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More on Costs and the Flexibility of the New Rules of Court

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized. 52 Comments on More on Costs and the Flexibility of the New Rules of Court


(Update June 5, 2013- the underlying trial verdict was upheld in reasons for judgement released today by the BC Court of Appeal)
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As previously discussed, one of the best changes in the New Rules of Court is the ability for trial judges to have discretion in assessing costs consequences where one party bests their formal settlement offer at trial.
Generally where a Plaintiff fails to beat a Defence formal settlement offer they can be punished with a significant costs award.  Fortunately Rule 9-1 does not force a Court to this result and instead leaves some discretion in the process.   This discretion was demonstrated in reasons for judgement released last week by the BC Supreme Court, New Westminster Registry.
In last week’s case (Gatzke v, Sidhu) ICBC, on the Defendant’s behalf, made a formal settlement offer of $50,000.  The Plaintiff proceeded to trial and after a split finding of liability was assessed damages at “an amount to someting less than $10,000“.
ICBC brought a motion to be awarded post offer costs.  Mr. Justice Saunders refused to make this order instead simply ordering that the Plaintiff be deprived of her post offer costs and that the Plaintiff pay the disbursements associated with bringing the Defendant’s IME doctor to trial.  In reaching this result the Court provided the following reasons:

[14] …. Ordinarily, where a plaintiff obtains judgment for less than the amount offered in settlement, the legislative purpose of the Rule would be fulfilled by awarding the defendant its costs from the date the offer was made.  However, where there is a very significant gap between the judgment amount and the offer, it may be the case that a defendant is in a better position for having gone to trial, even taking its counsel’s fees into account.  This appears to have quite possibly been the case in the present circumstances.  The damages assessed, net of the plaintiff’s contributory negligence, are a small fraction of the offer.

[15]Defendants should not be discouraged from making generous settlement offers.  But where the end result is dramatically different than the offer resulting in a net savings to the defendant, a defendant found to be partially at fault can reasonably expect to bear some of the cost of obtaining that result.

[16]The plaintiff apparently has very limited financial means.  This factor, however, will be given the most weight where it is the subject accident, or other issue between the parties, which is responsible for the plaintiff’s circumstances.  That is not the case here.

[17]The defendants, on the other hand, were presumably being defended by the Insurance Corporation of British Columbia.  An insured defendant’s greater financial ability to defend is a factor which was described by the B.C. Court of Appeal in Smith v. Tedford, 2010 BCCA 302, as being a matter “of no small importance to considering whether and to what extend the financial circumstances of the parties, relative to each other, bear on an award of costs”.

[18]This appears to have been a case where both parties undertook a course of action based on an overestimation of the risk to the defendants.  There is no compelling case, in the circumstances, for awarding the defendants the entirety of their post-offer costs.  Given the plaintiff’s financial circumstances and the very modest damages, the purpose of the Rule will be met by awarding the plaintiff 30% of her costs to the date of the offer, and awarding the defendants only the disbursements incurred in association with the attendance at trial of their expert witness, Dr. Sovio.  Dr. Sovio’s attendance at trial was only required for cross-examination at the plaintiff’s request, and it is appropriate that this cost be borne by the plaintiff.  That amount is to be set off against the plaintiff’s award of damages.

Why Tort "Reform" Is Not Needed To Keep Frivolous Lawsuits Out of Court

Written by admin on . Posted in Tort Reform.

