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ICBC Not Allowed To Withdraw Admission of Fault Late in Litigation

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

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, considering a request to withdraw a formal admission of fault for a vehicle collision in the deep stages of litigation.
In today’s case (Bodnar v. Sobolik) the Plaintiff was involved in a 2014 collision.  He sued alleging the Defendants were at fault.  ICBC, the Defendant’s insurer, admitted fault in the course of the lawsuit.  As the trial progressed the Defendants retained an engineer who viewed video of the crash and concluded “the speed of the plaintiff vehicle as 74 km/hr in a 50 zone“.  Based on this the Defendants sought to withdraw the admission of fault.  In refusing the request the Court noted the litigation was mature and it would not be in the interests of justice to allow it.  In dismissing the application Mr. Justice McEwan provided the following reasons:

[13]         The Notice of Civil Claim was filed October 11, 2016. The Response to Civil Claim was filed January 12, 2017, formally admitting liability. On May 30, 2017, Mr. Bo Baharloo assumed conduct of the file.

[14]         ICBC clearly understood the material contained on the video footage. The admission was not made hastily, inadvertently and without knowledge of the facts. Successive adjusters worked on the file and gave instructions to admit liability with full knowledge of the video footage. At the time liability was admitted ICBC had the video footage. The defendants had been aware of the existence of video footage when they were provided with a copy. The preparation of a report on September 28, 2018 was well after ICBC and defence counsel had both received a copy of the video footage.

[15]         At this late stage both cars have been written off and are no longer available for inspection.

[16]         It is not in the interests of justice to allow a withdrawal of the admission of liability because there is now a difference of opinion about the cause of the accident.

[17]         The application is dismissed. In saying that I say nothing about contributory negligence or whether it is possible to plead or amend the pleadings to raise the issue.

[18]         I should say that I have considered the cases Boyd v. Brais, 2000 BCSC 404 and Miller v. Norris, 2013 BCSC 552 as nearest to the present situation.

[19]         The application is dismissed with costs to the plaintiff.

BC Court of Appeal – Settlement Paying Pennies on the Dollar Beats Losing Your House

Written by admin on . Posted in BC Supreme Court Costs Cases.

You are badly injured through the alleged negligence of others.  If you win at trial you can get north of $400,000 in damages.  If you lose you will literally lose your house to cover the costs of litigation. When faced with this stark reality a settlement offer that pays less than 1o cents on the dollar may very well be reasonable.  The BC Court of Appeal released reasons for judgment today saying as much.
In today’s case (Deo v. Vancouver) the infant plaintiff suffered serious injuries leaving him partially blind while at school.  He sued for damages and was largely unsuccessful on proving liability at trial.  The Plaintiff’s lawyer valued the claim at over $400,000 but before the liability appeals could be heard a settlement of $35,000 was reached.  The Plaintiff, being an infant, could not legally agree to any settlement and judicial permission was needed.  The BC Court of Appeal noted that if the lawsuit ultimately proved unsuccessful the costs consequences would be so steep that the Plaintiff’s parents would likely need to sell their house.  Appreciating this the risk-based settlement was reasonable and the Court approved it.  In supporting the settlement the BC Court of Appeal provided the following reasons:

[11]         Counsel assesses the quantum of damages for non-pecuniary loss in the range of $100,000 to $140,000 and for loss of future earnings in the range of $300,000 to $350,000. The estimate of an adverse costs award if the appeal is unsuccessful is in excess of $100,000.

[12]         Isaac lives with his parents in a house in East Vancouver. If costs are awarded against him, they would have to sell the house to pay the costs. His father says that he has weighed the prospects of success of the appeal against the risk of losing the home and the impact that would have on Isaac and the rest of the family. He says he has concluded that it is in Isaac’s best interests to accept the settlement.

[13]         The parties have consented to the trial judge approving the solicitor’s account without costs.

