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Inadequate Notice of Application Criticized By the BC Supreme Court

Written by admin on . Posted in BCSC Civil Rule 8, Civil Procedure, Uncategorized. 178 Comments on Inadequate Notice of Application Criticized By the BC Supreme Court

Reasons for judgement were released last week serving as a reminder that the new Rules of Court require fulsome arguments to be set out in applications filed with the Court.
In last week’s case (Dupre v. Patterson) the Defendant brought a summary trial application seeking to dismiss the Plaintiff’s lawsuit.  Not only was the application unsuccessful with the Court finding the Defendant at fault for the collision underlying the litigation, the Court went on to give the following criticism of applications that fail to set out adequate factual or legal arguments in their support:
[44]         Before concluding, I wish to say a few words about the material filed. 
[45]         The defendant’s notice of application filed July 3, 2013, did not comply with the Supreme Court Civil Rules.  The complete “Factual Basis” for the summary trial was set out on about three pages, double spaced.  The “Legal Basis” section said in its entirety:
1.         Rule 9-7
2.         Rule 14-1(12) – costs
3.         Motor Vehicle Act, RSBC1996, c. 318, Part 3, section 183(2)(c).
[46]         There was not even a brief statement to the effect of “The court should dismiss the action because” and then setting out the reason or reasons why, in the defendant’s submission, that should be the result.
[47]         In Zecher v. Josh, 2011 BCSC 311, Master Bouck was faced with a similar situation, where the Legal Basis section in particular of the notice of application was wholly inadequate.  Master Bouck described what was required in order to comply with the Rules and said:
[29]      The defendants’ application for production of wage loss particulars and a calculation of any wage loss claim was dismissed due to the inadequacy of the material and argument presented. Both the factual and legal basis for the application are wanting.
[30]      Form 32 of the SCCR [Supreme Court Civil Rules] lends itself to providing both the opposing party and the court with full disclosure of the argument to be made in chambers. Parties should put in as much thought to the necessary content of that Form as is done when preparing the supporting affidavits. When a party is represented, responsibility for that content lies with counsel.
[31]      No doubt the Lieutenant Governor-in-Council intended Part 3 of Form 32 to contain more than a cursory listing of the Rules that might support the particular application. For example, common law authorities can and should be included as well as a brief legal analysis. Such an analysis is particularly helpful given that parties are not able to present a separate written argument in civil chambers unless the application is scheduled to take two hours or more of court time.
[32]      In my experience and observation, a comprehensive legal analysis can easily be included in a 10-page notice of application. As well, Rule 8-1(4) allows the parties to include a list of authorities in the application record.
[33]      By providing an effective analysis of the legal basis for (or against) making the order, the parties may well be able to resolve the application without attending court.
[34]      As an aside, I should note that the sparse content of this particular notice of application is unfortunately not unique; many such inadequate notices have been presented in chambers.
[48]         I agree with and adopt Master Bouck’s comments concerning what a notice of application must contain.  The same will apply with respect to an application response (Form 33), and the notice of application and application response under the Supreme Court Family Rules (Forms F31 and F32).
[49]         In Fraser, Horn and Griffin, The Conduct of Civil Litigation in British Columbia, 2nd ed. loose-leaf (Markham:  LexisNexis, 2007) one of the leading texts on practice and procedure, the authors say this concerning the “Legal Basis” section of a notice of application, at p. 32-3 [notes omitted]:
            The notice must set out the rule, enactment or other jurisdictional authority relied on for the orders sought and any other legal arguments on which the order sought should be granted (Rule 8-1(4)(c)).  If appropriate, applicable cases may be cited.  The argument to be made in chambers should be fully disclosed and should contain more than a cursory listing of the rules that might support the particular application.
[50]         The requirements under the current Rules represent a fundamental change from the practice under the former Rules of Court.  Under the former Rules, Rule 44(3) and Form 55 (the form of notice of motion) only required a bare statement of the Rule or enactment relied upon.  An outline (see Form 125 and former Rule 51A(12)), outlining the legal arguments to be made, was then delivered later in the exchange of motion materials and prior to the hearing.  That is not the practice under the current Rules.
[51]         If a notice of application does not contain the information now required under the Rules, the party filing it has failed to give proper notice – to the opposing party and to the court – of the nature of the application.  However, all too frequently, counsel in both civil and family cases are signing and filing inadequate notices of application and application responses.  The notice of application filed in this case was not at all unique.  However, such documents do not comply with the Rules.
[52]         In contrast to the bare-bones notice of application filed on behalf of Ms. Patterson, the application response was comprehensive and, in the page limit allowed under the Rules, set out both a detailed summary of the facts and an analysis of the legal basis on which the plaintiff said the court should find the defendant liable.  It represents the standard expected by the court.
[53]         In this case, the inadequacy of the notice of application was compounded by defendant’s counsel tendering a 14-page written submission at the hearing.  Since the hearing was estimated and set for 90 minutes, this was in breach of Rule 8-1(16). 
[54]         Rarely will a judge or master refuse to receive a written argument from counsel, provided it is not being used to “sandbag” or take the opposition by surprise.  However, tendering a written argument at the hearing is neither an alternative to, nor a substitute for, setting out the “Legal Basis” in a notice of application or an application response in accordance with what the Rules and the case law require.
[55]         When counsel come to court with inadequate materials, which fail to comply with the Rules, judges and masters are placed in a very difficult position.  What often happens is that, to avoid the inconvenience and expense of an adjournment, matters proceed despite the inadequate materials, and judges and masters do the best they can in the circumstances.  But inadequate motion materials, which fail to comply with theRules, are incompatible with the efficient and timely disposition of applications.
[56]         If counsel are coming to court with inadequate material that clearly fails to comply with the Rules, and counting on being heard, they are misguided.  Judges and masters are entitled to expect that counsel will prepare application materials (including affidavits) that comply with the Rules, and do no less than this.  Counsel who come to court with application materials that do not comply risk having their applications at least adjourned, with potential cost consequences, until proper materials are filed.
[57]         That completes my ruling.

