Tag: bc injury law

BC Court of Appeal Discusses Mitigation of Damages in Injury Claims

Written by admin on March 31, 2011. Posted in Uncategorized.

Reasons for judgement were released this week by the BC Court of Appeal providing a useful summary of the law of mitigation of damages in the context of a personal injury lawsuit.
In this week’s case (Gregory v. ICBC) the Plaintiff was involved in a 2006 collision in White Rock, BC. She was injured and sued for damages. At trial her damages were assessed at just over $140,000 and then reduced by 10% for an alleged ‘failure to mitigate‘. In short the trial judge held that the Plaintiff unreasonably failed to follow her doctor’s recommendation to have cortisone injections.
The Plaintiff appealed this deduction arguing that there was no evidence before the Court that these injections would have improved the Plaintiff’s symptoms. The BC Court of Appeal agreed and overturned this deduction. In doing so Madam Justice Garson provide the following short but useful discussion of the law of mitigation of damages in personal injury lawsuits:

[53] In Chiu v. Chiu, 2002 BCCA 618 at para. 57, this Court set out the test for failure to mitigate as follows:

[57] The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss. In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff’s damages would have been reduced had he acted reasonably. These principles are found in Janiak v. Ippolito, [1985] 1 S.C.R. 146.

…

[56] I would describe the mitigation test as a subjective/objective test. That is whether the reasonable patient, having all the information at hand that the plaintiff possessed, ought reasonably to have undergone the recommended treatment. The second aspect of the test is “the extent, if any to which the plaintiff’s damages would have been reduced” by that treatment. The Turner case, on which the trial judge relies, uses slightly different language than this Court’s judgment in Chiu: “there is some likelihood that he or she would have received substantial benefit from it …”.

[57] In this case the trial judge found as a fact that the cortisone shots were “not necessarily curative, they reduce the inflammation… Sometimes the relief is only temporary but sometimes the injections bring long term benefits”. She did not find that the treatment would have reduced the symptoms. In addition there is the fact that the plaintiff reasonably believed the diagnosis was a tear and that the injections would have no healing effect on a tear.

[58] Regardless of whether the trial judge erred in finding on the evidence that it was objectively reasonable for the plaintiff to undergo the injections, I conclude that she erred in her application of the correct test, as articulated in Chiu. The physicians testified only that it was a reasonable treatment to try, and it might afford some relief. In my view such an opinion does not meet the threshold for reducing an award as described in Chiu.

[59] I would accede to this ground of appeal and reverse the judge’s decision to reduce the award by 10%.

Future Care Claims: What Expert Evidence Is Needed?

Written by admin on March 30, 2011. Posted in Cost of Future Care Cases, Uncategorized. 52 Comments on Future Care Claims: What Expert Evidence Is Needed?

Useful reasons for judgement were released this week by the BC Court of Appeal discussing the type of expert evidence necessary to prove damages for cost of future care in a BC injury claim.
In this week’s case (Gregory v. ICBC) the Plaintiff was injured in a 2006 collision. At trial the Plaintiff sought damages including an award of $123,000 for cost of future care. In support of this claim the Plaintiff relied on the opinion of an occupational therapist. This aspect of the claim was largely rejected with the Court awarding just over $8,000 for this head of damage.
The Plaintiff appealed arguing the trial judge erred in rejecting the evidence of the occupational therapist suggesting a medical doctors evidence was necessary for this aspect of the claim. The BC Court of Appeal agreed in part and increased the assessment by $30,000. In doing so the Court provided the following useful reasons addressing the type of expert evidence needed to advance a future care claim:

[38] Courts do accept testimony from a variety of health care professionals as to necessary and reasonable costs of future care: Jacobson v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63, 133 D.L.R. (4th) 377 (S.C.) at para. 182; in which Levine J. (as she then was) said:

[182] The test she enunciated does not, in my view, require that the evidence of the specific care that is required by the plaintiff be provided by a medical doctor. In Milina v. Bartsch, McLachlin J. accepted the evidence of a rehabilitation expert as to the type of care that should be provided.

