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Visual Aids Permitted In Trial Closing to "Assist the Jury"

Written by admin on . Posted in Jury Trials, Uncategorized. 70 Comments on Visual Aids Permitted In Trial Closing to "Assist the Jury"


Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, addressing the admissibility of non-exhibit visual aids during closing submissions in a Jury trial.
In the recent case (Walker v. Doe) the Plaintiff sued for damages following a motorcycle collision.  During closing submissions the Plaintiff canvassed his claimed damages for wage loss and future care with the help of non-exhibit visual aids.  In finding such aids were appropriate Mr. Justice Voith provided the following reasons:
[19] Counsel for the plaintiff proposes, in his closing submissions, to: (a) develop a bar graph or time line that explains the period of time that each of past wage loss, future wage loss, and the other heads of damage being claimed cover; and (b) visually depict how a future wage loss claim or future care claim should be calculated from the relevant tables that are found in the Civil Jury Instructions.

[32] In line with MacKenzie A.C.J.S.C.’s reasons in Basi, I have reviewed both Watt’s Manual of Criminal Jury Instructions and the CJC’s model jury instructions. Both seem to confirm that charts or summaries can be used during a closing to help illustrate or explain the evidence, even if they are not made exhibits at trial.

[33] The purport of the decisions in Bengert, Fimognairi and Basi, moreover, is that trial judges have a wide discretion to permit what aids to the jury they consider are helpful or appropriate.

[34] Support for this wider discretion is also found in Jones A. Olah, The Art and Science of Advocacy, loose leaf, (Toronto: Carswell, 1990). At 18.8, he writes, unfortunately with no citation other than to another secondary source that I was unable to access:

The use of demonstrative aids that are not part of the trial record, such as blackboards, charts, models, and summaries, is in the trial judge’s discretion. If the evidence provides reasonable foundation for these summaries or charts, then their use should be permitted.

[35] In this case, subject to the comments I am about to make, I am satisfied that counsel for the plaintiff can proceed as he wishes. The intended use of the “demonstrative aids” that he has described is modest, finite, and would assist the jury in understanding the issues that are before them. This is also consistent with the guidance provided in each of Bengert, Fimognairi and Basi. Still further, my instructions will contain a caution confirming that neither the time line nor the calculations constitute “evidence” before the jury.

I am advised this case is currently under appeal for unrelated reasons.  If the BC Court of Appeal addresses this topic I will provide an updated post.

Double Costs Awarded Following Liability Only Trial

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized.

Adding to this site’s archived posts of costs consequences following trials with formal settlement offers, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing this topic following a ‘liability only’ trial.
In this week’s case (Cyr v. Blaine) the Plaintiff was involved in a 2009 collision.  The parties agreed that, subject to proving fault, the value of the claim was $60,000.  The parties could not agree on fault both arguing the other was to blame.  Prior to trial the Plaintiff delivered a formal settlement offer of $50,000.
At trial the Defendant was found fully at fault entitling the Plaintiff to the agreed damages of $60,000.  Mr. Justice Saunders found that it was appropriate to award the Plaintiff post offer double costs in these circumstances.  In doing so the Court provided the following reasons:

[13] The defendants say that it was reasonable for them to try the case on the basis of their theory that the plaintiff had a duty to look to her left as she passed by the front of the vehicle that had stopped for her in the intersection.  But even if the plaintiff had been under an obligation to anticipate that there might be another vehicle in the same lane as the stopped vehicle, attempting to pass that stopped vehicle on the left, the defendants had no evidence that, by the time she would have been able to see the defendants’ vehicle, she would have been able to bring her own vehicle to a stop in time to avoid the collision, given the defendants’ speed.

[14] The defendant Mr. Blaine passed a stopped vehicle, on its left, when he was in the same lane as that vehicle. As I found, it ought to have been apparent to Mr. Blaine from the opening in the divider separating eastbound and westbound traffic that he was passing through an intersection, and that cars travelling in his direction had stopped to let a vehicle or vehicles through the intersection. By the time the subject offer was delivered, it ought to have been apparent to the defendants that they would be found wholly or at least substantially liable for the accident.

