Skip to main content

Tag: bc injury law

How Do You Restore A Trial Date if You Failed to File a Trial Certificate?

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 12, BCSC Civil Rule 22, Civil Procedure. 127 Comments on How Do You Restore A Trial Date if You Failed to File a Trial Certificate?

The BC Supreme Court Rules require a trial certificate to be filed at least 14 days before a scheduled trial date.  Failure to do so requires the matter to be removed from the trial list ‘unless the court otherwise orders‘.  Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, addressing the framework which permits the Court to restore a trial date after if it has been removed from the trial list.  In short the Court relied on its power under Rule 12-1(9)(b) to “fix the date of a trial proceeding” to remedy the problem.
In this weeks case (Knowles v. Lan) the Plaintiff was injured in a collision.  Prior to trial ICBC sought to have the matter adjourned but the application was dismissed.  The Plaintiff’s lawyer then forgot to file a trial certificate and the matter was removed from the trial list.  Mr. Justice Halfyard restored the trial date and in doing so provided the following reasons addressing the proper framework for such a remedy:
[24]         The first question is whether Rule 12-4 (5) gives the court power to restore a proceeding to the trial list, after it has been removed for non-compliance with Rule 12-4 (2). I would say firstly that, because of the mandatory wording in Rule 12-4, the filing of at least one trial certificate is a necessary condition for a trial to proceed. As a consequence, I do not think the court could dispense with the filing of any trial certificate, but could only grant leave to file it less than 14 days before trial.
[25]         In my opinion, a party who seeks to have a trial restored to the trial list must first obtain leave to file a trial certificate “late,” under Rule 22-4 (2). If such leave is granted, and a trial certificate is filed in accordance with the order, that filing would not have the effect of restoring the trial to the trial list from which it had been removed. Could the court make such a restoration order, under Rule 12-4 (5)?
[26]         In my opinion, Rule 12-4 (5) should be read so as to include the additional underlined words, as follows:
(5)  Unless the court otherwise orders, if no party of record files a trial certificate in accordance with sub-rule (2), the trial must be removed from the trial list.
[27]         In my view, Rule 12-4 (5) is designed to prevent an action being removed from the trial list for failure to file a trial certificate as required by subrule (2). It does not state that, if a trial has been removed from the trial list, the court may restore that trial to the trial list. Nor do I think that such a power is implicit in that subrule. In order to preserve a trial date by invoking this Rule, I think the application and the order would have to be made before the 14 day deadline. That was not done here, and so this rule cannot be relied upon…
[29]         It may be that Rule 1-3 provides inherent jurisdiction to make an order restoring this action to the trial list for March 4, 2013. But it seems to me that Rule 12-1 (9) provides specific authority to do this. Subrule (9)(b) states:
(9)  The court may
. . .
(b) fix the date of trial of a proceeding,
. . .
[30]         When this action was struck off the trial list, there was no longer any date scheduled for the trial. The subrule I have just referred to does, in my opinion, empower the court to fix a date for the trial of this proceeding which coincides with the previously – scheduled trial date of March 4, 2013. I would rely on that subrule in making the order to reinstate this action for trial on March 4, 2013.
[31]         Authority might also be found in Rule 22-7(2)(e), which states in relevant part as follows:
(2)  . . .  if there has been a failure to comply with these . . . Rules, the court may

. . .

(e) make any other order it considers will further the object of these . . .  Rules.
[32]         In my opinion, the reasons I have outlined support the orders that I made on February 27, 2013.

