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Double Costs Ordered for Taking "Extremely Weak" Case to Trial

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


As recently discussed, when a party is on the losing end of a lawsuit in the BC Supreme Court they usually have to pay the winning sides costs.  If the successful party beat a pre-trial formal settlement offer the Court has the discretion of awarding double costs.  Reasons for judgement were released this week considering an application for double costs where a very modest formal offer was made prior to trial.
In today’s case (Brooks v. Gilchirst) the Plaintiff was involved in two motor vehicle incidents.  She sued for damages and both claims were heard at the same time.  ICBC disputed the allegation that a collision took place in the first incident.  Prior to trial ICBC made a $1 formal settlement offer.  The Plaintiff rejected this offer and went to trial.  Mr. Justice Sigurdson dismissed the claim finding that “no collision” took place.
ICBC applied for double costs.  The Plaintiff opposed arguing that the nominal offer should not trigger increased costs.  Mr. Justice Sidgurson agreed that while this was typically the case, in circumstances where an ‘extremely weak‘ case proceeds to trial double costs could be awarded in the face of a formal settlement offer.   In reaching this result the Court provided the following reasons:

[16]         In terms of the relationship between the terms of settlement offered and the final judgment of the court, the offer was better than the result, but the offer was only for the sum of $1 plus disbursements.  Ordinarily I would think that a nominal offer of one dollar may not attract orders for double costs but I know that in some cases even nominal offers may attract orders of double costs.  See for example MacKinlay v. MacKinlay Estate, 2008 BCSC 1570; Ludwig v. Bos, 2010 BCSC 695.

[17]         This is a case where there had been expenditures on medical and expert reports.  I think that where it becomes clear that liability will be extremely difficult to establish a nominal offer that has the effect of allowing the plaintiff to recover disbursements and avoid liability for the other party’s disbursements may nevertheless be a substantial offer.

[18]         In considering whether the offer ought reasonably to have been accepted, I think it was quite clear that the plaintiff’s original theory that she had been sideswiped as a result of the collision involving the other two adjacent cars was not maintainable once each side had filed their expert reports.  This was not merely a case where the plaintiff had a claim that was difficult to prove at trial; this was a unique case where on the evidence available to her before trial the plaintiff should have realized that she did not have a realistic position on liability…

[23]         In the circumstances, I think that the ICBC defendants should be awarded costs with respect to the main action.  I have estimated the main action consumed 90% of the time at trial.  The defendants were clearly successful and, in my view, it is not an appropriate order for each side to bear its own costs.

[24]         In terms of whether I should award double costs, I think that, in exercising my discretion, the offer reasonably ought to have been accepted in the days prior to trial.  Although the offer was modest, the circumstances at that time were clear that her case was extremely weak, she would have avoided liability for disbursements, and in fact recovered the disbursements she had incurred.

[25]         I award double costs for the period after two days prior to trial.

$100,000 Non-Pecuniary Damages Awarded for Chronic Pain From Soft Tissue Injury

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 59 Comments on $100,000 Non-Pecuniary Damages Awarded for Chronic Pain From Soft Tissue Injury


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry addressing damages as a result of chronic soft tissue injury.
In today’s case (MacKenzie v. Rogalasky) the Plaintiff was involved in a 2003 motor vehicle collision.  The Defendant turned into the path of the Plaintiff’s vehicle resulting in a t-bone type collision.  Fault for the crash was admitted by the Defendant with the trial focusing on the value of the Plaintiff’s claim.
The Plaintiff sustained various injuries in the crash.  These included “moderate” soft tissue injuries to his neck, shoulders and back.  The Plaintiff, unfortunately, went on to suffer from long term chronic pain as a result of these injuries.  He had to leave his employment as the Head Chef at a popular Lower Mainland restaurant and eventually opt for less physically demanding employment.
The limitations from his chronic soft tissue injuries were expected to be permanent.  The Plaintiff’s total damages were assessed at just under $400,000 including an award of non-pecuniary damages of $100,000.  In arriving at this figure Madam Justice Ker made the following findings:

[255]     I accept the evidence adduced by the plaintiff that Mr. MacKenzie sustained soft tissue injuries to his neck, shoulder and back as a result of the accident.  The symptoms of chronic pain have continued to bother Mr. MacKenzie, and nearly seven years post-accident, he still experiences pain in his neck, shoulder and back, although primarily in the lower back area.  While the injuries can be described as moderate soft tissue injuries, I accept the diagnosis and opinion of Dr. Hunt that Mr. MacKenzie has developed chronic myofascial pain syndrome and experiences chronic pain to this day.  Thus, the injuries and pain symptoms continue to affect most every facet of Mr. MacKenzie’s work and non-work life.  The pain is most significant when Mr. MacKenzie works and overloads his physical tolerance capacity.  He has had to leave his chosen profession as a chef due to the increasing pain and difficulty he was experiencing and the failure to see any significant improvement in his condition.

[256]     I have concluded that as a result of the accident, Mr. MacKenzie has suffered pain and loss of enjoyment of life, and he will continue to do so for an indefinite period of time.

[257]     Mr. MacKenzie struck me as a very stoic and determined individual.  Despite the ongoing pain he tried to continue to work as a chef, a position he was passionate about and aspired to continue in for as long as possible, perhaps even establishing his own restaurant.  He also tried to remain physically active but found it difficult to do so given the attendant pain associated with the activities he previously enjoyed, including motorcycling, snowboarding and, until recently, golfing.  His return to playing golf is a recent development, but due to the nature of his injuries and ongoing chronic pain symptoms Mr. MacKenzie has had to alter his style of play and is still not able to play to the same intensity and level he did prior to the accident.  He has suffered, and will continue to suffer, some diminishment in his lifestyle.

[258]     The evidence from the plaintiff’s friends and family, coupled with his own evidence, establishes Mr. MacKenzie enjoyed excellent health and was involved in the physically active and demanding position of Head Chef working in a busy restaurant for up to 16 hour shifts prior to the accident.  Mr. MacKenzie also engaged in demanding outdoor sports activities such as snowboarding, mountain biking and rollerblading and engaged in extended periods of riding his motorcycle.

[259]     Taking into account all of these circumstances, the referenced authorities and the nature of Mr. MacKenzie’s injuries, the relatively enduring nature of the injuries as manifested through ongoing symptoms of chronic pain that has developed into chronic myofascial pain syndrome which prohibits him from returning to the profession he has been passionate about since he was a young boy, the pain he has suffered and may continue to experience in the future, as well as the fact he suffered a diminishment in his lifestyle, I conclude a fair and reasonable award for non-pecuniary damages is $100,000.

Post Accident Alcoholism Deemed Compensable in BC Tort Claim

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Elbow Injury Cases, ICBC Psychological Injury Cases, Uncategorized. 58 Comments on Post Accident Alcoholism Deemed Compensable in BC Tort Claim


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing an interesting issue: whether alcoholism following accident related chronic pain is compensable in a tort claim.  In short, Mr. Justice Voith held that it could be.
In today’s case (Zawadzki v. Calimoso) the Plaintiff pedestrian was struck by a U-Haul truck driven by the Defendant.   The Defendant was found fully at fault for the collision.  The Plaintiff sustained various physical injuries the most serious of which was an elbow joint fracture which required three surgeries and resulted in a permanent partial disability.
Following the collision the Plaintiff began to drink in excess.  This turned into clinical alcoholism the extent of which caused serious health consequences.  In his lawsuit the Plaintiff claimed compensation not only for his physical traumatic injuries but also for the consequences of his alcoholism.  The Defendant argued that the Plaintiff cannot be compensated for this as it is ‘too remote‘.
Mr. Justice Voith addressed this issue at length and paragraphs 99-123 are worth reviewing in full for the Courts analysis.  Ultimately Mr. Justice Voith held that the Plaintiff’s alcoholism was caused in part by the consequences of the crash and was therefor compensable.  The Court provided the following reasons:

[99]         Shortly after the Accident, the plaintiff began to drink heavily. The results of blood tests performed on the plaintiff in late December 2004 indicated that certain liver enzyme levels were extremely elevated. The medical evidence uniformly establishes that such elevated results are directly referable to alcohol consumption. Dr. Smith confirmed that such elevated enzyme levels would not arise as a result of binge drinking, but rather reflected weeks or months of drinking.

