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Tag: bc injury law

It Ain't Over Till It's Over: Fresh Evidence After Judgement


As I’ve previoulsy discussed, a trial in the BC Supreme Court isn’t over until a formal Court Order is entered.  In limited circumstances a trial can be re-opened after the close of a case.  This can apply even after a Court gives judgement in a lawsuit as was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Graham v. Galaxie Signs Ltd.) The Plaintiff was an employee of the Defendant.  He claimed he was unlawfully dismissed from his employment and sued for damages.  His lawsuit appeared to succeed and in April, 2010 the BC Supreme Court gave judgement ordering that the Defendant pay the Plaintiff just over $44,000.
Prior to entering a Court order, the Defendant obtained further evidence and alleged that this new evidence “suggests that the plaintiff was less then forthcoming both at discovery and at trial about efforts he made to earn income during the relevant period of notice“.  The Defendant asked the Court to re-open the trial and to permit further evidence to be led.  Mr. Justice Groves agreed to take this unusual step and went further and ordered that the Plaintiff submit to another exaximation for discovery prior to having the trial resume.  In reaching this decision the Court provided the following useful reasons:

[6]             In Zhu v. Li, 2007 BCSC 1467, 2007 CarswellBC 2367 [Zhu], leave to appeal to British Columbia Court of Appeal dismissed, 2008 BCCA 239, 2008 CarswellBC 1153, this court stated at para. 20 that the following principles apply to an application to re-open a trial to adduce fresh evidence:

1.               Prior to the entry of the formal order, a trial judge has a wide discretion to re-open the trial to hear new evidence.

2.               This discretion should be exercised sparingly and with the greatest care so as to prevent fraud and abuse of the court’s process.

3.               The onus is on the applicant to show first that a miscarriage of justice would probably occur if the trial is not re-opened and second that the new evidence would probably change the result.

4.               The credibility of the proposed fresh evidence is a relevant consideration in deciding whether its admission would probably change the result.

5.               Although the question of whether the evidence could have been presented at trial by the exercise of due diligence is not necessarily determinative, it may be an important consideration in deciding whether a miscarriage of justice would probably occur if the trial is not re-opened.

[7]             In regards to the test set out in the Zhu case, it is of note here that the formal order has not yet been entered.

[8]             Additionally, the evidence appears credible.  There are before me emails as well as numerous documents that appear to be authored by the plaintiff during the notice period and related to the construction of the Cap-It sign.  All of these documents suggest that the plaintiff was working on the Cap-It sign.  Additionally, the affidavit of the plaintiff does not dispute the documentary evidence provided in the affidavit of John LeComte but states in his defence that he did not receive remuneration for the work that the documents confirm he did.

[9]             I find that the proposed fresh evidence is credible and tends to show that a miscarriage of justice would probably occur if the trial is not re-opened to deal with the issues raised by this evidence.

[10]         As suggested by Zhu, the defendant is obligated to exercise due diligence prior to trial to ensure that all issues are before the court and that all defences are raised so as to avoid unnecessary re-openings of trial.  With that said, I find that this defendant was diligent in their actions prior to trial in trying to uncover possible avenues of mitigation of this plaintiff.  In fact, the defendant has been so diligent that it has, in the past, received criticism from the court for some of their “diligence”.  That, coupled with what appears to be a prima facie denial at trial and at discovery by this plaintiff of work that the documents support he did, leads me to conclude that this defendant has exercised due diligence prior to and at trial in attempting to get all evidence in the area of mitigation before the court.

[11]         I direct that the trial of this matter be re-opened.  I further direct that the plaintiff be required to attend a further examination for discovery on the issue of mitigation during the relevant notice period as it relates to his relationships with Cap-It and Dickson’s Signs Ltd.  Additionally I direct that the defendant be permitted to call additional witnesses at trial on the issue of mitigation during the notice period as it relates to Cap-It and Dickson’s Signs Ltd.

