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Complex Wage Loss Claim Fuels Successful Jury Strike Application

Written by admin on . Posted in BCSC Civil Rule 12, Jury Trials.

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, granting a Plaintiff’s jury strike application.
In today’s case (van Driesum v. Young) the Plaintiff was involved in a 2011 collision and sued for damages.  The trial was scheduled for 18 days before a jury at the Defendants election.  The Plaintiff succeeded in striking the jury from the case largely on the basis that his wage loss claim was complex.  In granting the application Mr. Justice Macintosh provided the following reasons:
[6]             The overall question is trial fairness, weighing the Defendant’s presumptive right to a jury against the risk of unfairness to the Plaintiff by having a jury attempt to decide facts and answer questions which are too intricate or complex.  My conclusion is that this case should not proceed with a jury.
[7]             The motor vehicle accident giving rise to the claim occurred on February 23, 2011.  That year also serves as the approximate dividing line between what I will characterize as two separate careers for the Plaintiff.  The methods for determining income loss and lost-earning capacity are complicated within each of his two careers.  In what I am viewing as the Plaintiff’s post‑accident career, or second career, determining income loss and lost-earning capacity are, in my view, particularly complex.
[8]             Before the accident, the Plaintiff practised law for 20 years.  For the last 17 of those years, he was a partner in a Victoria law firm.  During at least part of that time, he practised law through the business model of a personal law corporation.  Money he received from the firm went into his law corporation.  He did not take all that money out, at least not regularly.  Also, he split income with his wife in reliance on the applicable tax laws.  Accordingly, his income tax returns do not tell the full story of his pre‑accident earnings.  They need to be interpreted together with his personal law corporation’s annual financial statements, and the particulars of his income splitting with his wife.
[9]             In the result, determining the Plaintiff’s pre‑accident earning history will not be a straightforward exercise.  The complexity of that exercise, however, pales when it is compared with determining the Plaintiff’s earnings, lost earnings, and diminished earning capacity post-accident.
[10]         The Plaintiff has maintained, at different times, at least three personal companies:  through one, after his accident, he became the president of a mining company; through another, also after the accident, he consulted on WorkSafe BC claims; the other was his pre‑existing personal law corporation, which remained in place until December 31, 2014, to receive the Plaintiff’s declining earnings from his residual practise of law.  That included some post‑accident legal work by the Plaintiff, as well as some pre‑accident legal work which gave rise to post‑accident remuneration.
[11]         It will, in my view, be extremely difficult for the trier of fact to sort out both the Plaintiff’s true earnings in the post‑accident period, and the extent to which the accident impaired his earning capacity.
[12]         Furthermore, the Plaintiff’s post‑accident earnings history, and evidence of earning capacity, is over-layered with a dispute the Plaintiff had with a post‑accident business colleague, who was a former client from the Plaintiff’s law practice.  Plaintiff’s counsel characterized the evidence of that dispute as amounting to a trial within a trial in this proceeding, and that is not an unreasonable analogy.
[13]         The difficulties for a jury in this case would be increased by the difficulties a judge would have in properly charging the jury in matters of causation and the quantification of damages.
[14]         The brief summary above, of the complexities in determining both causation and damages, and in the judge charging the jury, probably would have caused me to strike the jury even if there were no other relevant facts.  When I add the other complexities of the case, which are associated with the accident itself, and the related medical evidence, the complexity is only increased.
[15]         I will preface this next part of the analysis by saying that what I call the accident evidence and medical evidence, viewed in isolation, would probably not have caused me to strike the jury.  That evidence becomes relevant on this application, however, when it is added to the evidence associated with determining the past and future income loss, and diminished earning capacity, discussed earlier in these reasons.
[16]         Liability is in issue.  All the elements of the damages claimed are also in issue.  The Defendant, through his pleadings and his expert witnesses, disputes diagnosis, causation, mitigation, prognosis and the Plaintiff’s working capacity.  It is probably the case, as well, that at least some clinical records will have to become part of the evidentiary record.
[17]         The Plaintiff plans to call nine expert witnesses in at least seven disciplines, and the Defendant plans to call four expert witnesses and tender eight expert reports.  I further note that the Plaintiff intends to object to all or part of three of the Defendant’s expert reports, and the Defendant intends to object to all or part of four of the Plaintiff’s expert reports.
[18]         The law is clear in saying that the judge’s discretion on this application must be exercised having primary regard to his or her assessment of the relevant factors present in the particular application:  see Rados v. Pannu, 2015 BCCA 459, at paras. 30‑32 and Such v. Dominion Stores Ltd., [1961] O.R. 190 (Ont. C.A.).  In other words, the analysis, not surprisingly, is driven by the facts present in the application at bar.
[19]         What is appropriate for a jury to try has to do not only with the jury’s capacity to understand the evidence as it is presented and rebutted, but also to retain over several weeks what they have heard and then analyse it in the context of the questions they are required to answer.  (See Wipfli v. Britten, [1981] B.C.J. No. 1706 (F.C.) at paras. 30 and 31.)
[20]         When the facts in this application are viewed through the legal prism of the cases cited above, I find that the Plaintiff has established the three grounds he relies upon, noted above in paragraph 5.  As stated above in paragraph 6, I conclude that I should exercise my discretion to strike the jury.

