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The Price of Passing the Buck: Dismissed Third Party Claims and Costs Consequences

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized. 46 Comments on The Price of Passing the Buck: Dismissed Third Party Claims and Costs Consequences


As previously discussed, when Plaintiffs lose a lawsuit in the BC Supreme Court the Defendants are typically each entitled to recover their ‘costs‘.   For this reason Plaintiffs need to take care in selecting the Defendants to their lawsuit.  The same principle holds true for Defendants who don’t accept blame for their actions and unsuccessfully try to pass the buck by dragging a ‘Third Party’ into a lawsuit.  Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, demonstrating this general principle.
In this week’s case (Vedan v. Stevens) the Plaintiff sued the Defendant for personal injuries.  The Defendant denied fault and blamed the Plaintiff.  The Defendant also filed a “Third Party” claim against two individuals arguing they may be at fault and brought them into the lawsuit.  Ultimately Madam Justice Beames found that both the Plaintiff and the Defendant were at fault for the Plaintiff’s injuries but that the Third Parties were faultless.
The Third Party brought a motion seeking an order requiring the Defendants to pay their costs.  The Defendant argued that these should be the Plaintiff’s responsibility.  Madam Justice Beames disagreed and ordered that the Defendant pay the Third Party’s costs.  In reaching this typical result the Court provided the following reasons:

[7]             With respect to who ought to pay the third parties’ costs, the general rule is that a defendant who has unsuccessfully brought third party proceedings should be responsible for the third parties’ costs: Wilson v. INA Insurance Co. of Canada, [1998] B.C.J. No. 2174 (B.C.C.A.) at para. 37; Milina v. Bartsch, [1985] B.C.J. No. 2789 (S.C.) at para. 4.

[8]             As McLachlin J. (as she then was) said in Milina:

[5]        There may be situations where, on the peculiar facts of the case, fairness requires that an unsuccessful plaintiff bear a successful third party’s costs. Courts have held that such an order may be appropriate where one or more of the following situations was present:

1.         Where the main issue litigated was between the plaintiff and the third party…

2.         Where the third party was brought or kept in the matter by reason of the act or neglect of the plaintiff…

3.         Where the case involves a string of contracts in substantially the same terms for the sale of goods…

4.         Where the third party proceedings follow naturally and inevitably upon the institution of plaintiff’s action, in the sense that the defendant had no real alternative but to join the third party…

[9]             The defendant argues that this situation is very similar to that of Norman (Guardian ad litem of) v. McMillan, 2004 BCSC 384 in which the court found that the defendant fell within the exceptions in paragraphs 2 and 4 of Milina. In my view, the decision in Norman is distinguishable. There, the defendant was found completely blameless for the accident, which had initially been commenced when the plaintiff’s mother was his guardian ad litem. It had been her decision to commence the unsuccessful action against the defendant in the first instance. Certain steps that were taken in the action led the trial judge to conclude that defence counsel had a proper basis for alleging negligence on the part of the third party and the trial judge accepted that the third party, or her counsel, had employed tactics amounting to an attempt to make an end run around the defendant.

[10]         I am not satisfied that there is anything in this case which takes it out of the general rule. Consequently, the defendant will bear the third parties’ costs as assessed.

More on the New Rules, Formal Settlement Offers and Timelines for Acceptance

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized. 68 Comments on More on the New Rules, Formal Settlement Offers and Timelines for Acceptance


As I’ve previously written, the new formal settlement offer rule (Rule 9) reads almost identically to the former Rule 37B.   Under the former rules BC Courts were reluctant to have formal settlement offers trigger costs consequences following trial where the offer was open for acceptance for a short period of time.  Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, reaching a similar result under Rule 9.
In today’s case (Hunter v. Anderson) the Plaintiff sued for injuries as a result of a slip and fall incident.  In the course of the lawsuit the Defendant made a formal settlement offer for $25,000.  This offer was made one week before trial and was left open for acceptance for only 3 days.  The Plaintiff declined the offer and proceeded to trial.  After trial the Defendant was found 25% at fault for the fall and the Plaintiff was awarded just over $9,000 in damages.
The Defendant asked to be awarded their costs from the time of the offer onward.  Mr. Justice Cullen refused to do so finding that the offer was not alive for a reasonable period of time and split the costs the parties were entitled to.   In reaching this verdict the Court provided the following reasons:
[14] In dealing with the first issue under Rule 9-1(6), whether the offer was one that might reasonably have been accepted “the analysis is not one of hindsight, once the final result is known”.  See A.E. v. D.W.J. 2009 BCSC 505; Bailey v. Jang, 2008 BCSC 1372.  In the present case, the operative offer of the defendant was made relatively late in the day and was essentially premised on the defendant having no potential liability, but simply to offset the costs of a potential trial…