Binding ICBC Claims Settlements: Lawyers and Client Consent


(Update:  The case discussed in the below post went to trial on February 15, 2011 with reasons for judgement released on February 18, 2011 with Mr. Justice Truscott finding that no binding settlements were entered into).
As previously discussed, lawyers act as agents for their clients and can enter into a binding settlement even if their client did not instruct the lawyer to do so.   (This, of course, would be improper and I address this at the bottom of this post).  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, further demonstrating this reality.
In this week’s case (Johnson v. Wells) the Plaintiff was involved in 2 motor vehicle collisions.  She hired a lawyer to deal with one of these claims.  In the lawyers dealings with ICBC he settled the claim that he was retained for apparently with his clients instructions.  However, a disagreement arose as to whether the settlement covered the second claim.   ICBC alleged that the lawyer entered into a settlement agreement for both claims.  The lawyer disagreed.  The BC Supreme Court was asked to decide whether there was a binding settlement.
The Plaintiff gave evidence that she “had not even retained (the lawyer for the second claim)…I had no intention of settling that claim and I did not instruct (my lawyer) to settle that claim“.  Ultimately the Court deemed that there was not enough information to decide whether there was a settlement for the second claim and that ICBC’s adjuster needed to be cross examined.  The reasons for judgment, however, do not focus on whether the client consented, rather, on the communications between the lawyer and ICBC and what was agreed to regardless of the client’s instructions.  In ordering that ICBC’s adjuster be cross-examined Mr. Justice Truscott provided the following reasons:

[40]         I have concluded that the plaintiff’s application to cross-examine Adjuster Johnston on her affidavit should be allowed.

[41]         The cross-examination will be restricted to why Adjuster Johnston attributed $5,000 to the 2006 accident and $2,500 to the 2008 accident, what was said between her and Mr. Albertson about the 2008 accident and its settlement, why she thought Mr. Albertson was retained by the plaintiff or the 2008 accident, what discussion there was between the two of them on the terms of the release, and what discussion there was between the two of them on settlement of any Part 7 benefits claim.

[42]         I see no usefulness in questioning Adjuster Johnston about Mr. Albertson’s authority to settle the 2006 accident because he clearly had that authority from the plaintiff given the plaintiff’s affidavit evidence.

Implicit in this judgment is that a binding settlement could have been entered into, regardless of the client instructions, depending on the discussion between the lawyer and ICBC.
If a lawyer enters into a binding settlement without a client’s consent the client’s remedy is against their lawyer as opposed to the Defendant in the ICBC Claim.  In the best interests of everyone involved it is vital that lawyers do not accept an ICBC settlement offer unless they have clear instructions from their clients to do so.  As previously discussed, a best practice when giving settlement instructions to a lawyer is to do so in writing to help avoid potential complications.

BC Supreme Court Finds Botox Covered Under ICBC's Part 7 Benefits


It is not uncommon for physicians to occasionally prescribe Botox Injections to treat symptoms of pain following motor vehicle collisions.  The Botox itself is not covered by the BC Medical Service Plan and people often turn to ICBC for funding of this expense.  Two recent decisions have addressed whether ICBC is obliged to fund Botox therapy when prescribed by a physician.
In 2008 Mr. Justice Macaulay provided reasons for judgement (Tiessen v. ICBC) finding that Botox is indeed a covered benefit under ICBC’s No-Fault Plan. The Court provided the following reasons:

[]           Counsel for ICBC seeks to impose too high a standard for proving that a recommended treatment is necessary.  I am satisfied that the treatment is necessary in the sense that the plaintiff needs short and long term pain relief for his lower back.  While it is impossible to predict that this particular treatment will succeed, it is nonetheless, on the evidence before me, a necessary physical treatment within the meaning of the section.

[]           There is no evidence to suggest that the proposed cost of the staged treatment is unreasonable.  The fact that the particular treatment is not covered by MSP does not establish that the cost is unreasonable.

[]           I am persuaded that the plaintiff is entitled to a declaration that he is an insured person to be benefited pursuant to Part 7 of the Regulations and a further declaration that he is entitled to receive medical rehabilitative benefits pursuant to the contract of insurance with the defendant under Policy Number 639 DER for the cost of Botox injections as recommended by Dr. Quartly.

Further reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, confirming that Botox is a benefit covered under Part 7.
In today’s case (Plensky v. Di Biase) the Plaintiff was injured in a 2004 motor vehicle collision.  A jury awarded the Plaintiff damages including just over $60,000 for the cost of her future medical care.   The court was then asked to reduce the award to take into account the future expenses that were covered directly by the Plaintiff’s Part 7 Benefits to avoid “double recovery”  (You can click here to read more about this topic).  Madam Justice Ross ultimately made a modest deduction to the Jury’s award.  Part of the deduction reflected the cost of future Botox injections which the Court accepted was a responsibility of ICBC’s under the Plaintiff’s Part 7 Benefits.
Today’s case coupled with Mr. Justice Macaulay’s 2008 decision make it clear that Botox can be covered under people’s own policies of ICBC Insurance.

