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Advance Payment Orders and Your ICBC Injury Claim

Written by admin on . Posted in BCSC Civil Rule 13. 82 Comments on Advance Payment Orders and Your ICBC Injury Claim


While Defendants in lawsuits are generally not obliged to make any advance payments to a Plaintiff, in unique circumstances the BC Supreme Court can compel a Defendant to pay an advance.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this judicial power and the circumstances when it should be exercised.
In last week’s case (Gill v. West) the Plaintiff was involved in 10 motor vehicle accidents for which he was suing for damages.  Liability was admitted in some of the actions.  The Plaintiff alleged that the various crashes caused indivisible injuries and he was disabled as a result.  He applied for various orders including an order that he be advanced “$150,000 forthwith on account of damages“.   Madam Justice Wedge dismissed the Plaintiff’s request and in doing so provided the following comments on this area of the law:

[8] The plaintiff is frank to admit that it seeks the order concerning liability in the one action, and the order to have the fourth action heard with the other three, for the express purpose of obtaining the advance payment order. The plaintiff acknowledged he cannot obtain an order for advance payment of damages unless it is granted in conjunction with another order.

[9] In the case of Lines v. Gordon (2009), 90 B.C.L.R. (4th) 52 (C.A.), our Court of Appeal made it clear that the Rules of Court do not give this Court jurisdiction to make a stand alone order for an advance payment of damages, nor does this Court have inherent jurisdiction to do so.

[10] In the Lines decision, the Court referred to the wording of then Rule 1(12), now Rule 13-1(19), which states as follows:  “When making an order under these Rules, the court may impose terms and conditions and give directions as it thinks just.”  Based on that wording — and specifically the words “when making an order under these Rules,” — the Court in Lines stated that there must be a temporal connection between an order for an advance payment and another order…

[17] I will now turn to the law governing this application. While Lines v. Gordon states that there must be a temporal connection between the order for advance payment of damages and the granting of another order, temporal proximity is only one factor. More broadly, the order for advance payment must be a just one in all of the circumstances:  Serban v. Casselman (1995), 2 B.C.L.R. (3d) 316 (C.A.).

[18] The question is always whether the circumstances of the primary order, in conjunction with which the advance payment order is sought, are sufficiently compelling to justify an advance payment of damages. The authorities make clear that a payment of damages in advance of trial is only to be made in exceptional circumstances arising from the making of the primary order. For example, where the defendant applies for an adjournment of a personal injury trial and the plaintiff’s circumstances are financially tenuous, it may be just in the circumstances to order an advance payment of damages in conjunction with the order for an adjournment. However, such an advance payment order will not be made unless the judge is completely satisfied there is no possibility the assessment of damages at trial will be less than the amount of the advance payment:  Serban v. Casselman. Further, the court will exercise its discretion to order an advance payment only where liability is not an issue:  Andruschak v. Helina (1993), 89 B.C.L.R. (2d) 320 (S.C.); Wilkinson v. Martin, 2010 BCSC 113.

[19] In the present case, there is no substantive connection between the orders sought and the order for advance payment. The trial was recently adjourned, but that was at the behest of the plaintiff, not the defendant. The application for an order that the fourth action be heard with the other three was not necessary, as the defendants consented to the order before the application was brought. I note as well that the adding of the fourth action did not necessitate the adjournment of the trial.

[20] Further, the application for the finding of liability in one action is not of itself a proper basis for an advance payment order. There is nothing in the circumstances of a formal finding of liability in the one action that would make an order for an advance payment just or necessary in the circumstances of this case. In short, there is simply no substantive trigger for an advance payment.

[21] In addition, with seven of the ten defendants denying liability, I am not persuaded it would be just in the circumstances to order that the defendants in all actions be jointly and severally liable for the advance payment of damages. Whether there ought to be joint and several liability on the part of the defendants is an issue that must be determined at trial and should not be determined on an application for advance payment.

[22] For all of these reasons, and despite the able and forceful submissions of plaintiff’s counsel, the plaintiff has not satisfied me that the orders sought ought to be granted, with the exception of the first order that all four actions be heard together, which will go by consent. The application for the remaining orders is dismissed.

Scope of "Representations of Counsel" at Case Planning Conferences Discussed

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 5, BCSC Civil Rule 7. 46 Comments on Scope of "Representations of Counsel" at Case Planning Conferences Discussed


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the scope of appropriate applications at Case Planning Conferences and further the prohibition of affidavit evidence in this venue.
In today’s case (Gill v. A&P Fruit Growers Ltd.) the Plaintiff was injured in a 2004 slip and fall incident.  The Defendant was found 70% at fault for this incident.
As the damages trial neared the Plaintiff brought an application to allow him to introduce evidence from two physicians by way pre-trial deposition.  The Defendant opposed arguing this order should not be made and further that such applications should not be heard at a Case Planning Conference.  Mr. Justice Willcock disagreed and provided the following feedback about the scope of CPC applications:

[17] There is still some uncertainty with respect to the scope of the prohibition against hearing applications supported by affidavit evidence on a case planning conference.  In order to effect the objectives of the Rules by making orders designed to resolve disputes efficiently and in a cost-effective manner on the merits, in my view, it will occasionally be necessary to rule on the manner in which evidence will be adduced at trial.  In some circumstances, even when such matters are hotly contested, they may be determined without affidavit evidence.  That may be the case where the issue may be determined on the basis of representations of counsel as officers of the court.

