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$60,000 Non-Pecuniary Damage Assessment for Shoulder Impingement Syndrome

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


Adding to this site’s archived posts of BC non-pecuniary damage awards for shoulder injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries and an impingement syndrome.
In last week’s case (Sandhar v. Rolston) the Plaintiff was injured in a 2004 rear-end collision.  Fault was admitted by the offending driver.  The trial focused on the value of the Plaintiff’s claim.  The Plaintiff suffered a soft tissue injury to her neck and an impingement syndrome to her right shoulder.  The symptoms largely recovered by 2007 following a cortisone injection although she had some lingering symptoms.
Complicating matters, the Plaintiff injured her right shoulder shovelling snow in 2008.   She injured her rotator cuff.  Mr. Justice Affleck found this was a ‘divisible injury‘ and assessed damages accordingly.  In awarding $60,000 for non-pecuniary damages the Court provided the following reasons:

[53] In Hussack v. Chilliwack School District No. 33, 2011 BCCA 258, the court observed that decisions of the court on the question of an intervening cause, “say that if an injured party acts unreasonably and causes him or herself further injury, the tortfeasor is not responsible for any injuries suffered as a result of the second injury.” It was not reasonable for the plaintiff to have shovelled snow in the fashion that she did in 2008. Even if the injuries from that activity were indivisible, I would not award damages for them.

[54] That does not mean compensation for the injuries from the car accident is cut off from the date the plaintiff shovelled snow. If the car accident injuries continued to have their effects after December 2008, the defendant remains liable to compensate the plaintiff for those effects. See Dudek v. Li, 2000 BCCA 321.

[55] There has been no mechanical derangement of the plaintiff’s neck and shoulder caused by the car accident. I accept Dr. Leith’s view that the plaintiff’s injuries were soft tissue injuries of the “whiplash” variety. The evidence is that the whiplash was properly characterized as grade one. That is the least damaging form of a whiplash injury. That does not mean the injuries were insignificant. On the contrary, they caused pain and measure of disability from May 2004 until the cortisone injection in April 2007. I accept that slight pain returned later that year and through 2008. Despite the plaintiff’s ability to carry on with work, the plaintiff found it to be uncomfortable to do so. I accept that even if she had not suffered a new injury to her shoulder in December 2008, the pre-existing problems would have lingered even beyond 2008 for perhaps about two years.

[56] I have been provided by the parties with numerous authorities on the assessment of non-pecuniary damages in similar cases. As is usual, none of the plaintiffs in those cases had injuries the same as the plaintiff before me. I take into account the long course of difficulties experienced by the plaintiff which would not have been suffered but for the car accident and that the car accident injuries would have lingered for about six years while gradually diminishing. The three years before the plaintiff had the cortisone injection were difficult, but she did her best to carry on with her employment and with her housekeeping with considerable discomfort. She lost much of her enjoyment of life in those years. She returned to her pre-accident condition after April 2007 and had marked relief of pain for 18 months, but not complete resolution. The plaintiff’s high expectations of herself in her employment, housekeeping and recreational activities, increased the effect of the car accident injuries, but the defendant must accept the plaintiff as she is.

[57] I assess non-pecuniary damages at $60,000…

More on Commercial Host Liability and Excessive Alcohol Service

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


As previously discussed, a commercial host can be liable for damages if they serve patrons to the point of intoxication and those patrons then are injured or cause injury to others.  Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, addressing this topic.
In yesterday’s case (Van Hove v. Boiselle) the Plaintiff was injured in a “fatal motor vehicle accident”.  The defendant was allegedly drunk at the time.  Prior to the collision the Defendant was drinking at the Artful Dodger Pub “to the point that the Defendant became heavily intoxicated“.
The Plaintiff sued the driver for damages.  ICBC, in the defence of the claim, brought Third Party proceedings agaisnt the Pub arguing they were partly at fault for the collision due to over-service.  The Pub brought a summary trial arguing the claims against them should be dismissed.  Mr. Justice Smith refused to dismiss the claim finding the case could not be disposed of by summary trial and dismissed the Pub’s application.  In doing so the Court provided the following reasons:

[16] The duty of care that commercial hosts who serve alcohol owe to the general public arises out of the profit making nature of the enterprise and the well-known dangers associated with the product. It is generally foreseeable that intoxicated patrons may, as a direct result of their intoxication, cause injury to others.