ICBC Unidentified Motorist Claims and Post Accident Advertising

(IPDATE:  The case discussed in the below post was upheld on Appeal on October 26, 2011)

As previously discussed, victims of injuries sustained in collisions caused by “unidentified motorists” can seek compensation directly from ICBC under section 24 of the Insurance (Vehicle) Act provided that they comply with this section.  One of the requirements of s. 24 is for the claimant to make “all reasonable efforts” to ascertain the identity of the at fault motorist.  One reasonable effort a Plaintiff can take is to advertise for witnesses.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing post accident advertisements and explaining that these are not always necessary to bring a successful s. 24 claim.
In today’s case (Nicholls v. Anderson) the Plaintiff was involved in a single vehicle motorcycle accident in 2005.  He lost control of his motorcycle when he “encountered a diesel fuel spill on the highway“.  He alleged an unknown motorist was at fault for leaving this spill on the road and sued ICBC directly for his damages.  ICBC applied to dismiss the lawsuit arguing the Plaintiff failed to make reasonable efforts to determine who was responsible for the diesel spill.  Mr. Justice Saunders disagreed and dismissed ICBC’s application.  In doing so the Court provided the following useful reasons about advertisements and s. 24 claims:

[13]         The last step contended by ICBC is one in which the claimant ought reasonably to have taken is the placing of a newspaper advertisement or advertisements. This aspect of ICBC’s argument has been of the greatest concern to me on this application because it is a step that could have been taken at relatively modest cost, and because in this particular case the claimant took absolutely no positive steps aimed at ascertaining the identity of the persons responsible.

[14]         I do not think that this argument can be answered solely by the claimant pointing — as was done in argument — to the fact that the accident did not happen in a well-defined geographic area or one where there was a specific readership of a specific newspaper likely identifiable. In my view, if there was an obligation to place a newspaper advertisement or advertisements, they could have been placed in community newspapers serving the north side of the Fraser in the areas of Mission and Hope and perhaps Maple Ridge, or alternatively, as ICBC argued today, in one or both of our Vancouver daily newspapers which enjoy a readership outside the greater Vancouver area.

[15]         Mr. Nicholls perceived himself in the statement that he gave within days of the accident as having sustained more than a trivial injury. If his only recourse legally were to pursue the tortfeasor, the person responsible for the spill, what steps would he have taken if acting rationally in pursuit of his own interests?  Would he have gone to the extent of placing such newspaper ads?

[16]         In my view, the reality is that there would have been only an extremely remote chance of such a line of enquiry being successful. If there ever was a time when the citizens of this province had a habit of scamming the legal notices printed in the daily or weekly newspapers’ classified sections, that day has long passed. The presumed target for any such advertisement would have been someone who would happen to have been following the truck in question in daylight in the vicinity of the accident scene, who would have seen the diesel oil splashing, would have made mental note of it as something significant, and then would have been able to make note of the truck’s appearance with sufficient particularity to identify the driver. That person, if one existed, would then have to read the advertisement in question. The possibility of all of this is so remote that in my view for the claimant in his position to have undertaken even the modest cost of taking out such an advertisement would have been absurd.

[17]         That is not to say that it would be inappropriate in any case for a claimant injured in a motor vehicle accident to take that step. As I say, the reasonableness of a person’s conduct depends in part on the benefit to be gained if they undertake  a course of action. I would not say, certainly not on this application today, that a person who had suffered a catastrophic injury involving quadriplegia or brain injury or the like could feel free not to take a positive step such as taking out a newspaper advertisement or posting an internet classified advertisement in an attempt to locate a tortfeasor, no matter how remote the chances of that being successful might seem; but in this case, given the claimant’s relatively modest injuries as alleged and as attested to in his statement, I do not think that would have been a reasonable requirement on his part.

