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More on ICBC UMP Deductions: Costs, Disbursements and MSP Payments

Written by admin on . Posted in ICBC UMP Cases. 65 Comments on More on ICBC UMP Deductions: Costs, Disbursements and MSP Payments

In my on-going efforts to create a searchable UMP Claims Database, reasons for judgement were recently released addressing the deductibility of previous payments for Costs, Disbursements and ICBC paid MSP treatments in an UMP proceeding.  In short the MSP payments were found to be deductible under UMP while the costs and disbursements payments were not.

In the recent case (X v. ICBC) the Claimant was a personal injury lawyer.  He was involved in a 2004 collision.  He initially sued for damages.  The lawsuit was disposed of for payment of the underinsured defendant’s policy limits of $200,000 plus costs and disbursements with the parties agreeing have the value of the claim being privately arbitrated.

The Claimant alleged that he suffered a mild traumatic brain injury and sought damages “well over $1 million“.  This claim was largely rejected with the arbitrator assessing damages at just over $276,000.  The parties agreed that the $200,000 previous payment was deductible but could not agree whether the additional $22,575 ICBC paid for costs and disbursements were deductible from the UMP assessment.  Arbitrator Boskovich held that it was not and provided the following reasons:

538.  The codified applicable deductible amounts are very clear and not one of them contemplates a deduction for the costs and disbursements associated with a payment made:

  • pursuant to Section 20 or Section 24;
  • paid or payable under a Part VII;
  • paid by the underinsured motorist as damages;
  • paid or payable under a certificate, policy or plan of insurance providing third party legal liability indemnity to the underinsured motorist;
  • paid or payable under vehicle insurance, wherever issued and in effect, providing undersinsured motorist protection for the same occurrence for which the underinsured motorist for protection is provided under this section;
  • paid or payable to the insured under any benefit or right or claim to indemnity; and
  • paid or able to be paid by any other person who is legally liable for the insured’s damages.

539.  On their own, the costs and disbursements paid do not fall under a payment of any “benefit or right or claim to indemnity”.

540.  I do not find the $23,575.17 paid by the Respondent for the costs and disbursements associated with the underlying tort claim to be an applicable deductible amount pursuant to the UMP Regulation.

ICBC went on to argue that the MSP payments they made under the Claimant’s Part 7 Benefit plan were deductible from the damage assessment.  Arbitrator Boskovich agreed and provided the following reasons:

544.  The payments made by ICBC to the Medical Services Plan of British Columbia for the various medical visits listed are payments made pursuant to Part VII as medical benefits and are a codified applicable deductible amount pursuant to Section 148.1(1)(c).  There will be a deduction of $551.36 for these payments.

Relationship Breakup Following Collision "Too Remote To Create Liability"

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Liability (fault) Cases, ICBC Spine Injury Cases, Uncategorized.


Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, finding that a claim for damages for a break-up of a relationship following a collision is too remote for liability.
In last week’s case (Shinkaruk v. Crouch) the Plaintiff was involved in a 2006 collision.  He was found 20% at fault for the crash with the Defendant shouldering 80% of the blame.  The Plaintiff had “a significant history of low back pain” and this pre-existing injury was aggravated by the collision.  He was awarded damages for this aggravation.
During the period of aggravation the Plaintiff experienced difficulties with his partner and eventually she asked the Plaintiff to leave.  The Court found that this event was too remote to attract damages and in doing so Madam Justice Saunders provided the following reasons:

