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The Law of Indivisible Injury Compensation Concisely Summarized

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Rib Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 75 Comments on The Law of Indivisible Injury Compensation Concisely Summarized


If two or more events cause a single “indivisible injury” a Defendant who in part contributes to the injury can be held accountable for the entire loss.  This legal principle was concisely summarized in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Estable v. New) the Plaintiff was injured in a 2003 motor vehicle collision.  She suffered previous and subsequent trauma.  The Court found that while not the sole cause, the collision was a cause of the Plaintiff’s various soft tissue injuries.  The Plaintiff was compensated for these and in doing so Madam Justice Gropper provided the following short and helpful summary of the law of indivisible injury compensation:

[53] Divisible injuries are those which are capable of being separated out, such as injuries to different body parts or injuries to which the defendant has not contributed: Bradley, at para. 20; see also Athey, at paras. 22-25. Whether damage derived from multiple sources is divisible for the purpose of determining the extent of the liability of one defendant is a question of fact: Hutchings v. Dow, 2007 BCCA 148 at para. 13.

[54] If the injuries are divisible, the devaluation approach from Long v. Thiessen (1968), 65 W.W.R. 577 at 591 (B.C.C.A) is the appropriate method for determining the amount of damages that can be attributed to the defendant. This was discussed in Bradley at para. 33:

[33] The approach to apportionment in Long v. Thiessen is therefore no longer applicable to indivisible injuries. The reason is that Long v. Thiessen pre-supposes divisibility: Long requires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial. Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[emphasis in original]

[55] Indivisible injuries are those that cannot be separated, such as aggravation or exacerbation of an earlier injury, an injury to the same area of the body, or global symptoms that are impossible to separate: Bradley, at para. 20; see also Athey, at paras. 22-25.

[56] If the injuries are indivisible, the court must apply the “but for” test in respect of the defendant’s act. Even though there may be several tortuous or non-tortuous causes of injury, so long as the defendant’s act is a cause, the defendant is fully liable for that damage: Bradley, at paras. 32-37; see also Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 19-23.

In assessing the Plaintiff’s non-pecuniary damages at $30,000 the Court made the following findings with respect to her injuries:

[60] I find that Ms. Estable’s remaining complaints were aggravated or exacerbated by the October 2003 injuries. These complaints include: pain in her neck, pain in her left and low back, and pain in her left anterior shoulder. They also include the injury to her sternum, although I find, based on the medical evidence, that this injury was a soft tissue injury and not a fracture.

[61] Applying the principles from Bradley, Ms. Estable has a claim against Mr. New for these complaints because they are indivisible; Mr. New’s negligence aggravated or exacerbated those injuries. While the post accident injury producing events may also have had a similar effect, Ms. Estable can recover her damages entirely from Mr. New. There may be other tortfeasers who are jointly liable, but Mr. New’s right to apportionment among them does not affect Ms. Estable’s right to claim the entire amount from him…

[77] Applying the enumerated factors, Ms. Estable is now 56 years old. She suffered soft tissue injuries of the cervical and lumbar spine and to the left shoulder. She suffered a chest contusion and the possibility of sternal fractures or rib fractures. Her injuries have caused her to change her lifestyle; she is unable to engage in performance art or yoga…

[81] I assess Ms. Estable’s non-pecuniary damages at $30,000.

More on the Prohibition of Recording Court Ordered Medical Exams

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


Reasons for judgement were published this week demonstrating that while the BC Supreme Court has discretion to permit a Plaintiff to tape record a Court-ordered medical exam, this discretion is rarely exercised.
In this week’s case (Colby v. Stopforth) the Plaintiff and her litigation guardian were ordered to attend a series of medical exams.  The Plaintiff sought permission to tape record these.  Madam Justice Dardi refused to allow this and in doing so provided the following comments:

[18] However, that is not the end of the analysis. I must next consider whether in the unique circumstances of this case the plaintiff has nonetheless adduced cogent evidence that the use of an audiotape would advance the interests of justice.