[15]         In my view, on balance, in the circumstances, despite the ultimate result, given the short duration of the offer, the fact that it was not based on an assessment of the liability of the defendant, it could not be characterized as one which ought reasonably to have been accepted.  I note that on March 9, 2010, when the offer was made, the defendant had not yet provided her fourth and final list of documents which was provided on March 10th.  As well, there was ongoing disclosure of the plaintiff’s documents.

[16]         In addition I note that in Bailey v. Jang, supra, Hinkson J. (as he then was) considered a seven day period “a reasonable time after which the plaintiff could consider (the defendant’s) offer” for purposes of awarding double costs under the old Rule 37B(6) after the expiry of that period…

Although the defendant tendered her offer on March 9th, six days before trial, it was in the context of ongoing disclosure and was left open, effectively, for only three days.  The plaintiff did not have the benefit of a great deal of time to assess the defendant’s offer.  In the context of Bailey v. Jang, Hinkson J. considered a seven day period “a reasonable period of time after which the plaintiff could consider their offer”.  I conclude a similar period is appropriate to impute in the circumstances of this case where the plaintiff was deprived of the ability to accept the defendant’s offer after only three days effectively commencing March 10th.  In light of that factor and the others I have set forth, I award the plaintiff, as indicated, the costs and disbursements up to and including the first two days of trial, and the defendants their costs and disbursements for the six days comprising the balance of the trial.

The Standard of Care For Drivers Approaching Flashing Green Lights

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


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the issue of fault for intersection crashes governed by a flashing green light.
In today’s case (Nonis v. Granata) the Plaintiff was involved in a collision with the Defendant’s vehicle.  The crash happened at a busy intersection in Burnaby, BC.  The Plaintiff approached an intersection which was governed by a stop sign in his direction of travel.  He left the stop sign and attempted to drive through the intersection which consisted of 6 lanes of travel.  Vehicles were stopped in the first 5 lanes.  As the Plaintiff entered the 6th lane the Plaintiff failed to see the Defendant’s oncoming vehicle and the collision occurred.
The Defendant was not speeding.  He was faced with a flashing green light as he approached the intersection and had the right of way.   Despite this the Defendant was found 25% at fault for the crash for not taking appropriate care in all of the circumstances.  In reaching this verdict Madam Justice Fisher provided the following reasons addressing motorists responsibility when approaching a flashing green light:

[12] A driver approaching a flashing traffic signal also has a duty to proceed with caution.  Section 131(5) provides that when a flashing green light is exhibited by a traffic control signal at an intersection,

(a) the driver of a vehicle approaching the intersection or signal and facing the signal must cause it to approach the intersection or signal in such a manner that he or she is able to cause the vehicle to stop before reaching the signal or any crosswalk in the vicinity of the signal if a stop should become necessary, and must yield the right of way to pedestrians lawfully in a crosswalk in the vicinity of the signal or in the intersection …

[13]         Although this section has been held to advantage pedestrians, the presence of a flashing green light may be considered in assessing the potential liability of a dominant driver involved in a collision with another vehicle: Gautreau v. Hollige, 2000 BCCA 390.  Accordingly, in the circumstances of this case, I am entitled to consider the flashing green light as a factor in assessing the driving of the defendant and his obligation to respond to the danger that was presented by the plaintiff…

[28] The defendant, while the dominant driver, proceeded toward an intersection with a flashing green light in circumstances where the traffic in the immediate two lanes to his left had either stopped or was barely moving.  In my view, he had a duty – consistent with s. 131(5) of the Act – to slow down sufficiently to be able to cause his vehicle to stop should this become necessary.  This he did not do.  His evidence was that he was driving at approximately 40 kilometres per hour.  Had he slowed down, he would have had a sufficient opportunity to avoid the collision, as he would have been in the same position as the vehicles to his left.  His failure to keep a proper lookout contributed to the accident….

[33] For all of these reasons, it is my view that both parties were at fault for this collision.  Because the defendant was the dominant driver, I consider him to be less at fault.  Although he failed to slow down, he was not speeding, as were the defendants in both Andrews and Hynna. Under the Negligence Act, I find the plaintiff 75% at fault and the defendant 25% at fault.

