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ICBC Insurance Benefits, Independent Medical Exams and Witness Immunity

Written by admin on . Posted in independent medical exams, Uncategorized. 99 Comments on ICBC Insurance Benefits, Independent Medical Exams and Witness Immunity


Further to my many previous posts discussing Independent Medical Exams in the context of ICBC Injury Claims, reasons for judgement were released today highlighting a very interesting issue; the ability to sue an Independent Medical Examiner.
When a person is seeking medical benefits from ICBC under their own policy of insurance (Part 7 Benefits) ICBC has the right to send that person for a “medical examination“.  ICBC gets this power from s. 99 of the Insurance (Vehicle) Regulation which holds as follows:

Medical examination

99 (1)  An insured who makes a claim under this Part shall allow a medical practitioner, dentist, physiotherapist or chiropractor selected by the corporation, at the expense of the corporation, to examine the insured as often as it requires.

(2)  The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section.

When ICBC obtains a medical exam under s. 99 they often base their decision of what Part 7 benefits to pay based on the physician’s recommendations.

For a variety of reasons ICBC tends to use a handful of doctors over and over again for these independent examinations.  In turn the business of independent medical exams is quite profitable for some BC doctors.

It is not uncommon for a medical examiner to author a report to ICBC which contradicts the opinions of a person’s treating physicians.  When this happens ICBC sometimes cuts off benefits from an insured even when the treating physicians feel further funding of therapy is appropriate.  When ICBC and an insured differ as to what benefits should be paid the insured can sue ICBC and the Court’s can offer a binding resolution.  What about the independent medical examiners?  Can they be sued?  Reasons for judgement were released today by the BC Supreme Court addressing this very interesting issue.

In today’s case (Mund v. Sovio) the Plaintiff was injured in a 2007 motor vehicle collision.  The Plaintiff applied to ICBC for Part 7 Benefits.  In the course of processing the request for benefits ICBC sent the Plaintiff to Dr. Sovio for a medical examination under section 99.    Dr. Sovio authored an opinion which was apparently harmful to the Plaintiff’s interests in which he stated that:

a) the Plaintiff was “staying at home, not doing any exercise and appears to be content to carry on in this fashion”;

b) “there is nothing to suggest that” the Plaintiff “should be disabled to this degree” and the Plaintiff’s “medical care appears to be somewhat disjointed”;

c) “legal matters” were interfering with the Plaintiff’s case; and

d) the Plaintiff “has a history of [being] off work for an extended period of time in the past and seems content to continue with this role of disability at this time”.

After receiving this report the Plaintiff and ICBC could not agree as to what PArt 7 benefits ought to be paid.  The Plaintiff responded in a unique way, he sued Dr. Sovio directly arguing that Dr. Sovio failed to assess his injuries in “an objective, fair and even handed manner.“.

Dr. Sovio applied to dismiss the lawsuit arguing, despite any consequences the report may have had between the Plaintiff and ICBC with respect to Part 7 benefits, that he owed the Plaintiff “no duty in contract, no duty of insurer-insured good faith and no duty of care in negligence”.  Dr. Sovio went further and argued that even if there was such a duty that the lawsuit had to be dismissed because he had “witness immunity“.

Madam Justice Hyslop of the BC Supreme Court sided with Dr. Sovio’s arguments and dismissed the Plaintiff’s lawsuit.  In doing so the Court made the following critical findings:

[34] Dr. Sovio’s role and relationship with Mr. Mund cannot be greater than that of ICBC.  It is not within the power of Dr. Sovio to determine whether Mr. Mund receives Part 7 benefits.  The power and the exercise of that power is that of ICBC. ..

[37] I find that Dr. Sovio is not in a fiduciary relationship, nor in a doctor/patient relationship, nor is one created between Mr. Mund and Dr. Sovio as a result of the medical examination by Dr. Sovio of Mr. Mund…

[48] In British Columbia, ICBC may choose, pursuant to s. 99, the medical practitioner.  The sole purpose of the s. 99 examination is that the medical practitioner examine the insured.  It is entirely at the discretion of ICBC when, and if, there is an examination.  There is no requirement that the medical practitioner provide a plan of care for the insured such as the Ontario DAC.  The doctor’s opinion is not binding on anyone; neither the insured nor the insurer.  ICBC may use, for different claims, for different insureds, the same medical practitioner time and time again.  ICBC may reject the medical practitioner’s opinion in whole or in part.  It is simply not a process in which the insured participates in other than to present himself or herself to the medical practitioner designated by ICBC…

[71] In Howatt v. Klassen, 2005 CanLll 11191, Dr. Klassen was requested by the College of Physicians and Surgeons of Ontario to examine Dr. Howatt.  That was the extent of the relationship between Dr. Klassen and the plaintiff, Dr. Howatt.  The court concluded that Dr. Klassen acted as an agent and for an appointee of the college.  In dismissing Dr. Howatt’s action, the court stated:

[11]      In any event, I agree with the submission that Dr. Klassen is protected by the common law doctrine of witness immunity, which protects individuals from civil suit based on their status as witnesses or potential witnesses at judicial proceedings.  The case law establishes that this protection is absolute so that even allegations of bad faith are insufficient to exclude the application of the witness immunity doctrine.

[72] A similar situation occurred in N. (M.) v. Forberg, [2009] A.J. No. 253.  The court found a witness immunity applied to a psychologist who counselled children involved in a custody and access dispute.  In proceedings between the parents of the children, the mother of the children asked the psychologist to give an opinion.  The opinion was adverse to the plaintiff father, and the court found the psychologist owed no duty of care, no fiduciary duty to the father and concluded that witness immunity applied, stating the following at para. 57:

If professionals in the field of health care are exposed to the threat of law suits when they intervene on behalf of persons to whom they clearly owe a duty and have determined are vulnerable individuals, there will be a chilling effect on the willingness of health care providers to deliver their necessary assistance to the Court, and to be full and frank in their opinions when doing so.

[73] Similarly, Dr. Sovio, in providing assessments pursuant to s. 99, must not be exposed to the threat of lawsuits for delivering his opinion, even if those opinions or actions are contrary to those of Mr. Mund…

Dr. Sovio is not a public official, but an expert retained by ICBC.  His position is similar to that of Dr. Klassen in Howatt and Ms. Froberg. …

[79] For these reasons, Mr. Mund’s ASC is struck out and the claim dismissed for failure to disclose a reasonable cause of action.

More on the Shortcomings of BC Wrongful Death Laws and the Tragedy of Georgia Luge Competitor Nodar Kumaritashvili

Written by admin on . Posted in Tort Reform, Uncategorized. 64 Comments on More on the Shortcomings of BC Wrongful Death Laws and the Tragedy of Georgia Luge Competitor Nodar Kumaritashvili

The Olympics are now over. British Columbians (and all Canadians for that matter) have much to be proud of. The Olympic Games have been a great success and created a sense of national unity and pride that have been unparellelled. As a Canadian I am proud of these games and the historic success of our athletes. Canadians will not soon forget where they were when Sidney Crosby scored his spectacular overtime goal to claim Olympic Gold.

