Skip to main content

Tag: bc injury law

"Frightened" Claimant Excused From Obtaining Information From Motorist in s. 24 ICBC Claim

Written by admin on . Posted in Uncategorized. 45 Comments on "Frightened" Claimant Excused From Obtaining Information From Motorist in s. 24 ICBC Claim


As previously discussed, one of the conditions to successfully sue ICBC under section 24 of the Insurance (Vehicle) Act following a hit and run collision is to take “all reasonable efforts” to ascertain the identity of the at fault motorist.  Failure to do so can be fatal to the claim.  Reasons for judgement were released this week by the BC Supreme Court, Duncan Registry, discussing this requirement.
In this week’s case (Burton v. ICBC) the Plaintiff was involved in a rear-end crash in 2008.  It was a dark and rainy night and the Plaintiff was travelling alone.  Following the collision the rear motorist “immediatley began banging on the windows (of the Plaintiff’s vehicle)…(and) yelled ‘move the car off the road, let’s get this over and done with bitch’ “.  The Plaintiff remained in her vehicle and the rear motorist then “slammed (the Plaintiff’s) door, returned to his vehicle, backed away and then passed by on her right side…and disappeared from her view”.
The Plaintiff sued ICBC for damages under section 24 of the Insurance (Vehicle) Act.  ICBC denied liability arguing that the Plaintiff had a reasonable opportunity to obtain the at fault motorists details and she failed to discharge her responsibilities under this section.  Mr. Justice Macaulay rejected ICBC’s arguments and awarded the Plaintiff damages.  In doing so the Court provided the following reasons:

[26] Section 24 and its predecessor have been judicially considered and applied many times. While the fact patterns in the cases are understandably divergent, there is little, if any, controversy in the law. In Leggett v. Insurance Corp. of British Columbia (1992), 72 B.C.L.R. (2d) 201 (B.C.C.A.), the Court of Appeal, referring to the predecessor section, set the bar fairly high for plaintiffs, stating at para. 9:

In my view the overall purpose of the section is to limit the exposure of [ICBC] to claims brought by persons who, in the matter of seeking to identify those responsible for the accident, have done everything they reasonably could to protect what ordinarily would be in their own interests, and which, by virtue of the section, become the interests of the corporation.

…

[31] I am persuaded that the fear and anxiety that Mrs. Burton felt in the circumstances provides a reasonable justification for her failure to ask the driver to properly identify himself or to attempt to identify the license plate. As a woman alone in a car at night, faced with aggressive threatening behaviour, her first concern was legitimately for her safety and to avoid confronting the driver.

[32] I accept that Mrs. Burton never chose, as did the plaintiff in Leggett, not to pursue her obligation. Instead, after reporting the matter to the police, she and her husband, along with friends, looked for the other vehicle. When they thought they might have found it, Mrs. Burton appropriately passed the information on to the police. At that point, it was reasonable, given the location of the vehicle on private property and the conduct of the driver at the time of the collision, that the police, rather than Mrs. Burton, take the investigative steps necessary to confirm whether the vehicle parked on Gibbons Road was involved. She is not responsible for their failure to do so.

[33] Also, Mrs. Burton’s obligation did not extend, in the circumstances, to doing more. I am not persuaded that postings or advertising for witnesses had any realistic prospect of eliciting information that would identify the other vehicle or the driver.

[34] I am satisfied that Mrs. Burton has satisfied the obligations that s. 24(1) places on her. She is entitled to judgment against ICBC as the nominal defendant.