[14]         Having read the materials provided, it is our view that the settlement is a prudent one, and is in Isaac’s best interests. As was noted in Lotocky, “it is… artificial and misguided to judge the merits of the appeal in isolation from the financial ramifications that would arise from an unsuccessful appeal”: para. 69. Counsel for Isaac acknowledges the “very real” risk that the appeal on liability will be unsuccessful. In light of the serious financial consequences that would flow from an unsuccessful appeal, we agree with the assessment of counsel and that it is in Isaac’s best interests to accept the settlement.

[15]         The settlement is approved in the terms sought. The appeal and cross appeal are dismissed as abandoned on a without costs basis to any party. The matter is remitted to the Supreme Court to Justice Riley for approval of the solicitor’s account.

$12,000 For Medical Cannabis Awarded to Crash Victim With Chronic Pain

Written by admin on . Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, awarding damages, including a $12,000 future care award for the cost of medical cannabis, to a collision victim.
In today’s case (Carrillo v. Deschutter) the Plaintiff was involved in a 2011 collison.  The Defendant admitted fault for the crash.  The Plaintiff suffered a variety of injuries including a frozen shoulder, soft tissue injuries and went on to develop chronic pain with a poor prognosis for full recovery.
At trial, in addition to other heads of damages, the Plaintiff sought damages for the future cost of medical cannabis.  The Defendant objected to this arguing that “conventional prescription drugs” should be adequate.  The court was not persuaded by this defence and awarded $12,000 for the cost of medical cannabis.  In reaching this conclusion Madam Justice Dardi provided the following reasons:

[158]     I have reviewed all the authorities on medical cannabis relied on by both parties. The authorities establish that, in some cases, medical cannabis is compensable in a personal injury case: Wright v. Mistry, 2017 BCSC 239 at para. 84; Amini v. Mondragon, 2014 BCSC 1590 at paras. 133-136; Chavez-Salinas v. Tower, 2017 BCSC 2068 at para. 539.

[159]     An important fact in this case, and one that distinguished this case from many of the cases relied on by the defence, is that Mr. Carrillo, after receiving Dr. Hershler’s recommendations, has been using cannabis balm, tincture oil and capsules. I accept his evidence, that he has found the cannabis products effective and, as a result of using the cannabis products, he has experienced some pain relief. There was no evidence that the consumption has produced any negative side effects. Notably, since the Accident, Mr. Carrillo has pursued the more traditional modalities of physiotherapy, chiropractic treatments, massage and injections without any significant benefit. Mr. Carrillo’s prescription pain medication provides him with some symptomatic relief but I do not accept that it controls his pain as is asserted by the defendant.

[160]     With respect to the defence submissions on Mr. Carrillo’s mental health issues, I note that Mr. Carrillo’s medical condition is currently being monitored by his primary care provider, Dr. Sennewald. The six-month’s use of cocaine for pain was some six years ago and there is no evidence of any issue arising since that time.

[161]     All things considered, I conclude that the medical cannabis program recommended by Dr. Hershler is medically justified within the meaning contemplated by the authorities and that it is reasonable to make an award for the costs of the cannabis as part of Mr. Carrillo’s future pain management plan.

[162]     The evidence on the costs of the medical cannabis was thin but not so thin as to justify not making any award for Mr. Carrillo. There was no evidence as to what the cost would be through a Health Canada supplier. Those costs may be different from the costs Mr. Carrillo actually incurred purchasing them through other dispensaries. This is a significant shortcoming that I have taken into account in my assessment. I have also factored into my assessment that in his report Dr. Hershler did not say how long Mr. Carrillo should be on the medical cannabis program. It is uncertain how long he may continue using medical cannabis.

[163]     In the result, and on the totality of the evidence and taking into account the relevant contingencies, I assess an award for medical cannabis in the amount of $12,000.

My 2018 Clawbies Nomination

Written by admin on . Posted in Uncategorized.

