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More From the BC Court of Appeal on Causation in Personal Injury Lawsuits

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The BC Court of Appeal released reasons for judgment this week providing a short and useful summary of the law of causation in personal injury lawsuits.
In this week’s case (Farrant v. Laktin) the Plaintiff was injured in a 2004 collision.  He had pre-existing problems due to spinal degeneration which continued to bother him at the time of the collision.  Following the collision the Plaintiff’s symptoms worsened.  At trial the Court rejected the argument that the Plaintiff’s on-going symptoms were related to the crash.  The BC Court of Appeal ordered a new trial finding that the Trial Judge did not apply the proper legal test for causation.  In doing so the Court provided the following helpful summary of the law:






[8] To justify compensation for his disabling pain, the plaintiff must establish a causal connection between the defendant’s negligence and that pain.

[9] The general test for causation, established in Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17, is the “but for” test: “but for” the accident, would the plaintiff have suffered the disabling pain? In Athey, the Court also stated that a plaintiff need not establish that the defendant’s negligence was the sole cause of the injury. If there are other potential non-tortious causes, such as the plaintiff’s spinal degeneration in this case, the defendant will still be found liable if the plaintiff can prove the accident caused or materially contributed to the disabling pain, beyond the de minimus range.

[10] In Resurfice Corp. v. Hanke, 2007 SCC 7, 1 S.C.R. 333, the Supreme Court affirmed the “but for” test remains the basic test for determining causation, but developed the concept of “material contribution” in a different manner than that used in Athey, formulating a “material contribution” test as an exception to the “but for” test, a matter that is not relevant to this appeal. The Court replaced the Athey definition of “material contribution” to the plaintiff’s injury with the concept of “a substantial connection” between the injury and the defendant’s conduct. These developments were usefully summarized by Mr. Justice Smith, writing for the majority, in Sam v. Wilson, 2007 BCCA 622 at para. 109:

“Material contribution”, as that phrase was used in Athey v. Leonati, is synonymous with “substantial connection”, as that phrase was used by McLachlin C.J.C. above in Resurfice Corp. v. Hanke.  This causal yardstick should not be confused with the “material contribution test”.  As McLachlin C.J.C. explained in Resurfice Corp. v. Hanke, at paras. 24 – 29, the “material contribution test” applies as an exception to the “but for” test of causation when it is impossible for the plaintiff to prove that the defendant’s negligent conduct caused the plaintiff’s injury using the “but for” test, where it is clear that the defendant breached a duty of care owed the plaintiff thereby exposing the plaintiff to an unreasonable risk of injury, and where the plaintiff’s injury falls within the ambit of the risk. …

[11] Thus, in applying the “but for” test, the trial judge was required to consider not just whether the defendant’s conduct was the sole cause of the plaintiff’s disabling pain, but also whether the plaintiff had established a substantial connection between the accident and that pain, beyond the de minimus level.







QEEG Evidence Not Admissible In BC Brain Injury Claim

Written by admin on . Posted in Civil Procedure, ICBC Brain Injury Cases, Uncategorized. 60 Comments on QEEG Evidence Not Admissible In BC Brain Injury Claim

(Image courtesy of Wikipedia)
Reasons for judgement were published this week by the BC Supreme Court, Victoria Registry, addressing the admissibility of QEEG Evidence in a brain injury claim.  In short the Court held that while such evidence may be admissible in appropriate cases, the evidence presented in the case was insufficient to meet the threshold test of reliability to admit “novel” evidence.
In this week’s case (Bialkowski v. Banfield) the Plaintiff was injured in a motor vehicle collision.  He allegedly suffered a traumatic brain injury.  In support of his claim he tired to introduce QEEG evidence  tendered through a neuropsychologist.  Mr. Justice Bracken declined to let the evidence in finding that the neuropsychologist was not properly qualified to introduce the QEEG evidence and further the evidence was not proven to be reliable.  In excluding the evidence Mr. Justice Bracken provided the following summary of his findings:



[3] Electroencephalography (“EEG”) is a means of recording the electrical activity of the brain.  Typically, electrical signals are received through 19 electrodes placed on certain areas of the scalp by attaching the electrodes to a cap that fits snugly over the patient’s head.  The electrical activity is then recorded either on paper, or digitally on a computer.  The clinician can then visually examine the recorded data to analyze the patterns of activity.

