Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, disallowing recovery of the costs of a private MRI in a personal injury lawsuit.
In this week’s case (Repmicki v. 616696 BC Ltd) the plaintiff obtained a private MRI in the course of his lawsuit. At settlement the parties could not agree whether this disbursement was reasonable and brought the matter before the Court. District Registrar Cameron held that while having an MRI was reasonable, there was no evidence justifying the expense to be privately incurred. In dismissing the claimed disbursement the Court provided the following reasons: [5] While the medical evidence that I was referred to satisfies me that obtaining an MRI examination in this case was a reasonable step to take in the Plaintiff’s interest and to assist with a determination of whether or not there was a causal link to her neck, upper back, and lower back injuries and the motor vehicle accident, I am not satisfied that it was reasonable to incur the additional expense to have the MRI examination done in the private healthcare system. I may have been persuaded it was reasonable to do so if, in fact, there was evidence that there was going to be an ongoing and significant delay in having the MRI examination done in the public healthcare system, but that evidence was not before me. [6] For these reasons, the disbursement will be disallowed.
Adding to this site’s archived judicial comments about expert witness evidence that is judicially rejected, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an L4/5 disc injury caused by a motor vehicle collision.
In this week’s case (Sekihara v. Gill) the Plaintiff was injured in a 2007 collision. Although liability was denied the Defendant was found 100% responsible for the crash. In the course of the trial the Defendant relied on an orthopedic surgeon who blamed some of the Plaintiff’s persisting symptoms not on the collision but instead on “deconditioning, her recent pregnancy and weight gain” and pre-existing conditions.
The Court rejected this evidence finding the plaintiff, who was a former professional athlete, suffered an L4/5 disc injury in the crash which was responsible for her persisting symptoms and assessed non-pecuniary damages at $130,000. In rejecting the defence medical evidence the Court provided the following criticism: [160] On behalf of the plaintiff, it is submitted that Dr. Grypma’s opinion should be given no weight for the following reasons: 1. He took what can only be described as a cursory history from Ms. Sekihara; 2. he made a number of editorial comments in the section titled “medical records review” which were not identified as being his own comments; 3. in that same section he left out salient facts which tended to support Ms. Sekihara’s complaints; 4. also in that section, if he was unable to read handwriting, he simply left those sections out of his summary without stating that he had done so; and 5. he was evasive at times in his oral testimony. [161] I agree with the plaintiff’s submissions regarding Dr. Grypma. In his evidence, Dr. Grypma does not appear to have demonstrated an open mind in his examination of and conclusions regarding Ms. Sekihara or to have taken into account the complete medical history. [162] Most importantly, Dr. Grypma’s opinion that the enduring complaints of back pain are related to any of the four unrelated conditions is inconsistent with the evidence of Ms. Sekihara and of the objective evidence of the tear of the annulus fibrosis. [163] Ms. Sekihara, as a snowboarder and professional athlete, many times per day for years, would load her spine with at least 3 times her body weight every time she made a jump with no back pain. I do not accept Dr. Grypma’s evidence that it is coincidental that she suffered back pain immediately following the motor vehicle accident due to degeneration or a previously existing pars defect. [164] It was Ms. Sekihara’s inability to pursue her regular activities due to her back pain which caused the deconditioning, not vice versa. Ms. Sekihara had ongoing low back pain long before she became pregnant. The pars defect was congenital and the degenerative changes longstanding. [165] The characterisation of the low back injury is the major issue. I prefer the evidence of Dr. Hershler who diagnosed it as a disc injury at L4/5. His conclusions are based on his interpretation of the imaging, his examinations, and on Ms. Sekihara’s reporting of her symptoms, both pre and post-accident.
I’ve previously discussed the difficulty ICBC has trying to withhold documents in a personal injury lawsuit based on their ‘investigative’ responsibilities. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this topic.