$110,000 Non-Pecuniary Assessment for Likely Permanent Chronic Pain Syndrome

Written by admin on . Posted in ICBC Chronic Pain Cases.

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, assessing damages for a collision caused chronic pain syndrome.
In today’s case (Beaton v. Perkes) the Plaintiff was involved in a 2012 rear end collision the Defendant admitted fault for.  The Plaintiff suffered soft tissue injuries and related headaches.  Her symptoms persisted and unfortunately developed into a chronic pain syndrome which had a poor prognosis.  In assessing non-pecuniary damages at $110,000 Mr. Justice Voith provided the following findings and reasons:

[14]         There is consensus on the nature, severity and prognosis for most of the injuries Ms. Beaton suffered in the Accident. There is also agreement that these injuries were caused by the Accident. This consensus is found in the two expert reports of Dr. Loewen, as well as in the expert reports of each of Dr. Grover and Dr. Pisesky. Drs. Grover and Pisesky are orthopedic surgeons who did independent medical examinations of Ms. Beaton on behalf of the plaintiff and the defendants respectively.

[15]         These various issues and conclusions are sufficiently straightforward that the cross-examinations of Drs. Loewen and Grover, on these matters, were limited. Dr. Pisesky’s report was filed without his being called for cross-examination.

[16]         Ms. Beaton has been assessed and diagnosed with soft tissue injuries to her neck and upper and mid-back. She has also been diagnosed with cervicogenic headaches. She struggles with serious and ongoing disruptions to her sleep. She is often awake three or four times a night and some evenings she only sleeps for two to four hours.

[17]         There has been no meaningful improvement in these various symptoms and, indeed, Ms. Beaton considers that some of them have worsened over time. I accept that evidence.

[18]         Ms. Beaton has, as recommended, attended at numerous massage and physiotherapy treatments. She has tried trigger point injections. She has attended a work hardening program. There was no suggestion that her efforts were not earnest.

[19]         Each of the experts I have referred to accepts that Ms. Beaton now struggles with chronic pain syndrome. They provided the following opinions on her prognosis:

(a)      Dr. Grover opined that Ms. Beaton will “continue to have some degree of chronic pain which is highly likely to persist permanently”.

(b)      Dr. Loewen said: “Based on my experience treating other patients with similar conditions, I would expect that Mrs. Beaton will have ongoing chronic back pain extending from her neck all the way to her lumbar spine. She may make some small further gains but I would expect most of her symptomology with which she currently struggles to persist long-term. Also of note, due to the injuries sustained in her neck and back, all of which are soft tissue in nature, it is possible that she may be susceptible to injuries with lower amounts of trauma in the future.”