Rules of Court Update: Video-Conference Evidence and "Proportionality"

Written by admin on . Posted in BCSC Civil Rule 1, Civil Procedure, Uncategorized. 2 Comments on Rules of Court Update: Video-Conference Evidence and "Proportionality"


As I’ve previously written, the BC Evidence Act permits, in certain circumstances, witnesses to give evidence via video-conference instead of appearing live in Court.  This can result in great savings of time and money to parties involved in a lawsuit.  Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, demonstrating that orders allowing video-conference evidence at trial may become more common place given the New BC Supreme Court Rules focus on “proportionality”.
In today’s case (Slaughter v. Sluys) the Plaintiff was injured in a 2004 motor vehicle collision in Vernon, BC.  The case was set for trial for April, 2011.  Many of the Plaintiff’s witnesses were from Ontario and the Plaintiff wished to have them testify via video-conference.  If the Plaintiff was granted this order he estimated the savings at $50,000.   The Defendant objected arguing that the video-conference rule “is intended to apply in relatively rare circumstances, and to individual or a limited number of witnesses. He says that there is no authority for what the plaintiff proposes, namely to call 11 of his 28 witnesses via videoconference, over an estimated 22 hours…It is the defendant’s position that the cost of having the witnesses attend in Vernon for the trial pales in comparison to the multi?million dollar claim being advanced by the plaintiff. It is his position that it would be fundamentally unfair to limit the defendant’s counsel’s ability to have a full and complete cross-examination of the witnesses, which he says can only occur if the witnesses are physically present in the courtroom.”
Madam Justice Beames rejected these arguments and largely granted the Plaintiff’s motion.  In doing so the BC Supreme Court gave the following reasons explaining the vital role of the ‘proportionality‘ principle in having cost effective trials:

[9]             There is no question that the Rules of this province, enacted in 2010, have a new or at least renewed, emphasis on the just, speedy and inexpensive determination of a proceeding on its merits, which involves a consideration of proportionality. There is also no question that various forms of technology have been employed on a more frequent basis recently, in all court proceedings, including trials. Advances have been made in the quality of communication via videoconferencing, which has all but eliminated the problems often associated with videoconferencing in the early days of its use, which involved time delays in the transmission and which in turn frequently resulted in counsel and witnesses talking over each other and which made for a less than satisfactory method of conducting both direct or cross examination. I have, in the recent past, found videoconferencing to be an acceptable and satisfactory method of receiving evidence from a witness, which has not inhibited assessment of credibility or the finding of facts. Although at first blush 22 hours worth of evidence via videoconference seems to be a significant amount of time, it must be borne in mind that this trial is scheduled to last for six weeks, and the proposed videoconferencing would consume but four days of the trial.

[10]         I am not convinced, as submitted, that it would be “fundamentally unfair to the defendant to deprive him of the opportunity to have witnesses properly cross examined” in person in the courtroom. Proper and full cross examination can take place even when witnesses are appearing via videoconferencing. In my view, this is particularly so where the witnesses are experts and where credibility per se is not in issue and it is also the case where the evidence a witness may give is not overly contentious. On the other hand, the plaintiff cannot, alone, determine which witnesses are “important” and therefore should attend in person, and which witnesses are “not so important” and therefore should be permitted to testify via videoconferencing.

[11]         I am also mindful of the submission that cross examination of the experts will be difficult if conducted via videoconferencing, as a result of the number of documents each witness may be asked to review. However, videoconferencing can be accompanied by equipment at each end of the transmission that allows both the expert and the examiner to view the same document. Further, the experts’ files are required, under the new Rules, to be produced for review by opposing parties, on request, at least 14 days before trial. File contents may be organized and numbered in such a way as to minimize any concerns with respect to the use of documents during direct or cross-examination via videoconferencing. I am satisfied that any need to refer experts to documents can be satisfactorily accommodated and does not mean that experts should not be permitted to testify via videoconferencing.

[12]         Bearing all of the evidence and submissions of counsel in mind, and attempting to balance the interests of the parties, I have concluded that the following witnesses should be permitted to testify by videoconference: Mike Willems, Frank Durant, Dr. Marshall, Dr. Stimac, Dr. Berry, Dr. Scher, and Dr. Travlos. With respect to the remaining witnesses, each, as I understand the submissions, has something to say about the plaintiff’s most significant claim, his loss of opportunity to earn income, in that each either works with or supervises the plaintiff in his current employment. Given their relationships to the plaintiff, the possibility that their evidence will be very contentious, and that none of them have provided the court with any indication that they will be personally inconvenienced or suffer hardship as a result of testifying in person in Vernon, they will be required to testify in person if the plaintiff does indeed call their evidence at trial.