Every so often a sensational case makes headlines that gets dismissed after trial. Pundits and the press pick up on these stories.  Such cases can receive disproportionate media attention and are sighted as key examples for the need to have tort “reform“.  The other catchphrase that’s thrown around is “lawsuit abuse”.
“Reform“, however, is not necessary.  The BC Supreme Court already has tools built in to discourage litigation.  We have a “loser pays” system which exposes losing litigants to significant costs consequences.  Additionally, if a litigant continues to pursue actions without merit they can be locked out of the Court process entirely.  Reasons for judgement were released this week by the BC Court of Appeal demonstrating this tool in action.
In this week’s case (Keremelevski v. ICBC) the Plaintiff brought an application which the Court described as having “no sensible basis in law or fact” and had “absolutely no chance of success“.  The Plaintiff’s application was dismissed but the Court noted that “The current proceedings, wholly devoid of merit and lacking any possibility of success, are simply another chapter in a long series of proceedings launched by the applicant in this Court”
The Court went on to make a so-called vexatious litigant order and in doing so provided the following reasons:
[12] Mr. Keremelevski has clearly demonstrated that he has no real comprehension of the court process and he persistently files applications in this Court that are completely unmeritorious. As Mr. Justice Frankel observed in the above excerpt from the Houweling case, judicial resources are not infinite, and the filing of what could justly be described as a blizzard of applications does take up valuable court time that ought to be used to hear other matters that have substance. As Frankel J.A. also observed, while persons are entitled to have their day in court, they are not entitled to be always in court “day after day in the futile pursuit of remedies to which [they are] not entitled”. As I observed, Mr. Keremelevski has initiated a significant number of proceedings in this Court that have had no possibility of success. He has also sought unsuccessfully leave to appeal to the Supreme Court of Canada in some of the proceedings. As is the case with the instant proceedings, it appears these matters have been devoid of merit with no possibility of success. In these circumstances, it seems apparent to me that it is now requisite for this Court to take action to prevent the misuse of its process. It is time, and indeed probably past time, to make an order in the case of Mr. Keremelevski in the terms made in the earlier cases referred to that Mr. Keremelevski will be precluded from filing any further documents in this Court without leave first obtained from a justice of the Court in chambers. As I observed in the Booty case, such an order is requisite to prevent misuse of the litigation process.

Hospital Insurance Program Payments Non-Deductible Under UMP

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


In my continued efforts to create a searchable UMP Claims database, I summarize a 2009 UMP Decision which dealt with a variety of issues including whether payments received under BC’s Hospital Insurance Program are deductible by ICBC in Underinsured Motorist Claims.
In the 2009 case of APS v. ICBC the Claimant was severely injured in a 2004 collision in Nevada.  She was a BC resident and had UMP Coverage with ICBC.  Following the crash and initial treatment in the US the Claimant was airlifted back to BC and received further hospital treatment.  The cost of these totalled $197,263.  ICBC argued that the cost of these treatments were in the nature of insurance benefits and deductible under Section 148.1(1) of the Insurance (Vehcle) Regulation.   Arbitrator Boskovich disagreed and provided the following helpful reasons rejecting this argument:
130.  The services and benefits covered under out universal compulsory medical coverage, which are incurred in almost every under insured motorist action, cover amounts paid in the past and those to be paid in the future.  Given the catastrophic nature of many of the cases that result in UMP Claims the costs are often considerable.  Had the Legislature intended for UMP awards to be net of these services and benefits then it would have specifically provided for such a deduction in clear and unambiguous terms in the legislation.
131.  Having regard to the nature and extent of the evidence tendered and to the overall statutory intention of Subsection 148.1(1) of the Regulations, I do not find the Hospital Insurance Program payments to be an applicable deductible amount pursuant to paragraph (i).  As stated above, had the Legislature intended such potentially considerable deductions to come into play it would most certainly have specifically stated so.
132.  If I am wrong about the above, I still find having regard to the wording of subsection (i), that such amounts would not be payable to the insured as a benefit or right and claim to indemnity.  They do not represent pecuniary payments of a like nature for which the Claimant is claiming compensation pursuant to the tortious conduct of the underinsured motorist and which would have been recovered thus resulting in double recovery.
This case is also worth reviewing for some of the other finding made with respect to deductible beneifts.  The Claimant’s husband died in the same collision and as a result the Claimant received some modest compensation through a Family Compensation Act action and through varioius insurance benefits.  Arbitrator Boskovich made the following findings with respect to other deductible amounts:
1.  If a Claimant received damages under the Family Compensation Act from the collision in question then those can be deductible in an UMP Claim even if underlying action dealt exclusively with the Claimant’s personal tort claim.
2.  ICBC Part 7 Death Benefits paid from the deceased’s Part 7 benefits to the Claimant are deductible in an UMP Claim.
3.  A CPP Death Benefit paid directly to the claimant is deductible in an UMP claim.
4.  CPP and private survivor’s pension benefits are deductible in an UMP claim with the limitation that these deductions should be calculated on the basis of the natural life expectancy of the claimant.

