Update February 3, 2015 – the below judgement was successfully appealed and remitted for a new trial. The appeal was based on grounds other than the below excerpt.
________________________________
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, confirming that the principle sum borrowed when in need following collision related injuries is not a recoverable special damage.
In this week’s case (Healey v. Chung) the Plaintiff was injured in a 2005 pedestrian/vehicle collision. The Plaintiff claimed it was a ‘catastrophic accident’ and sought damages between $485,000 and $1,037,000. The Court noted considerable credibility concerns with the Plaintiff’s evidence and rejected much of his claim. Included in the rejected damages were funds sought due to loans from family members. In rejecting this portion of the claim Mr. Justice Ball provided the following reasons: [184] Monies Mr. Healey borrowed from his mother or others are not “special damages”. Mr. Healey testified that he did not recall the use to which the borrowed monies were put. Mrs. Healey testified that the borrowed money was used to pay household expenses including rent. Consequently, no evidence before the Court demonstrates that borrowed monies were used in any way, for instance, for therapy for injuries the accident caused that somehow would relate the borrowing to the accident. [185] Second, only interest paid on borrowed money would be a “special damage.” And absolutely no evidence before this Court demonstrates that any interest was agreed or paid in relation to the claimed loans. Consequently: no amount is allowed for the borrowed monies: Choma v. Canadian Vehicle Leasing Limited, [1982] B.C.J. No. 1036 (S.C.) and Wong v. Hemmings, 2012 BCSC 907.
When two Rule 15 claims are joined for the purposes of trial the Court has discretion with respect to the costs parties are entitled to. Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing this and awarding the Plaintiff two sets of costs.
In today’s case (Harvey v. Tooshley) “by order of the court, the trials in these actions were to be heard at the same time. The two actions were settled for a global figure about four days before the commencement of trial.”. The parties could not agree on costs with ICBC arguing “ there ought to be a reduction in the fees claimed in each action to reflect the savings and efficiencies achieved by having these matters joined for the purposes of trial.”. Master Bouck disagreed and ordered that the Plaintiff receive two sets of costs. In reaching this conclusion the Court provided the following reasons: 30] It is now well established that the registrar has some discretion to reduce the lump sum fee portion of costs allowed under Rule 15-1 if the action is settled before trial. That discretion is said to be a “rough and ready” exercise and allows the registrar to consider the steps been taken to the date of settlement. Nevertheless, the registrar is not expected to parse out those steps as if the tariff to Appendix B applies. [31] The approach by assessing officers has been to make some reduction for the costs that might be attributed to attendance at trial and allow the balance as so-called preparation costs. Assessing officers have allowed $6,500 for these preparation costs, whether the matter settled three months before or on the eve of trial. The court has endorsed this approach: Christen v. McKenzie, 2013 BCSC 1317. [32] Moreover, this approach is consistent with the purpose of Rule 15-1 which is to provide a simplified and streamlined litigation process, including the costs assessment process. [33] The plaintiff is entitled to two sets of costs, regardless of the efficiencies accomplished by joining these actions for trial: Peacock v. Battel, 2013 BCSC 1902. [34] I allow the sum of $6,500 in fees for each action.
Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, addressing whether an ICBC tort advance has any effect in a costs order following a trial.
In today’s case (Jackson v. Yusishen) the Plaintiff was injured in a 2009 collision. Prior to trial the Plaintiff received a $5,000 advance from ICBC. Although various offers were made during the course of the proceedings at the start of trial the Defendant had a formal settlement offer of $100,000 and the Plaintiff’s formal offer was for $2 million.
After a lengthy jury trial the Plaintiff’s claim was largely rejected and damages of $5,000 were assessed. Mr. Justice Betton awarded the Plaintiff costs up to the time that ICBC made their formal offer and ordered that both parties bear their own costs thereafter. In finding that the advance of damages had no bearing in the costs assessment the Court provided the following reasons: [14] The plaintiff had requested an advance and received a $5,000 advance on June 4, 2013. When the advance was provided, the attached letter contained the following: …The advance is to be applied first towards any heads of damage which will attract pre-judgment court ordered interest. .. [49] I will comment briefly on the advance payment of $5,000. This was not an offer to settle in accordance with the formal requirements of Rule 9-1. It does have the practical effect of making the appropriate order here a dismissal of the plaintiff’s claim. I do not find that it has any bearing on my order as to costs in the circumstances here.