[18] It has long been the case that the courts have given evidentiary weight to the representations of counsel with respect to evidence to be called at trial, availability of witnesses and procedural questions going to trial management.  In Nichols v. Gray (1978), 9 B.C.L.R. 5 (C.A.), the Court of Appeal reaffirmed a chambers judge’s discretion to give weight to statements of counsel relating to the evidence and the conduct of trial.  It is in that context that the new Supreme Court Rules were enacted.  The prohibition against hearing applications supported by affidavit evidence must be interpreted in the light of that practice.

[19] I adopt as applicable to case planning conferences the views expressed by N. Smith J. in Jurczak v. Mauro, 2011 BCSC 512, and by Gray J. in Enns v. Cahan, 2011 BCSC 54, in addressing the similar provision in the trial management rule prohibiting the granting of orders requiring affidavit evidence: that it is for the trial management judge to decide whether a particular application requires affidavit evidence and whether any affidavits that have been tendered are relevant.

[20] In the case at bar, as in Jurczak, the evidence in the affidavits that were before me added nothing to the submissions of counsel and counsel’s advice to the court with respect to matters that ought to be canvassed at a case management conference, specifically the witnesses availability for trial and the importance of cross-examination of those witnesses to the defence case.  The affidavit evidence that I would have to weigh on the application was like that described in para. 14 of the judgment in Jurczak:

[14]      All of that relates to matters of evidence that counsel expected or wanted to put before the trial judge, the availability of that evidence, and the readiness of the defendant to proceed to trial.  Those are matters of which counsel are expected to advise the court at the TMC and the court is, of course, entitled to assume counsel’s statements are true.  Affidavits in which their legal assistants simply say the same thing about these procedural matters are of no further assistance.

[21] The enumeration of orders that may be made at a case planning conference is exhaustive but Rule 5-3(1)(k) confers a broad discretion on the case planning judge to make orders respecting expert witnesses and Rule 5-3(1)(v) confers a broad discretion to make any order that advances the objectives of the Rules.  The judicial exercise of these discretionary powers requires that some consideration be given to the nature of the orders more specifically enumerated in Rule 5-3.  The Rules contemplate active judicial management of litigation and, in particular, judicial regulation of the role of expert witnesses at trial.  The Rules require that case planning and trial management be conducted with an eye to efficiency and the proportionality of the expense of the process to the value, importance and complexity of the matters in issue.  In my view, an application for an order that expert witnesses be deposed before trial rather than testifying by a video conference at trial is clearly an order of the type that may be made at a case planning or trial management conference, if the factual matrix necessary for making such an order can be established.  Such an order is in the nature of the procedural orders enumerated in Rule 5-3.

Why Physical Examination Is Not Always Necessary for a "Balanced Playing Field"

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that a physical examination is not always necessary for parties to put themselves on a ‘balanced playing field‘ in a personal injury claim.
In this week’s case (De Sousa v. Bradaric) the Defendant appealed from a Master’s decision refusing to permit a second psychiatric independent medical exam of the Plaintiff.  You can click here for my original post discussing the initial applicaiton.
As previously summarized, the Plaintiff was injured in a 2003 collision which allegedly caused physical and psychiatric consequences.  In the course of the lawsuit the Defendants had the Plaintiff assessed by a psychiatrist of their choosing.  This psychiatrist (Dr. Davis) concluded that there was “no psychosis“.
Shortly after this the Plaintiff was admitted in hospital on multiple occasions.  She was ultimately diagnosed with “chronic paranoid schizophrenia” by her treating physicians.  These records were shared with Dr. Davis but despite the diagnosis from treating specialists he “rigidly and categorically rejected any diagnosis of a psychotic conditions“.  For this reason the Master refused to order a second examination.
In the appeal Mr. Justice Smith allowed the introduction of new evidence, specifically a further report from Dr. Davis indicating that he had a terminal illness and will not be able to participate in trial.  The Defendant’s argued that in these circumstances a further exam should be ordered.  Mr. Justice Smith found that while that could be the case, here it was not necessary because the Defendant had already received a report from their second psychiatrist who opined about the Plaintiff’s condition despite not physically examining her.   In dismissing the application the Court provided the following reasons:

[16] The question that arises on the new evidence, given the unavailability of Dr. Davis for trial, is whether the defendant needs a new psychiatric examination to be placed on that all important equal footing. For that purpose I turn to the report of Dr. Vallance that was before the master. This is of course a report that the defendant has, can rely upon at trial, and presumably Dr. Vallance will be available to be cross-examined on it.