[59] It was apparent from Ms. Wahlwroth’s description of their interaction with each other, during the period in which Mr. Shinkaruk was convalescing from the accident, that their disagreements were largely a function of the two of them having very different visions of their roles and responsibilities within their relationship. It may be that these differences did not become manifest when the two of them had different working schedules. But with Mr. Shinkaruk at home in the evenings, she testified that she found it difficult to have him there without him making any contributions to the housework, making meals, cleaning up dishes, and doing other tasks which she felt he was physically capable of. She contrasted his lack of contribution with efforts made by husbands of friends of hers, when the couples had dinner together. Their differences were compounded by their poor communication skills, and they became trapped in a cycle of angry arguments, sniping and a lack of mutual respect. This climaxed during the December 2006 family vacation, when they spent little time in each other’s company, and had heated arguments when they did. She did not want her 13 year-old son exposed to that kind of behaviour, and that was a key consideration in her asking Mr. Shinkaruk to leave. These communication problems are issues which, she testified, they have both done a lot of work on recently and now that they are seeing each other again, there is a greater deal of emotional maturity being exhibited by both of them.

[60] It appears from the evidence that the most that could be said is that the motor vehicle accident contributed to the breakup in that it created a living situation, with Mr. Shinkaruk at home convalescing, in which fundamental and deep-seated issues between this couple became manifest. To the extent that Mr. Shinkaruk may have suffered emotionally or psychologically due to their breakup in December 2006, the defendant’s negligence is too remote to create liability.

ICBC UMP Arbitrations and Liability Findings

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


Useful reasons were recently released by Arbitrator Yule discussing the scope of an arbitrator’s power to address issues of liability in the course of an UMP Claim.
In the recent case (GG v. ICBC) the Claimant was injured by an underinsured Washington State motorist.  He sued for damages and ultimately settled for policy limits with the at fault motorists insurer.  The Claimant applied to ICBC to have excess damages paid under his underinsured motorist protection (UMP) policy.  The Claim was ultimately dismissed finding the Claimant did not have standing to trigger the UMP process.
The decision went on to discuss the ability of an arbitrator to Rule on liability issues when they have not been previously disposed of by a trial on the merits.  Arbitrator Yule provided the following reasons:
71.  As I have noted previously, the scheme of UMP compensation in British Columbia, in the absence of agreement between ICBC and a claimant, is premised upon an underlying tort judgement.  Sections 148.2(1) and (6) cannot mean that either party can arbitrarily and unilaterally have any issue relating to legal entitlement to recover damages determined in an arbitration because in those instances where there is a judgement int he underlying tort action, legal entitlement to recover damages will have been judicially decided.  Section 148.2(6) must at least be intended to give an arbitrator authority to determine issues of legal entitlement including contributory negligence where there is an agreement by the parties that the issue should be determined in the arbitration.  Absent the presence of collusion or fraud in obtaining judgement in a foreign jurisdiction, I think that the scheme of UMP compensation presumes that for accidents in foreign jurisdictions, issues of legal liability including contributory negligence are conclusively determined in a judgement of the foreign court.  I do not think that Section 148.2(6) entitles either a claimant or ICBC to “relitigate” an issue of liability or contributory negligence where there has been a judicial determination om the merits of the issue in a tort action in the jurisdiction where the accident occurred….I do not think a claimant who has succeeded in obtaining a judgement after trial in a foreign jurisdiction where such potential defences were not alleged, is exposed to have such defences raised for the first time in a subsequent UMP arbitration.  If the claimant here is entitled to pursue his UMP claim, notwithstanding the entered Consent Dismissal Order in the Washington action, it seems to me that the actual Order cannot be regarded as determinative of anything and is virtually irrelevant.  In that circumstance, I think Section 148.2(6) permits ICBC to raise the issue of contributory negligence, although whether the issue could be heard on its merits would be subject to full argument on the issue of whether, under Washington Law which is determinative as to issues of liability, formal admissions of fault in the pleadings constitute a conclusive determination of liability.

Is the "Low Velocity Impact" Defence Unethical?

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, Uncategorized.


