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Disjunctive Nature of Rule 15 Confirmed by BC Supreme Court

Written by admin on . Posted in BCSC Civil Rule 15, Uncategorized.


Earlier this year Master Bouck found that Rule 15 applies to cases worth below $100,000 regardless of length of trial and conversely to cases worth more than $100,000 where the length of trial is three days or less.  This reasoning was confirmed in reasons for judgement released this week by Mr. Justice Grist.
In this week’s case (Sandhu v. Roy) the Plaintiff was injured in two separate motor vehicle collisions.  He sued for damages and both actions were set for hearing, by consent, at the same time.  ICBC unilaterally put the cases into Rule 15 and set a trial for three days.  The Plaintiff applied to remove the case from Rule 15 arguing the case did not meet with its requirements given the value of the claims and the length of trial necessary.
ICBC argued that liability was “not seriously in dispute” and the trial can be completed in three days.  Mr. Justice Grist found with liability denied in the pleadings the case was not suitable for fast track litigation and ordered the matter removed from Rule 15 (unless ICBC formally admitted liability within 14 days).  In doing so the Court provided the following reasons confirming the Disjunctive nature of the fast track Rule:

[12] The defendants’ point that the prerequisites for a Fast Track Notice are listed disjunctively is sound. In Hemani, Master Bouck recognized the disjunctive list of criteria in Rule 15-1(1), as allowing for a case requiring more than three days to be set on Fast Track, and held that an action will not be removed from Fast Track on an application under 15-1(6) for that reason alone. Rule 15-1, however, presents something of a conundrum on the question of removal of an action from Fast Track as a result of an estimated trial length beyond three days. If the action proceeds to a Trial Management Conference, Rule 15-1(14) applies:

If trial will require more than 3 days

(14)      If, as a result of the trial management conference in a fast track action, the trial management conference judge considers that the trial will likely require more than 3 days, the trial management conference judge

(a)        may adjourn the trial to a date to be fixed as if the action were not subject to this rule.

[13] In a case like this one, where only three days are set aside for trial and the circumstances indicate that significantly more days are required, should the matter proceed to a Trial Management Conference, the court would in most cases be forced to require a second trial date be set, and may often be called on to remove the action from the strictures of the Rule…

[16] I find merit in plaintiff’s application and would accede to the adjournment of the trial and removal of the action from the Fast Track Program. I consider, however, that the orders may not ultimately be necessary if liability for the two collisions were to be admitted. Defence counsel should be given the opportunity to re-assess his position once the effect of this decision is known. Accordingly, I will stipulate that the two orders will become effective should the liability issues not be settled within 14 days of these Reasons.

Maternity Leave EI Benefits Not Deductible in ICBC UMP Claims

Written by admin on . Posted in ICBC UMP Cases, Uncategorized. 49 Comments on Maternity Leave EI Benefits Not Deductible in ICBC UMP Claims


Since ICBC’s Underinsured Motorist Protection coverage is a “fund of last resort” there are many deductions ICBC is entitled to take advantage of before paying funds out to Claimants.  These deductions, however, do have limits and this was demonstrated in an UMP Arbitration Determination released last year.
In last year’s claim (Undisclosed v. ICBC) the three claimants were awarded damages after receiving injuries from an underinsured motorist in Washington State.   One of the Claimant’s damages included $95,000 for past income loss.  ICBC argued that $65,000 should be deducted from this assessment for EI benefits that the Claimant was or would be entitled to as a result of section 148.1(f.1) of the Insurance (Vehicle) Regulation.
Arbitrator Camp rejected ICBC’s argument and reduced the amount by a much more modest $3,034 figure which was the sum the Claimant actually received from EI.   In refusing to make the greater reduction advanced by ICBC Arbitrator Camp noted that EI Maternity Benefits are not deductible in UMP Claims finding as follows:
57.  Other than pure speculation as to future EI benefits, some of which may indeed be predicated on maternity which is completely unrelated to the underlying facts and circumstances giving rise to the UMP award and therefore to any issue of deductibility, ICBC has led no evidence pertaining to the deductibility of EI benefits.  I therefore find that ICBC has not met the onus of proving any amount to be deducted with respect to future EI benefits.

