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Limited Application Provided to ICBC's "Attached Equipment" Exclusion

Written by admin on . Posted in Uncategorized. 46 Comments on Limited Application Provided to ICBC's "Attached Equipment" Exclusion


While ICBC does provide coverage for most tort claims following BC motor vehicle accidents there are certain exclusions to their coverage.  Last week the BC Court of Appeal released useful reasons for judgement addressing the scope of ICBC’s “Attached Equipment” exclusion.
In last week’s case (Wormell v. ICBC) the Plaintiff was injured in a 2003 incident when he was helping a friend transport some goods.  Their vehicle stopped at a weigh scale.  The Plaintiff stood on top of the cargo.  At the same time, the Defendant was operating a crane attached to the vehicle intending to lift the cargo.  The cargo shifted while the Plaintiff was still standing on it and in the “agony of the moment” the Plaintiff jumped off the truck to the ground which was some 12 feet below.  In jumping on the ground the Plaintiff suffered various injuries including a “crush fracture to the left ankle and a tear to the anterior cruciate ligament of his right knee“.
The Plaintiff sued for damages and following trial the Defendant was ordered to pay just over $570,000 in damages.  The Defendant was insured by ICBC.  The Plaintiff applied, pursuant to section 76(2) of the Insurance (Vehicle) Act for ICBC to pay the judgement.  ICBC refused to pay arguing that this claim fell outside of the scope of coverage because of section 72(2) of the Insurance (Vehicle) Regulation which states that:
“The corporation shall not indemnify an insured for liability imposed by law for injury, death, loss or damage arising, directly or indirectly, out of the operation of attached equipment at a site where the attached equipment is being operated…“
The Plaintiff sued ICBC and succeeded.  ICBC appealed arguing that the claim fell within this exclusion.  The BC Court of Appeal disagreed and dismissed ICBC’s appeal.  In doing so the Court provided the following reasons limiting the scope of ICBC’s ‘attached equipment’ exclusion:

[21] To repeat, the language of this exclusion is as follows:

(2)        The corporation shall not indemnify an insured for liability imposed by law for injury, death, loss or damage arising directly or indirectly, out of the operation of attached equipment at a site where the attached equipment is being operated, unless the attached equipment …

[22] ICBC’s position is that anywhere the crane is being used to load or unload cargo from the truck, or to move other loads, is “a site where the attached equipment is being operated”.

[23] This proposition is at odds with the presumption against tautology.  All words in a provision are to be taken to have meaning.  To interpret this clause as ICBC would, that whenever the crane is being operated it is at a site, effectively strikes out or renders superfluous the words “at a site where the attached equipment is being operated”.

[24] A plain reading of s. 72(2) leads to the conclusion that some losses from the operation of the attached equipment would be covered by ICBC.  Otherwise, the clause “at a site where the attached equipment is being operated” is meaningless.  The appellant argues in effect “everywhere” and “every time” the crane is operated it is at a site.

[25] If that were the case, then s. 72(2) would simply have read as follows:

(2)        The corporation shall not indemnify an insured for liability imposed by law for injury, death, loss or damage arising, directly or indirectly, out of the operation of attached equipment …

[26] To give meaning to the words “at a site where the attached equipment is being operated” requires that “site” refer to something more, such as work sites or the site of the owner’s business operations.  The appellant has not raised an alternative meaning or function that would not render the words “at a site” meaningless or superfluous.

[27] In accordance with the principles of interpretation for statutes and insurance policies, the clause means that the automobile insurance policy covers accidents caused by the attached equipment unless it was being used for business operations at a work site.  That was no doubt the intent of the drafters, namely to exclude losses arising from business operations.

[28] On the appellant’s interpretation the only time the vehicle would not be at a site, and the exclusion would not apply, would be when the truck and crane were in transit from place to place.

[29] Such an interpretation is not consistent with the reasonable expectations of the parties and if it had been intended, could have been achieved by much simpler and concise language directed to that end.

[30] I agree with the learned trial judge that the plain meaning of the words used in s. 72 is that the words “at a site where the attached equipment is being operated” mean, a site such as a construction site, a building site, or some other “work site”.

More on Responding Medical Reports and Physical Exams: Reconciling the Cases to Date

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized.


