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Some Threats OK, Others Not So Much in Settlement Negotiations

Written by admin on . Posted in Civil Procedure. 49 Comments on Some Threats OK, Others Not So Much in Settlement Negotiations


In BC the law provides wide protection over confidential settlement discussions to permit parties in a lawsuit to have full and frank resolution attempts.  Typically settlement discussions made on a ‘without prejudice’ basis are protected by the law of settlement privilege and are not admissible in a subsequent trial.
There are exceptions to this general rule, however, and one such exception relates to communications with”threats of an egregious nature“.  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, demonstrating this.
In yesterday’s case (Monument Mining Limited v. Balendran Chong & Bodi) the parties were involved in a defamation lawsuit.  In the course of the lawsuit various settlement offers were exchanged.  The Plaintiff sought to introduce these into evidence.  The Defendants opposed arguing these were protected by settlement privilege.  Mr. Justice Goepel concluded the letters contained egregious threats and therefore privilege was lost.  In admitting the letters into evidence the Court provided the following reasons:

[25] In Evergreen Building Ltd. v. IBI Leaseholds Ltd., 2006 BCSC 1190 at para. 16, 58 B.C.L.R. (4th) 294, Kelleher J. said at para. 16:

[16]      Privilege is lost not by making a threat, but by threatening to do something of an egregious nature. For example, a threat to commence an action or to bring a motion does not destroy the privilege attaching to a settlement communication. On the other hand, a threat to commit perjury is not privileged.

[26] I find that the July 12 Letter does contain threats of an egregious nature. The July 12 Letter warns that if the settlement proposal is not accepted, the Clients may  bring claims against Monument, Avocet and their respective directors alleging fraud and other misdeeds and may inform the AIM, the TSX and Haywood Securities Inc. of the alleged fraudulent conduct. Such actions could be devastating for a publically traded company.

[27] Monument and Avocet were not parties to the D8 Litigation.  The reservation of rights set out in the July 12 Letter served no legitimate settlement purpose. The intent of the reservation of rights was to put improper pressure on entities not involved in the D8 Litigation. The threat is of such character that the public interest in its disclosure outweighs the public interest in protecting settlement communications.  Settlement privilege does not extend to the July 12 Letter.

[28] In the result, the Settlement Letters are admissible and will be marked as exhibits 37, 38 and 39 respectively.

More on the Reality of Insurance and Costs Consequences Following Trial

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


Update March 21, 2014 – the Trial Judgement with respect to the relevance of insurance and costs was upheld today by the BC Court of Appeal
_____________________________________________________
In 2010 the BC Court of Appeal confirmed that Judges can look at insurance when considering the “financial circumstances” of litigants when addressing costs consequences following trials where a formal settlement offer was made.  Further reasons were released last week by the BC Supreme Court, Victoria Registry, confirming that costs consequences should not be applied with the ‘fiction‘ of ignoring insurance.
In last week’s case (Meghji v. Lee) the Plaintiff suffered brain trauma after being struck by a motorist while walking in a marked cross-walk in 2003. At trial the motorist was found 90% at fault for the crash with the Ministry of Transportation shouldering the remaining 10% for designing the intersection with inadequate lighting.
Prior to trial the Plaintiff offered to settle for $750,000.  Neither Defendant accepted.  Damages at trial were assessed at just over $1.1 Million with the Defendants being jointly and severally liable.  The Plaintiff sought and was awarded double costs from the time of her offer onward.  In doing so Mr. Justice Johnston provided the following useful reasons addressing the reality of insurance and the risks of joint and several liability:

[33]Also relevant to consider is the fact that a well-funded party, such as MoTH,  faces higher risk with joint liability when other potentially liable parties have less means or no means with which to satisfy a possible judgment. In such circumstances, the well-heeled party may end up paying more than its proportionate share to the plaintiff if or when the impecunious party exhausts its ability to pay.

[34]This risk is balanced by the potential that the plaintiff might be held partly to blame for her losses, which would confine the well-funded party’s liability to its proportionate share of the loss through several liability: Leischner (Next friend of) v. West Kootenay Power, [1982] B.C.J. No. 1641…

[40]Quite apart from the fact that I am bound by the decision in Smith v. Tedford, its reasoning eliminates one fiction that ought not to complicate proceedings before a judge alone. That fiction is that there is no plan of universal compulsory automobile insurance in effect in British Columbia, mandated by statute, where the details of the coverage available are found in statute and regulation. If judges and others are presumed to know the law, there is little sense in requiring that judges ignore what the law provides when dealing with costs.

