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Driver Faultless for Intersection Crash Despite Turning Left on Red

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

A reality at busy intersections is that drivers, after committing to an intersection on a green light, sometimes need to wait until the light turns red to complete their turn.  If a crash occurs in these circumstances a driver can (depending on the specific facts of course) be found faultess for the collision.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such a scenario.
In this week’s case (Yanakami v. Whittey) the Plaintiff was attempting a left hand turn.  She committed to the intersection.  After her light turned red vehicles in two of the three oncoming lanes came to a stop.  At this time she proceeded to complete her turn.  The Defendant, who was travelling in the third oncoming lane, ran the red light and a collision occurred.

Mr. Justice Fitch found the Defendant fully at fault for the crash.  In doing so the Court provided the following reasons:

[62] Against the background of this discussion, I make the following factual findings:

1. the plaintiff began her left turn immediately after the light for east and westbound traffic changed to red;

2. two other vehicles traveling east had come to a stop at the intersection in the curb and centre-line lanes;

3. the plaintiff was cognizant of, and attentive to, the considerations one would expect to be in the mind of a reasonably prudent driver including the colour of the traffic light, the location and speed of oncoming traffic, the location of Mr. Whittey’s vehicle at various points in time, including when the light turned red, and the potential for there to be pedestrians walking to the south in her intended path of travel;

4. Mr. Whittey had ample time to stop before the intersection and do so in safety, just as two other eastbound vehicles had done, when the light changed to yellow;

5. the plaintiff concluded, and was entitled in fact and in law to conclude, that the defendant’s vehicle did not present a hazard, that he had plenty of time stop (as other vehicles had done) and that it was safe for her to proceed with her left turn;

6. the defendant was not being attentive to the factors a reasonably prudent driver would have been attentive to before the collision, including the presence of the plaintiff’s vehicle in the westbound left turn lane immediately in front of him or the fact  that a car had already come to a stop ahead of him in the eastbound centre-line lane. This conclusion is supported by the defendant’s own admission that he was not looking at the left turn lane for westbound traffic as he approached the intersection because it was not important for him to do so;

7. Mr. Whittey entered the intersection after the light turned red;

8. the plaintiff could not possibly have taken evasive action at that point to avoid the collision.

[63] Applying these facts to the applicable law, I am satisfied that this accident was caused solely by the negligent driving of the defendant, Mr. Whittey.

Imposed Limitation Thwarts Sex Abuse Class Action Certification

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized.

Last year the BC Supreme Court refused to certify a class action for victims of sexual abuse at the hands of a corrections guard employed by the Province of BC.  While the Plaintiff and the Province of BC wished to have the matter certified Mr. Justice Grauer was concerned that inadequate notice provisions and a short opt-out provision would result in some victims losing their right to sue.
The parties attempted to address these concerns by creating more meaningful notice provisions and a more generous period for plaintiffs to advance their claims.  They re-applied for certification.  In reasons for judgement released this week (Lakes v. MacDougall) Mr. Justice Grauer once again rejected the proposed class action finding the limitation period created by certification would be too prejudicial for victims of historic sexual abuse.  In dismissing the application Mr. Justice Grauer provided the following reasons:

[13] Here is the situation.  For those of MacDougall’s victims who have already come forward and consulted counsel, there is no problem.  If they have already commenced litigation, they are deemed to have opted out, and otherwise may do so if they wish within the 90-day period provided.  They already have the advantage of access to legal counsel and will have no difficulty in exercising their options.  Consequently, it does not surprise me that the clients of Mr. Poyner and those of Mr. Simcoe support the proposed settlement.

[14] But what of the rest of the proposed class, who remain unidentified?  The evidence before me clearly establishes the roadblocks that inhibit these victims from breaking silence and coming forward to disclose the abuse they suffered.  They are accordingly particularly vulnerable to losing their claims through the effluxion of time.  This is exacerbated by notice provisions that, while likely to ensure maximum dissemination to those still in the prison population, offer little hope of reaching those in more isolated circumstances.

[15] It is no answer, in my view, to say that these victims may avoid the risk of losing their rights by simply filing a single piece of paper to opt out within the 90-day period mandated for doing so.  That is a very short time in the context we are discussing.  Once it has passed, they may no longer opt out; they are left with 21 months within which to file a claim, failing which they are forever barred.

