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Tag: bc personal injury claims

Cyclist Injured In Collision With Cement Truck Loses at BC Court of Appeal

Earlier this month the BC High Court dismissed an appeal by a cyclist who sustained serious injuries when he collided with a cement truck in 2004 (Sivasubramanian v. Franz).
The cyclist was travelling on the right hand shoulder of a roadway.  As he approached an intersection there was a cement truck ahead of him signalling to turn right.  The truck then started its turn and the cyclist collided into the midsection of the truck.  The Plaintiff sued the cement truck driver.  The case was dismissed at trial (you can click here to read my summary of the trial Judge’s findings).
The Plaintiff appealed arguing that the trial judge was wrong to dismiss the claim because the motorist should have seen the cyclist before the collision and should not have turned when he did.  The BC Court of Appeal disagreed and dismissed the case.  In dong so the Court made the following comments:

[24]         In the case at bar, the respondent truck driver was in the midst of a lawful turn to the right from the curb lane when the appellant rode his bicycle heedlessly into the mid-section of the truck. I agree with the trial judge’s conclusion that it would be unreasonable for Mr. Franz to assume that the appellant, or indeed any other user of the highway, would ignore his indication to turn right, and that by the time the appellant reached the intersection, Mr. Franz was well into his turn and could not have avoided the collision.

[25]         The appellant’s submission that he was so close to the intersection as to constitute an immediate hazard to which Mr. Franz had sufficient time to react and take evasive action is not supported by the trial judge’s findings of fact.

[26]         Second, the appellant’s argument that the trial judge erred in finding that even if Mr. Franz had seen the appellant he would have been justified in making the right hand turn is supportable. Given the trial judge’s findings I see no error in her conclusion.

[27]         I would not accede to the appellant’s arguments. Notwithstanding Mr. Thomas’ able submissions, cases such as this are fact-driven. As in Trac v. Sangra (1995), 17 B.C.L.R. (3d) 92, “this is a case that could be won, if at all, only at trial. For us to interfere would require us in effect to retry this case and to take a different view of the facts from that of the trial judge. That we are most reluctant to do.”

[28]         In my opinion, the appeal should be dismissed with costs to the respondents.

This case demonstrates one of the most basic principles in personal injury lawsuits (tort claims); in order to successfully sue for personal injuries the other party must be at least partially at fault otherwise the result will be dismissal at trial.

$50,000 Non-Pecuniary Damages for Shoulder Impingement in ICBC Claim

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for accident related soft tissue injuries and shoulder impingement.
In last week’s case (Dial v. Grewal) the Plaintiff was involved in a 2006 BC motor vehicle collision.   Fault for the crash was admitted focusing the trial on the value of the claim.  The Plaintiff faced some credibility challenges at trial and the Court found that she “exaggerated” some of her testimony about the extent of her symptoms however Associate Chief Justice MacKenzie found that the plaintiff did suffer real injuries including traumatic right shoulder impingement.  In assessing the Plaintiff’s non-pecuniary damages at $50,000 the Court made the following findings:
[4] For the reasons that follow, I find on the evidence as a whole that an appropriate award for non-pecuniary damages is $50,000 for the injuries the plaintiff sustained to her neck and right shoulder, the aggravation of her pre-existing low back condition and headaches, and more minor injuries to her ribs, and dizziness…
[190] The purpose of a non-pecuniary damage award is to compensate a plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. While each award must be made with reference to the particular facts of the case, other decisions may assist the court in arriving at an award that is fair to both parties: Smaill v. Williams, 2010 BCSC 73 at para. 78…

[194]     The plaintiff relies on the following cases in support of her submission that $80,000 is the appropriate quantum for non-pecuniary damages: Kasic v. Leyh, 2009 BCSC 649;Predinchuk v. Spencer, 2009 BCSC 1396; Thomas v. Bounds, 2009 BCSC 462; and Lee v. Metheral, 2006 BCSC 1841.

[195]     I find, conversely, that these cases support higher awards than is fair in this case because the defendants have no obligation to compensate the plaintiff for symptoms attributable to her pre-accident low back condition.  That said, I find that an award that is just and fair to both parties is $50,000.

