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11 Year Old Successfully Sued Following School Ground Horseplay

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with fault for a school-ground injury.
In this week’s case (Gu v. Frisen) the 11 year old plaintiff was injured in 2008 when she was carrying a friend, piggyback-style, during recess.  At the same time the defendant pushed the girls, with no intetion of ill-will but rather “to make the girls laugh”.  Unfortunately the Plaintiff fell over and broke her arm.
The Plaintiff sued the Defendant, his parents and the School District.  The Claims were all dismissed except the claim against the 11 year old defendant.  In finding him legally responsible for the injury Mr. Justice Schultes provided the following reasons:
[23]         I am satisfied that Liam did not put his mind to the risk before he jogged up behind Elizabeth and pushed her. The question is whether, objectively viewed, he should have.
[24]         He was 11 years old at the time of this incident. There was no evidence that he was of less than normal intelligence for his age. As to his experience, making the assumption most favourable to his position, which is that comparing him to children of the same “experience” is broad enough to include his maturity and impulsivity, I think that a child with those similar attributes would still have foreseen that, if he were running at a fast jog, even the gentle pushing from behind of another child who was being carried piggyback risked both the top and bottom person falling over and being injured in some way in the fall. It is a matter of the physical reaction of human bodies to the application of force — a kind of knowledge that is acquired by all children on the playground at a very young age.
[25]         The fact that the injury to Jacqueline turned out to be more serious than a child in Liam’s circumstances might have anticipated does not undermine liability. Madam Justice Bennett summarized the applicable law in Hussack v. Chilliwack School District No. 33, 2011 BCCA 258, at para. 71:
[71]      It is not necessary for the plaintiff to show that the precise injury or the full extent of the injury was reasonably foreseeable. What he must show is that the type or kind of injury was reasonably foreseeable:  Hughes v. Lord Advocate, [1963] UKHL 1; Jolley v. Sutton London Borough Council, [2000] UKHL 31; Ontario (Minister of Highways) v. Côté, [1976] 1 S.C.R. 595.
[26]         This mishap is unlike the rather freakish accidents in which the liability of older children and adolescents for negligence was denied, based on a lack of foreseeability, in McHale v. Watson (1966), 115 C.L.R. 199 (Aus. H.C.) (a thrown piece of welding rod ricocheting off a post) and Mullin v. Richards, [1998] 1 All E.R. 920 (C.A.) (a piece of a plastic ruler breaking off during play sword-fighting). In both cases, childish horseplay led to serious eye injuries, but the defendants’ original ill-advised actions set in motion further physical effects that the judges concluded could not have been anticipated.
[27]         This case, I have said, required only the rudimentary foresight that a person who is pushed from behind might fall over and in doing so get injured, something that was well within the capacities of a child in Liam’s situation.
[28]         As a result I find him liable for the accident

Advance Payment Order Used to Remedy "Harsh" Reality of Trial Adjournment

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 13, Civil Procedure. 43 Comments on Advance Payment Order Used to Remedy "Harsh" Reality of Trial Adjournment

