Tag: bc injury law

$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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ICBC Hit With Special Costs Award For “Reprehensible” Lawsuit Tactics

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, finding ICBC is liable to pay special costs for ‘reprehensible’ conduct in litigation.

In the recent case (Zhang v. 328633 BC Ltd) the Plaintiff was injured while riding as a passenger in a bus.  A truck driver made an unsafe lane change in front of the bus.  This caused the bus driver to brake forcefully throwing the plaintiff from her seat leading to multiple injuries.  The truck driver did not remain at the scene of the incident and was unknown.  The Plaintiff sued both the bus driver and ICBC as a statutory defendant in place of the unidentified truck driver, a legal remedy available under s. 24 of the Insurance (Vehicle) Act.  ICBC had video evidence from the bus as to what actually occurred but failed to produce this for years.  They also denied that a s. 24 claim existed until deep into the trial.

The bus driver was not paying adequate attention at the time and the court found both the bus driver and truck driver shared liability.

As a result of ICBC’s late production of crucial evidence and unreasonable denial as to the merits of the s. 24 claim the presiding judge found ICBC should pay special costs.  In reaching this conclusion Mr. Justice Branch provided the following reasons:

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Court Tells Bikers its an Abuse of Process Denying Civil Liability Following Criminal Conviction

If you’re charged with a crime and plead guilty, or are found guilty to the criminal standard of ‘beyond a reasonable doubt’, it is generally considered an abuse of process to deny fault when sued for the same underlying conduct based on the lesser civil standard of ‘balance of probabilities’.  Two members of a motorcycle club learned this lesson the hard way.

In the recent case (Thatcher v. Lowe) the Plaintiff sued several defendants for assault, battery, intentional infliction of mental suffering and false imprisonment following a 2016 confrontation.  Prior to this defendants were charged criminally and plead guilty.  The court summarized the following key facts from the guilty plea:

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Sucker Punch in Bar Leads to $226,000 Civil Judgment Against School Teacher

Getting in a bar fight is seldom a good idea.  Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, providing 226,000 reasons to think twice before doing so.

In today’s case (Thompson v. Fraser) the Defendant, who was employed as a school teacher, got into an altercation with other patrons at the lounge bar of Vancouver’s Pan Pacific Hotel.  The Plaintiff, a security guard, was called to deal with the situation and proceeded to escort the Defendant out.  The Defendant then “sucker-punched the plaintiff in the face, badly and permanently damaging the bony structure around his left eye.“.  The court described it as “a thoroughly disgraceful incident.”

The Defendant was criminally charged and convicted of assault causing bodily harm.  The criminal consequences were “extremely lenient” with the imposition of a mere conditional discharge.   Mr. Justice Baird, presiding over the civil suit, opined  “part of the reason for this, I have no doubt, was the understanding that eventually he would have to answer for his misconduct in a civil lawsuit and, in all likelihood, pay the plaintiff a sizeable sum in damages.”

The assault caused serious injury requiring”metallic gear fused into his facial bones that causes him significant pain and discomfort when it is cold outside. There is a screw directly beneath his left eye that he can feel with his finger and causes a great deal of pain on incidental contact.“.

In assessing global damages at $266,000 including $10,000 for aggravated damages Mr. Justice Baird provided the following reasons:

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$92,000 Diminished Capacity Award Despite “80-90%” Recovery From Chronic Soft Tissue Injuries

Reasons for judgment were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for largely recovered but lingering soft tissue injuries and chronic pain following a collision.

In the recent case (Bhumrah v. McLeary) the Plaintiff was injured in a collision caused by the Defendant.  The Defendant accepted fault for the rear end crash.  The collisions resulted in soft tissue injuries.  Despite enjoying “80-90%” recovery the Plaintiff had lingering chronic pain and depression secondary to these injuries.  The injuries were “expected to continue, to some degree, into the future as well. “.

The Plaintiff was employed as commercial transport mechanic.  He missed considerable time from work but eventually was able to return.  Despite this there was evidence that the lingering injuries were not particularly compatible with work of this physicality.   In assessing damages for diminished earning capacity at $92,000 Madam Justice McDonald provided the following reasons:

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Contact

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

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