[19] The plaintiff forcefully argues that the audio recordings are required to protect Mr. Rogers. The plaintiff’s overarching concern is the potential for an evidentiary conflict between Mr. Rogers and an examiner, particularly given that Mr. Rogers is a key witness whose credibility will be a central issue at trial. Mr. Rogers also asserts that he requires this procedural safeguard because of his status as Ms. Colby’s committee—as a fiduciary he is required to act in her best interests.

[20] The court in Wong observed that a medical examination, although part of the discovery process, is quite different in nature from statements made to an independent medical examiner and cannot be equated with the statements taken under oath on an examination for discovery: Wong at paras. 27-29.

[21] As I mentioned in my earlier ruling, I am not persuaded that the potential for an evidentiary conflict between Mr. Rogers and the examiners is, in itself, a cogent reason for ordering an audio recording. Plaintiffs routinely answer questions at independent medical examinations, as they are required to do under the Rules, when their credibility is at issue.

[22] Nor upon careful consideration am I persuaded on the evidence that Mr. Rogers’ status as a committee, in itself, is a sufficiently compelling or cogent reason to warrant the use of an audio recording. To permit the use of audio recording here would be to place Mr. Rogers in a preferred or advantageous position to that of a plaintiff who attends an independent medical examination on his or her on behalf. There may be cases where it is appropriate that a litigation guardian or committee should be permitted the opportunity to have the independent medical examination audio recorded, but on the evidence adduced this is not one of them.

[23] In summary, the evidence in this case falls short of establishing that the use of an audiotape recording would advance the interests of justice. Based on the reasoning articulated by the Court of Appeal in Wong, I cannot conclude on any principled basis that the plaintiff has met the onus in the circumstances of this case for showing that the use of an audiotape recording at the independent medical examinations will advance the interests of justice. I therefore decline to make any orders in this regard.

For more on this topic you can click here to access my archived posts discussing recording what transpires at independent medical exams.

ICBC Applications to Transfer Lawsuits to Provincial Court Discouraged

Written by admin on . Posted in Civil Procedure, Uncategorized.


Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, dismissing an ICBC application to transfer a Plaintiff’s lawsuit to Small Claims Court.
In this recent case (Kooner v. Singh) the Plaintiff was injured in a 2009 collision.  He sued for damages in the BC Supreme Court.  Following examinations for discovery the Defendant applied to transfer the claim to Small Claims Court.  Mr. Justice McEwan dismissed the application.  He reiterated some concerns he voiced earlier this year and provided the following reasons generally discouraging these types of applications:

[3] I have commented on other occasions about these applications.  They amount to the Supreme Court being asked to summarily determine that damages could not possibly exceed $25,000 and also to accept that a trial in Provincial Court is the most expeditious way to deal with the action.  On the basis of the material before me, it is not possible to say that the case could not exceed $25,000.  The plaintiff wishes to have the matter heard in Supreme Court, and it would only be on the clearest basis that the court would act to deprive a person who wished to be heard in the Supreme Court of the right to do so.

[4] I am not prepared, on the basis of the material, to summarily find that there is no possibility of the trial establishing damages in excess of $25,000, nor am I in a position to assess whether or not the liability aspect of the claim would foreclose the possibility of such damages.  It seems to me that the defence must be seeking the limitation of $25,000 because there is very little else that would suggest a motivation for such claims.  It is not, as it may once have been, obvious that the Provincial Court is equipped to hear these matters more expeditiously or more cheaply, particularly given the point at which this application is brought, post-discoveries, after most of the expenses that go into a Supreme Court trial have been incurred.  My understanding of the current state of hearing day fees, as such, is that there are none for the first three days of trial.  So that is not a factor.  There was a suggestion before me that the informality of the Provincial Court is an advantage, but unless that informality is tied to reduced time in court, which is not at all clear, I fail to see how that, in itself, results in any particular economy.