It’s that time of year again.  The Canadian Law Blog Awards (the Clawbies), are awarded once a year to recognize outstanding Canadian legal blogs.  The nomination process involves peer endorsement and from there a select number of blogs are chosen for recognition.
I’m a Clawbies senior citizen having my first interaction with the awards almost a decade ago.  You can’t tell my age from my profile pic above because I sneakily have chosen not to update it for 14 years! Before being given my bus pass discount and shuffled away I would like to make my 2018 nomination.  This year I endorse Vancouver criminal lawyer Kyla Lee.
I won’t even nominate a specific blog (Steve and Jordan, you guys can figure out what to do with this curveball, whatever your solution make sure it involves handing out a Clawbie!). I just outright nominate Kyla and her entire social media and traditional media footprint which is big enough to swallow a BigLaw firm’s marketing department whole.  Kyla is a one woman media army using new and old media to make the law far more understandable and accessible, and that’s truly what effective legal blogging is all about.  Not to mention she is a heck of a good lawyer as well.
Check out her work on Twitter, website, Driving Law Podcast, Blog or just about every major newspaper across BC and Canada.
Great work Kyla!

$95,000 Non-Pecuniary Assessment For Chronic Pain with Psychiatric Overlay

Written by admin on . Posted in Uncategorized.

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain symptoms with psychiatric overlay caused by a series of collisions.
In today’s case (Sandhu v. Bates) the Plaintiff was injured in three collisions.  Fault was admitted by the Defendants.  The Plaintiff suffered injuries which developed into a myofascial pain syndrome.  She further developed somatic symptom disorders.  Her prognosis for full recovery was guarded.  In assessing non-pecuniary damages at $95,000 Madam Justice Winteringham provided the following reasons:

[137]     In summary, I make the following findings of fact respecting Mrs. Sandhu’s injuries:

a)    Mrs. Sandhu sustained moderate soft tissue injuries to her neck, lower back, buttock, right hip, right ankle, and right knee in the accidents.

b)    Rather than following a typical course of recovery after the accidents, Mrs. Sandhu experienced chronic low back pain affecting her buttock and pain down the right leg and associated numbness in the left buttock. Her chronic pain worsened in the first and second years following the accident and persisted at the time of trial.

c)     I accept Dr. Squire’s opinion that the diagnosis for her physical injuries is most consistent with myofascial pain syndrome of the lumbopelvic area and that the intermittent exacerbations are likely episodic acute muscle spasms and the right leg pain is likely referred pain from the myofascial pain syndrome. I also accept that she continues to experience intermittent neck pain.

d)    Dr. Joy, Dr. Anderson and Dr. Suhail all agree, and I find, that Mrs. Sandhu developed somatic symptom disorders. I note that though their diagnoses were not identical, Dr. Anderson and Dr. Suhail report that she meets the diagnostic criteria of somatic symptom disorder with predominant pain, following the accidents.  In addition, I accept Dr. Anderson’s opinion that following the accidents, Mrs. Sandhu suffers from a generalized anxiety disorder.

e)    I find that, as Mrs. Sandhu’s psychological condition deteriorated, her ability to cope with pain was poor. Dr. Suhail’s opinion, with which I agree, was that “as here pain would trigger her anxiety, her subsequent psychological problems would reduce her ability to cope with pain. Whenever she would be stressed and anxious, her back pain would increase.”

f)      Dr. Joy, Dr. Anderson, Dr. Suhail, Dr. Chapman and Dr. Kashif all agree that Mrs. Sandhu suffered from anxiety after the accidents. They disagree about prognosis. I find that the first accident, and aggravated in the second and third, caused Mrs. Sandhu’s generalized anxiety disorder. The medical experts are all of the opinion that Mrs. Sandhu’s prognosis is guarded, particularly if she is unable to address her anxiety disorder. Dr. Suhail indicated some recent improvement and, with ongoing cognitive behavioral treatment, there is some reason for cautious optimism.

…

[153]     I have reviewed the cases referred to by the parties. On my review of Mrs. Sandhu’s cases, as her counsel admits, the injuries suffered in some of those cases were more serious than what I have found in the present case. Similarly, I have found the cases relied on by the Defendants involved Plaintiffs with lesser injuries than those I have found in Mrs. Sandhu’s case.

