ICBC Hit With Special Costs Award For “Reprehensible” Lawsuit Tactics

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, finding ICBC is liable to pay special costs for ‘reprehensible’ conduct in litigation.

In the recent case (Zhang v. 328633 BC Ltd) the Plaintiff was injured while riding as a passenger in a bus.  A truck driver made an unsafe lane change in front of the bus.  This caused the bus driver to brake forcefully throwing the plaintiff from her seat leading to multiple injuries.  The truck driver did not remain at the scene of the incident and was unknown.  The Plaintiff sued both the bus driver and ICBC as a statutory defendant in place of the unidentified truck driver, a legal remedy available under s. 24 of the Insurance (Vehicle) Act.  ICBC had video evidence from the bus as to what actually occurred but failed to produce this for years.  They also denied that a s. 24 claim existed until deep into the trial.

The bus driver was not paying adequate attention at the time and the court found both the bus driver and truck driver shared liability.

As a result of ICBC’s late production of crucial evidence and unreasonable denial as to the merits of the s. 24 claim the presiding judge found ICBC should pay special costs.  In reaching this conclusion Mr. Justice Branch provided the following reasons:

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Court Tells Bikers its an Abuse of Process Denying Civil Liability Following Criminal Conviction

If you’re charged with a crime and plead guilty, or are found guilty to the criminal standard of ‘beyond a reasonable doubt’, it is generally considered an abuse of process to deny fault when sued for the same underlying conduct based on the lesser civil standard of ‘balance of probabilities’.  Two members of a motorcycle club learned this lesson the hard way.

In the recent case (Thatcher v. Lowe) the Plaintiff sued several defendants for assault, battery, intentional infliction of mental suffering and false imprisonment following a 2016 confrontation.  Prior to this defendants were charged criminally and plead guilty.  The court summarized the following key facts from the guilty plea:

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Sucker Punch in Bar Leads to $226,000 Civil Judgment Against School Teacher

Getting in a bar fight is seldom a good idea.  Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, providing 226,000 reasons to think twice before doing so.

In today’s case (Thompson v. Fraser) the Defendant, who was employed as a school teacher, got into an altercation with other patrons at the lounge bar of Vancouver’s Pan Pacific Hotel.  The Plaintiff, a security guard, was called to deal with the situation and proceeded to escort the Defendant out.  The Defendant then “sucker-punched the plaintiff in the face, badly and permanently damaging the bony structure around his left eye.“.  The court described it as “a thoroughly disgraceful incident.”

The Defendant was criminally charged and convicted of assault causing bodily harm.  The criminal consequences were “extremely lenient” with the imposition of a mere conditional discharge.   Mr. Justice Baird, presiding over the civil suit, opined  “part of the reason for this, I have no doubt, was the understanding that eventually he would have to answer for his misconduct in a civil lawsuit and, in all likelihood, pay the plaintiff a sizeable sum in damages.”

The assault caused serious injury requiring”metallic gear fused into his facial bones that causes him significant pain and discomfort when it is cold outside. There is a screw directly beneath his left eye that he can feel with his finger and causes a great deal of pain on incidental contact.“.

In assessing global damages at $266,000 including $10,000 for aggravated damages Mr. Justice Baird provided the following reasons:

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$92,000 Diminished Capacity Award Despite “80-90%” Recovery From Chronic Soft Tissue Injuries

Reasons for judgment were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for largely recovered but lingering soft tissue injuries and chronic pain following a collision.

In the recent case (Bhumrah v. McLeary) the Plaintiff was injured in a collision caused by the Defendant.  The Defendant accepted fault for the rear end crash.  The collisions resulted in soft tissue injuries.  Despite enjoying “80-90%” recovery the Plaintiff had lingering chronic pain and depression secondary to these injuries.  The injuries were “expected to continue, to some degree, into the future as well. “.

The Plaintiff was employed as commercial transport mechanic.  He missed considerable time from work but eventually was able to return.  Despite this there was evidence that the lingering injuries were not particularly compatible with work of this physicality.   In assessing damages for diminished earning capacity at $92,000 Madam Justice McDonald provided the following reasons:

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Cyclist at Fault For Attempting To Pass Bus Re-Entering Flow of Traffic on the Right

Reasons for judgement were published today by the BC Supreme Court, Courtenay Registry, dismissing a cyclist’s negligence action against a bus operator.