This case is interesting because the Court went further and struck the paragraphs of ICBC’s Statement of Defence alleging that the identity of the offending motorist was ascertainable.  The Court cited the New BC Supreme Court principle of “proportionality” in arriving at this decision.   Mr. Justice Saunders provided the following reasons:

[18] So the application is dismissed, and in my view it is appropriate in this case to go further than that and to dispose of the defence. In my view in all likelihood I know as much about the reasonableness of the claimant’s actions, given the evidence that has been presented, as a trial judge would, and so I am able to rule conclusively on that issue. I also acknowledge the points made by counsel for ICBC and counsel for the claimant as to the need to under the new Rules to have regard to proportionality. So, in conjunction with dismissing the application, I rule that paras. 2 and 4 of the statement of defence of ICBC be struck. Those are the paragraphs in which it is alleged that the identity of the driver/owner was ascertainable and that the claimant has not complied with the Act in failing to make all reasonable efforts to ascertain the identity of the unknown driver.

More on Injury Claims and Plaintiff Credibility


Further to my previous articles on this topic, little can do more damage to a lawsuit than a Court finding a Plaintiff lacks credibility.   When advancing an injury claim it’s important to know the types of factors Courts review in gauging whether a witness should be believed.  Reasons for judgement were recently published by the BC Supreme Court, Nanaimo Registry, discussing some of these.
In today’s case (S.T. v. S.K.) the Plaintiff was involved in a severe motor vehicle collision in 2007.  The driver of the offending vehicle admitted fault.  The Plaintiff sued for compensation for her personal injuries which included trauma to her left shoulder and right ankle.  The Plaintiff was ultimately awarded compensation for her injuries.  Prior to assessing damages, however, the Court highlighted some concerns with the Plaintiff’s credibility.  Madam Justice Smith provided the following criticism of the Plaintiff’s evidence:

[6]           I will begin with some observations about the credibility of the plaintiff.  I have concluded that, unfortunately, I cannot rely with entire confidence on her testimony.  The reasons for this conclusion are as follows.

[7]           First, some of her claims are exaggerated.  For example, at the examination for discovery, at Question 319, the plaintiff was asked:

Q         All right, so explain to me about the depression.  How is it that you relate that to the accident?

A          To give an example, if I said before the accident if I had – I was healthy, I was happy, I had good choice of boyfriends really to the point that they were motivated, outgoing, took care of me, respectful.  After the accident I couldn’t do sports, I couldn’t do anything that I did all my life with all my best friends that I grew up with for twelve years.  I couldn’t do to the best of my ability of sports that I used to do, and acting, and stuff like that.  And because of that it brought me down, it brought me extremely down to the point of where I – I was just so lonely and alone that I was pretty much willing to have any kind of boyfriend that would take me, literally, just because I was – I felt like I had nothing left by the time, you know.

[8]           The answer at discovery was an exaggeration, I must conclude, in light of the  plaintiff’s admission at trial, under cross-examination, that after the accident she led a very active social life, had a lead role in the school musical, and participated (though in a reduced way) in sports, including volleyball and soccer.

[9]           Second, where one might expect witnesses to be called to corroborate the plaintiff’s evidence regarding her symptoms, the plaintiff called only one witness in that respect, her mother.  I do not suggest that L.B. is not a credible witness, but she does have a very close relationship with her daughter and an obvious motive to view the evidence in a way that would be favourable to her daughter.  Also, L.B.’s ability to corroborate the plaintiff’s evidence was limited by the fact that the plaintiff has not lived at home for extended periods of time since the accident, and is currently not living at home.  No friends of the plaintiff were called, nor any fellow employees or supervisors, to relate their observations of the plaintiff experiencing the kinds of difficulties she described in her testimony.

[10]        Third, in her application for admission to the licensed practical nurse program at Vancouver Island University, the plaintiff wrote:  “I am also in very good health.  I know that working as a care aide is at times heavy work.”

[11]        Under cross-examination, she was asked whether she was in very good health and answered, “No.”  Asked whether she was misrepresenting her health in the application letter, she was unable to explain this discrepancy, as seen in the following extract from her evidence at trial.  I quote from page 73 of the transcript of the May 21 evidence, beginning at Line 29:

Q         Well, S.T. ??

A          At the time I’m sure I would not have been thinking about healthwise related to my pain in my shoulder or as of that time, pain in my ankle.  I would have probably been referring to my mental health and not thinking about my physical health.  I was ??