[17] The question then becomes one of the standard of care – whether, in the circumstances of a particular case, the commercial host did what was necessary to fulfill the duty. That inquiry includes the question of the whether the actual circumstances and means of injury were foreseeable.

[18] A plaintiff who proves breach of both the duty and the standard of care must then prove causation – whether the breaches actually caused the injury, which would not have occurred “but for” the negligent conduct of the defendant.

[19] L.J.D. in effect submits that Ms. Boiselle’s safe arrival home proves that the standard of care was complied with and/or proves that the chain of causation was broken. In my view, that ignores the highly fact-specific nature of both inquiries. The proposition that L.J.D. puts forward may well be one the properly applies in many, if not most, cases of this kind, but it cannot be treated as a principle of law that applies regardless of any additional facts that may arise in an individual case.

[20] One such fact in this case, on which I do not have sufficient evidence, is the level of Mr. Goll’s intoxication. If L.J.D.’s employees knew or ought to have known that he was as intoxicated as Ms. Boiselle, or nearly so, it may be open to a trial judge to find, on all of the evidence, that allowing her to leave the pub in his company did not meet the standard of care. It may also be open to a trial judge to find that her arrival home with an equally intoxicated person did not amount to a “safe” arrival within the meaning of the authorities and did not break the chain of causation.

[21] I therefore find myself unable to find the facts necessary to decide this matter on summary trial and the third party’s application must be dismissed.

The High Cost of a Successful WCB Defence in a Personal Injury Lawsuit

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


As previously discussed, Section 10 of BC’s Workers Compensation Act operates to generally strip you of your right to sue if you are injured in the course of your employment by someone else in the course of their employment.  If this defence is raised and succeeds in a personal injury lawsuit the claim will be dismissed exposing a Plaintiff to ‘loser pays’ costs consequences.  Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, demonstrating this reality.
In this week’s case (McKay v. Marx) the Plaintiff was injured in a 2005 collision.   His vehicle was rear-ended by a Fed Ex vehicle.  The Plaintiff sued for damages.  There was no dispute that the Defendant was in the course of employment when the crash happened.  The defendant argued that the plaintiff was also a ‘worker’ and therefore his right to sue was stripped away.  The issue was sent to WCAT for determination who ruled that the Plaintiff was indeed a worker.
Given WCAT’s findings the Plaintiff’s lawsuit was dismissed.  The Defendant applied for costs and ultimately was successful.  In doing so Madam Justice Dorgan provided the following reasons:

[32] The circumstances in which the plaintiff found himself are unfortunate and they garner some sympathy. However, the authorities explicitly prohibit this court from denying costs by exercising discretion out of a sense of fairness or sympathy or a comparison of the relative economic strength of the parties.

[33] In summary, the defendants successfully pled a s. 10 Workers Compensation Act defence and are thus the substantially successful party ?? the winner of the event. The evidence as presented falls short of demonstrating such reprehensible conduct on the part of the defendants that would allow the court, in the exercise of its discretion, to depart from the general rule. Accordingly, the defendants are entitled to costs.

Mitigation of Damages and Chronic Obesity

Written by admin on . Posted in Uncategorized.


When a Plaintiff fails to take reasonable steps to recover from injury their right to compensation can be reduced accordingly.  Reasons for judgement were released yesterday addressing this topic in the context of pre-existing obesity.
In yesterday’s case (Deligilgio v. British Columbia (Puclic Safety and Solicitor General)) the Plaintiff suffered a back injury as a result of a 2009 collision.  The Plaintiff struggled with obesity.  The evidence suggested that weight loss could help reduce the Plaintiff’s back symptoms.  The Defendant argued that the Plaintiff’s damages should be reduced due to the Plaintiff’s failure to lose weight.
Madam Justice Gropper rejected this argument finding the Plaintiff made “contextually reasonable and sincere efforts” to deal with his weight issues.  In rejecting the Defendant’s argument the Court provided the following sensible reasons:

