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ICBC Internet Domain Name Challenge Fails

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with the challenge of the use of “icbc” in a domain name not owned or operated by ICBC.
In today’s case (ICBC v. Stainton Ventures Ltd.) ICBC alleged that the use of ‘icbc’ in a domain name used as a marketing tool for personal injury lawyers was misleading and in breach of ICBC’s intellectual property rights.  Mr. Justice Grauer dismissed these aspects of the claim finding that websites that use the name ICBC in their domain that comment on ICBC would not confuse an “average customer of normal intelligence“.  Mr. Justice Grauer provided the following reasons:

[26] Anyone familiar with motoring in British Columbia would, I expect, conclude that “ICBCadvice.com” was probably about the Insurance Corporation of British Columbia.  ICBC is, after all, a very large institution that is the subject of widespread public commentary.  In this context, would British Columbians be likely to mistake “ICBCadvice.com” for ICBC’s official mark?  I think not.  More probably, I find, they would take it as identifying the subject-matter of the site, not whose site it is.

[27] I therefore conclude that the defendant has not acted contrary to sections 9 and 11 of the Trade-marks Act in its use of the website/domain name “ICBCadvice.com”.  The same logic applies to the defendant’s use of the domain names <icbcadvice.ca>, <fighticbc.com> and <fighticbc.ca>.

[28] In my view, the defendant’s use of the acronym “ICBC” throughout its website also does not contravene the Trade-marks Act.  The defendant does not use that acronym as a “trade-mark or otherwise” in the sense required, which is the use of the mark in connection with its business in some way that is intended to identify and distinguish its products.  Rather, it simply uses the acronym to identify the plaintiff, as thousands do every day, and as I do in these reasons…

[47] As the Court of Appeal observed in Private Career Training Institutions Agency v. Vancouver Career College (Burnaby) Inc., 2011 BCCA 69, 14 B.C.L.R. (4th) 358 at para. 35, “the consumer must be given credit for having normal intelligence.”

[48] In the context of British Columbia’s universal automobile insurance scheme, I am satisfied that the average customer of normal intelligence would not be led astray, and would have no difficulty recognizing that ICBCadvice.com would probably relate to how to deal with ICBC in an arm’s length or even adversarial sense, rather than in a manner endorsed by ICBC.

[49] I conclude that the plaintiff’s claim based upon the common law and statutory tort of passing-off must be dismissed.

$35,000 Non-Pecuniary Assessment For SI Joint Injury With Flare-Ups; LVI Defence Rejected

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for a sacroiliac joint injury caused by a motor vehicle collision.
In last week’s case (Bartel v. Milliken) the Plaintiff was involved in a 2008 collision.  Fault was admitted by the Defendant.  Although the Defendant challenged the Plaintiff’s credibility arguing she “is exaggerating her injuries and their effect” the Court rejected this submission and found the Plaintiff suffered various soft tissue injuries which continued to flare with activity.  In assessing non-pecuniary damages at $35,000 Madam Justice Gerow provided the following reasons:

[26] It is apparent from a review of the whole of the evidence that Ms. Bartel suffered injuries to her neck and back in the accident which had resolved for the most part by February 2009, although she was still experiencing intermittent pain in her sacroiliac joint areas. Since then she has had flare-ups, the October 2009 incident being the most significant. Although there is some evidence of ongoing shoulder problems, the evidence is that Ms. Bartel suffered from shoulder problems prior to the accident. There is insufficient evidence to conclude that her ongoing shoulder problems are as a result of the motor vehicle accident.

[27] Both Dr. Kelly and Dr. le Nobel are of the opinion that Ms. Bartel’s prospect for full recovery is guarded. However, Dr. le Nobel is of the opinion that Ms. Bartel may have significant improvement if not complete resolution of her symptoms with injections into her back and an exercise program.

[28] Based on the evidence, I have concluded that Ms. Bartel suffered a moderate soft tissue injury to her neck, back and sacroiliac joint which resolved for the most part within seven months with occasional flare-ups. The injuries Ms. Bartel suffered have restricted her ability to engage in gardening and walking in the manner she could prior to the motor vehicle accident. It is likely there will be ongoing restrictions on her gardening as a result of the injuries…

[35] Having considered the extent of the injuries, the fact that the symptoms were largely resolved within seven months with occasional flare-ups and the ongoing restrictions on Ms. Bartel’s gardening, as well as the authorities I was provided, I am of the view that the appropriate award for non pecuniary damages is $35,000.