[16] It is my respectful opinion that this additional time remains insufficient to counterbalance the prejudice to this particular group arising from the imposition of a limitation period where none previously existed.  Those members of the class who remain unidentified still face the prospect of losing more than they and the rest stand to gain should the settlement be approved and the action certified.  The amended terms represent an improvement, but not enough.  It is not open to me to craft acceptable settlement terms, or to impose them.

[17] In the circumstances, I conclude that the parties have failed to establish that a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issue raised in this matter.  The proposed procedure does, in my view, offer certain procedural advantages to the proposed class, as discussed above.  These are not, however, sufficient to offset the continuing risk of severe prejudice to this vulnerable population to which the terms of the settlement agreement give rise.

Motorist 50% at Fault for Crash After Entering Intersection on Late Amber

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

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing fault for a common type of intersection crash; one involving a left-hand turning vehicle and a through driver.
In this week’s case (McPherson v. Lange) the Defendant was travelling Northbound on Canada Way in Burnaby, BC.  The Defendant was intending to make a left hand turn.  (Defendant’s view depicted in below photo)

At the same time the Plaintiff was travelling in the on-coming southbound lane.  The Defendant committed to the intersection and waited to turn.  After the light turned amber she began her turn.  The Plaintiff drove through on a late amber light and the collision occurred.  In finding both parties equally to blame Mr. Justice Armstrong provided the following reasons:

[40] Based on Ms. Lange’s and Mr. Enns’ description of the events leading up to the accident, I have concluded that she stopped before entering the intersection, entered the intersection and stopped again. She proceeded on the amber light, and erroneoulsy believed that she had sufficient time to complete her turn without contributing to a risk of collision with the oncoming McPherson vehicle. She did not see the McPherson van before making her decision to proceed with her left turn and did not look again or see him as she started to travel through the balance of the intersection.

[41] It also appears to me that when she first saw the McPherson van some distance from the intersection, she misjudged the speed and/or distance of the vehicle. She did not express any expectation that Mr. McPherson would be able to stop or would stop before colliding with her…

[45] Section 128 of the MVA required Mr. McPherson to stop his vehicle unless the stop could not be made safely. He could not suggest or explain why he could not have stopped his vehicle safely in the time between the appearance of the amber light and the impact. He did not say he was too close to the intersection to bring his vehicle to a stop or that there were any other circumstances that would have prevented him from stopping his van. It is clear that his light was amber for 4.5 seconds and that he entered the intersection towards the end of that 4.5 second time. I conclude the McPherson vehicle had time to stop safely without entering the intersection. This is corroborated by the testimony of Mr. Melin who was in the lane to Mr. McPherson’s right. Mr. Melin said that he had ample time to stop and was surprised that Mr. McPherson sped past him after the light turned amber. I also find on the evidence that Mr. McPherson did have enough time to stop before the light turned to red, and in choosing not to do so, he created a significant danger.

[46] In my view Mr. McPherson did not drive prudently and his failure to stop his vehicle before entering the intersection was a breach of his duty to Ms. Lange. Mr. McPherson admits that his negligence contributed to the accident but he argues that Ms. Lange is also contributorily negligent…

[49] The tension between the obligations of the left-turning driver and the through driver are difficult to resolve. It is clear from Morgan, Mitchell and Tejani that the left-turning driver has an obligation to keep a lookout for a vehicle obviously headed into the intersection in disregard for the traffic signal…

[54] I cannot measure the differing degrees of fault between both the plaintiff and defendant and accordingly, I apportion liability at 50% against Mr. McPherson and 50% against Ms. Lange.

Crashes and Winter Driving Conditions: Take Care to Be Accurate When Calling ICBC

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 48 Comments on Crashes and Winter Driving Conditions: Take Care to Be Accurate When Calling ICBC