In today’s case (Coles v. British Columbia Transit Corporation) the Defendant was operating a bus and pulled over to let passengers on or off.  At the same time the Plaintiff was operating a bicycle in the Defendant’s lane of travel.  The Defendant put on her left signal indicating she was going to emerge back into the flow of traffic.  The Plaintiff mistakenly believed the signal indicated the bus operator was going to make a lane change and attempted to pass the bus on the right hand side.  This attempt failed and “he collided with the rear of the bus, came off his bicycle, landed on the ground, and broke his elbow.“.

The Plaintiff’s lawsuit was dismissed with the Court finding the bus driver did nothing negligent and fault rested with the cyclist.  In reaching this decision Mr. Justice Baird provided the following reasons:

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CRT Blasted For Arbitrary Decision Based on “Non-Existent” Facts

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, setting aside a decision of the BC Civil Resolution Tribunal involving a dispute with ICBC addressing fault for a collision and ordering the matter be remitted for proper determination.  In the process the BC Supreme Court had noted “the tribunal exercised its discretion arbitrarily and on the basis of predominantly irrelevant and/or non-existent facts“.

In today’s case (Devendra v. British Columbia Civil Resolution Tribunal) the Petitioner was involved in a crash prior to April 1, 2019 (the date the CRT obtained jurisdiction to hear most BC collision cases which was then declared unconstitutional last week).  The CRT was accessed based on their jurisdiction not for vehicle collisions specifically but based on their small claims jurisdiction for claims under $5,000.

ICBC found the applicant fully at fault for the crash.  The Applicant sued ICBC and the other motorist involved arguing “ICBC refused to properly investigate the incident” and asked that his deductible and increased premiums be returned.  At the same time the other motorist sued the Applicant in the BC Supreme Court for alleged negligence causing injuries stemming from the same crash.  ICBC “made clear in their written response to the tribunal that liability was not going to be an issue in the BCSC action“.  Despite this the CRT decided they were not the appropriate forum to adjudicate the applicants dispute and the issue of fault was better to be decided in the BC Supreme Court.  In finding the decision was patently unreasonable and failed to understand their role in a dispute of this nature Madam Justice Murray had the following critical findings:

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Damages Assessed for 5% Diminished Earning Capacity

Reasons for judgement were published last week by the BC Supreme Court, Vancouver Registry, demonstrating that even a modest level of disability can add up to substantial losses when calculated over working years.

In the recent case (Bhumrah v. McLeary) the Plaintiff was injured in a 2018 collision caused by the Defendant.  The court found the collision resulted in lingering injuries that, while not outright disabling, resulted in a 5% diminished earning capacity.  In assessing damages at $80,000 for future economic loss the Honourable Justice Winteringham provided the following reasons:

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Breaking – BC Supreme Court Declares Civil Resolution Tribunal Law Over Collision Claims Unconstitutional

Today the BC Supreme Court issued reasons for judgement striking down various laws giving the Provincial Civil Resolution Tribunal jurisdiction over certain collision claims as unconstitutional.  This is the second time in recent months that the BC government’s efforts to strip people’s rights in favour of ICBC have been declared in violation of their constitutional powers.

Section 133 of the Civil Resolution Tribunal Act reads as follows:

Claims within jurisdiction of tribunal for accident claims

133   (1) Except as otherwise provided in section 113 [restricted authority of tribunal] or in this Division, the tribunal has jurisdiction in a dispute, in respect of an accident, over a claim concerning one or more of the following:

(a) the determination of entitlement to benefits paid or payable under the Insurance (Vehicle) Act;

(b) the determination of whether an injury is a minor injury for the purposes of the Insurance (Vehicle) Act;

(c) liability and damages, if the amount, including loss or damage to property related to the accident but excluding interest and any expenses referred to under section 49 [order for payment of expenses], is less than or equal to the tribunal limit amount.

(2) For the purposes of this Act, the tribunal

(a) has exclusive jurisdiction in respect of claims described in subsection (1) (a) or (b) of this section, and

(b) is to be considered to have specialized expertise in respect of claims described in subsection (1) (c) of this section.

(3) For certainty, a person may make a request for tribunal resolution in more than one tribunal proceeding relating to an accident.

In today’s case (Trial Lawyers Association of British Columbia v. British Columbia (Attorney General)) The Chief Justice of the BC Supreme Court noted as follows in striking down subsections 133(1)(b) and (c):

402] In my view, it is unnecessary to address this argument. As I have determined that s. 133(1)(a) and (b) of the CRTA, which purports to empower the CRT to decide certain MVA claims, is unconstitutional, s. 16.1 is left with no application or meaning in relation to accident claims, except for accident benefits under s. 133(1)(a).