[4] QEEG is a relatively new neuroimaging technique.  It uses computer assisted analysis of EEG tests.  The raw EEG data is digitized and analyzed by means of a mathematical algorithm.  It is said that the computer analysis is capable of extracting more information from the raw EEG data and enables the clinician to observe more subtle anomalies than can be seen with the eye on standard visual analysis.  Using another program the digitized data is then compared to a normative database to determine if the data are consistent with what is normal for a comparable group of individuals…

[58] While there may be cases where QEEG evidence will be accepted as part of expert opinion in Canadian Courts it should only be through a neurologist who is trained and qualified in EEG testing and analysis.  In my view, only a trained electroencephalographer who has the skill, knowledge and training to recognize the potential for error is qualified to give opinion evidence of QEEG analysis.

[59] On the evidence presented in this case, I find the QEEG evidence to be novel science and not sufficiently reliable for admission into evidence on the principles established in J.L.J. andMohan.  I conclude it will not assist the trier of fact.  As science progresses this may change and the evidence may meet the test of reliability so as to be admissible at some point in the future.  As was noted in Seifert, the fact that expert evidence conflicts does not, by itself, make it inadmissible.  Coburn, et al, recognize this in the conclusion of their report at p. 23, where it is stated:

Used cautiously and with appropriate recognition of its limitations, QEEG offers the clinician an accurate laboratory test to aid in the detection and differential diagnosis of several common neuropsychiatric disorders.  …  Additional uses of QEEG showing promise but not yet sufficiently developed for routine clinical application include the prediction of medication efficacy and the prediction of the clinical cause of a disorder.

There is nothing in that conclusion to suggest it will become clinically useful in diagnosing traumatic brain injury in the near future; however, it remains open for such evidence to be offered through an appropriate expert if and when it satisfies the evidentiary requirements of Canadian Courts.

[60] The evidence of QEEG analysis given by Dr. Malcolm is rejected as not being offered by a qualified expert.  QEEG does not meet the requisite reliability threshold and is still novel science.



Striking Pleadings Under Rule 9-5: The "No Reasonable Prospect of Success" Test

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The Supreme Court of Canada recently addressed the legal framework for striking pleadings pursuant to Rule 9-5.  In short, the Court repeated the longstanding test that pleadings will only be dismissed under the BC Supreme Court Rules if they have ‘no reasonable prospect of success‘ and that the parties cannot tender evidence in support of these applications.
In the recent case (R v. Imperial Tobacco Ltd.) the Court was faced with a lawsuit by British Columbia seeking to recover health care costs for tobacco related illnesses.  In the course of defending the lawsuit the tobacco companies issued Third Party Pleadings against the Government of Canada pleading that if they are held liable to the Government of BC the Federal Government should indemnify the Tobacco Companies for damages payable.  The Government of Canada brought an application to dismiss the Third Party Pleadings.
The Supreme Court of Canada granted the application and dismissed the Third Party Pleadings.  In doing so the Court provided the following legal framework for Pleading strike applications:
This Court has reiterated the test on many occasions.  A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action… Another way of putting the test is that the claim has no reasonable prospect of success.  Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial…

[19] The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation.  It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.

[20] This promotes two goods — efficiency in the conduct of the litigation and correct results.  Striking out claims that have no reasonable prospect of success promotes litigation efficiency, reducing time and cost.  The litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless.  The same applies to judges and juries, whose attention is focused where it should be — on claims that have a reasonable chance of success.  The efficiency gained by weeding out unmeritorious claims in turn contributes to better justice.  The more the evidence and arguments are trained on the real issues, the more likely it is that the trial process will successfully come to grips with the parties’ respective positions on those issues and the merits of the case.

