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Historic Sexual Abuse Claim Results In $59,000 Damage Assessment

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for historic sexual abuse.
In this week’s case (R.D. v. G.S) the Defendant stepfather was found liable for abusing his stepdaughter when she was aged 8-12.  The Plaintiff suffered psychological harm as a consequence of this.  Her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) were assessed at $35,000.  In arriving at this figure Madam Justice Smith made the following findings with respect to the harm caused by the abuse:

[145] I have considered all of the evidence regarding the plaintiff’s psychological injury, including her testimony and the opinion evidence of Dr. Hotz and of Dr. O’Shaughnessy.

[146] I accept the plaintiff’s evidence regarding the symptoms she has experienced.  She was cross-examined at some length, and was consistent and convincing in describing her enormous sense of betrayal and destruction of trust, as well as her persistent experience of intrusive dreams, intrusive thoughts, anxiety, depression, low self esteem and low self confidence.

[147] As to the experts, with respect to the existence of a psychiatric disorder I prefer the evidence of Dr. O’Shaughnessy over that of Dr. Hotz.  I reach that conclusion because Dr. O’Shaughnessy clearly separated out the facts upon which he was relying from his opinions, is highly experienced in this area, has a higher degree of expertise and seemed to retain more objectivity in his approach.  I accept, accordingly, that the plaintiff does not currently suffer from a psychiatric disorder and it is unlikely that she has suffered from one in the past.

[148] I find, however, that she does suffer from psychological dysfunction that has interfered with her ability to pursue education or a more rewarding career, and that has interfered with her ability to build good relationships and to enjoy life.  The extent to which the psychological dysfunction finds its origins in what the defendant did is the question.  I find that he is responsible for it in some measure, although it also has other causes…

[214] The defendant’s position is that there is no evidence of harm to the plaintiff caused by the defendant’s actions, and there should be no award of general damages.

[215] I will consider the factors referred to in Y.(S.) v. C.(F.G.), in assessing the appropriate award for non-pecuniary damages.

[216] I begin with the nature of the assault.  In comparison with the sexual assaults found to have occurred in many other cases, the sexual touching in this case was not violent, intrusive, frequent, coercive or egregious.

[217] The breach of trust, however, was egregious, both with respect to the sexual touching that began when the plaintiff was quite young, and with respect to the defendant’s addition of photographs of the plaintiff to his collection of child pornography.

[218] I did not see any evidence of remorse on the defendant’s part.  His conduct with his stepdaughter was callous and reprehensible.  I do not overlook that the defendant himself was the victim of blatant disregard for his property and disrespect for his attempts to preserve his household and its contents after the children moved in.  However, he was the parent and the plaintiff was the child.  The fact that the plaintiff behaved badly toward him provides no justification for his behaviour toward her.

[219] The evidence of Dr. Hotz and Dr. O’Shaughnessy shows that the conduct of the defendant had a significant impact on the plaintiff’s psychological state.  I note as well that she would likely have experienced some level of psychological dysfunction in any event, and that the impact is unlikely to be permanent.

[220] I assess general damages, taking into account the aggravating factors I have described, at $35,000.

"Nominal" ICBC Offer Fails To Trigger Double Costs Award

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9. 59 Comments on "Nominal" ICBC Offer Fails To Trigger Double Costs Award


As previously discussed, BC has a true ‘loser pays‘ system which generally requires the loser of a lawsuit to pay the winners costs.  If a Defendant makes a formal settlement offer and defeats the Plaintiff’s lawsuit the Court has the discretion to award double costs.  Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, refusing to make such an order in circumstances where the formal offer was little more than a walk-away offer.
In last week’s case (Habib v. Jack) the Plaintiff was injured while riding as a passenger in the Defendant’s bus.  The parties agreed on the value of the Plaintiff’s injuries but disagreed on the issue of fault.  Prior to trial ICBC made a formal settlement offer of $1,000.  The Plaintiff rejected this offer, proceeded to trial, and had her claim dismissed.
ICBC was awarded costs and asked the Court to award double costs pursuant to Rule 9-1(5).  Madam Justice Ross refused to do so noting that the offer was ‘nominal’ and that it was not unreasonable for the Plaintiff to have her day in court.  The court provided the following helpful reasons:

[15] The defendants submit that having regard to the factors enumerated in the Rule, the court ought to award double costs. Counsel submits that the offer was not nominal; it gave the plaintiff modest recovery and represented a willingness to compromise that the Rule is meant to foster. The offer was made at a time when the discoveries of both parties were complete and the evidence was known. The plaintiff’s position is that this was a nuisance offer and it cannot be said, without applying hindsight, that it ought to have been accepted.