[196]     As I have already discussed, the plaintiff’s testimony about her symptoms and pain was at times vague and at others, exaggerated. Nevertheless, I accept that she suffered substantial pain for months after the accident, as is supported by the medical evidence in this case. Her pain gradually improved, and she was able to substitute for her husband at work about 14 to 18 months after the accident, albeit primarily for a few hours at a time but also with a few full-time shifts. By that time, her neck and shoulder pain were manageable. The aggravation of her pre-existing low back condition had also resolved such that her back had returned to its pre-accident condition.

You can click here to access my archived posts of other recent BC Court cases awarding non-pecuniary damages for shoulder injuries.

Court Finds Health Care Costs Recovery Act Does Not Apply to Actions Commenced before April 1, 2009

(Please Note:  I’ve been advised by a colleague that the case discussed in this post is under appeal and I will update this post once the BCCA’s decision is released)

As readers of this blog know, on April 1, 2009 the BC Health Care Costs Recovery Act came into force which required Plaintiffs to, in certain circumstances, advance claims on behalf of the government to recover MSP health care costs in their personal injury claims.
Today Mr. Justice Sewell released two sets of judgements addressing whether the Act applies to cases filed in Court before April 1, 2009.
In today’s cases (Fong v. Deglan and Gosselin v. Shepherd) the respective Plaintiff’s were injured in non ICBC insured cases.  Their injuries occurred before April 1, 2009 and their lawsuits were also filed before this date.  Prior to the trial the Plaintiffs applied to amend their pleadings to advance the BC Governments claim under the HCCRA.
Lawyers for the Attorney General of BC intervened and argued that these amendments should be allowed.  The Defendants opposed these applications arguing that the HCCRA does not apply to lawsuits filed before April 1, 2009.  Mr. Justice Sewell agreed with the Defendants and dismissed the applications and in so doing made the following findings:

[37]        My review of the Act leads me to conclude that it is not clearly and unambiguously intended to apply to actions commenced before the Act came into force.  The presumption against retrospectivity set out in the cases referred to above together with the internal indications in the Act itself lead me to conclude that s. 2 of the Act has no application to actions commenced prior to the Act coming into force.

[38]        I therefore conclude that the amendment sought discloses no reasonable cause of action and dismiss the application for the amendment on that ground.

[39]        I would also dismiss the application to amend on the grounds that it is not just and convenient to permit such a claim to be advanced.  It is clear that Ms. Gosselin will obtain no benefit from advancing the claim and has no legal obligation to do so.  In these circumstances I consider the amendment to be useless and unfair to the defendants.

[40]        In Langret Investments S.A. v. McDonnell (1996), 21 B.C.L.R. (3d) 145 (C.A.) the court held at p. 153:

• Rule 24(1) of the Rules of Court in British Columbia allows a party to amend an originating process or pleading. Amendments are allowed unless prejudice can be demonstrated by the opposite party or the amendment will be useless. The rationale for allowing amendments is to enable the real issues to be determined. The practice followed in civil matters when amendments are sought fulfils the fundamental objective of the civil rules which is to ensure the just, speedy and inexpensive determination of every proceeding on the merits. See McLachlin and Taylor, British Columbia Practice (2nd Ed.) pp. 24-1 to 24-2-10, and the (7 decision of this Court in Chavez v. Sundance Cruises Corp. (1993), 15 C.P.C. (3d) 305, 309-10.

[41]        In my view the proposed amendments to the statement of claim are useless in that they provide no personal benefit to the plaintiff since any amount recovered by the plaintiff as a result of the amendments would be held in trust and ultimately paid to the government.

[42]        Ms. Gosselin feels that she has a moral obligation to pursue a claim to recover the health care services costs.  However I do not consider it to be appropriate for the Court to impose moral obligations on defendants.  The legislature has set out the circumstances in which the government is entitled to recover the cost of health care services.  I do not consider it to be just to the defendants to put them uniquely in the position of being exposed to a claim that others in the same situation will not be required to answer.

[43]        The application to amend is therefore dismissed.