Reasons for judgment were released today addressing the boundaries of the BC Supreme Court’s power to make orders respecting the identity of expert witnesses at a Case Planning Conference.
In today’s case (Dhunga v. Ukardi) the Defendant set down a Case Planning Conference some 15 months before trial and “sought an order that the plaintiff immediately disclose the areas of expertise of any experts whose evidence will be tendered at trial and an order limiting the expert evidence at trial to those areas of expertise.“. Mr. Justice Smith rejected this request finding the Court has no jurisdiction to make such an order. In reaching this conclusion the Court provided the following reasons: [5] The orders that may be made at a CPC are set out in Rule 5-3(1). The relevant ones for the purpose of these reasons are Rule 5-3(1)(k) and (v): (1) At a case planning conference, the case planning conference judge or master may make one or more of the following orders in respect of the action, whether or not on the application of a party: … (k) respecting experts, including, without limitation, orders (i) that the expert evidence on any one or more issues be given by one jointly-instructed expert, (ii) respecting the number of experts a party may call, (iii) that the parties’ experts must confer before the service of their respective reports, (iv) setting a date by which an expert’s report must be served on the other parties of record, and (v) respecting the issues on which an expert may be called; … (v) any orders the judge or master considers will further the object of these Supreme Court Civil Rules. .. [16] As pointed out in Amezcua, Rule 5-3(1)(k) sets out a number of specific orders that may be made in regard to experts, but those do not include an order disclosing an expert’s identity or the area of his or her expertise before the report is served, much less an order barring any additional experts or areas of expertise. If Rule 11-1(2) was intended to refer to such an order, I would have expected to see a corresponding provision in Rule 5-3(1)(k). [17] I recognize that the list of specific orders in Rule 5-3(1)(k) is stated not to limit the orders that may be made and that Rule 5-3(1)(v) allows for any other orders the judge or master considers will further the object of the rules. However, as was said in Galvon, such general provisions are not sufficient to override basic and clearly established common law rights… [22] Rule 11-1(2) cannot be used at a CPC to force a party to identify specific medical experts or areas of medical expertise or to limit the party’s case at trial to those experts.
To my knowledge this case is not yet publicly reported but a copy of the reasons can be found here: Dhugha v Ukardi
Reasons for judgement were released this week by the BC Court of Appeal addressing the current landscape of judicial discretion when awarding costs in cases with formal settlement offers in play.
In this week’s case (Wafler v. Trinh) the Plaintiff was injured in a 2005 collision. Prior to trial ICBC made three formal settlement offers, the final being $222,346. The Plaintiff rejected this offer and proceeded to trial. A jury assessed damages at $70,000 and after appropriate deductions this resulted in judgement of over $53,000. ICBC applied for post offer costs. Mr. Justice Voith did not agree that such a result was appropriate but did strip the Plaintiff of post offer costs and disbursements. Given that the trial lasted 10 days this is a significant financial consequence.
ICBC appealed arguing “the purpose of the appeal on costs was to reverse what he described as a trend in the trial court wherein plaintiffs who succeed in “beating” an offer to settle are routinely awarded double costs but defendants who have made an offer to settle that was rejected but well within the claim value are deprived an order of costs. The defendant says this is unjust. In other words, the defendant submits there should be significant consequences to plaintiffs who fail to accept a reasonable offer.”