[17] Dr. Vallance prefaces his report by stating:

I have not personally examined Ms. De Sousa. Consequently such opinions as I offer in this report are offered only on the understanding that such opinions are significantly limited in the weight that can be given to them absent such an examination.

As a general statement, that is undoubtedly true. However, it must be reviewed in the context of this case and the issues that will be before the court on which medical opinion evidence will be necessary.

[18] Dr. Vallance states that, based on his review of the records, there is no doubt about the fact that the plaintiff now suffers from paranoid schizophrenia. So he does not suggest that he needs to conduct an independent medical examination to confirm or exclude that diagnosis.

[19] The real issue in this case is whether that condition was caused or contributed to by the accident. On that point Dr. Vallance gives a firm opinion. He states:

I believe that if her physical condition and such anxiety as she had arising from the traumata that she experienced had been significant stressors timing the onset of that first episode, then her psychotic illness would have developed sooner rather than later. I believe that her psychosis began out of the blue, as it usually does, and at an age that is usual for the appearance of a first episode.

He then says:

Such diagnoses as paranoid schizophrenia often reveal themselves slowly over time, and therefore, based on the longitudinal history rather than cross-sectional examination, earlier episodes are often diagnosed as other conditions until the full picture is revealed.

[20] Thus on the crucial causation issue, Dr. Vallance’s own report does not support the suggestion that an independent medical examination is needed to place the parties on an equal footing. Indeed he specifically questions the usefulness of a single medical examination and stresses the need to review the entire history, as he has already done, based on the records.

[21] There is also evidence before me from the plaintiff’s family physician that in light of the plaintiff’s present psychiatric condition, a further medical examination at this time will actually be harmful to her health. That prejudice to the plaintiff must, in my view, be considered, although if I thought that a further psychiatric examination was necessary to put the parties on an equal footing, I would have said that means would need to be devised to manage that risk, perhaps with the assistance of the treating psychiatrist.

[22] However, that is not the case here. It appears to me from the evidence of Dr. Vallance that the defendants are in as good a position as they are likely to be to advance their position that this severe psychiatric condition is causally unrelated to the motor vehicle accident. I am not satisfied that a further psychiatric examination will add anything to the matter or will be of any further assistance for the court.

Third Party's Can Be Exposed To "Loser Pays" Costs Consequences

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized. 50 Comments on Third Party's Can Be Exposed To "Loser Pays" Costs Consequences

(Update February 9, 2012 – the below decision is under appeal with the BCCA granting leave to appeal on February 9, 2012)
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, confirming that Third Party’s are not immune from BC’s ‘loser pays’ system.
This week’s case (Danicek v. Alexander Holburn Beaudin & Lang) involved a highly publicized lawsuit where the Plaintiff lawyer was awarded damages after being injured in a dance floor incident.  My previous posts can be accessed here for the full background.  This week the Court finalized some of the costs consequences following the trial.  In doing so Mr. Justice Kelleher provided the following comments adopting an Alberta judgement confirming that there is no reason why Third Party’s can’t be exposed to costs consequences following trial:

[15] The first issue is whether Lombard should be held liable to the plaintiff Ms. Danicek for the costs of the trial.

[16] There is no serious dispute that although Lombard was not a defendant but a third party, it may be liable in costs. It was put this way by Egbert J. in Sunburst Coaches Ltd v. Romanchuck;Ocean Accident and Guarantee Corporation Limited (Third Party) (1953) 9 W.W.R. (N.S.) 385 (Alta. S.C.) at 392, para. 19:

The third party, on its own application became a party to and actively defended the action, and by so doing made itself subject to the jurisdiction of this court as to costs. I see no reason why the plaintiff should not have judgment against the third party as well as against the defendants, for its costs computed in the manner aforesaid.

[17] Because of the other settlements in this action Lombard found itself the only party left to defend the claim.  Although Mr. Poole had admitted liability, Lombard contested both the liability of Mr. Poole and damages.  It was entitled to do so but faces the possibility of an award of costs either in its favour or against it, depending on the outcome of the lawsuit…

[23] The purpose of an award of costs is to indemnify successful litigants; deter frivolous proceedings and defences; encourage parties to deliver reasonable offers to settle; and discourage improper or unnecessary steps in litigation:  see Skidmore v. Blackmore (1995), 122 D.L.R (4th) 330, at para. 37.

[24] My conclusion is that the plaintiff is entitled to her costs in respect to Phase 1 of the trial against Lombard.  It was Lombard that decided to contest liability and quantum.  Ms. Danicek’s position was upheld on each of these issues.  Quantum far exceeded the settlements she had reached with Mr. Poole, Alexander Holburn and the other third parties.