With the dust settling, however, one story that has not gone away was the cloud that the Olympics started under with the unfortunate and tragic death of Georgia Luge Competitor Nodar Kumaritashvili.

When this news broke I shared my immediate thoughts on the tragedy.

Since authoring my article I’ve been approached by a handful of people to further share my views. I’ve been asked to comment on some of the specific shortcomings of British Columbia law that I alluded to in my initial article. After having this discussion several times I thought I would share some of my thoughts by way of this follow up post.

If a person dies through the carelessness of others in British Columbia the BC Family Compensation Act governs claims for compensation brought by survivors. This outdated law has been the subject of much criticism due to its restrictions for survivors rights. I could not have commented on the shortcomings of BC Wrongful Death law better than the TLABC (Trial Lawyers Association of British Columbia) who have just released their comprehensive views of the need for overhaul of BC Wrongful Death laws.  You can find these here and I strongly urge anyone interested in reform in this area to review TLABC’s submissions in full

Another shortcoming under BC Law is the quick notice limitation period contained in the BC Local Government Act.

Local Governments, are defined under the act as:

(a) the council of a municipality, and

(b) the board of a regional district;

If you are injured and can bring a claim against a Local Government you will lose your right to make your claim unless you comply with s. 286 of the local government act which provides as follows:
Immunity Unless Notice Given To Municipality After Damage
(1) A municipality is in no case liable for damages unless notice in writing, setting out the time, place, and manner in which the damage has been sustaibed, is delivered to the municipality within 2 months from the date on which the damage was sustained.

(2)        In case of the death of a person injured, the failure to give notice required by this section is not a bar to the maintenance of the action.

(3)        Failure to give the notice or its insufficiency is not a bar to the maintenance of an action if the court before whom it is tried, or, in case of appeal, the Court of Appeal, believes

(a)        there was reasonable excuse, and

(b)        the defendant has not been prejudiced in its defence by the failure or insufficiency.

Assuming that Local Governments had some responsibility for the design/set up / access to the now world famous Whistler Sliding Centre this limitation period would be triggered for anyone advancing an injury claim against the Local Governments. While this legislation does have an exclusion for claims involving “death” this limitation period has operated to strip the rights of many seriously injured people following alleged negligence of Local Governments.

When people are forced to deal with the consequences of a tragedy it is very harsh to take away their right to seek lawful compensation if they fail to turn their mind to litigation within two months.

The above examples are some of the first which came to mind when asked to comment on the shortcomings of British Columbia Personal Injury Law. While I am generally very proud of the tort system we have in this Province it is important to point out areas where there is room and need for improvement.

When Can a Third Party Be Responsible for Preventing Harm Intentionally Caused by Another? The Supreme Court of Canada Weighs in

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized. 113 Comments on When Can a Third Party Be Responsible for Preventing Harm Intentionally Caused by Another? The Supreme Court of Canada Weighs in


If someone is injured/killed intentionally by someone else can a third party be held civilly liable for failing to prevent the harm?  While the answer to this question turns heavily on the facts the answer can be yes and earlier this month the Supreme Court of Canada released a decision discussing this complex area of personal injury law.
In Fullowka v. Pinkerton’s of Canada Ltd. nine workers were killed in the course of a contentious labour dispute.   During the bitter strike one of the strikers “evaded security and surreptitiously entered the mine.  He set an explosive device which, as he intended, was detonated by a trip wire, killing nine miners.”
The survivors of the dead miners brought a lawsuit against various parties including the mine’s owners, their security firm and the territorial government claiming damages for “negligently failing to prevent the murders“.
The lawsuit largely succeeded at trial but was overturned by the Court of Appeal.  The Supreme Court of Canada ultimately sided with the Court of Appeal but before dismissing the case highlighted some important legal principles addressing the need to take reasonable steps in certain circumstances to prevent foreseeable intentionally inflected harm at the hands of others.  Some of the highlights of the Court’s discussion were as follows:

The analysis turns on whether the relationship between the appellants and the defendants discloses sufficient foreseeability and proximity to establish a prima facie duty of care and, if so, whether there are any residual policy considerations which ought to negate or limit that duty of care… The analysis must focus specifically on the relationships in issue, as there are particular considerations relating to foreseeability, proximity and policy in each…

[19] In my view, the relationship between the murdered miners and Pinkerton’s and the government meets the requirements of foreseeability and proximity such that a prima facie duty of care existed.  I also conclude that these prima facie duties are not negated by policy considerations…

[26] In cases of this nature, the law requires close examination of the question of proximity. The inquiry is concerned with whether the case discloses factors which show that the relationship between the plaintiff and the defendant was sufficiently close and direct to give rise to a legal duty of care, considering such factors as expectations, representations, reliance and the property or other interests involved….  Proximity is not confined to physical proximity, but includes “such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act”…

[27] The Court discussed proximity in detail in Childs, at paras. 31-46.  In Childs, as here, the proposed duty was to take care to prevent harm caused to the plaintiff by a third party; in other words, what was proposed there was a positive duty to act even though the defendant’s conduct had not directly caused foreseeable physical injury to the plaintiff. The Court noted that there are at least three factors which may identify the situations in which the law has recognized such duties (paras. 38-40).  The first is that the defendant is materially implicated in the creation of the risk or has control of the risk to which others have been invited.  The second is the concern for the autonomy of the persons affected by the positive action proposed.  As the Chief Justice put it: “The law … accepts that competent people have the right to engage in risky activities … [and] permits third parties witnessing risk to decide not to become rescuers or otherwise intervene” (para. 39). The third is whether the plaintiff reasonably relied on the defendant to avoid and minimize risk and whether the defendant, in turn, would reasonably expect such reliance….

The relevant question is whether the miners reasonably relied on Pinkerton’s to take reasonable precautions to reduce the risk.  The Court of Appeal found that was their reasonable expectation. This reasoning, in my view, supports rather than negates the existence of sufficient proximity.  The fact that, as the Court of Appeal noted, any higher expectation on the miners’ part would have been unreasonable was not relevant to the analysis.

[31] Pinkerton’s must have shared the miners’ expectation.  It was there to protect property and people. The whole point of its presence was to help secure the site so that the mine could continue to operate. The miners who continued to work during the strike made up a well-defined and identifiable group. Pinkerton’s surely ought to have expected that the very people it was there to protect would rely on it to exercise reasonable care in doing so.