The BC Court of Appeal dismissed the appeal finding the trial judge fairly exercised his discretion. In reaching this conclusion the Court provided the following reasons: [79] Pursuant to Rule 14-1(9) of the Supreme Court Rules, Mr. Wafler, as the successful party, is entitled to his costs unless the court orders otherwise. Pursuant to Rule 9-1(4), the court may consider an offer to settle when exercising its discretion in relation to costs. Rule 9-1(5) enumerates the orders the court may make. In making an order under subrule (5), the court may consider the factors listed in subrule (6). [80] The purpose for which costs rules exist, as stated in Giles v. Westminster Savings and Credit Union, 2010 BCCA 282, was referred to by the trial judge at para. 18 of his reasons (reproduced at para. 50 above). [81] I do not quarrel with the general proposition that a plaintiff who rejects a reasonable offer to settle should usually face some sanction in costs, even in circumstances in which it cannot be said that the plaintiff should have accepted the offer. To do otherwise would undermine the importance of certainty and consequences in applying the Rule. The importance of those principles was emphasized by this court in Evans v. Jensen, 2011 BCCA 279: [41] This conclusion is consistent with the importance the Legislature has placed on the role of settlement offers in encouraging the determination of disputes in a cost-efficient and expeditious manner. It has placed a premium on certainty of result as a key factor which parties consider in determining whether to make or accept an offer to settle. If the parties know in advance the consequences of their decision to make or accept an offer, whether by way of reward or punishment, they are in a better position to make a reasoned decision. If they think they may be excused from the otherwise punitive effect of a costs rule in relation to an offer to settle, they will be more inclined to take their chances in refusing to accept an offer. If they know they will have to live with the consequences set forth in the Rule, they are more likely to avoid the risk. [82] That said, under the present Rule, unlike its predecessor which mandated the result, it is for the trial judge to determine in any particular case the nature and scope of whatever sanctions are to be applied. The permissive wording in Rules 9-1(5) and (6) indicates the legislature intended to preserve the historically discretionary nature of costs awards, including an award of costs where an offer to settle has been made. [83] In my opinion, the judge adequately considered the factors under Rule 9-1(6) which were relevant in this case. Most significantly, the defendant’s contention that the plaintiff in this case did not suffer any consequences from his failure to accept the offers to settle ignores the fact that, as a successful party, he was deprived of his costs and disbursements from December 21, 2011, approximately six weeks before the jury’s verdict made on February 3, 2012. The verdict followed a ten day trial. Thus, the impact of the judge’s costs order was to deprive Mr. Wafler of taxable costs for the preparation of and attendance at a ten day trial, together with disbursements incurred after the offer, which presumably included fees for attendance by experts. [84] In these circumstances, I do not think it can be fairly said that the plaintiff in this case was not penalized for his failure to accept the defendant’s offer. In my view, the costs order reflected the underlying purpose of Rule 9-1. [85] In the result, I would dismiss the cross-appeal.
Fraud vitiates consent to sexual contact exposing the fraudulent party to criminal and civil prosecution. The Supreme Court of Canada addressed this today in a case involving ‘condom sabotage’.
In today’s case (R v. Hutchinson) the complainant “agreed to sexual activity with her partner, H, insisting that he use a condom in order to prevent conception. Unknown to her, H had poked holes in the condom and the complainant became pregnant.”. This led to conviction for aggravated sexual assault.
In upholding the conviction and discussing when fraud vitiates consent the Supreme Court of Canada reasoned as follows: [4] The Criminal Code sets out a two-step process for analyzing consent to sexual activity. The first step is to determine whether the evidence establishes that there was no “voluntary agreement of the complainant to engage in the sexual activity in question” under s. 273.1(1). If the complainant consented, or her conduct raises a reasonable doubt about the lack of consent, the second step is to consider whether there are any circumstances that may vitiate her apparent consent. Section 265(3) defines a series of conditions under which the law deems an absence of consent, notwithstanding the complainant’s ostensible consent or participation: Ewanchuk, at para. 36. Section 273.1(2) also lists conditions under which no consent is obtained. For example, no consent is obtained in circumstances of coercion (s. 265(3)(a) and (b)), fraud (s. 265(3)(c)), or abuse of trust or authority (ss. 265(3)(d) and 273.1(2)(c)). [5] We conclude that the first step requires proof that the complainant did not voluntarily agree to the touching, its sexual nature, or the identity of the partner. Mistakes on the complainant’s part (however caused) in relation to other matters, such as whether the partner is using effective birth control or has a sexually transmitted disease, are not relevant at this stage. However, mistakes resulting from deceptions in relation to other matters may negate consent at the second stage of the analysis, under the fraud provision in s. 265(3)(c) of the Criminal Code. [6] Applying this template to the facts in this case leads us to conclude that, at the first step, the complainant voluntarily agreed to the sexual activity in question at the time that it occurred. The question is whether that consent was vitiated because she had been deceived as to the condition of the condom. This question is addressed at the second step. The accused’s condom sabotage constituted fraud within s. 265(3)(c), with the result that no consent was obtained. We would therefore affirm the conviction and dismiss the appeal.
