Tag: bc injury law

Latest ICBC Attempt To Stack Court System in Their Favour Declared Unconstitutional

This week the BC Supreme Court struck down regulations limiting the amount of disbursements a party can claim when prosecuting an ICBC claim as being both unconstitutional and contrary to administrative law principles.

By way of background, the current BC Government has taken many steps limiting the rights of BC crash victims in order to grow ICBC’s bottom line.  This culminated in full blown ‘no fault’ insurance taking away the rights of crash victims to sue those that injure them except in the most limited of circumstances.  There are many active claims, however, that pre-date the no-fault era and the Government has been trying their best to limit the rights of those victims in their disputes with ICBC.

In 2019 the BC Supreme Court found a rule limiting how many expert witnesses a plaintiff could rely on to be unconstitutional.  After this loss the BC Government took another kick at the can passing a regulation under the Evidence Act saying plaintiff’s could only recover disbursements totalling 6% the value of their claim in an ICBC fight.  This made crash victims face the unwelcome choice of either not bringing sufficient evidence to court or knowing that if they do they may not have the right to recover the costs of doing so.  Mr. Justice Smith presided over the challenge to this regulation in Le v. British Columbia (Attorney General) and this past week provided reasons striking it down both on administrative law and constitutional principles.  In doing so Justice Smith provided the following comments on the regulation:

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BC Court of Appeal Discusses Dual Role of Treating Physician as Expert and Lay Witness

Informative reasons for judgement were published last week by the BC Court of Appeal discussing the scope of what is permissible when a treating physician is called both as an expert witness and a lay witness (witness of fact).

In the recent case (Ford v. Lin) the Plaintiff was injured in a vehicle collision and sued for damages.  Following trial the Plaintiff appealed arguing treating physicians were unduly restricted by the trial judge when testifying.  The BC Court of Appeal found that no error occurred.  In doing so the Court provided helpful discussion on two points.  First the scope of permissible examination in chief from a party’s own expert under the current BC Supreme Court Rules.  Second the scope of permissible lay evidence that can be called from the same expert.

On the first point the Court noted as follows:

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Soccer Coach Sued For Allegations of Injury After Not Following Concussion Protocols

Interesting reasons for judgement were recently published by the Supreme Court of Nova Scotia allowing a lawsuit to continue against a youth soccer coach based on allegations that she made a concussion worse by allowing an athlete to continue playing contrary to concussion protocols.

In the recent case (Rutt v. Meade) the Plaintiff was injured in a vehicle collision and sued for damages.  The alleged injuries included a concussion.

A few weeks after the crash the Plaintiff  played in a national soccer tournament for her club.

The Defendants in the car crash lawsuit brought a third party action against the soccer club and the coach arguing it was negligent to allow the Plaintiff to play soccer while she was still dealing with concussive injuries from the crash and that participation in sport was contrary to the established concussion protocols and this added to her prolonged injury.   The coach and club asked to be let out of the lawsuit arguing they could not be responsible for the concussion which was caused by the car crash.

In denying the application and allowing the third party claim to continue the Court noted that depending on how the facts play out a coach could be found legally liable in such circumstances.  In allowing the claim to proceed  Justice Gail L. Gatchalian provided the following reasons:

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Nearly $800,000 In Damages Assessed Following Domestic Violence Leading To Physical And Psychological Injuries

Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, demonstrating that civil litigation can be an important tool to help achieve justice following physical assault where criminal repercussions alone fail to address harm caused.

In the recent case (Schuetz v. Pyper) the Defendant battered the Plaintiff is a domestic incident.  He was charged with criminal assault and plead guilty but was sentenced to an absolute discharge.  The civil repercussions, however, were far heftier.

Both parties sued each other claiming battery.  The Defendant’s claims were dismissed and the Plaintiff’s accepted.  It was found that the domestic battery led to a host of physical and psychological injuries.  These were summarized by the Court as follows:

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$99,000 Award Ordered After BC Store Owner Offers Employee Cash For Sex

An employer offered an employee cash for sex.  She declined.  The employer subsequently fired her.  The complainant initiated a Human Rights action where the Tribunal found improper sexual harrassment took place and ordered nearly $99,000 in total damages.

In the recent case (Ms. K v. Deep Creek Store and another, 2021 BCHRT 158) the Tribunal made the following broad findings of fact:

In this case Ms. K was 21 years old when Mr. Joung hired her to work for him at his
convenience store. As Ms. K’s much older, male boss, Mr. Joung misused his power to sexually
harass Ms. K. When Ms. K attempted to resist this sexual harassment, Mr. Joung made matters
far worse by creating a hostile work environment, and then firing Ms. K. After Ms. K filed a
human rights complaint related to this treatment, Mr. Joung set out to harass and intimidate
her by trespassing at her home in the middle of the night.

The Tribunal found the following legal wrongs were proven:

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“Biased” ICBC Expert Report Excluded From Evidence

Reasons for judgment were recently published by the BC Supreme Court, Vancouver Registry, ordering that an ICBC expert’s report was biased and not admissible at trial.