[5] I think it should be clear that parties have a right to elect the court in which they bring their actions and that, in doing so, if they persist, they run certain risks.  Those risks, in the case of a plaintiff’s action brought in Supreme Court that should have been brought in Small Claims Court, include the penalty of not receiving costs in the case of success, and also include the hazard, if an offer to settle is made, of double costs in accordance with the Rules setting out those penalties.  It appears from the vantage of the bench that it is much more in the defence interest that the matter remain in Supreme Court than that this application succeed, unless, as I have said, what is really sought is a summary assessment of the case on the basis of very limited information, to bring the matter in under $25,000.  Given the hazards (which the plaintiff is aware of), I am of the view that the plaintiff is entitled to bring the matter in this Court if that is what the plaintiff wishes to do.

[6] I have said as much on the previous occasion of Chang v. Wren in oral reasons given June 10, 2011.  I see no reason to stray from the outcome in that case which was to the effect that unless the court were persuaded that damages could not possibly exceed $25,000 the plaintiff should not be deprived of the opportunity to convince a court that their damages exceed that amount.  I considered it most unsafe to summarily decide a case on the basis of descriptions that do not include the actual evidence of the parties.  Courts certainly have the experience of being persuaded that cases that did not appear to be worth a great deal turn out to be worth much more once they have been heard.  I will also say, as I said in Chang v. Wren, that I am absolutely not persuaded by any efficiency or cost-saving argument, particularly where, as here, the application is brought at a point post-discovery.  There is very little process to avoid at this point and, for the reasons I have already indicated, it is not at all clear that there are cost savings to be realized.

[7] Accordingly, I dismiss this application.

Welcome Vancouver Sun Readers

Written by admin on . Posted in BC Injury Claims Media Archives, Occupier's liability claims, Uncategorized.


Earlier this week I had the pleasure of being briefly interviewed by Gordon Hoekstra of the Vancouver Sun who was authoring a story on waivers of liability for sports organizations.  In short the article emphasized the need for organizations to clearly bring liability waivers to the attention of those signing them otherwise there is risk that the waivers will be ineffective.
For those of you who are visiting this site looking for more information addressing this topic you can click the following link to access my archived posts discussing waivers of liability in BC Injury Claims.

Circumstantial Evidence and ICBC Unidentified Motorist Claims

Written by admin on . Posted in ICBC Liability (fault) Cases. 54 Comments on Circumstantial Evidence and ICBC Unidentified Motorist Claims

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dismissing a Plaintiff’s ICBC Claim alleging that an unidentified motorist caused a significant collision.
In last week’s case (Paguio v. Fraser) the Plaintiff was injured when his scooter collided with another vehicle.  The Plaintiff suffered a “serious head injury” and his ability to give evidence surrounding the circumstances of the crash were limited.
The Plaintiff conceded that the vehicle he collided with did nothing wrong but alleged that an unidentified motorist cut the plaintiff off forcing him into the other vehicle.  Mr. Justice Williams rejected this argument concluding that on a balance of probabilities the evidence did not support such a finding.  Prior to doing so the Court listed the following applicable principles when faced with a claim based on circumstantial evidence:

[60] …I must be guided by certain basic concepts that govern the approach that must be taken to the proof of a plaintiff’s case where it rests on a base of circumstantial evidence. In Tweedie v. ICBC, 2002 BCSC 1937, Mr. Justice Wilson provided a helpful discussion of the approach that must be taken to the proof of a plaintiff’s case where it rests on a base of circumstantial evidence and provided reference to the applicable authorities.

[61] The principles as I understand are these:

(a)      Where a case is not proved by direct evidence, the court will carefully examine and consider the relevant circumstantial evidence.

(b)      Circumstantial evidence derives its effect through the process of the trier of fact drawing reasonable inferences. That is a cognitive process whereby, once certain facts are established or proven, then a logical conclusion is considered. It is the process of reasoning from a proven fact or facts to a reasonable, rational and logically legitimate conclusion.