[16] At the time the offer was made, it was clear that the plaintiff had suffered an injury. There was a dispute with respect to liability. Mr. Jack had limited recollection. The only two witnesses were Ms. Habib and Mr. Jack.

[17] In my view the offer was nominal given Ms. Habib’s injury. I agree with the observations of Burnyeat J. in Martin v Lavigne and Neufeld (Costs), 2010 BCSC 1610 at para. 13, that there are situations in which a nominal offer should have been accepted. However, in my view this is not such a case. It cannot be said that it was clear that the action had little chance of succeeding on the merits. Rather, there was a significant risk that the case would be lost on liability. This risk materialized and the action was lost at trial; however, in the circumstances it was not unreasonable for the plaintiff to reject the offer and proceed to trial.

[18] On balance I have concluded that this is not a case to make an order for double costs as sought by the defendants based upon the offer to settle. In the result, the defendants will have their costs.

Ongoing Negotiations and Other Factors Postpone Personal Injury Limitation Period

Written by admin on . Posted in Uncategorized. 55 Comments on Ongoing Negotiations and Other Factors Postpone Personal Injury Limitation Period

(UPDATE: May 10, 2010 – The below case was overturned today by the BC Court of Appeal; reasons can be found here)

Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, addressing the postponement of a limitation period in a personal injury claim.
In last month’s case (Iezzi v. R.) the Plaintiff worked as a foster parent.  She alleged that in 2001 one of her foster children, identified as “MW” accidentally stuck her with a hypodermic syringe and infected her with Hepatitis C.  She claimed the Ministry of Children and Family Development was responsible for the harm and started a lawsuit in 2009.
The Ministry argued the action was brought out of time set out in the Limitation Act and brought a motion to dismiss the claim.  The motion was dismissed, however, with the Court finding that on-going settlement discussions and other factors operated to postpone the running of the limitation period under Section 6(4) of BC’s Limitation Act.  In dismissing the Ministry’s motion Mr. Justice Burnyeat provided the following reasons:



[15] I am satisfied that there was a postponement of the limitation period to sometime between the Spring of 2008 and the Fall of 2008 as a result of a number of factors.  There were negotiations with the Ministry during 2006 and until April 2008 regarding a possible settlement of damages flowing from the Hepatitis C infection and from the breach of contract.  It would have been unwise to interrupt those by the commencement of an action.  While negotiations were ongoing and while there was still a hope that a settlement could be reached, a reasonable person would believe that it was not necessary to commence an action for damages flowing from the Hepatitis C infection.  It was not until the April 1, 2008 meeting with a Ministry representative that the final position of the Ministry regarding a possible settlement was received.  Even then, Ms. Iezzi advised the Ministry that she had “no desire to go to a lawyer” although she also did advise that “I have been left with no other choice”.  It was only at that point that negotiations came to a conclusion and that Ms. Iezzi was left with no other alternative.

[16] It was not until sometime between April 2008 and September 2008 that Ms. Iezzi obtained the actual documentation relating to the Hepatitis C status of MW.  Before commencing an action, a reasonable person would first ascertain the exact knowledge the Ministry had about the Hepatitis C status of MW when she was placed as a foster child.  A reasonable person would not want to rely on the unsubstantiated information that was available from an employee of the Ministry.  A reasonable person would first wish to see the actual documentation before proceeding.  That documentation was not available to Ms. Iezzi until she ascertained in a document that was made available to her that the Ministry was aware that MW had Hepatitis C when MW was placed with her because the Ministry was in possession of the records available from the Juvenile Detention Centre.