In this week’s case (Spenst v. Reemeyer) the Plaintiff alleged injury s a result of a motor vehicle/pedestrian incident which occurred in 2010. In the course of the lawsuit ICBC denied liability on behalf of the motorist. ICBC refused to produce two ‘investigative reports’ they commissioned arguing these were protected by litigation privilege. Master Caldwell found the evidence ICBC produced in support of their claim fell short of the mark to obtain the protection of privilege and ordered production of the documents. After summarizing the legal principles involved Master Caldwell provided the following reasons: [12] In short, the determination as to whether litigation is contemplated as a reasonable prospect is not merely subjective and arbitrary but rather must be objective and based upon reasonable information obtained by appropriate investigation. [13] What does the evidence before me reveal when viewed in the light of the above tests? [14] First, I have absolutely no evidence from that adjuster who apparently had conduct of the file for the first 18 months. I am not told whether or not any investigations were undertaken during that time as to either the issue of liability or the extent of damages. Plaintiff’s counsel submitted, and defence counsel did not dispute, that no denial of liability was ever communicated to the plaintiff prior to the delivery of the Response to Civil Claim. [15] Second, Ms. Roach notes that the plaintiff retained counsel. Plaintiffs have a right to obtain legal advice, including legal advice regarding their rights and responsibilities arising out of motor vehicle or personal injury matters. Consultation with counsel is not a direct or even reasonable guarantee that one is on the road to active litigation; the involvement of counsel may well enhance the possibility of resolution short of trial. [16] Third, Ms. Roach says that she only handles claims that are being litigated or are likely to be litigated and thus she determined that since the file was transferred to her it would be litigated. Strangely however, Ms. Roach, in her own correspondence of May 8, 2012 (the day she commissioned the investigations/reports) wrote to plaintiff’s counsel: To minimize costs, I will work with you to conclude this matter as quickly as possible. If it is determined that your client is entitled to compensation, I will be prepared to release settlement funds only when the entire claim, including taxable costs and disbursements, has been resolved and the necessary release documentation completed. I look forward to working with you on this matter. [17] At the time Ms. Roach wrote this conciliatory letter referencing concluding the matter, entitlement to compensation and settlement funds in response to a similarly conciliatory letter of introduction from plaintiff’s counsel, action had not yet been commenced, no position on liability had been taken and there is no evidence that any substantive investigation or even basic inquiry had been undertaken regarding any aspect of the plaintiff’s claim. The mere arbitrary assertion that this file is likely to go to litigation because this adjuster handles only litigation files and she had decided it would go to litigation is not objectively defensible on the evidence before me. [18] Fourth, Ms. Roach says that the end of the limitation period was approaching and, by implication, litigation would have to be commenced. What this assertion fails to recognize is that there is a significant difference between the commencement of an action in order to protect against the expiry of a limitation period and the active conduct of litigation. In her May 8 correspondence, Ms. Roach expressly confirmed that her letter was not “a waiver or extension of any applicable limitation”. In order for any legitimate, even-handed settlement discussions to take place, as invited by her letter, it was necessary for plaintiff’s counsel to preserve the plaintiff’s right to claim at law for her alleged injuries in the event that negotiations failed. [19] Counsel for the defendant advised in submissions that the investigative reports were obtained not on the issue of liability but rather on the issue of quantum of damages. There was no evidence in the material to support that submission and counsel failed to indicate why that distinction would make a material difference in regard to the investigation/dominant purpose assessment. [20] The evidence before me fails to objectively establish to any certainty that the reports which were commissioned and which are sought by the plaintiff were commissioned for any purpose other than for basic investigation of the plaintiff’s claim. There is no evidence to indicate that the adjusters had undertaken any type of earlier investigation to determine whether there was a reasonable, objective basis upon which liability should be denied or quantum questioned. The reports are ordered produced forthwith.
If a Plaintiff is vocationally disabled due to a pre-existing condition this does not preclude a court from assessing damages for diminished housekeeping capacity. This was demonstrated in reasons for judgement released last week.