(c)      The drawing of an inference is different than mere conjecture or a guess, no matter how shrewd or plausible that guess might be.

(d)      An inference, once properly drawn, must give rise to a reasonable conviction in the mind of the trier of fact that the element of which proof is necessary is at least more likely than not, or to some greater degree of certainty.

(e)      The plaintiff can succeed in proving his case on the strength of a reasonable inference which gives rise to a conclusion that the element has been proven on a balance of probabilities. If the inference does not support the conclusion to that standard, then the proof is not made out.

[62] In the final analysis, applying these guiding principles, and having examined the evidence carefully, I have concluded that the circumstantial evidence proffered by the plaintiff does not enable me to find that the case has been proven to the necessary standard. The plaintiff has not met the onus of proof he bears to establish his claim and it must therefore stand dismissed.

"Very Faint Small" Waiver Agreement Held Unenforceable

Written by admin on . Posted in Uncategorized.


Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, finding that a waiver of a Plaintiff’s right to sue was not enforceable where the agreement was set out in a “very faint small red type“.
In this week’s case (Arndt v. The Ruskin Slo Pitch Association) the adult Plaintiff joined a recreational soft ball league.   Prior to playing the Plaintiff filled out and signed a roster.  At the bottom of the roster was a clause stating “I agree to waiver” the terms of which were set out on the back of the roster.
The Plaintiff was injured in the course of one of her games.  She sued for damages.  The Defendant applied to dismiss the claim relying on the waiver arguing that “the Plaintiff cannot escape from the consequences of the waiver merely by stating that she thought she was signing a roster and did not appreciate it was also a waiver“.
Madam Justice Humphries disagreed and found in these circumstances the waiver should not be enforceable.  In dismissing the Defendant’s motion the Court provided the following reasons:
[36] On the affidavit and discovery evidence before me, I accept that the plaintiff thought she was signing a team roster and that she did not know it was a waiver of liability.  However, the defendants are correct in stating that that is not the end of the enquiry. ..

[44] The document, looked at on its face, does not appear to be a waiver.  It appears to be a roster.  The attention of the person asked to sign it as a roster would inevitably be drawn to the lines in the box for the team signatures and information.  While there is red type above the box requiring the person to “READ AND UNDERSTAND BACK OF PAGE BEFORE SIGNING” there was, on the evidence on this application, no direction or information given by the coach who presented the document attached to a clipboard, to be handed around and signed by the team at the first practice.  The words “I agree to waiver” on the signature lines are so faint as to almost undetectable.  Unlike the waivers that have been held to be enforceable in the cases referred to above, the release is not a separate sheet and the waiver and signature are not on the same page.  The back of the form requires the coach to advise the people on the list that they are fully responsible for any damages “incurred by them”.  That was not done, nor was any step taken by the defendants to ensure it had been done.

[45] If the defendants wanted to ensure that they were released from liability it would be a simple matter to have individual release forms prepared and signed by each player.  The defendants had no means of determining if the plaintiff understood the document because they did not present it to her, leaving its nature to be explained by coaches or managers who did not do so.  The form of the document itself and the circumstances under which it was presented for signature are not such that a reasonable observer would understand its nature.  I am unable to conclude that the defendants took reasonable steps to have the nature of the document as a waiver rather than a team roster brought to the plaintiff’s attention.

[46] I conclude, on the information before me, that the waiver is not enforceable against the plaintiff.  It is not necessary to deal with the plaintiff’s additional arguments respecting consideration and the failure to date the document.

Paragraph 27 of this case is worth reviewing for the Court’s short and helpful summary of 8 other BC cases dealing with waivers.