Case Plan Conference Orders Can't Trump Privilege

Written by admin on . Posted in BCSC Civil Rule 5, BCSC Civil Rule 7. 50 Comments on Case Plan Conference Orders Can't Trump Privilege

Last year I highlighted a decision confirming that the Court’s powers under the new rules of court don’t allow orders to be made which will trump legitimate privilege claims.  Reasons for judgement were released earlier this month by the BC Supreme Court, Vancouver Registry, confirming this principle.
In the recent case (Blackwell v. Kwok) the Defendant sought an order at a Case Planning Conference requiring the Plaintiff to disclose the specialty of the expert witness(es) the Plaintiff intends to rely on.  The Court refused to make this order finding it would trump the privilege in the Plaintiff’s counsel’s solicitor’s brief.  In dismissing the request Mr. Justice Funt provided the following reasons:
[11]         Plaintiff’s counsel referred me to the Court’s decision in Nowe v. Bowerman, 2012 BCSC 1723.  In Nowe, the defendant proposed that each party be limited to one expert each and that the plaintiff advise the defendant of the area of expertise by November 17, 2012, approximately ten months before the scheduled trial.  The Court denied the application:
[10]  The area of expertise of an intended expert witness is a matter of trial strategy.  Trial strategy is a key component of a solicitor’s brief.  It may well evolve as plaintiff’s counsel builds a case and makes decisions based upon a myriad of factors and considerations.  Intentions may change as the process unfolds over time.
[11]  In my view, unless and until the intention to rely upon a particular expert in a particular field is declared by delivery of a report in accordance with the timelines established by the Rules, in the absence of a compelling reason an early incursion into this aspect of the solicitor’s brief will not be justified.
[12]  That being said, there may well be cases in which a departure from the usual timelines can be justified.  For example, in complex cases such as those involving brain injuries as a matter of fairness it may be necessary to provide defence counsel with a longer period than would be available under the usual regime in order to schedule appointments with certain kinds of experts. …
[12]         I note that in Nowe, the plaintiff argued that it was “not the kind of case in which a long period is required in advance of an appointment being made with a certain type of expert” (para. 7).  Although possibly a longer period may be justified in some cases, I am not satisfied that a “departure from the usual timelines can be justified” in the case at bar.
[13]         In my view, the defendants’ application should be rejected.  I see no prejudice if the normal rules for delivery of expert reports apply.  If the defendants choose to retain an expert to conduct an independent medical examination and prepare a report based on the plaintiff’s pleaded injuries, but no psychological injury is alleged at trial, an appropriate award of costs will afford the defendants the necessary relief.
[14]         Not surprisingly, I cannot state matters better than Chief Justice McEachern in Hodgkinson: “While I favour full disclosure in proper circumstances, it will be rare, if ever, that the need for disclosure will displace privilege”.
[15]         The Court declines to make the order sought.
 

$65,000 Non-Pecuniary Assessment for Chronic Frontal Headaches

Written by admin on . Posted in ICBC Headache Cases.

Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages for chronic headaches caused by a motor vehicle collision.
In this week’s case (Murphy v. Obrien) the Plaintiff was involved in a 2007 collision.  The Defendant accepted liability.  The Plaintiff suffered various soft tissue injuries which posed problems but the most debilitating consequence were chronic frontal headaches which were still symptomatic at the time of trial and expected to continue into the future.  In assessing non-pecuniary damages at $65,000 Mr. Justice Steeves provided the following reasons:
[51]         There is general acceptance among the experts that the plaintiff suffered a soft tissue injury to his neck on May 17, 2007. There was no fracture, dislocation or nerve root injury. There is restricted range of motion in all directions and even simple tasks such as reading bring on headaches and neck pain. The plaintiff testified that, at times, he actually vomits because of the pain from his headaches. He has tried various treatments with some affect. The most recent has been Botox injections which have given him some relief. For example, Dr. Tsui administered the injections and, in a report dated May 10, 2012, he reported that the plaintiff said “the migrainous headaches have abated since the last treatment.” Similarly a report dated August 15, 2012 reported a “good response in terms of the migraines.” Despite this improvement the frontal headaches continue. The plaintiff’s evidence about his headaches is consistent with that of Dr. Tsui.
[52]         Therefore, the current situation is that the severe migrainous headaches have abated but the frontal headaches remain and they are chronic. I conclude that these headaches, and the neck pain, are as a result of the May 2007 motor vehicle accident. Further, these symptoms are independent of any problems with the left knee although, as will be seen, the left knee is certainly a relevant and complicating factor. These headaches are obviously very real for the plaintiff, with the consequences noted, and they are consistent with the medical evidence…
[62]         Overall, I conclude that an amount of $65,000 is an appropriate amount for non-pecuniary damages in this case. That figure recognizes the chronic frontal headaches. It also recognizes the undoubted emotional toll the headaches have had on his life, including his family, friends and the limitations on activities he used to do before the 2007 accident. And, it recognizes that pain medications for the left knee have played a role in the current situation.
For more BC non-pecuniary assessments for headaches you can click here to search this site’s archives.