Clarity is always welcome when a new law comes into force.  I will continue to post about further cases interpreting and shaping this legislation.  You can click here to read my archived posts discussing the HCCRA.

ICBC Injury Claims and Formal Settlement Offers; What You Need to Know

When taking an ICBC or other BC personal injury claim to trial in the Supreme Court it is vital to understand the financial consequences that can be triggered when formal settlement offers are made. I have written dozens of articles on this topic and you can access these here.
Below is a brief video discussing some of the key factors you need to consider when reviewing ICBC’s formal settlement offer under the BC Supreme Court Rules and further the issues you should consider when making your own formal settlement offer. I hope this information is of assistance.

More on Non-Pecuniary Damages in BC Civil Sexual Abuse Claims

As I previously posted, in British Columbia there is no ‘cap’ on non-pecuniary damages (compensation for pain and suffering and loss of enjoyment of life) when a victim successfully sues for harm caused as a result of sexual abuse.
So what compensation is a victim of abuse entitled to for non-pecuniary loss?  Recently a case was released by the BC Supreme Court, Victoria Registry, discussing this area of the law.  In this case (CCB v. IB) the Plaintiff succeeded in a civil suit for damages as a result of sexual abuse.  The trial focused of quantum of damages.
The Defendant was the Plaintiff’s natural father.  The abuse lasted for about 5 years when the Plaintiff was aged 5-9.  The father was criminally convicted and served time in prison.  The Plaintiff sued and was awarded close to $600,000 in total damages including $250,000 for her non-pecuniary loss.
One factor that is focused on in these claims is the severity and duration of the abuse.  I won’t repeat the facts here but the nature of the absue is set out at paragraph 8 of the reasons for judgement.    The plaintiff suffered harm as a result of the abuse.  She was, however, described as ‘resourceful‘ and ‘resilient‘ and had ‘a good prognosis for recovery from many of the effects of her traumatic, parentified and neglectful early life experiences with her father‘.
Madam Justice Gray made the following findings with respect to the Plaintiff’s injuries and prognosis:

[51]           I accept the opinions of Drs. Mills and Pullyblank described above.  In summary, I find that the defendant’s abuse of the plaintiff has caused her the following:

(a)      Generalized Anxiety Disorder, including additional features of trauma (including nightmares about the abuse and heightened trauma), phobia, and obsessive-compulsiveness/perfectionism;

(b)      depression and intrusive thoughts about the abuse;

(c)        lack of trust in others and lowered self-esteem;

(d)      educational underachievement, particularly in reading and math, which has so far resulted in a one to two year delay in her educational progression and may result in an inability to meet the potential she would have had without the abuse.

[52]           The plaintiff is described as resilient, and with proper assistance, her prognosis for increasing her education is good.  She is likely to suffer flare-ups of psychological symptoms, and is at risk for future mental health problems.

In valuing the Plaintiff’s non-pecuniary damages at $250,000 the Court reviewed a handful of useful precedents and provided the following helpful comments:

[54]           In the leading case Y.(S.) v. C.( F.G.) , (1996), 26 B.C.L.R. (3d) 155, [1997] 1 W.W.R. 229 (C.A.), the British Columbia Court of Appeal stated that the application of the “cap” on non-pecuniary damage awards set out by the Supreme Court of Canada in the trilogy Andrews v. Grand & Toy Alberta Ltd., , [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452, Arnold v. Teno, [1978] 2 S.C.R. 287, 83 D.L.R. (3d) 609, and Thornton v. School District no. 57 (Prince George), [1978] 2 S.C.R. 267, 83 D.L.R. 480, is not appropriate for intentional torts of a quasi-criminal nature, such as sexual abuse.

[55]           Because Y.(S.) lifted the cap on non-pecuniary damages in sexual abuse cases, the case law prior to Y.(S.) is of limited assistance.

[56]           In Y.(S.), the Court of Appeal also stated that in sexual abuse cases aggravated damages do not form a separate head of damages.  An award for non-pecuniary damages is assessed by taking into account aggravating circumstances, particularly in a case of sexual abuse, where the physical harm is not easily separated from the emotional and psychological harm.  Aggravating circumstances include the relationship between the parties, particularly if it is one of trust, the duration of the abuse, the number of assaults, the age of the victim, the degree of violence and coercion, the nature of the abuse, the physical pain and mental suffering associated with the abuse, as well as lack of remorse on the part of the defendant.