[15] Given that damages had been agreed at $60,000, the plaintiff’s $50,000 offer represented a discount of roughly 17%, or, to put it another way, roughly a 50% chance of a finding of one-third contributory negligence on the plaintiff’s part.  It was an offer that reasonably ought to have been accepted upon delivery.

[16] The plaintiff, I find, is entitled to double costs of all steps taken after the offer was delivered.

MRI Recommended By Massage Therapist Not Recoverable in ICBC Claim

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Kelowna Registry (Culos v. Chretien), rejecting compensation for the cost of an MRI recommended by a Massage Therapist.  In finding this was not an appropriate special damage in the circumstances (ie -without the request coming from a medical doctor) Mr. Justice Rogers provided the following comments:
[61] The plaintiff is not entitled to the cost of the MRI or the magnetic belt that he claims. The former is not recoverable because the massage therapist who recommended it to the plaintiff did not have the qualifications to either prescribe the scan or to interpret its result. The magnetic belt sounds like a bit of Old West quackery. No evidence at trial supplied a foundation for a finding that this belt was necessary to control or cure the plaintiff’s complaints.

$70,000 Non-Pecuniary Assessment for Chronic Headache Disorders

Written by admin on . Posted in ICBC Headache Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, assessing damages for a chronic headache disorder caused as a result of a motor vehicle collision.
In this week’s case (Fennell v. Herbert) the Plaintiff was involved in a ‘quite violent’ collision in 1998 when she was 8 years old.  Liability was admitted focussing the trial on an assessment of damages.  The trial proceeded summarily as there were no issues as to the legitimacy of the plaintiff’s symptoms nor to their connection to the collision.  In assessing non-pecuniary damages at $70,000 the court summarized the following medical evidence and provided the following reasons:

[4] As a result of the motor vehicle accident, the plaintiff suffered soft tissue injuries to her neck and lower back and headaches started within days of the collision. The headaches and neck pain have continued ever since and it is the headaches that are the most debilitating and are now considered chronic.

[5] Dr. Robinson, who is a neurologist that specializes in pain disorders stated in his report that:

In all likelihood she will continue to have chronic headache and neck pain indefinitely. This will have a negative impact on her quality of life, as well as occasionally resulting in an inability to work, attend school, or socialize…

[7] Dr. Laidlow, a physical medicine and rehabilitation specialist, in a report dated April 28, 2010, noted that the plaintiff had neck pain, back pain, and two types of headaches. His opinion was that her neck and lower back pain was myofascial pain caused by musculoligamentous strain at the neck and lower back at the time of the accident. Dr. Laidlow recommended that she see a neurologist. Dr. Robinson’s report was dated August 9, 2011. He noted that as a result of the accident she probably sustained soft tissue injury to her neck and shoulders and developed chronic headaches relating to the neck injury:

I believe that she probably did develop chronic headaches relating to neck injury as a result of the January 30, 1998 motor vehicle accident. As a result of that accident, she has ongoing neck and shoulder discomfort present constantly. The pain is aggravated by physical activity whereupon there is an increase in her head pain.

I believe that it is possible that she did develop an increased predisposition to headache reflecting migraine in her early teenage years. However, I doubt that she would have developed a constant headache or as frequent severe episodes had the lingering effects motor vehicle accident not been present.

In essence, I believe that her current headache difficulties are primarily related to chronic pain involving her neck secondary to the motor vehicle accident of January 30, 1998, superimposed upon which is a predisposition to headaches. Although it is impossible to be definitive I believe that she probably would not have developed any substantial problems with headaches if the accident had not occurred.

In all likelihood she will continue to have chronic headaches and neck pain indefinitely. This will have a negative impact on her quality of life, as well as occasionally resulting in an inability to work, attend school, or socialize. I doubt that her headache disorder will worsen or that it will have a negative impact upon her post-secondary education or for that matter her career potential.

[8] Dr. Laidlow also stated:

I do feel that she should be able to go to school and do any work activities. I think she will also be able to do any recreational activities that she chooses…

[15] I accept the evidence of the plaintiff. I find that under the heading of general damages for loss of enjoyment of life, given her young age and the severity of pain and discomfort she has suffered, she is entitled to general damages in the amount of $70,000. Also included is a component for loss of housekeeping capacity.

