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$140,000 Non-Pecuniary Damage Assessment for T-12 Burst Fracture

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Liability (fault) Cases, ICBC Spine Injury Cases, Uncategorized. 63 Comments on $140,000 Non-Pecuniary Damage Assessment for T-12 Burst Fracture

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages following a 2005 motor vehicle collision.
In this week’s case (X v. Y) the Plaintiff was an RCMP officer.  (Supplemental reasons were released permitting the Plaintiff to identify himself by initials and to seal the Court file given the Plaintiff’s undercover work).  He was responding to an emergency call.  He was travelling on his motorcycle when he was struck by a truck driven by the Defendant who was in the course of making a U-turn.  Although fault was put at issue the Court found the defendant fully liable for the collision.

The Plaintiff suffered a burst fracture at the T-12 level which required surgical intervention.  He suffered from chronic pain following this and although he was able to return to police work he could only do so in a more administrative (as opposed to front-line) capacity.  In assessing non-pecuniary damages at $140,000 Madam Justice Dardi provided the following reasons:
[101] The plaintiff underwent surgery on July 21, 2005, after which Dr. D. explained to the plaintiff that he had a burst fracture in his vertebrae in the thoracolumbar region, and that metal rods, clamps and screws had been placed in the area to fuse the spine together. The plaintiff was fitted with a clamshell brace in order to stabilize his fused spine and prevent him from moving. He was not allowed to sit or stand up unless he was wearing this brace. He used a walker to manoeuvre around the hospital. After physiotherapy treatments, he was able to walk short distances, go to the bathroom, and get in and out of his hospital bed. He was released from the hospital on July 27, 2005…
[147] It is uncontroversial that the plaintiff suffered a serious injury in the accident: a fractured spine which required surgical fusion with metal instrumentation. The medical evidence clearly establishes that he is permanently disabled insofar as repetitive heavy bending, lifting and high-impact activities. He has an increased risk for the development or acceleration of degenerative disc disease and is at an increased susceptibility for reinjuring his back…




[163] In summary on this issue, I find that the plaintiff’s symptoms are genuine. He regularly experiences varying degrees of pain and significant stiffness, tightness, and spasms in his back. The cold exacerbates his symptoms. He will continue to experience episodic aggravation of his symptoms. He is at an increased risk of developing degenerative arthritis and he has an increased susceptibility for further injury to his back. He also faces the possibility of another surgery to remove the hardware in his back. He has reduced stamina and tires much more easily than prior to the collision. I also conclude that as the plaintiff ages, there is a substantial likelihood that his pain and discomfort will increase because he will not be able to maintain the same level of conditioning in the muscles supporting the fused area of his back.

[164] In terms of his career, the preponderance of the evidence clearly supports a finding that the plaintiff is not fit to perform the full range of policing duties. He must avoid impact activities and any risk of physical altercations with suspects, which restricts him from participation in front-line policing duties. He can no longer perform the duties of a motorcycle officer, nor is he able to pursue his ambition to join the ERT as an operational member…




[179] While the authorities are instructive, I do not propose to review them in detail, as each case turns on its own unique facts. Having reviewed all of the authorities provided by both counsel, and in considering the plaintiff’s particular circumstances, I conclude a fair and reasonable award for non-pecuniary damages is $140,000.

More on Court Ordered Medical Exams and Travel

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized. 47 Comments on More on Court Ordered Medical Exams and Travel


Further to my previous posts on this topic (which you can find here and here) further reasons for judgement were released by the BC Supreme Court, Vancouver Registry, addressing defence medical exams and the issue of travel.
In today’s case (Breberin v. Santos) the Plaintiff was injured in a motor vehicle accident.  The Defendants wished to send her for a medical exam.  The Plaintiff lived in Edmonton and argued that the exam should take place there.  The Defendants applied for a Court order to compel an exam in Vancouver.  In opposing the application the Plaintiff produced evidence from her doctor stating that “she is unable to travel….at the present time or in the forseeable future“.
Mr. Justice Willcock was not satisfied with this medical evidence and ordered that the exam take place with the Defendant’s chosen expert in Vancouver.  In doing so the Court provided the following reasons:




[5] The argument made by the parties is, first, for the defendants, that the defendants are entitled pursuant to Rule 7-6 to obtain an order requiring the plaintiff to attend at a medical examination and that the test to be addressed by the court in determining where and when the examination should take place is fully and accurately described by Master Bouck in the decision of Parsons v. Mears, 2011 BCSC 397.  In that case, the court says that the following principles are applicable to the question whether a plaintiff should be examined within British Columbia:

a.         The purpose of an independent medical examination is to put the parties on a basis of equality. It is not for the plaintiff to decide which doctor can examine him or her on behalf of the defendant …

b.         Nonetheless, an independent medical examination is an examination conducted by a person appointed by the court. The convenience of the plaintiff is to be considered in appointing such a person …

c.         Convenience to the plaintiff is but one of several factors for the court to consider in exercising its discretion under Rule 7-6: …

d.         It may be appropriate for the court to consider appointing a specialist other than the proposed examiner but only where the plaintiff demonstrates, on a preponderance of evidence, sufficient grounds to justify the court in concluding that its discretion should not be exercised in favour of the appointment of the defendant’s nominee …

[12] In my view, the logic of Master Bouck set out in the Parsons case is applicable both in relation to independent medical examinations within and outside British Columbia.  I am of the view that the plaintiff’s convenience should be considered in determining where the independent medical examination should take place.  I am also of the view, however, that the onus should fall upon the plaintiff to show that there is a reason to depart from the general rule that the defendants are entitled to choose the expert who should conduct the independent medical examination on their behalf.  Here, the plaintiff should be required to show some justification for requiring that the independent medical examination should take place in Edmonton.

[13] As I noted when I referred to the affidavit filed by the plaintiff in response to the application, there is very little evidence with respect to the nature of the medical problem that will prevent the plaintiff from attending at an independent medical examination.  The independent medical examination is scheduled in the relatively distant future, on July 8, 2011.  There is, in my view, sufficient time for the plaintiff to prepare and make careful arrangements to attend at that examination in July.  This is not a case where the independent examination is set late in the day or in circumstances that prevent the plaintiff from making appropriate arrangements so as to make it convenient for her to attend.

[14] I am not satisfied on the evidence that the plaintiff has established that there is any reason that justifies an order that she should be examined in Edmonton as opposed to Vancouver.  There is, on the other hand, considerable advantage to the parties in having the independent medical examination being conducted in Vancouver in that the expert will be available to attend at trial if required to do so and readily available for cross-examination.  Because the case is set for trial in Vancouver, I am of the view that it is in the interests of justice in this case to order that the independent medical examination take place here.  I am not satisfied on the evidence there is any reason to depart from the Rule that the defendant should be entitled to choose an appropriate expert to conduct the examination so as to put the parties on an equal footing.




Interest on Disbursements: The Uncertainty Continues

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized.

The BC Court of Appeal released reasons for judgement today in a case addressing the recoverability of interest on disbursements in personal injury lawsuits.  It was anticipated that the Court would set out a firm answer to this issue.  Unfortunately the question remains unanswered as the BC Court of Appeal held that “this is not the right case to address the issue“.
In today’s case (Milne v. Clarke) the Plaintiff was injured in a motor vehicle collision.  The case settled but following this the parties could not agree whether the interest charges on disbursements for private MRI’s were recoverable.  Ultimately Mr. Justice Burnyeat held that this was a recoverable disbursement finding as follows:
[9] The law in British Columbia is that interest charged by a provider of services where the disbursement has been paid by counsel for a party is recoverable as is the disbursement.  The interest charge flows from the necessity of the litigation.  If the disbursement itself can be assessed as an appropriate disbursement, so also can the interest owing as a result of the failure or inability of a party to pay for the service provided.  In order to obtain the M.R.I., it was necessary to pay not only the $975.00 cost but also the interest on any unpaid balances that were not paid immediately.  The cost plus interest was the cost of obtaining the M.R.I.  The claim for interest should have been allowed.
ICBC appealed this as a test case hoping to get a firm answer from the BC Court of Appeal.  The Appeal was dismissed with the Court finding that there was insufficient material before them to address the issue.  The Court provided the following reasons:





[13] There is, as Mr. Justice Frankel observed, divergent authority on the recoverability of interest on disbursements under Rule 57(4) (now Rule 14-1(15)).  There may be different answers to that question depending upon the circumstances of the charge, the time and purpose for which the charge was incurred, and the circumstances that caused counsel to pay the bill, but this must be a question for another case.  It is clear from the fresh evidence that in this case the recoverability of the interest paid by counsel requires an interpretation of the settlement agreement.  One question is whether the amount in issue is properly characterized as a claim for special damages rather than disbursement, and is thus captured within the agreed sum.  Another question is whether, on a correct interpretation of the settlement agreement, the amount in issue is recoverable as “a necessary and reasonable disbursement”.  The judge, having been presented with the case as an application of Rule 57(4), did not deal with either of these issues.

[14] To look at it another way, it was intended that this appeal would be concerned with the recoverability of interest as a disbursement under Rule 57(4).  On the material before us, the case turns on the characterization of the charge as a disbursement or special damages, and the interpretation of several terms of the settlement agreement, on only one of which the law on Rule 57(4) might be a reference point, and even there is not directly engaged.

[15] In our view this is not the right case to address the issue raised in the leave application.  While that issue is of interest to the profession, its answer must await a case that directly engages the rule, in the context of a proper factual matrix rather than a hypothetical.






Sexual Assault and Vicarious Liability Claims are not "Too Complex" For a Jury

Written by admin on . Posted in BCSC Civil Rule 12, Sexual Assault Civil Cases, Uncategorized.

Useful reasons for judgement were recently released by the BC Supreme Court, Victoria Registry, addressing a jury strike application in a personal injury lawsuit for damages from sexual abuse.
In the recent case (JG v. Kolesar) the Plaintiff was sexually abused by her teacher.  He was criminally convicted for his acts.  The Plaintiff sued him and his employer for damages alleging negligence and vicarious liability on the part of the School District.  The matter was set for trial by jury.  The School District opposed this and brought an application to strike the Jury Notice under Rule 12-6(5) arguing that  “the law on the questions of causation (the concept of indivisible injury), vicarious liability, and assessment of damages is all too complex for a jury to understand”
Master Bouck disagreed and dismissed the School District’s jury strike application.  In doing so the Court provided the following helpful reasons:
[31]  On the question of causation, damages and the concept of indivisible injury, some authorities cited by (the School Board’s lawyer) have since been refined by the court of appeal’s decision in Bradley v. Groves, 2010 BCCA 361.  Notably, the appellate court has refined the method by which a finder of fact can determine causation and apportion damages where there are multiple tortfeasors contributing to the plaintiff’s injury and loss.
[32]  In my view, the step-by-step analysis set out in Bradley v. Groves can be nicely imported into a set of instruction and questions for the jury.
[33]  Accordingly, I am not at all pessimistic about the jury’s ability to decide the questions which the defence says are too complex in this litigation.  A trial judge will be perfectly capable of instructing a jury on the relevant legal concepts of causation, apportionment of damages, and vicarious liability…
[35]   Once properly instructed, the assessment of the plaintiff’s damages is most certainly not a question beyond the capability of a modern jury.  In my observation and experience, juries are often called upon to assess damages where there are multiple tort-feasors and pre-existing conditions.
Today’s case is unpublished however, as always, I’m happy to share a copy of the reasons for judgement with anyone who contacts me and requests a copy.

Amending Pleadings and the New Rules: The Low Threshold Continues

Written by admin on . Posted in BCSC Civil Rule 6, Uncategorized. 128 Comments on Amending Pleadings and the New Rules: The Low Threshold Continues


Rule 6-1 deals with amendments to BC Supreme Court pleadings.  Unless the opposing parties consent, once a trial date is set pleadings can only be amended with permission from the Court.  Authorities under the former Rules of Court established a very low threshold for obtaining a Court’s permission.  The first case I’m aware of dealing with this issue under the New Rules was released last week by the BC Supreme Court, Vancouver Registry, confirming that the law remains unchanged.
In last week’s case (TJA v. RKM) the Defendants wished to amend their pleadings by raising the defences of absolute and qualified privilege.  The Plaintiff opposed arguing they would be prejudiced if the amendment was permitted as the lawsuit was mature with examinations for discovery complete.   The Court permitted the amendment and remedied the prejudice raised by the Plaintiff with a costs order.  In reaching this result Madam Justice Maisonville confirmed the law remains unchanged under the new rules and provided the following reasons for judgement:









[12] Rule 6 – 1 (1) (b) (i) provides:

Rule 6-1 — Amendment of Pleadings

When pleadings may be amended

(1) Subject to Rules 6-2 (7) and (10) and 7-7 (5), a party may amend the whole or any part of a pleading filed by the party

(a) once without leave of the court, at any time before the earlier of the following:

(i) the date of service of the notice of trial, and

(ii) the date a case planning conference is held, or

(b) after the earlier of the dates referred to in paragraph (a) of this subrule, only with

(i) leave of the court, or

(ii) written consent of the parties of record.

[13] In Langret Investments v. McDonnell, BCCA March 18, 1996 C.A. 020285 Vancouver Registry, Rowles J.A. for the Court, considering the predecessor rule to 6-1(1)(b)(i), held:

Rule 24(1) of the Rules of Court of British Columbia allows a party to amend an originating process or pleading.  Amendments are allowed unless prejudice can be demonstrated by the opposite party or the amendment will be useless.

[14] The rationale for allowing amendments is to enable the real issues to be determined.  The practice followed in civil matters when amendments are sought fulfills the fundamental objective of the Civil Rules which is to ensure the “just, speedy and inexpensive determination of every proceeding on the merits”. (See also McLachlin and Taylor, in British Columbia Practice, 2d ed. looseleaf (Butterworths, 1991) pages 24-1 to 24-2-10, and the decision of this Court in Chavez v. Sundance Cruises Corp. (1993), 15 C.P.C. (3d) 305, 309-10).









$90,000 Non-Pecuniary Damage Assessment for Headaches and PTSD

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC PTSD Cases, Uncategorized.


Reasons for judgement were released last month by the BC Supreme Court, Duncan Registry, assessing damages for PTSD and chronic headaches following a motor vehicle collision.
In last week’s case the Plaintiff was involved in a 2005 collision.  Fault for the crash was admitted focusing the trial on the value of the claim.   The Plaintiff suffered from some pre-existing difficulties including depression and anxiety.  The collision caused new injuries including pain, headaches and PTSD.  Mr. Justice Rogers assessed non-pecuniary damages of $90,000 and then made a modest reduction to take the pre-existing condition into account.  In assessing damages the Court provided the following reasons:
[32] Turning to the plaintiff’s injuries, the overall weight of the evidence paints a clear picture: before the traffic accident the plaintiff had some depression and she was sometimes anxious. The breakdown of her marriage and the emotional upheaval and fiscal uncertainty that flowed from that breakdown fuelled her depression and anxiety. Both conditions were sufficiently active as to prompt her to obtain medical attention. The plaintiff’s depression and anxiety were, therefore, present and active maladies before the accident. The plaintiff did not, however, suffer from post-traumatic stress disorder or from pain in her neck, jaw and face, and the plaintiff did not suffer from migraine or neuralgic headaches. The plaintiff was not fatigued and her ability to function in everyday life was not limited in any significant way. After the accident the plaintiff does now, and will in the future continue to, suffer from myofascial pain in her face and jaw. She does, and will continue to, suffer from periodic migraine and neuralgic headaches. Her neck will be sore after physical activity. She will be fatigued and socially withdrawn. These changes in her life have deepened her depression and made her more susceptible to anxiety…




[34] That said, the plaintiff’s pain, headaches and post-traumatic stress disorder were not features of her life before the accident and there was no measurable risk that, absent the accident, they would have become features of her life. Likewise, the plaintiff’s difficulties with memory and concentration were not a problem before the accident. Although the plaintiff argued that these latter problems stemmed from a minor traumatic brain injury, I find that that they are, in fact, a product of the effect on her mentation of pain, depression and anxiety.

[35] On an overall assessment of the whole body of the evidence at trial, I am satisfied that the plaintiff’s claim for non-pecuniary damages should be reduced by a relatively modest amount in order to accurately reflect her pre-existing emotional condition. I fix that reduction at 10 percent of the total.

