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Knocking Down The House of Cards – Break the Facts, Break the Opinion

Written by admin on . Posted in independent medical exams. 49 Comments on Knocking Down The House of Cards – Break the Facts, Break the Opinion


When opinion evidence is introduced into court the factual underpinnings which the opinion is based on must be proven otherwise the opinion evidence is of no value.  This was demonstrated in reasons for judgement released last week by the BC Supreme Court.
In the recent case (Paller v. Regan) the Plaintiff was injured in a 2009 collision.  ICBC admitted the defendant was at fault but disputed the collision caused any injuries.  In support of their position they relied on an orthopaedic surgeon who never examined the Plaintiff but provided an opinion that it was “unlikely” the Plaintiff’s injuries were caused by the crash.  In support of this conclusion the doctor assumed this was a low speed impact.  Madam Justice Fenlon rejected this evidence finding that the foundation of the opinion was not proven.  In dismissing the surgeon’s evidence the Court provided the following reasons:
[25]         The only medical opinion evidence tendered by the defence is a report of Dr. Dommisse, an orthopedic surgeon. He did not examine Mr. Paller, but reviewed medical records, imaging, and the reports of Drs. Whittington and Chu. Dr. Dommisse opined that it is unlikely that the accident caused a disc tear or herniation. He stated in his written report:
As outlined above, I have not had the benefit of examining Mr. Paller. I am therefore unable to fully comment on Dr. Chu’s report. In my opinion, however, it is unlikely that Mr. Paller suffered a disc tear and/or disc protrusion at L4/5 in a motor vehicle accident of this magnitude.
In my clinical experience, I have seen approximately four lumbar disc herniations as a result of motor vehicle accidents. These accidents were higher velocity collisions, two of which occurred when the driver drove head on into a house.
[26]         Dr. Dommisse assumed that the speed of Mr. Regan’s vehicle was 5 km/h, a number provided by Mr. Regan in a statement given to ICBC shortly after the accident. In cross-examination Mr. Regan was unable to be precise about his speed. He agreed that he was accelerating on to the street, that his speed was moderate, and that he did not brake before the collision.
[27]         I conclude that the opinions of Dr. Chu and Dr. Whittington are to be preferred to that of Dr. Dommisse. As he acknowledged, Dr. Dommisse’s opinion was restricted by lack of an examination of the plaintiff. Further, it was largely anecdotal and was based on a fact, the speed of Mr. Regan’s vehicle at 5 km/h, that was not proved at trial.
[28]         Dr. Jung is a psychologist who has treated Mr. Paller on two occasions. He provided an opinion that Mr. Paller is suffering from Anxiety Disorder, NOS, as defined in the DSM 4, the Diagnostic and Statistical Manual of Mental Disorders. Dr. Jung is of the opinion that the anxiety developed as a result of a reaction to chronic injury and pain. I accept his opinion.
[29]         In summary on this issue, I find that Mr. Paller’s injuries, physical and psychological, were caused by the accident on February 24, 2009.