$65,000 Non-Pecuniary Damage Assessment for Chronic Soft Tissue Injuries

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

Reasons for judgement were released yesterday by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic soft tissue injuries following a motor vehicle collision.
In yesterday’s case (Miller v. Lawlor) the 24 year old Plaintiff was involved in a ‘violent‘ rear-end collision in 2009.  Fault was admitted by the rear motorist.  The Plaintiff suffered soft tissue injuries to his shoulder, neck and back which continued to cause problems in heavier employment and recreational tasks.  The limitations were likely going to be permanent.  In assessing non-pecuniary damages at $65,000 Mr. Justice MacKenzie provided the following reasons:

[100] I agree with the plaintiff that the medical opinions have not been seriously challenged by the defendant.

[101] These expert opinions, coupled with the evidence of the plaintiff and his father and co?workers, substantiate the plaintiff’s claim that he probably suffers from a permanent partial disability that still causes discomfort and pain mostly when he is engaged in strenuous above-the-shoulder tasks and bending over in restricted areas at work…

[110] In this case, the medical evidence is consistent in concluding that the plaintiff suffers from chronic pain and discomfort in varying degrees. I accept that his quality of life has clearly been diminished. The accident affected his ability to help at home with heavier chores such as chopping wood. He now curtails his surfing. He has become so cautious with respect to snowboarding that he does not do it at all.

[111] The plaintiff testified he continues to suffer sporadic pain and discomfort from the injuries he suffered because of the accident. I accept his evidence. I agree with Mr. McIver that the plaintiff has chronic soft-tissue symptoms that, according to the medical opinions, are likely to persist. They have continued for over three years and have affected his overall lifestyle as well as his ability to fully function at work. According to Dr. Adrian “’the prognosis for further recovery … over time is poor.” Unlike some, this plaintiff has not made numerous trips to a chiropractor or physiotherapist or massage therapist. I am satisfied this is because of his stoic personality coupled with the advice he has received from the medical personnel that his exercise regime is now the best thing he can do to minimize his symptoms. The infrequency of massage and chiropractic sessions should not be held against him.

[112] Taking into account the totality of the evidence and the authorities presented by both counsel, I am satisfied that an appropriate award of non-pecuniary damages here is $65,000.

Emergency Driver Found Fully at Fault for Intersection Crash; Abuse of Process Discussed

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized. 55 Comments on Emergency Driver Found Fully at Fault for Intersection Crash; Abuse of Process Discussed


The BC Motor Vehicle Act provides the RCMP and other drivers of ‘emergency vehicles‘ the right to speed and run red lights and stop signs.  This right, however, is not absolute and cannot be exercised without care to other motorists.   If an emergency vehicle operator is careless in the exercise of their emergency powers they can be liable for a resulting collision.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating such a result.
In today’s case (Haczewski v. British Columbia) the Plaintiff was killed in a 2007 motor vehicle collision.  His vehicle was struck in an intersection.  He entered on a green light.  At the same time an RCMP vehicle was approaching with “her emergency lights and siren” on.  She entered against the red light at high speed and the collision occurred.
At trial the Defendant agreed she was careless and contributed to the collision but argued the Plaintiff was also partly to blame.  Mr. Justice Grauer rejected this argument and found the Defendant fully at fault.  In doing so the Court provided the following reasons:

[12] No statute need be cited for the general proposition that a vehicle entering a controlled intersection with a green light has the right-of-way over vehicles facing the red light.  But is this still the case when the vehicle with the red light is a police car responding to an emergency with its lights flashing and siren sounding?  The answer is:  it depends.

[13] The Motor Vehicle Act provides certain privileges to emergency vehicles, including the limited right to proceed through a red light without stopping:…

[14] The use of those privileges is governed by the Motor Vehicle Act Emergency Vehicle Driving Regulation, B.C. Reg. 133/98…

[16] Thus the statutory privileges granted by the Motor Vehicle Act’s section 122 exemption are subject always to balancing the exigencies of the emergency with the risk of harm arising from the operation of the vehicle.  In particular, the driver of any emergency vehicle exercising those privileges who approaches or enters an intersection must slow to a speed consistent with reasonable care.

[17] The Motor Vehicle Act deals further with right-of-way in section 177:

177 On the immediate approach of an emergency vehicle giving an audible signal by a bell, siren or exhaust whistle, and showing a visible flashing red light, except when otherwise directed by a peace officer, a driver must yield the right of way, and immediately drive to a position parallel to and as close as possible to the nearest edge or curb of the roadway, clear of an intersection, and stop and remain in that position until the emergency vehicle has passed…

[22] An article included as an appendix to the manual, entitled Rules of the Road: Some Perspectives on Emergency Driving, contained this recommendation:

8.         Come to a complete stop at all controlled intersections (e.g. red lights, stop signs) where you would not have the right-of-way without warning equipment.