[32] Pinkerton’s also undertook to exert some control over the risk..Pinkerton’s undertook to exert some control over everyone who came onto the property, including Mr. Warren…

[34] I conclude that the reasonable expectations of both the miners and Pinkerton’s as well as Pinkerton’s undertaking to exert some control over the risk to the miners supported the trial judge’s finding of proximity…

[70] The concern about indeterminate liability is not valid here.  This policy consideration has often held sway in negligence claims for pure economic loss. But even in that context, it has not always carried the day to exclude a duty of care.  The concern is that the proposed duty of care, if accepted, would impose “liability in an indeterminate amount for an indeterminate time to an indeterminate class”, to use the often repeated words of Cardozo C.J. in Ultramares Corp. v. Touche, 174 N.E. 441 (N.Y. 1931), at p. 444.  At the root of the concern is that the duty, and therefore the right to sue for its breach, is so broad that it extends indeterminately.  In this sense, the policy concern about indeterminate liability is closely related to proximity; the question is whether there are sufficient special factors arising out of the relationship between the plaintiff and the defendant so that indeterminate liability is not the result of   imposing the proposed duty of care: see, e.g., Canadian National Railway Co. v. Norsk Pacific Steamship Co., , [1992] 1 S.C.R. 1021, at p. 1153.  What is required is a principled basis upon which to draw the line between those to whom the duty is owed and those to whom it is not: see, e.g., Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., , [1997] 3 S.C.R. 1210, at para. 64, per McLachlin J. (as she then was).

[71] I do not see this as a difficulty here and, as a result, I do not think that the proposed duty of care exposes the government to indeterminate liability.  What is in issue is liability for physical injury to miners caused by an explosion in a mine which, it is alleged, would have been prevented had the government taken reasonable care in discharging its  statutory duties in relation to mine safety.  The duty is to the finite group of miners working in the mine which the inspectors had inspected repeatedly.  The potential liability is no more indeterminate than in the building inspector cases I reviewed earlier.

While this case was highly factually specific the legal principles discussed by the Supreme Court of Canada can be applied to more commonly seen fact patters.  One example of intentional harm at the hands of others are the unfortunate cases involving sexual abuse.  Where priests, teachers or other adults in authority sexually abuse young victims liability may extend beyond the person committing the crime.  In certain circumstances religious hierarchies have been found liable for sexual abuse committed by priests and school boards have been found liable for abuse committed by teachers.

The Supreme Court of Canada’s detailed reasoning in this case is welcome for anyone advancing a personal injury lawsuit involving an intentional harm seeking to extend liability further and I suggest that any Canadian lawyers prosecuting such a claim familiarize themselves with this judgement in full.

ICBC Injury Claims, Trials and Adjournments – Let's Be Reasonable

Written by admin on . Posted in Civil Procedure, Uncategorized. 105 Comments on ICBC Injury Claims, Trials and Adjournments – Let's Be Reasonable

Often times when a BC Supreme Court trial date approaches in an ICBC Injury Claim there are reasons why one party would like to adjourn the trial.  Key witnesses can be unavailable, perhaps the case is not quantifiable due to ongoing medical investigations or maybe one side is simply not prepared.
Whatever the reason if the parties don’t consent an application can be brought to a Supreme Court Judge or Master requesting an adjournment pursuant to Rule 39(9) which holds that “The court may order the adjournment of a trial or fix the date of trial of an action or issue, or order that a trial shall take precedence over another trial“.
The legal test for adjournment applications has long been established and it is clear that courts have the discretion to adjourn a trial.  In exercising this discretion the Court must take into account the “interests of justice”. The interests of justice are determined by ‘balancing the interests of the parties, which is a difficult and delicate matter requiring a careful consideration of all the elements of the case‘.
With this introduction out of the way that brings me to the topic of today’s post.  What if a trial needs to be adjourned for very clear and obvious reasons but the opposing side does not consent?  Unreported reasons for judgement came to my attention today dealing with such a scenario.
In this case (Davis v. Clark, BCSC Chilliwack Registry, June 8, 2009) the Plaintiff’s personal injury claim was set for trial.  Fault was admitted leaving the court to only deal with the issue of damages (value of the personal injury claim).  The trial date, unfortunately, was set on the same date that the Plaintiff’s lawyers daughter was being married.  The Plaintiff was content to have the trial adjourned but the Defendant refused to consent.  A motion was brought asking for an adjournment and it was granted.  The Court went further, however, and ordered that the Defendants pay the Plaintiff $703 in costs ‘forthwith‘ for their unreasonable refusal to consent.
Master Baker had the following to say:
“Anyway, in the case before me, liability is not in issue.  It is admitted.  I just do not see there is any prejudice to the defence, but, with respect, it strikes me as just an eminently reasonable request on the part of the plaintiff to adjourn this.  I wonder where litigation is going when someone says, “Look, my child is getting married and I want an adjournment,” and it is refused.  I find that unacceptable.  It frustrates and angers me, frankly.  I just wonder where it is going…The order will go.  Costs in any event payable forthwith.”
Sometimes there are legitimate reasons for an adjournment and sometimes there are not.  This case, however, demonstrates that where there is a very reasonable request for an adjournment and it is unreasonably refused the Court can punish the unreasonable party with costs payable forthwith.
Note:  Rule 39(9) will be kept intact when the New BC Supreme Court Rules come into force on July 1, 2010 and can be found at Rule 12-1(9).

Slip and Fall Accidents in BC – What Does it Take For a Successful Lawsuit?

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Occupier's liability claims, Uncategorized. 128 Comments on Slip and Fall Accidents in BC – What Does it Take For a Successful Lawsuit?


When you slip and fall and get injured on someone else’s property are you entitled to compensation?  The answer is not necessarily.
Injury in a slip and fall accident is only half of the equation.   The other half is fault.  The ‘occupier‘ of the property (or another defendant who owes you a duty of care) needs to be at fault for the slip and fall otherwise no successful claim for compensation can be brought.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with this area of the law.
In today’s case (Schray v. Jim Pattison Industries Ltd.) the Plaintiff fell (apparently on water) at a Save on Foods Grocery Store which was owned and operated by the Defendant.  The Plaintiff sued for her injuries alleging that the Defendant was at fault.  The Defendant brought a motion under Rule 18-A of the BC Supreme Court Rules to dismiss the case.  Madam Justice Arnold-Bailey denied the Defendant’s motion finding that the case was not suitable for summary dismissal.  Before reaching this conclusion, however, the Court summarized some of the legal principles behind a successful slip and fall lawsuit.   I reproduce these here for your convenience:

[21]        I agree that the prior summary trial judge set out the correct law in the previous application at paras. 5-10, as follows:

[5]        The duties of an occupier are set out in s. 3 of the Occupier’s Liability Act:

3(1)      An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person’s property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.