LVI Defence Rejected Again; Damages Awarded for Modest Injuries

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


In an all too familiar development reasons for judgement were released last week by the BC Surpeme Corut, New Westminster Registry, considering and rejecting ICBC’s “Low Velocity Impact” defence.
In last week’s case (Hoy v. Harvey) the Plaintiff was involved in a 2010 rear-end collision.  The impact resulted very minor vehicle damage.  The defendant argued that the Plaintiff “could not have sustained his claimed injuries from such a minor impact“.  Madam Justice Fitzpatrick rejected this logic and provided the following reasons:

[46] As in most motor vehicle injury cases involving soft tissue injuries, the defence cites the oft quoted decision in Price v. Kostryba (1982), 70 B.C.L.R. 397, where Chief Justice McEachern, as he then was, stated that the Court must exercise caution in respect of subjective complaints of pain in respect of those soft tissue injuries (at 399).

[47] I agree that the extent of this collision is relatively minor and that this is a factor to be considered when assessing Mr. Hoy’s claims of injury. However, it is equally clear that even low impact collisions may cause injuries. In Lubick v. Mei and another, 2008 BCSC 555, Mr. Justice Macaulay stated:

[5]        The Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury. In Gordon v. Palmer, [1993] B.C.J. No. 474 (S.C.), Thackray J., as he then was, made the following comments that are still apposite today:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

He goes on to point out that the presence and extent of injuries are determined on the evidence, not with “extraneous philosophies that some would impose on the judicial process”. In particular, he noted that there was no evidence to substantiate the defence theory in the case before him. Similarly, there is no evidence to substantiate the defence contention that Lubick could not have sustained any injury here because the vehicle impact was slight.

[6]        I am satisfied that Lubick sustained an injury in the collision in spite of the low impact.

[48] Generally speaking, I found Mr. Hoy to have given his evidence in a straightforward and direct manner. His subjective complaints of pain were confirmed by objective testing by both his family physician, Dr. Yong, and his physiotherapist, Ms. Mattiello. It is accepted that prior to the accident, Mr. Hoy was in good health and was suffering none of the complaints that arose just after the accident.

[49] In these circumstances, I am satisfied that the injuries suffered by Mr. Hoy in the accident were caused by the accident and that accordingly, causation has been proven.

The Court went on to note that the Plaintiff suffered minor soft tissue injuries which went on to make full recovery.  In awarding $7,000 for non-pecuniary damages the Court provided the following reasons:
[71] In this case, Mr. Hoy’s most significant injuries can be said to have been resolved fairly quickly. His neck injury was only significant for a period of approximately two months which coincided with his last treatment by his physiotherapist, Ms. Mattiello. Thereafter, he would have pain only once per month for four further episodes. His back pain persisted to the point of affecting his lifestyle only for a period of approximately three months, when he returned to work full-time and began to resume his sporting activities. All symptoms were completely resolved by May 2011, or within 11 months…
[77] I award the sum of $7,000 for non-pecuniary damages.
Lastly, paragraphs 93-104 of the reasons for judgement are worth reviewing for the Court’s analysis in declining to award the Plaintiff costs finding there was no sufficient reason to bring this modest claim in Supreme Court.  You can click here to read other decisions addressing this discretionary issue.

Welcome Top MMA News Readers

Written by admin on . Posted in BC Injury Claims Media Archives, Uncategorized. 74 Comments on Welcome Top MMA News Readers


Keith Grienke, owner of topmmanews.com kindly republished my article discussing the implications of Bill S-209 (the Bill seeking to formally legalize MMA in Canada) and the potential consequences this will have on amateur MMA contests.  I want to thank Keith for bringing a larger, and more targeted, audience to this issue.
For those of you visiting here for the first time, welcome.  I write about Canadian MMA Legal Developments at the Canadian MMA Law Blog and you can visit there for more details.