Vehicle Lessor Liability Limit Over and Above That of Motorist

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UPDATE – November 7, 2014 – the below decision was overturned in reasons released this week by the BC Court of Appeal
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Important reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the limit of exposure for vehicle lessor’s when their vehicles are involved in an at-fault collision.
Provisions of the BC Motor Vehicle Act and Insurance (Vehicle) Act expose lessor’s to $1,000,000 of liability when their vehicles are involved in a collision.  The BC Supreme Court was asked to interpret these provisions in the case of a $1.6 million dollar claim.
In this week’s case (Stroszyn v. Mitsui Sumitomo Insurance Company Limited) the Plaintiff sued an at fault motorist and the vehicle lessor for damages following a collision.  The quantum was agreed to at $1.6 million dollars.  The ICBC insured defendant paid out the policy limits of $1 million.    The vehicle lessor argued that they did not need to pay the balance as they were shielded by section 82.1 of the Insurance (Vehicle) Act from any payment after a Plaintiff collects $1 million.  Mr. Justice Bowden disagreed finding a lessor’s exposure, while capped at $1 million, is over and above damages collected from other liable parties. In reaching this conclusion the Court provided the following reasons:
[34]         As a lessor, under s. 86(1.2), Honda Canada is vicariously liable as a joint tortfeasor. Without the limitation in s. 82.1, it would be liable, together with the lessee, for all or part of the damages of $1,600,000. However, section s. 82.1 places a $1,000,000 limit on that liability such that Honda Canada’s portion cannot be greater than $1,000,000.
[35]         In my view, the payment of $1,000,000 on behalf of the lessee does not reduce the liability of Honda Canada to zero. It is simply a payment by one joint tortfeasor towards the total liability of the jointly liable parties. By virtue of s. 86(1.2) of the MVA, both the driver, Mr. Chen, and Honda Canada are jointly liable for the damages of $1,600,000. Pursuant to s. 82.1, Honda Canada’s portion of that liability cannot exceed $1,000,000. Of the total liability, $1,000,000 has been discharged by ICBC on behalf of the lessee, but Honda Canada remains liable as a joint tortfeasor, for $600,000.
[36]         This result is consistent with the plain meaning of s. 82.1 of the I(V)A which limits the liability of Honda Canada to $1,000,000. Its portion of the joint liability will not exceed $1,000,000. In my view, the combined effect of s. 86(1.2) of the MVA and s. 82.1 of the I(V)A is to expose a lessor, like Honda Canada, to liability as a jointfeasor, of $1,000,000, but no more. Thus, in this case, if the driver/lessee had no insurance coverage, the lessor would be liable for the amount of $1,000,000. On the other hand, if the insurance coverage of the driver/lessee resulted in a payment of $1,600,000, then no amount would be payable by the lessor, Honda Canada.