A common occurrence at Trial Management Conferences is adjournment in circumstances where it is clear the time available for trial is insufficient.   Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, recognizing that this is a “serious penalty” and that in cases where the trial estimate when set was “not unreasonable” an advance payment order may be an appropriate remedy.
In this week’s case (Van Gils v. Grandmaison) the Plaintiff was involved in a 2008 collision. Liability was admitted.  The Plaintiff alleged he suffered from Thoracic Outlet Syndrome.  The Defendant disputed the severity of the claimed injuries.  The matter was set for an eight day trial but by the time of the Trial Management Conference it became clear this was insufficient.  Mr. Justice Schultes adjourned the trial and ordered an advance of damages. In finding this was an appropriate use of the Court’s discretion Mr. Justice Schultes provided the following comments:
[5]             It is common ground that the governing the authority is the decision of Mr. Justice Macfarlane in Serban v. Casselman (1995), 2 B.C.L.R. (3d) 316 (C.A.) leave to appeal ref’d [1995] S.C.C.A. No. 120.
[6]             The often-cited passage is at para. 11:
While such orders are often made when the adjournment was brought about through the fault of one party or where the conduct of the litigation demands such an order, the rule is not restricted to matters of that kind. It is obvious that an order for advance payments should only be made in special circumstances. Obviously such an order should not be made unless the judge who makes it is completely satisfied that there is no possibility that the assessment will be less than the amount of the advance payments.
[7]              I think that the current situation meets the requirement of “special circumstances”. This trial was adjourned at the direction of the Court, pursuant to the Supreme Court Civil Rules, because it would exceed the original estimate and the trial schedule could not absorb that excess.
[8]             Based on the material that I had at the trial management conference, I would not have been able to attribute any lack of care or diligence to either counsel for the increase in trial length since it was originally set. Mr. Van Gils’ counsel advised that he had set it for eight days in the specific anticipation that, if his estimate were to be exceeded slightly, the schedule can usually still accommodate a trial of up to ten days.
[9]             When the estimate grew to potentially exceed that upper limit, he was still engaged in pruning his witness list when the defendants concluded that it was appropriate to add further witnesses. Neither approach is unusual in the course of trial preparation and neither is deserving of criticism.
[10]         The penalty for an incorrect estimate is an extremely serious one: a court-compelled adjournment at the trial management conference if the schedule cannot accommodate the new time estimate.
[11]         While this might be an appropriate deterrent for counsel who give their original estimates carelessly or who grossly underestimate the time required, it falls harshly on litigants and counsel whose original estimate was not unreasonable and whose requirement for additional time is based on changing circumstances as the trial grows closer.

Translator's "Poor Performance" Gives Way to Further Examination for Discovery

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

The current BC Supreme Court Rules cap examinations for discovery in a conventional prosecution at 7 hours unless the Court otherwise orders.   Reasons for judgement were released recently by the BC Supreme Court, Victoria Registry, addressing one circumstance when prolonging this cap was appropriate.
In the recent case (Dhami v. Bath) the Plaintiff attended 8 hours of discovery.  A translator was used who “did a poor job“.  The Court exercised its discretion to allow a further 2 hours of discovery and in doing so provided the following reasons:
[5]             This application must be determined on the evidence before the court. The only evidence with respect to the examination itself are the excerpts revealing the translator’s poor performance which objectively interfered with counsel’s ability to conduct the examination in an efficient manner. Put another way, I find that the translator’s conduct made it reasonably impractical to complete the examination for discovery in the time spent to date.
[6]             I am not persuaded that the examination of the plaintiff was concluded such that the defendant must meet the heavy onus suggested in Hogg v. Hansen, 2007 BCSC 958, for a second examination. The additional two hours is allowed to the defendant to complete the one and only examination.

"Plaintiffs are not Given Carte Blanche to Undertake any and all Therapies Which They Believe Will Make Them Feel Good"

Written by admin on . Posted in ICBC Chronic Pain Cases. 53 Comments on "Plaintiffs are not Given Carte Blanche to Undertake any and all Therapies Which They Believe Will Make Them Feel Good"


Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, underlying the importance of having medical opinion evidence in support of claimed special damages in an injury claim.
In this week’s case (Redl v. Sellin) the Plaintiff was injured in a 2009 collision.  Fault was admitted by the Defendant and there was no disagreement that the Plaintiff suffered from a chronic pain disorder as a result of her collision related injuries.  What was disputed was the significant treatment related expenses the Plaintiff advanced at trial.
The Plaintiff advanced special damages of over $46,000.  The Court disallowed many of these noting there was no medical evidence to justify many of these expenses.  In rejecting much of the sought special damages claim Mr. Justice Saunders provided the following reasons:
[44]         Ms. Redl is advancing a claim for special damages which is remarkable in its size and scope. The total amount sought is $46,501.22…
[55]         Generally speaking, claims for special damages are subject only to the standard of reasonableness. However, as with claims for the cost of future care (see Juraski v. Beek, 2011 BCSC 982; Milina v. Bartsch(1985), 49 BCLR (2d) 33 (BCSC)), when a claimed expense has been incurred in relation to treatment aimed at promotion of a plaintiff’s physical or mental well-being, evidence of the medical justification for the expense is a factor in determining reasonableness. I accept the argument expressed through Dr. Frobb, that a patient may be in the best position to assess her or his subjective need for palliative therapy. I also accept the plaintiff’s counsel’s argument that in the circumstances of any particular case, it may be possible for a plaintiff to establish that reasonable care equates with a very high standard of care. In the words of Prof. K. Cooper-Stephenson inPersonal Injury Damages in Canada, (2d ed., 1996) at p. 166:
Even prior to the Supreme Court’s endorsement of the restitution principle [in Andrews v. Grand & Toy Alberta Ltd. and Arnold v. Teno], in the area of special damages the courts had been prepared to allow optimum care, and damages were awarded for expenses of a character that stretched far beyond the resources of even an affluent Canadian.
That being said, and while Dr. Frobb’s paradigm of the patient becoming their own physician may have at least a superficial appeal, plaintiffs are not given carte blanche to undertake any and all therapies which they believe will make them feel good.
[56]         In the present case, Ms. Redl undertook an extraordinarily wide variety of therapies, some without advice, and some less conventional than others. She did so at considerable expense. It is probable, in my view, that she undertook this course of action in part through a desire to recover quickly and in part on the basis of her positive past experience, pre-accident, with massage therapy and chiropractic. However, her firm beliefs notwithstanding, there is no medical evidence that the therapies she undertook accelerated her return to work or have otherwise improved her physical condition. With regard to the palliative effect of the therapies, Ms. Redl did not experiment with trying one modality at a time. She did not experiment with lengthening the time between appointments. There is no evidence that the palliative effect of these therapies was any greater than what may have resulted from the use of over-the-counter medications. Ultimately, the evidence does not persuade me on a balance of probabilities that Ms. Redl’s physical or mental well-being is or could reasonably have been expected to be any greater as a result of undertaking these frequent therapies, than it would be if she had stuck to her pre-accident pattern of weekly or bi-weekly massage and monthly chiropractic treatments.
[57]         I am allowing, as special damages, the cost of her first 12 massage therapy sessions ($936.50), and her first 12 chiropractic treatments ($930), as such would have been reasonable during the acute phase of Ms. Redl’s recovery. Beyond that, I find that had the accident not occurred, the pre-accident pattern of these treatments likely would have continued up to the present date, even had the accident not occurred, and no greater frequency of treatment has been demonstrated to have been reasonable.
[58]         I am further allowing the cost of massage therapy sessions she underwent when on cruise vacations in September 2010 and March 2012, when she experienced flare-ups ($650). I am also allowing the physiotherapy ($210) and kinesiology ($453) expenses, as they were incurred on medical advice, and the 14 acupuncture treatments rendered at Dr. Frobb’s clinic ($2,100). The expense of the Pilates course is also allowed ($3,974.92), as being in furtherance of core strengthening, which Dr. Frobb referred to as a priority. I am disallowing the balance of the massage therapy, acupuncture and chiropractic expenses, and the claims for naturopathic and reflexology treatments, as not having been demonstrated as reasonable.

$90,000 Non-Pecuniary Assessment for Thoracic Outlet Syndrome With Poor Prognosis

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases, Uncategorized.

