For those of you visiting this site after reading Mr. Mulgrew’s article published in today’s Vancvouer Sun, welcome.
If you are looking for more information on my comments on Bills 44, 52 and the BC Government’s Justice Reform Initiative you can find my previous articles here and here and here.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for various soft tissue injuries and a labral tear caused by a motor vehicle collision.
In this week’s case (Foster v. Kindlan and Pineau) the Plaintiff claimed damages from two motor vehicle collisions, the first in 2007, the second in 2009. Fault was not at issue in either claim. These collisions caused various soft tissue injuries and a labral tear which continued to pose difficulties for the plaintiff at the time of trial and were expected to continue into the future. In assessing non-pecuniary damages at $75,000 Mr. Justice Savage provided the following reasons:
[64] In this case the Plaintiff suffered soft tissue injuries to the neck, back, knee, and shoulder and a labral tear to her left hip. Prior to the 2007 Accidents she led a physically demanding lifestyle working as a fitness instructor, and had a high level of physical fitness. She was, however, transitioning out of this employment at the time of the 2007 Accident, by training for career as an LPN that would not involve fitness as part of her daily employment activity.
[65] Ms. Foster was not entirely asymptomatic from her 2005 Accident at the time of the 2007 Accident. It is also apparent that she has had ongoing back issues that required periodic chiropractic treatment unrelated to the 2007 Accident and 2009 Accident. She also had an earlier knee injury that required surgery. These factors affect the “original position” to which Ms. Foster must be returned by the award of damages.
[66] I find it unlikely that Ms. Foster will have surgery to the labral tear, based on the opinions of Dr. O’Connor and Dr. Gilbart, whose opinions are to be preferred over that of Dr. Sam. Dr. O’Connor and Dr. Gilbart have more specialized experience in this area than Dr. Sam, who is a general family physician. While Ms. Foster experiences pain during her physically demanding employment activities, she is able to take extended (one week or longer) motorcycle trips without any impairment that is apparent to her companions. The videotape evidence shows a cautious rider but not one prevented from enjoying this pursuit.
[67] Ms. Foster has suffered emotionally during periods where she has not been able to work. However, her emotional state has not prevented her from taking foreign holidays and motorcycle trips to the Sunshine Coast, Tofino, the East Kootenays and Idaho, and local trips to Chilliwack, Harrison Hot Springs and the Tri-cities area. Moreover, her emotional issues have had a variety of causes, including relationship issues which are admittedly unrelated to the two accidents.
[68] I have reviewed the cases provided by counsel. There are aspects of those cases that are helpful, but there are also differences that prevent direct application. The Defendants’ cases generally involve less seriously injured persons. Many of the cases submitted by the Plaintiff involve a prognosis for chronic daily pain. That is not the prognosis for Ms. Foster. In the circumstances, I award $75,000 in non-pecuniary damages.
While ICBC can deduct Canada Pension Plan disability benefits from an UMP Claim, can the same be done for additional “Children’s Benefits” paid by the CPP? Arbitrator Yule addressed this question in an UMP Arbitration Decision that was recently provided to me. In short Arbitrator Yule held that Children’s Benefits are non-deductible.
In the unpublished decision (H v. ICBC) the Plaintiff was awarded damages following a jury trial. The Plaintiff applied for payment under his own UMP Coverage as the at-fault motorist was underinsured. While the parties largely agreed on the deductibility of past CPP benefits from ICBC’s payment obligations, they could not agree on whether the additional CPP funds the Plaintiff received as “Children’s Benefits” were deductible. In finding that they were not Arbitrator Yule provided the following reasons:
37. In one sense it may well be thought that it must be a “benefit” to the Claimant to receive money (which must be paid to him in these circumstances) under a statutory scheme (the CPP) which imposes no constraint on his use of the monies. On the other hand, it seems to me the underlying rationale for the payment of the disabled cobtributor’s child’s benefit is the expectation that the money will be used by the recipient in a general way in the partial discharge of the recipient’s legal duty to support and maintain the children who are entitled to the benefits. In this sense, I think the benefit or right is that of the child and not of the parent or custodial person. It is significant that the benefits payable under Division A of Part II of the CPP, one is described as “a disability pension” (what the Claimant receives on account of his own disability) and another – the benefit at issue – is described as “a disabled contributor’s child’s benefit” [emphasis added]. It is difficult to transform what the statutory CPP scheme describes as “a child’s benefit” into the parent’s/custodial person’s benefit for the purpose of s. 148.1(1)(i). At least here where the monies are payable under another statutory scheme, I think “benefit: or “right” in s. (f.2) should be guided by the description of the benefitin the statory scheme, and where the statutory scheme itself defines the benefit as the child’s beneift, it shoudl be considered to be the child’s benefit. This interpretation also maintains consistency with the construction of ss. (f.2) where I have concluded that the entitlement to the child’s benefit is that of the child.