Q         Well, when you comment that you know that working as a care aide is at times heavy work, you’re specifically relating that to the physical requirements, certainly not heavy mental work.

A          Well, not heavy meaning literal heavy.  I mean ?? I meant hard work.  That doesn’t ?? that doesn’t include physical work.  Mental work.  For example, as a care aide, it’s very heavy work with dealing with seniors, seniors passing away.  Having that emotional part of it is very heavy too.  So —

Q         S.T., are you suggesting that when you wrote: “I know that working as a care aide is at times heavy work”, you were referring to the heavy emotional requirements of the job?

A          Not all but that is a big factor.  Hard work.  I would have rephrased it but that’s the way I wrote it.

[12]        That answer is, to put it charitably, disingenuous.

[13]        Fourth, the plaintiff was cross-examined at trial about a statement she made to the claims adjuster, David Beatty, on May 29, 2009, when she was in his office to discuss a possible settlement.  She agreed that she “may have said” that she had recovered and was able to do virtually all that she could do before the accident.  At trial, she said at one point that it was “not true”, and at another point that it was “true at the time”.

[14]        On her examination for discovery at questions 228 to 229, however, she said:

Q         So, will [the left shoulder] cause you some difficulty once a month, or –

A          I can’t estimate, it’s just kind of a random kind of act.

Q         Okay, and have you had any other problems as a result of the accident that weren’t specified in the Statement of Claim?  Any other injuries that haven’t been covered?

A          No.

[15]        At trial, she tried to suggest in her testimony that she had given that answer on discovery because at that exact time her shoulder was not troubling her.  Asked at trial whether she understood that the question was not about the exact time, but about that period of time, she said she did not know if she understood that, adding, “My shoulder hurts me when it is used:  If I sleep on it, I’m in pain, or if I reach with it I’m in pain.  I can’t put dates and times on it, it’s whenever I aggravate it.”

[16]        Having noted those reasons for viewing the plaintiff’s evidence with some caution, I will briefly review her testimony and the testimony of other witnesses relating to her injuries.

The BC Supreme Court and Adjournments of Lengthy Trials: The "20-Plus" Program

I’ve previously written about adjournment applications in the BC Supreme Court and that Judges hearing such applications must consider a “balancing (of) the interests of the parties” . Reasons for judgement were released this week by the BC Supreme Court indicating that, at least with lengthy trials, a third factor is in play; specifically the “public interest” must be considered.
In this week’s case (Jones v. Donaghey) the Plaintiff sued for damages claiming he was seriously brain damaged when one of the Defendant’s assaulted him.   The Plaintiff was a newborn at the time of the alleged assault and would be four years old at the time of the proposed trial.
The defendants sought an adjournment of the trial arguing that further time was needed in order to obtain proper medical evidence.  Ultimately Mr. Justice Macaulay disagreed and refused the adjournment application.  Prior to doing so, however, the Court indicated that the interests of not only the parties must be considered in adjournment applications of lengthy trials, but also the public interest.  Mr. Justice Macaulay provided the following useful reasons:

[3] Although I address the balancing of the interests of the parties separately below, the public interest is also impacted by the scheduling, and any potential rescheduling of lengthy trials. Considerable public and judicial resources are tied up in the intensive pre-trial management and conduct of trials under what is colloquially known as the “20-plus” program. The court instituted the program some time ago to assist in the management and scheduling of complex civil cases.

[4] Generally, in my view, every effort should be made to avoid the adjournment of trials once set under the program, as litigants in other cases have had to forgo the opportunity to set down their applications or trials for hearing, because either or both the trial management judge’s rota time and court time have been reserved for a 20?plus case.

[5] In more general terms, perhaps, Levine J., as she then was, referred to the need to consider such broader interests of justice when deciding an adjournment application respecting a long trial in Strata Plan VR No. 2000 v. Shaw, at para. 26. Justice Dorgan referred to the above with apparent approval in denying a defence application for an adjournment in J.S. (Guardian ad litem of) v. D.S., at para 17.