BC Apology Act Keeps Roadside Admission Out of Evidence

Written by admin on . Posted in ICBC Liability (fault) Cases. 58 Comments on BC Apology Act Keeps Roadside Admission Out of Evidence

Section 2 of BC’s Apology Act holds that an apology “does not constitute an express or implied admission of fault or liability by the person in connection with that matter,” and that it “must not be taken into account in any determination of fault or liability in connection with that matter.”  Although this law has existed for several years it has received little judicial attention.  In one of the first cases that I’m aware of addressing this section, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, relying on this statute.
In this week’s case (Dupre v. Patterson) the parties were involved in a bike/vehicle collision.  Fault was disputed.  After the collision the cyclist apparently apologized to the motorist.  Madam Justice Adair found the motorist solely at fault for the crash and before reaching this conclusion had the following brief comments about the application of the apology act to the cyclist’s roadside statements:
[40]         Defence counsel pointed to some statements made by Ms. Dupre to Ms. Patterson after the accident, when Ms. Dupre apologized.  In view of my conclusion that Ms. Patterson’s negligence caused the accident, I will address this point only very briefly.
[41]         First, it was unclear, based on the submissions, how I was being asked to use Ms. Dupre’s statements and whether they were admissible for the purpose for which they were being tendered.  Secondly, it is clear that an apology made by or on behalf of a person in connection with any matter does not constitute an express or implied admission or acknowledgment of fault or liability:  see the Apology Act, S.B.C. 2006, c. 19, s. 2.
[42]          Ms. Dupre explained that when she spoke to Ms. Patterson after the accident, she was upset and in considerable pain from falling and injuring her shoulder, and she felt embarrassed by the attention the accident had caused.  She did not remember saying anything about having over-extended or pushed herself too far on the bike ride.  Roadside admissions at accident scenes are unreliable, since people tend to be shaken and disorganized.  This describes Ms. Dupre’s situation.  Her statements do not affect my conclusion that Ms. Patterson’s negligence caused the accident.

Fault For Right Hand Turning Vehicle Striking Cyclist Discussed by BC Supreme Court

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 111 Comments on Fault For Right Hand Turning Vehicle Striking Cyclist Discussed by BC Supreme Court

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision involving a right hand turning vehicle and a cyclist attempting to pass the vehicle on the inside lane.