Chairlift Negligence Claim Dismissed Due To Waiver

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Adding to this site’s archived cases addressing waivers of liability in sporting injury claims, reasons for judgment were released this week by the BC Supreme Court, Kamloops Registry, addressing the effect of a waiver following a ski-lift accident.
In this week’s case (Morgan v. Sun Peaks Resort Corporation) the Plaintiff was “preparing to load onto a chair lift at the ski resort owned by the defendant Sun Peaks Resort Corporation when she fell.  The approaching chair lift was not stopped in time and she was run over by it“.  Prior to this incident the Plaintiff signed a waiver of liability which is commonplace at ski resorts.  She sued for damages alleging negligence and the Defendant applied to have the claim dismissed based on the strenght of the waiver.   Madam Justice Griffin upheld the waiver and dismissed the lawsuit.  In doing so the Court provided the following reasons:
[30]         The Release describes the defendant and its directors, officers, employees, agents, contractors, and representatives as “THE OPERATORS”.  In the release section of the Release, it states that in consideration of the Operators accepting the application for a season pass and permitting the use of their facilities and property, including use of the lifts, the party signing agrees as follows:
1.         TO WAIVE ANY AND ALL CLAIMS that I have or may in the future have against THE OPERATORS AND THE PROVINCE, and its directors, officers, employees, agents, guides, instructors, independent contractors, sub-contractors, representatives, sponsors, successors and assigns (all of whom are hereinafter collectively referred to as “THE RELEASEES” ), and TO RELEASE THE RELEASEES from any and all liability for an loss, damage, expense or injury including death that I may suffer, or that my next of kin may suffer resulting from either my participation in any recreational activities in the controlled recreational area, or my presence around the recreational activities in the controlled recreation are, DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER THE OCCUPIERS LIABILITY ACT R.S.B.C. 1996, c. 337,  ON THE PART OF THE RELEASEES, AND ALSO INCLUDING THE FAILURE ON THE PART OF THE RELEASEES TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF ANY RECREATIONAL ACTIVITIES IN THE CONTROLLED RECREATION AREA REFERRED TO ABOVE.
[31]         As noted, the Release refers to the releasor’s “participation in any recreational activities in the controlled recreational area” or presence around those activities.  At the top of the Release, the term “recreational activities in the controlled recreational area” is defined as follows:
DEFINITION: In this agreement, the term “recreational activities in the controlled recreational area” shall include all activities or involvement in any way connected or associated with lift accessed & non-lift accessed activities within the controlled recreational area; including but not limited to skiing, snowboarding, telemark skiing, cross country skiing, golfing, hiking, sight seeing or mountain biking throughout the controlled recreation area or with orientation, instruction, training or guiding given by THE OPERATORS.
[32]         Furthermore, the Release provided that the releasor assumed certain risks.  In a section headed “Assumption of Risks”, the Release provided:
ASSUMPTION OF RISKS: I am aware that recreational activities in the controlled recreational area involves many risks, dangers and hazards including, but not limited to; boarding, riding or disembarking lifts; changing weather conditions; exposed rock, earth, or other natural or man made objects; trees, tree wells, tree stumps and forest dead fall; changes or variations in the terrain which may create blind spots or areas of reduced visibility; changes or variations in the surface or sub-surface; streams, creeks; collision with lift towers, fences, equipment, vehicles or structures; collision with other participants, spectators or bystanders; negligence of other participants, spectators or bystanders; and NEGLIGENCE ON THE PART OF THE OPERATOR INCLUDING THE FAILURE ON THE PART OF THE OPERATORS AND THE PROVINCE OR ITS STAFF TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF RECREATIONAL ACTIVITIES IN THE CONTROLLED RECREATIONAL AREA.  I am also aware that the risks dangers and hazards referred to above exist throughout the controlled recreational area and that many are unmarked.
I AM AWARE OF THE RISKS, DANGERS AND HAZARDS ASSOCIATED WITH RECREATIONAL ACTIVITIES IN THE CONTROLLED RECREATIONAL AREA AND I FREELY ACCEPT AND FULLY ASSUME ALL SUCH RISKS, DANGERS AND HAZARDS AND THE POSSIBILITY OF PERSONAL INJURY, DEATH, PROPERTY DAMAGE AND LOSS RESULTING THEREFROM.
[33]         On its face, the Release is very broad.
[34]         The Release specifically identified the risks of boarding, riding, or disembarking the lifts. It excluded liability resulting from the releasor’s participation in “recreational activities in the controlled recreational area” which included activities or involvement in any way connected or associated with lift accessed and non-lift accessed activities the Release covered.  It also excluded liability for the negligence of the Operator and its staff, including in safeguarding the releasor from the risks, dangers and hazards of recreational activities in the controlled recreational area, which as defined, included activities associated with lift accessed activities.
…
[55]         Coming back to the central allegation here, that the employee failed to press the stop button in time, the plaintiff has advanced no argument that would explain how that type of alleged employee failure could be considered to amount to mechanical breakdown or equipment failure.  There is no suggestion of any evidence that there was mechanical breakdown or failure of equipment. 
[56]         I conclude that the scope of the Release is sufficiently broad to encompass the plaintiff’s claim against the defendant based on alleged negligence of the chairlift operator in delaying in pressing the stop button immediately upon seeing the plaintiff fall.   I am satisfied that this is the only evidence of possible negligence that has been put forth by the plaintiff, and that this conduct does not fit within the exclusion clause in the Release.  Given my conclusion that such conduct would fall within the scope of the Release, the defendant must succeed in this application. 
[57]         The plaintiff’s claim is therefore dismissed.