MPIC No-Fault Benefits Not Available to British Columbians Injured in BC By MPIC Insured Drivers

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized.


Reasons for judgement were released today deciding the extent of no-fault benefits the Manitoba Public Insurance Company (MPIC) has to pay when a driver insured by them injures a person in British Columbia.
In today’s case (Schuk v. York Fire & Casualty Insurance Company) the Plaintiff was considered a pedestrian and was struck by a tractor trailer driven by an individual insured with MPIC.  The collision occurred in British Columbia.  The Plaintiff was severely injured but ICBC and MPIC did not agree as to who had to provide coverage.
Ultimately a lawsuit was brought and Mr. Justice Meyers ordered that both MPIC and ICBC had to provide the Plaintiff with benefits with MPIC being the primary insurer.  (You can click here to read my former post summarizing this previous decision)
Unfortunately the legal positioning did not end there.  Manitoba is a true no-fault jurisdiction meaning that people injured in Manitoba motor vehicle collisions have had their rights to sue for damages severely restricted.  As a trade off they have a relatively generous scheme of no-fault insurance benefits.  In today’s case the Plaintiff argued that MPIC had to provide the Plaintiff with the more robust MPIC benefits.  MPIC disagreed arguing that their obligation to pay no-fault benefits is governed by the lesser BC limits.  Ultimately Madam Justice Brown sided with MPIC and ruled that a British Columbian injured in BC by an MPIC insured driver is not entitled to claim the more generous MPIC no-fault benefits.  Madam Justice Brown provided the following reasons:

[16]         The issue before me turns on the proper interpretation of the Power of Attorney and Undertaking filed by the Manitoba Public Insurance Corporation.  In this case, the relevant provisions of the undertaking provide that the Manitoba Public Insurance Corporation undertakes to:

A. … appear in any action … against it or its insured …

C. … not to set up any defence to any claim … which might not be set up if the contract had been entered into in accordance with the laws relating to motor vehicle liability insurance contracts or plan of automobile insurance in the Province … and to satisfy in a final judgment rendered against it or its insured by a court … in respect of any kind or class of coverage … up to the greater of

(a) the amounts and limits for that kind or class of coverage … provided in the contract or plan, or

(b) the minimum for that kind or class of coverage … required by law in such province ….

[17]         There is no issue that the coverage for the kind or class of insurance, being no-fault benefits is greater in Manitoba.  The question is whether its undertaking makes MPIC liable to pay that amount to Ms. Schuk.  In my view, it does not.  The undertaking provides that MPIC will satisfy any final judgment rendered against it “in respect of any kind or class of coverage provided under the contract or plan”, and “in respect of any kind or class of coverage required by law to be provided under a plan” in British Columbia.

[18]         In this case, there is no coverage provided under the contract or plan to Ms. Schuk for no-fault benefits under Part 2 of the Manitoba Act.  To qualify for that coverage, a person must be a Manitoba resident or injured in an accident in Manitoba (s. 74).  As MPIC argues, the Manitoba standard automobile policy does not incorporate PIPP benefits.  PIPP benefits are available based upon statutory entitlement.

[19]         Here, Section B of the contract provided accident benefits “as required by law”.  The Manitoba legislation provides PIPP benefits only to those resident in or injured in Manitoba.  Those benefits are not “required by law” for one, like Ms. Schuk, who is not a resident of Manitoba and not injured in Manitoba.  The driver of a Manitoba licensed vehicle is not required to carry PIPP coverage.  The Section B endorsement carried a charge of $950 for “accident benefits coverage for those drivers not eligible for Personal Injury Protection Plan (PIPP)”.  I accept the submissions of Manitoba Public Insurance that this would be drivers who were not Manitoba residents and were not injured in Manitoba.

[20]         Ms. Schuk did not have PIPP benefits coverage under either the contract or the plan.

[21]         The other portion of MPIC’s undertaking, that is not to set up any defence which might not be set up if the contract had been entered into in the Province of British Columbia, also does not assist the plaintiff.  ICBC could certainly have set up the defence that it does not provide benefits under the Manitoba legislation; that Ms. Schuk does not qualify for PIPP benefits.