Most accidents of any kind, but especially those involving emergency vehicles on emergency calls, occur at intersections.  The practice of stopping at intersections has not appreciably hurt my agency’s response times, although it has caused some shortening of brake life.  But faithful adherence to it has resulted in countless instances in which vehicles would otherwise have been broadsided by motorists who either insisted on their right-of-way or did not perceive the warning equipment.

[23] As a result of this accident, this recommendation has, as I understand it, now become RCMP policy.  At the time of the accident, the policy for an officer approaching a controlled intersection was to slow sufficiently, and to stop if necessary, in order to ensure that it was safe to proceed through the intersection, consistent with section 6 of the Regulation…

[46] On all of the evidence, I have no difficulty in concluding that Constable Kostiuk failed to exercise the degree of care required of a reasonable police officer, acting reasonably and within the statutory powers imposed upon her, in the circumstances she faced that night (see Doern v. Philips Estate (1994), 2 B.C.L.R. (3d) 349 (S.C.) at para. 69, aff’d (1997), 43 B.C.L.R. (3d) 53 (C.A.)).

[47] As she headed up Kingsway in response to what she reasonably believed to be an emergency, Constable Kostiuk significantly exceeded the speed limit.  On a quiet night with little traffic, that was justified.  But circumstances changed when she approached the intersection with Royal Oak, a main street, facing a red light.  She was not familiar with the intersection, and visibility was limited.  She ought not to have entered it against the red light without first taking adequate steps to ensure that she could do so safely.  She failed to do so.  Reasonable care required her to slow right down before proceeding into that intersection, in order to ensure that it was in fact clear, and that she could enter it without risk of harm to the public.  Instead, she accelerated into the intersection from what was already a high speed.  In those circumstances, it was impossible for her to have any confidence that she could proceed safely, and the collision was the result.  Such action was in no way justified by the exigencies of the emergency to which she was reacting.

In addition to the above, this decison is also worth reviewing for the application of the ‘abuse of process’ doctrine following a motor vehicle act conviction.

In today’s case the RCMP officer was charged criminally with dangerous driving causing death.  She eventually plead guilty to careless driving under the motor vehicle act.  The Plaintiff argued it was an abuse of process to dispute civil liability in these circumstances.  Mr. Justice Grauer disagreed and provided reasons at paragraphs 154-160 setting out his view of why a guilty plea to careless driving should not be an absolute barrier to subsequently denying civil liability.  It is worth noting there is some inconsistency in this area of the law.

Plaintiff Struck by Fleeing Shoplifter Found Faultless for Collision

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

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a crash when a Plaintiff was struck by a fleeing shoplifter.
In last week’s case (Bhadlawala v. Baxter) the Plaintiff was involved in a 2008 collision.  At the time he was 64 years old and was a long time employee at Zellers.  He observed an individual shoplifting and followed him into the parking lot.  The shoplifter entered a van.  The Plaintiff stood behind the van, about one vehicle length away, and attempted to write down the licence plate.  The vehicle then suddenly backed up and struck the Plaintiff causing injury.
ICBC argued the Plaintiff should be found 25% at fault for placing himself in harm’s way.  Madam Justice Gray rejected this argument and found the motorist fully at fault.  In doing so the Court provided the following reasons:
[85] Regarding the 2008 accident, ICBC argued that Mr. Bhadlawala was negligent in placing himself behind the van in the parking lot, and that he thereby contributed to the accident. ICBC argued that Mr. Bhadlawala ought to have known that the van was going to back up, and should not have stood behind it. ICBC argued that Mr. Bhadlawala should be held 25% contributorily negligent for the 2008 accident, and that his damages award should be reduced accordingly…

[93] The defence argued that Mr. Bhadlawala should not have pursued the shoplifter. However, the accident was not the result of pursuing the shoplifter. It was the result of the van striking Mr. Bhadlawala in the parking lot.

[94] The shoplifter was in the van. The evidence did not establish whether the shoplifter was the driver or a passenger in the van. The driver of the van probably wanted to avoid anyone noting the van’s license number. It was reasonable for Mr. Bhadlawala to have anticipated that the van might have backed up.

