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Firing Your ICBC Claims Lawyer: The Costs/Benefits Analysis

Written by admin on . Posted in Uncategorized. 1 Comment on Firing Your ICBC Claims Lawyer: The Costs/Benefits Analysis

As discussed last year in the below video, if you hire a lawyer to represent you for a personal injury claim and are not satisfied with their performance you can fire them.  However, there usually is a cost associated with this.
When people are seeking a new lawyer my typical advice is to first have them review their contract and determine how much it will cost them to change counsel.  From there an informed decision can be made whether the shortcomings in their current lawyer relationship outweigh the costs of moving on.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating the costs that come with switching lawyers.
In this week’s case (Alafriz v. Mathivanan) the Plaintiff was injured in a motor vehicle collision and hired a lawyer to represent him.  The Plaintiff eventually changed lawyers.  A dispute arose over how much was owed to the first lawyer for services rendered.  The lawyer sent a bill seeking $5,825.  The client refused to pay this and the Court was asked to settle the issue.  Ultimately Registrar Sainty held that the first lawyer’s bill was “far too pricey in these circumstances“.
Despite this the Court held that the first lawyer was entitled to a fee for the services rendered and ordered the client to pay $3,000.  This case is worth reviewing in full to see the types of factors the Court considers in addressing the appropriateness of a fee for a personal injury claim where a client changes lawyers prior to settlement or trial.

More on the Limits of "Nervous Shock" Claims

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC PTSD Cases, Uncategorized. 47 Comments on More on the Limits of "Nervous Shock" Claims

As recently discussed, in appropriate circumstances witnesses to the consequences of a BC collision can sue for damages for “nervous shock“.  There are some limits on these claims and one of these relates to whether the shocking event is “sudden and unexpected“.  If not, a claim for damages for nervous shock will fail.  This topic was addressed in reasons for judgement released today by the BC Court of Appeal.
In today’s case (Toukaev v. ICBC) the Plaintiff’s spouse was seriously injured in a motor vehicle collision.  He was notified of the crash and saw his wife shortly afterwards in the hospital.  He claimed he suffered damages after seeing his wife “in a very bad state at hospital” and sued for compensation.  His claim was dismissed and he appealed.  The Appeal was dismissed.  In doing so the BC Court of Appeal provided the following reasons addressing the need for nervous shock claims to develop as a result of ‘sudden and unexpected‘ events:

[21]         Chief Justice McEachern went on to state that while the Court was in part bound by Rhodes, he did not consider Rhodes as standing for the proposition that for a claim for nervous shock to be found, psychological injury must have occurred at the scene of the accident.  He stated that in certain cases it could be extended to the events at the hospital immediately after the accident.  At paras. 75 – 77, the Chief Justice concluded:

[75]      The law in this province, as formulated by Rhodes, requires that the plaintiffs, in order to succeed, must experience something more than the surprise and other emotional responses that naturally follow from learning of the death of a friend or relative. Instead, there must be something more that separates actionable responses from the understandable grief, sorrow and loss that ordinarily follow the receipt of such information. In Rhodes, Taylor and Wood JJ.A. described the requisite experience as alarming and startling (and therefore sudden and unexpected), horrifying, shocking and frightening, and Southin J.A. referred to a “fright, terror or horror”.

[76]      The nature of the experience by which an injury is alleged to have been suffered is one of the “controlling mechanisms” that serve to limit the reach of liability for nervous shock in this province. It seems to me that the principle shock suffered by the plaintiffs was in learning of Yasmin’s death; after that, grief, sorrow and regret would follow immediately, and would continue for an unlimited period. The experience of viewing the body, however, cannot be equated to the shock and horror that would be experienced, for example, at the scene of an accident witnessed by the plaintiffs because the features of surprise, shock, horror and even fear are absent in a hospital setting. As already mentioned, it might have been different if Yasmin’s body had been horribly mutilated or if she had died in the presence of her family. That was the case in Cox v. Fleming (1993), 13 C.C.L.T. (2d) 305 (B.C.S.C.) where the plaintiff succeeded. That would be a different case and one that I need not attempt to decide.

