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Plaintiff's "Apprehension of Bias" Turfs Defendant's Chosen Psychiatric Examiner

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

An Excerpt From Proceedings from the BC Supreme Court, Nanaimo Registry, was recently shared with me addressing the choice of a Defence Psychiatric Exam where a Plaintiff raised an apprehension of bias.  In the face of such concerns the Court did not allow a Defence Medical Appointment to proceed with the Defendant’s psychiatrist of choice and instead ordered that the Defendant choose a different psychiatrist.
In the recent decision (Henry v. Reeves) the Plaintiff alleged he suffered a chronic pain syndrome as a result of a collision.   The Defendant requested a Defence Psychiatric Exam.   Mr. Justice Halfyard ordered that the Defendant was entitled to such an exam.  The Plaintiff raised concerns about the Defendant’s chosen physician highlighting the proposed doctor’s ICBC billings and further pointed out two cases where the chosen physician was judicially criticized.
Mr. Justice Halfyard considered these submissions and noted that the Plaintiff has “got a point here” and ultimately concluded that “I am not going to order (the Proposed physician)..to conduct the medical examination” making the parties settle on a different physician.
To my knowledge this Excerpt of Proceedings is not publicly available but as always I am happy to provide a copy to anyone who contacts me and requests one.

$42,000 non-pecuniary assessment for "somewhat exaggerated" soft tissue injuries

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

Reasons for judgment released last week by the BC Supreme Court, New Westminster Registry, assessing damages for lingering soft tissue injuries caused by a motor vehicle collision
In last week’s case (Fifi v. Robinson) the plaintiff was injured in a 2008 crash.   Fault for the collision was admitted focusing the trial on an assessment of the plaintiff’s damages.
The plaintiff alleged that she suffered from significant soft tissue injuries.   She sought global damages between $271,000 and $396,000.  The court found aspects of the plaintiffs case problematic and further found that she ‘somewhat exaggerated’ her complaints.  Despite this Mr. Justice Verhoeven found that the plaintiff did suffer some injuries which were lingering to the time of trial.  In assessing non-pecuniary damages  $42,000 the court provided the following reasons for judgment:
[116]     I accept that at the time of her testimony at trial, in January 2012, in excess of three years post accident, she was still suffering from soft tissue injuries to her neck, back, shoulders, arms and hands resulting from the accident.  She has headaches but these are infrequent and of relatively short duration.  Her major ongoing complaint is of pain.  She is not at risk of developing degenerative arthritis or disc disease in future arising from the accident injuries. There is no evidence that the accident injuries will result in any long-term consequences to her health.
[117]     In view of my conclusion that her complaints are somewhat exaggerated, it is difficult to assess the true extent and degree of the plaintiff’s ongoing pain and disability resulting from the accident injuries.  What is clear to me is that they are not as significant as the plaintiff has stated.  It is also clear that other than for the first two to three weeks post-accident, her injuries have never been seriously disabling.  I note her testimony that her injuries had improved by the time she returned to work at Levan in January 2009 and had improved further when she worked at 5ive West in the fall of 2010.  I find that her injuries have gradually been improving with time…
[125]     I find that the residual effects of the plaintiff’s injuries will likely continue for one or two years from the time of trial, but will continue to diminish further with the passage of time, and with appropriate treatment such as active rehabilitation and exercise.  Following this period, any residual complaints will not be significant…
131]     Upon consideration of the whole of the evidence, in my view the sum of $42,000 represents a fit and proper amount of compensation for the plaintiff’s non pecuniary loss…

Court Critical of ICBC for Failing to Advise Unrepresented Party of Limitation Period

Written by admin on . Posted in Uncategorized.