[17] Until that information was available, it would have been foolhardy and unreasonable for a person to conclude that an action should be commenced and that there was a reasonable or any possibility of success.  Until the actual documentation was available to her, Ms. Iezzi had only the hearsay statements from her resource worker.  It was reasonable not to proceed until a determination could be made that there was a reasonable prospect of success and that there was a reasonable prospect of there being sufficient funds available if an action was successful to justify the action being commenced in the first place.

[18] I also consider that Ms. Iezzi was under intense stress.  I am satisfied that I should take into account a number of circumstances in dealing with whether the running of the limitation period should be postponed.  First, she had lost her house.  Second, she had lost her health as a result of the Hepatitis C infection.  Third, she had lost her livelihood because she could no longer take foster children.  At the same time to require her to face the intense stresses and strains involved in suing the Province is unrealistic.

[19] Taking into account all of the circumstances surrounding the commencement of this action in October 2009, I am satisfied that the application of the Defendant should be dismissed.



Plaintiff Independent Medical Exams and Litigation Privilege Discussed

Written by admin on . Posted in BCSC Civil Rule 1, independent medical exams, Uncategorized.


Useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing the scope of litigation privilege when a Plaintiff attends an independent medical exam arranged on their behalf in the course of a personal injury lawsuit.
In this week’s case (Lanteigne v. Brkopac) the Plaintiff was injured in a 2008 collision.  In the course of the lawsuit the Plaintiff’s lawyer had her assessed by a neuropsychologist to explore the possibility of organic brain injury.  The Plaintiff’s lawyer chose not to order a report from the neuropsychologist following the assessment.
ICBC brought an application to compel the neuropsychologist to produce a copy of his clinical records of the assessment.  Master Taylor dismissed the application finding that the notes generated during Plaintiff arranged independent medical exams are subject to litigation privilege.  In addition to canvassing several cases addressing this area of law Master Taylor provided the following useful comments:

[15] On the other hand, the plaintiff says this is not a case where Rule 7-6(1) is applicable because the court did not make an order under this subrule for the plaintiff to attend to be examined by Dr. Coen. Rather, the plaintiff attended upon Dr. Coen by referral from her own counsel. Accordingly, says the plaintiff, what actually applies is the law of privilege, not Stainer v. Plaza.

[16] Thus, the issue is framed – can a defendant or third party who has not obtained a doctor’s report by compulsion of a court order, and prior to disclosure of any medical-legal reports by the plaintiff or in the absence of any reports, obtain access to the non-treating doctor’s notes and clinical findings, or are said notes and clinical records privileged as forming part of the brief of the plaintiff’s solicitor until the time when the plaintiff chooses to rely on the non-treating doctor as a witness at trial and the doctor’s notes must be disclosed…

[21] In my view it is improper to categorize the non-treating doctor or any other third party consultant retained on behalf of the plaintiff as a witness in which there is no property. The very fact that the plaintiff consulted with that physician or other individual during the course of litigation removes that individual from the “witness” category until such time as the plaintiff and counsel make a determination about whether or not that physician will be used as a witness at the trial, and preserves the right of privilege. The fact that the consulted doctor or other consultant never gives evidence preserves the privilege for all time unless waived by the plaintiff.

[22] While the defendant and third party submit they could have the plaintiff examined by their own doctor or proceed with an examination of the doctor pursuant to Rule 7-5, they complain that those alternatives are costly, and, accordingly, the court should assist them by ordering the records of Dr. Coen be produced and thus save them the cost of proceeding with the other alternatives. The defendant also submits that Rule 1-3 provides the court with sufficient justification to order Dr. Coen to provide his notes of the plaintiff’s examination.

[23] In my view, the defendant and third party have not shown any meritorious reason for abrogating the plaintiff’s litigation privilege related to the information obtained by Dr. Coen from the plaintiff as a result of the referral to Dr. Coen by the plaintiff’s solicitor. Nor, in my opinion, does Rule 1-3 provide justification for abrogating the privilege.