[403] As such, s. 16.1 should be read down insofar as it applies to accident claims, except for accident benefits under s. 133(1)(a). As explained above, s. 16.1(1) also applies to the other areas of jurisdiction assigned to the CRT (strata, small claims, and societies and cooperatives). Therefore, rather than strike down the entire provision, I have determined it should be declared invalid and of no force or effect only insofar as it applies to MVA claims, other than accident benefits under s. 133(1)(a).

[404] In light of this finding, it is unnecessary for me to decide whether s. 16.1 offends s. 96 of the Constitution Act, 1867 in the manner the plaintiffs argue.


[405] Section 52(1) of the Constitution Act, 1982 provides that any law that is inconsistent with the constitution is of no force and effect to the extent of the inconsistency.

[406] It is clear from the comments of Chief Justice Lamer, at 742 in MacMillan Bloedel, set out above, that part of a legislative scheme can be challenged. Chief Justice Lamer also made this clear in Schacter v. Canada, [1992] 2 S.C.R. 679 at 695–696 where he wrote:
A court has flexibility in determining what course of action to take following a violation of the Charter which does not survive s. 1 scrutiny. Section 52 of the Constitution Act, 1982 mandates the striking down of any law that is inconsistent with the provisions of the Constitution, but only “to the extent of the inconsistency”. Depending upon the circumstances, a court may simply strike down, it may strike down and temporarily suspend the declaration of invalidity, or it may resort to the techniques of reading down or reading in. In addition, s. 24 of the Charter extends to any court of competent jurisdiction the power to grant an “appropriate and just” remedy to “[a]nyone whose [Charter] rights and freedoms … have been infringed or denied”. In choosing how to apply s. 52 or s. 24 a court will determine its course of action with reference to the nature of the violation and the context of the specific legislation under consideration. A. The Doctrine of Severance The flexibility of the language of s. 52 is not a new development in Canadian constitutional law. The courts have always struck down laws only to the extent of the inconsistency using of the doctrine of severance or “reading down”. Severance is used by the courts so as to interfere with the laws adopted by the legislature as little as possible. Generally speaking, when only a part of a statute or provision violates the Constitution, it is common sense that only the offending portion should be declared to be of no force or effect, and the rest should be spared.  Far from being an unusual technique, severance is an ordinary and everyday part of constitutional adjudication. For instance if a single section of a statute violates the Constitution, normally that section may be severed from the rest of the statute so that the whole statute need not be struck down. To refuse to sever the offending part, and therefore declare inoperative parts of a legislative enactment which do not themselves violate the Constitution, is surely the more difficult course to justify.

[407] I accept the submission of the motor vehicle defendants that generally, the court should not deal piece-meal with what the Legislature intended to be a “package” of legislative measures, especially when consideration must be given to any legislative response.

[408] The Attorney General contends that if there is a finding that one or both of ss. 133 and 16.1 of the CRTA, either in whole or in part offend s. 96 of the Constitution Act, 1867, the issue of remedy is not straightforward.

[409] The motor vehicle defendants submit that if the plaintiffs have met their burden, the appropriate remedy is to sever any offending provision from the rest of the amendments. They argue, and I agree, that I should not remove constitutionally valid areas of the CRT’s jurisdiction.

[410] The plaintiffs have conceded that subsection (a) of s. 133(1) of the CRTA is not, in isolation, unconstitutional. In my view, this subsection is severable. Likewise, the CRT’s jurisdiction to determine liability and damages for motor vehicle claims under $50,000 under subsection (c) is severable from its jurisdiction to determine whether an injury is a minor injury for the purposes of the Insurance (Vehicle) Act under subsection (b).

[411] As for the plaintiffs’ challenge to s. 16.1, the Attorney General contends that that aspect of the claim is based on a fundamentally different legal argument from the one made in relation to s. 133(1).

[412] Given these differences, the Attorney General says that the options for the court to find unconstitutionality could involve an array of different permutations of the various subsections, on different bases. The Attorney General argues that crafting an appropriate remedy in these circumstances will require consideration of complicated issues relating to severance, reading down, temporal application, and effect on existing decisions and processes of the CRT, as canvassed, at least in part as to severance and temporal application, in the written submissions of ICBC. The Attorney General submits that these questions are appropriately deferred for the time being, with opportunity for further submissions following release of the Court’s reasons for judgment on the main issues. In this way, the scope and basis for any finding of unconstitutionality made may inform the submissions.