$60,000 Non-Pecuniary Damage Assessment for STI's Imposed on Pre-Existing Injuries

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

Reasons for judgement were released this week dealing with damages for soft tissue injuries imposed on pre-existing symptomatic injuries.
In this recent case, (Hosking v. Mahoney), the Plaintiff was injured in a 2004 motor vehicle collision.  She had pre-existing injuries from previous collisions and as a result had some on-going symptoms.  Mr. Justice Warren found that the new injuries would likely continue well into the future and assessed non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $80,000 then reduced this award by 25% to account for the Plaintiff’s pre-existing injuries.  In reaching this result the Court provided the following reasons:

[178] I find that the plaintiff suffered a mild to moderate soft tissue injury to her cervical and upper thoracic areas as a result of the February 2004 accident.  This was superimposed on her already symptomatic condition caused by the earlier accidents and although she had started to make the expected recovery, the process was interrupted by her falls.  Normally, these would not have affected the plaintiff but she was more vulnerable as a result of the three accidents.  There is no orthopaedic or neurological cause.  It is probable that these complaints will continue well into the future but can be managed and alleviated by an appropriate exercise programme (as recommended by her medical advisors as early as Dr. Parhar in March 2003) and by such passive therapies as may, from time to time, help alleviate her symptoms.

[179] Using the authorities relied upon by counsel as a template, for each case depends on its own unique features, I assess the plaintiff’s general damages at $80,000 which I reduce by 25% as attributable to or an apportionment for her pre-existing symptomatic injuries and her intervening falls.

Court Finds Plaintiffs Can Face Costs Risks If Defendant Succeeds in Contributory Negligence Claim

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized. 59 Comments on Court Finds Plaintiffs Can Face Costs Risks If Defendant Succeeds in Contributory Negligence Claim


Reasons for judgement were released last week by the BC Supreme Court finding that Rule 14-1(15) provides the court with discretion to award costs to a Defendant following a finding of contributory negligence as against a Plaintiff.
In last week’s case (Brooks-Martin v. Martin) the Plaintiff was involved in a motorcycle collision.  At trial she was found 30% at fault with the Defendant bearing 70% of the blame.  The Court awarded the Plaintiff 70% of her costs in accordance with the BC Negligence Act.  Although not specifically asked to address this issue, the Court went further and found that the Rules of Court permit a costs award to be made against a Plaintiff if they are found contributorily negligent.  Mr. Justice Halfyard provided the following reasons:

[41] Section 3 of the Negligence Act directs that the plaintiff shall receive 70% of her costs of this proceeding, from the defendant Martin. But that statute does not entitle the defendant Martin to receive 30% of his costs of the proceeding, from the plaintiff, because he sustained no damage or loss. See Bedwell v. McGill 2008 BCCA 526 at paras. 29-30 and 32.

[42] However, the defendant Martin was successful on the issue of contributory negligence on the part of the plaintiff. In my opinion, the costs entitlement of the plaintiff is defined solely by theNegligence Act. That statute directs that the plaintiff shall recover 70% of her costs of the proceeding from the defendant Martin. It seems to me that the Rules of Court relating to costs should govern the issue of whether the defendant Martin should recover any of his costs from the plaintiff. Rule 14-1(15) reads in part:

(15)      The court may award costs

. . .

(b)        that relate to some particular application, step or matter in or related to the proceeding . . .

[44] I think that the issue of whether the plaintiff was contributorily negligent is a “matter in or related to the proceeding” under the new rule… I conclude that the court has the discretion to award costs of the contributory negligence issue, to the defendant Martin. I am not suggesting that such costs should be awarded, only that the court has jurisdiction to entertain such an application under the Rules of Court.

Can Pleadings Be Amended After Trial?

Written by admin on . Posted in BCSC Civil Rule 6, Civil Procedure. 103 Comments on Can Pleadings Be Amended After Trial?


Once a Notice of Trial has been served or a Case Planning Conference is held a party can only amend their pleadings with permission of all other parties or with leave of the Court.  The Court can allow an amendment of pleadings under Rule 6-1 during (or even after) trial as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (0679372 B.C. Ltd. v. The Winking Judge Pub Ltd.) the Plaintiff’s claim proceeded to trial and was successful.  Following trial, but prior to entry of a formal order, the Plaintiff brought an applicaiton to amend it’s pleadings “to conform with the evidence at trial, and to conform with the Reasons for Judgement delivered“.
Madam Justice Smith granted the applicaiton finding this was an appropriate case to allow pleadings to be amended.  In making this finding the Court provided the following reasons:

[6] In Canadian National Railway Co. v. Imperial Oil Ltd., 2007 BCSC 1193, [2007] B.C.J. No. 1743 [C.N.R.] the following principles regarding amendments were set out at para. 18 with respect to the exercise of the Court’s discretion to permit amendments to pleadings during or at the conclusion of a trial:

(a)    the amended pleadings must not be inconsistent with the pleadings already filed on behalf of the party seeking an amendment;

(b)    the amended pleadings must not be inconsistent with the evidence tendered by that party at trial and on discovery;

(c)    the amended pleadings must be such that they would not have changed the whole course of the trial had they been requested at the outset of the trial;

(d)    the amendment must not be unfair to the opposite party; and

(e)   the amendment must be necessary for the purpose of determining the real issues raised.

[7] In my view, the plaintiff’s application for leave to amend should be granted.  It is consistent with the pleadings already filed.  It is not inconsistent with evidence tendered by the plaintiff at trial (or on discoveries, so far as I am aware).  The amended pleadings would not have changed the course of the trial.  Permitting the amendment will not be unfair to the defendants, who were well aware of the evidence and who were given the opportunity to make submissions regarding the implications of a possible express trust.  Finally, the proposed amendment is necessary to record accurately the issues raised and determined in these proceedings.

Winners and Losers: More on Costs Consequences and Formal Settlement Offers

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 9, Uncategorized.


How can a Plaintiff who is awarded damages following a personal injury trial end up owing ICBC money?  The answer relates to the costs consequences that can be triggered by formal settlement offers.  I’ve discussed this topic previously and two sets of reasons for judgement were released this week by the BC Supreme Court further demonstrating this reality.
In the first case (Dempsey v. Oh) the Plaintiff was injured in a bicycle accident when he was struck by the Defendant’s vehicle.  In the course of the lawsuit ICBC made a formal settlement offer of $40,000.  As trial neared ICBC increased their formal offer to $165,000.  The Plaintiff rejected this and proceeded to trial.  At trial the Court made some critical findings relating to the Plaintiff’s credibility and awarded damages of just over $20,000.
Following trial ICBC asked for an order pursuant to Rule 9-1(5) that the Plaintiff pay all of the Defendant’s costs following their first formal offer.  The Plaintiff objected to such a result arguing that “if he is ordered to pay the defendant’s costs he will end up owing it money“.  Mr. Justice Myers rejected this argument and ordered that the Plaintiff pay the Defendant’s post offer costs.  In rejecting the Plaintiff’s submission the Court made the following comment “It is not the court’s function to ensure that a plaintiff makes a net recovery from an action when it has ignored a reasonable offer.  That would defeat the purpose of the Rule and does not accord with common sense”.
On another note, this case is worth reviewing in full for the Court’s discussion of Rule 14-1(10).  The Defendant argued that the Plaintiff should be deprived of his pre-offer costs as there was no sufficient reason to sue in Supreme Court.   Mr. Justice Myers rejected this argument finding that when the lawsuit was started the Supreme Court was an appropriate venue.  In making this finding the Court provided the following useful reasons:
[11]    In part due to the loss of income, this was a more complicated case than Ghelen.  This action was commenced approximately six months after the accident.  At that point I find it was reasonable for the plaintiff to have commenced the action in this Court because he was reasonably entitled to see the impact of the accident on his prior condition.  There is nothing in the rules which imposes a cost penalty on a party who files its suit quickly after its cause of action arises.  And, in Reimann v. Aziz, 2007 BCCA 448, the Court of Appeal held that there is no ongoing obligation on a party to assess his action as it progresses in the Supreme Court in order to consider whether it should be moved to Provincial Court.
In the second case released this week (Miller v. Boughton) the Plaintiff was injured in a 2006 collision.  She sued for damages and her case went before a jury.  The trial lasted 7 days.  Prior to trial ICBC made a series of escalating formal settlement offers starting at $22,000 with the final offer made shortly before trial topping out at $62,500.
The Plaintiff rejected these offers and proceeded to trial.  The Jury found the Plaintiff 45% at fault for the crash and the Defendant 55% at fault.   After taking this split into account the Jury’s award was a modest $3,880.  ICBC’s motion for post offer costs and disbursements was granted.  After factoring these in the Plaintiff likely ended up owing ICBC a significant amount of money.   (UPDATE September 12, 2011 – click here for follow up reasons confirming the Defendant’s costs were assessed at over $42,000)
Cases such as these illustrate the important lesson that formal offers create a “loser pays” system which could result in significant costs swings following trial.  When considering ICBC formal settlement offers it is important to keep this in mind when deciding whether to accept the offer or proceed to trial.