(c)      Dr. Pisesky said: “in terms of overall progress it is my opinion that she … had plateaued in terms of recovery approximately 6 months post injury and therefore her prognosis for any significant improvement of either pain or function is guarded”…

[59]         In the result, I consider that an award of $110,000 fairly compensates Ms. Beaton for her non-pecuniary losses.

My 2016 Clawbies Nominations

Written by admin on . Posted in Uncategorized.

What’s a Clawbie?  You can click here for a lengthy explanation, or if you want to skip all that pesky reading what you really need to know is that Clawbies are annual law blog awards handed out following a top secret meeting between Steve Matthews, Jordan Furlong and Simon Fodden.  I don’t know what all goes on there but suspect it may involve drawn straws or sizable kickbacks.  Whatever the deal I know it’s not all shady business as these legal power mongers must select their winners based on peer endorsements.
For 2016 I’m going to nominate blawgging dinosaurs.  Blogs that are senior citizens by internet years that just keep going strong!
1.  Samantha Collier’s Social Media For Lawfirms which has been telling lawyers that social media is something that actually is important and is still doing so because we just don’t listen!
2. David Bilinsky’s Thoughtful Law – David wrote an article years ago that was the inspiration and he’s still going strong!
3. Slaw – Yeah, I know, its the best.  So good in fact it can’t even win anymore.  I’m nominating it anyways.
 
 

$100,000 Non-Pecuniary Assessment for Chronic PTSD

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC PTSD Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for post traumatic stress disorder as a result of a vehicle collision.
In today’s case, (Harmati v. Williams) the Plaintiff was involved in a 2011 rear end collision that the Defendant accepted fault for.  She suffered PTSD and a generalized anxiety disorder following the crash and the Court accepted these conditions were caused by the collision.  In assessing non-pecuniary damages at $100,000 Madam Justice Choi provided the following reasons:
[48]         Dr. O’Shaughnessy was steadfast in his opinion when he testified that Ms. Harmati’s PTSD was as a result of the accident. He wavered on cross examination that the generalized anxiety was a result of the accident. I accept Dr. O’Shaughnessy’s testimony and diagnosis and found him to be a forthright and helpful expert witness…

[70]         On a balance of probabilities, I find that Ms. Harmati’s present disability, both physical and psychological, is a result of the accident. I accept Dr. O’Shaughnessy’s opinion that the PTSD was triggered by the accident, and I am satisfied that there is a substantial connection between the injuries Ms. Harmati suffered in this accident and her present symptoms sufficient to impose liability on the Defendants. Just as the Defendants are liable for any physical injuries caused to Ms. Harmati, they are too liable for any psychological injuries that arose from this accident.

[71]         I find that but for the accident, Ms. Harmati would not have suffered from pain in the neck, head and back or post-traumatic stress disorder. While Ms. Harmati may have had a more extreme reaction to the accident than most, she is better described as a “thin skull” than a crumbling one. The injuries she has suffered were not inherent in her original position and would not have occurred had the accident not happened…

[81]         A few lay witnesses testified as to Ms. Harmati’s ongoing limitations.

[82]         Mr. Gosling testified that Ms. Harmati is responsible for most of the cleaning, but that they don’t keep a clean house, and that Ms. Harmati is responsible for most of the cooking. She does more now than she did when they first cohabited because she is no longer working. I found Mr. Gosling a measured and careful witness, whose evidence I found credible.

[83]         Mr. Gosling testified that Ms. Harmati does not want to be a burden, so she will insist on performing tasks that then require her to rest, such as carrying groceries and pots of boiling water.

[84]         Mr. Derek Carswell worked with Ms. Harmati at Electronics Art. They were both hired on the same day in 2010 and became friends. Prior to the accident, he described her as “bubbly, enthusiastic and lots of energy”. After the energy, he testified that she was “subdued, lacking vital energy”. He said they played video games with their respective partners and that after the accident, she could not play video games for long because she needed to rest and due to nausea. Mr. Carswell testified that some video games are virtual reality games, involving wearing a headset and a screen which wraps around your face, and is an immersive gaming experience. Ms. Harmati has been unable to participate in this type of game since the accident…

[88]         Having considered the evidence and cases, it is my view that an award of non-pecuniary damages in the amount of $100,000 is appropriate.