The Law Society of BC’s Winter Benchers’ Bulletin is now out and available here.  As always there are many good tips and reminders to help keep out of ethical hot water.
Among the various tips is a reminder to litigators that encouraging reasonable settlement is a must.  Specifically the Law Society published the following reminder:

BC CODE RULE 2.02(4) – ENCOURAGING COMPROMISE OR SETTLEMENT A MUST
Chapter 8, Rule 1(a) of the Handbook prohibits lawyers from instituting or prosecuting proceedings that, although legal in themselves, are clearly motivated by malice on the client’s part and are brought solely for the purpose of injuring another party. Rule 4.01(2)(a) is the counterpart to Rule 1(a) in the new BC Code. In addition, BC Code Rule 2.02(4) requires lawyers to encourage clients to compromise or settle a dispute on a reasonable basis.
Encouraging Compromise or Settlement
2.02(4) A lawyer must advise and encourage a client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and must discourage the client from commencing or continuing useless legal proceedings.
This led me to think about the Low Velocity Impact defence used in response to personal injury lawsuits.  I’ve discussed this many times.  In short the LVI Defence is an argument that a Plaintiff suffered no injury due to the minor nature of vehicle damage following collision.
This defence has been rejected numerous times in British Columbia with Courts stating that it has “no scientific justification“, a defence that does not follow “logic or legal principle” and is a “myth“.  Given these findings is it fair to conclude the LVI Defence leads to a “useless legal proceeding“?  Is it unethical for counsel to run a trial based solely on the LVI defence?  As always, feedback and comments are welcome.

ICBC Ordered to Share Witness Statement With Plaintiff

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dealing with document production requests in an ICBC Claim.
In this week’s case (Polianskaia v. Melanson) the Plaintiff was a passenger in a vehicle driven by her mother.  She was involved in a crash with the Defendants vehicle which apparently “failed to yield the right of way to the Plaintiff’s vehicle“.  The Plaintiff was injured and sued for damages.
Following the collision the Plaintiff’s mother (who was not a defendant in the lawsuit) “signed a written statement prepared by a representative of ICBC“.  The Defendant did not disclose this document in their list of documents.  The Plaintiff brought an application to compel production.  The Court granted this application and provided the following reasons:

[32] This second aspect of the plaintiff’s application is more straightforward.

[33] There is no evidence before the court which suggests that ICBC might have a statement from the plaintiff herself. The evidence addresses only the possible existence of statements made to ICBC by each of the plaintiff’s parents.

[34] The plaintiff’s mother deposes to having signed a written statement prepared by a representative of ICBC. Through defence counsel’s correspondence, the existence of such a statement is denied. The correspondence is not sworn evidence of either indirect or direct knowledge of the existence of this statement. In those circumstances, the court has no reliable evidence to weigh against the contrary evidence of the plaintiff’s mother. In the absence of such evidence, the order will go that ICBC is to produce to the plaintiff any written statement in its possession or control signed by Elvira Polianskaia.

ICBC Claims and Proper Objections to Examination For Discovery Questions

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure, Uncategorized. 130 Comments on ICBC Claims and Proper Objections to Examination For Discovery Questions

In one of the more in-depth judicial discussions of examinations for discovery in the context of a personal injury claims, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the scope of proper objections at a Plaintiff’s examination.
In today’s case (Nwachukwu v. Ferreira) the Plaintiff was injured in a 2006 collision.  In the course of the lawsuit the Plaintiff attended three examinations for discovery.  The Plaintiff’s lawyer raised numerous objections during these and the discoveries were ultimately cut short.  The Defendant brought an application directing the Plaintiff to answer the questions which were objected to and further for permission to conduct a lengthier examination for discovery pursuant to Rule 7-2(2).
Mr. Justice Willcock granted the application finding there was “significant obstruction” at the previous discoveries.  In doing so the Court provided the following helpful comments about the scope of discovery and of common objections:

[32] The scope of examination for discovery has recently been canvassed by this court in Kendall v. Sun Life Assurance Company of Canada, 2010 BCSC 1556; More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166; and Day v. Hume, 2009 BCSC 587.  In those cases, the court reiterated the following principles:  the language of Rule 7-2(18) is identical to the former Rule 27(22) and the scope of examination for discovery has remained unchanged and is very broad.  Rigid limitations rigidly applied can destroy the right to a proper examination for discovery.  Useful or effective cross-examination would be impossible if counsel could only ask such questions as plainly revealed their purpose.  An examination for discovery is in the nature of cross-examination.  Counsel for the party being examined should not interfere except where it is clearly necessary to resolve ambiguity in a question or to prevent injustice.