See also: Aberdeen v. Zanatta, 2008 BCCA 420 at paras. 43-53, 63; Rizzolo v. Brett, 2010 BCCA 398 at paras. 72-83.

[39] I do not consider it necessary, in order for a plaintiff to successfully advance a future cost of care claim, that a physician testify to the medical necessity of each and every item of care that is claimed. But there must be some evidentiary link drawn between the physician’s assessment of pain, disability, and recommended treatment and the care recommended by a qualified health care professional: Aberdeen at paras. 43, 63…

[46] And, there was a consensus among the physicians that Ms. Gregory has difficulty lifting above shoulder height, difficulty with prolonged heavy or repetitive motion above shoulder level, and that in general she will continue to have persistent pain and weakness.

[47] The evidence of the physicians does therefore provide some evidentiary basis for the recommendations for assistance with heavy housework, and yard maintenance. In my view the trial judge fell into error by failing to consider these claims on the basis only that, “there are no recommendations from the medical practitioners for housekeeping assistance, or home and yard maintenance … ”.

[48] Rather than remit this question to the trial judge, I am of the view that it is appropriate for this Court to substitute an appropriate award under this head of damages.

[49] That part of Ms. Percy’s recommendations in which she estimated assistance for heavy home and yard maintenance is set out above. I would substitute an award of $30,000 over and above the amount already awarded under this head of damages. This represents a reasonable assessment of the present value of the cost of some modest assistance with the housework, and yard maintenance, that Ms. Gregory could not perform herself in a reasonable manner, as a consequence of the impairment in her shoulder.

$70,000 Non-Pecuniary Damages Assessment for Chronic Shoulder Tendonitis

Written by admin on March 29, 2011. Posted in ICBC Shoulder Injury Cases, Uncategorized.

Reasons for judgement were released earlier this week by the BC Supreme Court, Vancouver Registry, awarding damages for injuries and loss flowing from a BC motor vehicle collision.
In this week’s case (Garcha v. Duenas) the Plaintiff was involved in a 2007 collision. He was a passenger in a truck which was struck when the Defendant “made a sudden left hand turn across (the Plaintiff’s vehicles) path“. Fault for the crash was admitted focusing the trial on the value of the Plaintiff’s claim.
The Plaintiff suffered various injuries, many of which recovered by the time of trial. One injury unfortunately lingered on, specifically tendonitis in his shoulders. This inflammation caused pain which limited the Plaintiff domestically, recreationally and vocationally. The symptoms were not expected to improve with time. In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $70,000 Madam Justice Boyd made the following findings:
[53] Dr. Parhar holds the opinion that since the accident the plaintiff has been suffering the ongoing effects of a shoulder tendonitis, that is an inflammation of the shoulder tendons, resulting from the acute trauma suffered at the time of the motor vehicle accident. I note here that on cross examination, Dr. Tarazi also opined that the right shoulder complaints were likely related to the injuries suffered in the motor vehicle accident. Even if the injury was related to repetitive movements, he believed that this was due to the fact that due to his injuries, the plaintiff was likely posturally over- compensating in some way, thus giving rise to the shoulder complaints. In the absence of the motor vehicle injuries, he doubted the shoulder complaints would have arisen. ..
[58] On a review of all the evidence I am satisfied the plaintiff has proven on a balance of probabilities that his continuing complaints are legitimate and that they are indeed causally related to the injuries suffered at the time of this motor vehicle accident…
[67] Considering all of the evidence, I find that an appropriate award of general damages for pain and suffering and loss of enjoyment of life is $70,000…
[78] In the end result, I am satisfied the plaintiff has proven that he is now permanently partially disabled. Adopting the opinion of Dr. Parhar, I am satisfied that given the activation of his osteoarthritis, his condition will likely worsen over time.
For more on this topic you can click here to access my archived posts of other recent BC Court Cases assessing damages for shoulder injuries

