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BC Personal Injury Claims and Reimbursement of "Sick Bank" Time

Written by admin on . Posted in ICBC Wage Loss, Uncategorized.


Many BC employees have the benefit of a “sick bank“.  For those of you not familiar with these, a sick bank is basically a pooled amount of time which an employee is able to be absent from work for sickness and still receive full pay.  Sometimes a sick bank grows over the years of employment provided it is not drawn from.
When you are injured as the result of someone else’s carelessness, become disabled for a period of time and have to use up your “sick bank” are you entitled to recover damages to reflect the value of this used up asset?  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing this area of law.
In today’s case (Burton v. Bouwman) the Plaintiff was involved in a total of 3 motor vehicle collisions.  Following each collision he missed time from work and had to draw money from his sick bank.  In his lawsuit against the at-fault motorists he claimed for various damages including damaged for his depleted sick bank.
The Plaintiff largely succeeded in this claim.  In awarding the Plaintiff compensation for this loss Madam Justice Gray summarized and applied the law as follows:

[157] Mr. Burton is not entitled to receive cash from CSC for unused banked sick leave.  The banked sick leave will only be of value to him if he becomes sick and has insufficient banked sick leave, with the result that he takes an unpaid leave.

[158] There is a real and substantial possibility that Mr. Burton will become sick while still employed by CSC and have insufficient banked sick leave.  Mr. Burton is entitled to compensation to reflect that…

[189] Mr. Burton did not suffer a wage loss as a consequence of the accidents, because he was able to use his banked sick time.  However, he claims lost banked sick leave and annual leave, $21,600 for lost overtime, and an unspecified amount for the past lost opportunity to earn income outside CSC.  The position of the defence is that Mr. Burton should recover nothing for these claims.

[190] As discussed above, Mr. Burton is entitled to be compensated for the loss of his banked sick time.  CSC paid Mr. Burton about $12,000 for his banked sick leave after the First Accident, about $250 after the Second Accident, and about $18,700 after the Third Accident.  That is a total of about $30,950.

[191] The method of compensating a continuing employee for loss of sick bank credits was discussed in Bjarnson v. Parks, 2009 BCSC 48, and the cases cited in it.  In that case, and in Roberts v. Earthy, [1995] B.C.J. No. 1034 and Choromanski v. Malaspina University College, 2002 BCSC 771, the court awarded the full amount of salary corresponding to the banked sick leave, without making any deduction for contingencies.  Other cases cited in Bjarnson made such a deduction.

[192] I would assess the likelihood that Mr. Burton will become sick while working at CSC and have insufficient banked sick leave at 75 percent.  As a result, Mr. Burton is entitled to damages of $22,500 in respect of his lost banked sick leave.

ICBC's Low Velocity Impact Program – Not a "Legal Principle"

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 1 Comment on ICBC's Low Velocity Impact Program – Not a "Legal Principle"

Reasons for judgement were published today on the BC Supreme Court website considering the Low Velocity Impact (LVI) defence in a car crash case.
In today’s case (Mavi v. Booth) the Plaintiff was involved in a 2006 rear-end collision in Langley, BC.  The rear motorist denied being at fault for the crash until the first day of trial when liability was admitted.   Despite admitting fault, the lawsuit was fought using the LVI defence with the Defendant’s lawyer arguing that the Plaintiff did not suffer any injuries “since it was a low-velocity impact.”
In support of his injuries the Plaintiff called evidence from Dr. Hirsch, a physiatrist, who provided the following testimony:

[11]    According to Dr. Hirsch, the expert physiatrist called on behalf of Mr. Mavi, the question of whether someone in Mr. Mavi’s position suffered an injury from a low-velocity impact depends on the change in velocity.  Dr. Hirsch’s evidence was:

A:         I see people who have car accidents like this and they’re not the driver and they walk away from that or they have relatively little symptoms.  I see people who have relatively little car damage.  You have to look not so much at the car but the change in velocity of the car.  So you could have very little damage because there was no absorption of power to the car but the car was accelerated forward.  And I don’t know that.  What I’m saying is that there’s not a direct correlation between car damage and injury to the living organ in the car.  It depends on the change in velocity.