Motorist Fully At Fault For Collision Following U-Turn Behind Reversing Vehicle

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 104 Comments on Motorist Fully At Fault For Collision Following U-Turn Behind Reversing Vehicle

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing fault for a collision involving a Defendant who u-turned into a parking spot behind a backing up vehicle.
In this week’s case (Ferguson v. Yang) the Plaintiff stopped along the curb of 8th Street in New Westminster to drop his daughter off for school.  There was a gap behind him with a white van parked behind him.  The Defendant, who was approaching from the opposite direction made a u-turn and pulled into the gap.  At the same time the Plaintiff was backing up and a collision occurred.

Although there was a dispute as to how the collision occurred the Court found the above scenario the likely one as the Defendant’s evidence was “fraught with inconsistencies and obvious exaggerations“.  In finding the Plaintiff faultless for the collision Mr. Justice Weatherill provided the following reasons:
41]         In my view, the u-turn performed by the defendant in an attempt to secure a parking spot across the street in a school zone where parents were busy dropping their children off for school was a maneuver fraught with danger.  Moreover, I am satisfied that the plaintiff’s backup lights were illuminated, that the defendant ought to have seen them and that he ought to have anticipated the plaintiff’s vehicle was in the process of reversing into the space the defendant was attempting to move into.  Captain MacPherson saw these backup lights.  Had the defendant been keeping a proper look out, he would have seen them as well.
[42]         The defendant has failed to satisfy me that the plaintiff was contributory negligent in any way.  
[43]         The law does not require perfection on the part of the plaintiff to guard himself against every conceivable eventuality.  He must only guard himself against those eventualities that a reasonable person ought to have foreseen, within the ordinary range of human experience.  The plaintiff was entitled to proceed on the assumption that all other vehicles would do what is there duty, namely observing the rules of traffic: Pacheco (Guardian ad Litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.) at para. 11; Dechev v. Judas, 2004 BCSC 1564 at para. 22.
[44]         The plaintiff checked the area around his vehicle by looking in his side and rear view mirrors and by looking over his right shoulder.  He did all that he ought to have done.  A reasonably prudent driver should not be expected to anticipate that while in the course of backing up, another vehicle will perform an aggressive and illegal u-turn from the other side of the street in an attempt to occupy the space behind him.
[45]         The plaintiff had no warning of the impending collision.  I do not believe the defendant’s evidence that he was stopped and that he honked his horn prior to the collision.
[46]         In Carson v. Henyecz, 2012 BCSC 314, Madam Justice Hyslop stated at para. 99
            The duty imposed on a reversing driver is not just when the driver starts to reverse, but throughout the entire reversing procedure and to its completion.  The object is to be aware as reasonably possible to what is behind the driver and in the driver’s path while in reverse.
I agree with those comments.  I find that, in the circumstances here, the plaintiff conducted himself appropriately and was as aware as reasonably possible to what a reasonable driver should have anticipated would be in his path while reversing his vehicle.  He could not have reasonably anticipated that the defendant would do what he did.  
 