More on ICBC Injury Claims, Trials and Adjournments


As I’ve previously discussed, if you’re not prepared to proceed to trial and ICBC opposes an adjournment it’s necessary to apply for a Court order under Rule 12-1(9) of the BC Supreme Court Civil Rules.  Reasons for judgment were released earlier this month by the BC Supreme Court, Kamloops Registry, dealing with such an application.
In today’s case (Allan v. Houston) the Plaintiff was involved in a 2007 motor vehicle collision.  His injuries apparently included a fracture at the L4 level of his spine and a traumatic brain injury.  His case was set for trial in December 2010.  His treating specialists were apparently unable to “complete assessments of the plaintiff such that a court would be provided with an opinion with respect to the injuries sustained and the prognosis that the plaintiff faces“.  In addition to this, the Plaintiff switched lawyers shortly before the scheduled trial.  The new lawyer was unavailable for the previously scheduled trial.  He sought an adjournment but ICBC refused.  On application the BC Supreme Court ordered that the trial be adjourned.  Mr. Justice Dley provided the following reasons:
[7]  The defendant resists the application for an adjournment on the basis that this matter has been set for trial for some time, that the incident occurred almost three years ago, and, as a result of the heavily contested liability issues, that memories may fade as time continues on.
[8]  Counsel for the plaintiff emphasizes two factors:
that there has been a change of counsel, and that the plaintiff’s new counsel would be unavailable for trial; and
that there is the practical aspect of securing further medical information to ensure that the court is in a position to properly assess the damages, if in fact liability has been proven.
[9]  There is also a third aspect that needs to be considered, and that is the issue of the second motor vehicle accident.  The injuries sustained, it is alleged, in the second accident aggravated those in the first.  In order to ensure that justice can be done for all parties it would be beneficial to have the same trier of fact dealing with both accidents at the same time, as it is anticipated and suggested by counsel for the plaintiff.
[10]  In order for there to be a fair trial, the only rational outcome of this application is to grant the adjournment:  first, to ensure that plaintiff’s counsel is available; second, to ensure that the court has the benefit of the necessary medical information; and thirdly, to ensure that all efficiencies are taken into account to have both accidents dealt with at the same time.
The Court went on to award the Plaintiff costs.  In doing so Mr. Justice Dley reminded defence counsel that “this was an application that should have been given far more serious consideration than what it was by the defence.  There are certain courtesies that should be given during the course of any litigation: one is the availability of counsel and two is the practical aspect of proceeding to trial with all of the necessary information“.

New Rules of Court Update: No Document Disclosure Obligations for Petitions


Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, addressing whether the new Civil Rules require Petitioners to disclose and produce documents.
In today’s case (Fern Castle Holdings Corp. v. Stonebridge Village Residence Ltd.) the Petitioner sought relief arguing that the Respondents took action that was ‘oppressive to the petitioner‘.  In the course of the proceeding the Petitioner sought an order requiring the Respondents to produce a List of Documents pursuant to Rule 7-1.  The Respondents opposed arguing that this requirement does not apply to Petitions but only to “an action“.  Master Bouck agreed and dismissed the motion.  In doing so the Court provided the following reasons with respect to the application of Rule 7-1:

[9]             Rule 7-1(1) of the Supreme Court Civil Rules provides as follows:

7-1(1) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period,

(a) prepare a list of documents in Form 22 that lists

(i) all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and

(ii) all other documents to which the party intends to refer at trial, and

(b) serve the list on all parties of record.

(my emphasis)

[10]         While this Rule has changed the scope of document disclosure, it has not changed the general rule that such disclosure is not required on a proceeding brought by petition.

[11]         On a plain reading of Rule 7-1(1), it is impossible to import or apply document disclosure processes to this proceeding, even with the parties consent. The Rule can only apply to an “action” which is defined as a “proceeding started by a notice of civil claim”: Rule 1-1. Furthermore, the reference to the use of documents at trial confirms that the Rule does not apply to petitions.

[12]         The Application Respondents suggest that the relief sought on this application can only be pursued when or if the petition is converted to an action. I agree. However, the petitioner did not specifically seek that relief in its application and I am reluctant to make an order converting the petition on my own motion.