[95] However, the risk of being caught shoplifting is far less significant than the risk of being caught striking a pedestrian with a vehicle.

[96] It was not reasonably foreseeable that the driver of the van would reverse so quickly that Mr. Bhadlawala could not move out of the way in time to avoid being struck. Mr. Bhadlawala was standing over a van length behind the van, which would have given him ample time to get out of the way if the van had moved at a reasonable speed…

[101] As a result, Mr. Robert is entirely responsible for the 2008 accident.

Another useful case addressing this issue can be found here where the BC Court of Appeal found ICBC’s arguments in a similar situation were ‘doomed to failure‘.

The Cost of Insurance Fraud in BC

Written by admin on . Posted in Uncategorized.

If you regularly read this blog you know I hate insurance fraud.  When fraudulent claims are weeded out that’s a good thing.  However, I equally dislike the cost of fraud being blown out of proportion.
Have you ever heard sound bites that insurance fraud is on the rise or spiralling out of control?  If you have a quick look behind the sound bite is important.
Occasionally the insurance industry provides press releases discussing the high cost of insurance fraud.  Often these are accompanied with the suggestion that some sort of ‘reform‘ is needed before fraud makes the system unsustainable.  We don’t get much of this nonsense in BC but in other parts of Canada this is an old song and dance.  The reforms that are urged typically boil down to stripping individual rights for the benefit of insurer profits.
So what is the hard data behind insurance fraud statistics in BC? It turns out, at least insofar as auto insurance claims are concerned, that there is no data.
The BC Utilities Commision recently asked for data addressing auto insurance fraud in BC.  Here is the exchange:

Other Provinces, Ontario in particular, have had a lot of discussion of the high cost of fraud.    A number is often put to the cost of fraud without any hard data to back it up.  It is important to look behind the sound bites to see what actual data the insurers have when they make such allegations.  Perhaps other Canadian insurers will be as willing as ICBC to show their hand and reveal what actual data they have.  Turns out, there may not be any.

"The Pain Remains Real to the Victim" Despite Low Velocity Impact

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.

In the latest judicial demonstration that the so-called Low Velocity Impact Defence is not the law, reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, awarding damages following a motor vehicle collision.
In yesterday’s case (Sun v. Sukhan) the Plaintiff was involved in a 2009 rear end collision.  Fault was admitted by the rear motorist.  The collision caused very little vehicle damage.  The Defendant stressed this during trial.  Madam Justice Maisonville provided the following reasons addressing the value of this evidence:

[22] The damage to the vehicle was described by the assessing adjuster, with respect to the bumper, as a plastic face all warped, and a gross total damage of $927.31 was found including all taxes. Total labour costs were estimated to be $607.20.

[23] From the pictures that were put in evidence on the summary trial, the vehicle appeared to have sustained only minor damage, but again that does not mean that the plaintiff did not suffer genuine injuries, nor is it the case that with soft tissue injuries there is always a physical presentation that can be seen or felt. The pain remains real to the victim of the accident, and his credibility is not an issue on this application.

The Court went on to find that the collision caused soft tissue injuries that largely resolved after 21 months but continued to occasionally flare.  In assessing non-pecuniary damages at $20,000 the Court provided the following reasons:

[55] In all of the circumstances, I find while the plaintiff’s injuries had largely resolved within one year and nine months, he has some ongoing complaints of pain, coupled with his inability to perform certain activities as a consequence of his fear of causing flare-ups to his lower back such as carrying heavy objects.

[56] Taking evidence as a whole, I find that the plaintiff has, on a balance of probability, proved he was injured from this accident for one year and nine months and that he presently has some minor complaints on occasion relating to his lower back and neck, but that these are not preventing the plaintiff from enjoying his pre-accident state of health and activity level.

[57] I award the following:  Non-pecuniary  damages: $20,000

For more on this topic you can click here to access my archived posts addressing ICBC’s Low Velocity Impact Policy.


ICBC Claim Frequency Down – Trend Projected to Continue

Written by admin on . Posted in Tort Reform, Uncategorized.

Have you ever heard the insurance industry discussing how claims are out of control and without ‘reform‘ coverage will become unsustainable?  In BC we are fortunate that this type of rhetoric has never been accepted.
In some other Provinces, however, such soundbites have caused governments to strip or modify individuals right to sue when harmed through the carelessness of others.  In BC this is not the case.  Given this claims must out of control, right?  The short answer is absolutely not.
The latest data filed by ICBC with the BC Utilities Commission shows that not only are the number of claims down but the Ultimate Claim Frequency (the number of actual claims also factoring in the number of auto insurance policies) is also significantly down.