With the first heavy snow of 2012 hitting the Lower Mainland and Greater Victoria comes the expected increase in motor vehicle collisions.  With this in mind I’m republishing a post I originally wrote in the early days of this blog reminding injured passengers of the consequences of minimizing details of wrongdoing when reporting a collision to ICBC:
Snow in BC has two reliable results 1. Car Accidents, 2. Phone calls to ICBC and lawyers about those car accidents. The second is particularly true in Victoria and Vancouver because of the local populations relative inexperience dealing with winter driving conditions.
In anticipation of the almost certain phone calls I will receive this week I write this post.
If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits. There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering and other losses in these circumstances.  Your right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In single vehicle accidents drivers usually only have themselves or the weather to blame.
If someone else contributed to the accident (perhaps the road maintenance company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to claim against their policy of private insurance.
Now, if you are a passenger in a single vehicle, weather related accident, and your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you can bring a tort claim against them in addition to claiming your Part 7 Benefits.
If you are advancing a tort claim against a driver be weary of the defence of “inevitable accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven then the tort claim can be defeated.
People naturally don’t want to get those known to them in trouble and it is all too common for passengers reporting such a claim to ICBC to readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not careful and you give ICBC the alternate impression with a view towards helping the driver out, your statement may severely damage your ability to bring a tort claim.
Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that an accident was inevitable you will have a much harder time advancing or settling your tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will harm your claim for lawful compensation.

ICBC Underinsured Motorist Claims: The "No Consent" Restriction

Written by admin on . Posted in ICBC UMP Cases, Uncategorized. 166 Comments on ICBC Underinsured Motorist Claims: The "No Consent" Restriction

In my continued efforts to publicly summarize ICBC UMP Arbitration Decisions, reasons for judgement recently have been provided to me dealing with the restriction on ICBC UMP Coverage in circumstances where a vehicle occupant is injured through the negligence of a motorist who did not have the vehicle owner’s consent to operate.
In the unreported 2003 UMP Decision (D v. ICBC) the Claimant was injured in a 1998 collision.  He was the occupant of a vehicle driven by MV.   MV did not have the registered owner’s consent to operate the vehicle.  MV was given permission to drive by J who was the registered owner’s son.  J initially obtained the vehicle with the owner’s consent.  J did not have the owner’s permission to allow others to operate her vehicle.
The claims arising from the crash exceeded the damages available under section 20 of the Insurance (Vehicle) Act.  The Claimant applied to have his excess damages paid under his own Underinsured Motorist Protection coverage with ICBC.   ICBC argued that UMP coverage was forfeited because the Claimant was a passenger in a vehicle that he “knew or ought to have known was being operated without the consent of the owner” contrary to section 148.1(3)(b) of the Insurance (Vehicle) Regulation.
Arbitrator Yule agreed that given the facts of the case the Claimant should have known that consent was absent.  In finding the Claimant was not entitled to coverage Arbitrator Yule provided the following reasons:
28….Whether (the owner) consented, however, is a different question from the one raised in this case, namely whether a passenger such as Mr. D knew or ought to have known that (the owner) would not consent to the use of her vehicle in these circumstances.  There may well be circumstances in which an original borrower, who is aware of restrictions on the use of the borrowed vehicle put in place by the owner, allows another to drive without ever communicating those restrictions.  If there were nothing else about the surrounding circumstances to cause a driver or passenger to question the owner’s consent to the driver’s operation of the car, the driver and passenger would be entitled to full insurance protection.  A similar concept of reasonable belief by a driver i the consent of a vehicle owner applies in the extension of third party liability coverage under a driver’s certificate (Regulation s. 49(1)(c)) and under an owner’s certificate (Regulation, s. 65(1)(f))….The question is whether there is sufficient evidence from the totality of the circumstances such that, if he had considered the matter, a reasonable person in Mr. D’s circumstances ought to have known that (the owner) would not consent to the use of her vehicle int he circumstances prevailing the evening…
32…Where the vehicle is not stolen, and the original borrower remains in possession of and an occupant in the vehicle, and where constraints regarding use are known to the original borrower and not disclosed to others in the vehicle, the burden of establishing facts that a passenger ought to have known the owner would not consent should be onerous, even before taking into account that s. 148.1(3)(b) is an exclusion from coverage.
33.  In my view the Respondent has met the burden in this case…
The Reasons go on to highlight the specific facts indicating why a lack of consent should have been known in the circumstances.
This decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.  Also, if anyone has an UMP decision from prior to 2007 and you’d like to have it added to this database please don’t hesitate to contact me.