Court Ordered Defence Medical Exams and the Right to Take Notes

Written by admin on March 28, 2011. Posted in independent medical exams, Uncategorized. 45 Comments on Court Ordered Defence Medical Exams and the Right to Take Notes

It is not uncommon for discrepancies to arise about the exact details of an appointment following Court ordered medical exams. These exams can last from several minutes, to several hours, or even (in the case of Functional Capacity and Neuropsychological Exams) to several days. If a discrepencey arises as to what was said by the Plaintiff a Trial Judge can face a he-said she-said situation. This can lead to serious disputes because the outcome of a personal injury trial can turn largely on a Plaintiff’s reliability and consistency.
When such a dispute arises the examining physician often has access to his or her notes detailing the examination. This can sometimes work to the doctor’s advantage when a Court is asked to decide what was actually said. To remedy this can a Plaintiff take their own notes while attending an independent medical exam? Reasons for judgement were recently published on the BC Supreme Court website addressing this issue..
In today’s case (Makowsky v. Jawandha) the Plaintiff was involved in two separate motor vehicle collisions. He alleged injury including brain damage and memory problems. In the course of the lawsuit the Plaintiff was ordered to attend an independent medical exam with a psychiatrist. Given the Plaintiff’s poor memory the Court further ordered that “someone invited by the plaintiff could observe the examination“.
The Plaintiff attended the exam with a friend. During the exam the friend took extensive notes detailing the discussion between the Plaintiff and the Physician. The Physician claimed this was distracting and put an end to the exam believing the extensive note-taking violated the general BC prohibition on recoding Court ordered medical exams. The parties put the matter before the Court.
Ultimately the Court held that the Plaintiff’s observer could take notes so long as doing so did not interfere with the examination. Madam Justice Gray provided the following useful reasons:

[15] There is a right, in my view, for the observer to take notes, but not in a manner that slows or interferes with the examination. For example, the observer cannot ask someone to pause in what they are saying, or say, “Just a minute, I’m taking a note,” or make noise or gesture in a way that creates a distraction. …

[17] The examination can proceed on the basis that the doctor agrees that there can be an observer present and that observer can take notes, but on the basis that the observer will take notes quietly and out of view of the doctor and patient.

I should point out that although this decision was recently published it was decided in 2008 under the former BC Supreme Court Rules. There is, however, no reason that I’m aware of to conclude that the Court’s reasoning would not apply to the current Rules.

Costs and Sufficient Reason to Sue in the Supreme Court: Clarity from the BCCA

Written by admin on March 22, 2011. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized.

Welcome reasons for judgement were released today by the BC Court of Appeal addressing when a Plaintiff has ‘sufficient reason‘ for suing in the BC Supreme Court. In short the top BC Court ruled that trial judges can look beyond the value of a claim when addressing this topic. This issue is important because generally a Plaintiff who succeeds in a Supreme Court lawsuit but is awarded below $25,000 (the current monetary jurisdiction of the BC Provincial Court) will be deprived of costs unless they have ‘sufficient reason‘ for suing in the Supreme Court.
In today’s case (Gradek v. DaimlerChryster Financial) the Plaintiff was injured in a 2006 collision. His lawsuit was successful and he was awarded damages of just over $9,000. The trial judge also awarded costs of $6,600. In doing so the trial judge made the following useful findings when individuals sue an insured defendant:

[42] The plaintiff is who he is. As such, he would have had extraordinary difficulty presenting a case on his own. While the defendant, represented by the insurer, suggested that in Provincial Court it might, at times, be represented by an adjuster, in my view, whether the defendant was represented by an adjuster or a lawyer the plaintiff would have been outmatched.

[43] In my opinion the plaintiff required counsel to obtain a just result. Costs are not awarded in Provincial Court. [Emphasis added.]