38. Accordingly I conclude that the children’s benefits paid to the Claimant are not deductible from his UMP Compensation.
Like many UMP Cases, This decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.
One of the changes in the new BC Supreme Court Civil Rules is the requirement for parties to produce a list of witnesses in their trial brief to be exchanged 7 days prior to a Trial Management Conference.
In addition to this Rule 12-5(28) prohibits a party from calling a witness who was not listed “unless the court orders otherwise“. The first reasons for judgement that I’m aware of addressing this subrule were recently shared with me.
In the unreported case (Topkins v. Bruce) the Defendant attempted to call an unlisted witness at trial. Mr. Justice Curtis refused to allow the witness to testify providing the following reasons:
[4] …The new Rules say that you must give a list of your witnesses no later than 28 days before the trial, or the Trial Management Conference. There is a Trial Management Brief, which happebd to be late filed; that is not a big deal, a late filing, but it just adds to the approach, I guess. Although the defendant knew that Mr. Simm existed, the Trial Management Brief says “lay witness number one” and “lay witness number two”. This not only does not conform with the Rules, but if permitted would deliberately frustrate them.
[5] The purpose of knowing who the witnesses are is so that the other side can prepare their case, and the Judge, if they want, can order a statement concerning the witnesses, as well as estimate the proper lenght of trial.
[6] At the Trial Management Conference, September 30th, a direction was given that the witness list will be provided at a subsequent date. The name of the witness was not provided until after that date. The explanation is taht the address for the witness was not discovered until later.
[7] In the circumstances of this case, I am not prepared to allow Mr. Simm to testify, because one, I do not think his evidence is going to be particularly relevant in the circumstances of the case; two, his name was not disclosed, although it was known at the Trial Management Conference, and three, he name was not disclosed, although known, on the date that the Trial Management Conference Judge had directed that his name be given.
To my knowledge this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with the issue of vicarious liability following an assault.
In this week’s case (Van Hartevelt v. Grewal) the Plaintiff was involved in a physical altercation with the Defendant R. Grewal. While there were competing versions of what occurred Mr. Justice Savage found that this Defendant pummelled the Plaintiff “with his fists…sending him to the ground” then “kicked (the Plaintiff) forcefully in the ribs as he lay on the floor“.
The Defendant was found liable and ordered to pay over $65,000 in damages including punitive damages.
The Defendant was the son of the owners of the Rani Lynn Apartments which is where the altercation took place. The Plaintiff was a tenant there. The Plaintiff also sued the owners arguing they ought to be found vicariously liable for the assault. Mr. Justice Savage agreed and found the owners jointly and severally liable (except for the punitive damage award). In doing so the Court provided the following reasons illustrating that vicarious liability can flow beyond a formal employer/employee relationship:
[52] I accept Mr. G. Grewal’s evidence that he did not charge family members rent while they were living at the Randi Lynn. However, he did not charge rent to Mr. R. Grewal, and at other times other relatives living at the Randi Lynn on the expectation that they would perform services for him at the apartment…
[54] …As a family member receiving free rent Mr. R. Grewal was beholden to the Second Named Defendants and was expected to do their bidding at the Randi Lynn…
[64] While it is true that independent contractors will not generally attract such liability and that employees generally will, it is not the case that the employer/employee relationship is the only one that can attract vicarious liability…
[65] Therefore, the main considerations in the present case are whether the relationship was sufficiently close to justify the imposition of liability, whether the tort was sufficiently connected to the assigned tasks of the tortfeasor to be regarded as the materialization of the risks created by the enterprise, and whether the imposition of liability would satisfy the policy goals outlined in Bazley. I answer all of these questions in the affirmative.
[66] The reason that employers are often found to be vicariously liable whereas those hiring independent contractors are not is that in the former case, the employer has created the risk and is in the best position to mitigate it. Thus, it is both efficient and fair to impose vicarious liability. In the present case, although it was not a typical employment relationship, the Second Named Defendants created the risk associated with Mr. R. Grewal, were or should have been aware of the risk, and were in the best position to mitigate this risk.
[67] The Second Named Defendants were aware of the violent history of Mr. R. Grewal and were aware of the recent confrontation between Mr. R. Grewal and Mr. Van Hartevelt; a confrontation that arose in the context of Mr. R. Grewal’s role as an on-site owner representative. As such, the risk of violent confrontations initiated by Mr. R. Grewal was caused by the enterprise of the Second Named Defendants and they were in a unique position to mitigate this risk. They were specifically made aware of the risk by Mr. Van Hartevelt’s letter of July 12, 2006. The fact that the Second Named Defendants did not take steps to mitigate the risk renders them blameworthy.