In this week’s case (Nelson v. Lafarge Canada Inc.) the Plaintiff was “cycling hard and fast alongside the Truck as the two approached the Intersection in tandem.  Mr. Nelson’s speed exceeded the Truck’s and it is apparent he was overtaking it on the right as the Truck turned onto Nanaimo.”  There was video of the actual collision presented in evidence and it demonstrated that the Truck driver “did engage the Truck’s right signal prior to executing his right turn onto Nanaimo.  I accept that he did so well before he arrived at the Intersection after the light had turned green.”
As the truck turned, on a still green light, a collision occurred.  Madam Justice Dickson found both parties to blame for the collision with the cyclist bearing 65% of the fault.  In reaching this concluding the Court provided the following reasons:
[77]         I agree with counsel for the defendants that Mr. Conarroe was the dominant driver in the circumstances of this Accident.  He was proceeding on a green light in the appropriate lane and had signaled his right turn well in advance.  He had also looked around as he turned onto Nanaimo and, generally speaking, was entitled to assume that others would obey the rules of the road.  Nevertheless, the presence of cyclists in the adjacent curb lane was both proper and predictable.  In addition, I have found Mr. Conarroe could and should have kept a more vigilant look-out in the period leading up to the right turn to ensure that it could be safely made.
[78]         Had Mr. Conarroe kept a more vigilant look-out after he stopped for the red light on Hastings and before he started his right turn he would have observed Mr. Nelson cycling hard and fast in the curb lane behind or beside him.  It would have been apparent that Mr. Nelson was focusing straight ahead and might attempt to overtake on the right as the two approached the green light, despite the riskiness of such conduct.  Armed with this knowledge, Mr. Conarroe could have avoided the Accident by waiting to commence his turn in the Intersection until it was clear either that Mr. Nelson had abandoned the unfolding attempt to pass on the right or completed it successfully.  His failure to do so was a failure to take reasonable care and a contributing cause of the Accident.
[79]         Mr. Nelson also failed to take reasonable care for his own safety, which failure was a contributing cause of the Accident.  Although, based on Jang, I find that the curb lane was a through lane for cyclists I also find it was unsafe for him to attempt to pass the right-turning Truck when there was little, if any, margin for error associated with such an attempt.  As noted, this was a breach of s. 158(2)(a) of the Act.  It also fell well below the standard of care to be expected of a reasonably competent cyclist in all of the circumstances.
[80]         Mr. Nelson suffered serious harm and damage as a result of the Accident.  The damage has two proximate causes:  the negligence of both parties.  In these circumstances, liability must be apportioned between the two.
[81]         In assessing the respective fault and blameworthiness of the parties I must evaluate the extent or degree to which each departed from the standard of care owed under the circumstances.
[82]         In balancing blameworthiness, I find Mr. Nelson’s conduct constituted a significant departure from the requisite standard of care which created a risk of serious harm.  He was aware of the Truck travelling eastbound on his left but focused only on his own path forward and did not check for an activated right turn signal, which was there to be seen.  Instead, he tried to pass the Truck on the right without first determining whether such a movement could be made safely.  In my view, such conduct was very careless.
[83]         Mr. Conarroe’s conduct also constituted a significant departure from the requisite standard of care, taking into account the vigilance reasonably to be expected of a professional truck driver.  He waited far too long to look carefully and thoroughly around himself as he prepared to turn right.  This is particularly true given his knowledge of the Truck’s many blind spots.  In consequence, Mr. Conarroe was unaware of the fact that Mr. Nelson was cycling hard and fast in the adjacent curb lane after the light changed colour at the Intersection.  This failure was not momentary or minor, and it carried the risk of foreseeable harm of considerable magnitude.  In my view, however, it was not of the same degree as Mr. Nelson’s failure to take reasonable care for his own safety in attempting to pass a right-turning Truck on the right.
[84]         In all of the circumstances, I conclude that 65% of the fault for the Accident should be borne by Mr. Nelson and 35% should be borne by Mr. Conarroe.