Q:        The change in velocity is the more important factor to look at?

A:         For the occupant, yes.  The change in velocity…

Mr. Justice Walker fond that the Plaintiff indeed was injured in the crash despite there being little vehicle damage.   The Court awarded the Plaintiff $27,500 in non-pecuniary damages for his soft tissue injuries which were expected to make a full recovery.  In rejecting the LVI defence Mr. Justice Walker provided the following useful statement:

13]    In addition to it being unchallenged by rebuttal evidence, I found Dr. Hirsch’s evidence to be consistent, candid, logical and persuasive.  I found the evidence of Mr. Mavi’s general practitioner, Dr. Beytell, to be of the same persuasive effect.  Both Drs. Hirsch and Beytell opined that Mr. Mavi suffered injuries from the subject motor vehicle accident.

[14]    There is no rule of law or legal principle that a victim of a low-velocity rear-end impact does not suffer an injury compensable in law.  In each case, it is a question of fact.

Examinations For Discovery and Your BC Injury Claim – A Video Introduction

Written by admin on . Posted in BC Injury Claims Media Archives, Civil Procedure, Uncategorized. 72 Comments on Examinations For Discovery and Your BC Injury Claim – A Video Introduction

Here is a video I’ve uploaded to YouTube discussing examinations for discovery in BC Injury lawsuits:

An Examination for Discovery is a process where the opposing side can bring you in front of a Court Reporter and get your sworn answers to questions about relevant topics. Discoveries are designed to learn about your case and to hurt your case.  It is one of the most important pre-trial steps in Injury litigation and a Plaintiff’s evidence can play a key role in whether the case settles or proceeds to trial.
In ICBC claims some of the usual topics that are covered are the circumstances of the accident, the injuries sustained, the expenses incurred, the course of recovery of the injuries, wage loss details and other the effects of the accident related injuries on lifestyle  (You can click here to read a more in depth article about what is covered at a Discovery).
I hope this introductory video and the linked articles take some of the mystery out of the process.

Damages Reduced by 30% for Preferring Naturopathic Remedies Over Surgery in Shoulder Injury Claim

Written by admin on . Posted in ICBC Shoulder Injury Cases, Uncategorized.


Reasons for judgement were released today discussing two ares of interest in the context of an ICBC injury claim; the non-pecuniary value of a shoulder injury and “failure to mitigate” for following naturopathic remedies instead of recommended surgery.
In today’s case (Hauer v. Clendenning) the Plaintiff was injured in a 2006 BC vehicle collision.  The Plaintiff was a passenger in a vehicle involved in an intersection crash.  The crash was “significant, causing extensive damage to both vehicles“.   Fault was admitted by the Defendant focusing the trial on the value of the case.

  • Discussion of Non-Pecuniary Damages for Plaintiff’s Shoulder Injury

The Plaintiff suffered various soft tissue injuries which improved by the time of trial.  The Plaintiff’s most serious injury was a right shoulder injury which remained symptomatic by the time of trial.
The Court heard evidence from a number of expert physicians including orthopaedic surgeon Dr. Richardson who gave evidence that the Plaintiff has a rotator cuff injury to her right shoulder resulting in tendonitis and impingement.  Her prognosis for full recover was “guarded“.
Mr. Justice Slade assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000.  In arriving at this figure the Court made the following findings and provided the following analysis:
[72] It is not a matter of contention among the medical experts that the plaintiff sustained soft tissue injuries in the August 6, 2006 accident.  These injuries were to the neck, shoulder, and back. ..
[75] The medical experts are all of the view that the plaintiff will benefit from injections in the shoulder area, that being the most problematic of the plaintiff’s injuries.  Dr. Aitken and Dr. Richardson say that she may benefit from arthroscopic surgery on the shoulder…

[78] I accept the evidence of the lay witnesses that the plaintiff was active and fully able to perform the physical demands of her employment before the accident, and after the accident, is no longer as active or able to perform to the pre-accident level.  The evidence of the plaintiff, the lay witnesses, and Dr. Richardson, establish a causal connection between the accident and the plaintiff’s ongoing shoulder pain, and establish, as fact, the contribution of injuries sustained in the accident to the present condition of her shoulder.