While BC Courts do recognize that the cost of medical marijuana can form a basis for damages in a personal injury claim, one matter that, to my knowledge, has never been addressed is whether failing to take prescribed medical marijuana can amount to a failure to mitigate damages. This issue was dealt with in reasons for judgement released today.
In today’s case (Glesby v. MacMillian) the Plaintiff was involved in a 2009 collision. Liability was admitted. In the course of the claim a physician suggested medical marijuana. The Plaintiff did not follow this advice. The Defendant apparently argued the damages should be reduced for this failure to mitigate however Mr. Justice Baird declined to do so. The Court, despite having reservations about the Plaintiff’s credibility, accepted her explanation for not following the advice to try medical marijuana. In reaching this conclusion the Court provided the following comments: [47] Dr. Hershler examined the plaintiff on May 2, 2013, some five months before trial. His diagnosis was much the same as Dr. Kleinman’s, but without discussion of a possible interrelationship of physical and psychological factors. Soft tissue injury and chronic pain were the culprits, he said, and echoed Dr. Kleinman’s recommendation that the plaintiff should embark upon a core strengthening program. He also encouraged the plaintiff to consider the use of medical cannabis to manage her pain. The plaintiff has not taken this advice, either. She has reservations about the legality of the acquisition and use of cannabis, and, in any event, she is a committed life-long abstainer from narcotics and drugs of all sorts… [69] I decline to find that the plaintiff failed to mitigate her losses by not taking medical cannabis. Dr. Hershler’s advice came after the end of what, for the reasons just stated, I consider to be a reasonable recovery period. In any event, I accept as sincere the plaintiff’s reservations about the acquisition and use of cannabis.
When a claim is prosecuted under the fast track (Rule 15) the Court has discretion to remove the case in appropriate circumstances. Reasons for judgement were recently published by the BC Supreme Court addressing such an application.
In the recent case (Peters v. ICBC) the Plaintiff was struck in a crosswalk by an unidentified motorist. She sued ICBC for damages under section 24 of the Insurance (Vehicle) Act. The case was prosecuted under Rule 15 and was set for trial. The initial trial date was adjourned because there was no judge available. The trial was reset and following this the Plaintiff applied to remove it from the Fast Track arguing damages in excess of $100,000 would be sought. Mr. Justice Gaul dismissed the application noting it was brought too late in the litigation process. In reaching this conclusion the Court provided the following brief reasons: [28] The plaintiff’s law suit has been in the fast track stream under Rule 15-1 since shortly after it was launched in the fall of 2011. The plaintiff’s examination for discovery has been completed. The matter was set to go to trial as a fast track trial in the fall of 2012 and would have but for a lack of judicial resources. The matter is now set for trial, again under Rule 15-1, for June of this year. I agree with the defendant’s argument that it is too late at this point to change tack and to remove the case from the provisions of Rule 15-1. [29] For all of the above reasons, the plaintiff’s application is denied.
Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision between a rollerblader and a vehicle.