$210,000 Non-Pecuniary Assessment for Moderate-Severe Traumatic Brain Injury

Written by admin on . Posted in ICBC Brain Injury Cases. 45 Comments on $210,000 Non-Pecuniary Assessment for Moderate-Severe Traumatic Brain Injury

Adding to this site’s database of ICBC cases dealing with non-pecuniary damages for traumatic brain injury, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such an injury.
In this week’s case (Payne v. Miles) the Plaintiff was struck by the Defendant’s vehicle while walking in a marked crosswalk. Although fault was initially disputed the Defendant accepted blame for the crash on the second day of trial.  The Plaintiff suffered moderate to moderate-severe brain injury with ongoing complications which were expected to be permanent.  In assessing non-pecuniary damages at $210,000 Mr. Justice Voith provided the following reasons:
[44]         The medical experts agree that Ms. Payne suffered a moderate to moderate-severe brain injury. Her CT scans and MRI results depict changes that are consistent with an injury to the right temporal lobe.
[45]         The experts also state that the Accident occurred at a critical time in her development as she was preparing to make the transition from adolescence to independent adulthood (Dr. Anton); that it occurred at a time that negatively impacted her educational and vocational potential (Dr. Mok); and that an injury “in these formative years has a significant impact on [the plaintiff’s] ability to establish her own self-identity” (Dr. Foti)…
[79]         The Accident has fundamentally transformed and diminished Ms. Payne’s life. She lives a largely solitary existence. She has struggled with her sleep and with headaches as well as with serious depression and anxiety. Though these conditions have, in the main, either resolved or are in remission, she continues to have periods of low mood. She has periodic hallucinations. She sleeps with both the lights and television in her bedroom on as a means of dealing with these hallucinations. And she struggles with anger, irritability and periodic outbursts.
[80]         She has and will continue to have various forms of cognitive impairment. She has difficulties with memory, concentration and various forms of executive function. She has difficulty processing information. She is limited in her ability to read to periods of perhaps ten minutes. She struggles significantly with mental fatigue which, in turn, limits what she can achieve and which exacerbates her cognitive and emotional difficulties. She becomes overwhelmed and has meltdowns.
[81]         Her difficulties influence the most commonplace of activities. Though she drives without difficulty, she becomes anxious in new places. While she can use her computer and her cell phone without difficulty, relatively rudimentary computer programs have proven to be beyond her.
[82]         She has consistently failed or struggled in her academic endeavors. She has been constrained in her employment efforts to low or entry-level employment. These struggles and failures have influenced her confidence and self-image.
[83]         Her career and educational prospects are diminished. I will develop this evidence when I address Ms. Payne’s wage loss claim. At this point, I am focusing on the pleasure a person derives from school and from finding employment that is rewarding or fulfilling.
[84]         Her ability to live independently is impaired. She will have to be assisted on an ongoing basis with the various changes that life will inevitably bring. She will, for example, require assistance if she has children. In saying this I am addressing the loss of freedom and independence, so often taken for granted, that Ms. Payne will suffer.
[85]         Though her recovery has plateaued, she is at risk of further and ongoing difficulty. Dr. O’Shaughnessy opined that persons who have suffered from a major depression are at a 50% risk of suffering from a further period of depression. She is at greater risk of mood disorders and anxiety, of seizures, of bipolar disorders and of illnesses such as Alzheimer’s. She is more likely to get divorced. If she were to suffer a further brain injury or stroke, her “cognitive reserves” are depleted beyond what they would otherwise be. Simply put, she would be in a poorer position to respond and recover. Each of the foregoing conclusions arises directly from the opinions I was provided. None of these conclusions was challenged.
[86]          Dr. Anton opined that there is some risk, though relatively small, of further declines in her cognitive functioning. He also stated that, while some decline in function is associated with normal aging, Ms. Payne is at risk of a more rapid decline in such function.
[87]         All such risks or eventualities would further diminish Ms. Payne’s enjoyment of life…
[90]         In the result, and having regard to the foregoing authorities as well as the additional case law I was provided, I consider that an award of $210,000 fairly and reasonably compensates the plaintiff for her non-pecuniary loss.

$50,000 Non-Pecuniary Assessment For Lingering Soft Tissue Injuries

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Adding to this site’s archived posts addressing soft tissue injury non-pecuniary assessments, reasons for judgement were released earlier this month addressing such an injury.
In the recent case (DeGuzman v. Ge) the Plaintiff was injured in a 2011 collision.  The Defendant admitted fault.  The Plaintiff sustained various soft tissue injuries which lingered at the time of trial.  In assessing non-pecuniary damages at $50,000 Mr. Justice Smart provided the following reasons:
[38]         Here, the plaintiff was 50 at the time of the MVA.  She has a physically demanding job.  She enjoyed a relatively active life away from work.  As stated, I accept her evidence and I find that while her pain has reduced since the MVA, she continues to have significant discomfort from her injuries.  I find that this has impacted her enjoyment of her work and her relationship with her co-workers.  It has also limited the activities she used to enjoy doing away from work, such as cooking, keeping her house and yard, walking, driving for pleasure, and caring for her grandnieces.
[39]         In my view, a fair and reasonable award of damages under this heading is $50,000.