$75,000 Non Pecuniary Assessment for Chronic Low Back and Shoulder Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic shoulder and low back injury caused by a motor vehicle collision.
In this week’s case (Juraski v. Beek) the Plaintiff was involved in a 2007 collision.  Fault was admitted by the Defendant.  The Plaintiff suffered a chronic shoulder injury which remained symptomatic at the time of trial.  Her prognosis for complete recovery was poor.  She also had mechanical back pain.  In assessing the Plaintiff’s non-pecuniary damages at $75,000 Madam Justice Humphries provided the following reasons:

[42] Dr. Regan, an orthopaedic surgeon, diagnosed myofascial pain in the plaintiff’s left trapezius and cervical spine, anterior left shoulder pain, and chronic left mechanical low back pain.  His report is dated November 26, 2010.

[43] He testified that Ms. Juraski has supraspinus tendonosis, a chronic condition of the shoulder tendon.  He said a tear was possible but upon seeing the MRI of March 31, 2011, agreed it did not support that suggestion.  He agreed with Dr. Nobel (see below) that pain block injections would allow more accurate diagnosis, but in view of the passage of time, he did not foresee the shoulder pain settling…

[77] The accident occurred 4 years ago.  I accept that the plaintiff now lives with chronic pain in her shoulder and lower back and will continue to do so, although exercise and strengthening may alleviate her symptoms to some degree, particularly in her back.  On a consideration of the medical evidence, including that of Dr. Leith, there is a difference of opinion about the mechanisms causing Ms. Juraski’s pain.  However, there is no question but that the chronic pain in her shoulder area and lower back are caused by the accident.

[78] The plaintiff is obviously a determined and energetic person who will do what is required to make ends meet.  However, I am satisfied the quality of her life has been altered by the pain she copes with daily.  She is unable to keep up the high standards of housework and household accomplishments she maintained before the accident.  To some extent, her ability to live her life as she did is affected by her unenviable work schedule – without that she would probably be able to devote more time to housework and her garden, but she would still have to cope with chronic pain as she did it.  Her symptoms are not incapacitating – she works hard and long hours- but her enjoyment of life is considerably curtailed.  She admitted on discovery that her sleep is back to normal.

[79] However, given the time that has passed, the doctors, while recommending strengthening exercises and other treatments, are guarded in their prognosis for improvement in pain and discomfort in the future, especially with her shoulder.  On the whole, while some improvement in symptoms might be forthcoming through exercise and core strengthening, the medical practitioners suggest she will have to learn to live with and manage chronic pain.

[80] The defendant did not argue that the plaintiff has failed to mitigate her damages.  She has followed the treatment recommendations offered to her, although her busy work schedule interferes with her ability to exercise and stretch.

[81] While there are some parallels between the facts here and those outlined in the cases cited to me, those submitted by the plaintiff tend to describe situations where there were other important effects from the accident in addition to chronic pain – for instance, depression, ongoing inability to sleep, post traumatic stress disorder, inability to work, significant reduction in energy, need for significant rehabilitation and counselling.  The cases cited by the defendant tend to deal with less severe or pre-existing symptoms, symptoms that resolved after a period of time or were improving, or symptoms localized to one area – either back or shoulder, but not both.

[82] It is clear that awards for non-pecuniary damages in cases of chronic pain vary fairly widely, and of course the symptoms and effects on each plaintiff’s life are individual.  Taking Ms. Juraski’s situation in the context of all of the cases referred to me, I conclude that an appropriate award for non-pecuniary damages is $75,000.

ICBC's Part 7 Exam Thwarts Defence Medical Exam Application

Written by admin on . Posted in BCSC Civil Rule 7, ICBC No-Fault (Part 7) Benefits, independent medical exams, Uncategorized. 48 Comments on ICBC's Part 7 Exam Thwarts Defence Medical Exam Application