Examination For Discovery Transcripts and the Adverse Party Limitation

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure, Uncategorized. 59 Comments on Examination For Discovery Transcripts and the Adverse Party Limitation

Although examination for discovery transcripts can be read into evidence at trial, the Rules of Court limit the evidence to being used against “the adverse party who was examined“.  In other words, a litigant can’t use their own transcript to bolster their own case.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this limitation.
In last week’s case (Haughian v. Jiwa) the Plaintiff was involved in a motor vehicle collision.  The Defendant brought a summary trial application seeking to dismiss the claim.  The Plaintiff produced an affidavit which stated that “in my examination for discovery I described precisely how the accident occurred”  and went on to attach “as an exhibit 29 pages for her examination for discovery conducted by counsel for the defendants“.
The Defendant objected to this evidence arguing it was inadmissible.  Mr. Justice Punnett agreed and provided the following reasons explaining the limitation of discovery evidence at trial:

[8] The plaintiff’s affidavit appends portions of her examination for discovery by counsel for the defendants.  The defendants object to the tendering of discovery evidence in this way.

[9] Summary applications are based on affidavit evidence.  However, they are still trials and as such are governed by the rules and evidentiary requirements of a regular trial.  The followingSupreme Court Civil Rules (the “Rules”) are relevant:

9-7(5)  Unless the court otherwise orders, on a summary trial application, the applicant and each other party of record may tender evidence by any or all of the following:

(a)        an affidavit;

…

(c)        any part of the evidence taken on an examination for discovery;

…

[10] However, the breadth of the statement in part (c) above is restricted by Rule 12-5(46) which provides:

(46)      If otherwise admissible, the evidence given on an examination for discovery by a party … may be tendered in evidence at trial by any party adverse in interest, unless the court otherwise orders, but the evidence is admissible against the following persons only:

(a)        the adverse party who was examined;

…

[12] The defendants’ objection is that only the defendants can tender the plaintiff’s examination for discovery evidence.  They rely on the rules cited above as well as Tesscourt Capital Ltd. v. FG Nutraceutical Inc., 2011 BCSC 814; Mikhail v. Northern Health Authority (Prince George Regional Hospital), 2010 BCSC 1817; Schwartz v. Selkirk Financial, 2004 BCSC 313; Pete v. Terrace Regional Health Care Society, 2003 BCCA 226; Great Canadian Oil Change v. Dynamic Ventures et al, 2002 BCSC 1295, and Shiels v. Shiels (1997), 29 B.C.L.R. (3d) 193 (S.C.).

[13] I am satisfied that the discovery evidence sought to be introduced by the plaintiff cannot be relied upon by the plaintiff for the truth of its contents.

Welcome Georgia Straight Readers

Written by admin on . Posted in BC Injury Claims Media Archives, Uncategorized.


Earlier this week I had the pleasure of being interviewed by Carlito Pablo of the Georgia Straight who was writing an article on the recent BC Court of Appeal decision clarifying ICBC’s obligations to fund massage therapy treatments.  In short BC’s highest court found that massage therapy is a “mandatory” as opposed to a “discretionary” benefit and needs to be funded for accident victims where it is medically reasonable and necessary.
For those of you who are visiting this site looking for more information addressing this topic you can click here to read my previous post addressing this development and here for my archived posts addressing issues concerning ICBC’s no-fault benefits.

Motorist Cutting Vehicle Off While Parking Found Fully Liable for Crash

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 59 Comments on Motorist Cutting Vehicle Off While Parking Found Fully Liable for Crash

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing a personal injury lawsuit arising from a 2008 collision which occurred in Burnaby, BC.
In this week’s case (Haughian v. Jiwa) both the Plaintiff and Defendant were travelling Eastbound on Sunset Street.  The Plaintiff was in the inside lane and the Defendant was behind in the curb lane.  Although the Court heard competing versions of how the collision occurred it was ultimately accepted that the collision occurred as the Plaintiff attempted to pull into a parking spot on the right hand side and failed to realize the Defendant was approaching.  As can be seen from the below photo the parking spots are bizarrely positioned on this stretch of road facing away from the eastbound traffic.