[25] Lombard was not, ultimately, liable for the judgment against Mr. Poole.  This was because of the conclusion reached in the second phase of the trial that the Lombard policy did not provide coverage.  But that was not the issue in Phase 1 of the trial.  (There was evidence relevant to the coverage issue adduced at trial.  That is because witnesses were called at the first phase who had evidence to give in respect to the second phase.)  The issues decided in Phase 1 were liability of Mr. Poole and quantum of damages.

[26] In my view having in mind the principle of an award of costs, costs should be awarded against Lombard in respect of Phase 1 from the time that it filed a statement of defence.  The plaintiff was substantially successful on the issues involving Lombard in that part of the trial.

Supreme Court of Canada Confirms Hyperlinks On Their Own Are Not Defamatory

Written by admin on . Posted in Uncategorized. 60 Comments on Supreme Court of Canada Confirms Hyperlinks On Their Own Are Not Defamatory


Although not a personal injury case, the Supreme Court of Canada released reasons for judgement today which I have been eagerly awaiting as a legal blogger.  In short the Supreme Court of Canada ruled that “making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content“.
In today’s case (Crookes v. Newton) the Defendant posted hyperlinks on a website he owned and operated to articles about the Plaintiff which were allegedly defamatory.  He did not author the allegedly defamatory articles.
The Plaintiff sued arguing the act of hyperlinking to defamatory content amounts to republishing the content and hence is also defamatory.   His case was dismissed at trial.  The BC Court of Appeal also dismissed the case finding that “there is no basis for finding a presumption of publication of the hyperlinked articles and that the mere fact (the Defendant) hyperlinked the impugned sites does not make him a publisher of the material found at the hyperlinked sites”.  You can click here for my 2009 article discussing the Court of Appeal’s judgement.
The Supreme Court of Canada unanimously dismissed the Plaintiff’s final appeal.  In authoring the majority judgement Justice Abella provided the following reasons:

[] A hyperlink is a device routinely used in articles on the Internet whereby a word or phrase is identified, often with underlining, as being a portal to additional, related information.  Clicking on the hyperlink connects the reader to that information.

[] The legal issue in this appeal is whether hyperlinks that connect to allegedly defamatory material can be said to “publish” that material. ..

[] The Internet cannot, in short, provide access to information without hyperlinks.  Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression.  The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control.  Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning.  Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.

[] I do not for a moment wish to minimize the potentially harmful impacts of defamatory speech on the Internet.  Nor do I resile from asserting that individuals’ reputations are entitled to vigorous protection from defamatory comments.  It is clear that “the right to free expression does not confer a licence to ruin reputations” (Grant, at para. 58).  Because the Internet is a powerful medium for all kinds of expression, it is also a potentially powerful vehicle for expression that is defamatory.  In Barrick Gold Corp. v. Lopehandia , (2004), 71 O.R. (3d) 416 (C.A.), at para. 32, Blair J.A. recognized the Internet’s “tremendous power” to harm reputation, citing with approval the following excerpt from Lyrissa Barnett Lidsky “Silencing John Dow: Defamation & Discourse in Cyberspace” (2000), 49 Duke L.J. 855, at pp. 863-64: ..

[] But I am not persuaded that exposing mere hyperlinks to the traditional publication rule ultimately protects reputation.  A publication is defamatory if it both refers to the plaintiff, and conveys a defamatory meaning: Grant, at para. 28.  These inquiries depend, respectively, on whether the words used or “the circumstances attending the publication are such as[] would lead reasonable persons to understand that it was the plaintiff to whom the defendant referred” (Brown, at para. 6.1), and whether the words would “tend[] to lower a person in the estimation of right-thinking members of society” (Botiuk v. Toronto Free Press Publications Ltd., at para. 62).  Defamatory meaning in the words may be discerned from “all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented” (Botiuk, at para. 62, citing Brown (2nd ed. 1994), at p.1-15).  (See Brown, at paras. 5.2, 5.4(1)(a) and 6.1; Knupffer v. London Express Newspaper, Ltd., [1944] A.C. 116 (H. L.); Butler v. Southam Inc., , 2001 NSCA 121, 197 N.S.R. (2d) 97; Bou Malhab v.Diffusion Métromédia CMR inc., , 2011 SCC 9, [2011] 1 S.C.R. 214, at paras. 63 and 112; Botiuk, at para. 62.)

[] Where a defendant uses a reference in a manner that in itself  conveys defamatory meaning about the plaintiff, the plaintiff’s ability to vindicate his or her reputation depends on having access to a remedy against that defendant.  In this way, individuals may attract liability for hyperlinking if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because, understood in context, they have actuallyexpressed something defamatory (Collins, at paras.  7.06 to 7.08 and 8.20 to 8.21). This might be found to occur, for example, where a person places a reference in a text that repeats defamatory content from a secondary source (Carter, at para. 12).

