Tag: bc injury law

More on ICBC Claims, Fault and Credibility


After a collision occurs it is not uncommon for the parties involved to disagree as to how the crash happened and who is at fault.  If there are no independent witnesses to a crash it can be difficult to decide which version is more believable.  When these cases go to trial it is vital to give evidence in a consistent, reliable and credible way otherwise the Court may discount what you have to say.  Reasons for judgement were released today by the BC Supreme Court, Cranbrook Registry, dealing with the topic of credibility.
In today’s case (Tierney v. GMAC Leaseco Corporation) the Plaintiff was injured in a motorcycle collision in 2005 in Kimberley, BC.  The Plaintiff lost control of his motorcycle and struck a building located on the opposite side of the road from his proper lane of travel.  He claimed that the Defendant was at fault for the crash because the Defendant (who was driving a vehicle in the opposite direction of travel) “cut into the corner on his side of the road forcing him to take evasive action by turning sharply.”
The Defendant disagreed arguing that she never came into the Plaintiff’s lane of travel, rather the Plaintiff simply lost control and was responsible for his own injuries.  There were no independent witnesses who could satisfactorily comment on how the crash happened leaving the Court to pick between the Plaintiff’s and Defendant’s evidence.  Ultimately Mr. Justice McEwan preferred the Defendant’s evidence and dismissed the lawsuit.   The Plaintiff’s evidence was at times “uncertain“, “conflicting” and “contradictory“.  These were some of the reasons which caused the Court to prefer the Defendant’s version of events.  In dismissing the lawsuit the Court held as follows:

[48]        The absence of physical evidence, and the unreliability of the various witnesses, including irreconcilable contradictions in the evidence, leaves the court to weigh what it has. This is not a case where both parties are implicated and it is not possible to discern the degree to which each is responsible, leading to an equal split in liability. For the plaintiff to succeed, the court must accept his evidence that, first, he intended to turn right at the curve and second, that the defendant was in his lane at that point. His own evidence and the surrounding evidence and circumstances suggest it is unlikely that his intention at the time was to go up to the highway.

[49]        The defendant on the other hand, gives a straightforward story of proceeding from the highway to the curve on Jennings Avenue, having made a recent right turn. She had had little opportunity to accelerate as she approached the curve. She was not preoccupied or distracted. Her evidence is unreliable in the aftermath of the realization that her vehicle was in danger of colliding with the plaintiff’s motorcycle, but not in respect to the details leading up to the event..

[50]        I do not think it is possible to say what happened with complete confidence, although I think the defendant’s version of events more likely. What that means for the plaintiff is that he has failed to carry the burden of proof that, on a balance of probabilities, the defendant’s negligence was the cause of the accident. This means, accordingly, that the plaintiff’s action is dismissed.

While there are no novel legal principles arising out of this decision, this case is worth reviewing in full for anyone involved in an ICBC case where credibility will play a crucial role to see the types of facts a Court can take into account when weighing two different versions to a motor vehicle collision.  For more on this topic you can click here to read my archived posts discussing credibility in ICBC claims.

Non-Pecuniary Damages Discussed for "Waxing and Waning" Soft Tissue Injuries


As I’ve previously discussed, some of the most important factors to consider when valuing a claim for pain and suffering are the severity and duration of the injury.
Not all injuries have the same course of recovery.  Some soft tissue injuries never heal.  Sometimes they cause constant chronic pain.  Other times these injuries largely recover but ‘wax and wane’ with activity.   What is the fair value of a soft tissue injury with symptoms that come and go over the years?  Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, addressing such an injury.
In this week’s case (Schmidt v. Hawkins) the Plaintiff was involved in a 2005 BC motor vehicle collision.  The crash happened at near highway speed when the Defendant pulled into the Plaintiff’s lane of travel resulting in a significant T-bone type collision.  The Defendant admitted fault for the crash focusing the trial on the value of the Plaintiff’s ICBC claim.
The Plaintiff suffered soft tissue injuries.  These affected her neck and upper back and caused headaches.  her symptoms improved somewhat by the time of trial but were expected to ‘wax and wane‘ over the course of her lifetime.   Madam Justice Hyslop assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000.  In arriving at this figure the Court made the following findings about the nature and severity of the Plaintiff’s injuries:

[78]         Drs. Waller, Raghavan and Lau, for the most part, agree in their diagnosis and prognosis. Drs. Raghavan and Lau expect Mrs. Schmidt’s injuries to “wax and wane” over her lifetime. Drs. McDougall and Boyce are much more optimistic. For the most part, the doctors agree on the nature of Mrs. Schmidt’s injuries.

[79]         They all agree that Mrs. Schmidt should participate in a gym conditioning program. This was initially recommended by Dr. McDougall on February 6, 2007. Dr. Lau discouraged dependency on outside modules in place of an aerobic program, as did Dr. Boyce. All the doctors were of the opinion that Mrs. Schmidt could return to full-time employment….

[96]         At the time of trial, Mrs. Schmidt was age 39. The accident resulted in causing injuries to Mrs. Schmidt leaving her with a stiff and painful neck, pain in her upper back and, in particular, between the shoulder blades and headaches.

[97]         Mrs. Schmidt believes that her condition was not getting any better causing Mrs. Schmidt to have some minor depression.

[98]         It impacted her social life and some of her activities. At trial, for the most part, she was back to her regular activities.

[99]         As a result of her injuries, she required some assistance from family members and neighbours to meet some of her household and gardening responsibilities…

[141] I assess Mrs. Schmidt’s non-pecuniary damages at $45,000.00.

More on ICBC Claims and Lack of Objective Signs of Injury


As I’ve previously written, objective signs aren’t always present to verify an injury.  Often times victims of motor vehicle collisions experience pain and limitations but the source of the injury can’t be documented through objective tests such as X-rays, CT Scans and MRI’s.  If an injury can’t be objectively verified does that prevent a successful lawsuit for compensation?  The answer is no and reasons for judgement were released today demonstrating this fact.
In today’s case (Sandher v. Hogg) the Plaintiff was involved in a 2006 motor vehicle collision.  Her vehicle was rear-ended by the Defendant’s.  The Defendant admitted fault for the crash.  The trial focused on the nature and extent of the Plaintiff’s injuries.
The Plaintiff’s doctors gave evidence that she suffered injuries to her connective tissues (often referred to as soft tissue injuries) and that these have not fully healed.  The Plaintiff went on to experience chronic pain as a result of these injuries with a chance that the pain would continue indefinitely.
The Defendant’s lawyer argued that all of the Plaintiff’s complaints are subjective and can’t be verified.  He argued that the Plaintiff was exaggerating her symptoms to advance her personal injury claim.  Madam Justice Dardi rejected these arguments and awarded the Plaintiff $40,000 for her non-pecuniary damages.  In doing so the Court provided the following useful comments illustrating that objective signs are not necessary in a personal injury lawsuit:

[67]         The absence of objective physical findings is not determinative of whether Ms. Sandher continues to suffer from chronic pain. Since pain may well be a subjective phenomenon not easily measurable by independent objective indicia, the assessment of Ms. Sandher’s soft tissue injuries to a certain extent turns on the assessment of her subjective complaints and reported symptoms:  Szymanski v. Morin, 2010 BCSC 1 at para. 106; and Shapiro v. Dailey, 2010 BCSC 770 at para. 35.

[68] The defence contends that the minor damage to Ms. Sandher’s vehicle is inconsistent with the severity of her reported injuries. While evidence of vehicle damage is relevant to the assessment of injuries, ultimately the extent of her injuries is to be assessed on the evidence as a whole:  Robbie v. King, 2003 BCSC 1553 at para. 35….