As previously discussed, when a Defendant is insured with ICBC their ability to set up an ‘independent‘ medical exam can be compromised if ICBC exercised their rights to have the Plaintiff examined under section 99 of the Insurance (Vehicle) Regulation and if that exam went beyond what was required for a ‘part 7’ opinion.  Reasons for judgement were recently released by the BC Supreme Court, Rossland Registry, demonstrating such an outcome.
In the recent case (Wocknitz v. Donaldson) the Plaintiff was injured in a 2008 collision.  Both the Plaintiff and Defendant were insured by ICBC.  Before litigation got underway ICBC had the Plaintiff assessed by a physiatrist.   As is not uncommon with these types of examinations, the report generated exceeded the narrow scope of Part 7 Benefit needs.
In the course of the lawsuit the Plaintiff obtained their own expert opinion from a physiatrist.  The Defendant’s brought an application to compel the Plaintiff to be assessed by another physiatrist and by a psychiatrist.  They argued this was necessary to ‘level the playing field’.  Mr. Justice Pearlman disagreed and dismissed the application.  In doing so the Court provided the following helpful reasons:

[14] In Robertson v. Grist, 2006 BCSC 1245, at paragraph 14, Madam Justice Dillon addressed the question of whether a Part 7 examination constitutes a first independent medical examination for the purposes of a tort claim. She said this:

[14]      Whether the Part 7 examination constitutes a first independent medical examination depends upon the scope of the examination, given the rest of the circumstances here.  There was no limitation on Dr. Jaworski’s examination and the request letter covered matters that would solely be relevant to a tort action.  The doctor’s report was not limited to a rehabilitation opinion about whether the injuries sustained in the accident totally disabled the plaintiff from work within 20 days of the accident and for a period of 104 weeks or less, the criteria in section 80 of the Part 7 benefits Regulations.  The examination was a first independent medical examination within the meaning of Rule 30.

[15] In this case, the letter from the adjustor instructing Dr. Findlay has not been put in evidence.  However, it is clear from Dr. Findlay’s report that it deals with matters which go beyond an inquiry restricted to Part 7 benefits, and deals with matters directly relevant to the tort claim. ..

[19] In this case, there have been no subsequent unforeseeable events which would, in my view, warrant a second examination by a physiatrist.

[20] With respect to the application of the defendants for an order for an independent medical examination by a psychiatrist, again this is not a case where such an examination is required in order to level the playing field.  This is not a case where the plaintiff has obtained or intends to obtain a psychiatric report.  An independent medical examination by a psychiatrist is a particularly invasive form of examination and, in the circumstances of this case, it is not one that I would be prepared to order.

[21] With respect to the defendants’ submission that because Dr. Findlay provided his report some nine months after the accident, he was not in a position to pronounce in any definitive way with respect to a prognosis, in my view the timing of Dr. Findlay’s examination was a matter that was entirely within the control of the defendants.  That does not provide a basis which would justify an order for a second independent examination by a physiatrist.  As counsel for the plaintiff has pointed out, it would still be open to the defendants to have Dr. Findlay review the report of Dr. Valentine, and the clinical records that have been produced, and to provide a rebuttal report for use at trial.

[22] The application of the defendants for the two independent medical examinations sought is dismissed.

$40,000 Non-Pecuniary Damages for Chronic Whiplash and Possible Facet Joint Injury

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic whiplash injury.
In last week’s case (Fiorda v. Say) the Plaintiff was involved in two collisions, the first in 2008 and the second in 2009.  The Plaintiff was not at fault for either crash.  Both collisions contributed to a chronic whiplash injury with possible facet joint involvement.  The symptoms of pain were still present by the time of trial and these were expected to carry into the future.  In assessing the Plaintiff’s non-pecuniary damages at $40,000 Madam Justice Holmes provided the following reasons:

[25] Dr. Gabriel Hirsch, specialist in physical medicine and rehabilitation, conducted an independent medical assessment on April 4, 2011.

[26] Dr. Hirsch concluded that in the first accident, Ms. Fiorda sustained relatively minor injuries to her neck, upper back, and shoulder girdle region, from which she had made a good recovery by the time of the second accident.  He concluded that absent the second accident, Ms. Fiorda probably would have made a full recovery from the first.

[27] Dr. Hirsch concluded that the second accident caused injuries to Ms. Fiorda’s neck, thoracic spine, and lumbar spine, which probably involved soft tissue structures, such as muscles, tendons, and ligaments.  Given the accident mechanism as Ms. Fiorda had described it, it was also possible that Ms. Fiorda sustained an injury to a cervical facet joint.