As the Plaintiff pulled in the Defendant’s left front corner hit the Plaintiff’s right side passenger door.  In finding the Plaintiff fully at fault and dismissing the lawsuit Mr. Justice Punnett provided the following reasons:

[83] The evidence of the defendant is that the plaintiff turned across his lane without signalling her intentions.  The plaintiff’s assertion that she first saw the defendant when he was 4 to 5 parking spaces away is consistent with the defendant’s evidence that the turn was made immediately in front of him.  The defendant states he was not speeding.  The speed limit was 50 km per hour.  The distance involved on the evidence of the plaintiff was limited.  The resulting time available to the defendant to react was also limited.  That reaction time is to be judged by the “the standards of normal persons and not by applying the standards of perfection” (Tucker at p. 554).

[84] The actions of the plaintiff would not be anticipated by a reasonable person.  Her conduct was so out of the norm that the defendant would have no reason to anticipate her attempt to park by crossing over his lane of travel.  There was no evidence that such a manoeuvre was common practice.  At best, had she signalled, the expectation of a reasonably competent driver would be that she was signalling a lane change.  As required by s. 151 of the Act, the plaintiff had the obligation to ensure that her movement towards the parking space could be completed safely and not affect the travel of the defendant driver.

[85] The plaintiff has failed to establish that the defendant had the time, distance or opportunity to react and avoid the plaintiff.  The evidence of the defendant is consistent with the physical evidence; that of the plaintiff on either of her versions is not.  As noted in Haase, any doubts are to be resolved in favour of the defendant.

[86] For these reasons I am satisfied that the necessary findings of fact can be made in this summary application and that it is not unjust to do so.  I am satisfied that the plaintiff was solely responsible for the accident and that no liability rests with the defendant.  The plaintiff’s claim is dismissed.

Provincial Court BackLog Justifies Modest Injury Trials in BC Supreme Court

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 9, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 1 Comment on Provincial Court BackLog Justifies Modest Injury Trials in BC Supreme Court


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff damages and costs for modest injuries following a motor vehicle collision.  Although the claim was straight-forward and damages were within the jurisdiction of the Small Claims Court, the Plaintiff was awarded costs with Mr. Justice Burnyeat finding that the Supreme Court’s summary trial process is a reasonable alternative to the backlog litigants face in Small Claims Court.
In today’s case (Parmar v. Lahay) the Plaintiff sustained a modest whiplash injury as a result of motor vehicle collision.  ICBC ran the “Low Velocity Impact” defence arguing no compensation should be awarded.  The trial proceeded summarily and took less than one day.  The Plaintiff’s evidence was accepted and non-pecuniary damages of $12,000 were awarded.
The Court went on to award costs despite the modest quantum.  In doing so Mr. Justice Burnyeat provided the following reasons:

[9] I cannot reach the conclusion that the legal or factual complexity of the case, the need for discovery of documents and examination for discovery, and the need for a judgment enforceable outside of British Columbia are applicable reasons why this action was commenced in the Supreme Court of British Columbia rather than in Provincial Court.  However, I am satisfied that the summary trial procedure available in the Supreme Court and the availability of costs makes the Supreme Court a preferable and justified forum for this Action.

[10] I take judicial notice that this case reached the Court for decision much more quickly than if the Action had been commenced in the Provincial Court.  In this regard, I take judicial notice of the absence of a considerable number of judges at the Provincial Court level and the backlog in hearing matters that the failure to appoint more judges has produced.