Adding to this site’s archived posts of BC non-pecuniary damage assessments for Thoracic Outlet Syndrome, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for such an injury with a poor prognosis.
In last week’s case (Gillam v. Wiebe) the Plaintiff was involved in a 2009 collision.  Fault was admitted by the Defendant.  The Plaintiff sustained various injuries including a Thoracic Outlet Syndrome with a poor prognosis for full recovery. In assessing non-pecuniary damages at $90,000 Mr. Justice Verhoeven provided the following reasons:
65]         In summary, I find that the plaintiff suffered the following injuries due to the accident:  chronic right sided neck and shoulder pain, thoracic outlet syndrome, and headaches, all as described above. She has also suffered from deterioration in her mood and disposition, interference with sleep, and significant weight gain.
[66]         Her headache condition is gradually improving but she continues to suffer from frequent headaches. Her neck and shoulder pain and her TOS symptoms also continue to cause pain and limitation of function. In general, the prognosis for the plaintiff’s conditions is poor. It is likely that she will have a degree of limitation of function and pain permanently…
[85]         Some context is also provided by the video surveillance evidence. Video surveillance was conducted on 3 separate days in April and May, 2012. The video evidence shows the plaintiff carrying out ordinary activities such as pumping gas, entering and exiting her vehicle, driving, and also shopping and eating a picnic lunch with companions. She displays no obvious sign of discomfort or disability and generally looks comfortable and able to carry out such moderate activities.
[86]         Nevertheless, the plaintiff suffers from a limitation of function. She suffers from pain in her neck and shoulder which will likely never completely disappear. She is unlikely ever to be symptom free in relation to her TOS condition. She continues to suffer from frequent headaches for which the prognosis is negative for complete resolution. She is no longer capable of heavy work, and must avoid other activities that could aggravate her neck and shoulder injuries and her TOS. She is restricted in terms of employment, domestic and recreational activities. There has been a very significant change in the plaintiff’s overall lifestyle. There have been emotional consequences to her injuries. Her injuries have also made caring for her daughter much more difficult.
[87]         While of course each case is unique, other court cases provide useful guidance with respect to the proper quantum of the award. Consistency with other decisions of the courts is desirable. The award must be fair to both sides.
[88]         The plaintiff relied upon: Stapley v. Hejslet, 2006 BCCA 34 ($175,000); Hooper v. Nair, 2009 BCSC 862 ($104,500); Cimino v. Kwit, 2009 BCSC 912 ($85,000); Milliken v. Rowe, 2011 BCSC 1458 ($85,000); and Durand v. Bolt, 2007 BCSC 480 ($75,000). The plaintiff submits that the range for non-pecuniary damages in this case is $95,000 to $135,000. The defence also relies upon Cimino, and Durand. Additionally, the defence cites Driscoll v. Desharnais, 2009 BCSC 306 ($55,000), Langley v. Heppner, 2011 BCSC 179 ($55,000), and Verhnjak v. Papa, 2005 BCSC 1129 ($40,000). The defence submits thatDriscoll and Langley most closely equate to this case, and submits that an appropriate award is $60,000.
[89]         Having reviewed these authorities, in my view an appropriate award for non-pecuniary loss in this case is $90,000.