[36] I find that were it not for her pre-existing condition, I would have fixed the plaintiff’s non-pecuniary damages at $90,000. I find that after subtracting the pre-existing condition, the plaintiff is entitled to judgment for general damages of $81,000.





This judgement is also worth reviewing for the Court’s discussion of principle of adverse inference.  The Plaintiff did not call her family physician in support of her claim.  ICBC argued that the Court should draw an adverse inference as a result.  Mr. Justice Rogers refused to do so and in dismissing ICBC’s argument the Court provided the following comments:
[31] I also accept the opinions of the plaintiff’s medical treaters. I am not worried about the lack of evidence from the plaintiff’s family physician. It was he who referred the plaintiff to specialists, and it was those specialists who diagnosed and treated the plaintiff’s accident-caused symptoms. The family physician’s evidence would, in my view, likely have consisted of little more than confirmation that the specialists were engaged and progress was made under their care. As such, I am confident that the family physician’s evidence would have added little new into the mix.

Plaintiff 50% At Fault for Running Yellow Light

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.

As the BC Court of Appeal recently confirmed, there is a range of possible splits of fault following many intersection collisions.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, further addressing this frequent type of collision.
In last week’s case (Ziani v. Thede) the Plaintiff was involved in a 2006 accident in Vancouver, BC.  He was travelling west on Kingsway.  As he approached the intersection of Boundary Road the light turned yellow.  He increased his speed to run the light.  At the same time the Defendant was approaching from the opposite direction on Kingsway making a left hand turn onto Boundary.  The Defendant testified that he had an advance green arrow although this evidence was not accepted with the Court finding that the Defendant was faced with the same yellow light that the Plaintiff had.

Madam Justice Bruce found that both motorists were equally to blame and in doing so provided the following reasons for judgement:




[24] On the facts of this case, the plaintiff entered the intersection on a yellow light and thus cannot be said to have the right of way. I am also satisfied that the defendant did not have an advance green light in his favour when he was attempting to turn left. Given the timing of the light sequences, and the evidence of the two independent witnesses, it would have been impossible for the defendant to have faced a green light when he was attempting to turn left. Had the defendant faced an advance green turn signal, the witnesses would not have seen a red light for oncoming east/west traffic at the time of the collision. Next in the sequence would have been a green light for through traffic on Kingsway. Moreover, Ms. Gjerding clearly testified that the defendant’s blue van was stopped in the left turn lane waiting for the through traffic to clear. This evidence is inconsistent with the defendant having the right of way with an advance green light.

[25] Thus on the facts of this case, the competing duties described in ss. 174 and 128 of the Motor Vehicle Act are squarely in issue. The burden of proof described in Dawes is not applicable where neither of the drivers had a presumptive right of way. Instead, the Court must examine the conduct of each driver to determine if they complied with their respective duties under ss. 174 and 128 of the Motor Vehicle Act…




[27] In my view, it is apparent that the plaintiff decided to increase his speed and “run” the yellow light in contravention of s. 128 of the Motor Vehicle Act in order to avoid the red light. It was only coincidental with the light turning yellow that he saw the defendant’s vehicle. It was not the presence of the defendant’s vehicle that led to the plaintiff’s decision to increase his speed in order to avoid a collision…

[29] In this case, however, I find the defendant did not assess whether the plaintiff was an immediate hazard or not when deciding to proceed with the left turn. Instead, the defendant wrongly assumed that he had the right of way due to the presence of an advance green signal. Instead of focusing on the oncoming traffic and any potential hazards created by those drivers, the defendant concentrated on ensuring there was no cross traffic or pedestrians in the crosswalk while he turned left. He looked left, then right, then left again before he looked ahead at oncoming traffic. By this time it was too late because the collision had already occurred. In my view, the defendant neglected to take the proper steps to ensure there was no oncoming traffic before he proceeded into the left turn. In this regard, I find the facts of this case are similar to those in Shirley where Mackenzie J. (as he then was) concluded that both drivers were at fault, the oncoming driver for running a yellow light and the left turning driver for proceeding into the turn when her view of the intersection and the oncoming traffic was partly blocked.