[70] I accept the evidence of Ms. Sandher that her back and shoulder pain has not resolved. I reject the defence suggestion that she is exaggerating her symptoms to advance her litigation objectives; the evidence does not support such a finding. The overarching frustration and emotional distress she has experienced as a result of her persisting discomfort and pain was evident in her testimony. I find her complaints of continuing shoulder and back pain generally consistent with the surrounding circumstances and evidence…

[72]         On the totality of the evidence, I conclude that there is a realistic prospect for significant improvement in the foreseeable future, but there is also a realistic prospect that Ms. Sandher may never recover to her pre-accident levels of fitness.

[73]         In summary, having considered Ms. Sandher’s own evidence and all of the medical evidence, I conclude that as a result of the accident Ms. Sandher sustained soft tissue injuries to her shoulder and upper and lower back, and that these injuries have caused her pain and suffering. I accept that Ms. Sandher continues to experience pain from her injuries. I find on balance that there will be some continuing chronic pain suffered by Ms. Sandher in the future for an uncertain period of time….

[84] Having reviewed all of the authorities provided by both counsel, and in considering all of Ms. Sandher’s particular circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $40,000.

BC Court of Appeal: Hiring Multiple Lawyers not a Reasonable Disbursement


When a party succeeds in a BC Supreme Court lawsuit the losing party usually has to pay the winner’s ‘costs and disbursements‘.  Disbursements are the out of pocket expenses incurred in moving the lawsuit forward.  (common disbursements include Court filing fees and the costs of medical reports).
What if your case is complex and your lawyer needs to hire an additional lawyer to properly advance your case?  Is this extra legal expenses a reasonable disbursement?  Reasons for judgement were released today by the BC Court of Appeal addressing this topic.
In today’s case (Baiden v. Vancouver) the Plaintiff was injured at the hands of the Vancouver Police.  Before the matter could proceed to trial the Defendant’s raised a “s. 10 WCB Defence”.   A section 10 defence, when successful, prevents a plaintiff from suing in court where the Plaintiff is injured while acting within the scope and course  of his/her employment and the at fault entity is also a person or employer that caused the accident in the course of their employment.  In these circumstances the Plaintiff must turn to WCB for compensation.
Once this defence is raised, BC Courts cannot deal with its merits rather under s. 257 of the Workers Compensation Act the Workers Compensation Appeal Tribunal (WCAT) has the exclusive jurisdiction to determine the status of parties to a legal action.  This is frustrating to Plaintiffs because if this defence is pursued the lawsuit is basically put on hold, a hearing has to be had at WCAT, and only if the defence fails at WCAT can the Plaintiff carry on with their lawsuit.  That is exactly what happened in today’s case.
Before heading to WCAT the Plaintiff’s lawyer hired an additional lawyer to assist with the process.  Ultimately the WCAT hearing was successful for the Plaintiff and the case proceeded to trial.  After judgmenttThe trial judge awarded the Plaintiff $8,400 to compensate him for the additional fee of hiring a second lawyer to deal with the WCB issue.  (You can click here to read my article summarizing the trial judge’s reasons)
The Defendants appealed arguing that the judge was wrong in awarding this as a disbursements.  The BC Court of Appeal agreed with the Defendants and overturned the trial judge.  In doing so the BC High Court provided the following reasons making it clear that the expense of multiple lawyers will rarely be considered a reasonable disbursement:

[25]         The limited authority on this issue in this province supports the view that if counsel retains another lawyer to perform a specialized function due to his or her own lack of experience, it does not follow that such fees are recoverable from the opposing party, but remains a matter between the original lawyer and his client: Noble v. Wong, Bell v. Fantini (1981), 32 B.C.L.R. 322 (S.C.). That is a practical and appropriate approach, and should have been followed here. Outsourcing portions of legal work during litigation and then permitting recovery of that lawyer’s fees as a disbursement undermines the policy of party and party costs. While there may be cases in which this can be justified, they would be limited and exceptional.

[26]         This is not such a case. I would therefore allow the appeal, and set aside the order permitting Mr. Baiden to recover Mr. Ishkanian’s fees of $8,400 as a disbursement.