[] Preventing plaintiffs from suing those who have merely referred their readers to other sources that may contain defamatory content and not expressed defamatory meaning about the plaintiffs will not leave them unable to vindicate their reputations.  As previously noted, when a hyperlinker creates a link, he or she gains no control over the content linked to.  If a plaintiff wishes to prevent further publications of the defamatory content, his or her most effective remedy lies with the person who actually created and controls the content.

[] Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content.  Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.  Such an approach promotes expression and respects the realities of the Internet, while creating little or no limitations to a plaintiff’s ability to vindicate his or her reputation.  While a mere reference to another source should not fall under the wide breadth of the traditional publication rule, the rule itself and the limits of the one writer/any act/one reader paradigm may deserve further scrutiny in the future.

[] I am aware that distinctions can be drawn between hyperlinks, such as the deep and shallow hyperlinks at issue in this case, and links that automatically display other content. The reality of the Internet means that we are dealing with the inherent and inexorable fluidity of evolving technologies.  As a result, it strikes me as unwise in these reasons to attempt to anticipate, let alone comprehensively address, the legal implications of the varieties of links that are or may become available.  Embedded or automatic links, for example, may well prove to be of consequence in future cases, but these differences were not argued in this case or addressed in the courts below, and therefore need not be addressed here.

More on ICBC Claims and the Seatbelt Defence

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 110 Comments on More on ICBC Claims and the Seatbelt Defence

(Image via Wikimedia)
As I wrote in one of my first blog posts in 2008, failing to wear a seatbelt can reduce the level of compensation an otherwise faultless accident victim is entitled to in their personal injury claim.  However, this reduction does not flow automatically by failing to wear a seatbelt.  The Defendant still bears the burden of proving that it was unreasonable in the circumstances not to wear a seatbelt and further that injuries would have been lessened with proper seatbelt use.  Absent such evidence a Plaintiff’s compensation will not be reduced.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Gilbert v. Bottle) the Plaintiff was involved in a single vehicle collision in 2005.  She was a passenger in the Defendant’s vehicle.  She occupied the back seat between another passenger and a baby seat.  Both seatbelts available in the back were inaccessible given this position as one seatbelt was affixed to the baby seat and the other was located where the other passenger was seated.  The Plaintiff could have removed the affixed seatbelt herself (as the babyseat was unoccupied) but she did not do so.
The driver was “impaired by alcohol when he approached a corner too quickly and lost control of the vehicle“.  The Plaintiff was ejected.  She suffered severe injuries including a complicated traumatic brain injury.
ICBC presented evidence that the Plaintiff’s injuries would have been reduced with proper seatbelt use and argued that the Plaintiff’s damages ought to be reduced.  Madam Justice Dickson rejected this argument and did not accept ICBC’s expert’s opinion (the Court’s discussion of this can be found at paragraphs 44-48 of the judgement).  Madam Justice Dickson made the following findings and provide the following discussion canvassing this area of law:
[24] A plaintiff may be found to have failed to take reasonable care for his or her own safety by not wearing an available seatbelt or by accepting a ride in a vehicle not equipped with seatbelts.  If a seatbelt was available but not worn, the evidence must establish that it was operational and the plaintiff’s injuries would have been reduced by usage to justify a finding of contributory negligence.  Although there is no hard and fast rule as to apportionment in cases involving a successful seatbelt defence, the plaintiff is often held to be 10% to 25% contributorily negligent: Harrison v. Brown, [1985] B.C.J. No. 2889 (S.C.); Thon v. Podollan, 2001 BCSC 194; Ford v. Henderson, 2005 BCSC 609…

[52] Defence counsel also submits that Ms. Gilbert contributed negligently to her own injuries by agreeing to ride as a passenger in a position not equipped with an available seatbelt.  He says the circumstances are similar to those in Thon and, had Ms. Gilbert exercised reasonable care, she could have avoided her injuries entirely by not assuming the risk of riding in the middle backseat.  On this analysis, it is unnecessary to consider the extent to which proper seatbelt use would have avoided or reduced her injuries.  If, however, such an analysis is required he says, based on Mr. West’s evidence, those injuries caused by ejection from the vehicle could have been avoided.  He concedes that, on a Thon analysis, an apportionment in the 10% range would be appropriate.

[53] Despite his able submission, I cannot agree with defence counsel.  In my view this case is not analogous to Thon, which concerned plaintiffs who knowingly rode in an area of a vehicle not equipped with seatbelts (having done so in the same area earlier in the day).  In this case, the backseat of the Capri was equipped with two seatbelts but one was affixed to the baby seat and the other was located in the position occupied by Mr. Wycotte.  Ms. Gilbert was unaware of this situation until after she got in the car and, by that time, Mr. Bottle had pulled away.  Thereafter, her attempts to access the seatbelt used by the baby seat were unsuccessful, as were her attempts to persuade Mr. Bottle to stop the car and let her out.