In last week’s case (Chow v. Nolan) the Plaintiff was largely disabled from a pre-existing traumatic injury. The Plaintiff was involved in a 2008 collision which worsened his pre-existing condition. Although the Plaintiff’s claims for diminished earning capacity were dismissed the Court accepted the aggravations further diminished his abilities to take care of his household and assessed damages for this loss. In doing so Madam Justice Kloegman provided the following reasons: [76] There were two reports from occupational therapists recommending the provision of homemaking services to the plaintiff. The biggest difference between them is that the plaintiff’s expert witness, Ms. Gibson, assumed that the plaintiff would be in need of these services until age 70, 75 or 80. This is not a reasonable assumption in light of the evidence of prognosis. Dr. Chu reported that the plaintiff will return to pre-2008 accident status at some point. Dr. Gill testified that two years is probably too soon to expect recovery to his pre-2008 accident status, but perhaps five years is reasonable. [77] In my view, on the totality of the evidence, it would not be reasonable to award the plaintiff for future losses that extend past five years from trial. I accept Ms. Gibson’s list of items which were submitted by the plaintiff as being reasonably expected to incur as a result of the plaintiff’s decrease in function, but they must be restricted to a period of five years. When each of these items is paid for separately, it is much more expensive (almost double), than hiring one person to perform these jobs. Ms. Gibson’s suggestion of using an agency person at a rate of $24 per hour at an annual cost of $22,276.80 ($21,216 plus 5% GST) is the most reasonable course of action. [78] This figure should be reduced by 20% to $17,821.40 to reflect reasonable positive contingencies such as not requiring as much assistance with meal preparation, transporting daughter, etc., on those days when the plaintiff feels capable of handling such things himself. [79] The present value of $17,821.00 over five years is $14,756.00 per year, for a total of $89,108. I award the plaintiff $89,108.00 for loss of homemaking capacity in the future.
In a fairly routine exercise of the Court’s discretion, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff to pay the Defendant’s trial costs for failing to best a pre-trial formal settlement offer in a personal injury claim.
In this week’s case (Wilson v. Honda Canada Financial Inc.) the Plaintiff was involved in a 2009 rear end collision. Fault was not at issue. Although the Court found that there “are serious issues regarding (the Plaintiff’s) credibility” Madam Justice Fitzpatrick concluded the Plaintiff suffered a variety of soft tissue injuries, some of which remained symptomatic on an intermittent basis at the time of trial. Six weeks prior to trial the Defendant made a formal settlement offer of just over $121,000. The Plaintiff sought an award well above this at trial but many of the claimed damages were rejected with the court assessing damages about $25,000 below the formal settlement offer.
The Defendant sought post offer costs and these were granted. In finding that a Plaintiff’s “honest belief” in entitlement to damages does not avoid the costs consequences intended by the Rules of Court, Madam Justice Fitzpatrick provided the following reasons: [11] Mr. Wilson argues that he “genuinely believed” that he had incurred a past and future wage loss because he was unable to work for Taja. With respect, it can hardly be the case that honest belief alone will avoid the intended effect of the Rule. This is similar to my rejection of his honest belief as to disability where that belief was not supported by any medical evidence: Reasons, para. 137. As set out in the Reasons, there were numerous difficulties with Mr. Wilson’s arguments regarding Taja, including the lack of proper documentation, lack of medical evidence, and a rejection of his testimony on this issue (see paras. 120-146, 157-163). His claim for future massage therapy of $30,000 was also rejected for the reason that no medical evidence supported that claim. [12] Finally, Mr. Wilson’s evidence also suffered from credibility problems particularly where not supported by other credible evidence: Reasons, para. 42. Failure to anticipate credibility issues will also not avoid the operation of the Rule: Gehlen v. Rana, 2011 BCCA 219 at paras. 50-51. [13] Mr. Wilson argues that he should not be penalized for “guessing wrong”, citing Fan (Guardian ad litem of) v. Chana, 2009 BCSC 1497. However, it is clear from the comments of the court in that case that there were difficult issues relating to the evidence and how any offer could be dealt with, particularly given the involvement of the public trustee. Similar difficulties do not arise in this case. [14] I agree that a party is not required to “guess” about the probable outcome; rather, he or she is required to fairly and objectively assess the evidence intended to be adduced at trial and make a reasoned decision about the relative merits of the claim or defence, having in mind a certain amount of litigation risk. In essence, the party receiving the offer must critically review the merits of the claim in relation to the amount offered. As the court noted in Fan, quoting A.E.: [62] Regardless of the