[154]     In all of the circumstances, and taking into account the authorities I have been referred to, I am satisfied that an award of $95,000 will appropriately compensate Mrs. Sandhu for her pain and suffering and loss of past and future enjoyment of life, for which the Defendants are responsible.

Pedestrian Found 80% At Fault For Being Struck While Jaywalking

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

Reasons for judgement were published this week by the BC Court of Appeal upholding a trial judge’s assessment of fault for a pedestrian/vehicle collision.
In the recent case (Vandendorpel v. Evoy) the Plaintiff was struck while crossing a street.  He was at a light controlled intersection.  He pressed the button to activate the pedestrian walk signal but did not wait for the signal to come on.  Instead, he proceeded to cross the street while the signal for traffic in his direction was still red.  The Defendant was driving marginally over the speed limit and entered the intersection on a fresh yellow light striking the jaywalking pedestrian.   At trial the plaintiff was found 80% at fault for the crash.  In upholding this result the BC Court of Appeal agreed with the following reasonsing of the trial judge:

[53]      While both parties failed in their respective duties of care, I find Mr. Evoy’s failure was much less significant than Mr. Vandendorpel’s. His negligence consisted of driving at a speed that was over the posted limit, even if it was only minimally above that limit (i.e., approximately 55 km/hr in a 50 km/hr zone) and doing so when the lighting and road conditions were less than optimal. Compared to this conduct, Mr. Vandendorpel’s failures were more serious. He was dressed in dark clothing, including a dark hooded pullover that was zipped up to the top. None of his clothing had any light reflective qualities. Counsel for Mr. Vandendorpel submits that wearing dark clothing is not in and of itself contributory negligence. That submission is correct, but Mr. Vandendorpel’s failures are greater than simply the clothing he was wearing. He was also wearing headphones and listening to music and that reduced his ability to hear any on-coming traffic. He also had to cross a five-lane roadway that spanned approximately 18 metres. Although he depressed the pedestrian control device, he only waited a second or so before he attempted to cross the roadway. He carelessly did so even though the pedestrian control signal was still red and the traffic control signals were still green. Mr. Evoy’s vehicle approached the Intersection from the north. That is the direction Mr. Vandendorpel was initially walking. The headlights of Mr. Evoy’s vehicle would have been visible from at least 100 metres away. Mr. Vandendorpel must not have looked north on Sooke Road as he began to cross the roadway because he did not see the headlights of Mr. Evoy’s vehicle until it was approximately 30 metres away from him. That is, until the vehicle was just about to enter the Intersection. At that point, the pedestrian control signal was still red and the traffic control signal was yellow. Notwithstanding all of this, Mr. Vandendorpel chose to run across the path of the on-coming car instead of standing fast or retreating.

[54]      I remain of the firm opinion that Mr. Vandendorpel showed a reckless disregard for his duties as a pedestrian on the roadway and conclude that his degree of fault for the accident is greater than that of Mr. Evoy.

[55]      The case authorities counsel provided me with respect to apportionment have been helpful. Each party’s degree of responsibility is to be decided by assessing the risk their respective conduct created, the effect of that risk, and the extent to which each party departed from the standard of reasonable care (see: MacDonald (Litigation guardian of) v. Goertz, 2008 BCSC 394, aff’d 2009 BCCA 358).

[56]      In my view, the risk Mr. Vandendorpel created when he chose to walk and then run across Sooke Road, into the path of Mr. Evoy’s on-coming vehicle created a much more significant risk than Mr. Evoy driving at a speed marginally above the speed limit on a dark morning with a wet roadway. Moreover, I find the departure from the standard of care expected of Mr. Vandendorpel as a pedestrian was much more pronounced than the departure of Mr. Evoy from his duty of care as a driver of a motor vehicle.

Jury Struck in Injury Claim With "Complex" Business Loss Element

Written by admin on . Posted in BCSC Civil Rule 12.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, striking a jury notice for a personal injury claim with a complex business loss component.
In today’s case (Forstved v. Kokabi) the Plaintiff was involved in a collision and sued for damages.  The Defendant elected to proceed to trial with a jury.  THe Plaintiff argued that the claim, particularly with its business loss component, was too complex for a jury.  The court agreed and struck the Defendant’s jury notice.  In doing so Master Dick provided the following reasons:

[50]         In this case, I agree with the plaintiff. The evidence in this case is sufficient to establish that this case will require a prolonged examination of documents or accounts and that the issues require a scientific or local investigation.