BC Court of Appeal Discusses Prohibition For Motorists "Passing on the Right"

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 117 Comments on BC Court of Appeal Discusses Prohibition For Motorists "Passing on the Right"


Section 158 of the Motor Vehicle Act prohibits drivers from passing vehicles on the right except in limited circumstances.  Reasons for judgement were released this week by the BC Court of Appeal discussing this prohibition in the context of a personal injury lawsuit.
In this week’s case (Smeltzer v. Merrison) the Defendant was travelling Northbound.  There was one Northbound lane of traffic which was backed up with other vehicles.  The traffic lane widened as it approached in intersection creating two “de-facto” lanes.
The Defendant passed the stopped vehicles on the right intending to make a right hand turn at the upcoming intersection.  At the same time the southbound Plaintiff made a left hand turn through a “gap” in the backed up Northbound traffic intending to enter a parkade.  At this time a collision occurred.
The Plaintiff sued for damages and had her case dismissed at the trial level.  She appealed.  The BC Court of Appeal agreed that while the Plaintiff should have kept a proper lookout and was partially to blame for the collision the Defendant also bore some responsibility.  The Court found the Defendant should not have been passing on the right in the “de-facto” lane as it was not a “laned roadway” and doing so in these circumstances was negligent.  In finding the Defendant partly at fault the BC Court of Appeal provided the following reasons:

[13] Dickson, an appeal of a cyclist’s conviction for passing on the right, contains the most complete discussion of s. 158 to which we are referred.  I would respectively endorse what was said there.  Section 158(1) prohibits one vehicle passing another on the right: “The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle…”  There are only three exceptions.  Essentially, passing on the right is permitted when the overtaken vehicle is turning left, when passing on a laned roadway, or when passing on a one-way street where room permits.  A “laned roadway” is defined.  It means a road that is divided into two or more marked lanes for vehicles proceeding in the same direction.  The exceptions are qualified by subsection (2) which prohibits any passing on the right when it cannot be done safely or by driving off the road.

[14] Despite the recognition of a de facto lane in MacLaren, I do not consider the concept can afford any further exception to the three for which s. 158(1) provides.  In MacLaren, a cyclist was injured at an intersection which he entered passing on the right of vehicles where there was what was said to be a de facto lane to his right, being a widened part of the road that accommodated vehicles turning right, but was not marked.  He was faulted for riding between two lanes instead of positioning himself between the vehicles he passed on the right.  It was specifically said (at para. 28) that no determination was being made with respect to whether s. 158 permitted the cyclist to pass on the right.

[15] I am unable to accept that s. 158(1)(b) permitted Ms. Merrison to pass two or three cars and the truck on the right as she contends.  The exception is confined to passing on the right where there are two marked lanes for vehicles proceeding in the same direction and only then when passing can be undertaken in safety.  Here, there was only one such lane regardless of whether there was what might be called a second de facto lane.  I recognize this means drivers proceeding to turn right at the intersection, as Ms. Merrison was, could not align their vehicles to enter the 100-foot marked lane until it was virtually reached, if there were vehicles ahead in the “through” lane that were not turning left, but that is what the Act provides and it appears to me to be with good reason.  If it were otherwise, drivers would be entitled to pass on the right wherever the road is sufficiently wide for two vehicles to pass.  Drivers do not expect to be passed on the right when they are not travelling on a road with more than one designated lane.  They generally expect to be able to turn off of the road to their right, whether into intersecting streets or driveways, or to pull over to the side of the road or off the road altogether without being obstructed by vehicles passing to their right.

[16] As quoted from his reasons, the judge said that, while he had not lost sight of the provisions of the Act, he was concerned with a de facto lane of travel, not a “laned roadway” within the meaning of the Act such that only some of the sections were of interest.  I am unable to accept he was correct in law to consider Ms. Merrison passing on the right was not prohibited by s. 158, as it appears he did, on that basis.  As the judge said, she was not travelling in a “laned roadway” within the meaning of the Act: s. 158(1)(b) did not apply.  If she entered a de facto lane, meaning the road became wide enough to permit her to pass the cars and the truck ahead of her on the right, she was, in the circumstances, prohibited from passing them.  She was required not to pass the vehicles in front of her until she entered the marked right-turn lane.

[17] I consider Ms. Merrison was negligent in passing the three cars and the truck on the right in contravention of s. 158.  She was negligent because it was reasonably foreseeable that passing on the right, in contravention of a statutory prohibition, could be dangerous to other motorists on the road.  Her negligence was, on what the judge said, compounded by her failure to proceed cautiously while maintaining a proper lookout.  Had Ms. Merrison not proceeded to pass on the right as she did, the collision would not have occurred.  It follows that her negligence was a cause of the accident and the injury Ms. Smeltzer suffered.