$75,000 Non-Pecuniary Damages for Ruptured Posterior Cruciate Ligament


Reasons for judgement were released this week by the BC Supreme Court, Port Alberni Registry, awarding a Plaintiff just over $220,000 in total damages for injuries and loss sustained as a result of a 2007 BC motor vehicle collision.
In this week’s case (Haley v. Gust) the Plaintiff was operating her motorcycle when she was struck by a left-turning motorist.  The Defendant admitted full fault for the crash.  The trial focused on the extent of and value of the Plaintiff’s injuries.
The Plaintiff’s most serious injury was a tear to her posterior cruciate ligament in her left knee.  The injury was expected to lead to long term pain and limitations with the possibility of a total knee replacement in the years to come.  In awarding the Plaintiff $75,000 for her non-pecuniary damages Madam Justice Dardi made the following findings about the extent of the injury and it’s interference with the Plaintiff’s life:
[50] In summary, I find that the March 4, 2007 accident caused Ms. Haley permanent and significant injury to her left knee and the rupture of her PCL. I accept that surgical repair is not a viable option. I accept that she experiences pain on occasion and that the damage to the PCL may cause her knee to fail under stress or when she performs highly strenuous activity. I also accept that she faces a realistic prospect of developing osteoarthritis of the joint and of requiring a total knee replacement in the future…
[57] She is currently 38-years-old and has suffered a permanent injury to her knee. Her injuries, while not catastrophic, are very real. As a result of the accident she clearly has suffered pain and a loss of enjoyment of life, and she will no doubt continue to do so. As well, as referred to earlier, she faces the realistic prospect of osteoarthritis, and in Dr. Leete’s opinion, it is more likely than not that she will require a total knee replacement in 20 to 25 years….

60] While she attempts to remain as active as possible (she now participates in “quadding”), she remains limited when compared to her pre-accident activities. Since the accident, she has become very cautious about any activity that might injure her knee. She is no longer able to participate in mini-triathlons and dirt-biking with her family. She cannot ski or participate in water sports. It is likely she will continue to be restricted for the rest of her life to some degree in respect of the scope of the activities she would have enjoyed but for the accident.

[61] I have also considered as a factor in my assessment the adverse emotional impact of Ms. Haley’s inability to pursue a line of work which she clearly enjoyed…

[65] Having reviewed all of the authorities provided by both counsel, and in considering all of Ms. Haley’s particular circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $75,000.

Damaging Your Personal Injury Claim: Spying on Yourself


It’s a not so well-kept secret that Insurance Companies often hire private investigators to conduct video surveillance of people involved in personal injury claims.  Sometimes the efforts pay off in uncovering a fraudulent claim.  More often than not hours of bland video are produced doing little more than intruding on the privacy of an injured plaintiff.
These days, however, private investigators may play less of a role as many Plaintiffs are doing the surveillance work themselves. That’s right, Plaintiffs spy on themselves and hand the goods right over to the Insurance Company.
I’m talking about the liberal use of social media, specifically YouTube.  When you or a friend make a film and post it on YouTube chances are the video will be of better quality and give more intimate access to your life than anything a Private Investigator can put together.  PI’s often film from the bushes, a van or other less than ideal locations.  The videos produced are often grainy, distant and of poor quality.  Most videos uploaded to YouTube, on the other hand, are up close and personal.  These videos can give a lot of insight into a person’s life.
Whether or not these videos are damaging to your claim insurance companies are viewing them.  This information can either be directly used against you or will give the insurance company further avenues to pursue in trying to damage your personal injury claim.
The reality is that insurance companies are effectively using social media and uncovering a gold-mine of useful information in the process.  As I’ve previously written, the mere mention of ICBC on twitter will immediately bring you to their attention.  If you’re using social media be aware that your audience is bigger than you intend.