[77]      While I consider myself free to agree with many eminent judges who have extended the immediate aftermath of a casualty to the hospital in circumstances such as these, I am constrained by authorities binding upon me to decide that the experience the plaintiffs endured, grievous as it must have been for them, was not one that falls within the requirements of the law relating to the circumstances in which persons who are not physically injured are entitled to damages for nervous shock.

[22]         Here, Mr. Toukaev learned of Ms. Toukaeva’s injuries before he saw her, and while her condition must have been upsetting to him when he saw her, it could not be said to have been unexpected.  As was the case for Yasmin Devji’s family, the Chambers Judge here concluded that a claim by Mr. Toukaev would not fall within the requirements of the law relating to the circumstances in which persons who are not physically injured are entitled to damages for nervous shock, and I conclude that that aspect of his appeal lacks the degree of merit necessary to justify a finding of indigent status.

Cost of Future Care Awards and Tax Gross Ups: Can Tax Planning Strategies Be Considered?

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When Personal Injury Plaintiffs are awarded damages for costs associated with future medical care they are expected to invest the money and draw from this fund to pay for their future care needs over their lifetime.  The difficulty is that while personal injury damage awards are not taxable, investment income is.  To account for this Trial Judges have the ability to award further damages to set off these tax consequences.  This is called a “tax gross up” award.  Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing this area of law.
In today’s case (Sartori v. Gates) the Plaintiff was awarded damages by a Jury which included $41,000 for cost of future care.  The Plaintiff applied for a tax gross up and presented an actuarial report which concluded that approximately $10,000 would be necessary to offset the investment tax consequences from the cost of care award.  ICBC presented contrary evidence arguing that an award of $3,000 would be appropriate.
The main reason for the difference in the economists opinions was whether the Court could consider tax minimizing strategies in quantifying a tax gross up award.  Ultimately the Court held that these can be considered, however, the whole of these strategies are not to be applied solely to the damage award for cost of future care.   Mr. Justice Wilson provided the following practical reasons:

[20]         In result, I find the tax free savings account benefits to be a lawful consideration in defining the tax gross up amount.  That said, however, Townsend is also authority (among many, many others) for the principle that, “compensation aims at restoring the victim to the position that person would have been in had no loss been incurred”.

[21]         A cost of future care award is founded on the theory that the tortfeasor must provide a fund from which the victim may draw to meet future expenses as they occur.  It is a presumption of law that the fund will be invested and will earn income.  According to the theory, as I understand it, the fund and its income, is a separate stand-alone phenomenon.  It appears to me that Mr. Szekely has treated it as such in his analysis.  Therefore, the tax benefits available to the plaintiff, by virtue of a tax free savings account, are exhausted in this separate stand-alone account.

[22]         Commencing 1 January 2009, the plaintiff has been entitled to the tax benefits of a tax free savings account.  It seems to me that if I assign all of the tax benefits, from a tax free savings account, to this stand-alone account, then I will not be restoring the plaintiff to the position he would have been in had no loss been incurred.  To put it in Mr. Wickson’s terms, adopting Mr. Szekely’s approach, fails to recognize the plaintiff’s right to use the tax free savings account for his “first slice” income.

[23]         I have considered the tax benefits of a tax free savings account as a legitimate factor in determining the tax gross up and having done so, I conclude that in this particular case, Mr. Szekely’s calculations are not applicable in the determination of the tax gross up amount…

[31]         Finally, the fund available to meet the plaintiff’s costs of future care is $41,333.33.  I find it is more probable than not that the income to be earned from the investment of this fund will be interest income.  Therefore, I make no allocation for capital gain or dividend income and assess the tax gross up at $10,025.

The Duty of Motorists Approaching Flashing Green Lights

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.