"Outrageous" Behavior Still Not Enough to Overcome Expert Witness Immunity

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Although the  UK Supreme Court has recently stripped away at expert witness immunity the BC Courts appear reluctant to do so.  Reasons for judgement were released last week by the BC Court of Appeal addressing this.
In last week’s case (Lower v. Stasiuk) the parties were involved in a family law proceeding.  In the course of the proceeding a psychiatrist provided evidence who was found to be an “advocate” and whose actions were deemed “outrageous“.  Following this the Claimant sought to add the psychiatrist as a party and to seek special costs against him.  Both the BC Supreme Court and Court of Appeal refused to allow this noting that expert witness immunity guarded against such a remedy.  The BC Court of Appeal provided the following reasons:
[69]         It is not clear to me that the exception to witness immunity articulated in Phillips properly applies to a witness in Dr. Hay’s position.
[70]         Secondly, as noted by at least two of the justices in Jones, it has not been determined that Phillips was correctly decided.  Dr. Hay argues that Smith J. misinterpreted the Symphony case, on which he relied, and points out that in Symphony, the claim for third party costs (which was rejected by the Court of Appeal) was made on the basis that the third-party company had funded and been the “driving force” behind the defence (at 149) ? akin to maintenance.  Mr. Justice Smith expressly acknowledged that one of the bases for the claim against the third party in Symphony was that it was maintaining the action (at para. 60).
[71]         Thirdly, Dr. Hay suggests that adopting the exception to witness immunity from Phillips creates uncertainty about the boundaries of the immunity.  The evidence of the expert witness in Phillips was rejected on the basis that he breached his duty to the court by failing to view the issues objectively and straying into advocacy (see Smith J.’s reasons for judgment from the hearing in which the expert’s evidence was considered:  Phillips v. Symes (No. 1), [2004] EWHC 1887 (Ch) at para. 94).  Dr. Hay asks how an expert would know in advance what conduct could expose him to a claim for costs.
[72]         All of these reasons suggest caution in adopting the exception to witness immunity as has apparently been done in the U.K.
[73]         Another reason not to follow Phillips is that the trial judge did not have the opportunity to consider it and this Court does not have his decision on the question to review.  Were we to embark on such a change in the law at first instance, Dr. Hay’s only opportunity for an appeal would be with leave of the Supreme Court of Canada.  It is more appropriate that such a change be considered in the normal manner at first instance by a justice of the B.C. Supreme Court, followed by review by this Court.
[74]         I find no basis to interfere with the trial judge’s conclusion that witness immunity bars the father’s application to add him as a party for the purpose of assessing special costs.
[75]         It follows that I would not accede to this ground of appeal.

Sexual Assault and Surreptitious Videotaping Lawsuit Survives Defendant's Bankruptcy Protection

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Brief reasons for judgment were released recently by the BC Supreme Court, Duncan Registry, addressing whether a Plaintiff can continue with a lawsuit for damages for alleged historic sexual assault in the face of a Defendant filing for bankruptcy protection. In short the Court held this was possible.
In the recent case (Lundahl v. Poilievre) the Plaintiff was suing for damages alleging historic sexual assault and surreptitious recording.  The Court provided the following reasons confirming both causes of action can survive bankruptcy protection:
[4]             It is clear that the claim for sexual assault would, under s. 178(1), survive a discharge of bankruptcy.  What may be more debatable are the components of the action dealing with the surreptitious videotaping.  It was that latter part of the claim that the defendant focused on in opposing the stay.
[5]             In my view, the main part of the action is the sexual assault.  In spite of the defendant having pled guilty in a criminal trial, the videotaping may still be part of the evidence in the sexual assault trial as part of the background.  So irrespective of whether the claim for the surreptitious videotaping alone would survive the bankruptcy, it is nevertheless intimately wrapped up with the other part of the action.
[6]             The material prejudice to the plaintiff of the stay with respect to the sexual assault claim is that the action will be materially delayed, and in the interim she is suffering psychological harm.  I think I can take judicial notice of the fact that once an action is commenced, victims prefer to have their trials sooner rather than later. In my view, s. 69.4 should be applied here to lift the stay.
[7]             In addition, it appears to me the claim falls within a category of claims that the courts have not been willing to stay.  It would be equitable, as well, under s. 69.4, to lift the stay.
[8]             The stay will therefore be lifted with costs to the plaintiff.