Witness Entitled To Copy of Statements Provided To ICBC Despite Litigation Privilege Claims

Written by admin on . Posted in Civil Procedure. 48 Comments on Witness Entitled To Copy of Statements Provided To ICBC Despite Litigation Privilege Claims

Reasons for judgment were released last week by the BC Supreme Court, Prince George Registry, addressing the entitlement of a witness to a collision obtaining a copy of a statement they provided to ICBC.
In last week’s case (Minnie v. ICBC) the petitioner was the witness to a collision involving a vehicle and a pedestrian.  She gave ICBC a statement detailing her account of what occurred.  The pedestrian ultimately sued the ICBC insured motorist for damages.  The witness wished to obtain a copy of her statement to ICBC but ICBC refused to disclose this.  The witness brought a Freedom of Information request for the statement but this did not prove fruitful.  The witness brought a petition in the BC Supreme Court.  ICBC opposed arguing there were further steps the witness could have taken through the Freedom of Information process and further that the statement was protected by litigation privilege.  Mr. Justice Steeves concluded that neither of these were valid reasons to keep a copy of the statement away from the witness.  In ordering ICBC to disclose a copy of the statement to the witness Mr. Justice Steeves provided the following reasons:
[41]  Although the respondent is entitled to have its litigation privilege protected, fairness requires that the petitioner be provided with a copy of her statement.  The petitioner is a stranger to the litigation about the accident; she is not a party and she has no interest in it.  I note that, if the petitioner was a party, there would be no question that she would be entitled to her statements, as I will discuss below.  I have some difficulty imposing on a private citizen the rules of a “sporting event” that are more onerous than those placed on parties.  The risk of applying those rules to a non-litigant without legal representation is that a person can, through accident or ignorance, make a mistake.  The mistake can be only embarrassing to the non litigant and/or it can distort the evidence before the court.  Neither is desirable.
[42]  Within the bounds of an adversarial system, private citizens should be encouraged to participate in the litigation process and disclosure to them of previous statements, as in this case, is a modest way to accomplish that objective.  The petitioner could have insisted on some kind of legal document that assured her that she would get a copy of her statement before she gave it.  She did not do that.  In m view, she did not have to do it ad nor should she now be at a disadvantage greater than a party for fail
[43] The petitioner is entitled to a copy of her statements as soon as practicable in order to review them herself and with her solicitor. However, I set conditions on that disclosure to recognize the litigation privilege that also attaches to the statements.  The disclosure of the statements does not extend to disclosure by the petitioner to other persons, including the plaintiff in the accident that she witnessed (or counsel for the plaintiff).  If, ultimately, there are issues at trial that involve the petitioner’s statements, they will have to be resolved by the trial judge.
 

Late Defence Medical Exam May Be Ordered in Exceptional Circumstances

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams.

Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, addressing court orders for late defence medical exams.
In this week’s case (Jackson v. Yusishen) the Defendant brought an application for a ‘responsive’ functional capacity evaluation.  Mr. Justice Barrow dismissed the application finding that on the facts before him the evidentiary burden for a late exam were not met.  Despite this result the Court provided the following interesting comments addressing that a late defense medical exam may be justified in exceptional circumstances:
[15]         There are three rules engaged by this application. The Rules of Court distinguish between new or fresh expert reports and responsive reports. Rule 11‑6(3) provides that, unless the court otherwise orders, expert reports other than responsive reports must be served on all parties of record at least 84 days before the scheduled trial date.
[16]         Rule 11‑6(4) deals with responsive reports and provides that such reports must be served on every party of record at least 42 days before the trial date.
[17]         The third rule engaged by this application is Rule 7‑6, which provides that the court may order a person submit to an examination by a medical practitioner or another appropriately qualified person. An order under Rule 7‑6(1) is discretionary. While there are a host of factors that should be considered when exercising the discretion conferred by that rule, one of the factors might broadly be taken to be whether the examination sought will advance the litigation, in the sense of potentially yielding relevant evidence touching on a material issue.
[18]         In the context of a personal injury action, meeting that evidentiary threshold where the object of the examination is the eventual production of a fresh or new expert report will not usually be difficult. On the other hand, where the time limited for serving fresh or new expert reports has passed, and thus the only purpose of an independent medical examination is in furtherance of the production of a responsive expert report, the evidentiary burden will generally be more difficult to meet…
[32]         Although the evidentiary burden has not been met in this case, I acknowledge that, on occasion, there may be circumstances which might justify the ordering of an independent medical examination, otherwise than in support of the preparation of a responsive report. It may be that, in some cases, the court may anticipate or at least allow for the possibility that a fresh opinion would be exceptionally admissible, notwithstanding that the 84‑day deadline has passed. Although not framed that way in Luedecke, the issue may have arisen at trial after the production of the report that the master ordered. In this case, however, there is no basis to conclude that an independent medical examination is necessary to level the playing field.