[54] In a perfect world Ms. Gilbert would have noticed the baby seat and checked the availability of seatbelts in the backseat before she got into the Capri.  It was dark outside, however, and I do not consider her failure in this regard to amount to a want of reasonable care for her own safety.  In any event, even if she had done so, moved the baby seat and used the now available seatbelt there is no evidence that it was operating properly and I have not found her injuries would have been reduced by seat belt usage.

[55] If I am wrong and Ms. Gilbert failed to take reasonable care for her own safety either by failing to determine Mr. Bottle’s state of sobriety or assuming a position in the vehicle unequipped with an available seatbelt I would have found her comparative degree of fault was minimal.  Mr. Bottle drove in a criminally dangerous manner, while intoxicated, and thus departed dramatically from the relevant standard of care.  Ms. Gilbert, on the other hand, failed to elicit information that would have protected her from the terrible risk created by Mr. Bottle’s serious driving misconduct.  In these circumstances, at most I would have assessed her contributory negligence at 5%.

Fast Track Proceedings Mandatory Either by Length of Trial "OR" Quantum

Written by admin on . Posted in BCSC Civil Rule 15. 49 Comments on Fast Track Proceedings Mandatory Either by Length of Trial "OR" Quantum

For the past year there has been some debate amongst BC lawyers about the circumstances triggering Rule 15.  Useful reasons for judgement were released today by the BC Supreme Court, Victoria Registry, clarifying this debate.  In short the Court confirmed that where otherwise applicable, the fast track rule applies to cases worth below $100,000 regardless of length of trial and conversely to cases worth more than $100,000 where the length of trial is three days or less.
In today’s case (Hemani v. Hillard) the Plaintiff claimed damages for personal injury.  She sued pursuant to Rule 15.   She was seeking damages below $100,000 but the trial was expected to take 5 days.  The Defendant argued that in these circumstances fast track rule does not apply.  Master Bouck disagreed and provided the following helpful reasons:

[6] The plaintiff acknowledges that her claim is valued at $100,000 or less exclusive of interest and costs.

[7] The defendant submits that where the plaintiff estimates the trial will take more than three days, an action can no longer be continued in fast track….

[10] In contrast, the plaintiff points to the use of the word “or” (as opposed to “and”) under Rule 15-1(1) (a) through (d). The use of this disjunctive suggests that fast track can apply to a variety of scenarios. A party is not restricted to completing the action within three days; that is merely one criteria for conducting an action in fast track.

[11] The plaintiff further observes that under Rule 15-1(3), the court may award damages to a plaintiff for an amount in excess of $100,000 even though the action was commenced in fast track under the monetary criteria.

[12] The plaintiff accepts the risk that she may not recover costs for the additional two days of trial.

[13] While there may be no judicial consideration of this issue, there is a helpful analysis of Rule 15-1 in McLachlin & Taylor, British Columbia Practice (Third Edition), at pp. 15-1 to 15-3.

[14] The learned author states:

One could say that the 3-day trial limit is a condition subsequent to the continuing application of Rule 15-1, but the rules cited do not go that far. Put in other terms, it cannot be said that condition (c) is a true condition subsequent to the operation of Rule 15-1. Rather, if in the event it is not satisfied, that can result (depending on the stage of the proceeding when this is found to be the case) in the loss of a trial date or a denial of costs for the fourth and subsequent days of trial, but the action continues to be a fast track action until and unless the court, on its own motion or on the application of a party, so orders under Rule 15-1 (6).

[15] I agree with this analysis.

[16] There is no application before me to remove the action from fast track on any other grounds.

[17] Accordingly, as a matter of statutory interpretation, the plaintiff’s position on the issue is correct.

Court Holds Rule 15 Costs Cap Can Apply to Trials Prosecuted Outside of the Fast Track

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 15, BCSC Civil Rule 7. 44 Comments on Court Holds Rule 15 Costs Cap Can Apply to Trials Prosecuted Outside of the Fast Track


Reasons for judgement were released last week by the BC Supreme Court, Chilliwack Registry, addressing whether the Rule 15 Costs ‘cap‘ can apply to non-Rule 15 lawsuits that proceed to trial but result in judgement below $100,000.  In short the Court ruled that the cap should apply in these circumstances.
In last week’s case (Affleck v. Palmer) the Plaintiff sued the Defendants for damages.  The claim was not filed under the fast track provisions of Rule 15.  The case proceeded by way of summary trial under Rule 9-7 and was successful.  The judgement is unclear of the damages awarded but they were apparently over $25,000 under $100,000.  The summary trial lasted one day.
The Plaintiff brought an application for lump sum costs of $8,000 under Rule 15-1(15).  Mr. Justice Brown agreed that this was appropriate even though the lawsuit was not filed under the provisions of Rule 15.  In reaching this conclusion the Court provided the following reasons:

[4] Rule 14-1(1)(f) states that costs payable under the Civil Rules or by court order must be assessed as party and party costs under Appendix B, unless:

…

(f)         subject to subrule (10) of this rule,

(i)         the only relief granted in the action is one or more of money, real property, a builder’s lien and personal property and the plaintiff recovers a judgment in which the total value of the relief granted is $100,000 or less, exclusive of interest and costs, or

(ii)        the trial of the action was completed within 3 days or less,

in which event, Rule 15-1(15) to (17) applies to the action unless the court orders otherwise.