New Formal Settlement Offer Rule Gets First Judicial Interpretation


The first judgement that I’m aware of dealing with the new formal settlement offer rule (Rule 9) was released today by the BC Supreme Court.
In today’s case (Demarzo v. Michaud) the Plaintiff was injured in a BC motor vehicle collision.  He went to trial and was awarded $356,000 in total damages.  (you can click here to read my post summarizing the trial judgement).  Prior to trial the Plaintiff made a formal settlement offer to resolve the claim for $150,000.
Having comfortably beat his pre-trial settlement offer the Plaintiff asked the Court to exercise its discretion and award double costs under Rule 9-1 (Rule 9 reads almost identically to the old Rule 37B.  You can access my archived posts dealing with Rule 37B by clicking here).
Prior to trial the Plaintiff obtained various independent medical reports.  The Plaintiff served these on the Defendant in compliance with the rules of Court but not as quickly as possible.  In an interesting application of the new rule Mr. Justice Brown held that double costs should not be ordered if a party failed to make “timely disclosure of documents“.  Specifically the Court held as follows in refusing to award the Plaintiff double costs:

[18]         The main purpose of Rule 9-1 is to encourage parties to settle, early if possible. But the purposes of the Rule, and modern practice, assumes timely disclosure of documents and reports that would significantly affect a party’s ability to make a rational assessment of the litigation risks they face. While it is true the Rules of Court provide parties means to discover facts and the parties can conduct their own investigations to assess litigation risks, in my view it is also incumbent on a party expecting an order for double costs to show timely disclosure of documents and reports that would have significantly affected the other party’s assessment of whether the offer ought reasonably to be accepted.

[19]         Further, while evidence at trial produced a judgment that was more than double what the plaintiff offered to settle for, I note that the plaintiff’s credibility, tested on cross-examination, and the specialist reports served in October 2009 were important factors in the damages awarded.

[20]         Considering these factors, I find an award of double costs is not in keeping with the purposes of the Rule and I decline an award.

$5.9 Million Damage Assessment To Lawyer For Mild Traumatic Brain Injury


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages of just over $5.9 million for injuries and losses sustained in a Dance Floor injury.
In today’s case (Danicek v. Alexander Holburn Beaudin & Lang) the Plaintiff lawyer was out at a lawfirm function in 2001.  After dinner some members of the Plaintiff’s firm went dancing at a nightclub in downtown Vancouver.  During the evening a fellow lawyer fell backwards while dancing.  During his fall he struck the Plaintiff causing her to fall as well.  The Plaintiff hit her head on the ground with enough force to knock her unconscious.  Liability was in issue however Mr. Justice Kelleher found the Defendant was impaired when he fell and that he was fully responsible for the incident.
The Plaintiff suffered a mild traumatic brain injury (MTBI) the consequences of which were expected to never fully recover.  The court found that the Plaintiff would likely never work competitively as a lawyer again and awarded over $5 million for her diminished earning capacity.  Mr. Justice Kellehar also awarded the Plaintiff $185,000 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  In reaching this figure the Court made the following findings about the severity and extent of the Plaintiff’s brain injury:

227]     I find Ms. Danicek suffered a mild, traumatic brain injury in the April 6, 2001 accident. It has had a profound effect on her life. She was completely disabled from work until December 2001. As Dr. Anderson notes in his report dated January 26, 2007, the mild traumatic brain injury has resulted in ongoing post-concussive symptoms, which include physical, cognitive, and emotional difficulties.

[228]     Her headache pain has persisted and persists today, some nine years after the accident. The post-traumatic headaches have resulted in the plaintiff developing chronic pain disorder. Dr. Anderson notes that chronic pain disorder “causes significant distress or impairment in social, occupational, or other important areas of functioning.” …

[229] The medical evidence suggests that the plaintiff is not likely to completely or even substantially recover from these symptoms….

230]     Dr. Robinson noted that persons who suffer from severe headache disorders similar to the plaintiff’s condition are not likely to realize substantial improvements with the available treatments.