[100]     The plaintiff admits he began to drink excessively after the Accident and that his alcohol consumption reached the point where he was drinking 26 ounces of vodka on a nightly basis. ..

[117]     In this case, Mr. Zawadzki’s original physical injuries were foreseeable. So too, the defendants concede, were his depression and anxiety. It was the combination of pain and mood that Drs. Shane and Smith said gave rise to the plaintiff’s excessive drinking. Dr. Smith also confirmed that Mr. Zawadzki had a “genetic predisposition”, by virtue of the alcoholism of his parents, to alcohol abuse. A genetic vulnerability to alcohol abuse is the very type of pre-existing susceptibility that the “thin skull” rule addresses.

[118]     It is clear that both a susceptibility to physical harm and to psychological harm fall within the ambit of the “thin skull” rule: Hussack at para. 143; Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318 (C.A.) at para. 19. I can see no principled reason why a similar vulnerability to an addiction disorder should be treated or viewed differently…

[123] I find that Mr. Zawadzki’s alcohol abuse was caused by the Accident and that such alcohol abuse was reasonably foreseeable.

The High Cost of Losing an ICBC Injury Claim

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


I’ve written many times about the significant costs a party can be exposed to for being on the losing end of a BC Supreme Court lawsuit.  Reasons for judgement were released today further demonstrating this reality under the New BC Supreme Court Rules.
In today’s case (Chen v. Beltran) the young Plaintiff entered an intersection against a red light on his skateboard.  He was struck by a vehicle operated by the Defendant and sustained injuries.  He sued for damages but his claim was dismissed with the Court finding him entirely at fault for the accident.
Rule 14-1(9) of the BC Supreme Court Rules typically requires a losing party to pay costs to a successful party.  ICBC relied on this section and requested that their costs of over $75,000 be paid by the Plaintiff’s family.   The Plaintiff opposed arguing that no costs should be awarded.  One of the reasons advanced by the Plaintiff was that such an order would “financially cripple the (plaintiff’s) family“.
Mr. Justice Greyell rejected this argument.  The Court, while disallowing some of the most significant disbursements claimed by the Defendant, did go on to order that the Plaintiff pay the Defendant’s costs.  In rejecting the “financially crippling” argument Mr. Justice Greyell reasoned as follows:
[11] The first basis upon which the plaintiff says the defendants should be denied costs is that Allan suffered significant injuries in the Accident and will require ongoing medical and psychological care throughout his life.  His ongoing care will involve significant cost to both his parents.  Allan’s parents have already incurred substantial debt to prosecute the lawsuit, have limited financial resources and will have difficulty providing for Allan’s future care even if they are successful on this application.  The plaintiff says that an order for costs will financially “cripple” the family.  While I have great sympathy for Allan’s parents the case law is clear that the financial circumstances of a litigant, standing alone, are not to be taken into consideration as a factor in the awarding of costs…

[14]         It is clear based on the above authorities that this Court is unable, on any principled basis, to take the plaintiff’s financial circumstances into account in determining whether to award costs.

[15]         To conclude otherwise would undermine the rationale underlying Rule 14-9 and would likely lead to the promotion of litigation rather than to promote the “winnowing” function described by Hall J.A. in Catalyst Paper.  It would lead to a collapse of the general principle discussed in the authorities and result in the unacceptable proposition that costs in each case would be measured not by a party’s success but by the personal financial circumstances of the litigants.

It is worth noting that this result should be contrasted with cases decided under Rule 9-1(5) where the Court does have a discretion to consider a party’s financial circumstances following trial where a formal offer of settlement was made.
Today’s case demonstrates the real world expenses that can be associated with losing an ICBC Claim in the BC Supreme Court.  It is vital to gauge these costs and the risks of trial prior to putting a case before a Judge or Jury.