[68] There is also the assertion, albeit made by Mrs. R. Grewal, that the ‘owners’ of the building were entitled to enter Mr. Hartevelt’s suite. This was made in the presence of Mr. R. Grewal. Mr. R. Grewal, rather than correcting this misapprehension, schooled as he was in tenancy matters, remained and the events followed.
[69] In my opinion there is a sufficiently close relationship to justify the imposition of vicarious liability in this case.
As previously noted, BC’s Government and Judiciary are involved in a public row with the Government accusing the Courts of being inefficient and the Judiciary responding with complaints of underfunding. Additionally these two branches of Government are involved in litigation with the BC Court of Appeal recently upholding an order forcing the Government to produce otherwise confidential Cabinet submissions in a salary dispute with the BC Provincial Court.
Enter Bill 44. This legislation, which just passed first reading, seeks to create “Civil Resolution Tribunals” which will run side by side with BC Courts. Their jurisdiction is anticipated to be ever-expanding by simple Order in Council with the ability of the Government to include anything that “could be dealt with by a Claim in Provincial Court under the Small Claims Act”.
Perhaps the most troubling aspect of this scheme is set out in Section 20 which holds that, except in very limited circumstances, parties must “represent themselves“. It does not take much imagination to understand that stripping people of the right to a lawyer provides a great advantage to institutional litigants.
The Government sets out that this legislation is designed to create “accessible, speedy, economical, informal, and flexible” dispute resolution. Although these goals are laudable, on scrutiny the Government does not appear to put its money where its mouth is with Section 9 specifically exempting claims against the Government from the jurisdiction of these tribunals.
As Vaughn Palmer points out, this Bill is included in a “loaded up” legislative agenda making full scrutiny difficult with limited time. Legislation taking disputes away from the judiciary and further stripping people of the right to representation deserves public scrutiny. I imagine BC’s Provincial Court judges will have strong opinions on the matter as well. Whether these are voiced remains to be seen.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with the admission of evidence relating to diminished earning capacity in which the Court highlights the ability of lost opportunities being proven through factual, as opposed to opinion, evidence.
In this week’s case (Fabretti v. Singh) Plaintiff was employed as a Regional Vice President at an independent financial services organization. The Plaintiff was injured in a collision and advanced a claim for diminished earning capacity.
In the course of the claim the Plaintiff obtained a report from his employer’s National Sales Director who provided evidence with respect to the Plaintiff’s employment opportunities. The Defendant objected to the admissibility of this report for a number of reasons. Mr. Justice Savage ultimately held that the report was not admissible as it was not written by a ‘properly qualified expert‘.
The Court noted, however, that much of the evidence could likely be admitted simply as a matter of fact (as opposed to opinion). In doing so the Court provided the following reasons:
[19] In this case, the subject matter of Mr. Andruschak’s Report is the plaintiff’s future earning capacity. However, Mr. Andruschak’s experience is properly viewed as concerning the earning possibilities for RVPs at Primerica generally; his experience is not in preparing objective reports on how such earning possibilities might manifest themselves in specific individual into the future.
[20] Thus, while having firsthand knowledge and experience in RVPs’ earning potential at Primerica, based on their actual earnings, which is information that may be useful to the Court, Mr. Andruschak does not offer particular expertise in the subject matter of the Report, purporting to prepare an objective estimate of future income and thus income loss for a specific person. As such, on the basis that Mr. Andruschak does not qualify as an expert, the Report cannot be admitted on that basis.
[21] Given my findings regarding Mr. Andruschak’s qualifications as an expert, it is unnecessary for me to canvass the defendant’s arguments regarding the Report’s formal compliance with the Rules. As I have said, however, much of the information in the report is potentially relevant and germane. I will leave it to counsel to review and discuss that matter amongst themselves. If required I will make further rulings on the proposed evidence. It may be that Mr. Andruschak’s evidence would be better presented simply viva voce with the assistance of a few graphs or charts.
Reasons for judgement were released last week in an ICBC UMP claim dealing with multiple defence medical exams in the context of a serious injury claim.
In last week’s case (G v. ICBC) the Claimant suffered a “severe traumatic brain injury” in a 2008 collision. The at fault motorist was underinsured and the Claimant applied for payment of damages under his own UMP coverage with ICBC.
In the course of arbitration the Plaintiff agreed to be assessed by five different physicians of ICBC’s choosing. These included two neuropsychologists, a neurologist, a psychiatrist and a physiatrist. ICBC then requested a further assessment, specifically a Multi-Disciplinary Fetal Alcohol Syndrome Disorder Assessment over the course of two days. The Claimant refused resulting in an ICBC application to compel attendance.