Dark Alley Assault Occupier's Liability Lawsuit Dismissed

Written by admin on . Posted in Occupier's liability claims.


Reasons for judgement were released last week by the BC Supreme Court, Kelowna Registry, dealing with an interesting issue: Can a commercial occupier be sued for an intentional assault for having inadequate lighting in their alleyway.
In last week’s case (Vaughn v. Kelowna Speedometer Ltd.) the Plaintiff was a patron at the Blue Gator Bar and Grill in Kelowna, BC.  After several hours he left the pub.  As he was walking in the pub’s back alley he was “assaulted from behind and seriously injured“.  His assailant was unknown.  The Plaintiff sued the Pub alleging that the alley had poor lighting and this contributed to the assault.  Mr. Justice Shabbits dismissed the lawsuit finding that even if the lighting was inadequate for the conditions it did not cause the assault using the “but for” test.  In dismissing the claim the Court provided the following reasons:

[23] In my opinion, the plaintiff has not shown that but for proper lighting he would not have been injured. I agree with the submission that additional lighting may have reduced the risk of an assault, but lack of lighting did not cause the assault. The plaintiff could have been assaulted in daylight hours, or assaulted farther down the alley. It is speculation to infer that lighting was a factor in the assault occurring. Even assuming that the lighting at the rear of the Blue Gator was inadequate, the evidence is not capable of proving, on a balance of probabilities, that Mr. Vaughn would not have been injured had proper lighting been in place.

[24] Mr. Vaughn bears the burden of showing that “but for” the negligent act or omission, the injury would not have occurred. There is no evidence on which I would find that but for adequate lighting, the injury would not have occurred. I am of the opinion that it has not been shown, on a balance of probabilities, that a lack of lighting caused Mr. Vaughn’s loss.

Leave to Appeal In Bradley Denied; Welcome Certainty for Indivisible Injury Compensation

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


In an ICBC Claim decided last year the BC Court of Appeal simplified the approach for compensation for indivisible injuries caused by multiple events.  ICBC sought to overturn this decision and recently the Supreme Court of Canada refused leave (meaning they decided not to hear the case putting an end to the appeal).  For the sake of convenience here are the Court of Appeals key reasons explaining how indivisible injuries should be treated in British Columbia:

[32]        There can be no question that Athey requires joint and several liability for indivisible injuries.  Once a trial judge has concluded as a fact that an injury is indivisible, then the tortfeasors are jointly liable to the plaintiff.  They can still seek apportionment (contribution and indemnity) from each other, but absent contributory negligence, the plaintiff can claim the entire amount from any of them.

[33]        The approach to apportionment in Long v. Thiessen is therefore no longer applicable to indivisible injuries.  The reason is that Long v. Thiessen pre-supposes divisibility: Longrequires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial.  Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[34]        That approach is logically incompatible with the concept of an indivisible injury.  If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either.  It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff.  This in no way restricts the tortfeasors’ right to apportionment as between themselves under the Negligence Act, but it is a matter of indifference to the plaintiff, who may claim the entire amount from any defendant.

[35]        This is not a case of this Court overturning itself, because aspects of Long v. Thiessen were necessarily overruled by the Supreme Court of Canada’s decisions in Athey,E.D.G., and Blackwater.  Other courts have also come to this same conclusion: see Misko v. Doe, 2007 ONCA 660, 286 D.L.R. (4th) 304 at para. 17.

[36]        It may be that this represents an extension of pecuniary liability for consecutive or concurrent tortfeasors who contribute to an indivisible injury.  We do not think it can be said that the Supreme Court of Canada was unmindful of that consequence.  Moreover, apportionment legislation can potentially remedy injustice to defendants by letting them claim contribution and indemnity as against one another.