[87] Once the plaintiff establishes that the defendant is liable for his injuries, the burden shifts to the defendant. In order to prove that the plaintiff did not meet his duty to mitigate, the defence must prove that he acted unreasonably and that reasonable conduct would have reduced or eliminated the loss. Whether the plaintiff acted reasonably is a factual question: Gilbert v. Bottle, 2011 BCSC 1389 at para. 202. Gilbert continues at para. 203:

A relevant circumstance in cases such as this is the plaintiff’s personality and condition before and after the accident. The law does not require a plaintiff to do that which cannot be controlled, nor does it require perfection in the pursuit of rehabilitation. In addition, the defendant must take the victim as found, which may affect what is to be reasonably expected. For example, a person who has struggled with life-long obesity may not be expected to lose substantial weight to discharge the duty to mitigate, even though weight loss would assist recovery. What the law requires is that the plaintiff makes contextually reasonable and sincere efforts to limit his or her damages and loss [citations omitted].

[emphasis added]

[88] The evidence is clear that Mr. Del Giglio has struggled with lifelong obesity. He has attempted to lose weight in accordance with his doctor’s advice and has been somewhat successful. The plaintiff asserts that with assistance, including physiotherapy, kinesiology, the healthy heart program, a dietician and a gym membership he will likely lose weight and build his core strength.

[89] I find that Mr. Del Giglio has made “contextually reasonable and sincere efforts” to lose weight, but would benefit considerably from professional assistance. I disagree with the defendants that his damages should be reduced to reflect his reflected failure to mitigate. The defendants have not proven a failure to mitigate.

$40,000 Non-Pecuniary Damage Assessment For Chronic Soft Tissue Injuries

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

Adding to this site’s archived BC soft tissue injury cases, reasons for judgement were released earlier this year by the BC Supreme Court, Victoria Registry, assessing damages for chronic soft tissue injuries caused by a motor vehicle collision.
In the recent decision (Hammond v. Meeker) the Plaintiff was involved in a 2008 rear-end collision.  Fault was admitted by the rear motorist.   The Plaintiff was 7 months pregnant at the time and the impact was “substantial“.
The Plaintiff suffered from soft tissue injuries to her neck and upper back which continued to produce symptoms including headaches and pain at the time of trial.  The symptoms were expected to continue “for an indefinite period of time“.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000 Mr. Justice Curtis provided the following reasons:
[20] I find on the evidence that the sum of $40,000 is reasonable and fair compensation to Ms. Hammond for the pain and suffering and loss of enjoyment of life inflicted upon her by the February 9, 2008 collision.  She has suffered a soft tissue injury to her neck and upper back, the significant symptoms of which, particularly headaches and pain and stiffness in the neck, have not resolved in the four years since the collision, and will likely continue for an indefinite period of time in the future.  While the injury and symptoms do not actually prevent any particular activity, they make many activities painful and not enjoyable to the extent that she does not do them.  This has been particularly difficult for her given her position as a home maker with two small children and for a while three with B.T. as a foster child.  On the other hand, I accept Dr. Christie’s opinion that her injury will not require surgery, nor will it make osteoarthritis more likely.

Quantum Before Liability?

Written by admin on . Posted in BCSC Civil Rule 12, Uncategorized. 51 Comments on Quantum Before Liability?


Rule 12-5(67) allows the BC Supreme Court to order that one issue “be tried and determined before the others“.
In the personal injury context, where fault is contested, it is not unusual for a Court to agree to determine the issue of fault before valuing the case.  The reason being that if a Defendant is found faultless splitting the issues can save both parties the substantial costs associated with proving the value of the claim.
Interestingly, reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing the value of a claim before determining the issue of fault.
In yesterday’s case (Simmavong v. Haddock) the Plaintiff was involved in a 2007 head on collision.  The Plaintiff suffered various injuries and the value of her claim was assessed at just over $332,000 in global damages.  In what must be a very rare set of circumstances, the Court did so prior to the issue of fault being addressed.  The parties apparently consented to this turn of events and unfortunately the judgement does not provide any discussion addressing when such an approach is warranted but does provide the following introductory comments:

[1] This trial concerns the plaintiff’s claim for damages arising from a motor vehicle accident, which occurred on June 24, 2007.