$75,000 Non-Pecuniary Assessment for Persistent Neck and Back Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for persistent back and neck injuries.
In the recent case (Lally v. He) the Plaintiff was involved in a 2011 intersection collision that the Defendant accepted fault for.  The collision resulted in soft tissue injuries and symptoms persisted to the time of trial.  The Court assessed non-pecuniary damages at $75,000 but reduced these by 10% for the Plaintiff’s failure to follow through with an active rehab program that could have helped improve the symptoms.  In reaching this assessment Madam Justice Warren provided the following reasons:
[93]         I have concluded that as a result of the accident, Ms. Lally has suffered pain and a loss of enjoyment of life, and that will continue to some extent, into the foreseeable future.
[94]         As a result of the injuries she sustained in the accident, Ms. Lally suffered from severe pain in her neck, back and shoulder for several months.  The neck pain triggered headaches that, at times, were severe.  Although the pain gradually improved, she has been left with less severe but persistent neck and shoulder pain as well as occasional low back pain.  While she is likely to experience improvement in her symptoms with active rehabilitation, particularly with respect to the low back and shoulder, even with sustained, active rehabilitation, she will likely continue to suffer from occasional pain in her neck and, to a lesser extent, her low back and shoulder.
[95]         Ms. Lally’s pain is exacerbated by repetitive activities, heavy lifting or working at a level higher than her shoulders.  She cannot sit still for long.  When driving she has difficulty moving her head from side to side.  When she watches television, reads or uses a computer she has to move her neck or it becomes stiff.  Household chores and physical duties at work exacerbate the pain and when the neck pain is particularly bad it develops into a headache.  This happens between two and five times a week and the headache lasts up to eight or nine hours.  The neck pain disturbs her sleep.
[96]         The pain has affected Ms. Lally’s mood.  Before the accident, her mood was good and she enjoyed spending time with her family.  For the first few months after the accident she was quiet and spent most of her time resting because of the pain.  She continues to spend much of her non-working time resting at home using a massager and heat pad.
[97]         Ms. Lally used to do the majority of the housework before the accident.  Since the accident she has been limited to light housework such as cooking and doing dishes.  She did not testify about any other impacts on her lifestyle…

[100]     Having considered all the authorities and the factors discussed in Stapley, I assess Ms. Lally’s non-pecuniary damages at $75,000, prior to any adjustment for her failure to mitigate.  For the reasons already expressed, I reduce that amount by 10% to reflect her failure to have participated in a regular, sustained program of active rehabilitation.

$50,000 Non-Pecuniary Assessment for Shoulder Tendinopathy

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a shoulder injury caused by a vehicle collision.
In today’s case (Rogers v. Situ) the Plaintiff was involved in a 2011 rear end collision the Defendant admitted fault for.  The Plaintiff sustained an onset of symptoms related to shoulder tendinopathy as a result of the collision.  In assessing non-pecuniary damages at $50,000 Mr. Justice Butler provided the following reasons:
[21]         I find that the accident did trigger the onset of his symptoms associated with the tendinopathy. There is no basis on which I could conclude that it would have become symptomatic without the accident. As a result, I conclude that the accident caused the injury and that there is no basis to reduce the award on the basis of the prior shoulder injury.
…

[39]         Dr. Ezekiel summarizes the course of the injury as follows:

…The accident resulted in the onset of pain in the patient’s left shoulder, which was subsequently found to be due to tendinopathy of the supraspinatus muscle. Mr. Rogers was treated initially with anti-inflammatories and physiotherapy but eventually underwent a surgical procedure to decompress the tendon. At the present time, Mr. Rogers has improved considerably but still finds he is unable to do some activities that are more physically demanding.