Liability Discussed Following Parking Lot Collision

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


Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing fault for a parking lot collision involving two vehicles.
In yesterday’s case (Sheikh v. Struys) the Plaintiff and Defendant were both attempting to leave a busy parking lot following a Canucks game.   A truck has stopped leaving a gap in the travelled laneway.  The Defendant drove into the gap and at almost the same time the Plaintiff “reversed back into (the Defendant’s) Jeep“.  The Plaintiff argued that the Defendant was wholly or at least partially at fault alleging the gap was left for him to fill.  Madam Justice Fitzpatrick disagreed and provided the following reasons in dismissing the Plaintiff’s claim:

[47] I find as a fact that Dr. Sheikh’s SUV reversed back into Mr. Struys’ Jeep while Mr. Struys was partially into the laneway and had stopped there. I also find as a fact that Dr. Sheikh could not see Mr. Struys’ Jeep at the time of the collision. Further, I find that Dr. Sheikh could not see what was happening behind his vehicle as he was reversing into the laneway and, therefore, he has no knowledge as to how the collision occurred.

[48] Dr. Sheikh contended that Mr. Struys should have paid more careful attention as to what was going on in front of him. Mr. Struys was said to have mistakenly assumed, without any eye contact with the driver of the Dodge truck, that the Dodge truck had stopped for him, which resulted in him colliding with Dr. Sheikh’s SUV.

[49] In my view, it does not matter which party was the one being allowed to enter the laneway by the driver of the Dodge truck. The driver of the Dodge truck may in fact have been stopping for both of their vehicles in that respect. There is no evidence one way or the other as to whether the Dodge truck had stopped for Dr. Sheikh, Mr. Struys or both of them. The point is that the Dodge truck had stopped and both parties assumed, based on their contact with the driver of the Dodge truck, that he or she was stopped for them. As such, it has not been shown that Mr. Struys “mistakenly” assumed that the Dodge truck had stopped for him…

[53] The Motor Vehicle Act, R.S.B.C. 1996, c .318 addresses the duty of care owed by a driver who is reversing his vehicle:

Caution in backing vehicle

193 The driver of a vehicle must not cause the vehicle to move backwards into an intersection or over a crosswalk, and must not in any event or at any place cause a vehicle to move backwards unless the movement can be made in safety.

…

[62] I find that Dr. Sheikh has not proven, on a balance of probabilities, any negligence on the part of Mr. Struys. Nor did Dr. Sheikh discharge the burden under the Motor Vehicle Act in proving that he was able to move back “in safety” while reversing his vehicle.

[63] Accordingly, I find Dr. Sheikh entirely responsible for the collision. As such, there will be no apportionment of liability between the parties pursuant to the Negligence Act.

$50,000 Non-Pecuniary Assessment for Frozen Shoulder and Chronic Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained as a result of a motor vehicle collision.
In last week’s case (Wepryk v. Juraschka) the Plaintiff was involved in a 2008 collision.  She was a passenger and the driver of her vehicle lost control resulting in a roll over collision.  Liability was admitted.  The 43 year old Plaintiff suffered soft tissue injuries and while she was able to continue working as a hairdresser these injuries limited her abilities to do so.  In assessing non-pecuniary damages at $50,000 Mr. Justice Ehrcke provided the following reasons:

[9] All of the doctors are agreed that Ms. Wepryk suffered soft tissue injuries to her neck, left shoulder, and upper back as a result of the accident, and that she continues to experience pain, discomfort and occasional headaches from these injuries at the time of trial, three and one-half years after the accident.

[10] In addition, Dr. Chan was of the opinion that Ms. Wepryk suffered adhesive capsulitis or frozen shoulder as a result of the accident. Dr. Loomer did not agree with that conclusion. Dr. Chu had no opinion on the causation of the adhesive capsulitis. Dr. Smith agreed with the opinion of Dr. Chan. On a balance of probabilities, I accept the opinion of Dr. Chan, although not a great deal turns on this, since, as Dr. Chu expressed it, the left adhesive capsulitis is “the least of her problems”.

[11] There was also a disagreement between Dr. Smith and Dr. Tessler regarding the causation of left C-8 sensory neuropathy. Again, I find that nothing of significance turns on this, as these symptoms were minor and transient.