[30] For these reasons, I find that both the plaintiff and the defendant are at fault and their respective negligence both contributed to the accident. The degree of fault does not differ significantly. The defendant proceeded into a left turn without keeping a lookout for oncoming traffic due to his mistaken assumption that he had an advance green light. The plaintiff was equally at fault for increasing his speed and attempting to travel through the intersection before the light turned red and following an established amber. Accordingly, I find the plaintiff and the defendant each 50% responsible for the accident.

More Judicial Authority of "Responsive" Independent Medical Exams

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams. 45 Comments on More Judicial Authority of "Responsive" Independent Medical Exams

One of the New Rules which has received more attention than most is Rule 11-6(4) which deals with responsive reports.  The issue of whether the Court could order a Plaintiff to undergo a physical exam for a responsive report has been considered a good half dozen times.  In short the authorities have held that such an order is possible but the Courts have been conservative in making these orders to date.  Further reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this topic.
In this week’s case (Mahil v. Price) the Plaintiff was injured in a 2007 motor vehicle collision.  The Defendants did not order an independent medical report in the timelines allowed by Rule 11-6(3) and brought a motion for an exam less than 84 days before trial.  They argued that they only wished to obtain a ‘responsive’ report and that the report would comply with Rule 11-6(4).  Mr. Justice Voith held that such an appointment was permitted and allowed the order.  In doing so the Court provided the following reasons:








[21] Rule 7-6(1), formerly Rule 30, allows for the conduct of an independent medical examination. The object of Rule 30 was succinctly described by Finch J.A., as he then was, in Stainer v. ICBC, 2001 BCCA 133 at para. 8:

…the purpose of Rule 30 is to put the parties on an equal footing with respect to medical evidence. …

[22] The object of placing the parties on an equal footing is, however, only achieved in real terms if the parties also adhere to those rules which govern the timely exchange of both initial expert reports and responsive expert reports.

[23] The important relationship of what was Rule 30 and what is now Rule 7-6(1) and those Rules which pertain to the time limits for the exchange of expert reports has been recognized in other decisions. In Wright v. Brauer, 2010 BCSC 1282, Savage J. said at para. 9:

In the context of an action seeking compensation for personal injuries, the parties are on equal footing with respect to medical evidence if they can independently obtain medical evidence and if such evidence is served in accordance with the Rules.

[24] In the case of Mackichan v. June and Takeshi, 2004 BCSC 1441, Master Groves, as he then was, said at para. 11:

… It is not simply a question of putting the parties on a level playing field at this stage, it is a question of really balancing the prejudice which will result to the defendants in not having a report and the prejudice that will result to the plaintiff in having a report prepared late which would no doubt, I expect, cause an adjournment of the trial.

[25] If the defendants have Dr. Gropper prepare a properly responsive report, and if that report is delivered in accordance with the Rules, the interests of both parties are concurrently advanced and safeguarded.

[26] I have, based on a request I made, been advised by counsel for the defendants that Dr. Gropper would be able to deliver his report in advance of the 42 days provided for in Rule 11-6(4).

[27] Notwithstanding some misgivings about some of the issues advanced by the defendants, I do not believe that it would be either prudent or appropriate for me to pre-determine that the specific concerns raised by the defendants will not, in fact, be properly responsive to the Reports.

[28] I have, however, earlier in these reasons, identified with some precision the very narrow issues that the defendants assert they wish to respond to in the Reports. These reasons should provide some safeguard against Dr. Gropper’s report extending or straying beyond its permitted ambit, whether inadvertently or otherwise. I note, as did Saunders J., as she then was, in Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7 at para. 7 (S.C.), that truly responsive evidence:

… does not permit fresh evidence to masquerade as an answer to the other side’s report.

[29] I am therefore prepared to grant the defendants’ application. Costs are to be in the cause.









ICBC Application to Move Lawsuit to Small Claims Denied, Court Finds it "Most Unsafe" to do so

Written by admin on . Posted in Civil Procedure, Uncategorized.