As previously discussed, a debate has arisen about if and when a Defendant is allowed to compel a Plaintiff to attend an ‘independent‘ medical exam in order to obtain a ‘responding‘ report under the BC Supreme Court Rules.  Very useful reasons were released this week by the BC Supreme Court, Victoria Registry, addressing and reconciling the various authorities considering this issue to date.
In today’s case (Labrecque v. Tyler) the Plaintiff was involved in three separate collisions.  He sued for damages and all three claims were set for trial at the same time.   In the course of the lawsuit the Plaintiff obtained  a report from his GP and from a physiatrist.  The Plaintiff intended to rely on the physiatrist’s report at trial.  The Defendants intended to rely on the GP’s report at trial.  The Plaintiff never attended a defence medical exam in the course of the lawsuit and as the trial neared one of the Defendant’s brought an application to compel the Plaintiff to attend an examination in order to get a ‘responding’ report.
In support of the application the proposed examiner swore an affidavit explaining that he needs to ‘physically examine the plaintiff and ask him the questions a doctor would ask in order to elicit information upon which to ground my opinions‘.    The application was dismissed finding that this falls short of what is required in order for a physical exam to be ordered as part of a responding report.  In dismissing the application Master Bouck provided the following useful reasons reconciling the authorities addressing this issue to date:

[28] In Wright v. Bauer, the court recognized that Rule 11-6(4) “filled a lacuna” in the Rules governing civil procedure in this province: para. 12. Parties are now specifically governed by a Rule regarding delivery of responsive written expert evidence. Prior to this Rule’s enactment, the delivery of such evidence was governed by common law principles.

[29] In that case, the application for an independent medical examination was brought nearly one month before the defence would have been required to serve a responsive report.

[30] In dismissing the defendant’s application, the court found that the applicant had not met the necessary evidentiary threshold justifying an order under Rule 7-6: para. 21.

[31] The same result is found in Boudreau v. Logan and Crane v. Lee, supra.

[32] In contrast, the court in Luedecke v. Hillman was satisfied that an order should go requiring the plaintiff’s attendance at an examination…

[35] In my view, the principles enunciated in Luedecke and Wright are consistent and entirely reconcilable. The difference between the outcomes in these two cases lies in the facts.

[36] In both cases, the court concerned itself with the evidence presented to support the necessity of an examination as well as the question of prejudice.

[37] Here, the evidence from Dr. Piper as to the necessity for an examination is rather general in nature. Dr. Piper refers to the reports of both Dr. Grimwood and Dr. MacKean when in fact the responsive opinion would concern only the latter’s report. Unlike the evidence from the proposed examiner in Luedecke, Dr. Piper does not specifically identify the “medical evidence” (other than the reports themselves) that can only be addressed if a physical examination of the plaintiff occurs. Rather, Dr. Piper’s evidence suggests that an examination is necessary to respond generally to the subject matter of the plaintiff’s case and, as such, is no justification for the order sought: Luedecke at para. 52.

$85,000 Non-Pecuniary Damages Assessment for Chronic Pain Syndrome

Written by admin on . Posted in ICBC Chronic Pain Cases, Uncategorized. 52 Comments on $85,000 Non-Pecuniary Damages Assessment for Chronic Pain Syndrome

Adding to this site’s archives of chronic pain cases, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain syndrome.
In last week’s case (Perry v. Perry) the Plaintiff was involved in two motor vehicle collisions.  She suffered from pre-existing health problems including PTSD and chronic pain.  She was injured in both collisions and this aggravated her pre-existing difficulties and caused new ones.  Ultimately she was diagnosed with a Chronic Pain Syndrome with a poor prognosis.  In assessing her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Melnick made the following findings:

41] Ms. Perry is a person who had had a number of challenging health issues prior to the first accident. Those issues included PTSD, which related to her childhood abuse, and problems with her feet and legs. She sometimes suffered from depressive episodes and had a history of alcohol and heroin abuse. She had multiple areas of pain that she experienced at least as far back as 2003. I conclude that, prior to the first accident, she was a person of some fragility with respect to both her physical and emotional health, likely the seeds of which were sown by her tragic childhood and exacerbated by her alcohol and drug use.