[12] The important fact is that the defendants accept that Ms. Wepryk suffered soft tissue injuries to her neck, her left shoulder, and between her shoulder blades, and that she continues to experience pain to this day. As Dr. Smith put it in his report dated February 26, 2012:

More than three years have passed since Ms. Wepryk’s motor vehicle accident of December 5, 2008. In terms of prognosis, Ms. Wepryk unfortunately has fallen into the 10% of patients still with symptoms more than two years after their motor vehicle accident. Therefore, Ms. Wepryk’s prognosis to return to pre motor vehicle accident levels of functioning is poor, and Ms. Wepryk must now learn to cope with what I believe is a permanent functional impairment.

[13] I accept that conclusion, notwithstanding that Dr. Loomer expressed a “hope” of improvement. In cross-examination, even he agreed that there is no definite evidence that she will get better.

[14] It is likely, therefore, that Ms. Wepryk will continue to suffer from the pain to her neck, left shoulder and upper back, along with occasional headaches. Her symptoms are aggravated when she has to perform activities that require her to raise her arms, or to use her left shoulder. This has an impact on her work as a hairdresser, which requires such activities. It also has an impact on her recreational activities and activities of daily life….

[35] While reference to previous cases provides useful guidance, every case must be assessed on its own particular facts. Here, the plaintiff, who was 43-years-old at the time of the accident and who enjoyed an active lifestyle, suffered soft-tissue injuries to her neck, left shoulder, and upper back. Now, more than three and one-half years after the accident, her pain and discomfort have not fully resolved, and she is likely to have some residual effects for the indefinite future. She continues to have headaches three or four times a month, and she cannot engage in vigorous physical activities, particularly those that require her to raise her left arm above her shoulder-level, without experiencing pain. She therefore finds it difficult to be as physically active as she was before the accident. She says that she has gained some weight as a result, although the medical evidence suggests that any weight gain has been modest.

[36] In the circumstances of this case, on the facts as I have found them, and considering the factors set out in Stapley v. Hejslet, I find the proper assessment of non-pecuniary damages to be $50,000.

Costs Update: More on Rule 15 and Pre Trial Settlement Costs

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 15. 57 Comments on Costs Update: More on Rule 15 and Pre Trial Settlement Costs

Last year reasons for judgement were released discussing the lump sum costs available to parties under Rule 15.  Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, finding that the quantum pre trial Rule 15 settlement costs should remain a matter of discretion.
In the recent case (Benz v. Coxe) the parties settled a personal injury claim for an undisclosed quantum plus costs.  The parties could not agree to the amount of costs and the issue was put before the Court.  Ultimately Registrar Sainty held $6,5000 was an appropriate quantum of costs on the facts of the case (settled in the mature phase of litigation) but held that no hard and fast rule should exist making this amount appropriate across the board.  In doing so the Court provided the following reasons:

[15] I appreciate the submissions of counsel. I have found those of Mr. Jeffrey to be more persuasive than those of Mr. Cope. I am going to continue to support my decision in Cathcart No.1 for a variety of reasons.

[16] Firstly, I think it is important to note, as Harvey J. confirmed in Gill v. Widjaja, supra, that Rule 15-1(15) gives the Registrar wide discretion in determining the appropriate tariff amount. If I were to accede to Mr. Cope’s submission — that in every case you get the cap unless there are special circumstances — I believe that, would be taking away from the discretion given to the Registrar to make these types of decisions.

[17] Secondly, I think Mr. Cope’s approach, rather than taking away from confusion, makes matters more confusing. I do not think one can draw a line in the sand and decide, for example, that where there has been discovery and there are no other special circumstances, you get the cap. However, If there has been no discovery and there are no other special circumstances (yet to be decided and which must be argued), you will probably get some proportion of the cap. One might still end up in the same position. Because whether you call it special circumstances, parsing out, or rough and ready, the parties will still end up assessing costs before a registrar who would then decide where the case was, in terms of preparedness, and who would also have to decide if there are (or are not) special circumstances such that the cap or something less might be awarded.