[79] The plaintiff’s shoulder pain has persisted, largely undiminished, from the time of the accident. ..

[82] I find that the accident is a significant contributing factor to her shoulder injury, and that the plaintiff has established causation on the “but for” test described in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333…

[85] Considering these authorities and the factors set out by Kirkpatrick J.A. in Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46, 263 D.L.R. (4th) 19, leave to appeal ref’d [2006] S.C.C.A. No. 100, I award the plaintiff $50,000 in non-pecuniary damages.

  • Failure to Mitigate:

Further to my previous articles on the subject, it is well established that the Court can reduce a Plaintiff’s award in a personal injury claim if a Plaintiff unreasonably fails to follow medical advice where the medical would have likely improved the injuries.

In today’s case the Defendant argued that the Plaintiff failed to mitigate her damages by not having injections and/or surgery on her shoulder injury.  Mr. Justice Slade agreed with this submission and found that the Plaintiff failed to mitigate her damages by not following the advice of the orthopaedic surgeons and instead choosing naturopathic remedies.  The Court reduced the Plaintiff’s damages by 30% as a result.  Specifically Mr. Justice Slade held as follows:

[105] The defendant bears the burden of establishing that the plaintiff has failed to mitigate her loss, in this case that she failed to follow medical direction, and that had she followed that advice, she would have recovered further or faster: Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[106] The plaintiff prefers naturopathic remedies.  She was influenced by advice given by a friend on the effect of injections.  A physician advised her, informally, that she may not benefit from surgery.  On these bases, she declined to act on the recommendations of three well-qualified orthopaedic surgeons to take injections into the shoulder area, and to consider arthroscopic surgery.  Dr. Richardson puts the percentage chance of improvement from arthroscopic surgery at between 70-80%.

[107] There are, of course, risks associated with surgery, though these seem minimal.  If the plaintiff underwent surgery, there may be some losses during the recovery period.

[108] There will be a reduction of 30% of the amounts awarded for general damages, loss of income earning capacity, and cost of care due to the plaintiff’s failure to mitigate.

More on BC Supreme Court Costs – Rule 57(10) and Judgments Below $25,000

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized. 56 Comments on More on BC Supreme Court Costs – Rule 57(10) and Judgments Below $25,000

(Note: The below case was upheld by the BC Court of Appeal.  You can find the BCCA decision here.)
As recently discussed, when advancing an ICBC Claim in Court one of the first choices to make is whether to sue in BC Supreme Court or Small Claims Court.   When a Plaintiff successfully sues in the BC Supreme Court they are usually entitled to “costs” from the Defendant.  Costs are intended to offset some of the expenses of requiring a formal lawsuit to reach a resolution to a claim. The Small Claims Court does not have the ability to award Costs.
One of the exceptions to this general principle of giving successful Supreme Court plaintiffs “Costs” is set out in Rule 57(10) which holds that “A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in Supreme Court and so orders.“
So if a Plaintiff is awarded under $25,000 (the current limit of the Small Claims Court) in an ICBC or other BC Injury Claim does this mean they will be deprived of Court Costs?  The answer is not necessarily.  Our Supreme Court has held time and time again that a Plaintiff may have sufficient reasons for suing in Supreme Court despite the fact the final outcome may be an award below $25,000 and reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing this.
In today’s case (Gradek v. DaimlerChrysler Financial) the Plaintiff was injured in a BC car crash.  He sued in the BC Supreme Court and was awarded just below $10,000 in total damages (you can click here to read my article summarizing the trial judgement).  The Plaintiff asked for Costs.  The Defendants opposed this arguing that since the value of the case within the Small Claims Courts Monetary Jurisdiction the Plaintiff did not have “sufficient reason” to sue in the Supreme Court.
Mr. Justice Savage rejected this argument and summarized the law relating to “sufficient reason” to sue in the BC Supreme Court as follows:

[18] In my opinion the approach taken by the defendants is too narrow and not supported by an interpretation of the Rule or by the authorities.

[19] The proviso in Rule 57(10) is “unless the court finds that there was sufficient reason for bringing the proceeding in Supreme Court and so orders”.  The Rule does not define “sufficient reason”.  There is nothing in the Rule that limits the extension of the term “sufficient reason” to matters relating to the quantum of the claim.  ..

[27] There are relevant authorities in this court.  In Faedo v. Dowell, 2007 BCSC 1985, a case predating Reimann, Curtis J. held that a variety of factors gave rise to “sufficient reason” within the meaning of Rule 57(10).  The Court referred to the plaintiff’s beliefs about her claim, the defendant’s denial of liability, challenge to the plaintiff’s credibility, the plaintiff’s inexperience and demeanor, the reasonable requirement to have counsel, and the fact that costs of counsel were only recoverable in Supreme Court.

[28] Master Patterson in Garcia v. Bernath, 2003 BCSC 1163, 18 B.C.L.R. (4th) 389 (S.C.), held that a number of factors including whether there were injuries at all, can give rise to sufficient reason.

[29] In Johannson v. National Car Rental (Canada) Inc., 2009 BCSC 1284, Barrow J., referred to Reimann, and noted in obiter dicta that other reasons for proceeding in Supreme Court include those identified in Kuehne.

[30] In Tucker v. Brown, 2008 BCSC 734, Cole J. applied Reimann noting the importance of discovery procedures in determining liability in a “no crash no cash” case.

[31] In Kanani v. Misiurna, 2008 BCSC 1274, Humphries J. considered factors such as a denial of liability in finding “sufficient reason” under the Rule.  To like effect is the decision in Ostovic v. Foggin, 2009 BCSC 58.

[32] In the result, in my view, the term “sufficient reason” within the meaning of the rule encompasses a number of considerations including considerations which do not inform the quantum of the claim.

Mr. Justice Savage went on to award the Plaintiff his trial costs finding that despite the fact that the case could have been tried in Provincial Court given its monetary value the Plaintiff had sufficient reason to sue in the Supreme Court for a variety of reasons including the fact that the examination for discovery evidence was useful at trial and that the Plaintiff would have been “out-matched” if he sued the insured defendant without the assistance of a lawyer in small claims court.

In my continued effort to cross reference the current Supreme Court rules with the new Rules of Court that come into force on July 1, 2010 I will note that the Current Rule 57(10) will become Rule 14-1(10) and it reads identical to the current rule so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants under our new rules.

Can Interest on Disbursements be Recovered in BC Injury Litigation?

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Uncategorized. 120 Comments on Can Interest on Disbursements be Recovered in BC Injury Litigation?