[11] I also take into account the ability of the Plaintiff to have costs awarded in this Court but not in Small Claims Court.  In that that regard, I adopt the reasoning of Harvey J. in Zale v. Colwell, 2010 BCSC 1040, where he states:

In each of the above three decisions [Spencer v. Popham, supra; Faedo v. Dowell, 2007 BCSC 1985; and Kanani v. Misiurna, 2008 BCSC 1274] the primary reason for awarding the plaintiff costs, in circumstances not unlike these facing the plaintiff here, was the consideration that given the need to retain counsel to battle an institutional defendant, a reasonable consideration in determining the forum is the matter of indemnity for the costs of counsel.  (at para. 14)

[12] I also adopt the statement of Humphries J. in Kanani, supra:

… in a situation where the defendant put the plaintiff to the proof of having suffered any injury at all, thus making her credibility a crucial issue at trial, it was reasonable for the plaintiff to require the assistance of counsel.  She was therefore justified in commencing the action in Supreme Court where she could hope to recover some of the costs it was necessary for her to expend in retaining counsel to recover the compensation to which she was found to be entitled. This reasoning has application here as well. (at para. 8).

[13] I take into account that it may well be economically unrealistic for counsel to be retained for up to three appearances in Small Claims Court where the damages sought are nominal.  This must be contrasted with the institutional defendant and its unlimited resources.  In an action in Supreme Court, counsel for a plaintiff is only required to appear once in Court if an application pursuant to Rule 9?7 of the Supreme Court Civil Rules is appropriate.  In the case at bar, the application has taken approximately one hour.

[14] In the circumstances, I am satisfied that the Plaintiff should be entitled to his costs throughout on a Party and Party (Scale B) basis.

ICBC Proposed Insurance Rate Hike: The Straight Goods on Why Its "Needed"

Written by admin on . Posted in Tort Reform, Uncategorized. 57 Comments on ICBC Proposed Insurance Rate Hike: The Straight Goods on Why Its "Needed"


Earlier this week ICBC released their 3rd Quarter financial results with an accompanying press release stating that they will be seeking a modest increase in basic insurance coverage rates to counteract the consequences of “rising bodily injury costs and falling investment income“.
ICBC is looking at an annual rate increase of about $30.  Yesterday ICBC’s CEO wrote an Open Letter To Customers stating that “Today, however, we are facing new pressures. Like other companies and individuals, the challenging world financial markets are negatively affecting us. While our investment returns continue to perform well against the markets, our investment income has dropped by $38 million compared to last year. Our best estimate is that our investment income at year-end will be $90 million less than in 2010.”
While it is true that ICBC’s investment income is down and claims  payouts fluctuate year to year, those reasons don’t explain why a rate hike is needed.  Historically ICBC is well managed and profitable, I’ve discussed this in the past.  They have generated hundreds of millions in net revenues year over year with the current premiums in place.   ICBC did what any financially responsible insurer does with such profits and built up substantial reserves to act as a safety net for leaner times.  The reserves were so significant that the Government decided to scoop 3/4 of a billion dollars from ICBC’s coffers.
With current rates ICBC can weather the storm of market volatility and the ups and downs of claims payouts year over year.  All this with net revenues significant enough to get the company through leaner years.  The Government is short on funds, they scooped money from ICBC and that is why motorists are faced with rate increases.

"No Authority" For ICBC Independent Medical Exam in UMP Arbitrations

Written by admin on . Posted in ICBC UMP Cases, independent medical exams, Uncategorized.