Examinations for Discovery and Location: When Parties Live Outside BC

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure, Uncategorized. 60 Comments on Examinations for Discovery and Location: When Parties Live Outside BC


I recently looked into the issue of location for examinations for discovery where a party to the lawsuit resides out of the Country.  I came across a useful decision (Bronson v. Hewitt) addressing this issue under the former Rules of Court.
In Bronson, a lawsuit was started in the BC Supreme Court, Vancouver Registry.  The trial was scheduled to be heard in Vancouver and all the lawyers involved in the case practiced in Vancouver.  The Defendants lived in South Carolina.  The Plaintiff wanted to force the Defendants to come to Vancouver for examination for discovery.  The Defendants opposed arguing the discovery should take place in South Carolina.  Mr. Justice Goepel agreed with the Defendants.  In doing so the Court provided the following reasons:

Lewis and Browning rely on R. 27(14).  That Rule reads:

Unless the court otherwise orders, or the parties to the examination consent, an examination for discovery shall take place at a location within 10 kilometres of the registry that is nearest to the place where the person to be examined resides.

Lewis and Browning submit that R. 27(14) supports their contention that prima facie a party has a right to be examined at their residence and that the plaintiffs have not filed any material which would lead the court to rule otherwise.

In Banque Indosuez v. Canadian Overseas Airlines Ltd. et al., [1989] B.C.J. No. 930 (S.C.) Skipp L.J.S.C.  reviewed the authorities and concluded:

I respectfully adopt the reasoning of Trainor J. in Hamstra v. B.C. Rugby Union et al., Vancouver Registry C865223 (B.C.S.C.), to the effect that if anyone seeks to vary the prima facie location being the residence of the person sought to be examined the court then looks at what is just and convenient for the person to be examined rather than for the solicitor of the person to be examined.

In Lo v. Lo, [1991] B.C.J. No. 3005 (S.C.) Master Wilson stated:

I understand Banque Indosuez to be authority for this principle, that subrule 14 is the primary determinant of the place for the examination for discovery of persons residing outside of British Columbia.

If the prima facie rule is to be changed then the court looks at what is just and convenient for the person to be examined, not for counsel.

I am of a similar view.  The default position is that non-resident parties are entitled to be examined at their place of residence.  This conclusion is consistent with R. 27(26), which sets out that the rules governing discovery apply so far as practical to persons residing outside the province.   One of those rules is R. 27(14) which sets out that absent consent or a court order, a party is entitled to be discovered at the registry nearest to the party’s residence.  There is no reason why a non-resident party should be treated any less generously than a party who resides in British Columbia.  All parties have a prima facie right to be discovered where they reside.

The court does have the power to order that a discovery take place at a different location.  In making such an order, the court’s main consideration is the convenience of the party being examined.  Convenience of counsel is not a proper basis to compel a party to travel to Vancouver for a discovery.

In the circumstances of this case, it would not be just or convenient to compel Ms. Lewis or Ms. Browning to come to Vancouver.  They are entitled to be examined at their place of residence.  Their discovery will be in Greenville, South Carolina.

This decision was based on the former Rules of Court and to my knowledge no reported decisions address the issue of location for discovery under the New Rules.  The result, however, would likely be identical under the New Rules because the former Rule 27(14) is substantively reproduced at Rule 7-2(11) of the New Rules and the former Rule 27(26) is reproduced at Rule 7-2(27) of the New Rules.