ICBC Appealed this order arguing that a court can only look at the likely value of a claim when deciding whether there is sufficient reason to sue in the BC Supreme Court. The Court of Appeal disagreed and dismissed the appeal. In doing so the Court provided the following useful reasons addressing the scope of ‘sufficient reasons‘ under Rule 14-1(10) of the Civil Rules:

[16] The words “sufficient reason” are not defined in the Rules of Court. In their ordinary and grammatical sense, they do not suggest a specific limitation in terms of application, although it is clear that “any reason” will not do. The reason has to be “sufficient”, but there is nothing in the Rule to suggest that it has to be connected solely to the quantum of the claim. On the other hand, the words do not connote the exercise of a discretion, with its attendant deferential standard of review. That point was made by this Court in Reimann v. Aziz, 2007 BCCA 448, 72 B.C.L.R. (4th) 1, at para. 13:

[13] At the outset, I observe that the application of Rule 57(10) does not involve an exercise of discretion. For a plaintiff who recovers a sum within the jurisdiction of the Small Claims Court to recover more than disbursements, the court must make a finding that there was sufficient reason for bringing the action in the Supreme Court.

[17] In support of its position, the appellant relies on the nature and purpose of the legislative scheme which, he submits, reflect an intention on the part of the Legislature to confine the meaning of the words “sufficient reason” to reasons relating only to quantum as assessed at the outset of the claim. In that respect, it is common ground that the primary purpose of denying costs in the Supreme Court to those with monetary claims of $25,000 or less is to encourage claimants to bring their claims in Small Claims Court, with its simplified procedures and greater accessibility to judicial dispute resolution. Litigating in the Supreme Court when the amount of money involved is relatively small can be prohibitive for both the “winner” and the “loser”.

[18] I am in general agreement with the appellant’s submission in its factum (at para. 33) that the object of the small claims procedures set out in the Small Claims Act, R.S.B.C. 1996, c. 430 and Rules, B.C. Reg. 261/93 is “to provide parties, and lay litigants, in particular with an easily understandable, flexible, and less costly alternative to the Supreme Court”. I am also prepared to accept that, in most cases, the pre-trial procedures, including pre-trial disclosure of documents and expert reports, mediation services, settlement conferences and recovery of such reasonable expenses as interpreter fees, provided in the Provincial Court, will enable the parties to proceed in a cost-efficient manner to a just result. But, that will not always be the case. In this instance, for example, the trial judge was satisfied that Mr. Gradek’s circumstances required the assistance of counsel to obtain a just resolution of his claim. It is implicit in his reasons that he considered that it would be unjust to find that Mr. Gradek require counsel to properly present his claim, on the one hand, and to deny him costs which would partially offset the expense of retaining counsel, on the other. It was on this basis, in part, that he found there was “sufficient reason” within the meaning of Rule 57(10) to bring the action in the Supreme Court with its attendant relief for the successful party in costs.

[19] Without endorsing all of the factors relied on by the trial judge as constituting “sufficient reason” in this case, I am satisfied that there may be circumstances which may constitute sufficient reason for bringing an action in the Supreme Court, thereby triggering its costs provisions, despite the fact that it is apparent from the outset that the award will fall within the monetary jurisdiction of the Provincial Court. It is open to a defendant who believes that the claim should not have been brought in the Supreme Court to apply under s. 15 of the Supreme Court Act, R.S.B.C. 1996, c. 443, to have the matter transferred to the Provincial Court. Alternatively, if the matter proceeds in the Supreme Court, it is open to the defendant to ask that a successful plaintiff be denied costs on the basis that there was not sufficient reason to bring the action in the Supreme Court in the first instance.

[20] I accept that the narrow interpretation of the words “sufficient reason” advocated by the appellant would provide greater certainty to litigants in knowing the consequences of proceeding in Supreme Court where the matter falls within the Small Claims monetary limit. But I agree with the trial judge that if the Legislature had intended to limit the scope of the words “sufficient reason” to the extent suggested by the appellant, it could readily have done so. While I am satisfied that the words, “sufficient reason” should not be interpreted in an expansive manner, but with restraint, I am also satisfied that they must be read in such a way that a trial judge is not forced to deny a party costs where he is satisfied, as here, that justice can only be achieved as between the parties by an award of costs to the successful party.