[231]     Dr. Anderson does not consider it likely that the plaintiff’s chronic pain disorder will meaningfully improve…

[232] In addition to the headaches and pain disorder, I accept that the dance accident caused some measure of cognitive impairment. Ms. Danicek felt that before the accident she was quick to understand new concepts. Today, she feels that, in her words, everyone gets it except her….

254]     The dance accident has impacted the plaintiff’s life profoundly. She has lost much. She has had and continues to have headaches of varying severity and duration. The injury has affected her physical and mental abilities and had a significant impact on her relationship with Mr. Schober.

[255]     The plaintiff has experienced a loss of enjoyment of life, and is unable to engage in many recreational activities. Her lifestyle has drastically changed since the dance accident.

[256]     An example of the effect of the dance accident on the plaintiff’s life is found in the evidence of her friend, Kristen Schneider. Prior to the accident, Ms. Schneider described the plaintiff as having “the most energy I think out of anybody I know”. At trial, Ms. Schneider testified that after the dance accident, Ms. Danicek was unable to consistently make their customary lunch dates; when she did, they had to find restaurants that were quiet to avoid exacerbating her headaches.

[257]     Additionally, she and the plaintiff no longer regularly go for runs, rollerblade, or hike the Grouse Grind, as was their habit prior to the dance accident.

[258]     Ms. Danicek is no longer able to pursue her career as a corporate solicitor working on “big deals”, a position she worked hard to obtain. The plaintiff enjoyed this work and her career was a source of pride for her. I accept this loss has negatively affected her feelings of self-worth and emotional well-being. In Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, Dickson C.J. (in dissent) stated at 368:

Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.

[259]     It is clear the plaintiff continues to suffer from her injuries, and her problems are likely to continue in the future without substantial improvement or resolution. Her prognosis for recovery or diminishment of her chronic headaches and pain is not good.

[260]     While individual judgments turn very much on their particular facts, two decisions which have influenced me are Reilly v. Lynn, 2000 BCSC 360, varied on other grounds, 2003 BCCA 49, leave to appeal ref’d [2003] S.C.C.A. No. 221, and Adamson v. Charity, 2007 BCSC 671.

[261]     In the circumstances, an award of $185,000 is appropriate.

More on ICBC Claims and Hit and Run Lawsuits: The Notice Requirement

As I’ve previously written, section 24 of the BC Insurance (Vehicle) Act gives the victims of Hit and Run accidents the right to sue ICBC directly in certain circumstances.  There are exceptions and limitations to this right and one such limitation is that a Plaintiff has to give proper notice to ICBC that they intend to claim under section 24 otherwise their right to sue ICBC can be taken away.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with this area of law.
In today’s case (Mudrie v. Grove) the Plaintiff was involved in a 2007 rear-end collision.  After the crash the Plaintiff and the driver of the other vehicle exchanged their respective information.  The other driver identified himself as “Donald Grove“.   About a year after the crash the Plaintiff conducted a “pre-court vehicle plate search“.  The search gave rise to information which suggested that “Grove” may have provided inaccurate information about his identity.
The Plaintiff started a lawsuit naming not only Donald Grove but also ICBC as a Defendant under section 24 of the Insurance (Vehicle) Act.  ICBC was named in the event that the identify of the true driver was unknown.  ICBC brought a motion to dismiss the lawsuit against them arguing that in order to sue under section 24 a Plaintiff must provide written notice to ICBC within 6 months after the accident and that the Plaintiff failed to comply with this requirement.  Mr. Justice Saunders agreed and dismissed the lawsyit against ICBC.  In doing so the Court noted as follows:
[43] I conclude on the evidence that the plaintiff’s obligation to provide written notice to ICBC under s. 24(2) did not arise at the time of the accident. However, as I have found, the negative vehicle plate search results reported on June 5, 2008 must have led – quite reasonably – to the plaintiff apprehending the potential for an unidentified driver claim; otherwise, there is no explanation for the writ having been issued with pseudonymous defendants. In the words of the Supreme Court of Canada in Peixeiro, at that point, or very shortly thereafter, the plaintiff could reasonably have discovered that he had a cause of action against ICBC. I therefore find the plaintiff did have that obligation to notify ICBC as soon as reasonably practicable, within days of June 5, 2008.