[18] I agree with Mr. Jeffrey, who submitted that the fairest approach in these types of circumstances is to consider all of the circumstances of the action. I also agree that the fact Harvey J. says one should not get bogged down in the details does not take away from the rough and ready approach, which is actually more fair, I think, to all the parties, because to make discoveries, say, the arbitrary line in the sand could result in some injustices. For example, there may be those odd circumstances where no discoveries have been conducted and were set for a week or two before trial for some reason or other. In those circumstances, using Mr. Cope’s “line in the sand”, a plaintiff might have to apply to a registrar to find special circumstance so that they might get the full cap amount (or something approximating it) if the case settled before the discoveries had been conducted but still, essentially, on the eve of trial.

[19] On the basis of all of the above, I stand by my decision in Cathcart No.1.

ICBC Ordered to Cover Damages for Corvette Crash at Western Speedway

Written by admin on . Posted in Uncategorized. 95 Comments on ICBC Ordered to Cover Damages for Corvette Crash at Western Speedway

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, discussing the limits of the ICBC coverage exclusion for crashes which occur during “performance driver training”
In today’s case (Nye v. ICBC) the Plaintiff was the owner of a Corvette.  He joined the Victoria Corvette Club which arranged for a private autocross event at the Western Speedway.  While participating in this event the Plaintiff crashed his vehicle with the Court summarizing the collision as follows:
[13] The plaintiff experienced no problems with the course until he came to a series of turns around some pylons placed several metres apart.  He entered that part of the course without difficulty and he safely manoeuvred around all of the pylons except for the last one.  As he attempted to complete his turn around the last pylon he felt he was too close to it and he said that when he attempted to put his foot on the brake pedal to slow down his foot slipped off the brake pedal and onto the accelerator causing his vehicle to lurch forward.  As a result he momentarily lost control and the vehicle collided with a concrete retaining wall.  The plaintiff was shaken up, but not injured; however, his car was severely damaged.
The Plaintiff had collision coverage with ICBC but they refused to cover the loss arguing the crash occurred during a ‘speed test‘ during ‘performance driver training‘.  Mr. Justice Bracken rejected ICBC’s arguments and ordered the damages to be covered finding that while the collision did occur during ‘advanced driving training‘ there was no element of a speed test at the time.  The Court provided the following reasons:

[19] Section 2(1) of the Regulation states:

Unless otherwise provided in a special coverage certificate, the Act and this regulation do not apply in respect of

…

(f)         a vehicle being used in a contest, show or race, or in advanced or performance driver training, if

(i)         the activity is held or conducted on a track or other location temporarily or permanently closed to all other vehicle traffic, and

(ii)        there exists an element of race or speed test.

…

(2)        In subsection (1)(f), “element of race or speed test” means driving at high speed, and includes passing manoeuvres, driving in close proximity to another vehicle or assessing vehicle limitations in speed, acceleration, turning or braking…

[37] On the evidence, I am satisfied that the activity in which the vehicle was used was an event that can fairly be described as advanced driver training.  An instructor was available and did introduce the plaintiff to the course in his first slow drive around the course.  A club session was held in advance to provide guidance to participants on how to drive the course.  The plaintiff did not actually receive any direct instruction on how to handle his vehicle on the course; however, there was some general guidance on what he should expect…

[39] I am also satisfied on the evidence that the event was held on a closed track.  While there was evidence of one non-participating vehicle intruding onto the track during the plaintiff’s first run, it was clear that the vehicle should not have been there and that the driver had proceeded past a flag person or club member stationed at the entry point for the purpose of keeping non-participants off the course…

[41] The remaining issue is whether the defendant has proven that there was an element of race or speed test in the event.  To repeat, the defendant must establish that

… there exists an element of race or speed test, which means driving at a high speed, and includes passing manoeuvres, driving in close proximity to another vehicle or assessing vehicle limitations in speed, acceleration, turning or braking…

[49] Here, the evidence does not support the conclusion that the plaintiff was assessing his vehicle’s limitations in speed, acceleration, turning or braking.  I find he was driving his vehicle well within its limitations of speed and turning, and I accept his evidence that the accident resulted when his foot slipped from the brake to the accelerator, causing the vehicle to accelerate directly into the retaining wall.

[50] In the result, I find the defendant has failed to establish that the plaintiff was operating his vehicle in breach of the Regulation or his insurance policy.  I find that he is entitled to coverage under his own damage provisions of the policy of insurance issued by the defendant.