[42] That said, Ms. Perry, in the few years prior to the accident, had made real progress by putting her addictions behind her and, to a certain extent at least, engaging in life through education, volunteer work and a small amount of employment. She was, however, what I would describe as a “thin-skull” case: more at risk for emotional and psychological trauma than a normal person without Ms. Perry’s medical history would be: Athey v. Leonati, [1996] 3 S.C.R. 458. See also: Hussack v. School District No. 33 (Chilliwack), 2009 BCSC 852 at para. 143; . Thus, while the average otherwise healthy individual involved in the same type of accidents that Ms. Perry experienced may have suffered similar physical injury, that person would not be at the same risk of suffering the same psychological damage as Ms. Perry.

[43] I am satisfied that Ms. Perry suffers from chronic pain, which is largely attributed to the first accident, and to a minor extent to the second accident. She was not without pain and physical problems before these accidents and the defendants are not responsible for the extent to which those symptoms were already symptomatic: Athey at para. 35…

[51] Ms. Perry has several health issues, a large portion of which are attributable to these two accidents. Taking into account, as I have, that some of her current health situation is attributable to her past medical problems, I asses her overall non-pecuniary damages at $85,000. The seriousness of Ms. Perry’s injuries and her guarded prognosis are more in line with the authorities suggested by counsel for Ms. Perry.

Jury Dismissal Of Intersection Crash Claim Upheld on Appeal

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


(Accident Reconstruction Software courtesy of SmartDraw)
Adding to this ever-growing database of BC motor vehicle liability cases, reasons for judgement were released this week by the BC Court of Appeal upholding a Jury Verdict dismissing an injury claim following an intersection crash.
In today’s case (Bailey v. Jang) the Plaintiff was driving in a restricted-traffic curb lane as she approached an intersection.  At the same time the main lane in her direction of travel was backed up leaving a gap at the intersection.  The Defendant tried to make a left hand turn through the gap and the vehicles collided.  The Plaintiff sued for damages but her claim was dismissed with the Jury finding that the Defendant was not negligent.  The Plaintiff’s appeal was also dismissed with the Court finding that the jury’s verdict was not unreasonable.  In doing so the BC Court of Appeal provided the following reasons addressing some of the principles that come into play for crashes involving left-hand turning vehicles:

[11] Section 174 of the Motor Vehicle Act, R.S.B.C. 1996, states:

Yielding right of way on left turn

174.     When a vehicle is in an intersection and its driver intends to turn left, the driver must yield the right of way to traffic approaching from the opposite direction that is in the intersection or so close as to constitute an immediate hazard, but having yielded and given a signal as required by sections 171 and 172, the driver may turn the vehicle to the left, and traffic approaching the intersection from the opposite direction must yield the right of way to the vehicle making the left turn.

[12] Although, as asserted by the appellant, it is a logical corollary of the jury’s verdict that they concluded the appellant was 100% at fault for the accident, it is important to remember that the principal focus of this appeal is whether there was evidence on which the jury properly could have found that the respondent was not negligent.

[13] The appellant relies on Pacheco v. Robinson, (1993), 75 B.C.L.R. (2d) 273 para. 15 where this Court stated:

… the dominant driver who is proceeding through the intersection is generally entitled to continue and the servient left-turning driver must yield the right of way. The existence of a left-turning vehicle does not raise a presumption that something unexpected might happen and cast a duty on the dominant driver to take extra care. …

These comments were noted in Salaam v. Abramovic, 2009 BCSC 111 para. 26.

[14] The quotation of legal principle from Hiscox v. Armstrong, 2001 BCCA 258 and Pacheco is based on circumstances where the left-turning driver “proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way”. In Pacheco this Court found that the defendant “totally failed to determine whether [the] turn [could] be made safely”. In Salaam, the court held that the dominant driver “was there to be seen from 450 feet away” and that “[t]he plaintiff did not determine whether her turn could be done safely”. Such drivers cannot shift responsibility to the driver who has the right-of-way.

[15] Other cases relied on by the appellant show that a dominant driver is not without obligation. This was recognized in Pacheco wherein this Court distinguished a decision of the Ontario Court of Appeal on the basis that “[t]here was no indication here that traffic on the left hand side of the plaintiff had stopped so that the plaintiff should have been alerted to a situation of potential danger”. An obligation on a dominant driver to take care was recognized in Berar v. Manhas, [1988] B.C.J. No. 677, Reynolds. v. Weston, [1989] B.C.J. No. 49, and Clark v. Stricker, 2001 BCSC 657.