Further to my recent post discussing this topic, Section 131(5) of the BC Motor Vehicle Act requires a driver approaching a flashing green light to travel with sufficient caution so they can bring their vehicle to a stop should it be necessary.  Failure to do so could result in fault for a crash even if another motorist fails to yield the right of way.  This was discussed in reasons for judgement released earlier this month by the BC Supreme Court, Vancouver Registry.
In the recent case (Lutley v. Southern) the Defendant was attempting to cross Oak Street in Vancouver, BC.  The Defendant was travelling on 67th Avenue.  She had a stop sign in her direction of travel.  At the intersection Oak Street had 6 lanes of travel.  The Plaintiff was travelling in the lane furthest away from where the Defendant entered the intersection.  As the Plaintiff approached the intersection she was faced with a flashing green light.  Neither party saw each other’s vehicle until it was too late and a collision occurred.

(Accident Reconstruction Software courtesy of SmartDraw)
Mr. Justice Rice found both drivers at fault with the Defendant shouldering 60% of the blame.   Although the Plaintiff entered the intersection on a green light she was found partly to blame for failing to comply with section 131 of the Motor Vehicle Act.  In addressing the issue of fault Mr. Justice Rice provided the following reasons:

[12]         By the Motor Vehicle Act, s. 131(5), a driver approaching a green flashing light at an intersection is obliged to slow down sufficiently to be able to stop before the intersection and avoid an accident.  I find that the plaintiff was negligent and in breach of her statutory duties by failing to slow down sufficiently to be able to stop at the intersection.  She could see that her vision of the intersection was obstructed and would continue to be obstructed practically until she had reached the intersection itself.  She should have applied her brakes as soon as the obstruction appeared and come to practically a stop at or near the intersection.

[13]         By the Motor Vehicle Act, ss. 125, 186 a driver approaching a stop sign must come to a full stop.  There is also a general duty to drive safely, maintain a proper lookout, and not to proceed forward until it is safe to do so.  I find that the defendant was negligent and in breach of her statutory duty in failing to maintain a proper lookout and by accelerating through the intersection when it was not safe to do so…

[18]         In conclusion, I find that both drivers were negligent and in breach of duties imposed upon them pursuant to the Motor Vehicle Act, R.S.B.C. 1996, c. 318 at ss. 125, 141.  I apportion liability at 60% to the defendant and 40% to the plaintiff.

More on Injury Claims, Credibility and Cross-Examination

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When personal injury claims go to trial a Plaintiff will have their allegations of injury tested through cross-examination.  If this process reveals enough inconsistencies in the Plaintiff’s direct testimony it can result in a poor finding of credibility by the trial judge which in turn will likely effect the outcome of the case.  This was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Dempsey v. Oh) the Plaintiff was injured when his bicycle was struck by a van driven by the Defendant.  The Plaintiff sued for damages.  The issue of fault was admitted by the motorist leaving the Court to deal with the issue of value of the claim.  The Plaintiff sought damages for a variety of alleged losses including past and future loss of income.  The Court dismissed much of the Plaintiff’s claim finding that the accident caused little more than a mild whiplash injury.
The main reason behind this result was an unfavourable finding of the Plaintiff’s credibility.  Mr. Justice Myers found that the Plaintiff was not candid about his injuries and provided the following critical reasons:

[38]    As Mr. Dempsey’s counsel acknowledged in argument, Mr. Dempsey’s credibility is central to this case.  Having reviewed the medical evidence, I will now comment on that.

[39]    Mr. Dempsey’s description of his condition prior to his accident was contradicted by the clinical records of Dr. Mintz, the cross-examination of Dr. Mintz and the cross-examination of Mr. Dempsey.  I am mindful of the cautions with respect to the use of clinical records that N. Smith J. helpfully summarised in his recent decision in Edmondson v. Payer, 2011 BCSC 118, which was released after the case at bar was argued.  However, the differences between the clinical records and Mr. Dempsey’s testimony are not minor; in fact, they are quite glaring and significant.  Further, Dr. Mintz testified as to his notations and Mr. Dempsey adopted them in his cross-examination.

[40]    It is apparent from the medical records and evidence that Mr. Dempsey greatly downplayed his back problems prior to the accident.  In his direct evidence, he described it as minor aches and pains.  When confronted with his medical history he acknowledged that it was at times “excruciating”.