[57]           The Court of Appeal, at para. 55, noted the difficulties in quantifying damages in cases of sexual assault:

We are just beginning to understand the horrendous impact of sexual abuse.  To assess damages for the psychological impact of sexual abuse on a particular person is like trying to estimate the depth of the ocean by looking at the surface of the water.  The possible consequences of such abuse are not capable of critical measurement.

[58]           And further, at para. 56:

Comparison with the awards made in similar cases is helpful in maintaining consistency, and therefore giving fair and equivalent treatment to all victims.  But the impact on individuals in particular circumstances of sexual abuse is so difficult to measure that other cases can only provide a rough guide for assessment in this case.

[81]           The case law discusses the harm to the victims, but it is not a significant factor in determining quantum in such cases.  It is reasonable to presume harm, and as noted in Y.(S.), there are particular difficulties in measuring and predicting the lifelong effects of sexual abuse.  The fact that the plaintiff presently appears to be “resilient” is not a reason to diminish her award of damages.

[82]           The most significant aggravating factors are that the defendant was the plaintiff’s father and sole caregiver, that she was very young during the abuse, and that the acts were very invasive and serious.  The most similar case is Y.(S.).  In all the circumstances, the plaintiff is entitled to $250,000 for non-pecuniary damages.

I encourage anyone considering a BC Civil Lawsuit for damages for harm caused by historic sexual abuse to review this case and the precedents cited therein to gain a good understanding as to how BC Courts value pain and suffering and loss of enjoyment of life in these cases.

Another interesting aspect to this decision is the Plaintiff’s potential ability to collect on the judgement.  As previously discussed, a successful civil lawsuit for damages may not be worthwhile if the responsible defendant does not have the ability to pay.  Here the Defendant was criminally convicted and spent time in prison.  He very well may not have had the means to pay the judgement.  However, he was left an inheritance and the Court noted that this money “is available to be applied to a judgement in this case“.

Before getting into the time and expense of a civil lawsuit consideration should be given to the ability to collect on the judgement if the claim proves successful.  If the person directly responsible for the assault has no financial means the law of vicarious liability should also be canvassed.

Why ICBC's "Low Velocity Impact Program" Is Not the Law in British Columbia

Countless people have been injured in car crashes over the years in British Columbia and had their injury claims denied by ICBC on the basis of the Low Velocity Impact Program.
I have written many times about this program explaining that it has no legal force in BC.  Reasons for judgement were released today proving this yet again and in doing so providing one of the better explanations of why a certain threshold of vehicle damage is not necessary in order to have a successful personal injury claim in this Province.
In today’s case (Gignac v. Rozylo) the Plaintiff was involved in a 2004 collision in Victoria, BC .  At trial a ‘senior estimator‘ employed by ICBC testified that the Plaintiff’s vehicle suffered “cosmetic damage only to the rear bumper cover. ‘ and that ‘there is no bumper misalignment or sheet metal damage‘.
The Plaintiff was injured but ICBC advanced the LVI defence arguing that “given the very minor nature of the collision it is difficult to conceive how someone could possibly be injured, or injured in the significant fashion the plaintiff claims‘.
Despite finding that the crash was ‘one of the more minimal contacts between motor vehicles in the history of the internal combustion engine‘ Mr. Justice Wilson outright rejected the LVI defence and in doing so provided the following very useful summary of the law:

[30] I am not persuaded that the third party’s argument is open to me to accept.  There are two propositions which lead me to that opinion.

[31] First, in Gordon v. Palmer , Thackray J. (as he then was) made the following observations:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury.  …  It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

Significant injuries can be caused by the most casual of slips and falls.  … The presence and extent of injuries are to be determined on the basis of evidence given in court.