As I’ve written before, personal injury litigation can be an expensive business.
It usually costs thousands of dollars if not tens of thousands of dollars to bring an injury claim to trial in the BC Supreme Court.  I’m not talking about lawyers fees here either.  What I’m referring to is the cost of gathering evidence for presentation in court.  To succeed in Court usually expert opinion evidence is required to address many areas that frequently come up in injury litigation such as diagnosis of injury, prognosis, disability etc.   Expert medical reports usually cost anywhere from hundreds to tens of thousands of dollars.
These significant disbursements are often funded by personal injury lawyers or on a line of credit.  When a Plaintiff is successful in their personal injury claim they can recover their reasonable disbursements from the opposing party.  But can the interest on these disbursements be recovered?  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry addressing this topic.
In today’s case (Milne v. Clarke) the Plaintiff was injured in a 2005 BC Car crash.  In advancing his claim private MRI’s were arranged between 2005-2006.  These cost $975 a piece.
The claim settled in 2009 for $170,000 plus costs.  By the time of settlement the costs of the MRI’s with interest came to almost $4,000.  The Plaintiff sought this amount from the Defence and the Defence refused to pay.
Ultimately the matter went before a Master of the BC Supreme Court who held that the interest was not recoverable.  The Plaintiff appealed.  Mr. Justice Burnyeat reversed the Master’s ruling finding that interest on disbursements can be recoverable.  Specifically the Court reasoned as follows:

[4] In support of the submission that the Learned Registrar erred in principle, Mr. Milne submits that the law which was binding on the Learned Registrar is set out in McCreight v. Currie, [2008] B.C.J. No. 2494, where ….  In allowing the interest, Registrar Young concluded:

… The plaintiff really had no choice but to pay the interest given that she did not have the funds to be retaining experts and paying for their reports up front.  I suppose the defendant’s choice was that the defendant could have offered to pay for the report up front once it was disclosed to him, but no offer was forthcoming.  Given this was the only way to finance the obtaining of a report, I find this to be a reasonable expense and I will allow it.

…

[6] Rule 57(4) of the Supreme Court Rules provides that, in addition to determining fees, the Registrar must:

(a)   determine which expenses and disbursements have been necessarily or properly incurred in the conduct of the proceeding, and

(b)   allow a reasonable amount for those expenses and disbursements.

[7] In support of the application, it is said that Mr. Milne had no means of paying for the required M.R.I. scans other than to borrow money from the provider and that, since the cost of the M.R.I. had already been agreed upon, so too should the interest on the unpaid accounts rendered by the provider of the M.R.I. images.  Here, it is the provider of the M.R.I. and not counsel for Mr. Milne who is charging the interest on the invoices.

[8] I find that the Learned Registrar erred in principle.  The December 29, 2009 decision was clearly wrong.  First, even if the Learned Registrar was not bound by the decision inMcCreight, I am not bound by the decision reached by the Learned Registrar herein.  I am satisfied that the statement set out in McCreight accurately represents the law in British Columbia.  Second, the decision in Hudniuk relates to the question of whether disbursement interest is a head of damage and not to the question of whether it is recoverable as costs on an assessment.

[9] The law in British Columbia is that interest charged by a provider of services where the disbursement has been paid by counsel for a party is recoverable as is the disbursement.  The interest charge flows from the necessity of the litigation.  If the disbursement itself can be assessed as an appropriate disbursement, so also can the interest owing as a result of the failure or inability of a party to pay for the service provided.  In order to obtain the M.R.I., it was necessary to pay not only the $975.00 cost but also the interest on any unpaid balances that were not paid immediately.  The cost plus interest was the cost of obtaining the M.R.I.  The claim for interest should have been allowed.

This judgement is a welcome development for people advancing personal injury claims in BC as the Court’s reasoning provides greater certainty that successful Plaintiffs can recover interest charged on reasonable disbursements incurred in the course of litigation.

Understanding The 2 Roles of ICBC – "Your" and "Their" Insurer

Written by admin on . Posted in BC Injury Claims Media Archives, ICBC No-Fault (Part 7) Benefits, Uncategorized. 2 Comments on Understanding The 2 Roles of ICBC – "Your" and "Their" Insurer

Here is a brief video I’ve uploaded to YouTube discussing ICBC’s dual role and some information you should know before you place your first call to ICBC after being injured in a BC motor vehicle accident:

As readers of this Blog undoubtedly know, ICBC is a British Columbia monopoly auto insurer which usually plays 2 roles in BC auto injury claims.  When you are injured by another BC motorist who is at fault and you and they are insured with ICBC, ICBC will not only need to process your claim for Part 7 Benefits but also process the tort claim you are making against the at fault motorist.   I hope the information covered in this video is of assistance.