The New Rules of Court and Examinations for Discovery

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized. 47 Comments on The New Rules of Court and Examinations for Discovery


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing the scope of permissible questions at examinations for discovery under the new Civil Rules.  In short, the Court noted that although the New Rules contain some changes with respect to the time permitted for discovery, precedents developed under the former rules remain good law with respect to permissible questions.  The court also addressed the factors that can be considered in extending an examination for discovery.
In today’s case (Kendall v. Sun Life Assurance Company) the Plaintiff had disability insurance with the Defendant.  The Plaintiff sued claiming the Defendant improperly denied her insurance benefits.  In the course of the lawsuit the Plaintiff examined a representative of Sun Life for discovery.  During the course of discovery Sun Life’s lawyer caused “so much disruption” with interfering objections that Plaintiff’s counsel terminated the examination prematurely and walked out.
The Plaintiff brought a motion compelling the representative to attend discovery again to complete the examination, to answer the questions that were objected to and to extend the time of discovery beyond the permitted 7 hours.  Madam Justice Griffin granted the motion and in doing so made the following comments about the scope of permissible discovery questions under the new rules:

[6]             Rule 7-2(18)(a) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules of Court] sets out the scope of examination as follows:

(18)      Unless the court otherwise orders, a person being examined for discovery

(a)        must answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action, …

[7]             Despite a variety of substantive changes to the Rules of Court enacted effective July 1, 2010, the scope of examination for discovery has remained unchanged and is very broad….

[13]         While the scope of examination for discovery has not changed with the new Rules of Court brought into force on July 1, 2010, the length of examination for discovery is now limited to seven hours or any greater period to which the person to be examined consents: Rule 7-2(2).

[14]          The newly imposed time limit on discovery makes it all the more important that the courts enforce the principle that counsel for the examined party must not unduly interfere or intervene during the examination for discovery.  The time limit imposes a self-policing incentive on the examining counsel to be focused and to not waste time on questions that will not advance the purpose of investigating the case or obtaining admissions for use at trial.

[15]         While the time limit on examination for discovery creates an incentive on the examining party to be efficient, it unfortunately also creates a risk that counsel for the examinee will be inefficient by unduly objecting and interfering on the discovery, for the purpose of wasting the limited time available.  If that party is economically stronger than the examining party, it also can strategically increase the costs of litigation this way, by burdening the financially disadvantaged party with having to bring a court application to obtain a proper discovery.

[16]         The proper conduct of an examination for discovery within the spirit of the Rules thus relies on the professionalism of counsel for the party being examined.

[17]         As held by the Ontario Superior Court in Iroquois Falls Power Corp. v. Jacobs Canada Inc. (2006), 83 O.R. (3d) 438 at para. 4:

Improper interference by counsel in the other party’s discovery undermines the purposes of discovery, prolongs it, fosters professional mistrust and generally offends the overall purpose of the Rules….

[18]         A largely “hands off” approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality, effective July 1, 2010.  Allowing wide-ranging cross-examination on examination for discovery is far more cost-effective than a practice that encourages objections, which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections.  It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial, rather than on examination for discovery. ..

[52] In summary, the majority of objections made were not valid. The objections were undue interference in the flow of the examination for discovery.  It may or may not be the case that some of the questions were worded awkwardly and may have been seeking evidence of marginal relevance.  The examining party who frames questions badly runs the risk that the evidence obtained will end up being of no value.  Nevertheless, considerable respect ought to be shown for the professional judgment of counsel for the examining party on how to best approach an examination for discovery.  It is not up to counsel for the party being examined to dictate the opposing side’s decisions on which relevant areas of questioning should be the focus of the discovery.  It is also not in accord with the object of proportionality to make it the function of the court to become involved in micro-managing examination for discovery questions.

In addition to the above this case is worth reviewing in full for the Court’s discussion of the many specific objections that were raised.  In particular, the Court held that it is permissible in lawsuits for denied insurance benefits to ask the insurer’s representative about their general practices.

No Rush Folks, The Call is Free!

Written by admin on . Posted in Uncategorized. 61 Comments on No Rush Folks, The Call is Free!