When advancing a tort claim with ICBC it is important to remember that they have no duty to advise you of your limitation period.  If the clock runs out before filing your lawsuit there is typically little a court can do other than offer words of criticism at ICBC for engaging in this practice.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating such a result.
In last week’s case (Tolentino v. Gill) the Plaintiff was injured in a 2004 collision. He dealt with ICBC directly with the Court making the following findings about their interactions:
22]        …I find that on July 13, 2005, Mr. Tolentino told Ms. Brunac-White that he had not talked to anyone about his claim (including a lawyer) and Ms. Brunac-White advised Mr. Tolentino that it was not necessary to have a lawyer at that time. Ms. Brunac-White intended to discuss the matter with Mr. Tolentino after she obtained updated medical information. Mr. Tolentino was to contact her when he returned from a trip but he did not do so before the limitation period expired on January 10, 2006. Ms. Brunac-White did not attempt to contact Mr. Tolentino either, and she closed the file on February 2, 2006, after conducting a search for a writ of summons.
The Plaintiff ultimately started a lawsuit and ICBC applied to have it dismissed as being filed beyond the limitation period.  The court sided with ICBC and dismissed the lawsuit but prior to doing so Madam Justice Fisher provided the following criticism:
[23]        It is indeed unfortunate that Ms. Brunac-White made no effort to contact Mr. Tolentino before the limitation period expired. It would have been a simple task that could have served the interests of both parties. However, as the plaintiff concedes, ICBC as the insurer has no duty to advise him about the limitation period. Silence or inaction may be considered a representation only where the representor owes a legal duty to the representee to disclose something or take certain steps: Ryan v Moore, 2005 SCC 38…
[29]        I wish to add, however, that I was disturbed by the adjuster’s approach in this case. She sought to rely on an “agreement” with the plaintiff about the next steps but when he did not contact her after several months, she ought to have considered that there could have been a misunderstanding. While she may not have been successful in making contact with the plaintiff given his history, her failure to make any attempt to contact him before the limitation period expired was in my view unreasonable. She had a telephone number and could have left him a message. Although she did not have a legal duty to do so, given her knowledge of the claim, this would have been a more reasonable and fair approach.
[30]        The plaintiff’s action is dismissed…
 

Loss of Interdependency Claims Need to Be Specifically Plead

Written by admin on . Posted in Civil Procedure. 54 Comments on Loss of Interdependency Claims Need to Be Specifically Plead

In British Columbia the law recognizes that a Plaintiff can be awarded damages if they have injuries which impair their opportunity to form a permanent interdependent economic relationship.  Reasons for judgement were released Last week by the BC Supreme Court, Cranbrook Registry, addressing whether such a claim forms part of a diminished earning capacity claim or if it is a unique loss which needs to be specifically plead.  In short the Court held such claims do indeed need to be particularized in the pleadings.
In last week’s case (Moll v. Parmar) the Plaintiff was injured in a 2006 collision.  As trial neared the Plaintiff served an economist’s report advancing an interdependency claim and valuing damages for this at $200,000.  The report was served outside the time permitted under the Rules of Court.  The Defendant objected to the report’s admissibility due to its late service and further due to the fact that an interdependency claim was not specifically plead.  Mr Justice Abrioux held that the report would not be admitted in these circumstances and ordered an adjournment to address the concerns raised.  In concluding that an interdependency claims need to be specifically plead the Court provided the following reasons:
[19]         The issue before me, being whether the interdependency claim had to be specifically pled, was not before the Court of Appeal in Anderson. I have concluded that while an interdependency claim is “closely connected” to one for loss of earning capacity, it is nonetheless a separate head of damages. It should be specifically pled and accompanied, pursuant to the Supreme Court Civil Rules, R. 3-1(2)(a), by a concise statement of the material facts giving rise to the claim.
[20]         Accordingly, if the plaintiff seeks to advance this claim, he is required to amend his statement of claim. Absent the defendant’s consent, he will have to apply to do so. There is no draft amended notice of civil claim before me and, accordingly, I am not in a position to deal with a proposed amended pleading at this time.

Court Refuses to Re-open Issue Where ICBC Fails to Pursue "Seatbelt Defence" During Liability Trial

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 59 Comments on Court Refuses to Re-open Issue Where ICBC Fails to Pursue "Seatbelt Defence" During Liability Trial

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing whether ICBC could re-open a trial to raise the seat-belt defence where they failed to advance such a claim during a liability only trial.
In yesterday’s case (Matheson v. Fichten) the Plaintiff was injured in a 2009 collision.  The matter proceeded to trial first on the issue of fault.  Prior to trial the Plaintiff admitted that “at the time of the accident she was not wearing the lap and shoulder seatbelt“.  ICBC did not lead this evidence at trial.  Ultimately fault for the crash was split between the motorists involved on a 90/10 basis.   Prior to entering judgement ICBC sought to re-open the liability trial to permit them to lead evidence of contributory negligence with respect to the seatbelt issue.  Madam Justice Smith refused to do so providing the following reasons:
[4]             Although the Reasons for Judgment state (at para. 5) that there is no allegation of contributory negligence against the plaintiff, in fact, the defendant Harmandeep Singh Bahniwal did allege in his pleadings that the plaintiff was contributorily negligent in that she failed to use her seat belt or failed to have her head rest properly adjusted.
[5]             Further, the defendants produced evidence on the application that at the plaintiff’s examination for discovery on November 3, 2011, she admitted that at the time of the accident she was not wearing the lap and shoulder seatbelt.
[6]             Despite the pleadings and that admission, the allegation of contributory negligence was not pursued at the trial.  During the three-day trial, neither counsel led any evidence bearing on possible contributory negligence on the part of the plaintiff, nor did counsel for either side refer to contributory negligence in his submissions.  The plaintiff did not testify and her testimony at the examination for discovery was not tendered.  There was no medical evidence with respect to her injuries or with respect to the consequences of her having failed to utilize the seatbelt…
[9]             In my view, the defendants had their opportunity at the trial to raise the defence of contributory negligence and to lead evidence in that regard.  They have not satisfied me that there would be a miscarriage of justice if the trial is not re-opened.  While the plaintiff has admitted that she was not wearing her seatbelt, there is no material before me to suggest that medical or other evidence regarding her injuries is available that would possibly change the result of the trial.  Finally, it is likely that the trial would have been conducted differently if the contributory negligence had been pursued, and it would be unfair to the plaintiff to require the trial on liability to be re-opened at this stage.