As previously discussed, Section 15 of the Supreme Court Act allows the Court to transfer a lawsuit to the Provincial Court (Small Claims) in certain circumstances.  Reasons for judgement were released today making it clear that such applications will rarely succeed in personal injury lawsuits.
In today’s case (Chang v. Wren) the Plaintiff was involved in a collision and sued for damages in Supreme Court.  ICBC brought an application to move the case to Small Claims Court.  Mr. Justice McEwan expressed “difficulty appreciating the motivation for the application” and dismissed it.  In doing so the Court noted the well-known delay in getting trial dates for personal injury lawsuits in Provincial Court and further the difficulty in predicting that any given case would be worth less than $25,000 in a summary hearing.  The following useful reasons were provided:


[3] I must say I find it unusual that a defendant brings such an application and had some difficulty appreciating the motivation for the application, given that the sanction in costs and in depriving the plaintiff of costs following a Supreme Court hearing would appear, in my view, to be more advantageous than the inevitable result of putting the matter down to Provincial Court, which would be a trial some eight months from when the trial is presently set in August of 2011 in Provincial Court, and a further proceeding by way of mandatory mediation in the Provincial Court.

[4] Whatever the merits of the respective parties’ positions as to the ultimate quantum of damages in this matter, it seems to me that the appropriate disposition is to see that it gets to trial before a competent tribunal as quickly as possible, and with as little procedural clutter as possible.  That militates strongly in favour of the Supreme Court retaining this matter within its precincts, where there is a far greater likelihood, in the present circumstances, of a trial being held when it is scheduled, than there is in the Provincial Court.

[5] Circumstances might be different if it could be reliably assumed that Provincial Court would get the matter on quickly and be done with it faster than a Supreme Court, but while I am not prepared to go so far as to say I take judicial notice of anything in particular, I certainly will observe that I do not think I can behave on the basis of that particular fiction.

[6] What this application amounts to is a request to the court to summarily assess the evidence without hearing from any witnesses or without hearing from the plaintiff herself and determine that the matter would come in under $25,000.  That would depend on the court reading the medical reports, essentially as the defence suggests I should, and I do not think it is something that a responsible court could really do.

[7] The plaintiff has chosen the Supreme Court of British Columbia.  She will have been advised of the hazards of bringing a Small Claim jurisdiction matter in this court, but if she is determined to proceed and to have a determination in Supreme Court, I think it would have to be established very, very firmly that the damages she claims could not exceed $25,000, before the court would entertain such an application.

[8] Counsel have provided some case law reflecting what the test is for bringing the matter down to Provincial Court.  My own view is that in a case where the liquidated damages could not possibly exceed $25,000, it might be clear, but in a case of this kind where the nuances of personal experience may have a significant bearing on the court’s assessment, perhaps even notwithstanding the medical evidence, it would be most unsafe to summarily decide that the case could not exceed the limits of the Small Claims jurisdiction.

[9] So on the basis that, first of all, it appears to be more efficient to continue in Supreme Court, and secondly, on the basis that it is, in any event, the plaintiff’s right to choose the forum, where there is any doubt about the appropriate jurisdiction, I think it better at this stage of this proceeding, post-discovery and a few months to trial, for the matter to remain in Supreme Court.

[10] I dismiss the application.


Wrongful Death Claims in BC and the Definition of "Spouse"

Written by admin on . Posted in Uncategorized.


BC’s Family Compensation Act permits a defined class of family members to sue for damages following the wrongful death of a loved one.  Spouses are part of this defined class.  However, the definition of spouse goes beyond legally married individuals and also includes a person who “lived and cohabited with the deceased in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years ending no earlier than one year before the death“.
In last week’s case (James v. Gillis) Ms. James died in a motor vehicle collision in 2006.   Mr. Cornet claimed he was the spouse of Ms. James and sought damages under the Family Compensation Act.  ICBC took the position that he was not a spouse as defined by the Act and denied the claim.  The matter went to trial and ultimately Madam Justice Watchuk agreed that Ms. Cornet was a “spouse” as defined by the FCA and was able to claim damages.
While the relevant discussion is far too lengthy to reproduce here, the Court extensively canvassed the law regarding the definiton of spouse and “marriage-like relationship” for the purpose of FCA claims at paragraphs 48-52 of the reasons for judgement and these are worth reviewing in full for anyone interested in this area of the law.
While on this topic I should again point out that a proposed amendment to the Family Compensation Act passed First Reading this Spring and will hopefully pass into law during the Legislature’s next session.