[33] The time limit established by Rule 7-2(2) creates a greater obligation on counsel for the party being examined to avoid unduly objecting or interfering in a way that wastes the time available.  A largely hands-off approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality.  Allowing wide-ranging cross-examination on examination for discovery is far more cost effective than a practice that encourages objections which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections.  It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial rather than on examination for discovery.  Where intervention is appropriate, the proper conduct of counsel is to state the objection to the form of a question and the reasons for the objection, but it is not appropriate to make comments, suggestions or criticism.

Applicable Law

[34] Many of the specific objections in issue are addressed in an article by John Shields and Howard Shapray published in The Advocate, Vol. 68, pt. 5 (September 2010) at page 671, referred to by Mr. Markham-Zantvoort in argument.

(a) Relevance

[35] Counsel objects to many questions on the grounds that they are not relevant.  In addressing these objections, I proceed from the proposition that counsel should have broad discretion to frame appropriate questions for the examination of the plaintiff, respecting the principles described in the cases to which I have referred.

(b) Confusion

[36] Counsel objects to many questions on the grounds that he finds them confusing.  In Cominco Ltd. v. Westinghouse Canada Limited (1979), 11 B.C.L.R. 142 (C.A.), the Court of Appeal at para. 19 held:

If a question is difficult to answer, the witness can say so and can be cross-examined about the difficulty. It is for the witness, not counsel, to deal with that.  Difficulty in answering does not exclude a whole area. It excludes specific questions.  No area of fact is closed on the ground that to enter it would “open the floodgates”.

(c) Repetition

[37] Counsel objects to questions he considers repetitive.  As Shields and Shapray note, “asked and answered” is not an appropriate objection in Canada.  Madam Justice Boyd in Rec Holdings Co. v. Peat Marwick Thorne Holdings, [1995] B.C.J. No. 1964 (S.C.), held at para. 9:

It is trite law that an examination for discovery is in the nature of a cross-examination.  While there will be situations in which repeating the same allowable question over and over on cross-examination may amount to intimidation, the Court must be slow to interfere where that tactic is used relatively sparingly and particularly in circumstances in which there are good grounds for the cross-examiner’s belief the witness may be falsifying his evidence.

(d) Inadequate Foundation

[38] Shields and Shapray say there is no requirement that a foundation be laid for a question.  In Cominco, the court noted at para. 632:

The objection is that no foundation was laid for the questions.  That suggestion does not appear to have been made at the time and I think that, if one objects, one should say why.  Presuming that this objection can now be made, I merely say that I know of no requirement that a foundation be laid.  None was cited to us.  Those questions should have been answered by the witness without interruption by counsel.

(e) Compound Questions

[39] Counsel routinely objected to questions that he considered to be compounded questions.  Shields and Shapray say, properly in my view, that objection to the form of question should be used sparingly.

(f) Privelege

[40] Counsel objected, at the most recent examination, when the plaintiff was asked what he alleges or says in relation to the claim.  The plaintiff cannot be asked what counsel told him about his claim or how the case will be framed at trial.  He may not be asked how much he will say he has lost, if the answer requires disclosure of an opinion obtained by the solicitor.  Question 1152 on the examination for discovery seems to seek such information.