Why Sidney Crosby's Concussion is the Best Thing That Happened for Mild Traumatic Brain Injury Victims

Written by admin on . Posted in ICBC Brain Injury Cases, Uncategorized. 48 Comments on Why Sidney Crosby's Concussion is the Best Thing That Happened for Mild Traumatic Brain Injury Victims

(Image via Wikipedia via pointnshoot’s flickr stream)
In two words: Public Understanding.  While Sidney Crosby’s recent difficulties recovering from the effects of multiple concussions are unfortunate, they lead to an important teachable moment.
Mild Traumatic Brain Injury can cause long-standing and debilitating effects.   Despite this, however, victims of MTBI often face skepticism in two notable ways, particularly in the injury litigation context.
First, many argue that without a loss of consciousness a person cannot suffer a traumatic brain injury.  Medically this is simply wrong.  There is absolutely no need to be knocked unconscious to suffer a traumatic brain injury or to suffer long term consequences from traumatic brain injury.
On the face of it the checks that Sidney Crosby took which caused his brain injury were relatively unmemorable in the hard hitting NHL.  He was not knocked out.  He stood back up and seemed to be generally ‘ok’ following these hits.  He skated off the ice on his own (much like an individual walking around a little dazed after a motor vehicle collision).  Despite this there is no doubt he suffered real brain injury.  His injury, and the circumstances that caused it, help dispel this myth.
The second type of scrutiny often faced by brain injury victims is that they need to ‘suck it up’ and get over it.   How can you have long lasting effects if you weren’t knocked out?  Why can’t you just ‘shake it off’ and get back to work?  Are you malingering?  You don’t look hurt, why aren’t you working?
Again, Sidney Crosby is a prime example that such injuries can and do lead to long term disability.  No one will argue that Sidney Crosby is a malinger or a wimp.  He is one of the highest funcitoning athletes of this generation.  Nobody reaches this level of success without inherent toughness, work ethic and a high pain threshold.  The top of the line doctors treating Sidney’s injuries confirm he is not fit to return to work.  This serves as a great example that caution is the order of the day when returning to work following traumatic brain injury.  The recovery period can be lengthy.  Sometimes career ending.
If nothing else, Sidney Crosby’s injuries have gone a long way in educating the public that there is nothing mild about mild traumatic brain injury.

ICBC Hit and Run Claim Succeeds With The "Expectation The Other Driver Would Comply With the Law"

Written by admin on . Posted in Uncategorized.


Useful reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, which I summarize in my continued efforts to highlight the ‘reasonable efforts’ requirement for hit and run accident victims.
In last week’s case (Singh v. Clay) the Plaintiff was injured in a handful of collisions.  In one of the incidents the Plaintiff’s vehicle was rear-ended.  Following impact the offending motorist “drove away without stopping, as the Plaintiff exited his vehicle“.  As a result the Plaintiff was unable to take down the offending vehicles licence plate number.
ICBC argued that the Plaintiff did not take reasonable efforts at the scene to identify the driver.  The Plaintiff conceded that he “could have done so but he did not look at the licence plate as he did not expect the driver to drive off as she did“.  Mr. Justice Greyell found this was a reasonable explanation and concluded the Plaintiff complied with his obligations under section 24 of the Insurance (Vehicle) Act.  The Court provided the following useful comments:

[78] In the present case, Mr. Singh might have been able to take down the licence plate number of the offending vehicle if he had done so immediately.  However, he did not expect the vehicle to leave the scene of the accident.  Once it became clear that the vehicle was not going to stop, his wife made an effort to write the number down, but only got two of the letters.  Following the accident Mr. Singh took all reasonable steps to ascertain the identity of the driver.  He spoke to two witnesses, he telephoned ICBC, attended the police, phoned his lawyer to obtain advice as to how to proceed, and, as a result, put up flyers seeking witnesses.

[79] In Leggett the plaintiff’s case was dismissed because the Court found he had made a decision not to pursue his rights at the time of the accident.  In Smoluk the Court distinguishedLeggett stating, at para. 9:

[9]        In my view, the Leggett case is clearly distinguishable from this case because the plaintiff in this action made no decision not to pursue her rights. She was prevented from obtaining more information because of the precipitate departure of the wrongdoer, and in my view the plaintiff acted reasonably in taking down the license plate number which would lead any reasonable person to believe that the identity of the person had been or could easily be ascertained. The fact that she got the number wrong in such circumstances does not indicate unreasonableness.

[80] The facts in Smoluk are similar to those in this case.  The offending driver in that case drove away while the plaintiff was inspecting the damage to his vehicle.  While the driver in Smolukdid get the opportunity to take down a partial plate number Mr. Singh did not.  I find that under the circumstances his expectation the other driver would comply with the law and stop his/her vehicle was a reasonable one.  When the vehicle left the scene as he was getting out of his vehicle, it was too late to get particulars of the licence plate number.  I conclude Mr. Singh acted as a reasonable person would have acted in preserving his rights.