[51]         I must now look to whether the examination or investigation may conveniently be made with a jury. In considering this question, I acknowledge that a party’s right to trial by jury is entitled to great weight and ought not to be disturbed except in the clearest of cases.

[52]         In this case, I must consider if the jury can not only understand the evidence as it is presented and rebutted, but also retain it over 19 days and engage in a reasoned analysis at the end of the trial.

[53]         The plaintiff will be calling at least 23 witnesses, of whom 11 are experts. There will be lay witnesses, including the plaintiff’s accountant Mr. Moody. The accountant will be introducing many of the business and tax documents to support the plaintiff’s business arrangements. There will be at least 22 expert reports to be considered.

[54]         If I was just considering the number of experts, the expert’s use of terminology, the volume of medical evidence, and divergent opinions alone, that would not necessarily cause me to strike the jury in this case. What makes this case more difficult is the fact the plaintiff’s income and business losses are not straightforward. The jury will have to review and understand the plaintiff and his spouse’s income tax information as well as the financial statements from all of the corporations he owned. The jury will then have to analyze, understand, and interpret the documents to assess his income and business loss.

[55]         In this case, I accept that the issues of causation and quantification of damages will require prolonged examination of documents and scientific matters going to many issues over a protracted period. The difficulties for the trier of fact in dealing with this task was set out in Wallman v. Insurance Corporation of British Columbia, 2012 BCSC 1849 at para. 57:

. . . It may be necessary to retain fine detail from the examination in chief and cross-examination of many witnesses on multiple issues for weeks before those issues are traversed by defence witnesses. Considered on their own, most, but not all, of the expert reports in this case may be understood by a jury in light of the full examination in chief and cross-examination of the experts, but retention of that understanding over several weeks is likely to be so difficult, in my view, that fruitful analysis at the end of the day may be impossible.

[56]         I have considered all of the submissions made by counsel and the factors set out in paragraph 25 of these reasons. In this matter there is a significant dispute about the injuries sustained by the plaintiff and the impact on his life. After consideration of all of the above, I find that the jury will be significantly challenged over the 19 days of trial to retain, understand, and analyze the complex and conflicting evidence and reach factual and legal conclusions on the issues of causation and damages. As a result, I am satisfied that this matter cannot conveniently be heard by a jury.

[57]         I therefore will exercise my discretion to strike the jury notice and there will be an order that the trial of this case will be heard by judge alone.

$55,000 Non-Pecuniary Assessment for Chronic But Not Disabling Neck and Shoulder Injury

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained in a collision.
In today’s case (Young v. Shao) the Plaintiff was involved in a 2013 rear-end collision.  The Defendant admitted fault.  The crash resulted in chronic but non-disabling soft tissue injuries with a poor prognosis for full recovery.  In assessing non-pecuniary damages at $55,000 Madam Justice Adair provided the following reasons:

[81]        Based on my findings above, Ms. Young will continue to have chronic pain symptoms, particularly in her neck and shoulder. As a result of the injuries she sustained, her ability to participate in her most favourite past-time – dancing – was curtailed altogether for several months. When Ms. Young’s injuries had sufficiently healed to allow her to resume dancing, she could not engage in the activity to the same extent as before the accident. Dancing has always been a very important part of Ms. Young’s lifestyle. The effects of her injuries have also made Ms. Young’s ability to work – something else that is important to her and gives meaning to her life – more difficult. Although she has never missed work, she has had to work with pain, and will have to do so indefinitely.

[82]        On the other hand, I had no evidence that, as a result of the injuries, there was any impairment in Ms. Young’s family or social relationships. Indeed, only Ms. Young testified about how her life was affected. I did not hear from any friends, family members or co-workers. This was a significant feature of at least two of the cases cited by Mr. Vondette, which is not present here.