"It was the Deer's Fault" Defence Rejected in BC Injury Claim

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 108 Comments on "It was the Deer's Fault" Defence Rejected in BC Injury Claim


Reasons for judgement were released today by the BC Supreme Court, Penticton Registry, addressing the issue of fault for a single vehicle collision.
In today’s case (Bassi v. Bassi) the Plaintiffs were passengers in a vehicle driven by the Defendant.  The Defendant lost control resulting in a roll-over crash.   The passengers were injured and sued for compensation claiming the Defendant was careless.  The Defendant argued that he was not and that he lost control due to a deer in the roadway.  Mr. Justice Cullen found the Defendant entirely at fault for the crash and in doing so provided the following analysis:

[20]         As I see it, the issue in the present case is whether the defendant’s explanation of the accident, involving as it does the mechanism of a deer running onto the highway from his left, neutralizes the inference that by leaving his lane of travel onto the right gravel shoulder, then crossing both lanes of the highway to the opposite gravel shoulder, and ultimately losing control of his vehicle and causing it to roll over involved negligent driving on his part.  In my view, it does not.  Although the deer running onto the highway presents a basis for an explanation that the accident could have happened without negligence, the explanation actually advanced by the defendant is inadequate to offset the inference that his negligence had a significant role in the accident.

[21]         In the first place, there is no clear evidence where the deer was in relation to the defendant’s vehicle when he saw it or whether the action he took was the only or most effective way to evade the deer.  The defendant said he swerved because he “got a little nervous.”  It is unclear whether he was simply startled and overreacted or whether he took the only evasive manoeuvre open to him in the circumstances.  There is simply no evidence of what actual crisis the defendant was confronted with or how imminent it was.

[22]         Secondly, although the defendant asserts the deer came from his left from behind the bluff and he noticed it partway through the curve, it appears from the plaintiff Ms. Bassi’s uncontradicted pictures – and explanation that the defendant’s vehicle did not swerve off the road to the right until some distance past the corner down the straightaway which cast some doubt in the absence of the clearer evidence as to the nature and duration of the defendant’s reaction to seeing the deer or where he was when he reacted or where the deer was when he first saw it.

[23]         Third, the defendant asserts, at least in his affidavit, that the reason he went across the highway to the left gravel shoulder was because “the turn in the highway was so sharp.”  It is evident, however, from the defendant’s evidence on discovery and the photographs that the curve in the highway is not sharp, but is, in fact, quite gradual.  Moreover, based on the uncontradicted photographs and affidavit of the defendant, Ms. Bassi, at the point where the van turned back onto the highway from the right gravel shoulder, it was well out of the curve and on the straightaway.  There was no turn in the highway at all to cause the defendant to go “right across the highway and onto the left shoulder.”

[24]         In his discovery, the defendant testified that when he tried to bring the van back onto the highway, “The turn was so sharp, it started going the other way right away on the other side of the highway.”  It is not clear in that passage whether he was referencing the turn in the road or his own turn of the van in trying to bring the vehicle back onto the highway.  Although he clarified that in his affidavit, his explanation appears quite at odds with the nature of the highway where he is said to have lost control and that significantly attenuates the value of his explanation because it fails to answer why he veered back across the highway to the opposite side.

[25]         The defendant’s explanation also lacks any indication that he considered or attempted any other means of avoiding the accident such as by braking either when he first saw the deer or as he veered off the road to the right.  There is no evidence of any skid marks, brake marks, distances, or reaction times that would aid in understanding how the accident took place or whether the defendant’s explanation could adequately account for what occurred.

[26]         In my view, this is a case in which the plaintiffs have established a prima facie case of negligence and, while the defendant has offered an explanation of what occurred, it lacks cogent detail and is not sufficiently full, complete, or consistent with the existing conditions to neutralize the inference of negligence arising from the circumstances of the accident.  In short, the defendant’s explanation does not adequately ground a non-negligence version of how and why he came to lose control of his vehicle.

[27]         I conclude that all the circumstances, including the evidence that the defendant had not slept for nearly 24 hours and had driven for about four-and-a-half hours through the night before the accident occurred, establishes on a balance of balance of probabilities that the accident was a product of his negligence notwithstanding the explanation he advanced involving his reaction to seeing a deer coming onto the highway from his left.  I, therefore, find liability in favour of the plaintiffs.

Who's Paying The "Independent" Medical Examiner in Your Injury Claim?

Written by admin on . Posted in independent medical exams, Uncategorized.