Welcome Charles Adler Listeners

Written by admin on . Posted in BC Injury Claims Media Archives, Uncategorized. 55 Comments on Welcome Charles Adler Listeners


I’d like to welcome all my new readers who are here following yesterday’s interview with Charles Adler of Corus Radio. You can click here to listen to my portion of the interview:  charles-adler-erik-magraken-interview-september-8-2011 (clip courtesy of CJOB 68 Winnipeg, Corus Radio Network)
Charles canvassed the case in Illinois involving children suing their mother for alleged emotional distress.  The conversation then turned to the thresh-hold for suing for psychiatric injuries in British Columbia and the “Loser Pays” system.
For more on these topics you can click here to read my archived posts addressing lawsuits for psychological harm, and here for my archived posts on BC’s Loser Pays System.

Loss of Companionship "Services" in BC Wrongful Death Claims

Written by admin on . Posted in ICBC UMP Cases, Uncategorized. 95 Comments on Loss of Companionship "Services" in BC Wrongful Death Claims


There is a general prohibition preventing damages being awarded for “loss of companionship” in BC Wrongful Death lawsuits.  However, if the companionship can be characterized as a “service” which can be quantified and needs replacement damages can be awarded.  This was demonstrated in the arbitration decision of NN, DN and MEN v. ICBC which I summarize in my continued efforts to create a searchable ICBC UMP claims database.
In NN, DN and MEN v. ICBC, the Claimant’s spouse was killed in a motor vehicle collision.  The at fault driver was uninsured.  The Claimant sought damages under BC’s Family Compensation Act.  It was agreed that the Claimants were insured for UMP coverage with ICBC.  The parties agreed to have damages assessed though private UMP arbitration.
At the time of his death the deceased was separated from his spouse for many years.  Despite this he had a good relationship with her.  She suffered from vascular dementia and lived in a group home.  He visited her on a daily basis and took her out and spent time with her.  She sought damages for “loss of companionship services“.  ICBC opposed arguing nothing was recoverable as “loss of spousal companionship is not a compensable head of damage in a family compensation claim“.
Arbitrator Donald Yule agreed that while the “loss of spousal companionship” prohibition exists, it does not extend to services.   Arbitrator Yule accepted expert evidence that these companionship services were “important to (the spouse’s) quality of life” and assessed damages for this lost service at $35,000.  In doing so Arbitrator Yule provided the following helpful reasons:
52.   This case helps to clarify that it is the “services” aspect of the deceased’s conduct that is compensable.  It does not mater that the service is motivated by love and affection for a spouse.  Household services are also motivated by care and affections.  The replacement of them is clearly compensable.  Mrs. N’s claim is for compensation services, not merely the loss of companionship.  In Bianco Estate the claim was for loss of companionship only.  The plaintiffs were seeking an “at large” lump sum award.  Hence, the issue as to whether the award was pecuniary or non-pecuniary.  There was no attempt in  that case to attach an economic value or cost to the lost services aspect of companionship.  The judgement at paragraph 12 seems to leave open the possibility of a compensable claim where substitute or replacement services result in an actual pecuniary loss.
53.  It seems to me that one aspect of Mr. N’s companionship is the loss to Mrs. N., in terms of the pleasure and comfort that derives from the continuing association with a long time friend and spouse.  That loss is irreplaceable; no economic value can be attached to it and it is not compensable.  That is the solatium aspect.  But another aspect of MR. N’s companionship is the loss to Mrs. N. of having someone to take her out of the Lodge on a daily basis; to encourage and facilitate her maintaining mobility as long as possible; to provide a ‘break’ from the institution; to provide an opportunity to supplement her food intake; and to provide social stimulation to the extent she is able to participate in it.  This is a loss that can be provided by substitute services….There is certainly a health and medical benefit aspect to these services.

Prejudice To Defendant Not Enough To Compel Plaintiff to Attend "Responding" IME

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized. 50 Comments on Prejudice To Defendant Not Enough To Compel Plaintiff to Attend "Responding" IME