$140,000 Non-Pecuniary Assessment for "Very Serious" Femur Fracture

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Adding to this site’s archived caselaw dealing with non-pecuniary damages for femur injuries, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with such a claim.
In this week’s case (Han v. Chahal) the Plaintiff pedestrian was injuries when she was struck by the Defendant’s vehicle while walking in a marked cross walk.  The Defendant was found fully responsible for the crash.  The Plaintiff suffered a variety of injuries the most serious of which was a fractured femur.  Although the Court found some issues with the Plaintiff’s reliability as a witness the Court did accept the injury left her with a degree of chronic pain and limited function.  In assessing non-pecuniary damages at $140,000 Mr. Justice Verhoeven provided the following reasons:
[154]     In summary, the plaintiff was physically healthy prior to the accident.  She suffered a very serious injury to her femur and a moderate injury to her wrist.  These injuries have healed uneventfully from a physical point of view, after two surgeries to her leg.  No specific ongoing organic cause for her hip pain has been established.  Although she likely overstates her degree of disability, she has developed chronic pain, in relation to several areas of her body.  She has depression and anxiety.
[155]     Her major complaint of pain is with respect to her left hip.  When she saw Dr. Chin February 3, 2010, about 14 months after the accident, she had 75% to 80% improvement in her orthopedic injuries, but since then she has development several new pain complaints and, overall, her condition has not improved.  Her chronic pain and depression have resulted in altered mood, lack of energy, fatigue, irritability, and some cognitive difficulties.
[156]     The accident caused a drastic change to the plaintiff’s pre-accident health, lifestyle, and enjoyment of life.  I accept that to date, more than four years post-accident, the plaintiff continues to suffer significantly from the effects of the accident.
[157]     However, the assessment of her loss is complicated by the fact that her evidence is somewhat unreliable.  Further, treatment options have not yet been explored, and the prognosis is uncertain.  There is a substantial risk of pain, suffering, and disability persisting indefinitely.  The preliminary prognosis for complete recovery is negative.  The potential extent of recovery is unclear…
[173]     Having regard to all of the non-exhaustive list of factors commonly considered in relation to assessment of damages for non-pecuniary loss, as set out in Stapley, in the circumstances of this case and bearing in mind the authorities to which I have referred, in my view the appropriate award for non-pecuniary loss is $140,000.

Court Directs Early UMP Payment Noting "The Application of Law Should Not Be Blind to Practical Solutions"

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Reasons for judgement were released by the BC Supreme Court, Kelowna Registry, creating a practical solution to a real world problem, getting a judgement paid in the face of ongoing claims which may exceed a Defendant’s coverage.
In this week’s case (Clark v. Bullock) the Plaintiff along with other individuals were injured in a serious collision.  The Plaintiff’c claim proceeded to trial and damages of $550,000 were assessed.  The Defendant’s had $5,000,000 of liability coverage however, there were ongoing claims involving injured infants and there was “a real and legitimate concern that there may not be sufficient coverage” to pay all the claims.
The Plaintiff had Underinsured Motorist Protection however a practical difficulty arose in that those funds could not be forced to be paid until it can be proven the Defendant’s were underinsured.  In this case that could have taken many years as the infants claims were not yet ready to be quantified.  This left the 67 year old plaintiff facing a real possibility that he could not receive payment on his judgement for a number of years.  The Court, with the consent of the parties, fashioned a sensible solution and ordered that the money be paid via the UMP policy even though it technically was not accessible at this time.  Mr. Justice Betton provided the following sensible reasons:
 
[23]         In this particular case, ICBC determined that it would waive the entitlement that it has by virtue of the legislation to require that Mr. Clark exhaust all of his remedies, including awaiting the payment of his pro rata entitlement to the $5,000,000 coverage under the Bullock policy; that is, ICBC would waive its entitlement to insist on all of those steps being taken before accessing the underinsured motorist protection coverage.
[24]         The condition it attaches is that it requires a declaration from court that would protect it against the potential for having to pay out more than the amount of the Bullock policy.
[25]         With that concession or that position being adopted by ICBC, these parties come before me with a request for a declaration. That declaration essentially allows ICBC to access the underinsured motorist protection coverage available to Mr. Clark to pay the amount that Justice Barrow has determined Mr. Clark is entitled to with adjustments as agreed to by the parties….
[30]         In my view, the interpretation of the statutes and the application of the law should not be blind to practical solutions when parties, fully cognizant of their rights and entitlement, present such a proposal. The court should make efforts to facilitate that, so long as it is not running afoul of legislation or established legal precedent, and does not prejudice parties who would have an interest in the pool of funds that they would have available to them.
[31]         I am satisfied in these circumstances that, indeed, this arrangement is in the interests of both Mr. Clark and the Insurance Corporation of British Columbia, the applicants before me, and it does not prejudice or adversely affect the rights of the other entities, all of whom have been served with notice of this application and have chosen not to participate.
[32]         The only other entity which is not a party that may, in a general sense, have an interest in this type of situation would be the Public Guardian and Trustee who, through its statutory obligation, has an interest in protecting infants in this type of context.
[33]         I should say as well that all of those other parties are represented by counsel. No interested party in this matter is self-represented or unrepresented.
[34]         I have chosen and determined not to require that there be any notice to the Public Guardian and Trustee, or that it be served with this application, because I am satisfied that the declaration which I will be making does not adversely affect the infants who are plaintiffs in separate proceedings arising out of this collision. They will still have full access to their proportionate shares of the insurance policy limits of the Bullocks.
[35]         Accordingly, I will make the declaration.