But this data only covers 2001-2010, surely things will get worse in the future right?  Absolutely not.  The below ICBC claims frequency projections are quite revealing.

This data illustrates that the public does not need to have their tort rights stripped in order to have a stable and functioning auto insurance industry.  Provinces that have fallen for tort-reform rhetoric should have a sober look to BC’s positive experience.

$65,000 Non-Pecuniary Damage Assessment for Chronic Pain Disorder

Written by admin on . Posted in ICBC Chronic Pain Cases, Uncategorized.

Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic pain disorder caused by a motor vehicle collision.
In yesterday’s case (Loveys v. Fleetham) the Plaintiff was involved in a significastn 2006 collision.   The Plaintiff was struck by an out of control large truck driven by the Defendant.  The force of impact pushed the Plaintiff’s vehicle off the road.  The Plaintiff alleged she suffered physical and psychiatric injuries as a consequence of the crash.
Mr. Justice Armstrong found that the Plaintiff did suffer from physical injuries which went on to cause a chronic pain disorder.  The court did not find the Plaintiff’s psychiatric difficulties were related to the collision finding these had their origin in other life events.  The reasons for judgement are useful for the Courts lengthy discussion of causation and indivisible injuries.  In assessing non-pecuniary damages at $65,000 Mr. Justice Armstrong provided the following reasons:

[191] I am satisfied that Ms. Loveys suffered soft tissue injuries to her neck, back and shoulder and that those areas of complaint have evolved into a chronic pain disorder. I accept the plaintiff’s chronic pain was caused by the accidents. I also accept that she experienced an exacerbation of her pre-existing symptoms of depression and bulimia after the accident; the plaintiff has not proven that “but for the accident” she would have suffered the recurrent bulimia, acute stress disorder and/or depression.

[192] Ms. Loveys experienced significant psychological symptoms after the accident but they have not been proven to have resulted from the car accident. On the evidence it is equally possible she would have developed a major depression even if the motor-vehicle accident had not occurred. The history of disputes with CRA, the bankruptcy, the serious tax arrears, the death of her friend, her parents’ illness, and the strata owners litigation all indicate she faced serious stressors that would have occurred independent of the accident. She had already had an attack of bulimia in March 2006 and was under stress at the time of the accident.

[193] In my view Ms. Loveys’ psychiatric symptoms represented a divisible injury which is separate from the initial pain and chronic pain complaints that have persisted…

[214] I have concluded that Ms. Loveys has endured significant suffering and inconvenience resulting from the injuries from the accident. I observe that she will likely have symptoms of chronic pain for the balance of her life although there is some possibility she may yet achieve some improvement. Although I do not attribute her recurrent bulimia or her depression to the accident I accept that the duration of her physical symptoms and the interference with her very active lifestyle are important factors in this assessment. The presence of chronic pain has, for this very active woman, impacted her work life, her competitive and recreational dance, and the level of enjoyment she achieved from her other recreational choices. The plaintiff had an extraordinary history of physical accomplishments in her vocational and recreational life before the accident and her return to full participation in these activities is guarded.

[215] Her injuries will not prevent her from returning to most of those activities; she will not be able to perform in those areas with the same intensity and for the same duration she enjoyed prior to her injuries.

[216] Even on an intermittent basis, chronic pain deprives a victim of the enjoyment of a full and active life. Chronic pain coupled with the limitations on Ms. Loveys’ recreational activity and work will play an important part limiting her future enjoyment. I must consider that her low back pain and toe pain will also detract from her enjoyment of life as will her psychiatric health issues. In view of all of these factors I conclude that she is entitled to $65,000 for her non-pecuniary losses.

Hard Data on ICBC's Legal Costs from 2003-2011

Written by admin on . Posted in Tort Reform, Uncategorized. 47 Comments on Hard Data on ICBC's Legal Costs from 2003-2011

As previously discussed, one of the benefits of having a crown corporation as our Provincial auto-insurer is the accountability that comes with public reporting obligations.
In support of ICBC’s recent request for a rate increase with the BC Utilities Commission ICBC filed thousands of pages of further data earlier this week.  ICBC’s latest filing can be found here.
Included in the filing was data relating to ICBC’s legal costs from 2003-2011.   On review it is apparent that many of these costs have remained steady over time while some expenses have decreased dramatically.  I highlight this information as it runs against the notion advanced by so-called ‘tort-reformers‘ that litigation costs are ever increasing or somehow out of control.  To the contrary, this data reveals a fairly steady and reliable system in action.