[40]         In summary, I find that the plaintiff suffered an injury to his left shoulder which has caused pain and has impacted his ability to carry on some of his recreational and daily activities. He will continue to suffer some pain and restriction in his activities. However, the impact of the shoulder injury is much less than the plaintiff contends. He sought little in the way of medical attention for the condition until the end of 2012. I conclude he was more concerned with his other medical difficulties; both the pre-existing chronic pain and the ruptured tendon and pulmonary embolism. His activities were impacted initially and will continue to be impacted by the shoulder injury but not to the extent he alleges.

…

[45]         I agree that the plaintiff’s pre-accident status is relevant. He was suffering from chronic pain which restricted his activities. His evidence regarding the level of his activities prior to the accident was misleading. He made no mention of his other painful conditions. When I take those into account, along with the other unrelated medical conditions that have impacted his enjoyment of life since the accident, I conclude that a fair award for non-pecuniary damages is $50,000.

ICBC's "Checkered Record" of Funding Treatments Impacts Part 7 Deduction Request

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, scrutinizing ICBC’s “checkered record” of paying for a plaintiff’s medical treatments.
In today’s case (Olson v. Farran) the Plaintiff was injured in a collision and was awarded just over $92,000 in damages including special damages and funds for future care costs.  The Defendant, who was insured with ICBC, requested certain damages to be deducted because of the overlapping coverage for some expenses under the Plaintiff’s own ICBC policy.
Mr. Justice Pearlman denied aspects of the request raising concern about ICBC’s “past partial and disrupted” payments.  In doing so the Court provided the following reasons.

[71]         The onus of showing that a deduction should be made is on the defendant.  I must estimate the amount to which Ms. Olson is entitled, exercising caution and taking into account any uncertainty concerning whether the benefits will be paid.  Any such uncertainty must be resolved in favour of the plaintiff.

[72]         Based on the Dr. Garbuz’s opinion, and the defendant’s position at trial that Ms. Olson would benefit from a three to six-month exercise program under the supervision of a physiotherapist, I am satisfied that a portion of the physiotherapy will be paid. I estimate that amount to be $500 and order that the amount to be deducted with respect to the physiotherapy is $500.

[73]         In light of the Corporation’s past partial and disrupted payment for kinesiology, there is no certainty that the Corporation will pay for any further kinesiology treatments. I therefore decline to deduct any portion of the $800 sought by the defendant for kinesiology sessions.

[74]         Similarly, there is no certainty that the insurer will pay for future massage therapy treatments, particularly where such treatments may only provide temporary relief to Ms. Olson, rather than a lasting improvement in her condition.  Again, I decline to deduct any portion of the $920 sought by the defendant for massage therapy.

[75]         The defendant also seeks a deduction of $870 for psychological services. Psychological therapy is a benefit payable in the Corporation’s sole discretion under s. 88(2)(f) of the Regulation.

[76]         The defendant submits the Court should conclude from ICBC’s past funding for physiotherapy and active rehabilitation that there is no uncertainty about whether the Corporation will fund psychological therapy for the plaintiff.  

[77]         I disagree.  The Corporation’s checkered record of funding the plaintiff’s treatment before trial raises significant uncertainty about whether this benefit will be paid. Further, Mr. Phan, the Corporation’s representative, offers no assurance in his affidavit that ICBC will pay for psychological therapy for Ms. Olson.  Nor is there any opinion from the Corporation’s medical advisor, as required under s. 88(2), that the psychological services are likely to promote the rehabilitation of the insured. The uncertainty concerning whether this benefit will be paid must be resolved in favour of the plaintiff. I am not satisfied the Corporation will pay any portion of this benefit. Accordingly, there will be no deduction for psychological therapy.

[78]         The deductions from the award of costs of future care for Part 7 benefits total $4000.

BC Chief Justice – Indivisible Injury Assessment Applies for Charter Damages as Well

Written by admin on . Posted in Damages for Charter Breaches.