[2] Liability for the accident is denied as there is an action yet to be commenced relating to the plaintiff’s daughter.  The parties have agreed to litigate the claim for the plaintiff’s damages only at this time.

Pre-Litigation Police Disclosure Request Denied

Written by admin on . Posted in BCSC Civil Rule 17, BCSC Civil Rule 2, Civil Procedure. 119 Comments on Pre-Litigation Police Disclosure Request Denied

When a lawsuit gets underway in the BC Supreme Court the Rules of Court give litigants significant powers to force disclosure from opposing parties and even non-parties.  If a formal lawsuit has not been started the  Court’s power to order disclosure becomes far more limited.  This was demonstrated in reasons for judgement released recently by the BC Supreme Court, Chilliwack Registry.
In last month’s case (Dhindsa (Re)) the applicant was injured in a 2010 hit and run collision.  The police investigated the matter.  The applicant applied for an order compelling disclosure of the police file.  Orders such as these are routinely granted by consent once formal lawsuits are underway.  In this case no lawsuit was commenced.  The applicant’s lawyer argued that the Court could make the disclosure order using a remedy known as an “equitable bill of discovery“.
Mr. Justice Grist held that even if the Court did have such a right it was not appropriate to exercise on the facts of this case.  In dismissing the application the Court provided the following reasons:

[4] Counsel for Mr. Dhindsa has cited Kenney v. Loewen (1999), 64 B.C.L.R. (3d) 346 (S.C.) [Kenney], a decision of Madam Justice Saunders which references Glaxo Wellcome PLC v. Canada (Minister of National Revenue), 1998 CarswellNat 1388 (F.C.A.), 162 D.L.R. (4th) 433 [Glaxo]. The Glaxo case before the Federal Court of Appeal in turn cited the English House of Lords decision in Norwich Pharmacal Co. v. Commissioners of Customs and Excise, [1973] 2 All E.R. 943; [1974] A.C. 133 (H.L.).

[5] These decisions all recognize that an antique form of action for a remedy known as an equitable bill of discovery remains known to the law and, in appropriate cases, can be the sole remedy sought in a civil action.

[6] In short form, the bill of discovery would require a third party to reveal the identity of a person the plaintiff says has done them wrong. In Kenney, the plaintiff indicated that he had suffered damages as a result of a slander. He did not know the source of slander and the action for the bill of discovery was designed to force the defendant to reveal the person’s identity. At para. 33 ofKenney, Madam Justice Saunders listed the circumstances under which the remedy would be granted:

(a)        the plaintiff must show that a bona fide claim exists against the unknown wrongdoer;

(b)        the defendant must establish that the information is required in order to commence an action against the unknown wrongdoer, that is, the plaintiff must establish that disclosure will facilitate rectification of the wrong;

(c)        the defendant must be the only practicable source of the information;

(d)        there is no immunity from disclosure;

(e)        the plaintiff must establish a relationship with the defendant in which the defendant is mixed up in the wrongdoing. Without connoting impropriety, this requires some active involvement in the transactions underlying the intended cause of action.

(f)         disclosure by the defendant will not cause the defendant irreparable harm; and

(g)        the interests of justice favour granting the relief.

[7] In the affidavit filed in support of this action counsel for Mr. Dhindsa says at numbered items 6-8:

6.         I have not filed a Notice of Civil Claim on behalf of my client and require production of the Police File by the Surrey RCMP to ascertain the identity of the potential defendant(s) and whether or not there is sufficient evidence to ground a claim of negligence.

7.         If there is sufficient evidence to found a negligence action, I require the Police File to understand what the objective witness accounts of the Accident are so as to efficiently and correctly plead my client’s case, represent my client at trial and represent my client during settlement negotiations.

8.         I do not want to commence an action without first obtaining the Police File in order to adhere to Rule 1-3 of the Civil Rules of Court.

[8] Assuming for the moment that the application for the bill of discovery brought by way of a requisition satisfies Rule 2-1(2)(a) and Rule 17-1, the application is nonetheless deficient in providing the circumstances indicated in Kenney under sub-paragraphs (a) and (e). The affidavit indicates that Mr. Dhindsa was injured in the motor vehicle accident, but does not give any details to suggest the other driver was negligent. In fact, investigation of the circumstances is listed as one of the reasons for wanting to have access to the police file. Further, there is nothing to indicate that the Surrey RCMP are “mixed up in the wrong doing,” or were actively involved in, “the transactions underlying the intended cause of action.”