[16] These cases illustrate the fact that a left-turning driver is not without rights as is clear from the wording of s. 174. Too often drivers proceed through an intersection as if left-turning drivers have no rights. In each situation, the specific circumstances dictate whether a left-turning driver is at fault for a collision, in whole, in part, or not at all.

Formal Settlement Offers, Costs, and the Flexibility of the New Rules of Court

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 9, Uncategorized. 46 Comments on Formal Settlement Offers, Costs, and the Flexibility of the New Rules of Court


Interesting reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, discussing the ‘flexibility‘ that the New Rules of Court give Judges in making costs awards following trials where formal settlement offers were made.
In today’s case (Cairns v. Gill) the Plaintiff brought an ‘exaggerated’ personal injury claim to trial following a 2005 motor vehicle collision.  ICBC made an early formal settlement offer in 2006.   ICBC’s offer was modest at just over $1,200 plus costs.   The Plaintiff rejected the offer and proceeded to trial.   The trial did not go well and the Jury largely rejected the Plaintiff’s claim awarding just over $850 in total damages.
Having beaten their formal offer ICBC applied for an order that the Plaintiff pay their post offer Bill of Costs which was expected to exceed $16,000.  Despited the ‘exaggerated’ nature of the claim Madam Justice Arnold-Bailey found that such a result was unjust.  The Court stripped the Plaintiff of her post offer costs and disbursements however did not award ICBC their costs.  In reaching this result the Court provided the following reasons demonstrating the flexible (but perhaps somewhat unpredictable) nature of the current Civil Rules:
[57] The defendants seek costs and disbursements following the date of the offer to settle, despite the plaintiff obtaining judgment.  This is available pursuant to Rule 9-1(5)(d)…

[59] To make such an order would have a very negative effect on the plaintiff, and have the broader effect of further discouraging those with legitimate claims from bringing their actions in this Court when the defendant, funded by an insurer, has deeper pockets with which to bear the risk of a plaintiff achieving only a minor or, indeed, a pyrrhic victory.

[60] It is clear from the rules and the jurisprudence that costs consequences are to guide counsel in litigation decisions.  The object of the Rules is, “to secure the just, speedy and inexpensive determination of every proceeding on its merits.”  This object is to be conducted, as far as is practicable, with regard to proportionality.  While this object is frustrated to some extent by a claim worth $851 proceeding to its conclusion at a Supreme Court jury trial where it was more appropriate for determination in Provincial Court, the object and proportionality principle do not appear to accord with the potential cost of litigation in this case.  The bill of costs of the defendants is expected to exceed $16,000.

[61] I note that the Court of Appeal in Giles recognized when dealing with the issue of double costs that “all litigation comes with a degree of risk,” and that, “when faced with settlement offers, plaintiffs must carefully consider their positions.”  However, the court also indicated that plaintiffs, “should not to be cowed into accepting an unreasonable offer out of fear of being penalized with double costs if they are unable to ‘beat’ that offer.”  These considerations also appear relevant in these circumstances.

[62] In this case, pursuing a valid, although exaggerated, personal injury claim to trial, where the offer to settle did not provide a genuine incentive to settle in the circumstances, may, in the face of a defence funded by ICBC, cost the plaintiff almost twenty times what was awarded at trial.  It seems consistent with the object of the Rules generally, and of Rules 9-1 and 14-1(10), to have regard to the need to emphasize litigation decisions that direct cases to the appropriate forum without disproportionately penalizing a party that had some success, however limited.

[63] To this end, as considered in relation to the first issue, Rule 14-1(10) permits the Court to limit a plaintiff to the recovery of disbursements when the amount of the judgment is within the jurisdiction of the Provincial Court, which I declined to do in this case.  Then, as considered in relation to the second issue, Rule 9-1(5)(a) permits the Court to deprive the plaintiff of any or all of their disbursements after the date of the offer, which I found to be appropriate.  Then, taking the matter even further, Rule 9-1(5)(d) permits the Court to consider requiring the plaintiff to pay the defendants’ costs in respect of some or all of the steps taken after the date of the offer to settle.