[37]        We are also unable to accept the appellant’s submission that “aggravation” and “indivisibility” are qualitatively different, and require different legal approaches.  If a trial judge finds on the facts of a particular case that subsequent tortious action has merged with prior tortious action to create an injury that is not attributable to one particular tortfeasor, then a finding of indivisibility is inevitable.  That one tort made worse what another tort created does not automatically implicate a thin or crumbling skull approach (as in Blackwater), if the injuries cannot be distinguished from one another on the facts.  Those doctrines deal with finding the plaintiff’s original position, not with apportioning liability.  The first accident remains a cause of the entire indivisible injury suffered by the plaintiff under the “but for” approach to causation endorsed by the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.  As noted by McLachlin C.J.C. in that case, showing that there are multiple causes for an injury will not excuse any particular tortfeasor found to have caused an injury on a “but-for” test, as “there is more than one potential cause in virtually all litigated cases of negligence” (at para. 19).  It may be that in some cases, earlier injury and later injury to the same region of the body are divisible.  While it will lie for the trial judge to decide in the circumstances of each case, it is difficult to see how the worsening of a single injury could be divided up.

Inspecting Your Opponent's Documents and Location: Rule 7-1(17)

Written by admin on . Posted in BCSC Civil Rule 17, Uncategorized. 110 Comments on Inspecting Your Opponent's Documents and Location: Rule 7-1(17)


The BC Supreme Court Rules set out the requirements of parties to list relevant documents and make these available to opponents in litigation.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with the Court’s discretion addressing where and when documents can be inspected by opposing parties.
In today’s case (More Marine Ltd. v. Alcan Inc.) the Defendant’s list of documents included 125 boxes of materials which were stored in Kitimat, BC.   The Plaintiff lived in the lower mainland and argued that the documents need to be made available in Vancouver (the location of the Defendant’s lawfirm) for inspection.  The Defendant disagreed and argued that the documents should be inspected in Kitimat.  The Court sided with the Defendant and in doing so Mr. Justice Burnyeat provided the following reasons:

[4] Rule 7?1(15) of the Rules of Court provides:

A party who has served a list of documents on any other party must allow the other party to inspect and copy, during normal business hours and at the location specified in the list of documents, the listed documents except those documents that the listing party objects to producing.

[5] However, Rule 7?1(17) of the Rules of Court provides:

The court may order the production of a document for inspection and copying by any party or by the court at a time and place and in the manner it considers appropriate.

[6] While Rule 7?1(15) uses the words “must allow” and “at the location specified”, I am satisfied that the Court retains a discretion under Rule 7?1(17) of the Rules of Court to order production at a time and place “it considers appropriate”.  If there was no discretion available to the Court, then Rule 7?1(17) would be superfluous.

[7] In McLachlin and Taylor, the Learned Authors make this statement regarding the location specified under Rule 7?1(17):

Place specified for inspection should be reasonable.  Books or business records in use are frequently inspected at the place of business.  Other documents are commonly inspected at the office of the solicitor representing the party in questions.  (at p. 7?123)….

[9] Given the number of documents involved and the nature of the documents, it is unrealistic to expect that either party will want copies made of all of the documents…

[10] Here, it would be very costly to make copies of all of the documents in the 125 boxes and, accordingly, that is not an alternative that is available.  The Plaintiff alleges an exclusive contract to carry the product of the Defendant and a breach of that contract.  The documents to be inspected relate to work that was undertaken by third parties in alleged contravention of the contract between these parties.  A number of the documents are invoices relating to work allegedly lost and the damages flowing to the Plaintiff as a result of the work that was lost.  The many thousands of documents may well be summarized by agreement into several pages once totals are taken from the documents inspected in order to arrive at work which is said to be in contravention of the contract between the parties.  Accordingly, I cannot conclude that it will take weeks for a representative of the Plaintiff to examine the documents in the 125 boxes.