[21] Valuable as it is, the motion to strike is a tool that must be used with care.  The law is not static and unchanging.  Actions that yesterday were deemed hopeless may tomorrow succeed.  Before Donoghue v. Stevenson, [1932] A.C. 562 (H.L.) introduced a general duty of care to one’s neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer.  Before Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), a tort action for negligent misstatement would have been regarded as incapable of success.  The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim.   The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed.  The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

[22] A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven: Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 455.  No evidence is admissible on such a motion: r. 19(27) of the Supreme Court Rules (now r. 9-5(2) of the Supreme Court Civil Rules).  It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim.  A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses.  The claimant may not be in a position to prove the facts pleaded at the time of the motion.  It may only hope to be able to prove them.  But plead them it must.  The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated.  If they are not pleaded, the exercise cannot be properly conducted…

It is not about evidence, but the pleadings.  The facts pleaded are taken as true.  Whether the evidence substantiates the pleaded facts, now or at some future date, is irrelevant to the motion to strike.  The judge on the motion to strike cannot consider what evidence adduced in the future might or might not show.  To require the judge to do so would be to gut the motion to strike of its logic and ultimately render it useless.

[24] This is not unfair to the claimant.  The presumption that the facts pleaded are true operates in the claimant’s favour.  The claimant chooses what facts to plead, with a view to the cause of action it is asserting.  If new developments raise new possibilities — as they sometimes do — the remedy is to amend the pleadings to plead new facts at that time.

[25] Related to the issue of whether the motion should be refused because of the possibility of unknown evidence appearing at a future date is the issue of speculation.  The judge on a motion to strike asks if the claim has any reasonable prospect of success.  In the world of abstract speculation, there is a mathematical chance that any number of things might happen.  That is not what the test on a motion to strike seeks to determine.  Rather, it operates on the assumption that the claim will proceed through the court system in the usual way — in an adversarial system where judges are under a duty to apply the law as set out in (and as it may develop from) statutes and precedent.  The question is whether, considered in the context of the law and the litigation process, the claim has no reasonable chance of succeeding.

This decision is also worth reviewing for the Court’s discussion of the concepts of proximity, forseeability, and private law duties of care which I will address in a separate post.

Lawyer Shopping Not Enough to Create Conflict of Interest in Personal Injury Claim

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Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing conflicts of interest when a lawyer sues a person who previously contacted their firm following a motor vehicle collision.
In last week’s case (Caballero v. O’Callaghan) the Defendant was the owner of a vehicle which was involved in a single vehicle collision.  The Plaintiff was a passenger in the vehicle and was injured.  Shortly after the collision the Defendant owner contacted several lawfirms including the firm that eventually was retained by the Plaintiff.
The Plaintiff ultimately sued both the owner and driver of the vehicle he was in.  A few years into the lawsuit the Defendant owner brought an application to dismiss the Plaintiff’s lawyer arguing he was acting in a conflict of interest.   Madam Justice Loo disagreed finding that while the Defendant did phone the Plaintiff’s lawfirm, he never spoke with the Plaintiff’s lawyer nor did he retain the firm.  In dismissing the application the Court provided the following reasons:



[36] The facts in this case fall within what is often referred to in these types of cases as a “shopping case”. Mr. Wells was looking or shopping for a lawyer and for legal advice. What he told Ms. D’Souza is most likely what he told the “numerous” lawyers he contacted on September 20, 2006.

[37] A reasonable person informed of all of the facts would not conclude there is a risk that Mr. Wells will be prejudiced by the information he provided to Ms. D’Souza or Slater Vecchio, or that anything unjust would arise.