merits of the plaintiff’s claim the defendant’s offer to settle cannot be ignored, because to do so would undermine the purpose of the Rule. Having decided to proceed in the face of a not insignificant and ultimately successful offer to settle, the plaintiff cannot avoid some consequences. [15] The offer amount, while not approaching the amounts sought by Mr. Wilson, in all likelihood fairly assessed the claims about which there was no dispute and added further amounts for the litigation risk that the more contentious claims would go against the defendants. The offer was, no doubt, also prepared recognizing the substantial cost to both parties if the matter proceeded to trial. It cannot be understated that one of the purposes of the Rule is to avoid costs of proceeding further in the action: Martin, para. 8. [16] I conclude that the offer should reasonably have been accepted by Mr. Wilson shortly after it was made and that this factor favours the defendants… [24] I conclude that all factors to be considered under Rule 9-1(6) favour the costs award sought by the defendants. Accordingly, Mr. Wilson will recover his assessed costs and disbursements up to April 27, 2013, which is 5 days after the offer was sent in recognition that some reasonable period of time would have been necessary to consider the offer. Thereafter, the defendants will recover their assessed costs and disbursements commencing April 28, 2013. After assessment of these respective amounts, the parties shall set off the awards to produce a net award.
When a party serves an expert report in a BC Supreme Court lawsuit opposing parties are entitled to disclosure of any data compiled by the expert in relation to the report. When it comes to neuropsycholgoists reports, the raw test data compiled by neuropsychologists is relevant and disclosable. Sometimes it is difficult to obtain this data as neuropsycholgoists have ethical and contractual considerations limiting how and when such data is to be disclosed. Often neuropsychologists only wish to disclose the data directly to another neuropsycholgist.
Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry (Smith v. Rautenberg), addressing this and concluding that there is no reason why such data is exempt from disclosure under the BC Supreme Court Rules. In ordering the data to be disclosed directly to the litigant Master McDiarmid provided the following reasons: [8] Appendix B to the report documents over 20 tests, particularizes the ability being assessed by some of the tests and gives a result under the heading “Classification” for each of the tests (except the last mood tests). Specific components of some of the tests are set out. [9] A description of the tests in Appendix B are what I would characterize as quite technical. They are the sorts of tests which seem to me would require considerable expertise to both administer and interpret. Clinical psychologists, and in particular clinical neuropsychologists, would probably have the expertise to know whether the administered tests did in fact assess the ability which they purport to assess, and would be able to interpret the data to determine whether or not the interpretation placed on the assessment results by Dr. Pirolli was the proper interpretation. It seems unlikely that the test results could be intelligibly interpreted by persons who did not possess significant expertise in psychology and/or neuropsychology, just from the description of the tests… [34] In making my decision, I agree with what was written by Southin J.A., namely that when an expert in one field in possession of documents says that someone from a different discipline is not competent to understand his work, that the court is to be slow to overrule his judgment. That is a very different thing from saying that the documentation could not be produced to counsel for the party seeking production. If that party choses to have the documents interpreted by someone not competent to understand them, lack of competence will be readily available to a trial judge and will work against the party who conducts litigation in that way. [35] I also respectfully agree that courts must not run rough shod over those who are not parties to the proceedings. That is why the Rules require delivery of notices of applications to non-parties from whom documents are sought. [36] The evidence before Master Horn in Davies was that there was an ethical restriction placed on the neuropsychologist to prevent disclosure. The actual evidence that was presented in that case is not before me. [37] I had evidence before me of the current Code of Conduct. So long as Dr. Pirolli complies with the Code of Conduct, and in particular that portion of the Code of Conduct set out in subparagraph 1.2, reproduced above in para. 28, her ethical requirements are met. [38] The other concerns raised by the plaintiff are dealt with by the litigation privilege which attaches to the documents.
UPDATE June 5, 2014 – This decision was overturned on appeal with the Defendant being found fully at fault
____________ As previously discussed, when an emergency vehicle is responding to a call and is involved in a collision fault does not automatically rest with the other vehicle. All of the circumstances surrounding the collision must be examined. Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, addressing this area of law.