(2)        The duty of care referred to in subsection (1) applies in relation to the

(a)      condition of the premises,

(b)      activities on the premises, or

(c)      conduct of third parties on the premises.

[6]        The Act does not create a presumption of negligence against an occupier whenever a person is injured on the premises.  To establish liability, a plaintiff must point to “some act (or some failure to act) on the part of the occupier which caused the [plaintiff’s] injury”: Bauman v. Stein (1991), 78 D.L.R. (4th) 118 at 127 (B.C.C.A.).

[7]        A similar test applies under the common law.

[8]        An occupier’s duty of care does not require the occupier to remove every possibility of danger.  The test is one of reasonableness, not perfection.  Thus, an occupier may avoid liability if it establishes that it had in place a reasonable system of inspection:  Carlson v. Canada Safeway Ltd. (1983), 47 B.C.L.R. 252 (C.A.).

[9]        The plaintiff also bears the burden of proving that the hazard in question caused the injury: Keraiff v. Grunerud (1990), 43 B.C.L.R. (2d) 228, 67 D.L.R. (4th) 475 (C.A.).

[10]      An occupier’s duty under the Act in relation to slips and falls in grocery stores was described as follows by Trainor J. in Rees v. B.C. Place (25 November 1986), Vancouver C850843 (B.C.S.C.) (quoted with approval by Hutcheon J.A. in Coulson v. Canada Safeway Ltd. (1988), 32 B.C.L.R. (2d) 212 at 214, [1989] 2 W.W.R. 264 (C.A.)):

The proceedings are brought under the Occupier’s Liability Act and that Act provides that an occupier has a duty to take that care that is reasonable in all the circumstances of the case to see that a person, in using the premises, will be reasonably safe.

The first requirement to satisfy that obligation is to take the kind of steps that were taken by the Defendants here to put into place a system to safeguard against dangerous substances being allowed to remain on the surface of the concourse. And then secondly to be sure that there was compliance by the people who were carrying out that responsibility with the system in place.

The bottom line is that the issue of fault is key.  When considering whether to sue for a slip and fall injury thought should be put to the issue of what the defendant did wrong to cause the incident or should have done to prevent it.

In my continued efforts to cross-reference the current BC Rules of Court with the soon to be in force New BC Supreme Court Civil Rules I will point out that Rule 18-A is kept intact under the new Rules and is reproduced almost identically at Rule 9-7 “Summary Trial“.

Mild Traumatic Brain Injuries and the Recognition of Symptoms

Written by admin on . Posted in ICBC Brain Injury Cases, Uncategorized. 125 Comments on Mild Traumatic Brain Injuries and the Recognition of Symptoms


When people suffer from mild traumatic brain injuries (MTBI), it sometimes takes time for people to recognize the extent of the injury and the impact that the consequences of MTBI have on everyday life.  Changes can be subtle but the impact could be dramatic.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, considering such a case.
In today’s case (Burdett v. Eidse) the Plaintiff was involved in 2 serious motor vehicle accidents.  The first in Kelowna, the second in North Vancouver.  Fault was not admitted for the first but after trial the Court found the Defendant 100% liable for the first crash.  Fault was admitted by the Defendant for the second crash.  Madam Justice Loo was asked to determine the extent of the Plaintiff’s accident related injuries.
The Plaintiff suffered from an MTBI in the first crash.  As is sometimes seen with these types of injuries the Plaintiff did not appreciate the significant impact his MTBI had on his level of functioning.   The Plaintiff, who had a “bulldog” attitude took very little time off work and complained very little about the consequences of the car crash.
To those around the Plaintiff, however, the changes were noticeable.  Evidence was called that there were significant changes in the Plaintiff’s functioning after the car crash by those close to him.  Ultimately Madam Justice Loo of the BC Supreme Court accepted that the Plaintiff did suffer an MTBI in the collision and that he was competitively unemployable as a result.  The Court went on to award just over $1.1 Million in total damages including an award of $200,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
In reaching her conclusions Madam Justice Loo highlighted the difficulty the Plaintiff had in realizing the consequences of the car crash.  Some of the key findings were as follows:

[106] When asked when he became aware that he had a problem, Mr. Burdett said that when he first saw his counsel Mr. Burns, he mentioned he had an accident, and “kind of left it” at that. No one in his crew told him he was not doing what he was supposed to be doing on the job. Then “weird things” started “creeping into my life”. Friends started telling him he was forgetting things, he was having a hard time remembering numbers, he could no longer estimate the cost of a plan, and he was forgetting things at work. His crew told him to get joist hangers and he returned with something else. They started writing things down for him so that he would remember. He finally realized “there’s something really wrong here; I need help”. He returned to see Mr. Burns again.

[107] There is no evidence of when Mr. Burdett saw his counsel the first or second time, but this action was commenced and a statement of claim filed on April 4, 2007. The statement of defence was filed July 30, 2007.

[108] Despite what his family, friends, and co-workers saw and observed of Mr. Burdett, it was not until he saw Dr. Cameron that he recognized the extent of his injuries from the motor vehicle accident of June 26, 2005.

[109] At the time Mr. Burdett worked on the Losch and Summerland Motel projects, he thought he was doing fine. In retrospect, he was not. In retrospect he realized that he was cut out of the loop, did not stay on top of matters, and let work get out of control.

[110] Several times during the construction of the Losch projects, the architect voiced to him that the project was not running satisfactorily. Not only has an architect never said that to him, but Mr. Burdett also did not realize that the project was not running smoothly at the time.

[111] Mr. Burdett’s company is still owed $80,000 on the Losch project, but Mr. Burdett is unable to determine what the deficiencies are or what work has been left undone because he left everything to the job superintendent with whom he no longer has a relationship.

[112] The Summerland Motel project became an even bigger disaster because Mr. Burdett failed to properly manage the project. He did not write up a change order or extra work order and did everything with a wave of his hand. He never made sure that the owner had financing in place, with the result that Mr. Burdett financed much of the work with his own personal funds. He did not deal with the trades as he should have, with the result that trades walked off the job or never showed up. The job occurred at a time when carpenters and other trades were hard to get. Mr. Burdett misquoted parts of the work by leaving out necessary work, and did not know at the time that he was having difficulty estimating and working with numbers.

[188] There is no doubt that Mr. Burdett initially did not recognize the extent of his injuries:  Dr. John Pullyblank testified that it is not uncommon when a person suffers neurocognitive injuries. It takes that person some time to realize that his brain does not work the way it used to.

[189] I find that Mr. Burdett is neither a complainer nor a malingerer. At first, he was not aware of the extent of his cognitive difficulties and worked without even telling those with whom he worked closely that he had been in an accident. Common sense tells me that those who worked with him would not and did not tell him that something was wrong with him or his brain. This is supported by the evidence. Instead, those who worked with him avoided dealing with him and basically cut him out of the loop.