Single Vehicle Leaving Roadway With No Reasonable Explanation Sufficient to Prove Negligence

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

Two cases were recently released by the BC Supreme Court addressing negligence in the face of single vehicle collisions involving vehicles leaving the roadway.
In the first case (McKenzie v. Mills) the Plaintiff was injured when she was the passenger in a vehicle the left the roadway.  The Plaintiff had no recall of how the collision occurred.  The Defendant disputed liability arguing there was no sufficient evidence to prove the collision was caused by negligence.  Madam Justice Dorgan disagreed finding that absent a sensible explanation by the Defendant negligence could be inferred.  In so concluding the Court provided the following reasons:
[30]         Crossing the oncoming traffic lane and even losing control to the point of rolling the vehicle does not necessarily give rise to an inference of negligence; in other words, it is not determinative of the issue of liability.  See Benoit v. Farrell Estate, 2004 BCCA 348 where Smith J.A., writing for the court, says at para. 77:
The question whether negligence should be inferred when a motor vehicle has left its proper lane of travel usually arises in cases, like Fontaine, where the driver of the vehicle is sued by a plaintiff injured in the accident.  In such cases, the plaintiff bears the burden of proof.  The inference that a vehicle does not normally leave its proper lane in the absence of negligence by its operator may afford a prima facie case but, if the defendant driver produces a reasonable explanation that is as consistent with no negligence as with negligence, the inference will be neutralized:  see paras. 23-24.
[31]         However, in this case, neither the defendant nor the third party offered evidence of explanation of the cause or circumstances of the accident.  The defendant left her lane of travel (northbound), crossed over the oncoming lane (southbound), and rolled the truck which was found in the ditch of the southbound lane.  The defendant was intoxicated at the scene; she was given a 24-hour driving prohibition as a result; and was charged with driving while subject to a driving restriction.  While her level of intoxication at the scene is not direct evidence of intoxication while driving, there is no evidence of the defendant, or the plaintiff for that matter, drinking after the accident and before the police arrived.  The only reasonable inference to draw is that the defendant was driving while drunk.
[32]         I have concluded the only reasonable inference to draw from the whole of the evidence is that the plaintiff has established a prima facie case of negligence against the defendant.  The defendant offers no evidence of explanation; therefore, the plaintiff has proved liability.
In the second case (Garneau v. Izatt-Sill) the vehicle left the roadway.  There were no witnesses and two of the vehicles occupants were killed due to the forces of the crash.  The Plaintiff, the sole survivor, had no recall of what occurred.   The Court found that in the circumstances a finding of negligence was warranted with Mr. Justice Weatherill providing the following reasons:
[100]     The evidence leads overwhelmingly to the conclusion that the driver of the vehicle was negligent and that his negligence caused the crash.  The posted speed limit was 110 kph.  The vehicle was travelling in excess of 130 kph at the time of the accident.  As Sgt. Nightingale put it, the crash was caused by speed and the driver’s inattentiveness.  I accept this evidence.  Mr. Bowler agreed that there was no indication of anything mechanically wrong with the vehicle that would have caused or contributed to the crash and that the crash was consistent with driver inattention. 
[101]     In such circumstances, negligence can be inferred: Nason v. Nunes, 2008 BCCA 203 at para. 8.  The defendants led no evidence to the contrary.  

2012 ICBC Doctor and Lawyer Billings Published

Written by admin on . Posted in Uncategorized.