[32] Second, in Price v. Kostryba,McEachern, C.J.S.C. (as he then was), said at para 4:

Perhaps no injury has been the subject of so much judicial consideration as the whiplash.  Human experience tells us that these injuries normally resolve themselves within six months to a year or so.  Yet every physician knows some patients whose complaint continues for years, and some apparently never recover.

[33] Therefore, I conclude that Gordon is authority for the proposition that the magnitude of forces unleashed, in any given contact, is not determinative of the injuries sustained.  Accordingly, in this case, there was a “real risk” of the harm now complained of.

[34] And, Price is authority for the proposition that, objectively, some patients, of “ordinary fortitude” sustain injuries which are permanent.  In this case, I am not dealing with the particular vulnerabilities of this particular plaintiff.

[35] In result, I find the defendant liable for the plaintiff’s injuries.  That is to say, the defendant’s carelessness caused, as I will describe below, the plaintiff’s injuries, in fact and in law.

Loss of Housekeeping Capacity in BC Personal Injury Claims

When an injured person is less able to perform their usual tasks in and around the home they will often be awarded a higher amount for their Non-Pecuniary Damages and this loss can also be accounted for in awards for Special DamagesCost of Future Care and Loss of Future Earning Capacity. However, British Columbia Courts have sometimes recognized the loss of past housekeeping capacity as a separate head of damage and award extra money for this specific loss.  Reasons for judgement were released today by the BC Court of Appeal discussing this area of law.
In today’s case (Campbell v.  Banman) the Plaintiff was awarded damages as a result of injuries and loss from 2 BC Car Crashes.  The award for damages included just over $22,000 for ‘loss of housekeeping capacity“.  The defendants appealed this award arguing it was not reasonable.  The BCCA disagreed and dismissed the appeal.  In doing so Madam Justice Saunders provided the following useful discussion of the law of diminished housekeeping capacity in BC Personal Injury Claims:

[11] The award for loss of housekeeping capacity is made in the shade provided by Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d) 178 (C.A.). In Kroeker this Court, in a majority decision authored by Mr. Justice Gibbs sitting on a five judge division, without characterizing the nature of the award as pecuniary or non-pecuniary, affirmed the availability of an award for loss of housekeeping capacity. In reaching that conclusion Mr. Justice Gibbs said, in a passage said by the appellants to establish a mandatory judicial attitude of restraint:

[29]      There is much merit in the contention that the court ought to be cautious in approving what appears to be an addition to the heads of compensable injury lest it unleash a flood of excessive claims. But as the law has developed it would not be appropriate to deny to plaintiffs in this province a common law remedy available to plaintiffs in other provinces and in other common law jurisdictions. It will be the duty of trial judges and this Court to restrain awards for this type of claim to an amount of compensation commensurate with the loss. With respect to other heads of loss which are predicated upon the uncertain happening of future events measures have been devised to prevent the awards from being excessive. It would be reasonable to expect that a similar regime of reasonableness will develop in respect of the kind of claim at issue in this case.

[12] The Court in Kroeker reviewed the award for loss of housekeeping capacity in the amount of $23,000, found it was inordinately high where the loss was assessed at 130 hours a year, decreasing over time (at an hourly rate of $10), and reduced the award to $7,000.

[13] This Court addressed the issue of loss of housekeeping capacity again in McTavish v. Mac Gillvray, 2000 BCCA 164, 74 B.C.L.R. (3d) 281. In McTavish the trial judge had awarded $20,000 for past loss of housekeeping capacity and $43,170 for future loss of housekeeping capacity, sums arrived at by reference to the cost of replacement services for 10 hours each week until age 60, at an hourly cost of $10 an hour. This Court dismissed the appeal, finding there was evidence family members replaced the housework Ms. McTavish formerly had performed, and she was not required to prove she would hire someone to perform the duties in order to be fully compensated for the loss of her ability to perform the tasks herself. In the majority reasons for judgment I observed as to Kroeker:

[73]      This Court, in Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652; (1995) 4 B.C.L.R. (3d) 178; [1995] 6 W.W.R. 5 (C.A.) recognized that damages for past and future loss of housekeeping capacity may be awarded by a trial judge, even though housekeeping services were gratuitously replaced by a family member. Further, it recognized that, depending on the facts, this compensation may be by pecuniary or non-pecuniary damages, and if non-pecuniary, that there was no reason these damages could not be segregated.