Left Turning Driver Found 100% at Fault For Striking Pedestrian in a Marked Crosswalk

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

Adding to this site’s archived judgement database addressing collisions involving pedestrians, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing fault for a collision involving a left hand turning vehicle and a pedestrian.
In last week’s case (Han v. Chahal) the Plaintiff was walking in a marked crosswalk southbound across 72nd Avenue in Surrey, BC.  At the same time the Defendant motorist approached from the oncoming direction and attempted to turn left.  The Defendant struck the Plaintiff.   The Defendant conceded fault at trial but argued the Plaintiff was 25% responsible.  Mr. Justice Verhoeven disagreed finding the Defendant was solely to blame for this collision.  In reaching this conclusion the Court provided the following reasons:
[18]         I find that the plaintiff was struck in the crosswalk, just as she entered the second of the two westbound lanes.  She testified that she had proceeded about four steps when she was struck.  The independent witness, Mr. Singh, estimated that she was struck after she had crossed one lane.  Ms. Chahal’s evidence about the accident details was generally vague.  However she was turning left and would presumably have been attempting to enter the left lane of the two westbound lanes, as she was obliged to do pursuant to s. 165 of the Act.  Thus, I conclude that the plaintiff was well into the intersection when she was struck, and some seconds had elapsed since she had left the curb.  I conclude that at the time she left the curb there was absolutely no reason for the plaintiff to be especially concerned for her safety in relation to the defendant’s vehicle.  She was aware of the defendant’s vehicle on the other side of the intersection, but was entitled to assume that the defendant would obey the law and yield the right-of-way to her.
[19]         It is not entirely clear whether the defendant stopped at the light before proceeding into the intersection and striking the plaintiff.  The plaintiff’s evidence was that the defendant’s vehicle was moving when she first saw it, but it stopped.  The defendant’s evidence is more consistent with her simply proceeding into the intersection on a green light, without stopping.  This scenario is also more consistent with the evidence of Mr. Singh, who testified that he was stopped at the red light when the collision occurred, and his evidence that the defendant was going “fast”.  This scenario is also supported by the evidence of the plaintiff that she waited at the curb after activating the pedestrian signal, then proceeded into the crosswalk after the walk signal came on, at which time I infer that the light facing Ms. Chahal would definitely be green, and by my conclusion that there was a lapse of time between when Ms. Han left the curb and when she was struck.  Finally, had it been necessary for the defendant to stop, there is a greater chance that she would have seen the plaintiff, which of course she did not.  I conclude that the defendant entered the intersection on a green light, without stopping, and struck the plaintiff in the crosswalk well after she had left the curb.
[20]         The defendants have not satisfied the onus on them to establish that the plaintiff knew or ought to have known that the defendant driver was not going to grant her the right-of-way, and that, at that point of time, the plaintiff could reasonably have avoided the accident.  There is no basis in the evidence to suggest that after the plaintiff was in the crosswalk she ought to have seen the defendant’s vehicle approaching, realized that she was not seen by its driver, and somehow evaded the collision.  The idea that she could have made eye contact with the driver of the vehicle at some point in time is highly unrealistic in the circumstances, and is no more than speculative. In summary, the plaintiff did not have a duty to positively ascertain the defendant’s intentions nor did she have any means to do so.
[21]         The defendants rely upon Brumm v. Inglis, [1997] B.C.J. No. 1181. However, that case is clearly distinguishable.  There, the plaintiff walked in front of the defendant’s vehicle as it was stopped at an exit from a driveway onto a busy street, waiting for a break in heavy traffic.  The plaintiff could see the driver of the vehicle.  She chose to walk in front of the vehicle, which pulled forward as she did so.  In this context, Mr. Justice Pitfield stated:
She knew of the defendant’s intended actions. She knew or should have known there was danger to her personal safety if she passed in front of the vehicle without first making eye contact with the defendant and the vehicle accelerated suddenly in an attempt to enter the busy flow of traffic.
[22]         The circumstances of the case at bar bear no resemblance to those in Brumm.  More specifically, in the case at bar, it cannot be said that the plaintiff “knew of the defendant’s intended actions” other than perhaps in a general way, nor can it be said that there was something that she realistically could or should have done or refrained from doing in consideration for her own safety.
[23]         I conclude that the defendants have not established that the plaintiff was contributorily negligent.  It follows that the defendants are fully liable for the accident.