[413] The Attorney General submits that at the present there is no disability on the part of the Supreme Court of British Columbia from hearing claims that arise from MVAs. In the result, the ability of both claimants and defendants in such cases to have their disputes resolved will not be impaired if the impugned sections of the legislation are struck down.

[414] I will therefore accede to the plaintiffs’ request, in part, and grant an order declaring that ss. 133(1) (b) and (c) of the CRTA are unconstitutional and of no force or effect. I also declare that s. 16.1 is unconstitutional and should be read down insofar as it applies to accident claims, except for determination of accident benefits under s. 133(1)(a). I decline to grant any order with respect to the Accident Regulations associated therewith.

BC Passes 6% Disbursement Limit on “Vehicle Injury Proceedings”

This week the BC Government published their text for a retroactive disbursement limit for individuals seeking compensation for injuries caused by the carelessness of other motorists.

A 6% limit was put in place.  An arbitrary percentage divorced from the actual disbursements an individual may have to incur to meet their burden of proof.  A constitutional challenge is likely to be filed but unless the regulation is struck down this is another handicapping of the system in favour of BC’s insurance monopoly.  This regulation in essence forces a litigant to either not call the necessary evidence to prove their case or prove their case but be disallowed recovery of the actual expenses that must be incurred to do so.

The text of the disbursement limit is as follows:

Limits on amount of disbursements

5 (1) In this section:

“disbursement limit” means, in relation to a vehicle injury proceeding, (a) the amount that is 6% of the total award of damages assessed by the court in the vehicle injury proceeding or, if an offer to settle the vehicle injury proceeding is accepted, 6% of the amount offered, or (b) if the court dismisses the vehicle injury proceeding or, at the conclusion of the vehicle injury proceeding, does not make an award of damages, the amount determined by the court;

“excluded disbursements” means the following: (a) fees payable to the Crown under the Supreme Court Civil Rules; (b) fees payable to the sheriff for non-refundable deposits in civil jury trials under the Supreme Court Civil Rules; (c) disbursements incurred by a party if the court ordered the costs of the proceeding to be paid as special costs; (d) disbursements incurred for an expert report on the issue of liability, if the court ordered that those expenses are excluded disbursements.

(2) Only the following may be allowed or awarded to a party in a vehicle injury proceeding as disbursements: (a) disbursements up to the disbursement limit; (b) excluded disbursements.

(3) The limits set out in subsection (2) do not apply (a) to a vehicle injury proceeding if (i) a notice of trial was filed and served before August 12, 2020, and (ii) the trial date set out in the notice of trial filed in relation to the vehicle injury proceeding is before June 1, 2021, or (b) to a vehicle injury proceeding if (i) a notice of trial was filed and served before August 12, 2020, (ii) the trial date set out in the notice of trial filed in relation to the vehicle injury proceeding is on or after June 1, 2021, and (iii) the court is satisfied that the party necessarily or properly incurred disbursements before August 12, 2020 in excess of the disbursement limit

Baseball Bat Beating Leads to $7 million Damage Assessment

In a tragic case reasons for judgement were published by the BC Supreme Court, Kamloops Registry, assessing damages in a personal injury lawsuit at nearly $7 million following a baseball bat attack.

In the recent case (Simpson v. Teichrieb) the Defendant “savagely battered” the teenage plaintiff with a baseball bat leaving him with “a catastrophic brain injury, have left Jessie requiring constant care and eliminated any prospect of employability.“.

At the time of the assault the plaintiff was 18 years old, 5’5” in height and weighed about 135 pounds. The defendant was 39 years old, 6’0” tall and weighed about 220 pounds.  The Plaintiff was in the Defendant’s yard and the Defendant was concerned about possible theft.  He beat the plaintiff nearly to death resulting in “a severe skull fracture and significant brain swelling. He had facial fractures and a notable bruise to his lower back in the shape of a baseball bat.”.

The Defendant was criminally convicted and sentenced to prison.

The bulk of the assessed damages reflect estimates of a lifetime of lost earnings and future care.  In assessing non-pecuniary damages at Canada’s current rough upper limit of $393,000 Mr. Justice Dley provided the following reasons:

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If you would like further information or require assistance, please get in touch.


Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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