Today the Chief Justice of the BC Supreme Court published reasons for judgement finding that the ‘indivisible injury’ assessment that developed under tort law is equally applicable when damages are being assessed for a Charter breach.
In today’s case (Henry v. British Columbia) the Court awarded the Plaintiff over $8 million in damages for a wrongful conviction and some 27 years of incarceration.  Prior to trial the Plaintiff settled with other Defendants.  The Province sought to have those settlements deducted from the awarded damages arguing they all covered a single indivisible harm.  Chief Justice Hinkson agreed and in ordering that the principles of ‘indivisible injury’ assessment apply to Charter damages provided the following reasons:

[33]        The plaintiff alleged that but for the separate actions or inactions of the City employees and provincial Crown counsel, he would not have been convicted and incarcerated for almost 27 years, and that but for the action or inaction of Canada he would have been released far sooner than he was.

[34]        In tort law, where there are multiple causes of injuries, the Court must determine whether the injuries are divisible or indivisible when assessing whether double recovery principles will apply: Athey v. Leonati, [1996] 3 S.C.R. 458 and E.D.G. v. Hammer, 2003 SCC 52. I see no reason why such an approach is not equally applicable to an award of Charter damages.

[35]        While the allegations against the Settling Defendants and non-settling defendants were based upon different allegations of fault, the relief sought was essentially the same: compensation for a wrongful conviction and some 27 years of incarceration. I find that the results alleged to have occurred from the causes of action pleaded against the City and the Province were indivisible.

[36]        While the ambit of the compensation sought from the City defendants and the Province was broader than that sought from Canada, the compensation sought from Canada was in large measure subsumed in the award the plaintiff recovered against the Province. Thus, these claims are also indivisible.

[37]        I am mindful of the fact that the plaintiff was obliged to proceed to trial by all of the original defendants and obliged by the Province to proceed to judgment before recovering any damages from it. The Alberta Court of Appeal in Bedard rejected that factor as a basis for not deducting settlement proceeds from damages awarded at trial. At para. 13, the Court confirmed the prevailing principle that the plaintiff cannot receive more in damages than the court awarded at trial.

[38]        In Hogarth v. Rocky Mountain Slate Inc., 2013 ABCA 57, leave to appeal ref’d [2013] S.C.C.A. No. 160, the point was made even more starkly:

[164]    The effect of Bedard is that the risk of a Pierringer agreement falls on the plaintiff. If it settles and “under-recovers” from the settling defendant, it will not be able to make up that shortfall from the non-settling defendants. On the other hand, if it “over-recovers” from the settling defendant (as in Bedard) it will not be allowed to keep the windfall.

[39]        I conclude that Hogarth correctly summarizes the effect of the decisions in Dos Santos and Bedard. In the result, I find that at least some of the settlement funds paid by the Settling Defendants to the plaintiff must be deducted from the damages that I have found the plaintiff is owed by the Province.  

BC Court of Appeal Finds ICBC Part 7 Benefits Not Repayable in Contractual Subrogated Claim

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits.

Interesting reasons were released today by the BC Court of Appeal limiting the scope of a contractual subrogated claim to exclude part 7 benefits a plaintiff recovered in an ICBC claim settlement.
In today’s case (Brugger v. The Trustees of the IWA) the Plaintiff was ordered to repay over $40,000 of a personal injury settlement he obtained to the Defendant’s due to a contractual subrogated claim they enjoyed.  The Plaintiff appealed arguing the scope of the subrogated claim could not apply to ICBC part 7 benefits.  The BC Court of Appeal agreed and reduced the ordered repayment accordingly.  In reaching this decision the Court provided the following reasons:

[44]         The Trustees have a broad discretion to establish and change the terms upon which benefits are paid but are entrusted to pay the benefits described in the Plan.

[45]         Section 9 of the Plan describes the Disabled Employee’s obligation to reimburse the Plan. It is applicable where a Disabled Employee “recovers compensation from a Third Party [a person whose acts have caused or are alleged to have caused the Disability] or receives a Settlement [the conclusion of a Disabled Employee’s claim for monetary compensation against a Third Party]”. A Settlement is deemed to include payment of compensation by ICBC for damages arising out of the use or operation of a motor vehicle by an uninsured or underinsured motorist.