While there is no shortage of caselaw addressing the BC Supreme Court’s ability to order a Plaintiff to undergo an Independent Medical Exam in the course of a personal injury lawsuit, Arbitrators determining Claimant entitlement to Underinsured Mototist Protection (“UMP”) Compensaiton have no such authority.  This was determined in an UMP decision released last year.
In last year’s case (Undisclosed v. ICBC) the Claimant was severely injured by an underinsured motorist in Washington State.  The Plaintiff succeeded in her liability claim against the motorist and was awarded over $1 million in damages.  The liability finding was binding against ICBC but the damage award was not as it was not determined under BC law.
In the course of the Claimant’s UMP arbitration (conducted under the Commercial Arbitration Act applying the Domestic Commercial Arbitration Rules of Procedure) ICBC applied to introduce into evidence an independent medical report obtained by another Defendant in the Washington litigation and further to compel the Plaintiff to attend three so-called ‘independent’ medical exams.
Arbitrator Camp ruled that while ICBC was entitled to introduce the report obtained in the previous litigation, the arbitrator had “no jurisdiction” to compel the Plaintiff to attend an independent medical exam.  Arbitrator Camp provided the following reasons:
25.  I have reviewed the Rules that govern this arbitration as amended in 1995 and 1998 and I again find no express or implied authority in an arbitrator to order that the claimant undergo an independent medical examination or evaluation.  This lack of jurisdiction is underscored by the fact that the 1995 and 1998 amendments to the Rules expressly empowered an arbitrator, at his or her discretion, to order a pre-hearing oral examination of a party.
26.  I am mindful of the argument by ICBC that I must treat ICBC fairly and I must give ICBC the full opportunity to present its case.  I am also mindful of my obligation that I must strive to achieve a just, speedy and economical determination of this proceeding on its merits.  See Rule 19.
27.  This accident and the injuries to this claimant happened over 14 years ago and without being critical of any counsel, the wheels of justice in this case are grinding very slowly, some might say too slowly.  This claimant has been examined by a host of medical practitioners, both treating physicians and independent medical examiners, as well as other medical oriented practitioners.  She has been examined under oath on two occasions on the subject of her damages.  All of this evidence is at hand.  Certainly, it can be argued that there are outstanding uncertainties pertaining to her medical condition and pertaining to her future care and capacity to earn income but that will always be the case.
28.  I conclude that I have no jurisdiction to order a form of independent medical examination.  I also wish to add that if I did have such jurisdiction and if that jurisdiction was discretionary, in this case and in all of the circumstances pertaining to this case, I would not exercise my discretion in favour of ordering the independent medical examinations as requested by ICBC.

Massage Therapy is a Mandatory ICBC No-Fault Benefit

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized. 55 Comments on Massage Therapy is a Mandatory ICBC No-Fault Benefit


Reasons for judgement were released today by the BC Court of Appeal confirming that ICBC’s No-Fault Benefits Scheme (aka Part 7 Benefits) requires mandatory coverage of massage therapy benefits.  These reasons are useful as they contradict ICBC’s internal policy limiting the availability of coverage for massage therapy.
In today’s case (Raguin v. ICBC) the infant plaintiff incurred several hundred dollars of massage therapy expenses following collision related injuries.  ICBC refused to reimburse these arguing massage therapy is a “permissive benefit” and these expenses need not be covered.  The Plaintiff sued and at trial ICBC was ordered to pay.  ICBC appealed but the BC Court of Appeal dismissed the matter and upheld the trial judgement.
In finding that massage therapy is included as a mandatory part 7 benefit the BC Court of Appeal provided the following reasons:

[31] The following observations about ss. 88(1) and (2) are uncontentious.  The imperative word “shall” is used in relation to ICBC’s obligation to pay for the benefits described in s. 88(1), making such payments mandatory.  Under s. 88(2), ICBC is given discretion, as indicated by the permissive word “may”, to pay for additional benefits that are “likely to promote the rehabilitation of an insured who is injured in an accident”.

[32] Although the benefits listed in s. 88(1) are mandatory, ICBC has a limited power to challenge an insured’s claim made under that subsection.  This power is derived from the requirements that the expenses incurred must be both necessary and reasonable.  In determining whether a particular treatment is necessary and reasonable, ICBC may require a medical examination of the insured under s. 99(1) of the Regulation.  ICBC may also demand a medical certificate under s. 98(1) of the Regulation or a medical report under s. 28 of the Act. ..

[56] Physical therapy is a mandatory benefit under s. 88(1) but it is not defined in the Regulation.  The dictionary definition and the definition in the related regulatory scheme define physical therapy as including massage.  The Health Professions Act defines “health profession”.  Regulation of health professions, such as physical therapy, includes the restriction of the provision of a designated service to a person registered to practise that specific designated health profession.  Massage therapy is designated as a health profession and is governed by the Massage Therapists Regulation.  Registration with the College of Massage Therapists is required and no person other than a registrant may practise massage therapy.