In last week’s case (Maddex . Sigouin) the Defendant was travelling a few car lengths behind the Plaintiff police officer. The Plaintiff detected a speeding oncoming vehicle, activated his lights, and attempted a U-Turn at the approaching intersection. To do so he had to cut across from the left hand lane in which he was travelling, through the designated left had turn lane and into his turn. The Defendant did not have time to react safely, hit his brakes and also turned into the left hand turn lane in the hopes of avoiding contact. Ultimately the Court found both motorists equally responsible for the crash. In reaching this decision Mr. Justice Williams provided the following reasons: [43] It is my conclusion that Mr. Sigouin was not paying sufficient attention as he was driving and that he was positioned too close behind the police car, taking into account the speed and the limited maneuverability of his vehicle. By the time he recognized the necessity to react to the police car slowing in his lane, it was too late to safely slow down behind that vehicle. As a result, he was forced into an emergency maneuver which entailed passing the police vehicle. He did not believe it was safe to pass on the right and so he elected to pass on the left which necessitated him moving into the left-turn bay to get past the police car. It is clear that he did not see the flashing emergency lights and react to them in a timely and responsive way. My conclusion that he was not paying sufficient attention is buttressed by the fact that the vehicle he evidently failed to notice was a prominently marked police car displaying flashing lights. It is clear from the evidence that Mr. Sigouin knew that this was a police car because he testified that he made that observation a short time earlier and that he took measures to situate himself so that he was travelling behind that car. [44] As for the plaintiff, he initiated a turn, essentially a U-turn, from the number 2 lane. He satisfied himself that could be done safely with respect to the oncoming traffic. However, he appears not to have appreciated that his maneuver could not be safely executed because there was another vehicle following fairly close behind him. [45] Further, he initiated his maneuver not from the left-turn bay, but rather from the number 2 lane, a position which made it less apparent that he was going to turn left. [46] I accept that the plaintiff was displaying his emergency lights and it would be apparent to any other motorist that he was engaged in some sort of official emergent duties on the roadway. As I indicated earlier, other drivers are expected to yield to such vehicles. [47] However, it is abundantly clear from the legislation that displaying emergency equipment, whether lights or lights and siren, does not afford a shield of invincibility or absolute right. Even when an emergency vehicle has that equipment fully deployed, there is an overriding obligation on the operator of the emergency vehicle to ensure that any driving activity be conducted in a safe fashion vis-à-vis other persons on the roadway. [48] In the present case, that required the plaintiff to be sure that his U-turn could be executed in safety. He ought to have been aware of the fact that the defendant’s vehicle was following him, fairly close behind; he ought to have checked behind him. [49] It is evident that he did not do so. [50] In the circumstances, I find that both of the drivers, the plaintiff and the defendant Mr. Sigouin, were negligent in this collision. [51] As for allocation of fault, I find each to be similarly responsible, and I apportion liability equally, that is, 50 percent for each of them.