[14] In my view, this case bears many of the same hallmarks as McTavish, although the extent of incapacity here is less and the damage award is accordingly attenuated.

[15] In particular, and notwithstanding the submissions of the appellants, there is evidence from Ms. Campbell and her common law husband that she had been, and still was at the time of trial, restricted in her ability to perform certain repetitive motions and those involving a certain degree of strength. Likewise Ms. Campbell and her common law husband testified he had accordingly assumed those tasks. It was open to the trial judge to accept that evidence. Further, there was no finding that the husband’s assumption of tasks formerly performed by Ms. Campbell was matched to any degree in a reallocation of duties between them…

[25] Last, the appellants are critical of the award for loss of housekeeping services on the basis it reflects an exercise in arithmetic and not an assessment.

[26] There is some force to the submission that the award should have been arrived at by assessment rather than arithmetic. An arithmetical calculation where, as here, there has not been any actual expenditure and the judge is simply estimating the value of the loss, suggests the order is untempered by judgment, and results in an award expressed in terms of precision beyond the courts faculty. To that extent, I would agree that the figures $8,132 and $10,920, awarded for past loss of housekeeping capacity are overly precise, and the award should have been expressed in more global terms. Nonetheless, it seems to me that the scale of damages is not something with which we should interfere, and thus any adjustment to the award to take account of the principle of assessment would be minor. Given this conclusion, I would not interfere with the order made.

[27] For these reasons I would dismiss the appeal.

BC Injury Claims and Your Choice of Counsel

If you are advancing an ICBC or other BC Personal Injury Claim you have the right to hire whatever lawyer you want.  What if you live in a smaller community in BC and don’t have access to a lawyer who can take on your case?  What if you live in a larger centre in BC but want to be represented by a specific lawyer from another community?  Is it convenient or cost effective for a lawyer from another city to advance a personal injury claim on a contingency basis in these circumstances?
The answer is often yes because in British Columbia a lawyer can file a claim in a BC Supreme Court registry which is convenient for them and set down the trial in a registry that is convenient for you.  Practically speaking this provides personal injury victims meaningful and Province-wide access to their top choice of lawyers regardless of where that lawyer primarily resides.
Reasons for judgement were released today by the BC Supreme Court discussing this practice of lawsuits being launched out of one registry for the convenience of the lawyer and set for trial in anther registry for the convenience of the parties/witnesses involved.
In today’s case (Cooper v. Lynch) the Plaintiff was involved in a Vernon, BC Car Crash.  She lived in Salmon Arm.  In advancing her personal injury claim she hired a lawyer who practices in Victoria.
The Lawyer launched a lawsuit in the BC Supreme Court.  As a matter of convenience the lawyer started the lawsuit in the Victoria Registry and set the place of trial at a location convenient for his client (Kelowna,  BC).
The Defence lawyer brought an application to have the case moved to Kelowna for all purposes.  The Defendant relied on Rule 64(13) which holds that:
At any time after a proceeding is commenced, the court may on application order it to be transferred from the registry in which it was commenced to any other registry of the court for any or all purposes.
At the initial hearing the Master who presided agreed with the defence lawyer and transferred the entire file to Kelowna holding that since the place of trial was to be Kelowna, BC the entire matter should proceed out of the Kelowna registry.
The Plaintiff’s lawyer appealed the Master’s decision and succeeded.  In overturning the Master’s decision Mr. Justice Barrow held that there was nothing wrong with a lawyer in a BC Personal Injury Claim filing out of one registry for the convenience of pre-trial applications and to have the trial itself in a different registry for the convenience of the parties and witnesses who will testify.  Specifically Mr. Justice Barrow summarized and applied the law as follows:

[9] It is appropriate first to identify the practical significance of the master’s decision. It is that, by operation of Rule 44(10), interlocutory and pre-trial applications will generally be heard in Kelowna. There are exceptions to this rule. Rule 44(14) permits a registrar, in some situations including to accommodate the convenience of the parties, to allow a chambers application to be heard elsewhere than in the location that Rule 44(10) would otherwise require. In the proceeding at hand, the effect of moving the file to Kelowna for all purposes will be that, absent agreement or an order under Rule 44(14), interlocutory and pre-trial applications will be heard in Kelowna, where neither counsel practice.