[38] If I am wrong, there are other facts that I can take into account in deciding whether this application should succeed or whether Mr. Cantu should maintain his right to be represented by the counsel of his choice. Mr. Wells has known about this action since at least in or around October 20, 2008 when Quinlan Abrioux entered an appearance on his behalf. Yet he delayed almost two years before he first raised the issue of a conflict. Since December 2006 Slater Vecchio has done a significant amount of preparatory work for the trial which is set for ten days commencing February 6, 2012. Mr. Cantu selected Slater Vecchio as his counsel. As a result of the injuries he sustained in the accident, Mr. Cantu had to close his business, has been unable to find other employment, and is currently working with a vocation counsellor to consider his future employment options. He has either undergone or expects to undergo hip surgery with an expected long and painful recovery period. He is anxious to have the action resolved and move on with his life.

[39] However, apart from any delay argument, I conclude that the interests of justice do not require this Court to remove Slater Vecchio as lawyer for the plaintiff and the application is dismissed with costs.



The Deductibility of Part 7 Benefits in ICBC UMP Claims

Written by admin on . Posted in ICBC UMP Cases.

I’ve previously discussed the deductibility of Part 7 Benefits in Tort Claims.  These benefits are also deductible in ICBC UMP (Underinsured Motorist Protection) Claims.  This was demonstrated in CD v. ICBC which I summarize below in my effort to create a searchable UMP judgement database.
In CD v. ICBC the Claimant was injured in a 2003 Collision in California.  The at fault motorist only had $25,000 in Third Party Liability coverage.  The Claimant was insured with ICBC applied to ICBC pursuant to UMP.  The value of the Claimant’s claim was decided via arbitration.  Arbitrator Yule quantified the claim at $27,500 less the $25,000 USD payment that was made by the at fault party’s insurer.  When converted to Canadian funds the payment exceeded the value of the claim leaving ICBC with no responsibility to pay under UMP.
Prior to reaching this conclusion the Arbitrator addressed the deductibility of Part 7 Benefits.  The Claimant claimed special damages of $1,445.  ICBC argued that all of this could have been claimed as a Part 7 Benefit and ICBC was under no obligation to cover these expenses under the provisions of UMP.  Arbitrator Yule agreed and in doing so provided the following reasons:
[ICBC] takes the position that nothing is recoverable for physiotherapy or massage therapy because these expenses are payable as no-fault benefits under Part 7 and, as such, are a “deductible amount” from UMP compensation.  There is no evidence that ICBC refused to pay these expenses under Part 7…I agree that the physiotherapy and massage therapy expenses are not recoverable in these circumstances as part of UMP compensation.  The vehicle repair deductible is not compensible because it is a claim relating to property damage, and UMP compensation is restricted to damages for injury or death.

$30,000 Non-Pecuniary Damage Assessment for "Moderate" Soft Tissue Injuries

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

Adding to this site’s ICBC claims pain and suffering database, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a moderate soft tissue injury.
In today’s case (Olianka v. Spagnol) the Plaintiff was injured in a 2008 collision.  Fault was admitted.   The evidence was not particularly contested and the trial proceeded summarily.  The Court found the Plaintiff suffered moderate soft tissue injuries that were temporarily disabling with symptoms that were expected to linger into the future.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $30,000 Mr. Justice Blair provided the following reasons:




[21] Mr. Olianka suffered what Dr. Neumann describes as a moderate soft tissue injury to the neck, a moderate soft tissue injury to the mid-back and a mild soft tissue injury to his lower back. I accept Mr. Olianka’s evidence with respect to his collision-related injuries and that these injuries precluded him from working for a four-month period. I also accept that Mr. Olianka continues to experience intermittent pain in his neck and upper back which is expected to last for some unknown period. Dr. Neumann opined that by January 14, 2011, Mr. Olianka had made a significant recovery from his injuries and concluded that his residual pain should gradually subside in intensity and frequency. He did not expect Mr. Olianka to suffer any permanent consequences from his collision-related injuries.