[190] Dr. Kates, Mr. Nemeth, Dr. Cameron, and Dr. Kaushanksy all spoke about Mr. Burdett’s bullish or bulldog attitude. Dr. Kaushansky put it best when he said that Mr. Burdett probably did not recognize he was injured in the accident (I pause to note that Mr. Burdett seemed genuinely surprised when the police officer’s report indicated that he had been injured). It is part of his bull dog approach: “This is a nothing accident. I’m out of here and on my way”. It explains why he took no time off work, why he told very few about the accident, and why he complained little, if at all…

[194] While Mr. Burdett clearly did not appreciate the extent of his injuries or that something was wrong with him, clearly those who were close to him—his family, friends, and workers—knew he was a different man long before Dr. Cameron’s diagnosis…

[198] I conclude on a consideration of all of the evidence that Mr. Burdett suffered soft tissue injuries and a concussion or an MTBI from the June 2005 accident. He had a pre-existing brain injury that made him more susceptible to more significant and prolonged symptoms, and he fell within that small percentage of individuals who do not recover. His soft tissue injuries were aggravated by the January 2006 accident. The overwhelming evidence is that Mr. Burdett suffered cognitive impairment immediately after the first accident, his condition will likely not improve, and he will suffer the same problems for the rest of his life. His anxiety and depression are related to the accident and the realization that not only is he no longer the same high functioning successful businessman that he once was, but also that his condition is permanent and he is not likely to recover.

[199] I conclude on all of the evidence that Mr. Burdett is no longer capable of working as a contractor and is competitively unemployable, or put at its best, is minimally employable.

It is difficult to extract sound bites from a case like this and I suggest that anyone interested in Brain Injury litigation in British Columbia review this judgement in full to see some of the types of issues that can arise in MTBI cases.

This judgement reveals 2 issues that are worth taking note of.  First that lay witnesses (friends, family co-workers) play a vital role in brain injury litigation as their evidence can be key towards establishing not just the diagnosis of injury but the severity of its impact.  Second this case shows that being stoic in the face of injury does nothing to reduce the value of an injury claim.  Here the Plaintiff’ ‘bulldog‘ attitude did not reduce the value of his claim and in all likelihood assisted the Court in making positive credibility findings.

The Law of "Common Interest Privilege" Discussed in the Context of BC Injury Lawsuits

Written by admin on . Posted in Civil Procedure, Uncategorized. 65 Comments on The Law of "Common Interest Privilege" Discussed in the Context of BC Injury Lawsuits


Further to my many posts on the topic of discovery, when parties are involved in a lawsuit in the BC Supreme Court the Rules of Court require the parties to disclose certain information to the opposing side.  Generally all relevant information needs to be disclosed however there are exceptions to this and one such exception is ‘privilege‘.
Generally speaking (this is not an exhaustive list), privileged documents are documents that were created with an expectation of confidentiality between a party and his/her lawyer or documents that were created with the dominant purpose of advancing the parties interests in court.
The purpose behind the privilege exception to disclosure is to permit individuals to freely discuss their legal matters and work with their lawyers to advance their interests without the fear that these conversations/actions can come back to hurt the individuals interests later on.
The law recognizes an extension of privilege between one client and their lawyer to multiple people and that lawyer if the conversations took place in anticipation of a lawsuit and the multiple parties have a common interest.  This type of privilege is sensibly called ‘common interest privilege‘.  Reasons for judgement were released today discussing this area of law and highlighting some of the limitations of common interest privilege.
In today’s case (Peters v. Paterson) the Plaintiff was seriously injured while windsurfing when he was involved in a collision with a motorboat.  He eventually sued multiple parties including the people alleged to have been operating the boat (the “Motorboat Defendants”) and the people alleged to have rented the boat to the Motorboat Defendants (the “Renter Defendants”).
Before the lawsuit started one of the Renter Defendants apparently feared a potential lawsuit and retained the services of a lawyer.  That lawyer retained an adjuster who immediately took statements from a handful of people including the people who would later turn out to be the Motorboat Defendants.
After all the Defendants were sued by the Plaintiff the Renter Defendant who initially hired the lawyer issued a Third Party Notice against the Motorboat Defendants (a Third Party Notice is a document which alleges that if a certain defendant is found at fault and has to pay that the Third Party has to indemnify that defendant for the judgement).
The Plaintiff then asked for the statements of the Motorboat Defendants to be produced.  The Lawyer for the Renter Defendants refused citing ‘common interest privilege‘.  Ultimately an application was brought to court to force disclosure and the application succeeded.  Master Taylor of the BC Supreme Court, Vancouver Registry, held that the Third Party Notice took away any claim to common interest privilege.  The key reasons were as follows:

[13] Common interest privilege is said to be an extension of the privilege against disclosure of solicitor-client communications.  As Wigmore defines it:

The chief instance occurs when the same attorney acts for two parties having a common interest, and each party communicates with him.  Here the communications are clearly privileged from disclosure at the instance of a third person.  Yet they are not privileged in a controversy between the two original parties, inasmuch as the common interest and employment forbade concealment by either from the other.  (Wigmore’s emphasis)

[14] The defendants take the position that the statements in this case are covered by common interest privilege, which, they submit, applies to an exchange of confidential information between individuals who have a common interest in anticipated litigation.  The defendants cite Buttes Gas and Oil Co. v. Hammer (No. 3), [1980] 3 All E. R. 475 (C.A) in support of their position where Lord Denning says:

There is a privilege which may be called a “common interest” privilege.  That is a privilege in aid of anticipated litigation in which several persons have a common interest.  It often happens in litigation that a plaintiff or defendant has other persons standing alongside him – who have the self-same interest as he – and who have consulted lawyers on the self-same points as he – but these others have not been made parties to the action…All exchange counsel’s opinions.  All collect information for the purpose of litigation.  All make copies.  All await the outcome with the same anxious anticipation – because it affects each as much as it does the others.

[15] The defendants maintain that common interest privilege can apply to witness statements and in fact has been so applied in a number of Canadian cases.

[16] On the other hand, the plaintiff asserts that the case at bar is distinguishable from other cases in that there is no suggestion by the defendant or their counsel that counsel has ever worked in conjunction with the motorboat defendants to jointly advance the interests of all the defendants.  As well, the plaintiff maintains, there has not been any evidence led to indicate the motorboat defendants understood the reason for giving their statements, the uses their information would be put to, or that their statements would be kept privileged from the plaintiff.  In fact, in the instant case, two of the motorboat defendants have signed authorizations to release their statements to the plaintiff.