Lost "Fringe Benefits" Must Be Taken Into Account When Calculating Diminished Earning Capacity

Written by admin on . Posted in ICBC Wage Loss. 51 Comments on Lost "Fringe Benefits" Must Be Taken Into Account When Calculating Diminished Earning Capacity

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, confirming that lost ‘fringe benefits’ are recoverable as part of a diminished earning capacity analysis.
In last week’s case (Combs v. Bergen) the Plaintiff was injured in a 2009 collision.   She missed several months from work causing a past loss of income of just over $18,000.  During her time off work she lost the benefit of employer contributions to her Canada Pension Plan and to her pension. She sought recovery of these losses.  Mr. Justice Steeves agreed these were compensable and provided the following reasons:
[61]         The plaintiff seeks past income loss in the amount of $18,287.25 and the defendant agrees with this amount. However, the plaintiff also seeks payment for her employer’s contributions to the Canada Pension Plan (CPP) and s to her pension. These amounts are $831.05 and $1,737.29, respectively. The defendant opposes any payment for these amounts.
[62]         There is authority for the plaintiff’s submission on benefits to the effect that “the compensatory principle requires that the full value of lost fringe benefits must be taken into account when computing loss of working capacity” (Ken Cooper-Stephenson, Personal Injury Damages in Canada, 2nd ed. (Toronto: Carswell, 1996) at 240). This reasoning was adopted by the Newfoundland Court of Appeal in Taylor v. Hogan (1998), 160 Nfld. & P.E.I.R. 93 at para. 41 (Nfld. C.A.). I conclude that is appropriate in this case.
[63]         Past income loss is set at $18,287.25 plus CPP and pension contributions. Total is $20,855.59.

Hearsay of Reduced Vehicle Value Not Enough to Prove Accelerated Depreciation

Written by admin on . Posted in Uncategorized. 56 Comments on Hearsay of Reduced Vehicle Value Not Enough to Prove Accelerated Depreciation

I have previously discussed the fact that accelerated vehicle depreciation is a recognized damage in BC.  Reasons for judgement were released this week by the BC Court of Appeal addressing such a claim noting something more than hearsay is required to prove the loss.
In this week’s case (Kapelus v. Hu) the Plaintiff was injured in a 2006 collision.  She proceeded to trial and was awarded damages for her injuries but her claim for accelerated vehicle depreciation was dismissed.  The Plaintiff presented evidence of offers that others provided her for the purchase of the vehicle.  The Court of Appeal noted that if this was the only evidence then there was no error in dismissing this aspect of her claim.  The Court provided the following reasons:
24]         Finally, I should say that the argument advanced by Mrs. Kapelus, that the judge erred in rejecting evidence of the loss in value of her vehicle, based solely on her report of offers to purchase the vehicle, is without merit.  The judge ruled that Mrs. Kapelus’ evidence, that third parties had been prepared to purchase her car at a certain price prior to the accident, was hearsay.  I accept this ruling: it is hearsay and it is not rendered admissible under the business records exception in the Evidence Act, R.S.B.C. 1996, c. 124.

$60,000 Non-Pecuniary Assessment For Chronic Pain At Pre-Existing Surgical Site

Written by admin on . Posted in ICBC Chronic Pain Cases.