ICBC Opposes Translator Fees on Basis of Law Firm Advertising

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Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing the reasonableness of private translator fees incurred by a lawfirm advancing a personal injury case.
In this week’s case (Jin v. Caleca) the Plaintiff, whose first language is Mandarin and whose “ability to communicate in the English language is very limited” hired a personal injury lawfirm to advance her case.  The firm hired a translator which assisted in communicating with the client.  When the case settled ICBC challenged this disbursement arguing that based on the law firm’s advertisements ICBC should not be on the hook for this expense.  District Registrar Cameron disagreed and ordered that the disbursement be paid. In doing so the Court provided the following reasons:
[4]             The Defendants do not take any issue with the decision by the law firm to retain a translator to assist the lawyers in the firm to fully and effectively communicate with the Plaintiff.  It is conceded that this was a proper or necessary disbursement.
[5]             Further, the Defendants do not take any issue with the reasonableness of the translation fees claimed in the sum of $1,122.27. Rather, they ground their objection to paying this disbursement on their interpretation of the print advertising done by the law firm aimed at attracting new clients to the firm.
[6]             There is a considerable amount of affidavit evidence before me, but the matter resolves down to this:  at the time that this retainer agreement was entered into on February 5th, 2010, the law firm web site was silent as to what obligation, if any, a client would have to pay the cost of translation fees.  At the time the web site provided that the law firm offered services in a number of foreign languages.
[7]             Approximately one year later, in February 2011, the law firm web site advertisement was changed and it said that translator fees are provided “at no cost to you”. Based on this change to the web site advertising, Ms. Hall, on behalf of the Defendants, submitted that there should be read into the fee agreement between the Plaintiff in this case and the law firm a provision that she would be held harmless for any translation fees and as such she ought not to be able to recover them on this assessment.
[8]             With respect, I do not agree. While I will not express a view as to whether or not there ought to be any recovery of a translation disbursement incurred for a client who retained the law firm after the change to the advertisement in February 2011, it is common ground that in February 2010 when the subject retainer was entered into there was no term in the retainer agreement that held the Plaintiff harmless for any translation fees.
[9]             There was no evidence before me to support any amendment to the existing retainer agreement between the Plaintiff and her law firm and based upon the concessions I have noted that were made by the Defendants, the disbursement is allowed.