[41]    The description as “minor” also flies in the face of the pain medications that he was taking.  In his direct examination Mr. Dempsey said that he often threw away expired medication.  That evidence was contradicted in cross-examination.

[42]    When Mr. Dempsey was cross-examined on his pre-accident medical history, his constant response was to admit that he had had pain, but that he was able to manage it with the pain medication and therefore function.  However, even that was not correct.  On cross-examination, he agreed that the clinical records of Dr. Mintz were accurate and include complaints of inability to sleep, drive, sit and to stand on his right leg.

[43]    In his direct examination, Mr. Dempsey was adamant that he played hockey up to the time of the accident.  However, on cross-examination, when confronted with the medical records, he agreed that he had given it up several years before the accident due to concerns about his back.

[44]    Mr. Dempsey downplayed his use of heroin, and as I said, he falsely stated that he had stopped using it in April 2004 (above, para. 24).

[45]    Mr. Dempsey blamed the accident for his alleged near-complete inability to work for an extended period after the accident.  However, he never described why he could not use the phone to add to or farm his database and why he could not drive.  Simply put, while Mr. Dempsey said he had pain he never specified how it stopped him from being able to perform his job functions.

[46]    In the context of the defendant’s theory that Mr. Dempsey was spending time running another business he had incorporated rather than spending time on his real estate practice, he was cross-examined closely on a frequently recurring cryptic entry in his Day-timer.  He said he did could not remember what that referred to.  Given the number of times the entry appeared that is not credible, whether or not it did relate to another business project.

[47]    I do not find Mr. Dempsey to be a credible witness.  There is no reason to believe that he was more truthful about what occurred after the accident than he was about his condition before it.

For more on this topic you can click here to read my archived posts dealing with Plaintiff credibility in BC injury litigation.

More on the New Rules of Court and Document Disclosure: The Proportionality Factor

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 7, Uncategorized.


As recently discussed, a developing area of law relates to the extent of parties document production obligations under the new Rules of Court.   The starting propisition is that parties need to disclose a narrower class of documents then was previously required.  A Court can, on application, order further disclosure more in line with the “Peruvian Guano” test that was in force under the former rules.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, making such an order.
In today’s case (Whitcombe v. Avec Insurance Managers Inc.) the Plaintiff was employed as an Insurance Underwriter with the Defendant.  The Plaintiff was let go and sued for wrongful dismissal.  The Defendant counterclaimed alleging they lawfully terminated the Plaintiff’s employment and further making allegations of misfeasance by the Plaintiff.
In the course of the lawsuit the parties were dis-satisfied with each others lists of documents.  They each applied for further disclosure.  Master Caldwell granted the orders sought finding that the concept of ‘proportionality‘ calls for greater disclosure in cases of “considerable importance“.  In granting the applications Master Caldwell provided the following reasons:

[10]         In short, both parties make serious allegations of actual misfeasance and in particular allegations which may well have a significant impact on the other’s reputation in the insurance industry and on the parties’ respective abilities to continue in business or to be employed in a professional capacity.  This is therefore a matter of considerable importance and significance to the parties regardless of the quantum of immediate monetary damage.

[11]         I find this to be important to my consideration of proportionality as directed in Rule 1-3(2) when interpreting and applying Rule 7-1.  In my view, where, as here, the issues go beyond negligence and involve opposing allegations of misfeasance, proportionality must be interpreted to allow the parties a wider, more Peruvian Guano type disclosure in order to defend and protect their respective professional reputations and abilities to carry on in the business community.

[12]         Here one or both sides have levelled allegations involving malice, bad faith, arbitrariness, lack of integrity/fidelity/loyalty and incompetence at the other.

[13]         In addressing Rule 7-1 in the case of Biehl v. Strang, 2010 BCSC 1391, Mr. Justice Punnett said at paragraph 29:

I am satisfied that, if otherwise admissible, the requested production is relevant and could prove or disprove a material fact. Rule 7-1 does not restrict production to documents that in themselves prove a material fact. It includes evidence that can assist in proving or disproving a material fact.