I’ve written many times about the lucrative business of ‘independent‘ medical exams in the context of personal injury claims.  Since ICBC is a public institution they disclose annual financial statements documenting how much they have paid various doctors.  A review of these statements reveals that a handful of doctors get a lot of repeat business from ICBC and that some earn hundreds of thousands of dollars per year doing this work.
Another useful source of information is the Ministry of Health “Blue Book” which is published each year and reveals annual MSP “Payments to Practitioners“.
If you cross reference these two sources of information you can gain useful insight into some of the various streams of income of independent medical examiners.
One quick illustration are the reported ICBC and MSP billings of Dr. J. F. Schweigel.  If you look at his company’s ICBC billings for 2009 and contrast these with his MSP billings for the same year it becomes clear just how lucrative the independent medical examination business can be for a practicing doctor.
2009 ICBC Billings

2009 MSP Billings

If you’re interested in learning who’s paying your indepdendent medical examiner some quick homework can reveal very useful information.
(Note: it’s worth pointing out that MSP billings are not the only source of income for physicians’ clinical practices in BC.  One noteworthy example would be Health Authority Billings where  a doctor has hospital privileges.  When scrutinizing physician billings its good practice to get as much information as possible from all sources to get a fair and objective picture.)

$155,000 Non-Pecuniary Damages Agreement for Serious Knee Injury

Written by admin on . Posted in ICBC Knee Injury Cases, ICBC Liability (fault) Cases, Uncategorized. 94 Comments on $155,000 Non-Pecuniary Damages Agreement for Serious Knee Injury


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing compensation for a serious knee injury following a motor vehicle collision.
In last week’s case (Stevanovic v. Petrovic) the Plaintiff was struck by a vehicle driven by the Defendant.  The Plaintiff was standing in the middle of a residential road when the Defendant approached in his vehicle.  The Plaintiff was friends with the Defendant and was expecting the Defendant to pick him up.  The Defendant attempted to show off and drive his vehicle dangerously close to the Plaintiff.  He miscalculated and struck the Plaintiff causing injury.  The Defendant denied fault but Mr. Justice Sigurdson found him entirely liable for the collision.
The parties were able to agree on several heads of damages including the claim for non-pecuniary loss (pain and suffering and loss of enjoyment of life).   The balance of the trial focused on the Plaintiff’s damages for cost of future care and diminished earning capacity.
The parties settled the value of the pain and suffering claim at $155,000.   Since the issue was privately settled this case is not a true ‘precedent‘.  Despite this I thought this case would be worth summarizing given the relatively few precedents dealing with unique and complex knee injuries.  The Court made the following findings with respect to the severity and extent of the Plaintiff’s physical injury:

[88]         The purpose of the review of the injuries that the plaintiff suffered is not to revisit the issue of non-pecuniary damages, which was agreed, but for the purpose of the assessment of his loss of earning capacity and cost of future care.

[89]         The injuries suffered by the plaintiff were summarized by Dr. Anton, a physiatrist, in his medical report of August 21, 2008:

1.         multiple injuries to the right knee including

(a)        a patellar dislocation with a residual osteocondral defect in the articular (joint) surface of the patella;

(b)        an impacted fracture of the lateral femoral condyle;

(c)        evulsion of the anterior cruciatr ligament from the tibial spine;

(d)        a lateral tibial-plateau fracture, and

(e)        a bucket handle tear in the anterior portion of the lateral meniscus;

2.         a closed head injury including a laceration, nasal fracture, and probable mild traumatic brain injury;

3.         a fracture of the proximal fibula of the right leg;

4.         an injury to the left shoulder involving the supraspinatis tendon of the rotator cuff and anterosuperior glenoid labrum; and

5.         multiple soft tissue injuries including a probable soft tissue injury to the cervical spine.

…

[91]         The plaintiff’s most serious physical injury was the damage to his right knee, which required surgery on four occasions by Dr. Pierre Guy, an orthopaedic surgeon.  The plaintiff also required shoulder surgery in 2008 by Dr. Gilbert, which surgery was successfully completed.  In more recent times, the plaintiff has developed and has complained of hip pain.