[64] This progression demonstrates the flexibility within the overall framework of the rules to craft an order for costs that is appropriate to the circumstances of each case.

[65] In the present case, the plaintiff, although the “successful” party at trial, agreed to forego her costs after the date of service of the offer to settle and is, by virtue of my decision on the second issue, without disbursements from the date of service of the offer to settle, which occurred very early in the proceedings.  To require her to pay all or some of the defendants’ costs after the date of service of the offer to settle, which at the time was an unreasonably low offer, would be excessive and unjust.  It would not be in keeping with the nature of the offer, the relative financial circumstances of the parties, the principle of proportionality, and the need to avoid decisions that inappropriately discourage plaintiffs from pursuing valid claims.

This case is worth reviewing in full for the Court’s length analysis of many authorities to date addressing costs discretion under the new Rules of Court and further addressing important issues such as sufficient reason to sue in Supreme Court, and the relevance of suing an insured defendant.

Chambers Practice Update: The Prohibition of Written Arguments

Written by admin on . Posted in BCSC Civil Rule 8, Civil Procedure, Uncategorized.


Last month the BC Supreme Court released reasons indicating that parties ought to use Form 32 to provide the Court with “full disclosure of the argument to be made in chambers”. It is good practice to do so because Rule 8-1(16) of the New Rules prohibits written arguments (other than those set out in Form 32) from being relied on in Chambers Applications estimated to take less than 2 hours.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, demonstrating this prohibition in action.
In today’s case (Lebrecque v. Tyler) the Plaintiff was involved in three motor vehicle collisions.  The Defendant brought a motion for an ‘indepdendent‘ medical exam but this was dismissed.   During the course of the application the Defendant’s lawyer provided the Court with a written outline of argument.  The Court refused to consider this outline citing the new prohibition in the Rules of Court.  Master Bouck provided the following useful reasons:
Prior to July 1, 2010, provision of a written argument was recognized as good practice and often encouraged by the court — even for applications consuming less than 2 hours.
Since July 1, 2010 and pursuant to Rule 8-1(16), a written argument may only be presented to the court if the application consumes more than two hours.  There is no discretion under the Rule to receive written argument in other circumstances.  This application was estimated to be heard in 35 minutes but took one hour.
Thus, no written argument can or should have been considered by the court.
These observations should not be seen as a criticism of defence counsel whose efforts were no doubt intended to assist the court.  However, it seems worthwhile to remind litigants of the provisions of Rule 8-1(16) so that in the future, the time and expense of preparing a separate written argument is avoided.
As of today’s date the Labrecque decision is not yet publicly available but, as always, feel free to contact me and request a copy and I’ll be happy to provide one.

Summary Trials and the Severance of Issues

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 9, Uncategorized. 58 Comments on Summary Trials and the Severance of Issues


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with an interesting question: is a Court order for severance of issues required prior to a Court adjudicating an issue (as opposed to the entirety of a claim) in a summary trial?
The reason why this is an issue is due to two competing Rules of Court.  Rule 9-7(2) permits a party to “apply to the court for judgement…either on an issue or generally“.  On the face of it this rule seems to permit a party to apply for only part of a case to be dealt with summarily.  However, Rule 12-5(67) requires a Court Order to sever issues in a lawsuit stating that “the court may order that one or more questions of fact or law arising in an action be tried and determined before the others“:.
In this week’s case (Chun v. Smit) the Plaintiff was injured in a motor vehicle collision.  He brought a motion for the issue of liability to be addressed on a summary trial.  The Defendant opposed arguing that a summary trial was not appropriate.  Mr. Justice McEwan agreed and dismissed the application.  In doing so the Court provided the following useful reasons finding that an order to sever issues under Rule 12-5(67) is a prerequisite to having only part of a case tried by way of summary trial:

[7] The question is really whether Rule 9-7 merely describes a mode of trial, while the claim or cause of action remains otherwise subject to the rules that govern trial, or whether the trial of an “issue” under Rule 9-7, where that issue is the severance of liability from quantum, somehow bypasses Rule 12-5 (67) and falls to be decided on a lower standard.

