.

[104] One aspect of Ms. Corfield’s “original position” was described by Dr. Bruce; she was “more vulnerable to experience a more intense emotional affect from stressful events”.  In other words, she was fragile and susceptible to suffering emotional damage.  There is no question that this condition falls within the “crumbling skull” category.  Ms. Corfield continues to have that susceptibility and Mr. Shaw does not have to compensate her for continuing vulnerability.

[105] However, the defendants also argue that Ms. Corfield was still experiencing emotional and psychological difficulties from the Childhood Abuse before she was assaulted by Mr. Shaw.  They say the symptoms she suffered from included anxiety, depression, poor sleep, nightmares, alcohol abuse and other symptoms.  The evidence of Ms. Corfield’s mother provides some support for this position.  Ms. Corfield herself said that she “felt herself fairly recovered” from the Childhood Abuse.  I take this to mean that she was doing reasonably well but had not fully recovered.  In cross-examination she admitted that her doctor recommended she attend counselling in 2003 and 2004.  This confirms that in the two years before she started working at Baker Industries she was experiencing emotional difficulties.  She also admitted to continuing intimacy problems arising from the Childhood Abuse…

[116] In these circumstances, an appropriate award for non-pecuniary damages including the aggravating circumstances is $70,000.  This must be reduced to take into account Ms. Corfield’s pre-existing condition.  A deduction of 15% results in an assessment of $59,500.  I will round that up and award the sum of $60,000 for non-pecuniary damages.

Social Media and Computer Hard Drive Requests "A fishing expedition…without the appropriate bait"

Written by admin on . Posted in BCSC Civil Rule 7, ICBC Privacy Issues, Uncategorized. 56 Comments on Social Media and Computer Hard Drive Requests "A fishing expedition…without the appropriate bait"


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a defendant application requesting the production of a Plaintiff’s Facebook postings, Twitter postings, Computer Hard Drive and Iphone.
Today’s case (Dosanjh v. Leblanc and St. Paul’s Hospital) involved allegations of medical malpractice.  The plaintiff said she suffered “cognitive impairment that has affected her thinking process“.  She sued for damages.  The Defendants brought an application seeking that the Plaintiff produce her private social media account information and computer hard-drive data arguing that this information would be relevant to the claimed damages.  Master Taylor dismissed the application finding such a broad application, even in the face of alleged cognitive injuries, was “a classic fishing expedition, but without the appropriate bait.“.  Master Taylor provided the following reasons:

[28] The defendant has not indicated the material fact or facts which it believes can be proved by searching the plaintiff’s personal computer and her social media sites.  Rather, the defendant merely says that health, enjoyment of life and employability are in issue.  Surely more is or should be required to meet the test of Rule 7-1(1)(a)(i) than just saying a particular matter is in issue in order to infringe on a litigant’s privacy.

[29] To be able to obtain a litigant’s private thoughts and feelings as expressed to friends or family members after the fact is, in my view, similar to a party intercepting private communications of another party.

[30] I am unable to envisage any rational justification for breaching the privacy rights of an individual in civil proceedings simply because it is alleged that the individual’s general health, enjoyment of life and employability are directly at issue.  Merely because a record may be made of the communication shouldn’t make it any different than a private telephone conversation.  If not, surely applications in civil proceedings for recordings of private communications can’t be far behind…

[33] I am satisfied that the defendant’s application is entirely too broad and lacks the focus required by Rule 7-1(1)(a)(i).  In fact, I am more inclined to call this application a classic fishing expedition, but without the appropriate bait.  I observe as well that the order made by the court in Bishop, supra, was focussed on the times the plaintiff spent on his Facebook account on his computer, and did not give the defendant cart blanche to troll through the plaintiff’s correspondence as is sought in the application before me.

Should the Rules of Court Be Flexible for Treating Physicians?

Written by admin on . Posted in BCSC Civil Rule 11, independent medical exams, Uncategorized. 1 Comment on Should the Rules of Court Be Flexible for Treating Physicians?