Unidentified Motorist Claims and the "Fixed Pie" of ICBC Funds

Written by admin on March 21, 2011. Posted in Uncategorized. 51 Comments on Unidentified Motorist Claims and the "Fixed Pie" of ICBC Funds

Reasons for judgement were released this week discussing the division of the limited funds available from ICBC when multiple parties successfully sue ICBC for damages as a result of injuries caused by an unidentified motorist.
In today’s case (Thoreson v. ICBC) the Plaintiff and his passenger were injured in a 2002 motorcycle accident near Vernon, BC. Their motorcycle was run off the road by an unidentified driver. ICBC was sued under s. 24 of the Insurance (Vehicle) Act and after trial the Unidentified driver was found 85% responsible for the crash and the Plaintiff driver was found 15% responsible.

Both the Plaintiff and his passenger settled the value of the claims. The Plaintiff’s claim was settled for $125,000 and the passenger’s claim for $935,521. To satisfy the damages both the Plaintiff and the passenger claimed damages from ICBC under section 24. Mr. Justice Cole of the BC Supreme Court was asked determine how much of the $200,000 available in the section 24 ‘pool’ the Plaintiff was entitled to.

Ultimately the Court noted that this pool of money needs to be shared proportionately to their claims leaving the Plaintiff with only 11% of the pool or some $23,000. The Plaintiff appealed arguing this result was unfair as the passenger was able to collect her judgement from his insurer (as he was found partially to blame). The BC Court of Appeal dismissed the matter and upheld the trial judgement. In doing so the Court provided the following reasons discussing the purpose behind the ICBC scheme of compensation for injury victims caused bu unidentified motorists:

[20] Although I have some sympathy with the appellant’s predicament, in my view, his approach to the application of s. 24 ignores the legislative scheme of the applicable insurance coverage in this case and conflates a demand for payment with a claim under s. 24.

[21] The appellant stresses that Ms. Schultz demanded payment only from Excellent. The agreed facts for the stated case confirm this. The judge referred to the appellant’s position in para. 15. It was his opinion, with which I agree, that the fact Ms. Schultz demanded payment only from Excellent does not obviate the application of the plain language of s. 24. She claimed against ICBC as a nominal defendant and obtained judgment against ICBC. Section 24(8) states that ICBC “must” pay the amount authorized by the Act “towards satisfaction of the judgment”. The fact Ms. Schultz demanded payment from Excellent does not alter the fact she engages s. 24 by claiming against ICBC as a nominal defendant.

[22] There were three available coverages: no fault benefits; the s. 24 fund; Excellent’s third-party liability coverage. Understandably, the appellant focuses on his situation, but it is mandatory to pay both no-fault benefits and the s. 24 fund. In my view, considering the scheme of the legislation and the plain wording of s. 24, claims that attract the application of that section must be paid, and where there are multiple claims arising out of one accident, must be paid on a pro-rated basis. This is consistent with I.C.B.C. v. Kushneriuk, 2004 BCCA 440 (the usual method of distribution is prorating).

Part 7 Benefits Deductions and the "Two Hats" of ICBC

Written by admin on March 18, 2011. Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized. 2 Comments on Part 7 Benefits Deductions and the "Two Hats" of ICBC