[10] The test to be applied to an application to transfer a file for all purposes under Rule 64(13) is the same as the test that governs an application to change the place of trial under 39(7) (see Nicholls v. McLean, [1996] B.C.J. No. 1160 (S.C.) and Roberston v. Zimmer, 2001 BCSC 1067, 12 C.P.C. (5th) 131 (B.C. Master)). An early and often cited expression of the test is found in Armstrong v. Revelstoke (City) (1927), 38 B.C.R. 253, [1927] 2 W.W.R. 245 (C.A.). In Armstrong, the chambers judge dismissed an application to move the place of trial. The Court of Appeal dismissed an appeal from that decision. McDonald C.J.A. wrote at p. 256:

…There is a preponderance of convenience in favour of a change of venue, but nothing short of a great or considerable preponderance of convenience and expense would justify the taking from a respondent the right which the law has given him to select his own place of trial.

In McPhatter v. Thorimbert (1966), 56 W.W.R. 497, Kirke Smith L.J.S.C. (as he then was) adopted this statement of the law. He also adopted the rationale for it as set out inMcDonald v. Dawson (1904), 8 O.L.R. 72, namely that the plaintiff, as the dominant litigant, has the right to control the course of the litigation. Controlling the course of the litigation extends to choosing the place of trial and choosing the registry out of which proceedings are taken. The right is not absolute, however, as the Rules of Court make plain but overriding the plaintiff’s decisions as to the course of the litigation by, for example, changing the place of trial or moving the proceeding from one registry to another, is only to be done where the “great preponderance” of convenience supports doing so.

[11] Although the test is the same whether considering moving the place of trial or changing the registry out of which proceedings are taken, the application of the test in these two contexts will not always yield the same result. That is so because circumstances which may prove inconvenient or greatly inconvenient for purposes of trial may be inconsequential for purposes of pre-trial applications. The most obvious example involves witnesses. The degree to which one place or another is convenient for purposes of trial will be affected by where the bulk of the witnesses reside. On the other hand, where the witnesses reside will usually have little bearing on whether it is appropriate to move a proceeding. That is so because generally witnesses are not required and rarely attend pre-trial or interlocutory applications.

[12] In Okayasu v. Poulsen, 2001 BCSC 729, Cullen J. heard an application by the defendants to transfer a file from the Vancouver registry to the Kamloops registry for all purposes, including trial. He ordered that the trial take place in Kamloops but declined to order that the file be transferred to the Kamloops for other purposes. He reached that conclusion, at least in part, because the circumstances that warranted a change in the place of trial were less significant in the assessment of the preponderance of convenience of pre-trial and interlocutory matters.

[13] In Smith v. Shabutura, the master observed that most pre-trial proceedings involve only lawyers. He concluded that the action was entirely connected to Kelowna (save for the fact that plaintiff’s counsel practiced in Victoria) and concluded that the circumstances that favoured holding the trial in Kelowna also militated in favour of the file being transferred to the Kelowna registry for all purposes. In so concluding, it seems to me that he conflated the effect on the trial of the various circumstances to be weighed in the balance with the effect of those same circumstances on pre-trial and interlocutory matters.

[14] It remains to be determined whether the master was clearly wrong in concluding that the great preponderance of convenience favoured moving this proceeding to the Kelowna registry for all purposes. In my view, and with the greatest of respect, I think he was. There is nothing in the record to suggest that the defendant, or the plaintiff for that matter, would be so interested in pre-trial or interlocutory matters as to wish to attend the hearing of them. Moreover, should that prove to be the case with respect to any particular application, it is open to counsel to apply to have that application heard elsewhere than in Victoria. There is no doubt some administrative convenience to having the file located where the trial will take place. Further, transferring the file to Kelowna has the effect of distributing or dividing the burden of travel as between counsel, given that neither resides nor practices in Kelowna. These circumstances whether taken individually or in combination do not support the conclusion that the great preponderance of convenience favours moving the proceeding or file from Victoria.