[8] In the brief passage excerpted from Bramwell (above), three different approaches are apparent. It seems to me, however, that whether the test for severance, or of a trial of an “issue” is rationalized as within or outside Rule 9-7, it must meet the standard set out in Bramwell. Rule 9-7 is, in itself, a departure from the ordinary mode of hearing a trial, and proceedings within it are contingent upon the court accepting that the compromises inherent in that process will not impair the courts’ ability to do justice. That being so, it would be illogical that collateral to the compromises inherent in proceeding by summary trial, other aspect of the process were similarly downgraded. If a trial of an issue is found to be an appropriate way to proceed, it may be tried under Rule 9-7, if Rule 9-7 itself is properly applicable.  Where a party seeks to proceed on only part of a case under Rule 9-7, the first question is whether there should be severance at all, and the second is whether Rule 9-7 is appropriate. The correct approach is set out in Bramwell, which would bind me in any case (see Hansard Spruce Mills Ltd. (Re), [1954] 4 D.L.R. 590 (B.C.S.C.)).

British Columbia Ordered to Pay $605,000 in Damages to Victim of Childhood Sexual Abuse

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized. 45 Comments on British Columbia Ordered to Pay $605,000 in Damages to Victim of Childhood Sexual Abuse

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, ordering the Government of BC to pay a Plaintiff $605,000 in damages as a result of childhood sexual abuse.
In today’s case (D.K.B. v. British Columbia) the Plaintiff was sexually abused by his hockey coach when he was 13 years old.    The abuse occurred in 1988.    The hockey coach was a convicted sex offender and his probation officer failed to warn the minor hockey association of this fact.  In 2005 the Province of BC was found vicariously liable for the sexual abuse.  Today’s case focused on damages.
The details of the abuse are set out in paragraphs 5-10 of today’s judgement.  The Plaintiff suffered harm as a result of this abuse.    Dr. O’Shaughnessy testified about the extent of the harm and his opinion was accepted by the Court.  Specifically Dr. O’Shaughnessy provided the following opinion:
Ultimately, however, I am impressed that given the nature of the sexual assaults and in particular at the critical developmental point that more likely than not the sexual assaults were a material factor in the development of his Mood Disorder and his substance abuse as well as his Personality Disorder. While indeed he may have gone on to develop problems with substance abuse in any event, I think the sexual abuse was a critical factor and more likely than not he would not have gone on to develop these difficulties had the sexual assaults not occurred
The Plaintiff went on to have a career in professional hockey and subsequently as a realtor.  He testified that this was impacted by the consequneces of the abuse.  Mr. Justice Dley agreed and awarded just over $450,000 for the impact the abuse had on the Plaintiff’s earning capacity.
The balance of the claim was made up largely of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  The parties settled this head of damage at $125,000.  Since this aspect of the case was privately settled today’s judgement is not, strictly speaking, a binding precedent on the issue, however, given the relative lack of reported cases dealing with non-pecuniary damages for sexual abuse in British Columbia I thought it would be useful to add today’s case to this site’s civil sex abuse claims database.

Multiple Defence Medical Exams: The Prohibition of "Belt and Suspenders" Applications

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized.


While the Rules of Court permit Defendants to compel a Plaintiff to attend multiple medical exams in certain circumstances, there is a general prohibition in having multiple exams to address the same topic.  Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, dismissing an application in these circumstances calling it a “belt and suspenders application“.
In today’s case  the Plaintiff was injured in a motor vehicle collision.  In the course of the claim she attended numerous ‘independent‘ medical exams with physicians selected by the Defendant.   Some of these physicians opined that the Plaintiff’s difficulties were not from the collision but due to “opioid dependencies“.
The Defendant asked that the Plaintiff attend a further exam with Dr. Baker, a so -called “addictionologist“.  The Plaintiff refused and an application was brought.  Master Baker dismissed the application noting the general prohibition of multiple exams to bolster a previous opinion.  In dismissing the application the Court provided the following helpful reasons:

[7] To get back to the point, the defence’s position is that some or much of these difficulties relate to, they say, opioid dependencies that have arisen in advance of this motor-vehicle accident.  This is denied or contradicted by the report of her family physician, Dr. Singhal.

[8] Dr. Baker a specialist, in this area, not just of addiction and addiction parameters or aspects of that, but also chronic pain management, I understand.  Even the brief c.v. to which I was referred was impressive.  His membership in various societies, the committees he serves on, all of which impressed me.