[46]         Gross Compensation is defined by the Plan to be the total of sums paid or payable upon Settlement or contingent upon Settlement.

[47]         The Reimbursement Agreement binds the appellant to make the repayment called for in the Plan, hence, repayment of a portion of any lump sum cash payment made upon or contingent upon resolution of a claim for compensation made against a Third Party.

[48]         In my view, Part 7 benefits should not be included in Gross Compensation or calculation of the reimbursement obligation. Such benefits are not paid by or on behalf of a person whose acts or omissions have caused or are alleged to have caused the disability. They are not paid pursuant to Part 6 of the Regulation, which describes third-party liability insurance coverage; they are paid, rather, by the Disabled Employee’s insurer as first-party benefits. Pursuant to s. 79 of the Regulation, they are paid “to an insured in respect of death or injury caused by an accident that arises out of the use or operation of a vehicle” regardless of fault.

[49]         The Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, draws a distinction between Part 7 benefits and a tort claim for damages. Subsection 83(2) states:

A person who has a claim for damages and who receives or is entitled to receive benefits respecting the loss on which the claim is based, is deemed to have released the claim to the extent of the benefits.

“Benefits” are defined in the Act as “the prescribed benefits”, including Part 7 benefits.

[50]         The fact that Part 7 benefits are distinct from and form no part of a tort claim, and that disputes with respect to entitlement to Part 7 benefits must be addressed by separate proceedings, was noted by this Court in Baart v. Kumar (1985), 66 B.C.L.R. 1 (C.A.). The Court there observed, at p. 12:

The enactments with which we are concerned have been changed from time to time. The general purpose of them, to shift responsibility from the person at fault to a body that provides insurance regardless of fault, has continued. The shift necessarily takes away the right to claim against a person other than the insuring body. That is a common feature in no-fault plans; the workers’ compensation scheme is a familiar example. This Court recognized that shift in Fisher v. Wabischewich (1978), 5 B.C.L.R. 335, 85 D.L.R. (3d) 106.

[51]         While the Trustees are given authority to set the terms upon which Plan Members are entitled to benefits, and have broad discretion to determine what portion of Gross Compensation represents compensation for wage loss, they have established a Plan and must abide by its terms. Without amending the Plan, they do not have discretion to include in Gross Compensation amounts received by the member that are not paid by or on behalf of a tortfeasor.

[52]         The chambers judge proceeded on the basis that the payment of the no-fault insurance benefits established by the statutory scheme of universal compulsory insurance could properly be considered to be compensation as defined by the Plan. Appellate courts must exercise caution in identifying errors of law in disputes arising from contractual interpretation: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633. However, in my view, the issue of whether Part 7 benefits constitute monetary compensation paid by or on behalf of a person whose acts are alleged to have caused the disability is a question of law requiring consideration of the legal distinction between first-party no-fault insurance benefits and tort damages.

Court Declines To Reduce Care Award Where "Health Benefits Program for Aboriginal Persons" May Cover Expenses

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether a cost of future care award for a First Nation’s plaintiff can be reduced where the federal government’s health benefits program for Aboriginal persons may cover the needed treatments.
In today’s case (Watkins v. Harder) the Plaintiff was involved in a 2012 rear-end collision that the Defendants accepted blame for.  The Plaintiff was injured and was awarded damages for chronic soft tissue injuries at trial.  These included damages for future care costs.  The Defendants argued that these should be reduced by the amount of any payments that could be claimed under the health benefits program for Aboriginal persons.  Mr. Justice Gaul refused to make the deduction and in doing so provided the following reasons:

[75]         Mr. Benning estimates that the present day value of the costs of Ms. Watkins’ Tylenol 3 and Extra Strength Advil amount to approximately $12,500. The defendants do not challenge these costs but argue that, like the physiotherapy costs, the costs for these medications will likely be paid by the federal government under its health benefits program for Aboriginal persons. Consequently, to avoid Ms. Watkins’ unjustified double recovery, the defendants contend these costs should be deducted from any cost of future care award.