$65,000 Non-Pecuniary Damage Assessment For Chronic Pain; Adverse Inference Discussed

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding damages for chronic pain following a motor vehicle collision.
In this week’s case (Azuma-Dao v. MKA Leasing Ltd.) the Plaintiff was involved in a 2008 rear-end collision.  Fault was admitted by the rear motorist.  Following the crash the Plaintiff suffered from chronic pain from soft tissue injuries possibly with “spinal facet joint or disk pathology”.  Her injuries compromised her ability to work in her chosen profession and, despite room for improvement, were expected to continue to cause problems for the foreseeable future.  In assessing non-pecuniary damages at $65,000 Madam Justice Humphries provided the following reasons:

[80] The plaintiff’s life has changed substantially as a result of the accident, and she suffers chronic pain.  From a fit, very active person, she has become withdrawn, moody, and deconditioned.  Her friends and her husband find her to be a different person, no longer active and happy go lucky.  She endures pain every day, but she works very hard at her exercises.  Her work with disabled adults was very important to her and required a fit strong body, which she no longer has.  Despite her withdrawal, she maintains a social life, but the activities she and her friends do are now more sedentary.

[81] I set her non-pecuniary damages at $65,000

Another point of interest was the Court’s discussion of the Adverse Inference principle.  In the course of the lawsuit the Plaintiff obtained and produced clinical records from her GP.  She did not call the doctor in support of her case.  The Defendant argued that an adverse inference should be drawn but the Court refused to do so finding that it was open to the Defendant to call this physician if they wished.  Madam Justice Humphries provided the following reasons:

[45] I will mention the issue of adverse inference at this point.  Since all of Dr. Frank’s clinical notes were provided to the defence and Ms. Azuma-Dao admitted the relevant portions on cross-examination, I am not prepared to draw an adverse inference against the plaintiff for failing to call Dr. Frank, who was of course available to either side and was in fact on the defendants’ witness list.  However, since the defence gained what they required on cross-examination of the plaintiff, they cannot be faulted either for not calling Dr. Frank.

FCA and Tort Claim Limits Under ICBC's Underinsured Motorist Protection

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


An ICBC UMP decision has recently been provided to me dealing with the amount of coverage available under UMP when a claimant has the right to advance a tort claim and a Family Compensation Act claim arising from the same collision.
This decision was released well before the 2007 amendment requiring UMP Arbitration decisions to be published publicly on ICBC’s website.  I summarize the decison to add it to this public and searchable UMP Claims Database.
In the 1996 case, (CCK v. ICBC) the Claimant was severely injured in a collision.  She suffered a spinal cord injury rendering her a paraplegic.  Her mother was killed in the same collision.  The at-fault motorist was underinsured for all of the civil claims flowing from the crash.  The Claimant was entitled to damages not only for her own injuries but also as a beneficiary under the Family Compensation Act for the death of her mother.
The arbitrator had to decide whether the Claimant could access $1 million in UMP Coverage in her tort claim along with an additional $1 million in coverage for her FCA claim or whether both claims were covered by a single limit.  Arbitrator Schmitt provided the following reasons:
If CCK had been injured but had not lost her Mother, she would, of course, under section 148.1(2) be entitled to compensation under UMP coverage.  In this case she was insured and she lost her Mother so she is an insured under not one but two of the definitions.  What ICBC is arguing is that she is entitled to UMP coverage for her injuries and loss of her Mother but only under her own million dollars coverage…
In the case of CCK, she happens to be insured under two different definitions and she will be entitled to the benefits of her UMP coverage for both her claims up to the $1,000,000 limit…
The Mother’s estate is likewise entitled to the benefit of UMP coverage up to $1,000,000 but the Mother’s estate claims do not include the claims of survivors under the Family Compensation Act which belong specifically to those survivors…
The estate’s coverage is available to cover claims by the estate itself which may be advanced under the Estate Administration Act.  Insofar as CCK or her grandmother may be entitled to receive some or all of the proceeds of the estate as a beneficiary they may directly benefit from such coverage.  Otherwise CCK is entitled to the benefit of her own UMP coverage of $1 million with respect to her claim for personal injuries and her claim for damages under the Family Compensation Act.
This case should be contrasted with a subsequent Court of Appeal decision in 2007 (Lougheed v. Co-operators General Insurance Company)  which upheld the following trial judgement reasons finding that the ‘insured‘ in an FCA claim brought following a collision is the personal representative of the estate of the deceased and that all beneficiaries of such an FCA claim are subject to the representative’s single policy limit:

[85]  The issue, then, is how one ought to read the definition of “insured” in s. 148.1(1)(c), bearing in mind the scope of coverage granted by s. 148.1(2).  But for his death, Mr. Lougheed would have received UMP coverage by operation of s. 148.1(1)(a).  As a result of his death, the “insured” is “a person who…is entitled to maintain an action” because of Mr. Lougheed’s death.  The “action” refers to the family compensation claim that may be commenced under the FCA by the personal representative on behalf of all of the beneficiaries, or by the beneficiaries if it is not commenced by the personal representative.  In either case, however, the action must be treated as though it had been brought by the personal representative.  It is a single cause of action brought on behalf of all of Mr. Lougheed’s beneficiaries.

[86]  It follows, in my view, that the “insured” in s. 148.1(1)(c) must be the personal representative, who is the individual entitled, either directly or indirectly, to maintain a family compensation action as a result of the death of the primary insured, Mr. Lougheed.  That interpretation is consistent with the grant of coverage provision, which limits the recovery of benefits to those otherwise accruing to the deceased insured.

[87]  In the result, the UMP coverage limit is not $1 million for each beneficiary of a family compensation action, but $1 million for the beneficiaries of the action as a whole.  The plaintiffs, all beneficiaries, are entitled collectively to the $1 million of UMP coverage that would otherwise have been available to the deceased, Mr. Lougheed.

Late DME Application Dismissed; Responsive Exam Limitations Discussed

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized.

Helpful reasons for judgement were recently released by the BC Supreme Court, New Westminster Registry, dismissing a defence application to have a Plaintiff assessed by a neurosurgeon.  In short the Court found the application was brought too late in the claim and that there was insufficient evidence to justify a physical exam for a truly ‘responsive‘ medical report.
In the recent case (Dhaliwal v. Owens) the Plaintiff was injured in a 2009 collision.  The injuries included low back pain.  Surgery was anticipated but as time went on the Plaintiff experienced some symptom improvement and surgery became less likely.
In the course of the lawsuit the Defendants put the matter into fast track litigation (Rule 15).  They failed to obtain a medical report in a timely fashion.  When they finally did apply the 84 day service deadline set out in Rule 11-6(3) had come and gone.  The Defendants argued that they needed the report for responsive purposes and further that the cancellation of the Plaintiff’s anticipated surgery amounted to a change of circumstances justifying the late application.   Master Keighley rejected both of these arguments and dismissed the application.  In doing so the Court provided the following reasons:
[7]  Now, I had indicated earlier that it is likely that had this matter come to light a year ago, this application would not have been before me today.  What causes the problem is Rule 11-6(3) which requires that an expert report, in general terms, be delivered at least 84 days prior to the scheduled trial date.  The 84th day, I am told by counsel who have done the arithmetic, passed…almost a couple of weeks ago…
[14]  Now, this is not a situation, and we do sometimes see it, where the physician has either directly or indirectly provided evidence with respect to the necessity of a physical examination of a party.  There is nothing before me in the material to explain why a physical examination is required in this case other than the statements from the paralegal that I have referred to.
[15]  In the case of Wright v. Brauer, a decision of Mr. Justice Savage reported as 2010 BCSC 1282, Justice Savage considering similar circumstances said at paragraph 22
“In my opinion, the bare assertion reported to a legal assistant in this case is insufficient to support an order under Rule 7-6(1) that the plaintiff attend the Examination, when the defendants are limited to providing response reports under Rule 11-6(4)”
Justice Savage dismissed the application and is reference to Rule 11-6(4) harks back to his remarks at paragraph 12 of that decision where he said:

“Rule 11-6(4) was enacted to fill a lacuna in the Rules.  Under the former Rules, Rule 40A permitted parties to call expert evidence in reply without notice at trial.  In order for such evidence to be admitted, however, it had to be truly responsive to the expert evidence of a witness called by the opposing party.”