Unknown Prognosis a Barrier to Quantum Trials, But Not Liability

Written by admin on . Posted in BCSC Civil Rule 12, Uncategorized. 55 Comments on Unknown Prognosis a Barrier to Quantum Trials, But Not Liability


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the fact that an unknown prognosis is a true barrier to a personal injury quantum claim proceeding to trial.
In this week’s case (Dazham v. Nachar) the Plaintiff sued the Defendant for injuries sustained in a 2009 collision.  Fault was disputed.  As the matter approached trial the Plaintiff sought an adjournment arguing that the matter was not yet ready as the Plaintiff’s physicians were unable to comment on his prognosis.  The Court agreed but instead of adjourning the entire matter severed the issues of quantum and liability and ordered that the trial proceed solely on the issue of fault.  In doing so Master Baker provided the following reasons:
[12]         Nevertheless, I have concluded that this is not one of those cases where the injuries can be said to have plateaued, that it is now just a matter of waiting. That is not the case to me at all. Both physicians have indicated further surgical intervention. They have also indicated that that is a contingency; in essence  a) whether the cortisone injections work; and b) whatever the MRI says.
[13]         So by no means are we at a point where the extent of Mr. Dazham’s injuries and their expected recovery can be given with satisfactory accuracy. I just do not think we are there yet.
[14]         As I say, the liability is very much in issue, and why it is generally the situation or circumstance that the court prefers not to sever issues, when we have a lay witness, when we have such an active issue. I think it is in everyone’s interest that that matter be resolved first, and then as a consequence, rather than adjourn the matter, that the issues of liability and quantum be severed and that the matter of liability proceed.
[15]         With respect, I adopt Mr. Justice Finch’s comments in Radke v. M.S., 2006 BCCA 12 at paragraph 24, in which he comments that:
If the plaintiff’s injuries have not resolved to the point where damages can fairly be tried, the parties may still try the liability issues while the events are fresh in the witnesses’ memories.
[16]         I understand Ms. Meade’s concerns about credibility being an important aspect, both as to liability and as to damages, but I can’t see that that is a sufficient concern or basis for not severing. I also think severing is the appropriate approach, rather than adjourning, as I have already said.
[17]         As a consequence, there will be an order directing that the issues be severed.
You can click here to read my archived posts addressing adjournment applications and severance applications in the BC Courts.
 

Litigation Guardians Are Not Immune From "Loser Pays" Costs Consequences

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 20, Uncategorized.