Left Hand Turning Vehicle Found Faultess for Intersection Crash

Written by admin on . Posted in ICBC Liability (fault) Cases. 54 Comments on Left Hand Turning Vehicle Found Faultess for Intersection Crash

Motorists are entitled to commit to an intersection and wait until its safe to proceed prior to making a left hand turn.  If the light turns red prior to a safe moment arriving it is appropriate for a motorist to wait that long prior to completing their turn.  In such circumstances a turning motorist can be found fully faultless if a collision occurs which was demonstrated in reasons for judgement released last month by the BC Supreme Court, Vancouver Registry.
In last month’s case (Henry v. Bennett) the Defendant was driving NorthBound on King George intending to make a left hand turn on 68th Avenue.  At the same time the Plaintiff was travelling Southbound on King George intending to drive through the intersection.

The Court found that the Defendant entered the intersection on a green light.  She waited for a gap in traffic.  The light eventually turned amber and then red.   Southbound traffic visible to the Plaintiff stopped.  She began her turn when the Plaintiff came through the intersection and the collision occurred.  The Plaintiff sued for damages but the claim was dismissed with the Court finding him fully at fault for entering the intersection on a red light when it was unsafe to do so.  In finding the Defendant faultless Madam Justice Ballance provided the following reasons:






[72] Ms. Bennett was in a position remarkably similar to that of the plaintiff in Kokkinis. Although she did not see Mr. Henry prior to the collision, Kokkinis indicates that it does not necessarily follow that she was in any way negligent. Having said that, I wish to clarify that I do not read Kokkinis as standing for the proposition that left-turning drivers are entitled to proceed blindly on the assumption that oncoming drivers will obey the rules of the road, without regard to their concurrent obligation to act reasonably as the circumstances dictate. In my view, Ms. Bennett was entitled to proceed on the assumption that oncoming traffic, including Mr. Henry, would act in accordance with the law and come to a stop on the late amber, absent any reasonable indication to the contrary and provided she comported herself with reasonable care. Here, there was no contrary indication from Ms. Bennett’s standpoint. Indeed, she could see that the SUV across from her had complied with the rules and she was aware as well that the flow of straight through traffic had ceased some seconds earlier. She had no reasonable indication that oncoming traffic in the form of Mr. Henry would proceed through the intersection in clear violation of the rules of the road. Moreover, I find that in all the circumstances she conducted herself prudently and with reasonable care in negotiating her left turn. In contrast, Mr. Henry knew or reasonably ought to have known that in all likelihood Ms. Bennett would have carried through with her left turn at the final stage of the amber light, and most assuredly when the signal turned red. He created an extremely unsafe situation in failing to come to a stop.

[73] I endorse the case authorities that cast doubt over the legitimacy of portraying a driver in Mr. Henry’s shoes as having the presumptive right-of-way or otherwise qualifying as the dominant driver for the purposes of assessing liability using the Walker paradigm: see, for example, Snow v. Toth, [1994] B.C.J. No. 563 (S.C.); Shahidi v. Oppersma, [1998] B.C.J. No. 2017 (S.C.); Ziani v. Thede, 2011 BCSC 895. The dominant/servient driver analysis in Walker is predicated on the footing that the dominant driver has proceeded lawfully and, it seems to me, is of utility in that circumstance only. I, therefore, question whether that framework is of any assistance to a driver like Mr. Henry, who has acted in breach of his statutory duty. In any case, it cannot be said that Ms. Bennett attempted to execute her turn in complete disregard of her statutory duty to yield, which is an integral component of the Walker analysis. Indeed, it is my view that Ms. Bennett can be validly characterized as the dominant driver in the circumstances. There is no cogent evidence to remotely suggest that she could have avoided Mr. Henry by the exercise of reasonable care. To formulate it in the terms of s. 174, Ms. Bennett posed an immediate hazard to Mr. Henry, which he should have appreciated, and it is he who ought to have yielded the right-of-way.

[74] Based on the foregoing, I am satisfied that the accident was caused solely by the negligent driving of Mr. Henry. As he is entirely at fault for the accident, his claim is dismissed.







More on the Prohibition of Written Arguments in Chambers

Written by admin on . Posted in BCSC Civil Rule 8.