[83]        In view of my findings above, and taking into account the factors mentioned in Stapley (including Ms. Young’s age and stage of life) and the cases cited to me in argument, I conclude that a fair and reasonable award of non-pecuniary damages is $55,000.

Why BC's "Minor" Injury / Tribunal Laws Are Vulnerable to a Charter Challenge

Written by admin on . Posted in BC Civil Resolution Tribunal, ICBC Minor Injury Caps, Uncategorized.

British Columbia is not the first jurisdiction in Canada to take away the rights of the public in order to strengthen insurer profits.  This has been done in other Provinces and legal challenges to injury cap laws have withheld constitutional challenge.  BC, however, has gone further than simply capping damages and combined these with a system that forces ‘prescribed’ injury victims away from Court and into a Civil Tribunal.  This combination leaves BC’s recent legislation vulnerable to legal challenge.
In the simplest of terms, when you are injured in a crash and sue the at fault motorist for your losses ICBC, BC’s government controlled monopoly auto insurer, can allege your injuries are “minor”.  When they do so, even if the allegation is frivolous, your claim gets steered out of Court and into a Civil Tribunal.   From there the Tribunal has the exclusive jurisdiction to decide if your injury is, in fact, “minor” (a term which encompasses many serious injuries).  BC requires the injured party to bear the burden of proving the injury is not minor.  If you can’t clear this hurdle you can’t go to Court unless the Tribunal also decides there is “a substantial likelihood that damages will exceed the tribunal limit“ (or in other very limited circumstances).
BC created a two tiered justice system.  One for ‘minor‘ injury claimants and one for others.  If you don’t have a “minor” injury you can choose where you wish to sue.  If you have an alleged “minor” injury you have no choice.  You have to go to the Tribunal and clear their barriers before being given permission to go to Court.
The gatekeeping function of who is forced into the Tribunal is based solely on the physical and mental characteristics of the claimant.
If you have something as benign as a hairline fracture in your finger you can go to court. If you have PTSD, a concussion, depression or another psychiatric condition you get funnelled to the Tribunal.  Why is this a problem?  Section 15 of Canada’s Charter of Rights and Freedoms protects individuals from discrimination based on “mental or physical disability“.
Section 15 of the Charter reads as follows (key words emphasised by me)
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
BC’s system violates the plain language of this constitutional protection.   The benefit of the law is going to Court.  The barrier is a mental or physical disability used as the sole criteria to determine whose rights are taken away.
If a Court finds s. 15 is violated BC will have to prove this discrimination “can be demonstrably justified in a free and democratic society.”  It stretches the imagination on how taking away the public’s judicial rights based on protected grounds in order to save an insurer money meets this test.
There can little doubt that the Tribunal system is designed to be unfair and affords lesser justice to litigants compared to the BC Supreme Court –

  • BC’s Attorney General admitted during debate that they designed this system to discourage people from having a lawyer and wanting lay litigants attending the Tribunal against an insurance “specialist“.
  • The Government carved themselves out of the Tribunal’s jurisdiction making them immune from lawsuits before it.
  • The Tribunal limits the expert evidence litigants can use and further limits the cost recovery available for hiring experts.
  • Tribunal cases have extremely curtailed appellate rights.  These are limited to judicial review under the strictest standards compared to the more robust rights a litigant would have after a BC Supreme Court trial.
  • Tribunal adjudicators, unlike BC Supreme Court Justices, are not appointed by the Federal Government and do not enjoy the job security Justices do.
  • The Tribunal itself is designed by the BC Government, the same entity that controls ICBC and has been taking their profits for years.
  • Litigants before the Tribunal are afforded fewer rights in the realm of civil procedure.

This is not a case of Government creating a separate but equal route to justice for people with modest claims. This is not a case of Government giving people a choice between different forums.   This is a case of Government using Charter protected grounds to force individuals with prescribed mental and physical injuries to overcome further obstacles before being allowed access to Court.
BC’s new laws come into force on April 1, 2019.  A Charter challenge will be right on its heels.