Another noteworthy aspect of the judgement was the Court’s rejection of the so called LVI defence.  The Defendant argued that since there was modest vehicle damage the injury itself was modest.  In rejecting this submission the Court provided the following comments:

[23] Finally, the defendants point to the fact that the accident was not severe enough to cause the ongoing symptoms Ms. Bartel complains of. The defendants’ proposition that a low velocity accident cannot cause any significant injury to a plaintiff has not been accepted in a number of cases, including Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.); Lubick v. Mei, 2008 BCSC 555; and Jackman v. All Season Labour Supplies Ltd., 2006 BCSC 2053. As stated in Gordon at paras. 4 and 5:

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.

Significant injuries can be caused by the most casual of slip and falls. Conversely, accidents causing extensive property damage may leave those involved unscathed. The presence and extent of injuries are to be determined on the basis of evidence given in court. Objectivity is thus preserved and the public does not have to concern itself with extraneous philosophies that some would impose on the judicial process.

[24] Although the severity of the accident is a factor that should be taken into consideration when determining whether Ms. Bartel suffered injuries in the motor vehicle accident and the extent of those injuries, it is not determinative of either issue. Rather the whole of the evidence must be considered in determining those issues.

New Practice Direction Issued Clarifying Masters Jurisdiction

Written by admin on . Posted in BCSC Civil Rule 12, Uncategorized.


The BC Supreme Court released Practice Direction 34, effective April 25, 2012, clarifying the matters in which a Master does and does not have jurisdiction.
The most notable change relates to granting Masters authority to preside over Trial Management Conferences which is consistent with a recent amendment, also in force on April 25, 2012, to Rule 12-2(2).

Jury Election Must Be Made With First Notice of Trial Under New BCSC Rules

Written by admin on . Posted in BCSC Civil Rule 12, Jury Trials, Uncategorized. 108 Comments on Jury Election Must Be Made With First Notice of Trial Under New BCSC Rules


Unreported reasons for judgement recently came to my attention addressing, for what I believe is the first time since the New Rules came into force, the issue of whether a party can elect trial by jury when a new Notice of Trial is issued if they failed to so elect in the fist instance.  In short the Court held this is not permitted.
In the recent case (Hung v. Sellars, BC Supreme Court Duncan Registry) the Plaintiff was injured in a motor vehicle collision.  The case was set for trial and neither party filed a notice requiring trial by jury.  The trial was adjourned by consent.   The Plaintiff filed a new notice of trial (as is required by BC Supreme Court Practice Direction 25).  The Defendant then filed a notice requiring trial by jury.
The Plaintiff brought an application to strike the Jury Notice.  Mr. Justice Bracken granted the application noting that the Rules only allow a jury notice to by filed with the initial notice of trial.  In doing so the Court provided the following reasons:
[13]  As noted, the authorities have held the election whether the trial be by judge alone or by judge sitting with a jury contemplates that the election will be made promptly after the first notice of trial.  Some latitude is possible where a party seeks to make an election outside the tie limited by the rules in certain restricted circumstances.
[14]  In some cases, such as removal from the fast track process where there is no right of jury trial, the parties can make the eelction upon a new notice of tiral being filed…
[15] In this case, a jury notice, in accordance with the principle in Hoare v. Firestone and Pelech v. Pelech, could have been filed and served after the first notice of trial that was issued in this action.  The jury notice should have been filed and delivered within the rules after the date of the first notice of trial…Therefore the notice requiring trial by jury in this case…is struck as being filed outside the tine allowed by Rule 12-6.
As of today’s date this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

$60,000 Non-Pecuniary Assessment for Chronic, Partially Disabling Whiplash Injury

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


Reasons for judgement were released earlier this month by the BC Supreme Court, Nanaimo Registry, assessing damages for a chronic soft tissue injury sustained in a motor vehicle collision.
In the recent case (Noon v. Lawlor) the Plaintiff was involved in a 2009 rear-end collision.  Fault was admitted by the offending motorist focusing the trial on the value of the case.  The Plaintiff sustained a chronic soft tissue injury to his neck and upper back.  The injury caused difficulties with the heavier aspects of the Plaintiff’s job as a journeyman plumber and his symptoms were expected to continue into the future.
In assessing non-pecuniary damages at $60,000 Mr. Justice Halfyard provided the following reasons:

[205] I find that the plaintiff sustained injury to the soft tissues of his neck and upper back, as a result of the collision of January 22, 2009. The plaintiff also sustained minor injuries to his forehead and to his low back. The head injury resolved in about three weeks and the plaintiff had recovered from his low back injury, within six months. The plaintiff continued to experience headaches associated with his neck injury, but the headaches had diminished in about a year to the point where they occurred only occasionally, and were not disabling.