Inadequate Notice of Application Criticized By the BC Supreme Court

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Reasons for judgement were released last week serving as a reminder that the new Rules of Court require fulsome arguments to be set out in applications filed with the Court.
In last week’s case (Dupre v. Patterson) the Defendant brought a summary trial application seeking to dismiss the Plaintiff’s lawsuit.  Not only was the application unsuccessful with the Court finding the Defendant at fault for the collision underlying the litigation, the Court went on to give the following criticism of applications that fail to set out adequate factual or legal arguments in their support:
[44]         Before concluding, I wish to say a few words about the material filed. 
[45]         The defendant’s notice of application filed July 3, 2013, did not comply with the Supreme Court Civil Rules.  The complete “Factual Basis” for the summary trial was set out on about three pages, double spaced.  The “Legal Basis” section said in its entirety:
1.         Rule 9-7
2.         Rule 14-1(12) – costs
3.         Motor Vehicle Act, RSBC1996, c. 318, Part 3, section 183(2)(c).
[46]         There was not even a brief statement to the effect of “The court should dismiss the action because” and then setting out the reason or reasons why, in the defendant’s submission, that should be the result.
[47]         In Zecher v. Josh, 2011 BCSC 311, Master Bouck was faced with a similar situation, where the Legal Basis section in particular of the notice of application was wholly inadequate.  Master Bouck described what was required in order to comply with the Rules and said:
[29]      The defendants’ application for production of wage loss particulars and a calculation of any wage loss claim was dismissed due to the inadequacy of the material and argument presented. Both the factual and legal basis for the application are wanting.
[30]      Form 32 of the SCCR [Supreme Court Civil Rules] lends itself to providing both the opposing party and the court with full disclosure of the argument to be made in chambers. Parties should put in as much thought to the necessary content of that Form as is done when preparing the supporting affidavits. When a party is represented, responsibility for that content lies with counsel.
[31]      No doubt the Lieutenant Governor-in-Council intended Part 3 of Form 32 to contain more than a cursory listing of the Rules that might support the particular application. For example, common law authorities can and should be included as well as a brief legal analysis. Such an analysis is particularly helpful given that parties are not able to present a separate written argument in civil chambers unless the application is scheduled to take two hours or more of court time.
[32]      In my experience and observation, a comprehensive legal analysis can easily be included in a 10-page notice of application. As well, Rule 8-1(4) allows the parties to include a list of authorities in the application record.
[33]      By providing an effective analysis of the legal basis for (or against) making the order, the parties may well be able to resolve the application without attending court.
[34]      As an aside, I should note that the sparse content of this particular notice of application is unfortunately not unique; many such inadequate notices have been presented in chambers.
[48]         I agree with and adopt Master Bouck’s comments concerning what a notice of application must contain.  The same will apply with respect to an application response (Form 33), and the notice of application and application response under the Supreme Court Family Rules (Forms F31 and F32).
[49]         In Fraser, Horn and Griffin, The Conduct of Civil Litigation in British Columbia, 2nd ed. loose-leaf (Markham:  LexisNexis, 2007) one of the leading texts on practice and procedure, the authors say this concerning the “Legal Basis” section of a notice of application, at p. 32-3 [notes omitted]:
            The notice must set out the rule, enactment or other jurisdictional authority relied on for the orders sought and any other legal arguments on which the order sought should be granted (Rule 8-1(4)(c)).  If appropriate, applicable cases may be cited.  The argument to be made in chambers should be fully disclosed and should contain more than a cursory listing of the rules that might support the particular application.
[50]         The requirements under the current Rules represent a fundamental change from the practice under the former Rules of Court.  Under the former Rules, Rule 44(3) and Form 55 (the form of notice of motion) only required a bare statement of the Rule or enactment relied upon.  An outline (see Form 125 and former Rule 51A(12)), outlining the legal arguments to be made, was then delivered later in the exchange of motion materials and prior to the hearing.  That is not the practice under the current Rules.
[51]         If a notice of application does not contain the information now required under the Rules, the party filing it has failed to give proper notice – to the opposing party and to the court – of the nature of the application.  However, all too frequently, counsel in both civil and family cases are signing and filing inadequate notices of application and application responses.  The notice of application filed in this case was not at all unique.  However, such documents do not comply with the Rules.
[52]         In contrast to the bare-bones notice of application filed on behalf of Ms. Patterson, the application response was comprehensive and, in the page limit allowed under the Rules, set out both a detailed summary of the facts and an analysis of the legal basis on which the plaintiff said the court should find the defendant liable.  It represents the standard expected by the court.
[53]         In this case, the inadequacy of the notice of application was compounded by defendant’s counsel tendering a 14-page written submission at the hearing.  Since the hearing was estimated and set for 90 minutes, this was in breach of Rule 8-1(16). 
[54]         Rarely will a judge or master refuse to receive a written argument from counsel, provided it is not being used to “sandbag” or take the opposition by surprise.  However, tendering a written argument at the hearing is neither an alternative to, nor a substitute for, setting out the “Legal Basis” in a notice of application or an application response in accordance with what the Rules and the case law require.
[55]         When counsel come to court with inadequate materials, which fail to comply with the Rules, judges and masters are placed in a very difficult position.  What often happens is that, to avoid the inconvenience and expense of an adjournment, matters proceed despite the inadequate materials, and judges and masters do the best they can in the circumstances.  But inadequate motion materials, which fail to comply with theRules, are incompatible with the efficient and timely disposition of applications.
[56]         If counsel are coming to court with inadequate material that clearly fails to comply with the Rules, and counting on being heard, they are misguided.  Judges and masters are entitled to expect that counsel will prepare application materials (including affidavits) that comply with the Rules, and do no less than this.  Counsel who come to court with application materials that do not comply risk having their applications at least adjourned, with potential cost consequences, until proper materials are filed.
[57]         That completes my ruling.