[14]         I am satisfied that in these circumstances the disclosure sought by both parties in their applications is appropriate in that it seeks evidence or documents that can or may well assist in proving or disproving a material fact.

Interestingly the Court implied that Peruvian Guano like disclosure likely will not be made in motor vehicle collision claims noting that “This is not a simple motor vehicle type case, arising in common context and involving straight forward negligence issues and quantification of physical injury compensation.”

Motorcyclists, "Staggered" Riding and Safe Distances

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 105 Comments on Motorcyclists, "Staggered" Riding and Safe Distances

It is not uncommon for motorcyclists to travel in a ‘staggered‘ formation when riding in groups.  Typically one motorcyclist will travel within a few feet of the left of their lane of travel (the “A” position) with the following motorist travelling within a few feet of the right side of their lane of travel (the “C” position).  This staggered position is used in part because section 194(4) of the BC Motor Vehicle Act prohibits motorcyclists from operating “their motorcycles side by side in the same direction in the same traffic lane“.
When travelling in groups of two it is important for the rear motorist to leave sufficient space between them and the lead motorist.  Failing to do so could be negligent as was demonstrated in reasons for judgement released last week by the BC Supreme Court, Nanaimo Registry.
In last week’s case (Brooks-Martin v. Martin) the Plaintiff was injured in a 2005 collision in Saanich, BC.  The Plaintiff was travelling in the “C” position behind a motorcycle operated by her husband who was travelling in the “A” position.   Her husband unexpectedly cut in front of her.  In trying to avoid a collision with her husband she lost control, fell down onto the road and was injured.

(Accident Reconstruction Software courtesy of SmartDraw)
She sued her husband for damages.  Mr. Justice Halfyard found that the Defendant “cut in front of the plaintiff’s motorcycle and created an unreasonable risk to her safety.“.  For this reason he was found legally responsible for the Plaintiff’s crash.  The Plaintiff, however, was also found partially at fault and had her damages reduced by 30% as a result.  In finding the Plaintiff partly at fault Mr. Justice Halfyard made the following observations:
[148]     By reason of s. 194(4) of the Motor Vehicle Act, it is not unlawful for two motorcycle drivers to ride side-by-side in the same traffic lane. I accept that it is permissible and common practice among motorcycle riders to ride in their lane of travel in the A position and C position, and then come to a stop at approximately the same time, side-by-side. But in my view, s. 194(4) does not operate for or against the plaintiff in this case…

[162]     I am satisfied that the plaintiff failed to take reasonable care for her own safety, in several respects. In my opinion, a motorcycle driver who possessed reasonable driving skills and who was exercising reasonable care for her own safety would not have been travelling in the C position only two motorcycle lengths behind a lead motorcycle in the A position, at a speed of 40 kph, when both riders were approaching the back end of a stopped pickup truck and when she was not more than 14.56 metres away from that truck (and when the lead motorcycle driver in the A position was closer to that truck and travelling at least as fast as she was).

[163]     I find that when the defendant Martin steered in front of her, the plaintiff was driving without due care and attention and at a speed that was excessive relative to the road and traffic conditions, in relation to both her husband’s motorcycle and the stopped truck. That conduct was contrary to s. 144(1) of the Motor Vehicle Act and also constituted negligence.

[164]     I find also that, at the time the defendant Martin steered in front of her, the plaintiff was following the defendant Martin’s motorcycle more closely than was reasonable and prudent, having due regard for the speeds of the two motorcycles and the presence of the stopped pickup truck ahead of them. That conduct was contrary to s. 162(1) of the Motor Vehicle Act. I find that this conduct also constituted negligence on the part of the plaintiff.