[5] There are other exceptions under Rule 14-1(1), but subsection (f) is the significant one in this case. Rule 14-1(10), which pertains to plaintiffs who recover in this Court a sum within the jurisdiction of the Provincial Court, does not apply in this case.

[6] Rule 15-1(15)(a) states a party in a fast track action is entitled to costs of $8,000, exclusive of disbursements, if the time spent on the hearing is one day or less, unless the court orders otherwise or the parties consent.

[7] I agree with the plaintiffs that although they had proceeded by way of summary trial and did not file a notice of fast track action, the wording of Rule15-1(1) governs and the action qualifies as a fast track action under Rule 15-1(1)(a) or 15-1(1)(b).

[8] As the plaintiffs point out, because they claimed various forms of relief under the Business Corporations Act, S.B.C. 2002, c. 57 [Business Corporations Act], it is arguable they were claiming more than monetary relief. Even so, the action still completed under Rule 9-7 in less than one day.

[9] The plaintiffs submit it would be appropriate for me to order $8,000 in costs. This represents the amount payable in a fast track action; and, despite the fact that the plaintiffs proceeded by way of summary trial under Rule 9-7, the plaintiffs submit an order for $8,000 in costs is appropriate in this case. I find the $8,000 set out in Rule 15-1(15)(a) is appropriate in this case.

This case is also a useful precedent because as set out in paragraph 8 the Court suggests that Rule 15 applies regardless of quantum provided the trial takes three days or less.

This case is worth reading in conjunction with the recent case of Johnson v. Axten which held that the Rule 15 costs cap can apply to pre-trial settlements of under $100,000 even if the case was not prosecuted under the fast track rule.

$85,000 Non-Pecuniary Damages for Chronic Post Traumatic Headaches

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

Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, assessing damages for chronic headaches and an aggravation of a low back injury caused by a motor vehicle collision.
In last week’s case (Drodge v. Kozak) the Plaintiff was injured in a 2006 two-vehicle collision on Vancouver Island.  ICBC admitted the crash was the fault of the other motorist.  Following the collision the Plaintiff suffered various injuries including chronic post-traumatic headaches.  The Plaintiff argued that these were caused by a traumatic brain injury sustained in the crash.  Madam Justice Dardi rejected this argument finding that the Plaintiff did not suffer a brain injury.  The Court did, however, find that the headaches were causally linked to trauma sustained in the collision.  In assessing non-pecuniary damages at $85,000 the Court made the following findings:

[106] I have concluded that the constellation of symptoms that Dr. Smart bases his concussion diagnosis upon are not sufficiently specific to be diagnostic. I prefer Dr. Teal’s opinion that it is unlikely that Mr. Drodge sustained a mild traumatic brain injury. I find that the headache, cognitive, and other symptoms attributed by Dr. Smart to post-concussion syndrome are non-specific symptoms. I accept Dr. Teal’s evidence that there are “multiple reasons for dizziness, for headaches, for sleep disturbances, for mood disturbance … they are not necessarily post-concussional symptoms.” Further, the expert evidence establishes that cognitive difficulties including poor concentration and mood disturbances can develop as a consequence of severe headaches.

[107] In summary on this issue, I have concluded that on balance the preponderance of the evidence does not support a finding that Mr. Drodge suffered either a mild traumatic brain injury or concussion/post-concussion syndrome.

[108] Although I have concluded that the evidence falls short of establishing a diagnosis of concussion/post-concussion syndrome, I do accept that Mr. Drodge has suffered chronic headaches and associated cognitive symptoms for some four and a half years since the accident…

[120] In the end the question of Mr. Drodge’s prognosis is difficult. Taking into account all of the opinion evidence of the experts which conflicted on this point, I have concluded that Mr. Drodge is not likely to make a full recovery. While Mr. Drodge may be able to develop better coping strategies to manage his pain more effectively, and may experience some corresponding improvement in his headache symptoms as well as his back symptoms, there is only a small chance that he will improve to the degree that he will be employable…

[143] While the authorities are instructive I do not propose to review them in detail as they only provide general guidelines. I have reviewed all of the authorities provided by both counsel, and considering Mr. Drodge’s particular circumstances, and compensating him only for the increase in the exacerbation of his low back symptoms and not for the effects of his pre-existing back condition that he would have experienced in any case, I conclude a fair and reasonable reward for non-pecuniary damages is $85,000.

Social Host Lawsuit Involving "Disastrous" Injury Survives Summary Dismissal Application

Written by admin on . Posted in BCSC Civil Rule 9, ICBC Liability (fault) Cases, Uncategorized.