[206] The medical experts did not offer an opinion as to the severity of the whiplash injury to the plaintiff. I find that the impact of the collision was violent and that the forces exerted on the plaintiff’s body were capable of causing significant injury. On all of the evidence, I find that the injury was at least moderate in severity.

[207] There is some medical evidence which I accept and which, tends to confirm the plaintiff’s assertion that he has been experiencing ongoing symptoms of pain. The findings of tenderness on palpation and restricted range of motion in the plaintiff’s neck are partly objective and partly subjective. But they do provide some support for the plaintiff’s trial testimony on this issue. But, in my view, the medical evidence does not confirm the plaintiff’s trial testimony as to the degree of the pain that he has been experiencing, and only partly confirms his evidence as to the extent to which his pain has impaired his physical capacities. In a case of this kind, I doubt whether any medical expert could express any conclusive opinion on these issues. To a considerable extent, medical experts must accept and rely on the plaintiff’s complaints as being true…

[225] I find that there is a substantial possibility that the plaintiff will continue to experience his present symptoms and their associated effects, indefinitely. There is no suggestion that the plaintiff’s condition will deteriorate in the future. The plaintiff is still a young man, and in my opinion, the evidence establishes a substantial possibility that he will achieve significant improvement over time. But there is also a substantial possibility that the plaintiff will never again be able to do the heavy overhead work required of a sprinkler fitter, on a regular basis…

[228] The plaintiff must be compensated for the amount of pain and suffering and loss of enjoyment of life that he has incurred to date, as well as the amount that he will experience in the future, as the result of the injury caused by the defendant’s negligence. Having regard to the findings of fact that I have made, it is my opinion that the plaintiff should be awarded $60,000 as damages for non-pecuniary loss, and I so order.

More on ICBC Part 7 Benefits Deductions in Personal Injury Lawsuits

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits. 97 Comments on More on ICBC Part 7 Benefits Deductions in Personal Injury Lawsuits


As previously discussed, if you are insured with ICBC the amount of Part 7 Benefits that you are entitled to must be deducted from tort trial damages due to the operation of section 83 of BC’s Insurance (Vehicle) Act.   This deduction can be made even if you don’t apply/receive your Part 7 benefits.
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, discussing this deduction with respect to various damage awards made at trial.  In this week’s case (Cikojevic v. Timm) the Plaintiff was awarded significant damages at trial after sustaining a permanent brain injury in a collision.  This week’s supplemental reasons for judgement are worth reviewing for the Court’s discussion of deductibility of the following items:

  • massage therapy
  • chiropractic treatments
  • medications
  • occupational therapy
  • psychological counselling
  • speech therapy
  • vocational counselling
  • transportation costs

Driver Found 10% At Fault for Timing a Green Light

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 40 Comments on Driver Found 1040 At Fault for Timing a Green Light


As previously discussed, having the right of way does not automatically result in a driver being found faultless for a collision.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Matheson v. Fichten) the Plaintiff was a passenger in a Northbound vehicle in a designated left hand turn lane.  The advance green arrow ran its course resulting in a green light for North and south bound traffic.  The driver proceeded with his turn despite no longer having the advance green arrow.
At the same time the Defendant was driving Southbound in the curb lane.  He was several car lengths back from the intersection when his light turned green.  Other Southbound vehicles began to accelerate but then stopped realizing the Plaintiff vehicle was turning.  The Defendant did not stop and entered the intersection when the collision occurred.
Despite having the right of way the Southbound Defendant was found 10% at fault for the collision.  In coming to this assessment Madam Justice Smith provided the following reasons for judgement:
[57] I find that the Bahniwal vehicle was travelling at the speed limit of 50 kilometres per hour, or perhaps a bit less, as it proceeded up the southbound curb lane.  I accept Mr. Kaler’s evidence that Mr. Bahniwal had slowed when the light ahead was red, but then resumed speed after the light turned green, two to three car lengths from the intersection.  I find that the presence of vehicles in the two lanes to his left obscured Mr. Bahniwal’s view of what was occurring in the intersection except for the portion immediately in front of him.  The vehicles in the two lanes to Mr. Bahniwal’s left began to move forward, but they stopped almost immediately.  Mr. Bahniwal overtook those vehicles and passed them on the right, entering the intersection on a green light but without noting that the vehicles to his left had stopped, or taking any particular precaution before entering the intersection…