(Update November 16, 2011 – The case discussed in the below post has now been published and full reasons for judgement can be found here)
One of the patterns that is becoming very clear under the New Rules of Court is that Parties ignore the 84 day requirement for exchange of expert evidence at their peril.
Often times Defendants apply for an order compelling a Plaintiff to attend an Independent Medical Exam beyond this deadline.  Numerous cases have considered such applications with the argument that an assessment is necessary in order to obtain a ‘responding‘ report under the more generous 42 day deadline of Rule 11-6(4).  Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, considering and rejecting such an argument.
In today’s case (Scott v. Ridgway) the Plaintiff was injured and sued for damages.  In the course of the lawsuit the Plaintiff served the report of a vocational consultant.  The Defendant applied for an order to compel the Plaintiff to attend an independent exam in order to obtain a responding report.   The Defendant brought the application after the 84 day deadline.  Madam Justice Kloegman dismissed the application finding that prejudice is not enough to compel an IME for the purpose of a responding report.  The Court provided the following useful reasons:
[6]  I am not persuaded that the plaintiff is required to attend before Dr. Banks in order for the defendant to file a responsive report.  I am aware of the prejudice claimed by the defendant that their expert’s opinion may be given less weight because of lack of examination of the plaintiff.  However, if they are prejudiced, it is of their making and not the result of any conduct of the plaintiff.
[7]  The rules are clear.  They must be obeyed in the absence of special circumstances.  There are no special circumstances here that would allow the defendant to file a report containing fresh opinion.  The defendant will be restricted to analyzing and respond to the plaintiff’s report.
I should note that some previous cases have ordered physical examination for responding report purposes, however, in such cases the Court was presented with affidavit evidence from the proposed expert explaining why such an examination is necessary.
In today’s case the Defendant did provide an affidavit from a doctor but the court placed no weight in it and criticized it for being “lifted from another affidavit sworn by another expert in another case with other expertise than that of Dr. Cook”.
Today’s reasons are unpublished but as always I’m happy to share a copy with anyone who contacts me and requests these.

Professional Misconduct Finding for Lawyer Who Received Money "In Excess" of ICBC Settlement

Written by admin on . Posted in Uncategorized.


A Hearing Report was released last week by the Law Society of BC finding that a lawyer committed “professional misconduct” for failing to inquire in a timely fashion into an overpayment from ICBC following the settlement of 4 personal injury claims.
In last week’s case the lawyer represented four clients who sustained injuries in a 2006 collision.  A settlement was reached.  Apparently an oversight ocurred and ICBC provided a settlement cheque for $10,948 over and above the settlement figure.
During a routine compliance trust audit several months following the settlement, the Law Society’s Trust Assurance Department found that the lawyer “still had $10,948 in his trust account”. The lawyer apparently had handwritten notes of his discussion with his clients around the time of settlement indicating that “the funds were to be kept until an apparent limitation date expired“.
Ultimatley a hearing was held investigating this matter.  The Hearing Report indicates that the lawyer explained that “the difference between the cheque received in the amount of $45,264 and the settlement agreed upon in the amount of $32,000 plus disbursements that ICBC agreed to pay in the amount of $2,316, was paid for bad faith”  but since ICBC would not “go on the record for paying money out for bad faith” he assumed they would be receiving a cheque that included money for bad faith but not be designated as such.
The Law Society rejected this explanation and cited the lawyer for “professional misconduct” finding that his behaviour was a “marked departure from the conduct expected of a lawyer in such circumstances“.  In coming to this conclusion the Law Society provided the following sensible advice to lawyers who receive an overpayment following the settlement of a personal injury claim:
[31] This Panel has concluded that the Respondent, when he received the cheque from ICBC, knew the sum received was in excess of the settlement and, as a result, he should have taken an appropriate step to clarify what appeared to be an error. Instead, it was not until well after the receipt of the funds that he communicated with ICBC. That communication was substantially later than it should have been. While it appears that the Respondent may have had conflicting instructions from his clients with respect to whether or not to communicate with ICBC, he should have simply and clearly posed the question to ICBC as to whether or not they had made an error in calculating the amount of money paid. If he felt that he was acting contrary to his clients’ instructions, he should have advised them to obtain separate counsel. Instead, he did not act until the Law Society commenced its investigation following the audit. While he promptly communicated with the clients on July 3, 2008 with respect to the fact that the funds were held in trust as required by the Law Society Rules, he did not communicate with ICBC until well after the Law Society questioned him on several occasions about why he had not contacted ICBC. At the same time, when he did contact ICBC, he did not explain in a clear and unequivocal way what the issue was, which further compounded the problems.

[32] In this Panel’s view, the failure of the Respondent to make the obviously necessary inquiry was questionable conduct casting doubt on the Respondent’s competence and also reflecting adversely on the integrity of the legal profession. Given the foregoing, the Panel has concluded that the Respondent committed professional misconduct as this is a marked departure from the conduct expected of a lawyer in such circumstances.