(The Below article was first published yesterday at Slaw)
There are two types of expert medical witnesses in personal injury cases; treating physicians and ‘professional‘ witnesses.  I don’t note this with any criticism of the latter category but simply point out that often doctors are brought to Court (by both Plaintiffs and Defendants) to act as independent medical experts to provide opinion evidence.  These professional witnesses often have no role in treating an injured plaintiff.
The BC Supreme Court Rules have strict requirements for expert opinion evidence.  These Rules are applied with equal rigour to both categories of experts.   ‘Professional‘ witnesses  often have little difficulty producing reports which comply with the strict requirements of Rule 11-6.  Treating physicians, on the other hand, often have crucial evidence to share and their opinions are highly valued but they sometimes struggle with the technical requirements of the rules of court.
Treating physicians often want little to do with the Court and have little experience with the nuances of writing reports that meet the rules of evidence.  When asked to author medico-legal reports many are reluctant to do so in the first place and when they do the reports are not slick, polished or necessarily compliant with all of Rule 11’s requirements.
This lack of compliance can risk treating experts’ reports being excluded from evidence.  While the Rules of Court provide judges with discretion to allow expert evidence to be admitted even if technically non-compliant with the Rules of Court “if the interests of justice require it“, this threshold often will not be met by explanation of witness inexperience with the Rules of Court.
New York personal injury lawyer Eric Turkewitz raised the following concern in response to judicial scrutiny of treating doctor reports in his jurisdiction:
New York’s No-Fault law is out of control. It seems to have reached the point where judges are almost demanding one of two things from injured patients: That their doctors get legal tutoring on how to write reports that will satisfy the judiciary, or alternatively, that injured patients seek treatment from only those doctors that already know how to write medical-legal reports.
As was illustrated in the recent BC decision of Milliken v. Rowe, a treating expert is perhaps the most desirable witness for a trier of fact to hear from when it comes to addressing a Plaintiff’s injuries.  Appreciating this, can a balance be struck holding these experts to a more flexible standard when providing a Court with opinion evidence?  Should the Rules be amended to create different standards for treating doctors versus professional witnesses?  Thoughts and feedback are appreciated.

Disjunctive Nature of Rule 15 Confirmed by BC Supreme Court

Written by admin on . Posted in BCSC Civil Rule 15, Uncategorized.


Earlier this year Master Bouck found that Rule 15 applies to cases worth below $100,000 regardless of length of trial and conversely to cases worth more than $100,000 where the length of trial is three days or less.  This reasoning was confirmed in reasons for judgement released this week by Mr. Justice Grist.
In this week’s case (Sandhu v. Roy) the Plaintiff was injured in two separate motor vehicle collisions.  He sued for damages and both actions were set for hearing, by consent, at the same time.  ICBC unilaterally put the cases into Rule 15 and set a trial for three days.  The Plaintiff applied to remove the case from Rule 15 arguing the case did not meet with its requirements given the value of the claims and the length of trial necessary.
ICBC argued that liability was “not seriously in dispute” and the trial can be completed in three days.  Mr. Justice Grist found with liability denied in the pleadings the case was not suitable for fast track litigation and ordered the matter removed from Rule 15 (unless ICBC formally admitted liability within 14 days).  In doing so the Court provided the following reasons confirming the Disjunctive nature of the fast track Rule:

[12] The defendants’ point that the prerequisites for a Fast Track Notice are listed disjunctively is sound. In Hemani, Master Bouck recognized the disjunctive list of criteria in Rule 15-1(1), as allowing for a case requiring more than three days to be set on Fast Track, and held that an action will not be removed from Fast Track on an application under 15-1(6) for that reason alone. Rule 15-1, however, presents something of a conundrum on the question of removal of an action from Fast Track as a result of an estimated trial length beyond three days. If the action proceeds to a Trial Management Conference, Rule 15-1(14) applies:

If trial will require more than 3 days

(14)      If, as a result of the trial management conference in a fast track action, the trial management conference judge considers that the trial will likely require more than 3 days, the trial management conference judge

(a)        may adjourn the trial to a date to be fixed as if the action were not subject to this rule.

[13] In a case like this one, where only three days are set aside for trial and the circumstances indicate that significantly more days are required, should the matter proceed to a Trial Management Conference, the court would in most cases be forced to require a second trial date be set, and may often be called on to remove the action from the strictures of the Rule…

[16] I find merit in plaintiff’s application and would accede to the adjournment of the trial and removal of the action from the Fast Track Program. I consider, however, that the orders may not ultimately be necessary if liability for the two collisions were to be admitted. Defence counsel should be given the opportunity to re-assess his position once the effect of this decision is known. Accordingly, I will stipulate that the two orders will become effective should the liability issues not be settled within 14 days of these Reasons.