[9] The right to pre-action discovery may have merits beyond the strictures of an action for a bill of discovery, however, that form of proceeding is not applicable on the circumstances of this application.

$27,000 Non-Pecuniary Damage Assessment for Largely Recovered Soft Tissue Injuries

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 44 Comments on $27,000 Non-Pecuniary Damage Assessment for Largely Recovered Soft Tissue Injuries

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for “mostly resolved” soft tissue injuries.
In last week’s case (Vela v. MacKenzie) the Plaintiff was involved in a 2009 rear-end collision.  Fault was admitted by the rear motorist.  The Plaintiff suffered various soft tissue injuries which, while not resolved, were largely recovered by the time of trial.  In assessing non-pecuniary damages at $27,000 Madam Justice Maisonville provided the following reasons:
[69] The Court must assess damages for injury to the plaintiff.  I find those injuries to be soft tissue injuries to the plaintiff’s neck, shoulder and trapezius area which were at their worst for the first 15 months.  At that time the pain changed to stiffness and by June 2011 was mostly resolved but was continuing sporadically. I find the headaches lasted six to eight months; the back of the hand injury had resolved after approximately three months…
[87] I find in the present case that Mr. Vela has met the burden of proof with respect to injuries he sustained to his neck, upper back and trapezius area, and those to his left hand as well as the headaches that he suffered initially. I find that, with some exceptions, the pain had largely resolved within 15 months, with continuing improvement to where the plaintiff felt he was functioning at 75 per cent to 80 per cent by June 2011. He has now only occasional flare-ups. I consequently find the injuries to be more severe than submitted by defence counsel but far less severe than submitted by the plaintiff.  I find the soft tissue injuries sustained by the plaintiff to be more akin to those sustained by a plaintiff in Hussainyar v. Miller, 2012 BCSC 405 where Allan J. awarded $27,000 in non-pecuniary damages where the injuries had largely resolved within one year but continued in part to trial, some 27 months after the accident.  (See also Robinson v. Anderson,2009 BCSC 1450 $25,000 no permanent or long-term injury or pain Hsu v. Williams, 2011 BCSC 1412 $30,000 award before deduction for failure to mitigate.)  An important principle is to be fair and reasonable to both parties (See Miller v. Lawlor, 2012 BCSC 387 para. 109 considering Andrews v. Grand v. Toy Alberta Ltd., [1978] 2 S.C.R. 229; Jackson v. Lai, 2007 BCSC 1023, para.134 and Kuskis). In all the circumstances, I award $27,000 in non-pecuniary damages.

Privileged Witness Statement Ordered Produced When Witness Becomes Party

Written by admin on . Posted in Uncategorized.

Interesting reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, addressing whether an otherwise privileged statement can be ordered to be produced in litigation where the statement was given by the opposing party.
In last month’s case (Cliff v. Dahl) the Plaintiff was injured in a collision when he was struck by a vehicle driven by the Defendant.  Shortly after the collision the Plaintiff’s lawyer obtained witness statements from a Mr. Weaver and Mr. Jones.
In the course of the lawsuit the Defendant Dahl requested production of these statements but the application was dismissed finding the statements were privileged.  Later Mr. Jones and Mr. Weaver were added as Defendants in the lawsuit.  They brought their own application for production.  Ultimately this was successful with the Court finding a different analysis is required when a party is seeking production of their own statement.   In compelling production Madam Justice Bruce provided the following reasons:

[35] Based on these authorities, I am satisfied that Mr. Weaver and Mr. Jones are entitled to a copy of the statement they provided to Mr. Cliff’s investigator. While their statements as witnesses would not be compellable due to litigation privilege, the change in their status to parties adverse in interest to Mr. Cliff place them on a different footing. Disclosure of these statements is necessary to ensure fairness in the litigation process, to enable these parties to properly defend themselves against allegations of negligence, and to support the truth seeking function of the court. Production of these statements is neither counter-productive to the adversary process nor to the confidential relationship between solicitor and client.