He noted that in the case before him, the defendants were, as here, limited by the Rule to what referred to as Justice Williamson in the case of Kelly v. Kelly (1995), 20 BCLR (3d) 232 “truly responsive rebuttal evidence” by virtue of the provisions of Rule 11-6.
[16]  Similarly, Mr. Justice Cullen in the case of Ludecke v. Hillman, 2010 BCSC 1538, considered an appeal from a master’s order which has allowed an examination to provide “truly responsive” evidence.  Justice Cullen upheld the master’s order determining that the necessary evidentiary foundation for the examination was found in the material before him.  In reaching that conclusion, he said:
“To reach the requisite threshold under Rule 11-6(4) the applicant must establish a basis of necessity for the examination to properly respond to the expert witness whose report is served under subrule (3) by the other party.”
[17]  The plaintiff’s injuries, it seems to me, have not really changed in this case.  She has more or less since the outset complained of low back pain, low back problems.  What has changed, if anything, in recent months is the decision of the medical practitioners treating her with regard to the advisability of surgery.  It appears that they have decided for the meantime that surgery is the less desirable option.  Notwithstanding that decision, the plaintiff continues to suffer pain to the extent that she remains, apparently, unable to work.  There has been ample time int his litigation, even before this change in the plaintiff’s circumstances, for the defence to seek and obtain evidence from a neurosurgeon or other specialist with respect to her condition.  Although the provisions of Rule 7-6 and its predecessor Rule were enacted to attempt to affect a level playing field between the parties with respect to medical evidence, I do not see that the defence will be prejudiced by being restricted to an opportunity to have Dr. Turnbull or another practitioner of their choice examine the available evidence and render an opinion at trial as to the appropriate treatment of the plaintiff’s injuries.  Overall, of course, I have been considering the issue of proportionality and in the particularly refined context of an application brought in a case governed by Rule 15-1.
[18]  The application is dismissed.
As of today this case is unreported but, as always, I’m happy to provide a copy of the reasons for judgement to anyone who contacts me and requests these.

Funding Legal Aid – Does the Government Have its Priorities Straight?

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If you have a limited budget to support Legal Aid, who would you let access the funds, the poorest sector of society or the wealthiest?  You would think the answer is obvious but BC’s track record may just go against common sense on this issue.
The Government is receiving some heat from the Trial Lawyers Association of BC’s current campaign regarding the state of Legal Aid funding in BC.  In short the TLABC points out that Legal Aid in BC is “a seriously underfunded system.  The current and long-time lack of legal aid leaves too many people in need of help, and the lawyers involved have been working in a crisis situation for far too long“.
The Government of BC has recently announced that they will commit an additional $2 million in funding to the system.  This is a far cry from what’s needed to restore the system to functioning levels.  The concerns are not just coming from the TLABC but also the judiciary with the Chief Justice of the BC Supreme Court stating that prolonged underfunding has possibly put the judicial system “in peril“.
This leads to the question of whether the money to properly fund Legal Aid is simply not available or whether the Government’s priorities lie elsewhere.  A good argument can be made for the latter given the Government’s choices for funding access to justice.
Despite the poor shape of BC’s legal aid system, The Government finds money to help some of the highest income earners with their legal costs.  I’m referring to the Canadian Medical Protection Association fee subsidy.
For those of you not familiar with the CMPA, they are a group that “provides professional liability protection for Canadian physicians in the form of advice and legal assistance“.  In other words, they defend civil suits against doctors in cases of alleged professional negligence.
As with any liability insurance, CMPA protection costs money.  The fees doctors pay for their professional liability insurance vary depending on practice area but overall are not particularly high.  These can be found here.   What you may not know is that the BC Provincial Government reimburses these dues to a significant extent.  Specifically the BC Government rebates “the difference between the current year CMPA dues and the dues for the base year 1985“.  That is, they pay the value of over 25 years of inflation.
So how much money are we talking about here?  I don’t have the current numbers but in 2008 the Victoria Times Colonist reported that “The B.C. government funnelled nearly $53 million through the B.C. Medical Association to the CMPA over the last three years“.
The CMPA, from a financial perspective, has done very well over the years.  They have accumulated over $3 billion in investment assets according to their 2010 report.  In fact, the CMPA reports that their financial position is so strong that “Excluding the funds committed to capital assets and a risk retention reserve fund, this leaves the Association holding $572 million in unrestricted net assets.“.  That’s over half a billion dollars of “unrestricted” assets.
As a BC taxpayer I can’t help but ask myself who is a better beneficiary of the $50 plus million dollars the Government has used to subsidize liability insurance dues, the CMPA with half a billion dollars in unrestricted net assets, or the folks who qualify for the below financial test for legal aid in BC:

As always, comments and feedback are welcome.