[22] Nevertheless, the optimism expressed by Dr. Neumann and reflected in Mr. Olianka’s increased activity level does not overshadow Mr. Olianka’s difficulties for the 27-month period between the collision and Dr. Neumann’s report dated January 14, 2011. In that period, Mr. Olianka, due to his injuries, was unable to work for four months and subsequently those injuries compromised his ability to fully perform his work as he had done prior to the collision. In addition, he was unable to enjoy the leisure activities in which he had participated prior to the collision. This 27-month recovery period must be considered when ascertaining the non-pecuniary damages award to which Mr. Olianka is entitled. I accept that he continues, to some lesser degree, to suffer intermittent pain from his collision-related injuries as described by both Mr. Olianka and Dr. Neumann…





[28] Based on the authorities and the unique evidence found in this case, I find that the appropriate award for Mr. Olianka’s non-pecuniary damages is $30,000, taking into account all contingencies, given the extent of the soft tissue injuries to his neck and back, the disability period of 27 months post-collision, as well as the lingering and ongoing aspect of his injuries, the limitations that the injuries imposed, not just on his ability to work, but also on his ability to partake in those physical activities which occupied his life prior to the collision and which he has only recently been able to resume albeit to a limited extent.

BC Supreme Court Declines Jurisdiction in Out of Province Sexual Abuse Action

Written by admin on . Posted in Civil Procedure, Sexual Assault Civil Cases, Uncategorized. 43 Comments on BC Supreme Court Declines Jurisdiction in Out of Province Sexual Abuse Action


Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing the jurisdiction of the BC Supreme Court to hear a claim involving alleged sexual abuse which took place out of  Province.
In this week’s case (TC v. AM) the Plaintiff sued her former father in law in the BC Supreme Court claiming he sexually abused her in Montreal.  The Defendant, at all material times, lived in Montreal and continued to reside there when the lawsuit started.  He did not respond to the lawsuit.  The Court ultimately found that no jurisdiction existed to hear this case pursuant to the Court Jurisdiction and Proceedings Transfer Act.  In doing so the Mr. Justice Harvey provided the following reasons:





[8] None of the presumptive categories under s. 10 of the CJPTA apply in these circumstances; however, the language of s. 10 clearly indicates that those categories do not limit “the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based.”

[9] The common law threshold for a real and substantial connection is high. In Josephson v. Balfour Recreation Commission, 2010 BCSC 603, Loo J. stated:

[79] The real and substantial connection test requires that there be a significant or substantial connection: Beals v. Saldanha, [2003] 3 S.C.R. 416; and UniNet Technologies Inc. v. Communication Services Inc., 2005 BCCA 114.

[10] The jurisprudence in British Columbia suggests that the mere residence of the plaintiff in British Columbia is not sufficient to establish jurisdiction over a defendant resident outside of the province. Something more is required. This was discussed in Dembroski v. Rhainds, 2011 BCCA 185, where Hall J. referred to the decision of Bruce J. in Roed v. Scheffler, 2009 BCSC 731…

[11] This case lacks the additional element, beyond the mere residence of the plaintiff in this jurisdiction, to support a finding that there is a real and substantial connection between British Columbia and the facts on which a proceeding is based. The action concerns allegations of sexual assault in Quebec in relation to a defendant who continues to reside in Quebec. There is not a “significant connection” as required by the Supreme Court of Canada in Beals v. Saldanha, [2003] 3 S.C.R. 416.

[12] That the plaintiff suffers damages here is, as was the case in Roed, purely as a result of her residence in British Columbia. As stated by Dickson J. in Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, and referred to in Dembroski, if the essence of a tort is injury, “a paramount factor in determining situs must be the place of the invasion of one’s right to bodily security.” That location in this case is Quebec. The motor vehicle scenarios in Roed and Dembroski are analogous for the purposes of determining territorial competence, as they concern tortious conduct in another jurisdiction. The presence of the plaintiff in British Columbia alone does not establish a real and substantial connection in relation to events that occurred in another jurisdiction where the defendant continues to reside.