[28] Dr. Hirsch recommended that Ms. Fiorda carry out a regular exercise program, ideally in a well-equipped community centre or gymnasium.  Because Ms. Fiorda had recently completed a functional restoration program under the guidance of a physiotherapist and kinesiologist, he felt she should be able to continue with a maintenance program on her own.  He recommended particular components of a regular exercise program for Ms. Fiorda to follow.

[29] Dr. Hirsch also suggested that Ms. Fiorda consider trigger point injections into the neck and shoulder girdle region, her most symptomatic areas.  He noted that those injections are funded by the Medical Services Plan.

[30] Dr. Hirsch noted that “there is some uncertainty” about whether Ms. Fiorda can continue in her work as a costume designer on a sustainable basis because of the long hours and many consecutive days, which do not allow her the opportunity to recuperate from a flare-up. ..

[45] In my view, the particular circumstances of Ms. Fiorda’s case support an award of $40,000.

More on ICBC's Subrogated Costs Rights (Or Lack Thereof)

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized. 48 Comments on More on ICBC's Subrogated Costs Rights (Or Lack Thereof)

Earlier this year the BC Supreme Court released reasons for judgement finding that when a Defendant succeeds in a lawsuit and is awarded costs the order is for their benefit not their insurer.  In short the Court held that ICBC has no subrogated right to costs awards under section 84(1) of the Insurance (Vehicle) Act.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, taking an opposite view of this issue.
In this week’s case (Habib v. Jack) the Plaintiff was injured while riding on a bus.  She sued the bus driver and bus company but had her claim dismissed at trial.  The Defendant was awarded costs with Madam Justice Ross giving ICBC the benefit of this costs award.  The Court provided the following brief reasons:
In the result, the defendants will have their costs. Under s. 84(1) of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, the Insurance Corporation of British Columbia (“ICBC”) is subrogated to its insured and is entitled to recover the costs to which the insured would be entitled. Accordingly, ICBC is entitled to recover the costs awarded to the defendants.
Given the contradictory recent court findings on this issue I suspect the BC Court of Appeal will be asked to weigh in on the topic of insurers subrogated rights to costs following the successful defence of a lawsuit.

$70,000 Non-Pecuniary Assessment for Mandibular Fracture

Written by admin on . Posted in ICBC Dental Injury Cases, Uncategorized. 58 Comments on $70,000 Non-Pecuniary Assessment for Mandibular Fracture


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for a mandibular fracture.
In this week’s case (Besic v. Kerenyi) the Plaintiff alleged he was assaulted by the defendant.  After being ‘punched from behind’ the Plaintiff was briefly knocked unconscious.  He suffered a mandibular fracture which needed to be wired shut.  He also lost two teeth.   He went on to suffer permanent nerve damage to his trigeminal nerve which caused numbness and drooling.
In assessing non-pecuniary damages at $70,000 Madam Justice Russell provided the following reasons:

[13] There is no doubt that Mr. Besic’s life has been altered by this incident.  He had to undergo surgery to repair the fracture and his jaw was wired shut for over a month.  He was placed on a liquid-only diet and, consequently, experienced some short-term weight loss.

[14] The long-term consequences have been more severe.  Two of Mr. Besic’s left molars were knocked out.  He has not had the recommended dental repair performed so the gaps in his mouth are still there, eight years later.  He either has to undergo surgery, risking further nerve damage, or live without these two teeth for the remainder of his life.

[15] The mandibular fracture caused permanent damage to the trigeminal nerve. As a result, Mr. Besic experiences numbness in his chin, lips and jaw.  This causes him to drool while he eats and is a source of embarrassment.  He does not notice if food has dripped, or become stuck, on his face because he cannot feel it.  He finds himself constantly wiping his face in an attempt to ensure no food is lingering there.

[16] The nerve damage has caused a prickling pain in his face and jaw.  Both this and the numbness are unlikely to improve.  There is also a possibility that a future facial injury could cause the numbness to worsen.