[165]     I am also satisfied that this driving conduct of the plaintiff in breach of the standard of care, was a cause of her losing control of her motorcycle. She put herself into a situation where the defendant Martin (before he swerved) was a potential hazard to her, and the stopped pickup truck was an actual hazard to her safety. If she had been travelling at a slower speed and at a greater distance behind the defendant Martin, and if she had slowed her motorcycle down sooner than she did, the plaintiff could have safely avoided the defendant Martin’s motorcycle and could have safely stopped behind the pickup truck. As it was, the plaintiff’s own negligent driving made it necessary for her to take emergency evasive action, which should not have been necessary. Taking that evasive action caused the plaintiff to lose control of her motorcycle, which resulted in her injury. I find that there was a substantial connection between the negligent driving of the plaintiff, and her injury. In my opinion, the evidence establishes on the balance of probabilities that the plaintiff was contributorily negligent.

Fibromyalgia Claim Fails, $6,000 Awarded for 3 Month Soft Tissue Injury

Written by admin on . Posted in ICBC Fibromyalgia Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 61 Comments on Fibromyalgia Claim Fails, $6,000 Awarded for 3 Month Soft Tissue Injury

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with the connection between Fibromyalgia and a motor-vehicle collision.
In today’s case (Anderson v. Minhas) the Plaintiff was involved in a 2007 rear-end collision in Surrey, BC.  The Plaintiff was injured in this crash and she ultimately was diagnosed with Fibromyalgia.  She claimed this troubling condition was caused by the collision and sued for damages.  Mr. Justice Bernard ruled that the Plaintiff failed to prove that the accident was a cause of her Fibromyalgia and dismissed most of her claimed damages.
The Court found that the crash caused a whiplash injury of 3 months duration and assessed non-pecuniary damages at $6,000.  In dismissing the fibromyalgia claim and valuing non-pecuniary damages Mr. Justice Bernard provided the following reasons:

[74]         Applying, then, the “but for” test, I conclude that the evidence falls far short of proving, on a balance of probabilities, that but for the negligence of the defendant, Ms Anderson would not have developed fibromyalgia. In reaching this conclusion I take into account, inter alia, the absence of convincing medical opinion in this regard, the minor nature of the collision, the absence of credible evidence of a temporal nexus between the collision and the onset of symptoms, the reliable evidence of the plaintiff’s return to her pre-collision state within two months of the collision, the chronic and acute pre-collision health complaints of the plaintiff, and the significant hiatus in doctor visits in a critical post-collision period.

[75]         The plaintiff suffered a whiplash injury in the collision. The evidence suggests that it was most likely an exacerbation of an existing complaint. Shortly after the injury she began a course of physiotherapy. Reliable evidence in this regard shows that she responded well to treatment and was substantially recovered within six weeks. The defendant submits that the injuries, or any exacerbation of a pre-existing injury, attributable to the defendant were fully resolved within three months, at most. I agree. A generous view of the evidence establishes, at most, a three-month period to full recovery to Ms Anderson’s pre-collision state. The plaintiff’s losses must be assessed accordingly….

[78]         In assessing the non-pecuniary damages for Ms Anderson, I am unable to distinguish her losses from the ordinary sort of losses most suffer from a minor whiplash injury. I am, however, satisfied that the plaintiff was more fragile than many others would have been at the time of the collision and that, therefore, her post-collision aches and pains may well have been greater than those experienced by an otherwise strong and healthy person. I am satisfied that Ms Anderson’s life was negatively affected by the injury, or re-injury, and that during the three-month recovery period her relationships suffered to some degree, she endured some pain and discomfort, she lost some sleep, she opted out of some leisure and sport activities, and she was put to various inconveniences. For this three-month period of pain and suffering, with due regard to the cases cited, I assess her damages at $6,000. Any lost homemaking capacity in this period is subsumed into this award.