[13] Accordingly, I dismiss the plaintiff’s application.





Gross Past Tort Payments Deductible in ICBC UMP Claims

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Thoracic Outlet Syndrome Cases, ICBC UMP Cases. 60 Comments on Gross Past Tort Payments Deductible in ICBC UMP Claims


This is the second in my series of UMP Case Summaries.  In today’s case (LD v. ICBC) the arbitrator had to address whether legal fees can be taken into account when considering the deductibility of past tort payments.
In LD the Claimant was involved in as 2003 collision in California.  The Claimant was insured with ICBC and had UMP coverage.  The at fault motorist only had $25,000 in Third Party Liability coverage and ICBC agreed that the Claimant’s claim exceeded this amount.
The parties agreed to have the value of the claim determined via UMP Arbitration.  Total damages of $86,608.31 were assessed.  Prior to this the Claimant already settled with the Defendant’s insurer for the policy limits of $25,000.  She had to hire counsel to achieve this result and after legal fees she received $16,054.
The Claimant argued that only the $16,054 should be deducted from the UMP damage assessment.   The arbitrator (Donald Yule) disagreed and deducted the full $25,000.  In doing so he provided the following reasons:
ICBC, however, submits that the correct deductible amount is what the M’s liability insurer was obliged to pay, namely $25,000.   (This position) is supported by the decision of Arbitrator Paul Fraser, Q.C. in Cederberg v. ICBC (May 18, 1995)….As Mr. Fraser concluded, the obligation to pay attorney’s fees arose out of a separate and independent contract with the attorney which, in no way, reduce the amount paid by the tortfeasor or payable by the tortfeasor’s insurer.  I agree with his analysis.  The full amount of the settlemetn of the M’s liability insurer is therefore a deductible amount.
This decision is also worth reviewing for the non-pecuniary damage assessment.  The Plaintiff suffered various soft tissue injuries.  Non-pecuniary damages were assessed at $55,000.  In doing so Arbitrator Yule made the following findings:
I find that in the accident Mrs. D suffered a Grade III whiplash associated disorder injury, bilateral thoracic outlet syndrome and right ulnar neuropathy, a Grade II lumbosacral spinal strain injury and myofascial pain in her shoulder ridge areas, and bruising to the knee.  These injuries caused headaches, interference with sleep, fatigue, irritability and anxiety.  The bruising resolved in short order.  The low back symptoms resolved within 2 years.  Headaches, and neck pain extending into the shoulders, while significantly inmproved by September, 2005, have nevertheless persisted to the date of hearing…
…I assess Mrs. D’s non-pecuniary damages at $55,000.
I should note that, adjusting for inflation, this assessment is closer to $58,000 in today’s dollars.

Waiting For Police Report Held Insufficient to Postpone Limitation Period in ICBC Claim

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


Section 6(4) of the BC Limitation Act states in part that a limitation period “does not begin to run against a plaintiff…..until the identity of the defendant…is known to the plaintiff“.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering this provision in the context of an ICBC Claim.
In this week’s case (Telus Corporation v. Araneda) equipment owned by Telus was struck by a motor vehicle causing $43,000 in damage.  They sued the party they alleged was responsible but did so nine days after the limitation period expired.
Telus argued that the running of the period should be postponed by several days under s. 6(4) of the Limitation Act because it took 18 days for them to receive the police report identifying the defendant.  Mr. Justice McEwan rejected this argument and dismissed the lawsuit.  In doing so the Court provided the following reasons:


[20] …. On the day of the accident, Telus, through its employee Dale Summers, knew it had a claim for property damage and knew the name of the tortfeasor was immediately ascertainable from a reliable source, the RCMP.

[21] In saying so, I reject Telus’ argument that a large enterprise should be judged on its “ individual circumstances” and that its step-wise approach to the management of its legal claims is akin to the situation in Strata Plan LMS 2940 v. Quick as a Wink Courier, 2010 BCCA 74. There the Court of Appeal upheld a judge of this Court who had found that an action brought by a strata corporation against an individual one day outside the limitation period was not statute-barred because the strata corporation was obliged to pass a resolution before it could initiate the action, and doing so took some time.