[17] Since the incident, Mr. Besic finds that he has issues with his speech.  Occasionally, he will slur his words or mumble, particularly when he becomes tired or is out in the cold.  He believes that this is as a result of the numbness, although his neurologist, Dr. Frank Kemble, has questioned whether that is, in fact, the cause.

[18] The mumbling is also a source of social awkwardness, especially at his work at the North Fraser Pre-Trial Center in Surrey, where he is a correctional officer.

[19] Mr. Besic still experiences pain in his jaw joints and muscles, as well as neuropathic pain.  His jaw is often stiff, particularly in the morning.  His temporomandibular joint clicks and pops, especially when he eats.  This results in discomfort and headaches. Mr. Besic also suffers extreme ear pain when he flies…

[34] I find $70,000 to be an appropriate amount for Mr. Besic’s injuries.  While Mr. Besic does not suffer from a deformity of the jaw or dramatic weight loss, like the plaintiff in Pete, he does suffer from some similar injuries, such as numbness in the face and jaw, as well as jaw pain.  He also experiences the resulting social embarrassment these injuries cause.

Sex Abuse Class Action Not Certified Due To Limitation Period Concerns for Victims

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized. 54 Comments on Sex Abuse Class Action Not Certified Due To Limitation Period Concerns for Victims

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, highlighting the important benefits of BC’s open ended limitation period for victims of sexual abuse.
In this week’s case (Lakes v. MacDougall) the Defendant worked as a correctional guard in BC’s prison system for over 20 years.  During this time he sexually abused a number of convicts.  He was criminally convicted for these deeds.  He was also successfully sued by some of his victims.
The Plaintiff, an alleged victim of this abuse, sued the Defendant and the Province of BC alleging the Province was vicariously liable for the abuse.  He proposed to make his lawsuit a class action on behalf of all of the Defendant’s victims.  The Province of BC agreed that a class action was appropraite.  The Plaintiff and the Province asked the Court to certify a class action and further to approve a settlement process which would permit the victims to seek compensation by way of private arbitration.
One of the Defendant’s alleged victims opposed class action certification.  This individual argued that the proposed settlement method would impose a de facto limitation period for the victims where one otherwise would not exist.  Mr. Justice Grauer agreed and refused to certify the action unless this issue could be addressed.  In doing so the Court provided the following helpful reasons:
[14] The objections can be succinctly stated.  By definition, members of the proposed class are persons who have spent time in jail from a relatively young age, have developed drug and alcohol problems, have damaged senses of masculinity, and have maintained their silence for years.  Mr. Lakes has deposed that the sexual abuse he endured caused him a great deal of humiliation and embarrassment that prevented him from coming forward with the information until August 13, 2010, some 30 years after the events occurred.  Precisely because of such problems, the Limitation Act, R.S.B.C. 1979, c. 266, provides in s. 3(4)(l) that causes of action based on sexual assault are not governed by a limitation period and may be brought at any time.  Yet the certification of this action and approval of the settlement will deny the benefit of this provision to members of the class who have not yet come to a place where they are capable of disclosure.  Instead, their claims will become effectively barred by the expiry of the claims period.  This is particularly troublesome, it is suggested, because this population is not one known for reading newspapers, where notices of the settlement are to be published…

[22] As I see it, the question is whether the loss of that benefit in this particular case is appropriately balanced by the gains offered by certification and approval of the settlement.

[23] I have concluded that, in the circumstances before me, it is not, and accordingly this requirement has not been met.  The advantage to potential members of the class of the resolution of the single common issue, together with the efficiencies of the process, do not match the loss to this particularly vulnerable group that will arise from the imposition of a six-month claims period.  I do not say that such a balance cannot be achieved in relation to MacDougall’s victims.  I say only that it has not been achieved.  If the process were structured differently to allow for a significantly longer claims period and improved notification procedures, I might well take a different view.  I do not, of course, have the authority to alter the terms of the proposed settlement…

[24] In these circumstances, I exercise my discretion under s. 5(6) of the Class Proceeding Act, and direct that the plaintiff’s applications be adjourned to permit the parties to engage in further negotiations and amend their materials if they choose to do so.