In the recent case (Didyuk v. Redlick) the Plaintiff was involved in three motor vehicle accidents and was claiming damages.  In the course of the lawsuits ICBC used their power to send the plaintiff to an independent medical exam.  This resulted in their expert authoring a report making numerous negative comments about the plaintiff’s credibility.  In finding that expert was outright biased and not allowing the report into evidence Madam Justice Ahmad provided the following reasons:

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$650,000 Damage Assessment Following Assault and Battery

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, ordering two defendants to pay over $650,000 in damages following an unprovoked attack.

In this week’s case (Andrews v. Shelemey) the Plaintiff alleged that the Defendants “came to his residence on August 3, 2015, as a result of a dispute concerning a transmission repair that Mr. Andrews had completed on Mr. Shelemey’s vehicle in late 2014 or early 2015. He says that without provocation, Mr. Shelemey and Mr. Leveque wrongfully and intentionally assaulted him resulting in serious injuries including a fractured sternum, soft tissue injuries to his back, rib fractures, a fractured lumbar vertebra, a broken tooth and various lacerations, bruises and contusions.”.

Despite the defendants denying fault the court found the unprovoked attack took place and held the Defendants jointly and severally liable to pay the damages.  In reaching this decision Mr. Justice Mayer provided the following reasons:

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Pandemic Did Not “Frustrate” Employment Contract Entitling Employee to Wrongful Dismissal Damages

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, which could help shed some light on a situation many are facing following this pandemic.  Whether the pandemic amounted to a frustration in a specific employment relationship.

In the recent case (Verigen v. Ensemble Travel Ltd) the Plaintiff worked for the Defendant in a travel industry related job.  When Covid hit the Defendant terminated her position.  They acknowledged they had no cause for doing so but argued the pandemic amounted to a ‘frustration’ of the employment contract.  In disagreeing that the contract was frustrated and finding the Plaintiff was entitled to damages in the amount of five months notice Mr. Justice Milman provided the following reasons:

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ICBC Blasted for Playing “Game of Chicken” With Injured Nurse

Reasons for judgement were published this week blasting ICBC for playing a “game of chicken” with an injury claimant in essence taking the claim to trial despite having no meaningful evidence or challenges to the plaintiff’s evidence.

In the recent case (Moon v. Yaranon) the Plaintiff was involved in a 2015 crash.  The Defendant admitted fault  The Plaintiff was a nurse and suffered chronic soft tissue injuries leading to partial disability.  ICBC had no evidence contradicting this.  Despite the lack of evidence ICBC took the case to trial where damages of over $822,000 were assessed for the long term injuries.  In admonishing ICBC and their ‘penny wise pound foolish’ strategy Mr. Justice Crerar issued the following reasons:

[3]             The defendant admits liability, and accepts that the plaintiff has suffered some injuries as a result of the accident. Causation is not disputed. The defendant does not advance a failure to mitigate argument, but asserts that the plaintiff’s conditions are readily manageable, even with the physical demands of a nursing career, and may resolve themselves in the future.

[4]             The defendant advanced no expert evidence. The defendant called only one witness: Mr Lai, a physiotherapist who treated the plaintiff in December 2015 and January 2016, just after the accident. His evidence lasted all of 10 minutes; he remembered almost nothing from his brief treatment of the plaintiff, nearly five years previous. Nor did the defendant advance hidden video or evidence from neighbours or associates indicating exaggerated disability, as is typical in personal injury cases. Such evidence is especially important where the credibility of the plaintiff or her experts is not significantly challenged on cross-examination, as in the present case. Its absence makes the task of the court exceedingly difficult in a case such as the present, where the injuries are not discernible by medical imaging or other objective means. Evidence of the existence and extent of the injury is presented through the subjective assertions of the plaintiff, both directly, and via expert testimony largely based, in turn, on those same subjective assertions.

[5]             These observations are not directed at all toward Mr Ross, who was only brought in as counsel a few months before trial, after most deadlines had passed for such evidence, and who was acting on his client’s instructions. Unfortunately, this strategy of contesting a plaintiff’s claim, and forcing a plaintiff to proceed to trial, in an effective game of chicken, is not confined to this case: this judge alone has presided over at least one other recent trial with minimal evidence, minimal cross-examination, and minimal argument, presented by the provincial automobile insurer qua defendant. [1]

 

 

RCMP “Voluntary” Wage Loss Payments Deducted from Member’s Tort Award

Reasons for judgment were published this week by the BC Court of Appeal addressing the common law principles of subrogation and double recovery in a BC tort claim.

In the recent case (Provost v. Dueck) the Plaintiff RCMP officer was involved in a crash and sued for damages.  At trial he was awarded various damages including $27,500 for past income loss for the months his injuries disabled him from work.  During this time of disability, however, the RCMP continued to pay his full wages.  Payments for other various benefits were made as well.  These payments “were not made pursuant to a collective agreement or any other contractual arrangement. Rather, they were made pursuant to the longstanding “practice or policy” of the RCMP to continue to pay the full wage benefits of injured officers during their convalescence“.

The BC Court of Appeal held that in these circumstances the RCMP enjoyed no true rights of subrogation and that the awards should not have been made in tort as they would constitute double recovery.  In ordering a deduction of these damages from the Plaintiff’s award the BC Court of Appeal provided the following reasons:

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

ERIK
MAGRAKEN

Personal Injury Lawyer

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

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