It’s that time of year again.  ICBC has now released their annual Statements and Schedules of Financial Information for 2012.  This is my 7th year highlighting this information.  You can access the following previous years information at the following links:
2011
2010
2009
2008
2007
As previously discussed, this report highlights the billings of Suppliers of Goods and Services which includes doctors who perform ‘independent’ medical exams for ICBC.   When ICBC sends you to an independent medical exam these financial statements can be checked to see just how much money any given physician was paid by ICBC in a calendar year.
ICBC routinely uses a handful of doctors to perform these independent exams.  A quick glance reveals that some physicians bill well into the six digit range annually for these services.
Another provider of ’services’ revealed in these financial statements are law firms who do ICBC defence work. I have previously posted that some lawfirms and lawyers work both sides of the fence, that is on some cases they work for ICBC and in other cases they work for injured plaintiff’s suing someone insured by ICBC. According to the BC Law Society there is nothing wrong with this but these lawyers need to let their clients know if they signed the ICBC defence contract(known as the SAA) which restricts the lawyers ability to make claims against ICBC.  This is required so clients can make an informed decision when choosing to hire their lawyer.
If you hired a lawyer to advance your ICBC injury claim and are curious if your lawyer also works for ICBC you can check these annual reports to see just how much money any given lawfirm is paid by ICBC in each calendar year.

Court of Appeal Orders Return of Funds Paid After New Trial Ordered

Written by admin on . Posted in Uncategorized. 49 Comments on Court of Appeal Orders Return of Funds Paid After New Trial Ordered

What happens when a litigant sues and wins, collects part of the judgement, but then a new trial is ordered after appeal?  Reasons for judgement were released by the BC Court of Appeal last week addressing such a situation.
In last week’s case (Camaso Estate v. Saanich (District)) the Plaintiff estate successfully sued for damages where the trial judge found a police officer was grossly negligent for fatally shooting the ‘disturbed’ plaintiff.  Damages of over $300,000 were assessed.  The Defendant appealed and pending appeal obtained an order for a partial stay upon the defendant paying the sum of $119,456.20 to the plaintiff.  The Defendant successfully appealed and obtained an order for a new trial.  The Defendant sought return of the $119,456.  The Plaintiff opposed arguing the Court of Appeal was functus and had no ability to make such an order.  BC’s High Court disagreed and provided the following reasons ordering the return of the funds:
[10]         We do not consider that we are being asked to revisit our order determining the appeal or to adjudicate upon any issue that should have been addressed at the hearing of the appeal.  We are being asked to give a procedural remedy arising out of a process that was initiated and ran its course in this court alone.  The trial court gave a money judgment without terms as to payment.  Terms of payment of the judgment were addressed only in this court in the form of a stay of execution application brought by the appellants under s. 18(1) of the Court of Appeal Act, R.S.B.C. 1996, c. 77.  We are not being asked to rehear or to reconsider any aspect of this appeal.  No variation of our order allowing the appeal is sought.  This is merely a housekeeping matter that arises out of the proceedings in this court.  Therefore, the doctrine of functus officio has no application. 
[11]         In a similar case, this court determined that the court has the power to make the kind of order sought by the appellants in the present case: Vaillancourt v. Molnar, 2004 BCCA 384.  In Vaillancourt, the court reduced the amount of a jury award for damages for personal injury with the result that the appellant/defendant, pursuant to a pre-appeal agreement between the parties, had paid the respondent about $72,000 more than she was entitled to receive.  The court relied on s. 9(8) of the Court of Appeal Act: 
[6]        We agree with counsel that this Court has jurisdiction to make an order for repayment of the overpayment. In that regard, we need look no further than s. 9(8) of the Court of Appeal Act, R.S.B.C. c. 77:
(8) For all purposes of and incidental to the hearing and determination of any matter and the amendment, execution and enforcement of any order and for the purpose of every other authority expressly or impliedly given to the Court of Appeal,
(a) the Court of Appeal has the power, authority and jurisdiction vested in the Supreme Court …
[7]        In the result, we conclude that it is appropriate to make the order sought by the appellant, namely, that the respondent shall pay to the appellant the amount of the excess payment, plus interest to the date of repayment.
[12]         See also Hoskin v. Han, 2005 BCCA 483.
[13]         In our opinion, the court retains the power under s. 9(8) to make the order sought, it being a procedural remedy incidental to the appeal and the stay of execution order.
[14]         There will be an order that the respondents forthwith pay to the appellants the sum of $119,456.20.