Maternity Leave EI Benefits Not Deductible in ICBC UMP Claims

Written by admin on . Posted in ICBC UMP Cases, Uncategorized. 49 Comments on Maternity Leave EI Benefits Not Deductible in ICBC UMP Claims


Since ICBC’s Underinsured Motorist Protection coverage is a “fund of last resort” there are many deductions ICBC is entitled to take advantage of before paying funds out to Claimants.  These deductions, however, do have limits and this was demonstrated in an UMP Arbitration Determination released last year.
In last year’s claim (Undisclosed v. ICBC) the three claimants were awarded damages after receiving injuries from an underinsured motorist in Washington State.   One of the Claimant’s damages included $95,000 for past income loss.  ICBC argued that $65,000 should be deducted from this assessment for EI benefits that the Claimant was or would be entitled to as a result of section 148.1(f.1) of the Insurance (Vehicle) Regulation.
Arbitrator Camp rejected ICBC’s argument and reduced the amount by a much more modest $3,034 figure which was the sum the Claimant actually received from EI.   In refusing to make the greater reduction advanced by ICBC Arbitrator Camp noted that EI Maternity Benefits are not deductible in UMP Claims finding as follows:
57.  Other than pure speculation as to future EI benefits, some of which may indeed be predicated on maternity which is completely unrelated to the underlying facts and circumstances giving rise to the UMP award and therefore to any issue of deductibility, ICBC has led no evidence pertaining to the deductibility of EI benefits.  I therefore find that ICBC has not met the onus of proving any amount to be deducted with respect to future EI benefits.

Examination For Discovery Transcripts and the Adverse Party Limitation

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure, Uncategorized. 59 Comments on Examination For Discovery Transcripts and the Adverse Party Limitation

Although examination for discovery transcripts can be read into evidence at trial, the Rules of Court limit the evidence to being used against “the adverse party who was examined“.  In other words, a litigant can’t use their own transcript to bolster their own case.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this limitation.
In last week’s case (Haughian v. Jiwa) the Plaintiff was involved in a motor vehicle collision.  The Defendant brought a summary trial application seeking to dismiss the claim.  The Plaintiff produced an affidavit which stated that “in my examination for discovery I described precisely how the accident occurred”  and went on to attach “as an exhibit 29 pages for her examination for discovery conducted by counsel for the defendants“.
The Defendant objected to this evidence arguing it was inadmissible.  Mr. Justice Punnett agreed and provided the following reasons explaining the limitation of discovery evidence at trial:

[8] The plaintiff’s affidavit appends portions of her examination for discovery by counsel for the defendants.  The defendants object to the tendering of discovery evidence in this way.

[9] Summary applications are based on affidavit evidence.  However, they are still trials and as such are governed by the rules and evidentiary requirements of a regular trial.  The followingSupreme Court Civil Rules (the “Rules”) are relevant:

9-7(5)  Unless the court otherwise orders, on a summary trial application, the applicant and each other party of record may tender evidence by any or all of the following:

(a)        an affidavit;

…

(c)        any part of the evidence taken on an examination for discovery;

…

[10] However, the breadth of the statement in part (c) above is restricted by Rule 12-5(46) which provides:

(46)      If otherwise admissible, the evidence given on an examination for discovery by a party … may be tendered in evidence at trial by any party adverse in interest, unless the court otherwise orders, but the evidence is admissible against the following persons only:

(a)        the adverse party who was examined;

…

[12] The defendants’ objection is that only the defendants can tender the plaintiff’s examination for discovery evidence.  They rely on the rules cited above as well as Tesscourt Capital Ltd. v. FG Nutraceutical Inc., 2011 BCSC 814; Mikhail v. Northern Health Authority (Prince George Regional Hospital), 2010 BCSC 1817; Schwartz v. Selkirk Financial, 2004 BCSC 313; Pete v. Terrace Regional Health Care Society, 2003 BCCA 226; Great Canadian Oil Change v. Dynamic Ventures et al, 2002 BCSC 1295, and Shiels v. Shiels (1997), 29 B.C.L.R. (3d) 193 (S.C.).