Important reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that given the right circumstances a ‘social host’ can be found negligent if one of their guests becomes impaired and subsequently causes a motor vehicle collision.
In this week’s case (Sidhu v. Hiebert) the three infant plaintiffs were injured in a motor vehicle collision.  They were passengers in their parents vehicle which was struck by another motorist.  There was evidence that the driver of the other vehicle was previously at a social party where he consumed alcohol.   There was also evidence that he had blood alcohol content high enough that he “would have had to drink between 20 and 26 ounces of hard liquor to produce such a result“.  The liquor was not necessarily all consumed at the social gathering.
One of the infant plaintiff’s was “disastrously injured”  with his spinal cord severed in the high cervical area.
The lawsuit was launched alleging negligence against not only the motorists but also the social host.  The social host brought an application for summary dismissal arguing that the 2006 Supreme Court of Canada judgement of Childs v. Desormeaux eliminated the possibility of success in social host lawsuits.  Mr. Justice Johnston disagreed and dismissed the Defendant’s motion.
The Court held that given the right circumstances social host lawsuits can succeed but given some conflicts in the evidence presented this specific case was inappropriate for summary disposition.  In dismissing the application Mr. Justice Johnston provided the following reasons:
[32] Whether a duty had been established on the face of it depended on the answer to this question: “What, if anything, links party hosts to third-party users of the highway?” (Childs, para. 24)…

[43] The court says at para. 31:

… However, where the conduct alleged against the defendant is a failure to act, foreseeability alone may not establish a duty of care. In the absence of an overt act on the part of the defendant, the nature of the relationship must be examined to determine whether there is a nexus between the parties. Although there is no doubt that an omission may be negligent, as a general principle, the common law is a jealous guardian of individual autonomy. Duties to take positive action in the face of risk or danger are not free-standing. Generally, the mere fact that a person faces danger, or has become a danger to others, does not itself impose any kind of duty on those in a position to become involved. [Emphasis in original.]

[44] I take from this passage that this aspect is also evidence-driven, in that whether there is a nexus between the parties will depend on the nature of any relationship revealed by the evidence. The passage also suggests that if there is more than a “mere fact that a person faces danger,” again revealed in the evidence, the general statement may not apply.

[45] The court in Childs summarized three situations where courts have in the past imposed positive duties to act: where a defendant has intentionally attracted and invited third parties to inherent and obvious risks created or controlled by the defendant; where there is a paternalistic, supervisory or controlling relationship between defendant and plaintiff; and where the defendant is engaged in a public function or commercial enterprise that implies responsibility to the public.

[46] I agree with counsel for Mr. Rattan that this case does not fit comfortably within any one of these three situations, but I also note that the Court in Childs at para. 34 said these were not strict legal categories, but serve to elucidate factors that can lead to positive duties to act.

[47] After pointing out that the three situations have in common the defendants’ “material implication in the creation of the risk or his or her control of a risk to which others have been invited,” and the reluctance of the law to infringe on the personal autonomy of someone in Mr. Hiebert’s position without good reason, the Court at para. 39 points out that someone in Mr. Rattan’s position might be expected or required by law to impinge on Mr. Hiebert’s autonomy only when he has a special relationship to the person in danger (not apparent here), or “… a material role in the creation or management of the risk.”…

[56] Because I am persuaded that this case should be decided on a full record of evidence at trial, I conclude that I should leave to trial the question of whether motorists can reasonably rely on a social host to not exacerbate an obvious risk by continuing to supply alcohol to an apparently impaired guest who the host knows will drive away from the party. It seems to me that justice requires that I allow the parties to develop the evidence and argument on a full trial.

[57] Mr. Rattan’s application is dismissed with costs in the cause.

This case is also worth reviewing for the Court’s discussion of whether a passenger in the alleged impaired driver’s vehicle could be found liable.  The Social host brought ‘third party’ proceedings against the motorists passenger arguing that if they are liable then the driver’s passenger should be as well.  Mr. Justice Johnston dismissed this allegation finding that even viewing the evidence in the most favourable light this allegation would fail.  The Court provided the following reasons:

[65] If I assume for the purposes of this application that the evidence showed that Mr. Braun and Mr. Hiebert arrived together at the party in an intoxicated condition, both continued to drink Mr. Rattan’s alcohol to excess at the party, and both left together at the end, in a more intoxicated condition than when they arrived – with Mr. Hiebert driving and Mr. Braun as his passenger – is there a possibility that the first branch of the Anns test might be satisfied? My answer is no.

[66] The language in Childs that might allow a court to conclude that a social host owes a duty of care to highway users injured by a driver who becomes impaired as a guest of the host does not go so far as to admit the possibility of a duty on a companion or fellow traveler who does no more than observe the risky behavior of the drinking guest, and perhaps acquiesce to an extent in the risk by drinking with and then accepting a ride home from the party with the drunken guest.