[41] The witness cannot be asked to disclose how the facts having assembled, weighed or analysed by counsel.  That is what was offensive in the general requests considered by the court inTriathlon Ltd. v. Kirkpatrick, 2006 BCSC 890.  The questions asked in that case were held to offend the description of the privilege afforded to the solicitor’s brief in Hodgkinson v. Simms(1988), 33 B.C.L.R. (2d) 129 (C.A.).  It was the manner of getting at the work product by asking what facts had been assembled by counsel or what facts would be relied upon, rather than by asking about specific facts, that was objectionable.  The manner in which facts have been marshalled is a question going to trial strategy.  It is for that reason that I expect that counsel have included in the book of authorities Blue Line Hockey Acquisition Co., Inc. v. Orca Bay Hockey Limited Partnership, 2007 BCSC 143, although no express reference was made to it in oral submissions.  In that case, questions were held to be objectionable because of what was being sought: conclusions reached by counsel, rather than the evidence of the witness.

[42] Questions that intrude upon privilege are generally objectionable.  That is expressly reflected in Rule 7-2(18).  Care should be taken to protect the solicitor/client relationship.

Chambers Advocacy: Legal Authorities To Be Disclosed in Notice of Application

Written by admin on . Posted in BCSC Civil Rule 8, Civil Procedure, Uncategorized.


One of the ongoing trends in civil litigation is a trend to greater pre-trial disclosure.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing this principle finding that caselaw should be disclosed ahead of Chambers Applications to avoid “chambers by ambush“.
Last week’s case (De Corde v. De Corde) involved a motor vehicle collision.  The Defendant brought a short notice application to compel the Plaintiff to be assessed by a psychiatrist.  The application was dismissed and in doing so Master Bouck provided the following feedback about case-law disclosure for Chambers applications:

[65] The defence took exception to plaintiff’s counsel relying on authorities that were not cited in the response to the notice of application. In fact, the plaintiff makes no reference to any case law in her response. In contrast, the defendants prepared a comprehensive notice of application – including a synopsis of the legal basis for the application with reference to all of the authorities presented in oral argument.

[66] The defence position is not without merit. Both the notice of application and response under the SCCR invite a party to provide a thoughtful written synopsis of legal argument. A properly prepared notice of application or response ensures that the opposing party knows the argument to be met. Thus, there should be no longer be occasion for “chambers by ambush”.

[67] Indeed, in my view, it should be only in the rare instance that a party will surprise the other by citing in oral argument authorities not mentioned in these forms.

[68] Nonetheless, an application brought on short notice would seem to me to be one of those rare instances. Plaintiff’s counsel should not be faulted for any apparent omission in a response necessarily prepared on the eve of the application.

$70,000 Non-Pecuniary Damage Assessment for Subligamentous Disc Herniation

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Spine Injury Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Kamloops Registry, assessing fault and damages stemming from a 2006 motor vehicle collision.
In last week’s case (Power v. Carswell) the Plaintiff was involved in a two vehicle collision in Kamloops, BC.   The Defendant blew a red light while attempting a left hand turn and collided with the Plaintiff’s vehicle.  Although he denied liability the Court found him fully at fault.
The Plaintiff suffered various injuries in this collision the most serious of which was a subligamentous disc herniation at L4-L5.

She was expected to have chronic lower back pain as a result of this injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $70,000 Madam Justice Gray provided the following reasons:

[178] Ms. Power suffered moderate soft tissue injuries to her chest, left neck, left shoulder, and lower back in the Accident. The Accident caused a subligamentous disc herniation at L4-L5 which has caused her significant pain in her lower back. Despite painful treatment by cortisone injections into her hips and epidurally, her pain persists.

[179] Ms. Power now experiences hip and lower back pain which limits her ability to sit, stand, walk, and bend. She also experiences shoulder pain which limits her ability to hold her hands near or above shoulder level. As a result of these limitations, she can no longer work as a hairstyling teacher. Ms. Power made significant efforts following the Accident to continue in that line of work, but even with significant modifications, she was not able to do so on a prolonged basis. She has made the reasonable decision to pursue a different career which will more likely suit her physical capacity.