Waivers of Liability: The Real World Consequences

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(Updated March 15, 2012 – an Appeal of the below Decision was dismissed in reasons for judgement released today by the BC Court of Appeal)
If you are harmed through the carelessness of others but signed a ‘waiver of liability‘ prior to being harmed you may be deprived of meaningful legal recourse.  For this reason it is vital to turn your mind to the potential consequences prior to accepting the terms of a waiver.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this topic.
In this week’s case (Loychuk v. Cougar Mountain Adventures Ltd.) two plaintiffs were injured in a zipline accident.  The first plaintiff went down the line but did not reach the bottom.  She was suspended on the line.  At this time the tour guides in charge of the zipline let the second plaintiff go down the line.  She had no ability to stop and “slammed into (the first Plaintiff) at high speed causing injury to both“.
The Defendant company agreed their employees were careless and caused the injuries.  They denied compensation to the Plaintiffs, however, relying on a waiver they require every zipline participant to sign. The Plaintiffs brought a lawsuit arguing the waiver should not be enforced.  Mr. Justice Goepel disagreed and dismissed the lawsuit.  In doing so the Court provided the following reasons:

[30]         The Release was consistent with the purpose of the contract, which was to permit the Plaintiffs to engage in a hazardous activity upon which they, of their own volition, had decided to embark. The most casual review of the document would have revealed to the Plaintiffs that the Release was a legal document impacting on their legal rights to sue or claim compensation following an accident. They asked no questions concerning the terms of the Release. They never indicated to Cougar that they were not prepared to sign the Release.

[31]         There is nothing in the circumstances that would lead Cougar to conclude that the Plaintiffs did not intend to agree to what they signed. In these circumstances, Cougar was under no obligation to take reasonable steps to bring the terms of the Release to the Plaintiffs’ attention.

[32]         That said, Cougar did in fact take reasonable steps to bring the contents of the Release to the Plaintiffs’ attention. Both were given sufficient time to read the Release. The heading at the top of the document and the admonition to read carefully alerted the Plaintiffs that it was a legal document intended to prevent the Plaintiffs from suing or claiming compensation following an accident. Both Plaintiffs acknowledge that they knew from their reading of the Release that it limited in certain circumstances their legal rights to sue. In Mayer, which concerned a release in relation to obtaining a ski pass, the release contained terms in bold lettering similar to that in the case at bar. The court noted that the large bold print should have alerted the most casual reader of the release’s terms. The same considerations apply in this case.

[33]         I do not accept the Plaintiffs’ submission that the reasoning in Karroll should be limited to cases involving hazardous activities in which the participant has some measure of control. Karrollis a case of general application. Its reasoning applies to all contracts.

[34]         Subject to the remaining submissions discussed below, I find the Release is enforceable. A reasonable person in the position of Cougar would not have known that the Plaintiffs were not consenting to the terms of the Release. Cougar took appropriate steps to apprise the Plaintiffs of the terms of the Release.

This case demonstrates the reality that liability releases can prevent lawsuits even when individuals are injured through the clear carelessness of others.  For this reason it is vital to consider the effects of a waiver prior to giving up your right to sue.

Lawyer Ordered to Download His Own Client's Facebook Account Data In Injury Lawsuit

Written by admin on . Posted in ICBC Privacy Issues, Uncategorized. 57 Comments on Lawyer Ordered to Download His Own Client's Facebook Account Data In Injury Lawsuit


Controversial reasons for judgement were recently released by the The Court of Queen’s Bench of New Brunswick.  The Court required a Plaintiff in a personal injury lawsuit to preserve all contents on her Facebook homepage and have these produced.  While requiring Social Medial Data production is not necessarily unique, the way the Court required this evidence to be preserved will cause concern for many.
In the recent case (Sparks v. Dube) the Plaintiff was injured in a motor vehicle collision in Fredericton in 2008.  She hired a lawyer and sued for damages.  In the course of the lawsuit the defence lawyer brought a motion, without notifying the plaintiff’s lawyer, requesting personal information from the Plaintiff’s Facebook account.  The Court granted the motion and made the following contraversial orders:

1)  A Preservation Order and, in the alternative, an Interlocutory Injunction are hereby made and issued compelling Erica Sparks: 1) to preserve and maintain without deletions or alterations the entire contents of her personal Webpage(s) on the social network Facebook including but not limited to photographs, text, links, postings, event details and video clips until further direction of the court, and 2) to participate in the carrying out of the following orders where her participation is required;

2)  The Interlocutory Injunction shall expire ten days after these orders take effect instituted;