When a Plaintiff is awarded damages following a negligence claim from a BC motor vehicle collision, a Defendant can reduce the amount of damages they have to pay by the amount of no-fault benefits a Plaintiff can claim under their own policy of insurance from ICBC. As recently discussed, this can result in a very harsh reduction.
The purpose for this deduction is so an accident victim doesn’t ‘double dip’. That is, a person should not be paid twice for the same accident related expenses. The reality, however, is that in most BC personal injury trials both the Plaintiff and Defendant are insured by ICBC. This leads to a built-in conflict of interest. At trial defence counsel appointed by ICBC will often argue that a Plaintiff’s claimed future medical care needs are not reasonable. If the Plaintiff is awarded damages for future care the same counsel will then often argue that the award should be reduced as ICBC will pay for these damages under the Plaintiff’s own policy of insurance.
It is difficult to reconcile these two positions. In 2009 the BC Court of Appeal found that trial judges can consider defence counsel’s trial submissions as a reflection of ICBC’s views with respect to the likelihood of payment of future insurance benefits. Further reasons for judgement were recently brought to my attention demonstrating this practical approach by trial judges in face of ICBC’s arguments.
In today’s case (Van Den Hemel v. Kugathasan) the Plaintiff was injured in two seperate collisions. At trial the Plaintiff was awarded damages including $8,000 for cost of future medical care. The Defendants then argued that all of this should be deducted as ICBC would likely pay these expenses under the Plaintiff’s policy of insurance.
Mr. Justice Stewart disagreed with this submission and in doing so acknowledged the reality that ICBC’s views were likely expressed through counsel at trial and the Court would be “naive” to ignore these. Mr. Justice Stewart reduced the award by only $100 and in doing so provided the following helpful reasons:
[9] … whether the kinds of treatment at the cost accepted in my judgement would be paid in their entirety by ICBC is problematic, and the position taken in the tort case by the defendants, – effectively ICBC – with respect to the nature, extent, and source of the plaintiff’s problems. ICBC is stuck with having to wear two hats – defend the tort action versus administer Part 7 – but I would be naive if I ignored the significance of the position taken in the trial simply because ICBC has no choice but to wear two hats. The need to be realistic in assessing the ‘uncertainties’ lies at the heart of what the Court of Appeal had to say in Schmitt v. Thomas and in Boota v. Dhaliwal.
As of today’s date Mr. Justice Stewart’s recent judgement remains unpublished but I would be happy to share a copy with anyone who contacts me and requests one.

Motorcycle Learner Licences, the Supervision Requirement and Breach of Insurance

Written by admin on March 17, 2011. Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized. 118 Comments on Motorcycle Learner Licences, the Supervision Requirement and Breach of Insurance

Useful reasons for judgement were released this week by the BC Court of Appeal addressing the circumstances when a motorcycle learner will be held in breach of insurance for not being supervised by a qualified driver.
In today’s case (Hagen v. ICBC) the Plaintiff had a valid 6L learner’s licence. One requirement of a learner’s motorcycle licence is for the learner to be supervised while riding by a fully licenced motorcyclist. The Plaintiff was being supervised by his wife who had a valid motorcycle licence. While riding in Vancouver in 2008 the Plaintiff was momentarily out of the view of his wife. At this time he was struck by a truck making a u-turn and was seriously injured.
The Plaintiff applied to ICBC for no-fault benefits but ICBC refused to pay these arguing that the Plaintiff was in breach of his insurance for failing to comply with section 30.06 of the Motor Vehicle Act Regulations which read in part as follows:

Section 30.06 of the Motor Vehicle Act Regulations provides:

(4) A person to whom a Class 6L licence is issued, … must not operate a motorcycle unless the person is under the direct supervision of another person who

(a) is at least 19 years of age, and

(b) holds a valid and subsisting driver’s licence, other than a learner’s licence … of a class that permits him or her to operate a motorcycle.

…

(5) For the purposes of subsections (4) … direct supervision means that the person supervising can, at all times, see the other person while the other person is operating the motorcycle.

ICBC argued that “however momentary the separation of the vehicles may and consequent loss of sight may be, such loss of sight…negates eligibility for Part 7 Benefits“. The trial judge disagreed with ICBC and ordered them to pay the Plaintiff no-fault benefits finding that ICBC’s interpretation would impose “financially devastating consequences on a person as a result of events over which he or she had no control”
ICBC appealed and failed. In dismissing ICBC’s arguments the BC Court of Appeal provided the following useful reasons addressing the requirement of learner motorcyclists to be supervised:

[21] One may ask whether it was intended that a learner motorcyclist would be in breach of the supervision requirement when, having arranged for supervision, the supervisor acted contrary to agreement and took another route? In my view the answer is no.