[61] I have found as fact that Mr. Bahniwal proceeded through the intersection on a green light.  Accordingly, he had the right of way.  His was the dominant vehicle; Mr. Fichten’s vehicle was in the servient position.

[62] The question in the end is whether either Mr. Fichten or Mr. Bahniwal  or both, was in breach of the duty of care he owed to the plaintiff.  I take into account the Motor Vehicle Act provisions as informing the requisite standard of care (Ryan v. Victoria, [1999] 1 S.C.R. 201 at para. 29).

[63] It is clear that Mr. Fichten was negligent in making his left turn when it was unsafe to do so after the light had changed, and in particular by crossing the curb lane of southbound traffic without checking that it was free of oncoming vehicles.

[64] Turning to Mr. Bahniwal, what is the duty of a driver who enters an intersection in the circumstances that faced him?  He was in the curb lane, his view of the intersection was blocked by other vehicles, and those vehicles, having entered the intersection, had subsequently stopped…

[78] In my opinion, when the light facing Mr. Bahniwal turned green and the vehicles on his left proceeded forward and then stopped, Mr. Bahniwal had the opportunity to recognize, and should have recognized, that something had caused them to stop.  His approach into the intersection should then have been tempered with caution, even though he had the light in his favour and had built up some momentum.  He did not take that approach but, instead, proceeded at the speed limit into the intersection.  His vehicle was in the dominant position, but he was not entitled to overlook a clear indication of a possible hazard in the fact that the vehicles to his left had stopped very soon after having begun to move.  The traffic was not backed up in the southbound lanes, as it was inRobinson v. Wong, and the timing of the vehicles stopping was inexplicable from his vantage point.  A careful driver would have reacted to the possibility that a left-turning vehicle, a pedestrian, or some other hazard was still in the intersection.

[79] I find that Mr. Bahniwal was in breach of his duty of care, and allocate liability 10% to him and 90% to Mr. Fichten.

$75,000 Non-Pecuniary Assessment for Chronic Injuries Caused by Two Collisions

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgemet were released last week by the BC Supreme Court, New Westminster Registry, assessing damags for injuries sustained in multiple collisions.
In last week’s case (Bansi v. Pye) the Plaintiff was involved in two collisions, the first in 2005, the second in 2008.  The Plaintiff was faultless for both collisions focussing the trial on an assessment of damages.  The Plaintiff suffered varoius injuries which were recovering when they were aggravated by the secod crash.  These included various soft tissue injuries and headaches which were expected to last indefinatly and to limit the Plaintiff in his trade in construction management.  In assessing non-pecuniary damages at $75,000 Mr. Justice Jenkins provided the following reasons:

[33] Also at page 7 of her report of January 11, 2011, Dr. Caillier listed “The Injuries of Issues Related to the MVA No. 2 dated April 25, 2008” as follows:

1.         Cervicogenic headaches

2.         Cervicogenic dizziness

3.         Left hearing complaints. . .

4.         Exacerbation of pre-existing symptoms involving the neck, upper back, and lower back regions.

5.         Soft tissue musculoligamentous injury involving the neck, upper back, and posterior shoulder girdle and lower back region.

6.         Further aggravation of degenerative changes within the lumbar spine.

7.         Altered mood and anxiety.

8.         Worsening of sleep disturbance.

9.         Further decrease in ability to participate in the functional, recreational, and vocational activities of his choosing.