ICBC Application To Withdraw Liability Admission Denied

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

Rule 7-7(5) allows a party to withdraw a formal admission by consent or with permission of the Court.  When it comes to an admission of liability obtaining the Court’s permission can be an uphill battle as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Victoria Registry.
In this week’s case (Miller v. Norris) the Defendant had a heart attack while driving a vehicle   He struck a traffic pole which was launched into the Plaintiff’s vehicle causing injury.  ICBC initially looked at the liability situation and placed the Defendant at fault.  After the lawsuit started liability was formally admitted in the pleadings.  As the lawsuit progressed the Defence lawyer wished to deny liability raising the ‘inevitable accident’ defence.  The Court refused to allow this noting the admission was not made hastily and no new evidence existed justifying the changed pleadings at this stage of the litigation.  In dismissing the application Master Bouck provided the following reasons:
[35]         The admission of liability (or more accurately, the rejection of the inevitable accident defence), was not made hastily, inadvertently or without knowledge of the facts. As noted, the individual adjusters involved in these claims are experienced in such matters and clearly put some thought towards the inevitable accident defence.
[36]         The question of liability is one of mixed fact and law. However, it may not be said that the fact admitted is false.
[37]         In terms of delay, the ICBC internal review of liability was initiated in the summer of 2011. For unexplained reasons, an independent adjuster was not retained for some seven months. The independent adjuster was in contact with the adjuster prior to be pleadings being closed and reported to ICBC in July 2012, yet there was no change in the instructions on liability for several more months and then only as a result of defence counsel’s initiative.
[38]         The only so-called “new” evidence is the production of Mr. Norris’ pre-accident health records. These records were obtained by the independent adjuster and provided to ICBC in July 2012. The records could have been obtained much earlier in this process; instead, the adjusters chose to rely on the information obtained from Mr. Norris’ doctor’s office. Most importantly, no new instructions were provided to defence counsel upon receipt of this information.
[39]         The plaintiff has incurred expense and proceeded with this lawsuit based on the admission of liability. Defence counsel submits that an award of costs can alleviate any prejudice suffered by the plaintiff in that regard. Even if I were to award the plaintiff costs and disbursements “thrown away” to date, the withdrawal of the admission and the plea of inevitable accident leaves the plaintiff exposed to the defendant’s costs. Furthermore, I am unable to characterize the pain clinic expense as a disbursement under Rule 14-1(5) of the Supreme Court Civil Rules. Rather, that expense is more accurately described as an item of special damages which would not be covered by any costs award.
[40]         This case bears some resemblance to the circumstances discussed in Rohling (Guardian ad litem of) v. Proudman, [1998] B.C.J. No. 1383 (S.C. Master). In that case, the defence sought to withdraw an admission of liability in order to plead inevitable accident (based on the recommendation of counsel). At para. 20, the court states:
I am not satisfied that it is in the interests of justice to allow the withdrawal of the admission simply because Mr. MacLeod takes a different view of the facts than taken by the adjuster and independent adjuster when the matter was originally considered shortly after the accident.
[41]         A similar analysis of this question is given in Oostendorp v. Sarai, [1973] B.C.J. No. 570 at para. 10:
It would be wrong to encourage a practice that enabled parties to admit liability one day and withdraw the admission later on the basis of a different view taken of the same facts by some other person.
[42]         I would add that here, multiple adjusters took the view that liability ought to be admitted. Furthermore, even though the relevant witnesses with respect to the inevitable accident defence are known to the parties, the passage of time may have affected these witnesses’ memories: Rohling (Guardian ad litem of) v. Proudman at para. 19.
[43]         In the result, I find that the application ought to be dismissed, with costs to the plaintiff.

LVI Defence, Liability Denial and Language Barriers Create Sufficient Reason to Sue in Supreme Court