Earlier this year Master Bouck released reasons for judgement discussing the Rule 8-1(16) prohibition of written argument in Chambers applicaitons finding as follows:
Since July 1, 2010 and pursuant to Rule 8-1(16), a written argument may only be presented to the court if the application consumes more than two hours.  There is no discretion under the Rule to receive written argument in other circumstances.  This application was estimated to be heard in 35 minutes but took one hour.
Thus, no written argument can or should have been considered by the court.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, taking a less restrictive view.  In this week’s case (Simon Fraser University v. A & A Plumbing & Heating Ltd.) Master McDiarmid provided the following feedback about this limitation recognizing that appellate intervention or rules revision may be necessary:

[9] At the outset of the applications, plaintiff’s counsel handed me a 10-page document entitled “Plaintiff’s Submissions”.

[10] Defendant’s counsel objected.

[11] Her objection arises from Rule 8-1(16), which reads:

Unless an application is estimated to take more than 2 hours, no party to the application may file or submit to the court a written argument in relation to the application other than that included in the party’s notice of application or application response.

[12] The “Plaintiff’s Submissions” document was essentially the oral submissions I heard, written out. I found it helpful to have the document which included references in the affidavits to the facts set out in the notice of application.

[13] The concern, of course, is that the plaintiff had an unfair advantage. I was alive to that concern.

[14] I interpret “written argument” to refer to an expansion of Parts 2 and 3 of the notice of application by the addition of facts and/or by the raising of legal issues which takes the opposition by surprise.

[15] The “Plaintiff’s Submissions” document did not in my view raise additional facts; nor raise additional legal issues, and thus was not “written argument” within the meaning of Rule 8-1(16).

[16] This is a new provision in the Rules designed to ensure that sufficient details of the applicant’s argument are disclosed in the notice of application so that the response can deal with all points sought to be argued by the applicant. Presumably, the subrule is also aimed at reducing costs.

[17] The question is: does Rule 8-1(16) prevent the presentation of helpful written submissions which do not create surprise arguments and issues?

[18] I have decided it does not.

[19] Counsel’s objection raises a point which may need to be dealt with further, either by appeal from this decision or, preferably, clarification to the Rules. Provision of these sorts of documents is quite common. I will bring this matter to the attention of the Rules Committee. That does not, and is not intended to, forestall an appeal.

Tort Reform For The Better: Adding Liquidity to Dry Judgements

Written by admin on . Posted in ICBC Brain Injury Cases, Tort Reform, Uncategorized. 61 Comments on Tort Reform For The Better: Adding Liquidity to Dry Judgements