[9] Having said all that, I cannot see that this case is in any significant way distinct from that decided by Mr. Justice Voith, to which I just referred.  With greatest respect, at least two specialists for the defence have commented on, concluded, and been quite specifically direct that they regard (the Plaintiff) as having been either habituated, as one — Dr. Smith, I think, said it — or dependent, euphemistically perhaps, addicted to opioids.  This has had consequences for her recovery, or her response to the accident.

[10] I agree entirely, with greatest respect, with Mr. Justice Voith and his impression of the case that he decided.  I agree that there’s no doubt that Dr. Baker has greater expertise on that particular point.

[11] But as Mr. Justice Voith says, that’s not the measure of whether or not to direct an I.M.E.  The phrase — I know it has a pejorative ring to it — but it was used at least a couple of times, once by me — that this is a “belt and suspenders application” by the defence.  They already have expert opinion on the subject.

[12] They were met, from the plaintiff’s perspective, by opposition to Dr. Hashimoto opining on that aspect.  The view, as taken by the plaintiff, that Dr. Hashimoto is not qualified to give this opinion that’s outside his expertise.  They have not taken that perspective in respect of Dr. Smith.

[13] It doesn’t really matter to me whether they did or didn’t, because whether or not a second or subsequent I.M.E. should be ordered does not rely upon the plaintiff’s opinion as to the admissibility of an expert’s opinion, or in fact any other evidence.  That is for the court to decide; and it is, with respect, for the defence to structure its case and its strategies.

[14] I am satisfied, on the circumstances and facts before me, that this does constitute a situation in which the defence is wishing to bolster the opinion of Dr. Smith at least, and possibly Dr. Hashimoto, with the further and yes, more focused opinion of Dr. Baker.

[15] The law in this area does not support that course.  That is sufficient, in my respectful view, to decide the issue.

For the sake of convenience I should point out that the decision of Mr. Justice Voith that Master Baker referenced was Zawadzki v. Calimoso which was recently transcribed and can be found here.

Can you add a Party to a Lawsuit After the Limitation Period Expires?

Written by admin on . Posted in Uncategorized. 64 Comments on Can you add a Party to a Lawsuit After the Limitation Period Expires?


Often times as a lawsuit progresses a Plaintiff learns of new allegations that could be made or new parties who may be responsible.  Lawsuits can take time to get to trial and often when these new revelations are made the limitation period to sue the new party has already expired.  When this happens can the party be added to the existing lawsuit?  The answer is yes, however, the Court’s permission must be granted to do so.  Today the BC Court of Appeal released reasons for judgement providing a detailed overview of this area of law.
In today’s case (Chouinard v. O’Connor) the Plaintiff was injured in an altercation that took place during a lacrosse game.  He sued his alleged assailant and a variety of others alleging battery.  As the lawsuit progressed the Plaintiff wished to amend the claim to add allegations of negligence.  By the time this happened the limitation period to sue in negligence had expired.  The Plaintiff applied to Court to allow an amendment to the lawsuit but this was denied.  The Plaintiff appealed but was also unsuccessful.  In dismissing the matter the BC Court of Appeal provided the following useful legal overview addressing factors a Court should consider in allowing amendments to a claim after a limitation period has expired:

[17] This Court has considered the proper approach to amendments to pleadings after the expiry of a limitation period on numerous occasions.  The issue has arisen frequently under both former Rule 15(5)(a)(iii) (now replaced by Rule 6-2(7)), where a plaintiff wished to add a party after the expiry of the limitation period, and under former Rule 24(1) (now replaced by Rule 6-1(1)) where a plaintiff sought to plead a new cause of action against an existing defendant after the expiry of the limitation period for bringing the cause of action.

[18] In Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. (1996), 19 B.C.L.R. (3d) 282, 34 C.C.L.I. (2d) 211, this Court determined that the Supreme Court has broad discretion to allow or disallow an amendment, holding that the overriding test is whether it is “just and convenient” to allow the amendment.  Finch J.A. (as he then was), with the concurrence of Ryan J.A., stated:

[36]      This application was brought … under Rule 24(1) which permits a party to amend pleadings at any time, with leave of the court.  The rule is discretionary and contains no criteria for the exercise of that discretion.