$60,000 Non-Pecuniary Damages for Chronic Post Traumatic Tendinopathy

Written by admin on . Posted in ICBC Shoulder Injury Cases, Uncategorized.

(Please note the Trial Court’s decision regarding mitigation of damages in the below post was overturned on Appeal.  You can click here to read the BC Court of Appeal’s judgement)
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with an assessment of damages for a shoulder injury, specifically a post traumatic tendinopathy.
In today’s case (Gregory v. ICBC) the Plaintiff was involved in a 2006 collision in White Rock, BC.  Her vehicle was struck while travelling through an intersection by the Defendant who failed to stop at a stop sign.  Fault was admitted by ICBC focusing the trial on the Plaintiff’s injuries.

  • Non-Pecuniary Damages Discussion

The Plaintiff suffered various soft tissue injuries to her neck and back that healed before trial.  The Plaintiff’s worst injury was to her left shoulder.   Dr. Day, an orthapeadic surgeon gave evidence that the Plaintiff suffered an “abnormality in the subscapularis tendon at the site of the superior border.  In addition there was inflammation in the subacromial bursa.”  Dr. Day also testified that the plaintiff had a “post traumatic tendinopathy causing some discomfort“.
The Plaintiff required surgery to “clean up” a “thick, tight subacromial bursa” because this caused irritation.
Following this the Plaintiff continued to have some shoulder pain which was aggravated by certain movements.  The Court accepted that this would likely continue into the future.  In assessing the non-pecuniary loss the Plaintiff suffered as a result of her injuries at $60,000 Madam Justice Kloegman found as follows:

[11] Due to the plethora of shoulder injury cases in the case law, it is important to distinguish the plaintiff’s shoulder injury from some of the shoulder injuries suffered by other plaintiffs in other cases. In the case at bar, the plaintiff does not have:

1.       neurological deficit;

2.       instability in her shoulder;

3.       frozen shoulder;

4.       restricted range of motion;

5.       dislocation or subluxation;

6.       arthritis; and

7.       muscle wasting.

[12] However, I accept that the plaintiff does have ongoing chronic pain in her shoulder which is exacerbated by certain movements. There was no suggestion that the plaintiff was a malingerer or was exaggerating her symptoms. Notwithstanding that pain is a subjective symptom, the medical professionals found some objective corroboration in the tendinopathy and bursitis. Unfortunately, the plaintiff will likely continue to suffer various degrees of pain in her left shoulder in the future. To this extent she is mildly restricted in her activities and potential for employment.

[13] In summary, I find that the accident caused injury to the plaintiff, primarily in her left shoulder joint, which injury is mildly impairing and likely of a permanent nature. This injury has caused and will continue to cause the plaintiff pain and suffering, and has caused and will continue to cause some loss in her ability to earn income both in the past and the present. ..

[21] As I have found that the plaintiff is likely permanently impaired, albeit to a minor degree, the cases of Thauli, Grant and John are more helpful. Reviewing these cases and keeping in mind the more severe injuries described in those cases, I am of the view that $60,000 is reasonable compensation for the plaintiff’s pain and suffering in this case.

  • Failure To Mitigate

This case is also worth reviewing for the Court’s discussion of the law of mitigation.  Here Madam Justice Kloegman found that the unreasonably failed to follow her doctors advice to have a cortisone injection in her shoulder.  The court found that there was a chance that this would have improved her symptoms.

The Plaintiff did not follow her doctor’s recommendation apparently because of “what she read on the internet” and discussions she had “with her claims adjuster and chiropractor“.  The court found that these were unreasonable explanations for not following the doctor’s advice and as a result reduced the Plaintiff’s damages by 10%.  The Courts discussion of mitigation can be found at paragraphs 34-35 of the reasons for judgement.