Reasons for judgement were released last week by the BC Supreme Court, Chilliwack Registry, assessing damages for an aggravation of pain at a pre-existing surgical site.
In last week’s case (Hood v. Wrigley) the Plaintiff was involved in a 2010 collision.  The Defendant admitted fault.  Prior to the collision the Plaintiff had a large, cancerous tumor removed from his right thigh.  He was left with a level of nerve damage at the surgical site.  Following the collision this pain was aggravated.  The Court accepted the aggravation was caused by the collision and the prognosis for symptom resolution was poor.  In assessing non-pecuniary damages at $60,000 Mr. Justice Grist provided the following reasons:
[3]             The plaintiff had been off work for approximately five months in the year before the collision, from May to November 2009, after being diagnosed with a large, cancerous tumor located in the muscle tissue of his right thigh. The tumor was surgically removed, following which Mr. Hood was treated with chemotherapy and radiation. After the radiation treatment he was left with a mass of hardened muscle tissue in his right thigh and damaged nerves in his right leg which caused hypersensitivity and a burning sensation.
[4]             Following the motor vehicle collision the plaintiff developed neck pain and increased pain in his right leg, causing a marked limp and loss of his ability to do the physical aspects of his work. Additionally, the effects of his injuries impacted on many of the activities of his daily life…
[22]         There is no evidence that the cancer treatment caused a progressively deteriorating condition in Mr. Hood’s right leg. The medical records suggest he was managing with the residual effects of his cancer treatment. He had returned to full duties at his employment, without any indication of impairment, and the onset of his limp and functional disability closely ties to the collision. On the basis of this evidence, I conclude that Mr. Hood has been disabled from his employment because of the effects of the motor vehicle collision; and although the radiation treatment in his leg left him with residual effects, but for the injury he would not have incurred the disability that makes him unsuitable for his previous employment.
[23]         The prognosis in respect of the injury to the right leg is not hopeful, however, the prognosis for the neck injury is more optimistic. Dr. Grover concluded that while his neck complaints are likely to be long term, they weren’t likely to be permanent. His view was that Mr. Hood should be sent for physiotherapy and acupuncture, which may or may not help, but that in any event, the condition should resolve on its own…
[49]         In my view, the now more painful and disabling condition of the right thigh is an exacerbation of considerably more effect on the plaintiff than the pain and restriction on his mobility originally associated with the results of the radiation therapy. In addition to this, he is coping with the improving but still symptomatic neck condition. In light of these factors, I assess non-pecuniary damages in this case at $60,000.

Want Your Day In Court? Mortgage Your Property First!

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized.

In a very rare display of the BC Supreme Court’s powers pursuant to its inherent jurisdiction, and a strong reminder of the potentially high financial consequences of BC’s loser pays legal system, Mr. Justice Burnyeat released reasons for judgement ordering a Plaintiff to mortgage her properties to the amount of $100,000 as security for costs prior to allowing her claim to proceed to trial.
In today’s decision (IJ v. JAM) the Plaintiff sued the Defendants alleging sexual harassment   The Plaintiff had other costs orders made against her and the Court found she had “a pattern of ignoring orders for costs that have been made“:  The current Defendants applied for an order requiring $100,000 to be paid into court as security for costs.  Mr. Justice Burnyeat agreed security was appropriate and provided the following reasons:
[18]         I am satisfied that “very special circumstances” are present so that an order for security for costs should be made.
[19]         First, the Plaintiff has a pattern of ignoring orders for costs that have been made:  in the Petition for judicial review of the British Columbia Human Rights Tribunal decision where costs were awarded in favour of J.A.M. and, in these proceedings where an order for costs was made against the Plaintiff arising out of the dismissal of the civil claim against the G.S. and J.S.
[20]         Second, I take into account the merits of the claim of the Plaintiff.  As I will be the trial judge for the lengthy trial that is scheduled for June 2013, I do not express any final opinion about the merits of the claim other than to observe that, as presently drafted, the claim against J.A.M. and J.M. is expressed in an often confusing, emotional and vitriolic manner, with many allegations not relating directly to the very serious claim that the Plaintiff makes against J.A.M.  and J.M.  It is not appropriate at this stage to make a fine assessment of the relative merits of the claim of the Plaintiff but only to observe that the claims are not so weak that they are bound to fail.  However, regarding the claim, I take into account the agreement that was executed by the Plaintiff releasing the Company and officers, including J.A.M. for previous acts which occurred.  It is a fair assessment at this point that the case of the Plaintiff has many problems…
[25]         The Defendants request the payment into Court of the sum of $100,000.  It is clearly the case that such a sum is not available and that to require that sum to be paid would effectively deny the Plaintiff access to the Court.  However, the affidavit of the Plaintiff is that the two Whistler properties have a value of approximately $729,000 and have charges against them of approximately $550,000 so that her equity is in the neighbourhood of $279,000.  The Plaintiff also states that her property in Ontario has an approximate value of $560,000 with a mortgage of approximately $164,000 against it so that the approximate equity is $396,000.
[26]         Taking into account all of the circumstances surrounding the claim of the Plaintiff, I am satisfied that there is good reason and very special circumstances why an order for security for costs should be made.  Accordingly, a mortgage in the amount of $100,000 without interest will be granted by the Plaintiff against her two properties in Whistler with the mortgagee being the Registrar of the Supreme Court of British Columbia.  The mortgage is not to be discharged or enforced without the further order of the Court.
[27]         The Plaintiff will be required to sign that mortgage within ten days of it being tendered on her for her signature.