[92]         The knee injury was described by the doctors as serious and complex, and is significant for the loss of earning capacity claim, because it affects and continues to affect his ability to bend his knee, go up or down stairs, or crouch, squat, kneel, or run without pain.  As a result of his knee injury, notwithstanding the successful surgeries, it is now apparent, with his knee pain, and difficulty crouching and bending, that he would not be able to continue employment as a copier repair person, which was what he had done at RISO before the accident.

[93] I find that the plaintiff continues to suffer from pain to his knee and that further surgical options are limited until much later.  A total knee replacement at a much later age appears to be the only possible surgical solution to deal with ongoing pain and discomfort.

BC Court of Appeal Discusses Independent Medical Exams Under the New Rules of Court

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized. 56 Comments on BC Court of Appeal Discusses Independent Medical Exams Under the New Rules of Court


Both the former and the new BC Supreme Court Civil Rules provide parties to a lawsuit with an ability to request an independent medical exam of the opposing party  “If the physical or mental condition of a person is in issue in an action“.
Reasons for judgement were released today by the BC Court of Appeal explaining exactly what “in issue” means.
In today’s case (Jones v. Donaghey) the Plaintiff was an infant.   He was removed from his home by the BC Ministry of Children and placed into foster care with the Defendants.  The Plaintiff alleged that while in foster care the foster parents intentionally assaulted him by “violently shaking the infant“.  The Plaintiff sued for damages.
In the course of the lawsuit the Plaintiff argued that the Defendant had anger management issues.  In order to explore these the Plaintiff obtained a Court Order requiring the Defendant to be examined by a physician under Rule 7-6(1).  The Defendant appealed the order.  The BC Court of Appeal set aside the order finding that the Defendant’s mental condition was not “in issue” therefore the Rules of Court did not allow this to be explored through the independent medical exam process.
The BC Court of Appeal provided the following reasons:

[14]         …since the purpose of pleadings is to define the “issues” of material or ultimate fact as between the parties, whether a proposition of fact is “in issue” for purposes of Rule 7-6(1) must be determined from an examination of the pleadings:  Astels v. Canada Life Assurance Co., 2006 BCCA 110 at para. 4, 23 C.P.C. (6th) 266.

[15]         “Relevant”, the term used by the chambers judge, belongs to the law of evidence.

[16]         The relationship between relevance and issues of material or ultimate fact was explained in R. v. Watson (1996), 30 O.R. (3d) 161 at 172, 108 C.C.C. (3d) 310 (C.A.):

Relevance … requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A”.  If it does then “Fact A” is relevant to “Fact B”.  As long as “Fact B” is itself a material fact in issue or is relevant to a material fact in issue in the litigation then “Fact A” is relevant and prima facie admissible.

[17]         This concept is succinctly illustrated, albeit using different terminology, in R. v. White, [1926] 2 W.W.R. 481 at 485, 45 C.C.C. 328 (B.C.C.A.), where the Court adopted a passage from S. L. Phipson, ed., Best on Evidence, 12th ed. (London: Sweet & Maxwell, 1922) at 6 that included these words:

The fact sought to be proved is termed the “principal fact”; the fact which tends to establish it, “the evidentiary fact”.  When the chain consists of more than two parts, the intermediate links are principal facts with respect to those below, and evidentiary facts with respect to those above them.

[18]         Thus, a material fact is the ultimate fact, sometimes called “ultimate issue”, to the proof of which evidence is directed.  It is the last in a series or progression of facts.  It is the fact put “in issue” by the pleadings.  Facts that tend to prove the fact in issue, or to prove another fact that tends to prove the fact in issue, are evidentiary or “relevant” facts.  And, as Professor Thayer said at 197, “Issues are not taken upon evidential matter.”…

[29]         In my view, the chambers judge erred.  The test under Rule 7-6(1) is not whether the mental condition of a person is “relevant” to an issue; rather, it is whether the mental condition is itself “in issue”.  Moreover, Ms. Donaghey’s mental condition is not put “in issue” by the pleadings.