Over the past few years I’ve received plenty of e-mails and calls to discuss topics covered on my blog, radio interviews and other media participation.  Often people are looking for general legal information, other times they are seeking claim specific legal advice.
Every now and then a caller is hesitant to take up my time and rushes the conversation.  When I ask why they tell me they don’t want to be charged too much for the call.  This always catches me off guard because I don’t charge at all for these calls.
A recent such call prompted this short post.  I’d like to make it clear that inquiries are always welcome.  Time permitting I very much enjoy speaking with others about personal injury related matters.  If you call there is no need to rush, my initial consultations are always free of charge.  I only charge for my services when I’ve been formally retained with a written and signed agreement.
So, if you have a question about your claim or about BC Injury Law in general please don’t hesitate to contact me.  Thanks folks!

New Rules Caselaw Update: Costs and "Substantial Success" in the BC Supreme Court

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized. 51 Comments on New Rules Caselaw Update: Costs and "Substantial Success" in the BC Supreme Court


The New BC Supreme Court Rule 14-1(9) states that a successful party in a proceeding “must be awarded” costs unless the court otherwise orders.  The former Rule 57(9) dealt with this issue although it had slightly different wording.
Today reasons for judgement were released, for what I believe is the first time, dealing with and interpreting the new rule.
In today’s case (Aschenbrenner v. Yahemich) the Plaintiffs sued the Defendants for trespass, nuisance, defamation and other matters.  Ultimately they succeeded in some of their claims and were awarded just over $5,500 in total damages.  The Plaintiffs applied for an order of costs.  The Defendant opposed arguing that the costs award would be worth more than the awarded damages.
Ultimately Mr. Justice Metzger sided with the Plaintiffs and awarded them most of their costs.  In doing so the Court adopted authorities developed under the former rules.  Mr. Justice Metzger provided the following reasons discussing when a party is entitled to costs under Rule 14-1(9):

[12] Rule 14-1(9) of the Supreme Court Civil Rules states that:

(9)        Subject to subrule (12), costs of a proceeding must be awarded to the successful party unless the court otherwise orders.

[13] While the Rule itself does not include the term “substantial success” under the former Rule 57(9), it was held to be a necessary and sufficient condition for an award of costs under Rule 57(9) that success in the outcome of the trial be “substantial”: see Gold v. Gold, 82 B.C.L.R. (2d) 180, 32 B.C.A.C. 287.

[14] In Fotheringham v. Fotheringham, 2001 BCSC 1321 at para. 18, 108 A.C.W.S. (3d) 786, appeal to C.A. refused, 2002 BCCA 454, 172 B.C.A.C. 179, Bouck J. stated that a trial judge has absolute and unfettered discretion with respect to costs, but it ought not to be exercised against a successful party except for some good reason in connection with the case.

[15] Mr. Justice Bouck canvassed the factors to be considered with respect to Rule 57(9), and at para. 45 stated:

[45] Gold now seems to say that substantial success in an action should be decided by the trial judge looking at the various matters in dispute and weighing their relative importance. The words “substantial success” are not defined. For want of a better measure, since success, a passing grade, is around 50% or better, substantial success is about 75% or better. That does not mean a court must descend into a meticulous mathematical examination of the matters in dispute and assign a percentage to each matter. Rather, it is meant to serve as a rough and ready guide when looked at all the disputed matters globally.

[16] Mr. Justice Bouck then sets out a four step inquiry to determine whether or not to award costs after a trial at para. 46:

1.         First, by focusing on the “matters in dispute” at the trial. These may or may not include “issues” explicitly mentioned in the pleadings.

2.         Second, by assessing the weight or importance of those “matters” to the parties.

3.         Third, by doing a global determination with respect to all the matters in dispute and determining which party “substantially succeeded,” overall and therefore won the event.

4.         Fourth, where one party “substantially succeeded,” a consideration of whether there are reasons to “otherwise order” that the winning party be deprived of his or her costs and each side then bear their own costs.

(See also: Citta Construction v. Elizabeth Lane Holdings Ltd., 2004 BCSC 280, 129 A.C.W.S. (3d) 46 at para. 7.)

[17] Substantial success is not determined by counting up the number of issues and allocating success on each, or by comparing the dollar amounts, but by assessing success in the major issues of substance (Cohen v. Cohen, 1995 Carswell 608, 15 R.F.L. (4th) 84 (B.C.C.A.) at para. 4; Reilly v. Reilly, [1996] B.C.J. No. 1244 (S.C.); Rattenbury v. Rattenbury, 2001 BCSC 593, [2001] B.C.J. No. 889 at paras. 22-24, 33). Substantial success means success on 75% of the matters globally taking into account the weight of the issues and their importance to the parties. A court should compare the pleadings and the submissions with the actual results obtained by the parties (Rattenbury at para. 24.).