[36] The facts here present a particularly compelling case for production of the statements. The applicants permitted Mr. Cliff’s investigator to take their statements at a time when they were not represented. They were not offered copies of their statements nor advised to seek legal advice about this matter. In addition, Mr. Cliff interfered with the insurer’s investigation of the claim by counselling the applicants not to give a statement unless they first contacted his lawyer. By taking these steps Mr. Cliff’s actions may have prevented a timely statement from the applicants that could have formed a substitute for the statements taken by his investigator. Now that five years have elapsed since the date of the accident, it is apparent that the applicants’ memory of the events has faded. While there is nothing improper about Mr. Cliff’s conduct, it has imbued the applicants’ case with more of a sense of urgency and necessity. There is simply no other means by which the applicants could refresh their memories of the events surrounding the accident.

[37] For these reasons I order production of the signed statements of Mr. Weaver and Mr. Jones in possession of Mr. Cliff’s counsel and the audio recording of the statement. It is not appropriate that I order production of the transcript of the audio recording. This is an aid to follow along with the audio recording and commissioned by Mr. Cliff’s counsel. There is no principle of law that would require Mr. Cliff to share this work product with the applicants. They are free to commission their own transcripts of the audio recording. The applicants have not sought copies of the notes taken by Mr. Cliff’s counsel during his interviews with them. I do not regard these as statements made by the applicants; they are notes to refresh counsel’s recollection of the interview and nothing more. Accordingly, these notes should not be made the subject of a production order.

[38] Mr. Cliff shall produce the audio recordings and signed statements to the applicants within 14 days of this order and upon payment of the reasonable costs for production of copies thereof.

ICBC "Does Not Have Any Duty" To Tell You When Your Claim Expires

Written by admin on . Posted in Uncategorized. 77 Comments on ICBC "Does Not Have Any Duty" To Tell You When Your Claim Expires


Limitation periods are important.  If your case is not settled before your limitation period expires a formal lawsuit needs to be filed within time otherwise the right to pursue the claim effectively disappears.
When dealing with ICBC directly it is important not to rely on them for assistance in bringing limitation periods to your attention.  They are under no duty to tell you when your limitation is coming up.  ICBC is allowed to ‘run the clock’.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, demonstrating this reality.
In today’s case (Field v. Harvey) the Plaintiff was injured in a 2008 collision.  In her dealings with ICBC some discussions were had regarding settlement with ICBC writing a ‘without prejudice‘ letter referencing bills for massage therapy indicating that “we can discuss this at the time of settlement“.
The Plaintiff never did settle her claim.   She commenced a formal lawsuit but did so after her limitation period expired.  The Plaintiff argued that ICBC should be estopped from relying on the limitation period because of ICBC’s letter discussing settlement.  Mr. Justice Bracken disagreed and dismissed the lawsuit.  In doing so the Court provided the following words of caution:
[27] Finally, the defendants argue that ICBC does not have any duty, statutory or otherwise, to inform potential claimants of the specific date on which the right to commence an action upon a claim will expire…
[30] It is clear from the case law that ICBC was under no obligation to warn the plaintiff that the limitation period had commenced, was not postponed, and would soon expire….

[36] The plaintiff relies solely on the December 15, 2008, letter for her argument that the defence of estoppel can be applied as a defence to the provisions of the Limitation Act. That letter explicitly states: “[n]othing herein contained is or shall be construed as either an admission of liability on the part of the insured or a waiver or extension of any applicable limitation period.”

[37] A reasonable interpretation of this letter in no way evidences a representation or promise, by convention or otherwise, to waive or extend the applicable limitation period. In my opinion, it does quite the opposite by warning the plaintiff that, although all claims are negotiated toward the goal of settlement, time is still running.

[38] Limitation periods exist, in part, to encourage plaintiffs to bring their actions in a timely manner. The plaintiff has failed to bring her action in a timely manner and has not satisfied this court that there exists a lawful reason for her failure to comply with the provisions of the Limitation Act.

[39] The plaintiff’s cause of action is therefore dismissed, pursuant to s. 9 of the Limitation Act, as having been commenced after the expiry of the applicable limitation period.