ICBC Hit and Run Injury Claims and Intentional Torts

Written by admin on . Posted in Uncategorized. 117 Comments on ICBC Hit and Run Injury Claims and Intentional Torts

When a person is injured in a hit and run accident where the identity of the at fault motorist is unknown ICBC can be sued directly for compensation provided that s. 24 of the Insurance (Vehicle) Act is complied with.
When dealing with insurance coverage issues, there often are exclusions in coverage for claims involving intentional torts.  (at the risk of oversimplification and intentional tort is an act which caused harm through an intentional deed as opposed to a negligence claim which deals with harm caused through carelessness).  Does this insurance exclusion apply to ICBC claims under section 24?  Reasons for judgement were released today by the BC Court of Appeal addressing this issue.
In today’s case (Hannah v. John Doe) the Plaintiff was injured in a purse-snatching incident.  As she was walking in a parking lot a vehicle drove by, the passenger in the vehicle ‘reached out and grabbed her purse strap and, as the van accelerated away, the plaintiff was thrown backward and dragged until her purse ripped‘.
The assailants remained unknown and the Plaintiff sued ICBC directly for her injuries under section 24.  ICBC sought to dismiss the lawsuit arguing that section 24 does not cover claims for intentional torts.  ICBC’s motion was dismissed at trial.  (click here to read my article summarizing the trial judgement) ICBC appealed advancing many of the same arguments rejected by the trial judge.
The BC High Court dismissed the appeal and in doing so provided the below reasons making it clear that s. 24 can be triggered in an intentional tort claim:
[15] One of the flaws in ICBC’s argument is that it makes no distinction between cases in which a claim for damages is advanced against an “at fault” motorist and cases in which the insurer seeks to recover from its insured the damages paid to a claimant based on an insured’s policy breach involving intentional or criminal acts.

[16] As noted above, s. 24(1) permits an action to be brought against ICBC as nominal defendant representing unidentified owners and drivers, thus affording a remedy to drivers and passengers in vehicles and to pedestrians who suffer damage where a remedy would not otherwise exist.  In Chan, Finch J.A., as he then was, held that both intentional and negligent acts could constitute “the cause of action” in a claim for damages arising out of the use or operation of a vehicle under s. 23 (now s. 24) .  In that regard, he noted, at para. 22:

I observe that s. 23 does not require proof that the injury arises out of the negligent use or operation of a motor vehicle.  It requires only that the plaintiff establish “a cause of action” against the driver (or owner) and that the injury arises out of the use or operation of a motor vehicle.  It is clear on this language that if the driver of the unidentified vehicle were proven to have intentionally driven his vehicle into collision with the plaintiff’s vehicle, the plaintiff could bring a claim under s. 23.

…

[25] While Citadel disapproved the reasoning in Chan in relation to the causation issue, Citadel supports the reasoning and conclusion in Chan that damage caused by an intentional or criminal act is not for that reason excluded from coverage.  That is apparent from what Binnie J. said at paras. 17-18 of Citadel:

[17]      The appellant insurer seeks to restrict coverage in arguing, for example, that in this case, indemnification should be denied because Farmer used “the vehicle for the purpose of getting weapons to the scene of a crime”, and “it is that kind of situation that should not fall . . . within the meaning of ordinary and well known activities” (transcript, at p. 18).

[18]      I am unable to agree.  Firstly, even if transporting rocks across the countryside had been the effective cause of the Vytlingams’ injuries, which it wasn’t, transportation is what motor vehicles are for.  The fact that transportation in this case was for a criminal purpose no more excludes coverage than the fact that Farmer may have been driving his vehicle on the night in question while impaired.  Innocent drivers (or pedestrians) should not be denied indemnity if struck by (to give a further example) a getaway car “transporting” bank robbers from the crime scene.  In all these cases, the tortfeasor, regardless of his or her subjective reasons for climbing into the car, is at fault as a motorist.