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

While the BC Supreme Court Rules generally deprive a Plaintiff of costs who bring an action to trial that could have been brought in small claims court the BC Court of Appeal clarified that having ‘sufficient reason’ to sue in the BC Supreme Court is not limited to quantum of damages alone.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering some such other factors.
In this week’s case (Bae v. Vasquez) the Plaintiff was injured in a 2010 rear-end collision.  The Plaintiff suffered relatively minor soft tissue injuries.  She sued in the BC Supreme Court and was awarded damages of just over $12,000.  ICBC argued she should not be awarded costs as the action could have been brought in small claims court.  Madam Justice Baker disagreed finding that ICBC’s initial denial of liability, LVI Defence and the Plaintiff’s language barriers were all reasons justifying bringing the action in the Supreme Court.  In awarding costs the Court provided the following reasons:
[69]         I am satisfied that this case had neither legal nor factual complexities that made the Supreme Court a necessary venue.  I have already referred to the fact that a jury trial was not an option in any case; and there will be no need to enforce the judgment outside of the province.
[70]         In some cases, the fact that the plaintiff had difficulty with the English language; and therefore would have difficulty pursuing the claim without the assistance of counsel, has been held to be sufficient reason to proceed in Supreme Court, where the possibility of recovering costs makes it easier for a plaintiff to find counsel willing to act.
[71]         Plaintiff’s counsel submits also that in this case, the defendant denied liability for the accident in the Response to Civil Claim.  Plaintiff’s counsel has advised the Court that prior to the action being commenced, the defendant’s insurer had indicated:
…that due to the “minimal nature of the impact forces involved in the collision”…the Plaintiff had not sustained any “compensable injury”.
[72]         The defendant did not admit liability until January 30, 2012 and even at that date, continued to maintain that the plaintiff had suffered no injury, loss, damage or expense as a result of the accident.
[73]         Plaintiff’s counsel submits that because the defendant was maintaining that the plaintiff’s negligence was the sole cause of the accident, an examination for discovery of the defendant was necessary and that procedure would not have been available to the plaintiff in Provincial Court.  Counsel pointed out that at the plaintiff’s examination for discovery in July 2011, she was asked questions pertaining to liability, including whether she had consumed alcohol or drugs prior to the accident; whether she was familiar with the location where the accident happened; whether her vehicle had been properly maintained and was in proper working order and whether she had a valid driver’s licence at the time.
[74]         It was not until August 18, 2011 – after both the plaintiff and defendant had been examined for discovery – that defendant’s counsel wrote to plaintiff’s counsel suggesting that the action should be heard in Provincial Court and seeking the plaintiff’s consent to transfer the action to that court.  Plaintiff’s counsel replied on September 21, 2011 indicating that if the trial could be heard in Provincial Court in the same time frame as the trial date set in Supreme Court – March 2012 – then the plaintiff would consider the request for a transfer.  Defendant’s counsel was asked to make inquiries to determine when the trial could be heard if transferred to Provincial Court.  No reply was received.
[75]         Ms. Bae testified at trial with the assistance of an interpreter.  She had been examined for discovery without an interpreter and at trial indicated she had misunderstood some of the questions asked of her.  Ms. Bae is not an assertive individual and I am satisfied she would have had considerable difficulty pursuing this action without the assistance of counsel.  Of course, parties may be and often are represented by counsel in Provincial Court, but the unavailability of costs makes it more difficult to find representation.  There was a denial of liability in circumstances where normally liability would be admitted and it was reasonable for the plaintiff to wish to examine the defendant for discovery on the issue of liability – a procedure unavailable in Provincial Court.
[76]         Taking all of these factors into account, I am of the view that there was sufficient reason for the plaintiff to bring her action in Supreme Court.  I award the plaintiff costs, the costs to be governed by Rule 15-1(15).

$85,000 Non-Pecuniary Assessment For Fractured Femur With Permanent Partial Restrictions

Written by admin on . Posted in ICBC Femur Injury Cases. 50 Comments on $85,000 Non-Pecuniary Assessment For Fractured Femur With Permanent Partial Restrictions