[30]         The issue raised by Ms. Donaghey’s denial of the allegation in paragraph 16 of the statement of claim is whether she intentionally assaulted the plaintiff by violently shaking him.  That Ms. Donaghey suffered from a personality disorder is not a material fact in respect of this issue, that is, proof that she suffered from a personality disorder would not in itself have legal consequences as between these parties.

[31]         The “issue” raised between the plaintiff and Ms. Donaghey in paragraph 27 is whether Ms. Donaghey breached her duty of care to the plaintiff in any one or more of the specified ways.  None of these allegations put Ms. Donaghey’s mental condition in issue.

[32]         The issues raised as between the plaintiff and Ms. King and as between the plaintiff and the Director respectively in paragraphs 28(d) and 29(n) of the statement of claim are whether these defendants breached their duty of care to the plaintiff by leaving him with Ms. Donaghey when they “knew or ought to have known” one or more of the particularized facts.  Thus, the issue in each case is the state of mind of these defendants.  Proof that Ms. Donaghey suffered from a personality disorder would not entitle the plaintiff to success on these issues.  Her mental condition is not a “definite proposition of … fact, asserted by [the plaintiff] and denied by [Ms. King/the Director], … which both agree to be the point which they wish to have decided”:  Odgers, supra, at para. 5.

[33]         Ms. Donaghey’s mental condition might be an evidentiary fact relevant to the issues raised in the paragraphs under discussion, as the chambers judge concluded.  However, as I have said, relevance of the mental condition of a person to an issue is not the test under Rule 7-6(1).  Rather, the person’s mental condition itself must be in issue to warrant an order pursuant to the rule and none of these allegations put Ms. Donaghey’s mental condition in issue.

[34]         This situation may be contrasted with the more common situation in which a plaintiff claims damages on the basis that a defendant has negligently caused him or her personal injury.  In such a case, the defendant’s denial puts the plaintiff’s condition, whether physical or mental or both, “in issue”.  The plaintiff’s injury is a material fact and the failure to prove it will be fatal to the action.  Accordingly, the defendant may be entitled to a medical examination pursuant to Rule 7-6(1) to obtain evidence of the plaintiff’s physical or mental condition.  However, as I have explained, this is not such a case.

[35]         For those reasons, I would allow the appeal, set aside the order that Ms. Donaghey attend for a psychiatric examination, and dismiss the plaintiff’s application.

Mike de Jong Addresses Wrongful Death Law Reform in BC

Written by admin on . Posted in Tort Reform, Uncategorized. 60 Comments on Mike de Jong Addresses Wrongful Death Law Reform in BC

As I’ve previously discussed, if a person dies through the carelessness of others in British Columbia claims for damages by surviving family members must be brought under the BC Family Compensation Act. This outdated law has been the subject of much criticism due to its restrictions for survivors claims. You can find an in-depth analysis on this topic here.
Recently BC Liberal leadership candidate Mike de Jong gave the following invitation:

I took this opportunity to ask Mike the following two questions:

Mike was kind enough to answer my first question on this recent video he uploaded to YouTube:

My question is addressed 1:13 into the clip.  For the sake of convenience here is Mike’s answer transcribed:
“That’s a good question because I think our laws in BC have fallen a little out of step with what’s happened in other jurisdictions and my belief is that if an accident occurs and someone loses a loved one they should be entitled to the same type of compensation as is available to the families elsewhere in Canada and that is not presently the case in British Columbia and I think it’s time we updated our laws in that respect.  It’s really about fairness for BC families.  Thanks for the question”
Maybe Mike will tackle my second question on his next episode of Open Mike Mailbag.  Given Mike’s views on wrongful death laws I’m optimistic he is not a tort ‘reformer‘  (for those unfamiliar with the phrase, tort reform generally refers to limiting the rights of those injured through the carelessness of others to the beneift of insurance company profits)  but a clear stance is always appreciated.  Thanks Mike.