[11] Here, the business of the Plaintiff was carried on in Kitimat and these business records have been retained in storage in Kitimat.  In the circumstances, I am satisfied that I should exercise the discretion available to me to designate Kitimat as the place where the documents will be available for inspection and copying.  After initial inspection has been undertaken, it may well be that the principal of the Plaintiff may be in a position to provide specificity of the further documents to be inspected such that it will not be necessary for all 125 boxes of documents to be inspected.

[12] The documents on the List of Documents of the Defendant relating to the documents stored in the 125 boxes of materials in Kitimat will be made available by the Defendant in Kitimat.  Costs will be costs in the cause.

The Significant Role of Expert Evidence in Personal Injury Trials

Written by admin on . Posted in BCSC Civil Rule 11, ICBC Brain Injury Cases, ICBC Head Injury Cases, Uncategorized.

When presenting a claim at trial dealing with future loss it is vital to have appropriate expert evidence to justify sought damages.  Failure to do so can result in a dismissal of the sought damages even if they are unopposed.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry highlighting the importance of medico-legal evidence in personal injury trials.
In this week’s case (Moore v. Briggs) the Plaintiff suffered a fractured skull (fractured left temporal bone) and a brain injury in a 2003 assault.

The Plaintiff sued those he claimed were responsible for the assault.  One of the Defendant’s did not respond to the lawsuit and the Plaintiff obtained default judgement against him.  The Plaintiff asked the Court to award substantial damages including an award for diminished earning capacity.  Despite the Plaintiff’s assessment of damages being unopposed the Plaintiff was only awarded a fraction of his claimed damages and he received nothing for future loss.
In assessing non-pecuniary damages at $40,000 and dismissing the claim for diminished earning capacity Madam Justice Dillon provided the following reasons:

[11] As a result of the assault, the plaintiff continues to have some problem with memory. This has improved over time such that it does not interfere with work or enjoyment of life, but still lingers. He also has difficulty with attention span and focus. He continues to have almost daily headaches. These often interrupt his sleep. He noticed that eye near the indentation in his temple was “lazy”, a couple of times a week at first and now hardly noticeable.

[12] For about four years after the assault, the plaintiff had problems with balance such that he could not walk a straight line and was dizzy when he looked down. He wanted to obtain employment as a greenhand on the log booms but did not consider that he could do the job. This would have increased his hourly pay to $24. Few details were provided about this job prospect. There was no medical evidence to support this inability and the plaintiff testified that any problems with balance had now resolved…

[17] Here, there is evidence of a small depressed comminuted fracture of the left temporal bone that resulted in some memory and motor impairment. From the testimony of the plaintiff, it appears that the motor impairment has resolved over time. There continue to be memory problems, the exact nature of which has not been assessed on a current basis. There are also some continuing headaches that are attributed to the fracture in 2003. The plaintiff lost about two months work and has successfully resumed his career and achieved advancement. His social life appears stable and normal. Any present loss of enjoyment of activities is because of lack of interest as opposed to ability…

[22] After consideration of these authorities and in consideration of the plaintiff’s description of his injury, and given the lack of medical information, non-pecuniary damages are assessed at $40,000…

[24] The plaintiff also claims loss of future earning capacity because of inability to obtain employment on the log booms. He calculated this amount based upon expectations of work life to age 65 at the remuneration rate that he said he would have received as a greenhand. This is contrary to the capital asset approach which has been adopted in this Court (Parypa v. Wickware, 1999 BCCA 88 at para. 63). However, the evidence on this aspect of the claim is scant and unsupported by any medical or actuarial evidence. Further, the plaintiff had successfully advanced in his work at present and said that this is his employment of choice. Further, there was no evidence that his employment aggravated his symptoms. The plaintiff must establish that there is a real and substantial possibility that his earning capacity has been impaired to some degree as a result of the injuries sustained in the assault (Romanchych v. Vallianatos, 2010 BCCA 20 at para. 10). In my view, there is little likelihood of any substantial possibility of an actual income loss in the circumstances here. There is nothing to suggest that the plaintiff will be unable to perform the tasks required in his work of choice. Nothing is awarded under this head of damage.