[26] The same point was reiterated by Binnie J. at para. 23:

Thirdly, to be quite explicit, I would reject the position … that … coverage can be denied if the tortfeasor is engaging (as here) in criminal activity.  This is not so.  The insurer is selling peace of mind to its insured and the endorsement will frequently (and properly) be invoked despite criminality, as in the case of an insured injured by a drunk driver, for example.

For the foregoing reasons, I would not accede to ICBC’s argument that s. 24(1) of the Act is restricted to cases in which the cause of action is based in negligence.

Privacy Rights – Personal Injury Claims and Your Computer Hard Drive

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 56 Comments on Privacy Rights – Personal Injury Claims and Your Computer Hard Drive


A developing area of law is electronic discovery.
In the personal injury context the BC Supreme Court Rules require relevant, non privileged documents to be disclosed to opposing counsel.  The definition of document includes “any information recorded or stored by any means of any device“.  So, if there is relevant information, be it printed, on a computer or even on a cell phone, discovery needs to be made in compliance with the Rules of Court.
In recent years electronic documents have been the subject of court applications and Insurance companies / Defendants have sometimes been successful in gaining access to a Plaintiff computer’s hard drive.  Reasons for judgement were released today by the Supreme Court of Canada discussing court orders for the seizure of computer hard drives.
Today’s case (R v. Morelli) dealt with a criminal law matter.  However the Canadian High Court’s reasons may be of some use in the personal injury context.
By way of background the Defendant was charged with a criminal code offence.  One of the reasons for the charges was evidence that was apparently obtained from the Defendant’s computer which was seized pursuant to a search warrant.
The Defendant was convicted at trial.  The Supreme Court of Canada, in a very close split decision (4-3) overturned the conviction on the basis that the search warrant never should have been ordered because there were no reasonable and probable grounds to issue it.
While this case strictly dealt with criminal search warrants and the necessary evidence to obtain one, the Canadian High Court made some very strong comments about the intrusive effects of computer searches and this reasoning very well may have persuasive value for Courts considering whether they should give insurance companies access to Plaintiffs computers.  Specifically the Supreme Court of Canada provided the following comments:

[1]   This case concerns the right of everyone in Canada, including the appellant, to be secure against unreasonable search and seizure.  And it relates, more particularly, to the search and seizure of personal computers.

[2]  It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer.

3]  First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you.  There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created.  The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet — generally by design, but sometimes by accident.

[4]  That is precisely the kind of search that was authorized in this case.  And it was authorized on the strength of an Information to Obtain a Search Warrant (“ITO”) that was carelessly drafted, materially misleading, and factually incomplete.  The ITO invoked an unsupported stereotype of an ill-defined “type of offender” and imputed that stereotype to the appellant.  In addition, it presented a distorted portrait of the appellant and of his surroundings and conduct in his own home at the relevant time…

[105] As I mentioned at the outset, it is difficult to imagine a more intrusive invasion of privacy than the search of one’s home and personal computer.  Computers often contain our most intimate correspondence.  They contain the details of our financial, medical, and personal situations.  They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet. ..

[111] The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause.  To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term.

When considering whether a Defendant should be allowed access to a Plaintiff’s computer in a personal injury lawsuit I should point out that the New BC Supreme Court Civil Rules will change the scope of documents that need to be disclosed.  Specifically, the test for what documents are discoverable will be altered.

Under the current system parties must disclose documents “relating to every matter in question in the action“.  Under the new rules this test has been changed to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“.

This new test is supposed to be narrower in scope than the current one.  Time will tell how this new test will change disclosure requirements in the prosecution of personal injury actions however, given the fact that this new test will be applied alongside principles of proportionality there very well may be narrower disclosure requirements in smaller personal injury claims and greater obligations in the prosecution of more serious claims.
I will continue to write about this area of British Columbia personal injury law as it develops in the coming months.