[44]         The plaintiff argues that constructive notice of the claim was given thereafter on September 4, 2008, when ICBC was contacted to determine if it had any information regarding Mr. Grove. In my view, even if I could overlook the statutory requirement that notice be in writing, this contact was nowhere close to being sufficient to discharge the plaintiff’s obligation. There is no evidence of any indication having been given to ICBC that an unidentified driver claim might be pursued.

[45]         The only notice, written or otherwise, given ICBC in this case was the writ and statement of claim. I see nothing in the statute which precludes the pleadings themselves serving as the required notice under ss. 24(2). The purpose of the notice provision is to provide ICBC with sufficient opportunity to make its own investigation of the other driver’s or owner’s identity:  Stelmock v. I.C.B.C. (1982), 42 B.C.L.R. 145 (S.C.) at para. 10; Goltzman v. McKenzie (1989), 36 B.C.L.R. (2d) 228 (C.A.). Successful identification of the driver or owner will lead to a tort claim, relieving ICBC from direct liability. If those persons are insured by ICBC, it may eventually have to make an indemnity payment on its assureds’ behalf, but may possibly then have the potential of recouping some of its loss through adjustments to those assureds’ future premiums. In the case of an out-of-province driver, ICBC may of course avoid liability altogether. Given the potential for fraud in cases of alleged hit-and-run accidents, notice to ICBC will also enable it to investigate the circumstances of the reported accident to determine if the plaintiff’s claim has merit:  Epp v. Harden Estate (1988), 24 B.C.L.R (2d) 89, 31 C.C.L.I. 229 (B.C.S.C.). These legislative purposes may be fulfilled through ICBC receiving details of an accident through a writ, as opposed to discrete advance notification that a claim will be made. And in my view the writ with its attached statement of claim, in the present case, disclosed sufficient detail that service on ICBC alone would have met the notice requirement, if it had been done in a timely manner.

[46]         This brings us to the real question in this case: whether ICBC received notification of the claim, through the writ, within the time parameters given in the statute. The writ was not served until April 2009, ten months after the negative vehicle plate search. No explanation for this delay has been offered.

[47]         In respect of interpreting the notice requirement, the plaintiff argues that the legislative purpose behind the requirement is the same as that which lies behind the two-month notice requirement to municipalities under s. 286 of the Local Government Act, R.S.B.C. 1996 c. 323: the prevention of prejudice to the defence of a government body. It is argued that this court should direct its inquiry into whether ICBC has been prejudiced by the late notification; the logic of that argument is that ICBC cannot be presumed to have been prejudiced, when the trail left by “Mr. Grove” would already have gone cold by the time the plaintiff ought to have realized this was an unidentified driver case. The notice provisions of the two statutes are, however, entirely different. Under the Local Government Act, there is a blanket requirement that notice of claims falling within the ambit of s. 286 be delivered within two months, but subsection (3) specifically provides that the failure to give notice, or sufficient notice, is not a bar to maintaining an action if the court believes (a) there was reasonable excuse, and (b) the municipality has suffered no prejudice. In contrast, under the Insurance (Vehicle) Act’s s.24, the obligation is to give notice as soon as reasonably practicable, and in any event – meaning, whether reasonably practicable or not – within six months.

[48]         If the prevention of prejudice could be said to be the dominant purpose of the notice requirement, it would appear that the legislature has either deemed there to be prejudice after six months has elapsed, or has otherwise determined, as a matter of policy, that ICBC’s exposure to such claims ought to be capped at that point. To subject that provision to an overarching, implied test involving the finding of real prejudice would be tantamount to rewriting the statute. The most that could be said is that a consideration of prejudice might, in certain circumstances, be implied by the qualifier “reasonably”. But even so, that cannot assist the plaintiff in the present case, when notice was not given to ICBC until long after the six-month period had lapsed.