[34] Further at page 9, Dr. Caillier stated:

It is my opinion, given the chronicity of Mr. Bansi’s physical symptoms, both following that of the first motor vehicle accident as well as ongoing since the time of the second motor vehicle accident, the likelihood of him becoming pain-free is very poor…

[42] The two MVAs have had a significant negative impact on Mr. Bansi’s lifestyle and quality of life. Mr. Bansi had previously been very active and energetic whether in working on home renovations, exercising at the gym, cycling, washing family vehicles, participating in family events, services and prayers at the temple, working at household chores including maintenance of the gardens and yard, driving family members for appointments, shopping and much more.

[43] Since the MVAs, he has had considerable difficulty driving for any significant time, he no longer looks after the family gardens and yard, rarely socializes with family or at the temple, lacks motivation, spends more time alone in his suite at the family home, rarely takes care of his young niece and nephew, no longer goes on bike rides with his sister and has clearly had significant problems in carrying out his duties on construction sites. Not only has he had difficulty performing the work, his productivity is considerably impaired and what were simple physical tasks now take much longer. His employers have also noted his decrease in production and energy on the work site which I will address further in his claim for past loss of income and diminished earning capacity…

[52] …Considering that the injuries sustained by Mr. Bansi are not seriously challenged, his lower back injury is likely permanent, having to start his rehabilitation over again after the 2008 MVA will have an impact on his psyche, the difficulties he is having in performing previously simple tasks which were part of his job as a construction manager, the likelihood of him having to persevere with chronic pain in the future, and the resulting loss of enjoyment of life, I find an appropriate award of non-pecuniary damages to be $75,000.

Rule 9-1 Does Not Allow the Court to Award Double Disbursements

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9. 52 Comments on Rule 9-1 Does Not Allow the Court to Award Double Disbursements


(Update – April 19, 2013 – The below decision should be cross-referenced with reasons for judgement released today (Gonzales v. Voskakis) where Madam Justice Fitzpatrick came to a different conclusion)
Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, confirming that the Court cannot award double disbursements following a trial where a formal settlement offer was bested.
In this week’s case (Moore v. Kyba) the Plaintiff was awarded substantial damages in a jury trial following a motor vehicle collision.  The damages awarded exceeded both the Plaintiff’s and Defendant’s pre-trial formal settlement offers.  The Plaintiff brought an application seeking double costs and double disbursements.  Mr. Justice Brown held that while it was appropriate to award double costs, Rule 9-1 does not go so far as to give the Court authority to award double disbursements.  Mr. Justice Brown provided the following reasons:
[8]I am not convinced by the applicant’s argument.  The repeal of the definition relied on in Browne v. Lowe is not determinative and does not require its reversal.  In any event, I conclude that the proper interpretation of Rule 9-1(5) does not permit the Court to award double disbursements.  In Rule 9-1(5)(a), the rule specifically provides for disbursements, while Rule 9-1(5)(b) does not.  Therefore, properly interpreted, Rule 9-1(5)(b) does not permit the Court to award double disbursements after the delivery or service of the offer to settle.

A Sensible Take on Gaps in Clinical Records

Written by admin on . Posted in Uncategorized.

In the ICBC Claim process the number of medical visits following a collision are often scrutinized.  If there is a substantial gap in treatment an argument can be made that the symptoms are recovered and compensation should be limited accordingly.  Reasons for judgement were released recently by the BC Supreme Court, Nanaimo Registry, dealing with such an argument.
In the recent case (Noon v. Lawlor) the Plaintiff suffered from a chronic whiplash injury following a 2009 collision.  ICBC argued that a “large time gap in which the Plaintiff did not seek any medical treatment” was consistent with injury recovery.  Mr. Justice Halfyard rejected this absolute position and provided the following sensible analysis:
[194] A plaintiff’s failure to seek medical attention for relatively long periods of time cannot, by itself, justify the inference that the plaintiff was not experiencing the symptoms which he or she describes at trial. This is particularly so where exercise is the only “treatment” being advised by the plaintiff’s doctor. However, the circumstances in a particular case may warrant the inference that any pain symptoms that were experienced by the plaintiff during these time gaps were not continuous or frequent or alternatively, if they were, then such symptoms of pain were at a low level of intensity, perhaps not much more than discomfort. If one or other of these inferences is drawn, and if that inference is inconsistent with the plaintiff’s description of his or her symptoms at trial, then such inconsistency may adversely affect the plaintiff’s credibility.
For more judicial commentary on injury claims and frequency of medical appointments you can click here to access my archived posts.