[22] Telus was not impeded by a statutory prerequisite, and there is no reason in principle why a large organization should be judged by a more accommodating standard than would apply to any competent individual. As in Meeker, Telus knew on the first day of the accident that it had suffered actionable harm and that the name of the person involved was ascertainable.

[23] It is regrettable that the limitation period went by in this case. As some of the case law demonstrates Courts frequently go some distance to ensure that cases are tried on their merits. The policy inherent in limitation periods, however, must also be respected. Applying the relevant legal principles to the present case, Telus has not established that it is entitled to postponement, and the action must be dismissed.


UMP Arbitration Caselaw Summary: Non-Pecuniary Damages for Tibial Plateau Fracture

Written by admin on . Posted in ICBC Knee Injury Cases, ICBC UMP Cases, Uncategorized. 49 Comments on UMP Arbitration Caselaw Summary: Non-Pecuniary Damages for Tibial Plateau Fracture

As previously discussed, when catastrophic injuries are sustained through the fault of an under-insured motorist most British Columbians enjoy Underinsured Motorist Protection “UMP”.
Sections 148.1 – 148.4 of the Insurance (Vehicle) Regulation deal with UMP Claims.  When disputes arise as to the availability or the amount of UMP coverage the matter needs to be resolved through private arbitration as opposed to a public lawsuit.   The law requires all UMP decisions from 2007 onward to be published on ICBC’s website.  These cases, unfortunately, are published in PDF Format and they are not search friendly.  To remedy this I’ve decided to include UMP case summaries on this blog.  With that in mind here is the first in a series of UMP cases summaries.
The first UMP judgement published was RAH v. ICBC.  In RAH the Claimant was injured in a 2002 motor vehicle collision.   Fault was admitted.  It was agreed that the value of the claim would exceed the Defendant’s insurance limits and the parties agreed to have the value of the claim adjudicated by way of UMP Arbitration.

The Claimant suffered a comminuted fracture of the left medial and tibial plateaus.  These required surgical correction.   Unfortunately, even with surgical correction, the injury was so severe that the Claimant was left with “a marked disruption of the articular surface which accounted for on-going pain and inability to regain full movement of the left knee“.   The prognosis was for gradual worsening with a likelihood of a total knee replacement.   It was accepted that this injury would seriously impede the Claimant’s ability to earn a living and total damages of $681,000 were awarded.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $95,000 the arbitrator (Donald Yule) provided the following reasons:
The Claimant sustained severely comminuted medial and lateral tibial plateau fractures of the left knee.  He has undergone two surgeries, one to reduce the fractures with two plates and 10 screws and a second procedure to remove the hardware.  He faces the prospect of further surgery for a total knee joint replacement with a possible further revision 15 years later.  He has permanent on-going pain which will inevitably worsen over time until the first knee joint replacement surgery is done.  He has permanent loss of flexion of the left knee and knee joint replacement surgery will likely increase the loss of flexion.   He cannot return to his former occupation as industrial nurse/medic.  He cannot walk or sit for prolonged periods of time without causing an increase in left knee pain.   He takes non-morphine analgesics on a daily basis and occasionally Percocet for break-through pain.   He continues to use a cane.  Prolonged standing, walking on uneven surfaces, and going up and down stairs all aggravate his symptoms and will hasten the time when knee joint replacement surgery is required.  The claimant was physically active outdoors, apart from his work, before the Accident, both in the Scouting and Fourth Ranger groups and for recreational hiking, hunting, fishing and camping.  These activities except in a most limited and superficial manner, are now foreclosed to him…
…I assess the non-pecuniary damages at $95,000.
I should point out that this case was decided in 2008 and adjusting for inflation the assessment would be approximately $100,000.