[180] As a result of her injuries, Ms. Power is also less able to care for herself and her family. For example, she has difficulty styling her own hair and doing laundry and other chores.

[181] As a further result of her injuries, Ms. Power suffers pain and is less able to enjoy recreational activities. For example, she is less able to go on long walks, to dance, and to sit for long drives or movies…

[188] In all the circumstances, an appropriate award for Ms. Power’s non-pecuniary losses is $70,000.

Sex Abuse Settlements and the "Re-Victimization" of Confidentiality Agreements

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

Earlier this year I posed the question “are secret sex abuse settlements unethical?“.
This question was raised in the face of CBC’s reporting that Scouts Canada settled sex abuse claims and that confidentiality was a staple term.  CBC has continued to follow this matter.  Scouts Canada has softened their approach with respect to these settlements and now CBC reports that a historic abuse victim welcomes this development stating “It means freedom to speak as I wish — should I choose to speak — or not speak.”

When asked about the consequences of the confidentiality agreement following settlement CBC reports the following quote attributed to the victim of historic abuse “In a sense, you are revictimized...You become the isolated person who has to not tell anybody what the most important thing in your life is.”
Given this profound burden I repeat the question, is there any greater good that comes from the enforcement of these confidentiality agreements which outweighs their harm?

Court Can't "Ride Roughshod" Over Solicitor's Brief Privilege At a Case Planning Conference

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 5, BCSC Civil Rule 7, Civil Procedure, Uncategorized. 64 Comments on Court Can't "Ride Roughshod" Over Solicitor's Brief Privilege At a Case Planning Conference


Reasons for judgement were recently brought to my attention discussing the scope of powers of the Court at Case Planning Conferences. Specifically the Court found that Rule 5-3 does not provide the power to over-ride common law principles of privilege.
In the recent case (Galvon v. Hopkins) the Plaintiff was injured in a motor vehicle collision. She sued for damages. As the lawsuit progressed the Plaintiff did not provide any expert medico-legal evidence to the Defendant.
This concerned the Defendant who brought a Case Planning Conference and obtained an order requiring the Plaintiff to “notify counsel for the defendant of the name of the neurologist with whom the appointment had been made and the date of the appointment, and secondly, that the parties were to provide opposing counsel with written notice forthwith upon any appointment being set for the plaintiff with medical experts, such notice to include the name of the expert, the expertise of the expert, and the date of the appointment“.
The Plaintiff appealed arguing that the Court did not have jurisdiction to make such orders under the Rules of Court. Madam Justice Kloegman agreed and allowed the appeal. In doing so the Court provided the following reasons:
21. I agree with counsel for the plaintiff’s submission that Rule 5-3 cannot be read as to allow the Case Planning Conference Judge or Master to disregard the common law principle of privilege.
22. In my view, Master Bouck was fixated upon settlement of the litigation; always a commendable and important goal of a case planning conference, but not at the cost of ignoring the boundaries of her jurisdiction. It may well be that such information could have been exchanged at a settlement conference, which is a voluntary and without prejudice process, but it should not be mandated as part of trial preparation.
23. …She did not appear to consider that the object of the Rules to avoid trial by ambush only apply to evidence that would be used at trial, not to expert advice received through consultation.
24. By requiring the plaintiff to disclose the very fact of her attendance before a medical expert, and run the risk of an adverse inference if she did not call the expert at trial, the master was also interfering with the plaintiff’s right to elect which witnesses to call. Such interference is not sanctioned, or warranted, I might add, by our Supreme Court Rules.
25. Having concluded that our Rules do not grant the presider at a case planning conference the power to make the orders made by Master Bouck, it follows that she did not have the jurisdiciton to do so.
26. The appeal is allowed and Master Bouck’s orders will be set aside.