[13] I am satisfied that the discovery evidence sought to be introduced by the plaintiff cannot be relied upon by the plaintiff for the truth of its contents.

"Seven Words of Discovery"

Written by admin on . Posted in Uncategorized. 59 Comments on "Seven Words of Discovery"

Although not a BC case, interesting reasons for judgement were recently brought to my attention from the Suprerior Court of Jutice, Ontario, judicially criticizing an overly “protective approach” to the defence of a medical-malpractice lawsuit.
In the recent case (Ornstein v. Stein) the defendant surgeon “mistakenly operated on the plaintiff’s thumb instead of her right fifth finger“.  He was sued for damages.  At his examination for discovery only the following seven words were extracted from him before his counsel objected to all subsequent questions:

.         Q.        Please state your full name for the record

A.        Joseph Auby Starr.

.         Q.        And you are a doctor

A.       I am.

.         Q.        And do you have a specialty?

A.       Plastic surgery.

Much of the subsequent transcript is reproduced in the reasons for judgement.  Liability was initially denied but the defendant admitted to “breaching the standard of care” shortly before his examination.  Given this admission the Defendant’s lawyer objected to all questions that followed.  Some of the objected questions included

“And how long have you been carrying on as a plastic surgeon“

“When did you first meet the Plaintiff“

“Did you examine her hands at the time when you first met her?“

“Did you made any observations of the condition of her fingers when you first examined her?“

Master Short noted that these questions were fair game and ordered the Doctor to answer them.   In addition the Plaintiff was awarded costs of $9,000.   In doing so the Court highlighted and provided comments about the protective approach the Canadian Medical Protection Association engages in when facing medical malpractice lawsuits.  Master Short provided the following comments:

[] The Strategic Plan notes that the CMPA “is owned and governed by physicians in the collective interests of the profession.” The Association’s core values guide its actions and fall within three broad commitments. In addition to a “Commitment To Responsible Governance And Management”, the other two identified commitments are relevant, in my view, to the correct approach to the resolution of this motion. In part the “Commitments” read:

“COMMITMENT TO MEMBERS…

• An ethical defence. The integrity and professional reputation of physician members are two of their most valued assets. The CMPA provides members with an ethical defence and, in keeping with its approach of “defending the defensible,” does not settle unsubstantiated claims for expediency or economic reasons.

COMMITMENT TO PATIENTS…

• Financial compensation. If patients are proven to have been harmed as a result of negligent medical care provided by a CMPA member, assistance will be available to compensate those patients in an appropriate and timely manner. [my italics and underlining throughout]

[] The CMPA’s Strategic Plan identifies 5 desired strategic outcomes. The first of these is entitled “Strategic outcome #1 — Protecting members’ integrity”. One of the five identified Objectives in this regard reads:

“1.2 To promote appropriate measures that encourage the timely resolution of medico-legal matters. Regardless of the circumstances, medico-legal matters are stressful for all involved: physicians, other health care providers, patients and their families. The CMPA will actively promote measures that respect the right to procedural fairness and encourage the timely resolution of such matters. This will reduce system costs, improve accessibility to justice and reduce the stress experienced by physicians and their patients.” [my emphasis]

[] I am troubled that the approach taken in this case does not strike me as being in accord with the objectives described above. I would hope those responsible for the approach in this case would re-evaluate whether the strategy used in this case to date, accords with the requirements of procedural fairness in the administration of justice in present day Ontario.

Welcome Georgia Straight Readers

Written by admin on . Posted in BC Injury Claims Media Archives, Uncategorized.


Earlier this week I had the pleasure of being interviewed by Carlito Pablo of the Georgia Straight who was writing an article on the recent BC Court of Appeal decision clarifying ICBC’s obligations to fund massage therapy treatments.  In short BC’s highest court found that massage therapy is a “mandatory” as opposed to a “discretionary” benefit and needs to be funded for accident victims where it is medically reasonable and necessary.
For those of you who are visiting this site looking for more information addressing this topic you can click here to read my previous post addressing this development and here for my archived posts addressing issues concerning ICBC’s no-fault benefits.