The parties agreed to apply the BC Supreme Court Rules in the course of the arbitration (click here to read an article discussing the lack of jurisdiction for an UMP Arbitrator to compel an independent medical exam when the BC Supreme Court Rules are not used). In dismissing the application Arbitrator Yule canvassed some of the well known authorities considering BC Supreme Court Rule 7-6(1) and (2). Arbitrator Yule provided the following summary of the applicable legal principles:
49…
1. An order for a subsequent medical exam is discretionary but the discretion must be excercised judicially;
2. Independent medical exams are granted to ensure “a reasonable equality between the parties in the preparation of a case for trial”; reasonable equality does not mean that a defendant should be able to match expert for expert or report for report;
3. A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert; there must be some question or matter that could not have been dealt with at the earlier examination; and
4. There is a higher standard required where the Defendant seeks subsequent medical exams.
Arbitrator Yule went on to rule that the playing field was reasonably equal after five ICBC directed medical exams such that a further exam was not warranted. He specifically pointed out that ICBC’s experts already opined on the issue of pre-existing fetal alcohol disorder without reservation and a further report would simply seek to bolster these opinions.
As of today’s date this judgement is not yet publicly available. As always, I’m happy to provide a copy to anyone who contacts me and requests one.
In my ongoing efforts to summarize historic UMP Arbitration decisions, I have recently been provided a 2005 arbitration award dealing with several issues including the deduction of CPP benefits in circumstances where a Plaintiff was found contributorily negligent.
In the 2005 case (H v. ICBC) the Claimant was injured in a 1996 collision. His claim proceeded to trial and his damages were assessed at just over $316,000 by the Jury. The Plaintiff was also found 10% contributorily negligent for failing to wear a seat belt.
The Defendant was underinsured and the Plaintiff applied under his own UMP Coverage for payment of damages. The Plaintiff had received CPP disability benefits of just over $65,000. ICBC sought to deduct the whole of this amount from the Plaintiff’s UMP claim. The Plaintiff opposed arguing that only 90% of the past payments should be deductible in keeping with the Jury’s finding.
Arbitrator Yule disagreed with the Plaintiff finding CPP benefit deduction can’t be reduced due to a contributory negligence finding. In coming to this conclusion Arbitrator Yule provided the following reasons:
8…Section 148.1(5) provides that an award of UMP compensation shall not exceed the amount of damages awarded, “minus the sum of the applicable deductible amounts”. As noted previously, one of the deductible amounts is an amount to which the insured is entitled under the Canada Pension Plan. On its plain wording, the full amount of the disability benefits to which the Claimant is entitled under the Canada Pension Plan are to be deducted from his UMP Claim. There is nothing in the wording of the UMP Regulations to suggest that deductible amounts are to be reduced in accordance with the percentage recovery of the Claimant. As the Respondent correctly argues, Part 7 payments, which a re also a deductible amount, are deducted in full regardless of the percentage recovery of a Claimant.
Like many UMP Cases, This decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.
As previously discussed, one of the limits of examination for discovery evidence at trial is that it is generally only admissible against the person being examined. Rule 12-5(46) permits the Court to make exceptions to this restriction in appropriate circumstances. Reasons for judgement were released earlier this year by the BC Supreme Court, Vancouver Registry, addressing one such exception.
In the recent case (Yamakami v. Whittey) the Plaintiff was injured in an intersection crash. Fault was contested. In the course of the lawsuit the Defendant was examined for discovery. Prior to trial the Defendant died.
The Defendant’s lawyer wished to rely on his examination transcript at trial in support of the Defence case. Mr. Justice Fitch allowed this finding it was necessary to do so. Interestingly, although the Court admitted the evidence finding that an examination for discovery created the necessary safeguards to meet the principled exception to the hearsay rule, the Court ultimately placed little weight on the Defendant’s version of events. In allowing the evidence to be introduced Mr. Justice Fitch provide the following reasons:
[3] Mr. Whittey, who was 81 years of age when the accident occurred, died before trial but after his examination for discovery was completed on May 11, 2010. Counsel for the defendants applied at the outset of the trial to have his examination for discovery admitted in evidence for the truth of its contents under the principled approach to the hearsay rule. The application was opposed. As Mr. Whittey was deceased at the time of trial, the necessity criterion was met. Counsel for the plaintiff argued that despite the existence of process-based substitutes compensating for the loss of an ability to engage in contemporaneous cross-examination of the defendant (the oath, cross-examination and the existence of a verbatim record of the examination for discovery) the evidence Mr. Whittey gave on the examination for discovery was so inherently unreliable that the test of threshold reliability at the admission stage was not met. In oral reasons for judgment delivered November 4, 2011, I concluded that the process-based compensators present in this case provided a satisfactory basis for evaluating the reliability of the evidence in issue. Accordingly, I exercised my discretion to admit the evidence but made clear that it was for me, at the end of the day, to determine the ultimate or actual reliability of the evidence and the weight it should be accorded.