[17] In the recent decision in Maximum Ventures Inc. v. De Graaf, 2007 BCCA 510, Mr. Justice Mackenzie discussed the test for maintaining privilege between parties at paragraph 14:

Recent jurisprudence has generally placed an increased emphasis on the protection from disclosure of solicitor-client communications, including those shared in furtherance of a common commercial interest.  In the instant case the [solicitor’s] draft was produced within the recognized solicitor-client privileged relationship.  The common interest privilege issues arise in response to a plea of waiver of that privilege.  The common interest privileges is an extension of the privilege attached to that relationship.  The issue turns on whether the disclosures were intended to be in confidence and the third parties involved had a sufficient common interest with the client to support extension of the privilege to disclosure to them….Where legal opinions are shared by parties with mutual interests in commercial transactions, there is a sufficient interest in common to extend the common interest privilege to disclosure of opinions obtained by one of them to the others within the group, even in circumstances where no litigation is in existence or contemplated.

[18] And, at paragraph 16, Mackenzie, J.A. made the following finding:

The interests of the clients of the three solicitors were not identical but they were common to the extent that financing of the Western exploration of the Mongolian properties was beneficial to all of them.  They also shared an interest in assessing the invalidity of Maximum’s claims.

[19] The defendants maintain that even though two of the defendants have signed authorizations addressed to counsel for the defendants directing that their statements be released to counsel for the plaintiff, they cannot, in these circumstances, create a waiver over the common interest privilege by so doing.

[20] In my view, that argument begs the question for two reasons.  Firstly, were the persons from whom the statements taken to request copies of their statements, surely they would be entitled to receive copies of them as no privilege attaches to one’s own statement in the hands of a third party?  It would then be open to each of those parties to deliver a copy of their statements directly to the plaintiff.  Secondly, the defendant, Paterson, has issued third party proceedings against the four individual motorboat defendants for which he seeks judgment against the motorboat defendants, or indemnity from them in the event a judgment is rendered against Paterson.

[21] The Third Party Notice contains the following allegations:

a. The plaintiff’s windsurfer struck the port side of the motorboat;

b. The motorboat defendants represented that Arvinder Kaler would be the person operating the motorboat;

c. While Paterson does not know who was operating the boat at the time of the accident, it has been represented to Paterson that Sukhbir Brar was operating the motorboat at the time of the accident; and

d. the accident was caused solely by the negligence of the operators of the motorboat.

[22] In the circumstances, two things are apparent.  One, that the allegations made in the Third Party Notice are likely the result of information gleaned from the motorboat defendants, and, two, the defendant, Paterson, alleges the accident was caused solely by the negligence of the motorboat defendants, which creates the question: where is the commonality of interest between the renter defendants and the motorboat defendants such that a privilege continues to exist over the statements taken from the motorboat defendants?

[23] In my view, by the very nature of the Third Party Notice and the allegations made in it, there has been a severing of the commonality of interest of the defendants.  In the result, therefore, there is no common interest privilege which can be maintained, and, accordingly, the statements taken from the four motorboat defendants are no longer privileged and must be turned over to the plaintiff.

Chronic Pain With No Objective Signs Discussed in Injury Litigation

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


One set of facts personal injury lawyers frequently encounter are Plaintiffs who sustain injuries in motor vehicle accidents and continue to have chronic pain well beyond the time that the objective injuries have healed.
Pain is an inherently subjective condition and it is well accepted in peer-reviewed medical literature that pain can be present without ongoing objective physical injury.  So how do courts deal with such claims?  Without getting into the many nuances of trial outcomes a general theme in these types of cases is credibility.  If a court accepts that a Plaintiff’s claims are credible then these claims are generally accepted.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such a claim.
In today’s case (Sylte v. Rodriguez) the Plaintiff was involved in a 2005 motor vehicle collision in Port Coquitlam, BC.  The Defendant failed to yield the right of way to the Plaintiff when he made a left hand turn in front of her.  The issue of fault was admitted leaving the Court to deal with the value of the Plaintiff’s injury claim.
Mr. Justice Sewell awarded the Plaintiff just over $114,000 in total damages for her injuries and losses.  The award included $45,000 for non-pecuniary damages.  In arriving at this figure Mr. Justice Sewell discussed the subjective but real nature of the Plaintiff’s ongoing lower back pain due to soft tissue injuries.  The highlights of the Court’s discussion were as follows:

[12] Ms. Sylte continues to suffer from left side back pain around her sacroiliac joint area.  In Dr. Shu’s opinion this pain is caused by the initial car accident of September 15, 2005, but is definitely aggravated by the second accident.  Dr. Shu does not expect a complete recovery as the pain has been on-going since 2005.  He thinks that Ms. Sylte will experience on-going back pain for the foreseeable future.

[13] I also heard evidence and was provided with medical reports from Dr. Stone and Dr. Duncan McPherson.  I do not think it is necessary to refer to their evidence in any detail.  In this case, the consensus of medical opinion is that Ms. Sylte is suffering from low back pain in the left sacroiliac area.  The doctors also all agree that there is no objective evidence of underlying injury causing this pain.  They are all of the view that as the pain has persisted since June 2005 it will in all likelihood continue to persist for the foreseeable future.

[14] Dr. McPherson’s initial opinion was that there was no objective evidence of disability.  However in cross examination at trial he did agree that he thought Ms. Sylte still had back pain as of the date of his examination in 2006.  I did not take him to be disagreeing with Dr. Shu’s opinion that Ms. Sylte will probably continue to suffer from ongoing back pain for the foreseeable future.  However, I do not think that Dr. Shu considered that Ms. Sylte suffers from any significant disability as a result of her injuries.

[15] The conclusion I have reached is that any restriction on Ms. Sylte’s activities is caused by pain rather than physical limitation.  The pain is however very real to Ms Sylte and the functional effect of that pain is that Ms. Sylte no longer feels able to do all the things she did before the accident.

[16] Based on the evidence before me I conclude that Ms. Sylte suffered a soft-tissue injury to her lower back in the motor vehicle accident which continues to cause her chronic pain in her lower back area.  I also conclude that she developed depressive symptoms which she would not have developed had the accident not occurred…

[18] Ms. Sylte is 51 years old.  She testified that prior to the first motor vehicle accident she was an active, energetic individual.  She enjoyed playing mixed softball, golf and skiing.  She was employed as a nurse’s aide at the Royal Columbian Hospital in New Westminster.  She was a single mother whose adult son, Josh, lived with her.

[19] Ms. Sylte said that as a result of the pain which she is now experiencing she is no longer able to play softball and can golf only very occasionally.  She simply finds these activities too painful to pursue.  In addition she no longer skis.  She indicated that Josh is now required to do many of the more physically demanding tasks around the house.  She also indicated that she finds it difficult to drive long distances and that her general quality of life has deteriorated significantly as a result of her pain.  She indicated that this pain is about 4 out of 10, with 10 being the worst pain imaginable.