[37]      The rule most often involved in questions arising under the Limitation Act is Rule 15(5)(a)(iii). It is invoked on applications to add parties. Rule 15(5)(a)(iii) says that the court may order a person to be added as a party where there exists a question which, in the opinion of the court, would be “just and convenient” to determine as between a party and the person sought to be added. The qualifying phrase “just and convenient” is not to be found in Rule 24(1).

[38]      Discretionary powers are, of course, always to be exercised judicially. It would clearly be unjudicial to permit an amendment to pleadings under Rule 24(1) if it appeared to be either unjust or inconvenient to do so. So, even though the words “just and convenient” are not found in Rule 24, justice and convenience would, in my view, be relevant criteria for the exercise of the discretion found in that rule.

…

[45]      [T]he discretion to permit amendments afforded by … Rule 24(1) … was intended to be completely unfettered and subject only to the general rule that all such discretion is to be exercised judicially, in accordance with the evidence adduced and such guidelines as may appear from the authorities.  Delay, and the reasons for delay, are among the relevant considerations, and the judge should consider any explanation put forward to account for the delay. But no one factor should be accorded overriding importance, in the absence of a clear evidentiary basis for doing so.

…

[67]      In the exercise of a judge’s discretion, the length of delay, the reasons for delay and the expiry of the limitation period are all factors to be considered, but none of those factors should be considered in isolation. Regard must also be had for the presence or absence of prejudice, and the extent of the connection, if any, between the existing claims and the proposed new cause of action. Nor do I think that a plaintiff’s explanation for delay must necessarily exculpate him from all “fault” or “culpability” before the court may exercise its discretion in his favour….

[19] The concurring reasons of McEachern C.J.B.C. (Ryan J.A. also concurring) were to similar effect:

[74]      Applying the same principles regardless of whether the application is to add new defendants … or new causes of action, … I believe the most important considerations, not necessarily in the following order, are the length of the delay, prejudice to the respondents, and the overriding question of what is just and convenient.

[20] In Letvad v. Fenwick, 2000 BCCA 630, 82 B.C.L.R. (3d) 296, Esson J.A. for the Court cited from Teal Cedar, and then said:

[29]      My understanding of the phrase “completely unfettered” in this context is that the discretion is not fettered by the relevant legislation, i.e., the Rule and the Limitation Act.  It is, however, fettered to the extent that, as was held in Teal, it must be exercised judicially, in accordance with the evidence adduced and such guidelines as may appear from the authorities.  It was held inTeal that the guidelines to which the chambers judge is required to have regard include these:

– the extent of the delay;

– the reasons for the delay;

– any explanation put forward to account for the delay;

– the degree of prejudice caused by delay; and

– the extent of the connection, if any, between the existing claims and the proposed new cause of action.

[21] As can be seen from the chambers judgment in the case before us, this list of factors has come to be seen as a checklist in applications to add a cause of action or a party after the expiry of the limitation period.  It is sometimes forgotten that the list of factors is not an exhaustive one, and that the overriding concern is whether the proposed amendment will be “just and convenient”.  The factors listed in Teal Cedar and in Letvad will typically be important factors to be considered by a chambers judge, but the decision is ultimately a discretionary one.  Thus in Boutsakis & Kakavelakis, A Partnership v. Boutsakis, 2008 BCCA 13, 77 B.C.L.R. (4th) 113, this Court upheld the granting of amendments even though not all of the Teal factors had been specifically referred to in the judgment of the chambers judge.  Newbury J.A., speaking for the Court, said:

[21]      … [I]t seems to me that although the summary trial judge did not mention the authorities, she did consider many of the factors listed in Teal Cedar – the reasons for the plaintiffs’ delay, the question of prejudice to the appellants; Mr. Kakavelakis’ difficulty in obtaining Mr. Boutsakis’ cooperation in enforcing the Partnership’s rights against Crown Travel; and the overall context of the two actions generally.  Given the high degree of deference that is to be accorded to a discretionary decision of this kind, I see no basis on which this court should interfere with her conclusion that both amendments to the Statement of Claim in the “F” action should be permitted and given effect to notwithstanding that between the issuance of the writ in 1989 and the 1997 and 2004 motions to amend, fresh causes of action advanced by those amendments would have become barred by the lapse of time.