[49]         ICBC was not notified of this claim within six months of when the plaintiff could reasonably have discovered that he had a cause of action against ICBC. The claim against ICBC is therefore dismissed. The parties are at liberty to make written submissions as to costs.

New Rules of Court Get First Judicial Interpretation: The Transitional Rule

I have volunteered to keep an eye on the New BC Supreme Court Rules and write about decisions interpreting and applying these.  Today the first judgement considering the New Rules has come to my attention.  Today’s case dealt with Rule 24, the transitional rule.
In today’s case (Easton v. Cooper) the Plaintiff was involved in 3 motor vehicle collisions.  The Plaintiff sued for damages for each crash.  The lawsuits were started under the old Rules of Court but were set to proceed to trial in November, 2010 (some 5 months after the New Rules came into force).  The lawsuits were all started under Rule 68 of the old rules which required parties to exchange summaries of the evidence they expect their witnesses to give at trial.  The Plaintiff did not produce statements in compliance with this requirement.
The Defendant brought a motion to force  the Plaintiff to provide this evidence.  The Plaintiff opposed arguing that she no longer needs to exchange these statements because the trial will proceed under the new rules.  Mr. Justice Voith sided with the Defendants and ordered that the Plaintiff provide summaries of evidence as required under the old rules.  In reaching this conclusion the Court had the first opportunity that I’m aware of to consider section 24 of the New Rules of Court (the section dealing with parties obligations in lawsuits started under the old rules but that are ongoing aftger the New Rules came into force).  Mr. Justice Voith provided the following interpretation of this section:

[4]             Rule 24-1(14) of the New Rules provides:

(14)      If a step in a proceeding is taken before July 1, 2010, the former Supreme Court Rules apply to any right or obligation arising out of or relating to that step if and to the extent that that right or obligation is to have effect before September 1, 2010.

[5]             The interpretation of Rule 24-1(14) turns on both the meaning of “step in a proceeding” as well as the time period that is book-ended by the two dates within the provision…

[13]         Based on the foregoing authorities, within the “Rules context”, a “step” means a formal step expressly permitted or required by the Rules.

[14]         Rule 24-1(14) specifically focuses on a narrow window of time. It addresses instances where a step undertaken prior to July 1, 2010 gives rise to an obligation that is required to be satisfied prior to September 1, 2010. By way of example, the “step” of delivering a demand for discovery of documents created a right on the part of the initiating party and a concomitant obligation on the part of the recipient of the demand to comply with the time frames and substantive requirements of the former Rules. So long as the time frame for that obligation ends before September 1, 2010 the response or action is governed under the former Rules.

[15]         In this case Rule 24-1(14) is not engaged.

[16]         Rule 68(31) of the former Rules provided:

Witnesses

(31)      Within 90 days after the close of pleadings or within 90 days after the action becomes an expedited action, whichever is later, each party to an expedited action must deliver to each other party

(a)        a list, in Form 141, of the witnesses that the party delivering the list proposes to call at the trial of the expedited action, which list must

(i)    include the party delivering the list, if that party intends to give evidence at trial, and

(ii)    exclude any expert witnesses referred to in subrule (33), and

(b)        for each of the witnesses included in the list, a written summary of the evidence that the party believes that witness will give at trial.

[17]         In each of the three actions commence by Ms. Easton, the 90 day period provided for by the former Rule 68(31), as well as the obligation or formal step created by that Rule, had expired well before July 1, 2010. The application of Rule 24-1(14) simply does not come into play. The fact that the ultimate trial of these various actions will post-date September 1, 2010, is of no moment and does not detract from the obligation to adhere to the formal requirements established by the earlier Rules…

[21] The plaintiff is directed to provide proper witness statements to counsel for the defendants within 21 days of the date that these Reasons for Judgment are issued.

In addition to the usual variety of topics I cover on this blog I will continue to post about the new Rules of Court.  If anyone is aware of any recent cases worth noting here please don’t hesitate to contact me.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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