[20] Josh gave evidence at the trial.  He generally corroborated the drop in Ms. Sylte’s activity level since the motor vehicle accident.  He also indicated that his mother had become much less social after the accident.  Josh, who is now 31, does much of the heavy work around the house.

[21] Ms. Sylte has suffered a significant impact on her social and recreational life as a result of the injuries she suffered in the accident.  The evidence before me is that these symptoms will be permanent.  I note that Ms. Sylte is no longer able to play softball, participate in golf in any meaningful way or pursue skiing.  She is in more or less constant discomfort from the injuries she has suffered.  As I have found, she is genuinely experiencing the pain which, I have no doubt, has some psychological component.

[22] I have concluded that there should be a substantial award for non-pecuniary damages in this case.  I was referred to in a number of cases which seem to establish a range of approximately $35,000 to $125,000 for non-pecuniary damages for plaintiffs who suffer permanent pain symptoms without significant physical disability.  In my view, an appropriate amount for non-pecuniary damages in this case is $45,000.

Court Ordered "Independent Medical Exams" and the Standard of Review – A Second Kick at the Can

Written by admin on . Posted in Civil Procedure, independent medical exams. 49 Comments on Court Ordered "Independent Medical Exams" and the Standard of Review – A Second Kick at the Can


When a court orders a Plaintiff to attend an independent medical exam (click here to read some related posts on this topic) in an ICBC or other Injury Claim and the parties appeal what is the standard of review used in the appellate hearing?
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing this issue.
In today’s case (Barbosa v. Castillo) the Plaintiff attended an Independent Medical Exam (IME) with an Orthopaedic Surgeon chosen by the Defendant.  He gave an opinion that the plaintiff did not have a “functional problem” with respect to any neurological complaints.  The Plaintiff then served expert reports outlining  that he had nerve root irritation which negatively impacted his ability to work.
The Defence asked for a second medical exam, this time with a neurologist.  On application to Court the presiding Master rejected the motion.  The Defendant appealed the ruling.  On hearing the appeal Mr. Justice Schultes had to decide, amongst other things, what the legal test was on these types of applications.  He ruled that the appeal can be a rehearing (as opposed to requiring proof that the Master was ‘clearly wrong’) in essence giving the appellant a second kick at the can.  Specifically the Court held as follows:

[14] Before proceeding further, it is necessary to establish the applicable standard of review of the learned master’s decision.  It is well established that on purely interlocutory matters, it must be demonstrated that the master was “clearly wrong” in his or her decision. However, when the ruling raises questions that are vital to the final issue in the case, the reviewing court approaches the matter as a rehearing.  When the master’s decision deals with a question of law, the standard of review is correctness:  Abermin Corp. v. Granges Exploration Ltd., [1990] B.C.J. No. 1060 (S.C.), and Joubarne v. Sandes, 2009 BCSC 1413 at para. 14.

[15] A decision to deny a defendant the opportunity to have an independent medical examination conducted of the plaintiff can raise questions that are vital to the final issue in the case.  In Belke v. Bennett, 2006 BCSC 536, Mr. Justice Barrow provided the following helpful approach at para. 5:

If the Master’s order amounts to a refusal, whether in whole or in part, of an application to have the plaintiff submit to an independent medical examination, it may deprive the defendant of discovering evidence necessary for a full examination of the plaintiff’s claim or of a defence advanced.  It is in that sense that a decision may be said to go to an issue vital to the trial. […]  If, on the other hand, the Master’s order simply sets terms on which the independent medical examination is to be conducted or directs that such an examination not be performed by a particular professional, the defendant is not deprived of potential evidence, and the order cannot be characterized as going to an issue that may be vital to a final issue at the trial.

[16] I adopt this analysis.  I think the master’s decision in this case fell within the first situation envisioned in Belke.  Denying the defendant’s application effectively foreclosed any exploration of Dr. Hunt’s opinion, let alone any rebuttal of it, on behalf of the defendant by an expert with the specific expertise necessary to cope with the report on its own terms.

[17] If uncontradicted, Dr. Hunt’s opinion could be determinative of several of the kinds of damages claimed by the plaintiff, in particular as to the true nature and extent of his injuries and their impact on his future earning capacity.  These questions appear to be vital to several final issues.  Accordingly, I will treat this appeal as a rehearing.

Mr. Justice Schultes went onto allow the appeal and order the second defence medical exam.  In doing so the Court provided the following useful summary of the law discussing factors courts can consider in applications for multiple independent defence medical exams:

[19] Turning to the actual merits of the defendant’s application on the rehearing, an excellent summary of the applicable law in this area was provided by Madam Justice D. Smith, then a member of this court, in McKay v. Passmore, 2005 BCSC 570 at paras. 15 – 19:

15.       The principles to be followed in deciding whether the defendants have shown an adequate basis for a second IME are set out in Trahan v. West Coast Amusements Ltd.[2000] BCSC 691 (CanLII), [2000] BCSC 691, at para. 48:

The authorities establish that additional medical examinations are in the discretion of the court …  (citations omitted).

That discretion is to be exercised judicially, considering the evidence adduced.  A second examination to permit the defendant a second opinion on the same subject matter will not be allowed.  A second examination may be appropriate where there is some question which could not have been dealt with on the first examination … (Citations omitted).

That the magnitude of the loss is greater than previously known is not in and of itself sufficient to permit a second examination … (Citations omitted).

Where diagnosis is difficult and existing assessments are aged, further assessment may be required …

And in Roberge v. Canada Life Assurance Co. [2002] BCSC 1500 (CanLII), [2002] BCSC 1500 at paragraph 9:

The distinction is quite important.  Simply put, when a person in litigation makes a claim for a personal injury, the defendant is, without oversimplifying the matter, almost always entitled to a medical examination of the plaintiff.  A much higher standard is imposed when the defendant seeks a second medical examination of the plaintiff.

16.       The overriding question is whether a second medical examination is necessary to ensure reasonable equality between the parties in their preparation of a case for trial: Wildemann v. Webster [1990] CanLII 206 (BC C.A.), [1991] 50 B.C.L.R. (2d) 244 (C.A.).

17.       Reasonable equality does not mean that the defendant must be able to match expert for expert or report for report.  I refer to Trahan v. West Coast Amusement Ltd. and toMacNevin v. Vroom [21 December 2004] New Westminster S072995 (S.C.).

18.       The defendants must satisfy the court that there is some question or matter that could not have been dealt with at the first examination:  Jackson v. Miller [1999] B.C.J. No. 2751 (S.C.).

19.       In considering how to exercise the discretion to grant a second IME, the court should take into account the timeliness of the application in the light of Rule 40A and the practicalities of trial preparation… [citations omitted.]