Rule 20-2: Disabled People Must Use a Lawyer to Sue in the BC Supreme Court

Written by admin on . Posted in BCSC Civil Rule 20, Uncategorized. 119 Comments on Rule 20-2: Disabled People Must Use a Lawyer to Sue in the BC Supreme Court


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing the requirement that disabled people must be represented by a lawyer (or the Public Guardian and Trustee) when suing in the BC Supreme Court.  In short the Court held that despite some minor changes in language, the current Rule 20-2 is to be applied identically to the former Rule 6(4).
In today’s case (Sahyoun v. Ho) the plaintiff was “incapable of managing himself or his affairs” and his father was appointed as his committee.  Shortly after this the committee started a complex lawsuit on the Plaintiff’s behalf against numerous defendants.  He did not hire a lawyer to assist with the process.   Some of the Defendants brought a motion seeking directions as the lawsuit was not brought in compliance with Rule 20-2.  Mr. Justice Voith found that the Court has no discretion to deviate from Rule 20-2 and ordered that the lawsuit be stayed.  In doing so the Court provided the following reasons:

[13] Rule 20-2 of the Rules of Court deals with persons who labour under a legal disability. The relevant portions of the Rule provide:

Start of proceedings by person under disability

(2) A proceeding brought by or against a person under legal disability must be started or defended by his or her litigation guardian.

…

Lawyer must be involved

(4) A litigation guardian must act by a lawyer unless the litigation guardian is the Public Guardian and Trustee.

…

Committee as litigation guardian

(6) If a person is appointed committee, that person must be the litigation guardian of the patient in any proceeding unless the court otherwise orders.

[14] Rule 20-2(4) is very similar to R. 6(4) of the former Rules of Court. Arguably, the wording is now stronger. Formerly, R. 6(4) stated that the litigation guardian “shall act by a solicitor…” R. 20-2(4) now states that the litigation guardian “must act by a lawyer…”. Both “shall” and “must” are, however, defined in s. 29 of the Interpretation Act, R.S.B.C. 1996, c. 238 as “imperative”.

[15] Rule 22-7(2) sets out the powers of this court when there has been non-compliance with the Rules:

Powers of court

(2) Subject to subrules (3) and (4), if there has been a failure to comply with these Supreme Court Civil Rules, the court may

(a) set aside a proceeding, either wholly or in part,

(b) set aside any step taken in the proceeding, or a document or order made in the proceeding,

(c) allow an amendment to be made under Rule 6-1,

(d) dismiss the proceeding or strike out the response to civil claim and pronounce judgment, or

(e) make any other order it considers will further the object of these Supreme Court Civil Rules.

[16] This court has interpreted the requirement that a litigation guardian “act by a lawyer” as set out in R. 20-2(4), and formerly under R. 6(4), very strictly. In Daniel v. ICBC, 2002 BCCA 715,  the plaintiff had sustained a brain injury in a car accident as child. When he was 23 years of age his mother sought to act on his behalf as his committee under the Patients Property Act, R.S.B.C. 1996, c. 349.

[17] She was not able to afford to retain a lawyer. Southin J.A. (in Chambers) did not permit her to proceed and stated:

[3] As I see the present situation, Mrs. Daniel has no status whatever in this Court on her own to sue on behalf of her son even if the Style of Cause here were to be amended accordingly.

[4] Since, obviously, the Daniels are not able to afford solicitors to act for them, this action cannot be brought in Mrs. Daniel’s name. To put it another way, as this action was intended to be on behalf of Attila, either he must bring the action or his guardian ad litem must bring the action, but a guardian ad litem must act through a solicitor and not in person. Those are the rules. The only other suggestion I can give is that Mrs. Daniel see the Public Trustees Office and see whether anything can be done….

…

[28] I have decided to stay the action. I do not believe it would be appropriate, at this stage, to strike the plaintiffs’ claim. It may be that the plaintiffs will be able to find a lawyer to assist them. In saying this, I am mindful that the continued existence of the action, notwithstanding the fact that it has been stayed, is a source of some difficulty for the Defendant Physicians.