[22] This discussion is akin to the discussion of “due diligence” urged upon us by the appellant in saying we need not concern ourselves with the “offence” consequences of the interpretation it advocates. It says Mr. Hagen could answer a charge of breaching the supervision requirement by saying that he demonstrated due diligence in his attempt to comply, and that his non-compliance was outside of his control. In other words, it says a charge of breaching s. 30.06(4) would be treated as a strict liability offence. If that is the case, why, then, should other consequences, perhaps more grave, adhere to Mr. Hagen in a civil context because his supervision failed in spite of his reasonable efforts to comply with the section?

[23] Section 30.06(4) is directed entirely to the behaviour of the learner, and in my view s. 30.06(5), in articulating the requirement of observation at all times, must be read as focusing upon the behaviour for which the learner can be responsible. Taking this approach, s. 30.06 of the Regulations, read in context, requires the learner to take all reasonable steps to ensure he (or she) is being supervised in compliance with the Regulations. This requires the learner to arrange for supervision by a person who commits to keeping him in sight at all times, and requires the learner to refrain from driving where it is not reasonable for him (or her) to think such supervision is occurring. I readily acknowledge that there will be circumstances in which a supervisor who fails to follow may nullify the learner’s Part 7 benefits, as in a failure to keep sight of the learner for such a period of time or distance that the learner, acting reasonably, should have become aware the plan for supervision had been compromised. Thus there will be a factual question: did the learner take all reasonable steps to ensure he was being supervised? In this case that translates to the question: should the learner have been aware he was not in sight of the supervisor?

[24] This is a case in which the supervisor, not the learner, made a mistake, a mistake which was so near in time and distance to the accident it was open to conclude Mr. Hagen could not be faulted for failing to detect his loss of supervision. The judge described the lack of supervision as momentary. He referred to evidence that Mr. Hagen had seen the supervisor behind him at the previous intersection. The judge considered the evidence of the street design and the evidence that the many stop signs had permitted some vehicles to fall in between Mr. Hagen and his supervisor. I consider it was open to him on the evidence to conclude that this was a case of loss of contact that did not put Mr. Hagen in breach of the Regulations.

[25] It follows I would dismiss the appeal.

Applications Under the New Supreme Court Rules: How Much Detail Does Form 32 Require?

Written by admin on March 16, 2011. Posted in BCSC Civil Rule 8, Uncategorized.

Two of the changes in the new BC Supreme Court Civil Rules are the requirement under Rule 8-1(4) that pre-trial applications be brought using Form 32 and that parties are generally prohibited from providing the Court with written arguments during applications. Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing how much detail parties should include when filling out Form 32.
In today’s case (Zecher v. Josh) the Plaintiff was injured in a motor vehicle collision. The Defendant brought a motion asking the Plaintiff to produce a Pharmanet Printout, monthly statements from his student line of credit, and particulars of his wage loss claim. The applications were dismissed “largely due to the inadequacy of the material presented”. For this reason the judgement does not go far in addressing the substance of such applications under the new Civil Rules. However, in dismissing the applications Master Bouck provided the following helpful reasons guiding litigants when preparing Form 32:

[30] Form 32 of the SCCR lends itself to providing both the opposing party and the court with full disclosure of the argument to be made in chambers. Parties should put in as much thought to the necessary content of that Form as is done when preparing the supporting affidavits. When a party is represented, responsibility for that content lies with counsel.

[31] No doubt the Lieutenant Governor-in-Council intended Part 3 of Form 32 to contain more than a cursory listing of the Rules that might support the particular application. For example, common law authorities can and should be included as well as a brief legal analysis. Such an analysis is particularly helpful given that parties are not able to present a separate written argument in civil chambers unless the application is scheduled to take two hours or more of court time.

[32] In my experience and observation, a comprehensive legal analysis can easily be included in a 10-page notice of application. As well, Rule 8-1 (4) allows the parties to include a list of authorities in the application record.

[33] By providing an effective analysis of the legal basis for (or against) making the order, the parties may well be able to resolve the application without attending court.