[18] In cases where one party achieves substantial success, the courts may award a portion of the substantially successful party’s costs. For example, in Newstone v. Newstone, [1994] B.C.J. No. 139, 2 R.F.L. (4th) 129 (C.A.), an award of one-half costs to a party was upheld where “[s]uccess, if it could be called that, lay more with the wife than with the husband …” One-half costs were also upheld in Rolls v. Rolls, [1996] B.C.J. No. 292, 20 R.F.L. (4th) 232 (C.A.), on the ground that such an award would not create an imbalanced judgment as much as would a full award. InCohen v. Cohen, a spouse was awarded 75% of her costs after success on her reapportionment claim, which was the largest and most time-consuming issue.

[19] The four step test identified by Bouck J. applies not only to matrimonial cases, but also to all types of cases where Rule 14-1(10) has application (Chaster (Guardian ad litem of) v. LeBlanc, 2008 BCSC 47, 164 A.C.W.S. (3d) 43 at para. 34).

[20] Where success is divided such that there is no substantially successful party, the parties may have to bear their own costs (Mari v. Mari, 2001 BCSC 1848, [2001] B.C.J. No. 2979).

[21] On a global view of the outcome of this litigation I find that the plaintiffs were substantially successful.

Another Judicial Rejection of ICBC's "Low Velocity Impact" Defence

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, Uncategorized.


I’ve written numerous times that ICBC’s Low Velocity Impact Defence (“LVI”) is not a legal principle.  A defence based on this principle was rejected yet again in reasons for judgement released today by the BC Supreme Court, Vancouver Registry,
In today’s case (Hunter v. Yuan) the Plaintiff’s vehicle was rear-ended by a taxi driven by the Defendant in 2006 in North Vancouver, BC.  Fault for the crash was admitted by the rear motorist.
Both parties agreed that the accident was “minor in nature“.  Despite the minor nature of the crash the Plaintiff was injured and continued to be troubled by her injuries by the time the claim reached trial some 4 years later.  The Defendant argued that this was a “minor accident which resulted in a minimal injury“.  In keeping with ICBC’s LVI policy the Defendant argued that the Plaintiff should receive nothing for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) or in the alternative “If the court were to award damages for non-pecuniary loss, the defence suggests that an award should be very modest“.
Madam Justice Morrison rejected the defence submission and awarded the Plaintiff damages for her losses including $35,000 for non-pecuniary damages.  In arriving at this figure the Court provided the following reasons:

[68]        First, I found the plaintiff to be entirely credible.  She did not seek to exaggerate, and gave her evidence in a very direct manner.  She was responsive to questions, and did not seek to avoid or be defensive with the tough questions posed on cross-examination.  I certainly accept her evidence with regard to her symptoms, past and present.  There is no credible or reliable evidence of any pre-existing injuries or conditions, and her injuries and ongoing symptoms are due to the accident of October 20, 2006.

[69]        It is true that the force of the accident was not major, but the evidence points to no other cause of the injuries and symptoms experienced by the plaintiff, other than the accident of October 20, 2006.

[70]        To say that the plaintiff experienced only three weeks of disability, or six or eight weeks at the most, is to ignore most of the evidence of the plaintiff, her family doctor, her fiancée, her father and Dr. Travlos.

[71]        Although by the summer of 2008 the plaintiff felt she was 85% recovered, she testified that at the present time, the flare-ups occur frequently, sometimes once every week or two, or more often, if she does activities that cause such flare-ups.  The flare-ups result in tension and muscle knots between her shoulder blades, particularly toward her right shoulder and neck area, and headaches occur.  She has sleep disruptions, difficulty getting to sleep, and voluntarily avoids some activities that she enjoyed prior to the accident; she avoids them rather than put herself in a position where pain or a flare-up will occur.

[72]        The evidence would indicate that her recovery has plateaued.  She takes Tylenol and Cyclobenzaprine on occasion, and she finds that she must remain active and exercise, as inactivity will make her symptoms worse.

[73]        The plaintiff’s pain is not chronic and continuous, but she suffers pain and increased pain with certain kinds of exertion.  It has been four years since the accident occurred, and Ms. Hunter continues to have pain in her shoulders, particularly her upper right back, and neck.  Ordinary daily activities such as carrying groceries, doing the laundry, vacuuming, and certain types of cleaning cause flare-ups, which result in pain.