It is rare to find caselaw dealing with damages for a femur fracture alone as the forces required to break the body’s biggest bone usually also result in other complex injuries.  Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, dealing with such an injury without significant complication from other factors.
In this week’s case (Gravelle v. Seargeant) the Plaintiff pedestrian was struck by the Defendant’s vehicle while he was walking on the shoulder of a road.  The impact threw the plaintiff between and 30 feet.  He suffered a fractured right femur which required surgical interventions.  Despite a relatively good recovery he was expected to have some permanent level of restriction due to his injury.  In assessing non-pecuniary damages at $85,000 Mr. Justice Kelleher provided the following reasons:
[50]         The following is the application of these factors to the plaintiff:
(a)      Age of the plaintiff: 
Mr. Gravelle was 16 when the accident happened.  The evidence establishes that he will likely suffer some measure of pain for the rest of his life.
(b)      Nature of the injury:
Mr. Gravelle suffered a fractured right femur that required an open reduction and insertion of an intramedullary nail and locking screws.  He also suffered injuries to his low back, right groin and right knee, which remain a cause of pain.
(c)      Severity and duration of pain:
He was in severe pain for a short period of time.  He was required to take pain medication for 4 – 6 months.  Four and a half years after the accident he continues to suffer pain.
(d)      Disability:
The plaintiff was totally disabled for some six months, and continues to have some measure of disability.
(e)      Emotional suffering:
The plaintiff’s mother testified that the plaintiff was isolated and less confident following the first collision.  He did not seek counselling for this.
(f)       Loss and impairment of life:
Mr. Gravelle’s life was interrupted and altered by the first collision.  He missed part of Grade 10.  His mobility was significantly restricted during the summer.  He has permanent injuries and has some impairment of his ability to perform physical labour and enjoy his former physical pursuits.
(g)      Impairment of family, marital and social relationships:
Mr. Gravelle does not enjoy spending a lot of time with friends.  He was somewhat like this before the accident as well.
(h)      Impairment of physical and mental abilities:
He has a permanent impairment of his physical capabilities.  There is no impairment of his mental abilities.
(i)       Loss of Lifestyle:
Mr. Gravelle was unable to engage in snowboarding, an important part of his life, for some time.  He has been able to return to it, but pain prevents him from snowboarding in the same manner as before.
(j)       Stoicism:
Mr. Gravelle is somewhat stoic in his presentation.  The defendant agrees that the plaintiff should not be penalized for this…
53]         Having considered the plaintiff’s injuries and the factors listed above, in light of the case law, I assess non-pecuniary damages at $85,000.

PAU Strips Ontario Insurer of Defense for Payment of BC No Fault Benefits

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits.

As previously discussed, BC’s Financial Institutions Act requires out of Province vehicle insurers to sign a “Power of Attorney Undertaking” in essence promising to provide the minimum insurance coverage available in BC when their insured vehicles are travelling in this Province and further not to raise any defences which are not available to BC insurers.  As many North American jurisdictions have insurance limits well below those required in BC this often creates excess exposure for foreign insurers.  Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, stripping a PAU signatory of a defence they otherwise would be entitled to.
In the recent case (McCord v. Insurance Corporation of British Columbia) the Plaintiff was injured as a pedestrian in a BC collision.  He was insured for no-fault benefits both with ICBC  and a private insurer from Ontario.  He received benefits from ICBC and subsequently sought coverage with the Ontario provider.  The Ontario insurer denied payment relying on an Ontario regulation which limited payments “if the person receives benefits under the law of the jurisdiction in which the accident occurred“.
The Plaintiff sued arguing the Ontario insurer could not rely on this section as they signed the PAU.   Mr. Justice Saunders agreed and provided the following reasons:
[9]             Western Assurance says that there has been no violation on its part of the PAU; it has not set up a defence as to coverage, but has simply taken a position as to the amount of coverage available….
[10]         The PAU sets out two provisions. One is an undertaking not to raise defences. The other is an undertaking to pay limits as set out in (a) and (b) of the PAU. A “position” taken by a foreign insurer that only the minimum amount is payable, and not the full amounts otherwise payable under the foreign insurer’s policy, is, in every sense of the word, a defence. The position being taken here by Western Assurance is one of the types of conduct which the PAU is designed to prevent…
[12]         In my view, the raising of the provisions of the Regulation by Western Assurance is a defence within the meaning of the PAU, and reliance on those provisions as a defence would constitute a breach of the undertaking under the PAU.
[13]         The application is therefore allowed, and s. 57(1.1) of the Regulation will have no application to Mr. McCord’s claim for benefits.