BC Injury Litigation – An Expensive Business

Written by admin on . Posted in Civil Procedure, Uncategorized. 51 Comments on BC Injury Litigation – An Expensive Business


Ask any personal injury lawyer in BC and they will tell you that Injury Claim prosecution can be a very expensive business.
The greatest expense associated with this type of litigation involves the services of expert witnesses.  It is very rare to prosecute an injury claim without hiring at least one expert to address issues such as diagnosis of injury, cause of injury, prognosis and future care needs.  Medical experts cost money and these expenses are usually paid by Plaintiffs lawyers up front.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, demonstrating just how expensive the services of expert witnesses can be.
In today’s case (Hamo v. Khan) the Plaintiff was injured in a 2001 BC Motor Vehicle Accident.  After the accident the Plaintiff started to suffer from collapsing spells.  The Plaintiff’s lawyer retained Dr. Hurwitz who is trained as both a psychiatrist and a neurologist to provide an opinion with respect to the relationship of the collapsing spells to the trauma.  Dr. Hurwitz generated two reports and billed the Plaintiff’s lawyer $69,543 for his services.
The parties to the lawsuit could not agree whether this expense was reasonable and the matter was brought before the BC Supreme Court.  Ultimately Registrar Blok held that the disbursement as presented was not reasonable and considerably reduced the amount recoverable for the disbursement associated with Dr. Hurwitz’s services.  In addressing this disbursement Registrar Blok provided the following useful reasons:

[47] I conclude that the time spent on the summarizing of the collateral medical information was excessive; in fact, vastly excessive, particularly given that a fair amount of the pertinent history seems to have been summarized elsewhere in the reports.  I also agree that, based on Dr. Hurwitz’s own evidence, in the case of the first report there was inefficiency as a result of the lengthy time it took to complete the process.

[48] As Master Joyce made clear in Cloutier v. Wong, and also as stated in Chandi v. Atwell, there is simply no need to prepare meticulous summaries of medical information obtained from other sources.  I accept that there was a need for Dr. Hurwitz to read and fully absorb this other medical information, but there was no need to do it in this expensive and time-consuming way.  If that is the only way Dr. Hurwitz can accomplish this task then that is all very well as between Dr. Hurwitz and counsel who retain him, but for the purposes of costs between party and party it is excessive and that excessive element cannot be passed on to the opposing party.

[49] I turn now to the hourly rate.  This was the subject of much debate, mostly on the significance of the B.C.M.A. fee schedule, which at present has a guideline fee of $356 per hour for “court preparation” and a fee of $1,495 for preparation of a “medico-legal opinion”.  The defendant did not rely on the “medico-legal opinion” guideline fee (and here I note that the defendant’s own experts did not appear to adhere to it) but did rely on the court preparation fee as providing guidance when considering the $500 per hour rate charged by Dr. Hurwitz.  For her part the plaintiff cited Mohr v. Dent (1983), 40 C.P.C. 8 (B.C.S.C.), where the court said that the B.C.M.A. fee schedule was a guide to the medical profession and had “nothing to do with what is a proper fee for an unsuccessful defendant to pay” (at para. 62).

[50] Both submissions are correct, in their way.  The B.C.M.A. fee schedule is not determinative of the proper amount that ought to be allowed as a disbursement but, as was noted in Moore v. Dhillon, [1992] B.C.J. 3055 (S.C.), it is “of some assistance … to know what the medical profession, in this province, views as a fair, and, presumably, competitive rate, for that particular service” (at para. 212).

[51] In my experience the B.C.M.A. fee schedule can be somewhat helpful in more straightforward cases, but as the cases become more complicated and the medical experts more specialized or accomplished its utility is much less.  Of more relevance, in my view, is the $375 hourly rate charged to the defendant by Dr. Davis, a psychiatrist, who although he does not have a dual specialty in psychiatry and neurology like Dr. Hurwitz, does have a postgraduate specialist degree in both disciplines.  I accept that, all other things being equal, Dr. Hurwitz could rightly charge a higher hourly rate than Dr. Davis because of his additional specialty, but the question is whether the plaintiff has met the burden of showing that Dr. Hurwitz’s hourly rate ought to be 33% more than that of Dr. Davis.

[52] I should say, because it was argued, that I did not find any assistance in knowing the hourly rate of the neuropsychologist, Dr. Crockett.  His specialty is really quite different than that of the medically-trained experts.

[53] The plaintiff made much of the unique nature of Dr. Hurwitz’s qualifications, and submitted that since he is the only one around with this dual specialty “he is the market”.  But this is circular reasoning which could be used to justify any rate at all (he charges this rate, he is the market, therefore it is the market rate and it is ipso facto reasonable).  It also ignores the alternative avenue of retaining two experts instead of one very expensive expert.  Counsel for the defendant did not advance this argument, but it seems to me that a good case might have been made that the plaintiff ought to be limited in her costs recovery to the possibly cheaper reasonable alternative of retaining two experts.

[54] Although the plaintiff submitted that Dr. Hurwitz’s dual qualifications avoided the “wasteful” alternative of having to retain specialists in two different fields, that argument falls rather abruptly in light of the evidence of the charges of the other medical experts, neurologists Dr. Cameron ($2,182) and Dr. Robinson ($2,500), and psychiatrists Dr. O’Shaughnessy ($2,600) and Dr. Davis ($3,850 for his first report), compared to the $45,000 (exclusive of GST) charged by Dr. Hurwitz for his first report.

[55] For these reasons I have concluded that the plaintiff has not met the burden of showing that Dr. Hurwitz’s hourly rate is reasonable.  Doing the best I can on the evidence available I am satisfied that an hourly rate of $425 is a reasonable one in all the circumstances.

[56] For the first report I conclude that fees of $18,000 (plus GST) are appropriate.  In general, this reflects my conclusions on the hourly rate, the unproductive and unnecessary clinical records summaries (though accepting and allowing for time that had to be spent reviewing those records) and the element of inefficiency due to the lengthy report-creating process, while accepting the time spent on the examination of the plaintiff and related interviews (that is, all the time spent prior to February 16, 2005) and the time that was shown to have been spent on the actual preparation of the report.

[57] For the second report I would allow fees of $9,800, plus GST, based in general on the elimination of the time spent on the records summaries (while allowing for time to have been spent reviewing those records) and the reduction in the hourly rate.

[58] The trial preparation charges I would allow at $936.25, based solely on the reduction in the hourly rate.  For some reason GST was not included in the subject invoice and therefore GST is not to be added to this disbursement.

[59] I disallow the “administration and processing” charges included in the first two accounts.  While it may be an interesting debate whether these charges should be disallowed because they are part of overhead (as they usually are with lawyers’ bills) or may be charged in addition (which, for reasons unknown, is by case authority allowable for receivers and bankruptcy trustees), I leave the answer to that question for another time because in this case there is no (or at least, insufficient) evidence to show what Dr. Hurwitz’s actual costs were or the relationship between the round-figure charges of $500 and $250 and his actual costs.