[74]        Counsel for the plaintiff, in addressing the issue of non-pecuniary damages, has cited six cases where non-pecuniary damages ranged from $30,000 to $50,000.  Relying primarily onJackman v. All Season Labour Supplies Ltd. and Crichton v. McNaughton, the plaintiff submits that an award of $40,000 would be reasonable for non-pecuniary damages.

[75]        I agree that those two cases are helpful, given the evidence in this case, and I would award $35,000 for non-pecuniary damages.

This judgement demonstrates the reality that minimal crashes can result in injury including long-standing injury. The LVI Defence is divorced from medicine and law.  The rare occasions when the LVI defence succeeds before a judge is where the Plaintiff is found to lack credibility.   When injuries are supported with medical evidence it is rare for a lack of substantial vehicle damage to prove fatal to a personal injury lawsuit.

BC Civil Sex Abuse Claims and Party Anonymity: Protecting the Plaintiff by Protecting the Defendant

Written by admin on . Posted in Civil Procedure, Sexual Assault Civil Cases, Uncategorized.


Lawsuits are public matters.  Generally anyone is free to go to a Court Registry and obtain the names of parties to lawsuits and look at the formal issues of their claims.  This ‘open-court’ principle is fundamental in our Democracy and applies not only to criminal cases but also to civil cases including those dealing with claims for damages for sexual abuse.
It is understandably difficult for Plaintiffs to bring lawsuits dealing with the impact of sexual abuse in the best of circumstances and the open-court principle can serve as an unwelcome discouragement.  Accordingly BC Courts routinely make orders under the Court’s “inherent jurisdiction” to permit plaintiffs to identify themselves by their initials to protect their identity when dealing with sensitive lawsuits.
Sometimes, however, identifying a plaintiff by initials is not enough to protect their identity.  When this is the case the Court can go further to ensure a fair balance is struck between our open court system and the lack of deterrence of Plaintiffs seeking access to justice.  This balance was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (A.B v. C.D.) the Plaintiff sued a former high school teacher alleging that he sexually exploited, assaulted and battered her.  The Plaintiff also sued the school board arguing that they were ‘vicariously liable‘ for the misdeeds of the teacher.
In the course of the claim the Plaintiff was allowed to refer to herself by the initials AB.  The Defendants brought a motion seeking that they also be allowed to refer to themselves by initials.  The Vancouver Sun, wishing to fully report on the story, intervened and opposed the motion.  Madam Justice Gray ultimately granted the motion.  The reason for doing so was not to protect the defendants but rather to more meaningfully protect the identity of the Plaintiff.
The Court set out a lengthy summary of recent cases discussing the varying principles at stake.  From there Madam Justice Gray provided the following short and useful reasoning in allowing the initials order:

[81]        If the former teacher’s name is published in this case, it could lead members of the public, particularly people who were students and teachers at the plaintiff’s former school, to identify the complainant as the person involved in the criminal proceedings and these related civil proceedings. As a result, the September 27, 2010 ban shall be clarified to provide for restraint on the publication of the former teacher’s name.

[82]        It may seem odd that the former teacher will be treated better than others convicted of sexual offences if his name and identifying information is suppressed. However, this is simply the result of the publication ban and the circumstances. For example, where an accused person has a family relationship to an accused, it is routine to avoid publication of the name of the accused, because it could lead to identification of the complainant. This does not suggest that sexual offenders who prey on family members deserve better treatment, but simply reflects the inevitable result of protecting the complainant’s identity…

[84]        Schools are sufficiently small communities that a few facts can readily identify a former student. Here, the evidence shows that two teachers from the plaintiff’s former school have recently been accused of sexual misconduct with a student. That is such a small number of teachers that publication of the name of the school is likely to lead to identification of the plaintiff, particularly in combination with other details relevant to the plaintiff’s claim, such as her career.

[85]        In this case, a ban on publication of the name of the plaintiff’s former school is required for compliance with the September 27, 2010 ban on publication of information that would tend to identify the plaintiff…

[86]        The evidence shows that there are several high schools operated by the defendant school district. The community served by the defendant school district is a relatively small community. The only evidence of alleged or proven sexual misconduct by teachers in the defendant school district was of the two teachers who formerly taught at the plaintiff’s former high school.

[87]        In the circumstances of this case, publication of the name of the school board is likely to lead to identification of the plaintiff. As a result, the order must be clarified to prohibit publication of that information.