Update September 25, 2013 – The below decision was upheld by the BC Court of Appeal in reasons released today
_________________________________________________________
I’ve written many times about the BC Supreme Court’s “loser pays” system which generally requires a losing litigant to pay for the winner’s costs and disbursements.  If a lawsuit is started on a child’s behalf and on reaching adulthood they take over the claim themselves can the former litigation guardian still be exposed to loser pays costs consequences?  The answer is yes as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (McIlvenna v. Viebeg) a lawsuit was commenced on behalf of an infant plaintiff in 2003.  By 2009 the Plaintiff was an adult and took over the prosecution of his claim himself by filing an affidavit of attainment of majority.  The matter proceeded to trial and the claim was ultimately dismissed.  The Defendant was awarded costs.  An issue arose as to whether the Plaintiff or the previous litigation guardian were liable to pay these.  The Court held that the Litigation Guardian was liable for costs up until the Plaintiff reached the age of majority and the Plaintiff was liable from that point onward.   Mr. Justice Sigurdson provided the following reasons:
[17]         Although Bird J.A.’s comments on the liability of litigation guardians for costs in Miller were dicta, they were considered dicta.  Bird J.A. concluded that an infant ratifying the action after attaining the age of majority does not inherit and replace the litigation guardian’s liability for costs.  I have seen nothing in the authorities that lends support to the position that a defendant’s possible entitlement to costs from a litigation guardian disappears when the infant reaches majority.  I expect that subsequent to Miller, litigation guardians starting actions (and filing affidavits at the time) understood their potential liability for costs and the fact that it continued at least up to the infant’s majority.  Rule 20-2(12) and (13) do not suggest that the filing an affidavit upon attaining the age of majority removes any possible past liability of the litigation guardian for costs. 
[18]         While it is true that a possible adverse costs order may deter a person from suing as a litigation guardian, there are also policy reasons that support awarding costs in favour of successful defendants.  In any event, I think the underlying law has been clear for more the 50 years that a litigation guardian assumes potential liability for costs if he or she starts an action as a litigation guardian and is not successful. 
[19]         Accordingly, my conclusion is that Shawne McIlvenna, the plaintiff’s former litigation guardian, is responsible for the costs that I have already ordered, up to February 27, 2009, when the plaintiff filed his affidavit of majority. ..

Parties Cannot Rely on Opposing Litigant's Jury Notice Under The New Rules of Court

Written by admin on . Posted in BCSC Civil Rule 12, Jury Trials, Uncategorized. 60 Comments on Parties Cannot Rely on Opposing Litigant's Jury Notice Under The New Rules of Court

Reasons for judgement were released this week by the BC Supreme Court, Cranbrook Registry, concluding that under the New Rules a Plaintiff “is not entitled to have a jury trial by paying the jury fees associated with the jury notice filed by the Defendant“.
In this week’s case (Moll v. Parmar) the Plaintiff was injured in a 2006 collision.  The case had a complex pre-trial history that cannot easily be summarized but in short the matter was set for trial with only one live jury notice in place which was filed by the Defendant.  As trial neared the Defendant elected not to rely on the Jury Notice.  The Plaintiff brought an application allowing him to piggy-back on the Defendant’s Jury Notice.  Mr. Justice Abrioux held that this was not allowed and dismissed the application.  The court did, however, grant the Plaintiff leave to file a jury notice of their own.
In concluding that one party cannot rely on another’s Jury Notice under the New Rules the Court provided the following reasons:
 [1]             The plaintiff seeks to have the trial of this action heard by the court with a jury. The application was heard on July 12, 2012. It raises the issue as to whether under the Supreme Court Civil Rules, which came into effect on July 1, 2010, a party which did not file a jury notice may, nonetheless, rely on a jury notice filed by another party and secure a trial by jury by paying the required fees. In light of the pending trial date being August 13, 2012, I am delivering these oral reasons for judgment today. I reserve the right to edit these reasons although that process will not involve a change in the decision or in the reasoning…
[19]         The plaintiff’s submission is predicated on the word “and” at the conclusion of Rule 39(26)(a) not being present at the end of Rule 12-6(3)(a)(ii). The plaintiff submits the inclusion of “and” at the end of Rule 39(26)(a) formed the basis of William J.’s conclusion in Folk. It was only the party that issued the jury notice who was entitled to pay the jury fees associated with that notice.
[20]         I agree with the plaintiff that the word “and” at the end of Rule 39(26)(a) was an important factor in Folk. I do not agree, however, that its omission in Rule 12-6(3)(a)(ii) changes the state of the law. Rule 12-6(3) states, “a party may require that the trial of an action be heard by the court with a jury by doing the following”. Although “and” is not present, the words “by doing the following” were added in the introductory wording of the present subrule.
[21]         In accordance with Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, I read the subrule in its entire context “in its grammatical and ordinary sense harmoniously” with the Supreme Court Civil Rules. In doing so, I am of the view the words “by doing the following” had the effect of replacing the word “and” which appeared in Rule 39(26)(a).
[22]         Accordingly, as would have been the case under Rule 39(26), the plaintiff in this case is not entitled to have a jury trial by paying the jury fees associated with the jury notice filed by the defendant.

$60,000 Non-Pecuniary Assessment For Lingering Soft Tissue Injuries and Recovered Head Injury

Written by admin on . Posted in ICBC Brain Injury Cases, Uncategorized.

Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, addressing damages for lingering soft tissue injuries and a recovered mild traumatic brain injury.
In yesterday’s case (Hardychuk v. Johnstone) the Plaintiff was injured in a 2006 collision.  Fault was admitted focusing the trial on damages.  The Plaintiff alleged that she suffered a permanent brain injury which resulted in significant incapacity seeking damages well over 2 million dollars.  While the Court rejected much of this claim Madam Justice Dickson was satisfied that the Plaintiff suffered lingering soft tissue injuries and a recovered traumatic brain injury in the crash.  In assessing non-pecuniary damages at $60,000 the Court provided the following reasons:
[162]     I have found that Ms. Hardychuk suffered soft tissue injuries to her neck, shoulders and back in the accident.  After a two-year process of gradual recovery, these injuries left her with residual symptoms of back discomfort, occasional flaring pain and periodic headaches.  Ms. Hardychuk also suffered post-traumatic stress disorder and a mild traumatic brain injury as a result of the accident.  The symptoms of her post-traumatic stress disorder are well encapsulated, resolving and non-debilitating.  The mild traumatic brain injury caused Ms. Hardychuk to suffer cognitive deficits for several months but those symptoms have now fully resolved.
[163]     As a result of her ongoing soft tissue injury symptoms Ms. Hardychuk experiences pain, frustration, and fatigue, but not a mood disorder or cognitive deficits.  Her vocational, home and recreational activities have been somewhat modified, but she has not been rendered sedentary or unemployable.  As discussed below, her decision to leave her cabinetmaking job in 2010 is not causally related to the accident, nor is her state of depression.  The prognosis for further improvement in her ongoing accident-related symptoms is good, but she may never recover fully.
[164]     Before the accident, Ms. Hardychuk was an extraordinarily athletic and physically-oriented young woman.  Vigorous, enthusiastic, unimpeded physical activity in her work and recreational pursuits was, for her, a major pleasure in life.  For this reason the compromise to her physical state and activities caused by her ongoing symptoms, while not highly debilitating, represents an unusually significant loss for which she is entitled to be fully compensated.  That being said, her loss is not nearly of the nature or magnitude of those addressed in the cases cited by her counsel.  It is, however, somewhat greater than those addressed in the cases cited by counsel for the defence.
[165]     All things considered, I conclude that an award of $60,000 in non-pecuniary damages is appropriate in the circumstances of this case.

Some Thoughts on Section 173 of the Motor Vehicle Act

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

Although the BC Motor Vehicle Act specifcally addresses the right of way at intersections controlled with and without yield signs, the legislation does not specifically address the right of way when vehicles approach and stop at a 4 way stop-sign controlled intersection at the same time.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this.
In last week’s case (Demarinis v. Skowronek) the Plaintiff and Defendant approached an intersection at approximately the same time.  Ultimately the Court found that the Defendant approached first and had the right of way.  Before getting to this conclusion the Court addressed the commonly held notion that the driver to the right enjoys the right of way at 4 way intersections.  The Court provided the following reasons:

[26]The plaintiff argues that since both parties entered the “intersection” almost simultaneously, because the plaintiff was to the right of the defendant, she had the right-of-way. Accordingly, the defendant had a corresponding obligation to yield the right-of-way to her.

[27]Surprisingly, neither party was able to identify any case law which arose from circumstances similar to those in this case. The plaintiff argues, however, that the excerpts from the ICBC publication “Road Sense for Drivers, British Columbia Driving Guide”, which includes the following guidance for “four-way stops”, is of assistance:

four-way stops — when there are stop signs at all corners:

• The first vehicle to arrive at the intersection and come to a complete stop should go first.

• If two vehicles arrive at the same time, the one on the right should go first.

[28]In doing so, the plaintiff accepts that the Road Sense Guide does not contain “rules of law”, but submits that the Guide, in combination with other considerations, can inform the standard of care which is relevant in particular circumstances.

[29]I do not consider that the Guide advances the proposition that the plaintiff advocates. The foregoing language from the Guide, and in particular the words, “the first vehicle to arrive at the intersection and come to a complete stop should go first”, presupposes that the four stop signs at an intersection will be placed at the same distance from the intersection at issue. The excerpt from the Guide also treats the words “intersection” and “stop sign” synonymously. Were it otherwise, there would be no need for a vehicle to stop at the intersection. Instead, more properly or more precisely, the vehicle would be required to stop at the stop line.

From my perspective it appears litigants need not rely on the ICBC Driving Guide to establish the right of way analysis.  Looking at section 173  it states that:

“if 2 vehicles approach or enter an intersection from different highways at approximately the same time and there are no yield sign the driver of a vehicle must yield the right of way to the vehicle that is on the right of the vehicle that he or she is driving.”

A four way intersection controlled by stop signs is an intersection where “there are no yield signs” so the above section appears to be applicable.

Please feel free to comment if you have differing views on the subject.