[76]         Ms. Watkins argues that to deduct her anticipated physiotherapy costs and her medication costs from a cost of future care award would be to force her into a position where she is reliant solely on the state to pay for these expenses when they are more properly attributable to the defendants’ admittedly negligent conduct. In this regard she relies on Harrington v. Sangha, 2011 BCSC 1035, which addressed the deductibility of benefits provided under the PharmaCare program. In that case, Mr. Justice Willcock found there was no risk of double recovery as the evidence showed that the program was intended to be an insurer of last resort and would not provide benefits where a tort award provided compensation for those costs. To deduct the costs from an award would be to presume the plaintiff would make a fraudulent claim for PharmaCare benefits. It was noted, however, that PharmaCare had made submissions on this issue and so was aware of any potential tort award, making double recovery unlikely (see: paras. 160-162).

[77]         In Mitchell v. We Care Health Services Inc. et al., 2004 BCSC 902, the plaintiff, a member of the Kwumut Lelum First Nation, was rendered a quadriplegic in a motor vehicle accident. On account of her injuries and as a part of her ongoing treatment, Ms. Mitchell used a variety of prescription and non-prescription medications. At trial the defendants argued the costs associated with those medications should not form part of any award for the costs of future care because they would be paid for under the federal government’s health benefits program for First Nations persons. Mr. Justice Kelleher declined to make any deduction on the basis that the plaintiff would not be eligible for the benefits program because of the tort claim compensation. A factor that distinguishes this case from Ms. Watkins’ is that Justice Kelleher had evidence before him from the acting manager of the health benefits program on that specific point (para. 124).

[78]         Other decisions not referred to by counsel indicate these benefits are generally not deducted from tort awards. In Whetung v. West Fraser Real Estate Holdings Ltd., 2007 BCSC 990, Mr. Justice Grist refused to make a deduction for health benefits received as a result of the plaintiff’s Aboriginal status. He noted at para. 71 that the “defendant’s obligation should not be put aside on the basis of possible double coverage where the social source is only prepared to be called on should any prior obligation fail”. Again, unlike the present case, there was evidence before Justice Grist that the coverage under this program only extended where no other source of funding was available.

[79]         In Cottrelle v Gerrard, [2001] O.J. No. 5472 (S.C.J.) the court took the opportunity to summarize the evidence on the nature of the health benefits program for Aboriginal persons. Madam Justice Leitch concluded at para. 103 that the publicly-funded benefits program was a matter of policy and, as such, even though there was no evidence to suggest the program would be terminated or the benefits would be reduced, there was no guarantee the benefits would continue. On this basis, the court did not deduct such benefits from the damage award. The decision was later overturned on the issue of liability and the issue of deductibility was not considered (Cottrelle v. Gerrard, [2003] O.J. No. 4194 (C.A.)).

[80]         In H.L. v. Canada (Attorney General), 2001 SKQB 233, at para. 71 the health benefits provided to Aboriginal persons were deducted from a tort award. The fact that the defendant government of Canada was both the tortfeasor as well as the benefits provider is an important distinguishing feature of that case. On appeal the court overuled the trial judge’s decision, concluding that the intensive therapy required by the plaintiff would not be covered under the benefits program and should therefore be compensated through the tort award (H.L. v. Canada (Attorney General), 2002 SKCA 131 at paras. 259-63).

[81]         Neither party has provided any evidence with regards to the nature of the benefits Ms. Watkins is entitled to as a result of her status as an Aboriginal person. I have no evidence before me regarding her continued entitlement or the certainty of the benefits provided under the program, or on the eligibility for benefits when an alternative source of funding, such as a tort award, is available.

[82]         In these circumstances I cannot conclude that the cost of the treatments and medications in question should be deducted from the award Ms. Watkins is entitled to for her future care costs. As was noted in Harrington, without any evidence to suggest it, I cannot presume that the plaintiff would make a fraudulent claim for publicly-funded health benefits. On this basis, I do not find that an award that provides for full compensation of these costs results in double-recovery for Ms. Watkins.