In this week’s case (Chabot v. Shaube) the Plaintiff was rollerblading and entered an intersection in a marked crosswalk. She had the right of way. She passed 4 of 5 lanes when the Defendant motorist, who failed to see her, moved forward attempting a right had turn. A collision occurred. Despite having the right of way the Plaintiff was found 10% at fault for the collision due to her speed when crossing. In reaching this division of fault Mr. Justice Brown provided the following reasons: [30] The defendant should not have rolled to a stop and proceed as she did, considering the traffic, the time of day and the marked crosswalk in front of her. Her passenger saw the plaintiff and called out a warning. [31] As for the plaintiff, once she chose to skate across the intersection, she should have skated at a pace that slow enough to allow her to stop as quickly as if she were walking or at most slowly jogging, which is, for all practical purposes, instantaneously, after allowing a moment to see and react. In other words, she departed from the standard of care of a reasonable person in similar circumstances. By skating at a fairly brisk jog, she failed to exercise sufficient care for her own safety when crossing a busy intersection during morning rush hour at UBC… [34] The plaintiff was not walking. She was travelling considerably quicker than a pedestrian walking. She does not have to guard against every conceivable eventuality, or to assume a vehicle in the designated right turn lane might not respect her right of way. Only, considering the circumstances, to be more vigilant and to take reasonable precautions for her own safety, considering she was skating across the intersection, could not see traffic on the other side of the bus and could not stop as quickly as she could on foot. [35] The law does not declare the plaintiff broke the law by skating across the crosswalk. Cyclists are obligated to dismount when they enter a crosswalk, see s. 183(1)(b) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. But the Motor Vehicle Act does not include roller blades in its definition of “cycle”, see s. 119(1) “cyclist”; they are pedestrians. Further, I appreciate inline skating is a popular way to get around in good weather. Some road skaters appear very adept and agile skaters. I accept the plaintiff was an experienced skater and that she knew how to stop properly on skates. She was not obliged to remove her skates to cross. But having chosen to skate across the crosswalk, she needed to take reasonable precautions for her own safety, commensurate with her speed and visibility of traffic beyond the stopped bus. [36] As noted in Karran, “fault may vary from extremely careless conduct, by which the party shows a reckless indifference or disregard for the safety of person or property, whether his own or others, down to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm.” I find the plaintiff’s conduct falls within the range of a momentary or minor lapse of conduct, which nevertheless, carries with it the risk of foreseeable harm. Based on this finding, and the circumstance that she was always within a marked crosswalk, I apportion 90% fault to the defendant and 10% to the plaintiff.
While BC Courts do recognize that collision related injuries can lead to the demise of a financially interdependent relationship and lead to increased costs, the evidence to advance such a claim must be persuasive. Reasons for judgement were released this week rejecting such a claim and discussing the requirements of advancing damages for “lost opportunity of family income“.
In this week’s case (Liu v. Bourget) the Plaintiffs were injured in a collision and sued for damages. They alleged a variety of losses including that they separated, and thereby incurred greater expenses, as a direct result of the accident. Mr. Justice Skolrood rejected this claim on the evidence and in doing so provided the following reasons: [272] Ms. Cheng and Mr. Liu submit that they have incurred increased expenses from the fact that they now live in separate residences which they say is a direct result of the accident. They say that an award of $50,000 is reasonable in the circumstances. [273] Ms. Cheng and Mr. Liu cite Grewal v. Brar et al, 2004 BCSC 1157, where the court awarded the plaintiff $30,000 for the possibility that her marriage might fail as a result of the consequences of the accident. The award was in effect a modified award for damages for loss of marriageability, a head of damages that the courts have long recognized. [274] This type of award was described by Mr. Justice Lambert of the Court of Appeal in Reekie v. Messervey (1989), 59 D.L.R. (4th) 481 at 494, 36 B.C.L.R. (2d) 316 (C.A.) at 330-331, as follows: This aspect of the damage award was called “loss of opportunity to marry” by counsel and by the trial judge. But marriage is not the significant point. the significance lies in the loss of an opportunity to form a permanent interdependency relationship which may be expected to produce financial benefits in the form of shared family income. Such an interdependency might have been formed with a close friend of either sex or with a person with whom a plaintiff might have lived as husband and wife, but without any marriage having taken place. Permanent financial interdependency, not marriage, is the gist of the claim. For the sake of simplicity and consistency, I will now usually call this head of loss: “Lost opportunity of family income”. [275] Mr. Justice Lambert went on to describe categories of loss arising under this head of damages which are summarized by Mr. Justice Cole in Grewal as: (1) loss of the benefit of increased income, (2) loss of the benefit of shared expenses, and (3) loss of the benefit of shared homemaking (Grewal at para. 157). [276] In Grewal, Mr. Justice Cole rejected the defendant’s argument that this type of award was not available to persons who, at the time of the accident, were already involved in a marriage or inter-dependent relationship (paras. 158-159). [277] In the present case, Ms. Cheng and Mr. Liu’s claim is premised on their position that their marital separation is a result of the accident. I have found that the accident was one of many contributing factors to the breakdown and that there was a good likelihood that they would have separated in any event. I also note that unlike in Grewal, there is no evidence from an economist or other expert attempting to value the additional expenses resulting from the separation. Nor was there evidence from Ms. Cheng and Mr. Liu outlining their expenses pre and post-accident. [278] Taking all of these factors into account, Ms. Cheng and Mr. Liu have not satisfied me that an award under this head is warranted.