Damages for Violations of Privacy in BC

(Update: The below decision was upheld by the BC Court of Appeal in December, 2011)

As I’ve previously written, the BC Privacy Act allows individuals to sue where their privacy is violated “wilfully and without a claim of right” by another person.  This powerful law permits such lawsuits to succeed even where a Plaintiff cannot prove actual damages.
Despite the strength of the BC Privacy Act, relatively few reported decisions have been released applying this law in the years that it has been on the books.  Useful reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, applying this law in combination with a claim for damages for defamation.
In today’s case (Nesbitt v. Neufeld) the Plaintiff and Defendant were involved in “protracted family litigation” During the course of that litigation one of the parties “resorted to out-of-court publications that are plainly private to the litigants“.  The reasons for judgement are worth reviewing in full for the details but these apparently included “private communications…released to third parties and made available to the public (including)…a YouTube video…a website…a Facebook Page…(and) a letter to the Ministry of Child and Family Development”
The victim sued arguing she was defamed and further that her privacy rights were unreasonably violated.  Mr. Justice Crawford agreed and awarded the Plaintiff $40,000 in damages.   In reaching this award the Court provided the following reasons:

[89]         The B.C. Court of Appeal in Davis v. McArthur (1970), 17 D.L.R. (3d) 760, [1970] B.C.J. No. 664 (QL) (C.A.), said this in the course of its judgment at para. 9 of QL:

To constitute the tort [of violation of privacy] the violation must be committed “wilfully and without a claim of right”. The nature and degree of privacy to which the person is entitled in any situation or in relation to any matter is fully set out in s-s (2) [now ss. 1(2) and 1(3)] and, in my opinion, no useful purpose would be served in attempting to elaborate upon the words contained therein. Regard must be had to the provisions of the subsection as a whole. It is plain that whether there has been a violation of privacy of another must be decided on the particular facts of each case. As the learned Judge below said in his reasons for judgment [10 D.L.R. (3d) 250 at p. 255, 72 W.W.R. 69]: “It is necessary to consider all of the circumstances before determining ‘The nature and degree of privacy to which a person is entitled,’ s. 2(2) [now ss. 1(2) and 1(3)].

[90]         In Hollinsworth v. BCTV, a division of Westcom T.V. Group Ltd. (1999), 59 B.C.L.R. (3d) 121, 113 B.C.A.C. 304, the Court of Appeal defined the term “wilfully” to mean “an intention to do an act which the person doing the act knew or should have known would violate the privacy of another person” (at para. 29 of B.C.L.R.).

[91]         Dr. Nesbitt’s use of the private correspondence between Ms. Neufeld and Ms. X was a deliberate act that violated Ms. Neufeld’s privacy. The communications were extremely personal…

[96] Had Dr. Nesbitt restricted his communications within the confines of the family court litigation where he had counsel to advise him of the bounds of legitimate expression of his opinions, the issues before me in this proceeding might not have arisen. I say “might” because I note that certain publications of Dr. Nesbitt prompted an application to the family court that resulted in a consent order made on September 8, 2008 before Master Caldwell restraining Dr. Nesbitt from making further improper communications…

[102] The reality is that Dr. Nesbitt has taken his battle with Ms. Neufeld over custody and access far outside the ordinary confines of the family court litigation. Even worse his lack of appreciation for the proper boundaries of communication of his opinions has spread to besmirch persons that are friends of Ms. Neufeld.

[103] Dr. Nesbitt disclosed matters private to the parties in a manner that defamed Ms. Neufeld; he is the publisher of the defamatory materials at issue.

[104] For breach of privacy and the defamation aspects of the defendant’s claim, I set that amount at $40,000.

[105] I only limit the defamation damages due to the fact that while it is plainly publication to the world in the sense the defamatory materials were put on the Internet, Ms. Neufeld indicated there has been little personal or professional backlash. Indeed, if I read between the lines, the communications to the Rotary Club, the Ministry and the Child’s doctor were treated with the disdain they deserved.

The Court went on to award the victim ‘special costs’ in order to rebuke the other parties ‘reprehensible conduct‘.  The ease created by social media platforms in allowing individuals to quickly publish material to the Internet will likely make claims such as these more prevalent in the years to come.  With this, damage awards for privacy violations will hopefully be shaped into predictable ranges.