[57] In light of the provisions to which I have referred, ICBC’s submission that including massage therapy as a benefit payable under s. 88(1) would open the floodgates to all manner of questionable procedures is unsupportable.

[58] While the Regulation does not refer specifically to massage therapy in s. 88(1), I am of the view that, when all of the relevant provisions in the Regulation are read together with the Health Professions Act and its related Regulations, physical therapy may properly be interpreted as including massage therapy.  To be payable under s. 88(1), the other requirements must be met as stated in the section; that is:  “[w]here an insured is injured in an accident for which benefits are provided under this Part, the corporation shall … pay as benefits all reasonable expenses incurred by the insured as a result of the injury for … necessary physical therapy … .”

[59] In this case, the respondents’ doctor recommended massage therapy as part of the infant plaintiffs’ recovery.  There is no suggestion that the recommended treatment was unnecessary or provided by someone other than a registered massage therapist, or that the expense was unreasonable.

"More Attention Needs to be Paid to the Rubric of 'Suffering' than 'Pain'"

Written by admin on . Posted in ICBC UMP Cases, Uncategorized.

Reasons for judgement addressing quantum of damages were released last year by Arbitrator Camp in an ICBC UMP Dispute assessing $75,000 in non-pecuniary damages for a Claimant who suffered relatively modest injuries.
In last year’s case (Undisclosed v. ICBC) the three Claimants suffered injury in a 1996 collision in Washington State.  At trial each was awarded over one million dollars.  As the at fault motorist was under-insured the Claimants applied to ICBC for UMP.  They had to re-litigate the value of their claim as the Washington Jury award was not binding on ICBC for UMP purposes.
The collision injured all occupants of the vehicle all of whom were related to each other.  The Claimant and her three daughters were injured, some of these injuries were severe.  While the Claimant’s injuries themselves were not severe her “matriarchal role…has been significantly and adversely affected“.  In assessing non-pecuniary damages at $75,000 Arbitrator Camp provided the following reasons:
97.  With respect to general damages for pain and suffering, this is a claim in my opinion in which more attention needs to be paid to the rubric of “suffering” than “pain”.  I turn to a few fairly recent British Columbia decisions which offer guidance in this area….
102.  Hence, in addition to listing “emotional suffering” (not defined) as a common factor influencing the award of non-pecuniary damages, the Stapley case considers, and adds commentary and an award for the “loss of lifestyle”.
103.  In Kuskis v. Tin, 2008 BCSC 862, the plaintiff suffered from a worsening of a pre-existing migraine disorder, a new form of headache and low grade but persistent neck and shoulder pain as a result of soft tissue injuries caused by a motor vehicle accident.  In awarding Ms. Kuskis non-pecuniary damages, the court noted that she was “sometimes exhausted, irritable and unhappy”, and while she could work, travel and socialize most of the time without significant impairment, her personal life has been diminished by her increased headaches and pain.  Specifically, her ability to form and maintain intimate relationships has been compromised by her increased irritability and fatigue (para 143).
104.  Other factors taken into consideration under the general concept of “pain and suffering” include: anxiety, depression, deleterious impact on quality of life (specifically comparing personality and lifestyle before and after the accident) (see Djukic v. Hahn, 2006 BCSC 154 at paras. 61-64); changes in personality including being more “withdrawn and distracted”, increased tiredness, and inability to enjoy activities previously enjoyed (see Fox v. Danis, 2005 BCSC 102 at paras. 112-122); and depression affecting concentration and attention (Maillet v. Rosenau et al., 2006 BCSC 10 at paras. 63-65).
105.  I find that Mrs. T has suffered much more than just aches, pains and headaches.  Her world was and is hinged on her matriarchal role that has been significantly and adversely affected by this accident as described above.  Taking all of the circumstances into account, I find an appropriate award of damages for pain and suffering to be $75,000.