Last week the BC Court of Appeal addressed fault for a crash between an impaired driver and a stationary vehicle. In last week’s case (Hansen v. Sulyma) the stationary vehicle had run out of gas and pulled off the roadway. Shortly thereafter another motorist, who had been drinking in excess at a nearby pub, lost control and drove into the stationary vehicle. While the Court found the impaired driver mostly at fault the driver of the stationary vehicle was also found party to blame. In reaching this conclusion the BC Court of Appeal provided the following reasons: [5] When the Honda was a couple of kilometres away from the terminal, its engine “spluttered” and then stopped. Mr. Sulyma steered it off the paved portion of the road and onto the shoulder. He testified that they were stopped on a straight stretch. He telephoned one of his sisters who lived on the Island and she agreed to bring gas to where the Honda was stranded. Ms. Hansen phoned home to tell her son that she and Mr. Sulyma would not be back to Powell River until the next day. [6] While they were stopped, Ms. Hansen testified that she asked Mr. Sulyma to put on the car’s “flashers” or hazard lights, but he told her that was “silly”. The lights were left off. After a few minutes, Mr. Sulyma tried the ignition again and the car started. He pulled out onto the road and they were able to drive a short distance, but the engine then spluttered and died again. The trial judge accepted the testimony of both Mr. Sulyma and Ms. Hansen that he steered the vehicle onto the shoulder such that it was parked “entirely on the shoulder of the road, and no part of the vehicle was located on the paved portion of the roadway.” (Para. 31.) Although parts of Mr. Leprieur’s statements to the police were to the contrary, other portions of his statements led the trial judge to infer that he had had no memory of where the Honda had been parked. The trial judge found that the car was “at what counsel have referred to as the ‘apex’ or middle point of a left-turning (for northbound traffic) curve in the highway.” (Para. 35.).. [17] With respect to Mr. Sulyma, the trial judge was satisfied he had failed to meet the applicable standard of care by failing to activate the hazard lights on Ms. Hansen’s vehicle or otherwise illuminating lights that would have made the Honda more easily noticeable to drivers. As for causation, the Court found this failure “caused or contributed to the collision” and that had the lights been on, Mr. Leprieur would likely have been alerted to the presence of the Honda earlier than he was. The trial Judge continued: … Even if Mr. Leprieur’s ability to react was slowed by the excessive amount of alcohol he had consumed and he was being inattentive, flashing lights would probably have caught his attention before the vehicle itself became visible. An earlier warning of the presence of the Hansen vehicle would, I conclude, have allowed Mr. Leprieur time to stop accelerating or possibly even slow his vehicle, and thereby reduce the force of the impact and the severity of Ms. Hansen’s injuries. [At para. 78; emphasis added.]
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[30] Moving on to the question of standard of care, Ms. Wright contends that the standard imposed by the trial judge on Mr. Sulyma was “too high in law”. She emphasizes that the Hansen car was parked off the paved portion of the road. Can it be correct, she asks, to require a person in Mr. Sulyma’s position to have activated the hazard lights in order to avoid the risk posed by a driver who is drunk, speeding, and accelerating on a trajectory off onto the shoulder? Ms. Wright observes that this is the first case of which she is aware in which the driver of a vehicle that is parked completely off the road has been held to be negligent for failing to put on his or her hazard lights. [31] Mr. Cowper responds ? correctly in my view ? that Ms. Wright’s objections are to the trial judge’s findings of fact rather than to any legal principle she applied. The question in every case is whether the person has taken reasonable care in all the circumstances. There is no rule of law to the effect that any driver who parks his car off the road may rest assured that he or she need not activate the vehicle’s hazard lights. It all depends on the circumstances. In this case, although the Honda was off the road, it was a dark and misty (if not foggy) night, the road was not illuminated, the car was in the apex of a curve, and Mr. Sulyma and Ms. Hansen were sitting in the vehicle. As the Court stated in Thornhill v. Martineau (1987) 39 C.C.L.T 293 (B.C.S.C.), even though a vehicle is legally parked, it may create a danger which ought to be foreseen by its driver. [32] The trial judge in the case at bar implicitly concluded that it was reasonably foreseeable that a driver coming around the curve would swing wide ? a conclusion of fact that in my view has not been shown to be clearly wrong. (It was not necessary in this regard to show that Mr. Sulyma ought to have foreseen that an intoxicated driver would speed around the curve.) I note that this case is substantially different from that inCawson v. Quandt 2001 BCCA 210, where this court reversed a trial judge’s finding that a driver who had encountered deer on the road and, while remaining in the lane of traffic, had stopped his truck to let them cross, had been negligent in failing to turn on his hazard lights. The trial judge had imposed 15% liability on the defendant for this reason, but the Court of Appeal allowed his appeal on the basis that the trial judge had imposed “an unreasonable standard imposing almost a warranty upon the defendant.” (Para. 4.) For purposes of the case at bar, it is important to note that the defendant in Cawson had his headlights and running lights on at all times (see para. 49 of the trial judge’s reasons; [1999] B.C.J. No. 1341). [33] In my opinion, this ground of appeal must fail.
Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry addressing two important topics; the assessment of costs for fast track actions when they settle before trial and the recoverability of Trust Administration Fees as a disbursement.
In last week’s case (Christen v. McKenzie) the Plaintiff settled his ICBC claim after litigation was well underway for specified damages plus “costs payable“. The parties couldn’t agree on these with the Plaintiff seeking full Rule 15 costs and ICBC arguing that a lesser amount should be paid because “a number of pre-trial steps involving a substantial amount of work were still required to be performed as the case settled seven -and-a-half months prior to the commencement of trial“. Madam Justice Arnold-Bailey awarded the full cap noting that while the trial was a ways off significant trial preparation steps were undertaken and this was sufficient to trigger the Rule 15 cap. The Court provided the following reasons: [35] To my mind significant preparation for trial ought to be sufficient to entitle the successful party to costs for pre-trial preparation to the full amount of the cap, presently $6,500 pursuant to Rule 15-1(15). Pre-trial preparation may take various forms given the demands of the particular action. Whether the parties engage in extensive negotiations or mediation and thus achieve a settlement months or days before trial, the preparation by counsel may easily approach that required to actually conduct the trial. The focus ought to be on the amount of useful preparatory work done and not where in the pre-trial timeline the resolution was reached. Indeed, the focus of Rule 15-1 and the Civil Rules generally is to encourage early and fulsome preparation to resolve cases earlier as opposed to later if possible; and also to limit the scope of the proposed trial to what is truly at issue, thus reducing the time and costs associated with resolving the dispute. [36] In the present case it is clear that the matter was substantially prepared to the level necessary to achieve a significant settlement prior to trial. While there may be fast track cases where a review of the costs amount claimed for preparation is warranted, this is not one. However one dissects and analyzes what was done or not done to prepare this case for trial, a considerable amount of preparation was performed by plaintiff’s counsel to achieve the sizable settlement. Extensive and protracted negotiations, such as occurred here, ought not to be regarded as requiring significantly less preparation than preparing a case for mediation or trial. Indeed, such negotiations are to be encouraged as the most cost‑effective way of dealing with cases that would otherwise proceed to trial. The efficacy of conducting a fast track action ought not to be undermined by a costs analysis that bogs down in the picayune.
The Court also noted that a Trust Administration fee is a fair disbursement a successful litigant can claim. Madam Justice Arnold-Bailey provided the following comments addressing this: 37] I note that the plaintiff’s claim for the trust administration fee of $10 plus $1.20 in taxes is not now disputed by the defendant McKenzie and the third party. The following authorities support it being claimed:Parrotta v. Bodnar, 2006 BCSC 787 at para. 25; Polubinski v. Twardowski, 2007 BCSC 843; and McCreight v. Currie, 2008 BCSC 1751. Therefore the plaintiff’s claim for $11.20 in relation to the trust administration fee (including tax) is successful.
Last year I discussed why Sidney Crosby’s concussion is the best thing that happened for mild trauatic brain injury victims. Last week Canadian Mixed Martial Arts fighter TJ Grant has provided us with an equally teachable moment. In short he has demonstrated that concussions are serious injuries and need to be treated with respect.
TJ Grant was scheduled to fight for the UFC’s lightweight title. An opportunity that will take him from relative obscurity into the public spotlight. This is one of the greatest opportunities that a professional combat sports athlete can have. To the surprise of many he stepped down from this opportunity . This, despite not being guaranteed another shot at the title by UFC brass. The reason, a concussive injury sustained in practice with lingering post concussive symptoms.
TJ Grant provided a lengthy interview to MMA reporter Ariel Helwani and this is worth listening to in full to help gain some appreciation to the ‘invisible’ aspect of traumatic brain injury, the invasive symptoms TBI can cause and the minor exertions that can create significant set backs in recovery. As discussed at the Canadian MMA Law Blog , it is now well understood that combat athletes often sustain some of the worst trauma through training, not only by being exposed to possible concussions but through the accumulation of multiple sub concussive blows. TJ Grant should be commended not only for his personal decision in putting proper recovery first, but for being an example to all combat sport participants that brain health should not be sacrificed, even in the face of possible fame and fortune.