$70,000 Non-Pecuniary Assessment For Chronic "Moderate" Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases.

Adding to this site’s archives of soft tissue injury non-pecuniary awards, reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, dealing with a chronic ‘moderate’ low back injury.
In last week’s case (Schafer v. Whitely) the plaintiff was involved in a 2010 collision.  Although liability was disputed the defendant was found fully at fault at trial.  The plaintiff suffered various injuries which improved by the time of trial with the exception of a low back injury of moderate severity which continued to pose problems.  In assessing non-pecuniary damages at $70,000 Mr. Justice Halfyard provided the following reasons:
[179]     There is no dispute about the nature of the injuries sustained by the plaintiff as a result of the accident. She suffered minor injuries to her left knee and to her face, and experienced some headaches. These injuries, and the headaches, had resolved within a month or so after the accident.
[180]     I find that the plaintiff sustained injury to the soft tissues of the musculoskeletal structures of her neck and lower back. The injury to these structures has caused pain in the plaintiff’s neck and low back. By the time of trial, the plaintiff’s neck pain symptoms had resolved, but she continues to experience pain in her low back on an intermittent basis.
[181]     I find that the impact of the collision was violent and that the forces exerted on the plaintiff’s body were capable of causing, and did cause significant injury. Although the medical experts did not offer an opinion as to the severity of the injury, I find that the injury was at least moderate in severity…
[197]     In my opinion, having regard to the facts I have found, a fair and reasonable amount of damages for non-pecuniary loss would be $70,000, and I order that the plaintiff be awarded that amount under this head of loss.

Yes, Reimbursement of Sick Leave Benefits is a Recognized Damage in BC Injury Litigation

Written by admin on . Posted in ICBC Wage Loss. 1 Comment on Yes, Reimbursement of Sick Leave Benefits is a Recognized Damage in BC Injury Litigation

The law in BC has long recognized that a Plaintiff can seek damages to reimburse banked sick leave benefits which are depleted due to an injury caused throught the negligence of others. Despite this litigants occasionally still argue that the law does not allow such recovery as it amounts to ‘double recovery’.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, disposing of this defence argument.
In this week’s case (Chingcuangco v. Herback) the Plaintiff was injured in a 2008 collison.  She missed time from work and used up over $7,000 of banked sick time.  In confirming that the Plaintiff can recover this loss Mr. Justice Weatherill provided the following reasons:
[209]     During a portion of the time when the plaintiff was unable to work, she was paid the wages that she otherwise would have received by drawing on her sick leave and vacation benefits.  She seeks damages to reflect the depletion of those benefits.
[210]     The parties have agreed that the value of the plaintiff’s hours missed (sick leave and vacation time used with pay) totals $7,371.09.
[211]     The defendants argue that an award to the plaintiff in this regard will result in double recovery because she did not lose any money – she continued to receive her wages by drawing on her sick leave benefits and vacation time.
[212]     This issue was addressed by this court in Bjarnason v. Parks, 2009 BCSC 48.  In that case, Madam Justice Ballance provided a thorough and helpful analysis:…
[213]     I agree with that analysis and I adopt it in its entirety.  Here, the plaintiff exhausted her accumulated sick leave.  She also used up several of her vacation days.  She has had illnesses unrelated to the accident that have resulted in her being unable to work.  She is likely to have them in the future.  Her plan is to stay and make a career at CRA. 
[214]     I am satisfied that the plaintiff is entitled to be compensated for her lost sick leave and vacation benefits which total $7,371.09.  There will be no deduction for income tax.
I have canvassed this topic before and you can click here to access my archived posts addressing the law of recovery of sick time benefits.