"Prior Consistent Statements" and ICBC Unidentified Motorist Claims


Generally speaking a person is not allowed to call evidence of ‘prior consistent statements‘ at trial.  The reason is because this offends the rule against hearsay and is an improper attempt to bolster witness credibility.  There is a powerful exception to this general rule, however, and this relates to allegations that a witness is fabricating their court-room evidence.   This exception was demonstrated in reasons for judgement released today by the BC Supreme Court, New Westminster Registry, in a personal injury lawsuit arising from a hit and run accident.
As I’ve previously written, injury victims have the right to sue ICBC for damages when involved in hit and run accidents in BC.  These are commonly referred to as section 24 claims because injury victims involved in unidentified motorist claims gain the right to sue ICBC directly through section 24 of the Insurance (Vehicle) Act.
ICBC often defends section 24 claims by denying the existence of the unidentified motorist and blaming the Plaintiff for their own injuries.  When this happens the ‘recent fabrication‘ exception is triggered in effect opening the floodgates for corroborating evidence at trial.
In today’s case (Jennings v. Doe) the Plaintiff was injured when a tractor trailer cut him off and forced his vehicle off the road.  The Driver of the tractor-trailer left the scene and the Plaintiff could not identify him.  The Plaintiff sued ICBC directly for his injuries.  ICBC defended the claim denying the existence of the tractor trailer.  The Plaintiff attempted to call evidence of prior consistent statements corroborating his courtroom evidence.  ICBC objected arguing this was not permissible.  Madam Justice Baker disagreed and allowed the evidence in.  In doing so the Court gave the following very useful reasons:

[52]         Counsel for the defendants objected to the admission of the testimony of Mr. Simon and Mr. Jennings, Sr., and various documents indicating that Mr. Jennings did, at the earliest opportunity, and consistently since that time, claim that the accident had been caused by the actions of the driver of a tractor-trailer unit.  Counsel submitted, correctly, that previous “consistent” statements of a witness are normally not admissible for the truth of their contents, or to buttress the credibility of a trial witness’ testimony.  The defendants say they are not asserting a “recent” fabrication, although by implication they are asserting that Mr. Jennings has fabricated a story about how the accident happened.

[53]         In my view, earlier decisions of this court establish that in circumstances such as these, the previous out-of-court statements are admissible and relevant not for proof of the truth of the out-of-court statements but to rebut any inference that a claimant is lying because he failed to assert his present version of events at the first and any subsequent opportunity when it would be reasonable to expect him to do so, or had made inconsistent claims in the past about the circumstances of the accident.

[54]         In Vanderbyl v. Insurance Corporation of British Columbia, (1993) 79 B.C.L.R. (2d) (S.C.), at paras. 37 and 38, Mr. Justice Trainor, an experienced trial judge, set out a list of elements to be considered in assessing the credibility of a plaintiff in cases such as these.  Among the elements identified by Justice Trainor were the following:

1.  Whether the plaintiff reported the existence of the unidentified vehicle as soon as reasonably possible to the police or other persons in authority and to I.C.B.C.

2.  Whether the description of the unidentified motor vehicle given by the plaintiff was as specific as might reasonably be expected from the particular plaintiff in the circumstances.

3.  Whether the plaintiff’s testimony at trial is consistent with statements given to the police, doctors or medical attendants, family members, associated or other witnesses or to I.C.B.C.

4.  Whether the plaintiff has called witnesses to testify to whom statements were made or who might testify about the plaintiff’s actions after the incident.

8.  Whether the plaintiff’s actions following the accident are consistent with those one might reasonably expect of a person in similar circumstances.

[55]         In this case, Mr. Jennings reported the existence of the unidentified vehicle as soon as reasonably possible to the police and to the Insurer.  Mr. Jennings told drivers who stopped at the scene and the ambulance attendant ? Mr. Simon ? that a tractor-trailer unit had been involved and he attempted to make a report to police at the scene, but was prevented from doing so by the ambulance personnel who were concerned about his physical injuries.  Mr. Jennings Sr. reported the involvement of a second vehicle to the Boston Bar RCMP Detachment on the day of the accident.  Mr. Jennings Sr. reported the circumstances to the dial-a-claim adjuster by telephone and Mr. Jennings made a statement in person and in writing to an adjuster a few days after the accident.  The evidence of Mr. Simon about Mr. Jennings’ anger and his physical condition when assessed at the accident scene is consistent with what one might reasonably expect of a person in similar circumstances.   I believe Mr. Jennings, and I accept his testimony about how the accident happened.

When advancing a hit and run ICBC claim it is good practice to review hospital, ambulance, police and other records to look for ‘prior consistent statements’ in the event ICBC alleges recent fabrication at trial.