Below is a brief article which was first published yesterday at Slaw.ca, one of Canada’s best read and most recognized legal blogs.  For your convenience I republish the article here in its entirety.  If you find this topic of interest I suggest you visit the original article and weigh in on the comments that follow.
___________________________________________________________________________________________
I’ve written many times that the phrase tort ‘reform‘ is often used in association with efforts to strip the rights of injury claimants.  Reform, however, is a neutral concept in and of itself.  Reform simply means change and the change could be for better or worse.  With this in mind  I’d like to share a tort reform idea for the better which recently crossed my mind.  In short the idea is to add a pool of liquidity to rectify the injustice of dry judgement.
The thought crossed my mind as I was reading reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.  In this week’s case (Saether v. Irvine) the Plaintiff was injured when the Defendant battered him.  The consequences were “profound and catastrophic” causing a brain injury that “severely compromised (the plaintiff) in virtually all facets of his life“.  Damages of $1,075,000 were assessed to cover the Plaintiff’s anticipated future care costs alone.  Given the fact that this case involves an intentional tort it is a safe bet that this judgement will be uninsured and likely (at least partially) dry.
Reading this reminded me of a 2005 case (Chow v. Hiscock) where the Court expressly recognized the injustice of dry judgement facing a plaintiff left “in a permanent semi-vegatative state” following a “brutal, unprovoked assault“.  The Plaintiff’s future care costs were anticipated to exceed $4,000,000.  Madam Justice Koensberg made the following comments hoping the Plaintiff would some day be able to receive some of these funds from the uninsured defendants:
[40]           Can I say that this is still a case where punitive damages should be awarded?  If I were to award punitive damages, it would be purely symbolic.  I have heard nothing which indicates that the magnitude of this award or even some small part of it is likely to be payable by any of these three young men.  One can hope that they find a straight path to earn a significant amount of money or that one even wins the lottery, so that the earnings could be available to increase Mr. Johnson’s quality of life.
The law recognizes that those harmed through the fault of others are entitled to reasonable compensation.  When it comes to negligently caused harm defendants are often insured and plaintiffs can collect their judgements.
In cases where Defendants hold inadequate insurance examples can be found where legislatures have intervened to ensure victims can collect on their judgments.  For example, in BC, Section 20 of the Insurance (Vehicle) Act provides a pool of $200,000 of available compensation from ICBC for damages caused by uninsured motorists.  A further example is the requirement for BC motorists to purchase a minimum of one million dollars of under-insured motorist protection coverage.
When plaintiffs suffer harm through intentional torts, however, there often is no insurance to protect the wrongdoer or compensate the victim.  This is an unfair reality in Canadian law.  Victims harmed through assault, battery, sexual molestation and other intentional acts are often faced with dry judgments.  When they seek legal advice they are often turned away being told that litigation may not be worth the effort unless the Defendant has deep pockets
There is no justification I can think of making it fair for a car crash victim to be able to collect their judgement from a pool of money created by the government when the victims of crime are left with dry judgments.
The financial well being of a defendant has no bearing on a victim’s right to damages.  If the government has seen fit to create a pool of funds for victims of motor vehicle collisions to collect from surely a similar system can be created to allow victims of intentional torts facing dry judgments.  This is a rough idea.  Thoughts and feedback are welcome from lawyers and non-lawyers alike.

Woodlands Survivor Class Action Application Deadline Extended to September 2012

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

Earlier this year the BC Supreme Court refused to approve a class action settlement involving historic sexual abuse claims where the proposed settlement would impose a limitation period for class members where one would not otherwise exist.  Further reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with the balancing act of sexual abuse class action settlements and imposed limitation periods.
This week’s case (Richard v. British Columbia) involved the Woodlands school class action settlement which was initially approved on July 7, 2010.  One of the terms of the settlement required class members to advance their claims by September 19, 2011.  The deadline came and went and due to the complexity of the claims only a handful met the filing deadline.  An application was brought to extend this deadline.  Such applications were contemplated in the original settlement agreement.
Mr. Justice Bauman agreed that an extension was appropriate although declined the Plaintiff’s request for an indefinite extension.  Instead the Court moved the claims deadline to September 19, 2012 “without prejudice to the plaintiffs’ right to apply for further extensions“.  In striking this balance the Court provided the following comments seeking to reconcile the need for certainty in resolution against the need to protect BC sex abuse victims who generally aren’t faced with a limitation period in advancing their civil claims for damages:
[17]         I agree with the defendant that the application requires the Court to strike a balance between the parties which recognizes that in the give and take of the settlement negotiation process, each side made compromises to achieve their respective goals. It would be unfair, after the fact, to effectively take from one party a critical part of what it gained in the process through negotiation and compromise.
[18]         But in all the circumstances of this settlement, I do not believe that a substantial extension of the claims deadline can be so construed (especially in light of the fact that no limitation period attaches to these claims or at least a very substantial number of them). Still, an indefinite extension is not appropriate. I would, at this time, extend the claims deadline by one year to 19 September 2012, without prejudice to the plaintiffs’ right to apply for further extensions. It is not appropriate to condition this extension, as the defendant proposes, by requiring the Class Members to file a so-called “without prejudice interim claim” within three months. In my view, such a condition would effectively make the claims deadline extension illusory in the circumstances of the difficulties facing the plaintiffs and their counsel in advancing the claims process.