3)  The Applicant-Defendant shall personally and immediately serve all orders and a copy of this judgment upon the Plaintiff’s solicitor, Mr. James Crocco who shall not disclose any of the orders set out herein nor the contents of this judgment except on terms as they are allowed by these orders;

4)  Upon being served, Mr. James Crocco shall arrange for a solicitor in his firm or an agent lawyer of his choice to be appointed to carry out as soon as reasonably possible, and in the case of the Interlocutory Injunction within ten days of the taking effect of these orders, the orders set out that pertain to his client Erica Sparks subject to the following terms:

a)  The appointed solicitor shall be remunerated by the Defendant for his or her services;

b)  That solicitor shall immediately contact Ms. Sparks and, without disclosing the nature of the subject matter to be discussed, schedule a meeting with her at a location convenient to access and download data from the Internet and reduce it to usable form, such as hard copy for data so suited or memory stick or other such device for videos, as soon as reasonably practicable;

c)  Upon personally meeting with Erica Sparks at the location chosen the appointed solicitor shall apprise her of the terms and conditions of the Preservation Order and Interlocutory Injunction as well as the other orders contained herein that pertain to her;

d)  Immediately upon disclosure of the terms and conditions of the orders set out, Erica Sparks, in the presence of the solicitor engaged, shall create a permanent tangible records in hard copy, wherever possible, or to other suitable device, of the entire contents of her Webpage(s) on Facebook including, but not limited to, all photographs, text and links and shall record by a memory stick or other suitable device any videos posted or linked to Erica’s Sparks’ Webpage, one copy of which shall be sealed upon the carrying out of that part of these orders and delivered to Mr. James Crocco to be held and preserved by him until further direction of the court; but the delivering of a sealed copy of the entirety of her Webpage(s) shall not operate to preclude Erica Sparks from providing her counsel, Mr. James Crocco, or anyone else of her choosing with a copy of the entirety of her Webpage(s) in order to prepare for the Production Hearing or further proceedings;

5)  Upon complying with the said orders the solicitor appointed to supervise the downloading of the material referred to herein shall immediately review all of the material downloaded to ensure that the orders have been carried out in full and shall then certify to the court in writing that there has been strict compliance with the orders contained herein, and that the sealed packet represents the entire contents of the Facebook Webpage(s) of Erica Sparks as well as videos posted or linked to it or them;

6)  Upon the successful execution of the orders set out herein and the execution of the certification of strict compliance with the orders contained herein by the solicitor appointed to supervise the downloading of the material referred to herein  Erica Sparks shall be free to resume unrestricted access to her Webpage(s) on Facebook including its substantive composition;

7)  The Motion begun on December 9, 2011 shall be adjourned to a date to be fixed by the Clerk of the Court of Queen’s Bench for the Judicial District of Woodstock;

8)  The Defendant shall then file with this court and serve on the Plaintiff, in timely fashion, a Notice of Motion for the production and disclosure of the contents of the sealed packet of information/data;

9)  Once a date for a Production Hearing has been set Mr. James Crocco shall bring to that hearing the sealed packet of data retrieved from the Facebook Webpage(s) of Erica Sparks pursuant to the orders contained herein;

10)                     Upon completion of the execution of the orders contained herein, that apply to the retrieval of the entire contents of Erica Spark’s Facebook Webpage(s) on the terms as set out in these orders, the temporary oral sealing order sealing the entire file and court record in this matter that was imposed on December 9, 2010 at the conclusion of the ex partehearing shall be lifted without further order of the court.

11)                     The Plaintiff shall upon execution of these orders and the holding of a Production Hearing, in timely fashion, file a further and better Affidavit of Documents;

I understand that this order is being appealed and look forward to the New Brunswick Court of Appeal’s views on this matter.  While there are cases requiring Plaintiffs to produce social media data in personal injury lawsuits in BC, I am not aware of any cases in this Province going as far as the above decision.  Arguably the New BC Rules of Court focus on proportionality, narrower document disclosure obligations, and general prohibition of “fishing expeditions” in discovery of documents would prevent such an order from being granted in BC.