The practical consequence of this decision is that it makes it easier for British Columbians to hire their choice of lawyer in personal injury claims.  This is a great result advancing consumer rights by making it easier for all British Columbians to hire a lawyer that best suits their needs whether or not that lawyer resides in their community.

As readers of this blog may know, whenever possible I am referencing the current BC Supreme Court Rules with the New Rules which will take effect on July 1, 2010.  I am doing this to get a head start in determining which BC Supreme Court cases ought to retain their value as precedents under the soon to be in force overhauled Rules.

The rule relied on and interpreted in today’s case (Rule 64(13)) remains largely intact under the new Rules.  The rule can be found at section 23-1(13) of the New Civil Rules and reads almost identically to the current rule.  Specifically the new rule reads as follows:

(13) At any time after a proceeding is started, the court may on application order the proceeding to be transferred from the registry in which it is being conducted to any other registry of the court for any or all purposes.

Given the minor changes between the current rule and the new rule today’s case will likely retain its value as a guiding precedent after July 1, 2010.

Lawyers Hiring Lawyers – A Reasonable Disbursement?

(Please note the case discussed in the below article was overturned by the BC Court of Appeal.  You can find my summary of the Appeal Judgement here)
Very interesting reasons for judgment were released today by the BC Supreme Court dealing with the recovery of legal fees after a BC Personal Injury Lawsuit.  Before getting into the facts of this case, however, some brief background is necessary.
Generally speaking when a party sues and succeeds in a BC Supreme Court lawsuit he/she is entitled to Court “Costs” which compensate the successful party for having to go through the hassle of a formal lawsuit.
These “costs” have nothing to do with the party’s actual lawyer fees, rather they are set by a Tarriff and the amount of costs the party is entitled to is generally tied to the number of steps they took in the lawsuit.  In addition to ‘costs’ a successful litigant is entitled to claim reasonable disbursements (money spent on advancing the case such as court filing fees, expert witness costs etc.).
Interesting reasons for judgement were released today dealing with whether a litigant’s actual expense for hiring a lawyer could be recovered after a lawsuit.  The general answer to this question is no, however, on the unique facts of this case the Plaintiff was entitled to recover the actual costs of hiring one of his lawyers as a disbursement.
In today’s case  (Baiden v. Manji et al) the Plaintiff sued various defendants for personal injuries.  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.
In today’s case this is exactly what happened.  The Plaintiff had to go through with a WCAT hearing before his lawsuit was heard in court.  In doing so the Plaintiff hired a second lawyer to deal with the WCAT.   His legal bill for this second lawyer came to $8,400.
The s. 10 defence did not succeed and the WCAT found that “the injuries to the plaintiff did not arise out of and int he course of his employment”.  The Plaintiff then proceeded to trial.  At the end of trial the Plaintiff asked the Court to allow the $8,400 as a disbursement.  Mr. Justice Chamberlist concluded that this was a reasonable disbursement and allowed the Plaintiff to recover this cost.  Specifically the Court reasoned as follows:

I am of the view that having reviewed the legislation applicable to hearings before WCAT that this is a situation where it is necessary that specialist counsel be hired to deal with the issue.

[22]         The Act discloses, through various sections, that the appeal tribunal is not a court of law like the Supreme Court of British Columbia…

[24]         These very simple observations exemplify the difference between proceedings in the Supreme Court of British Columbia and proceedings under the Workers Compensation Act.

[25]         As a result, I find attendances before the Workers’ Compensation Board and WCAT would be quite different from appearing in court and, as such, represent a need for specialization. …

As I have indicated above, a lawyer may be very competent in Supreme Court where he or she has been taught and practised the importance of legal precedent and is familiar with the rules of admissibility of evidence.  Section 246.1 and s. 250 of the Act obviously disclose some of the differences in appearing before WCAT and appearing before the Supreme Court….

it is not always the case that a disbursement for legal fees paid to another lawyer and reasonably incurred will be disallowed.  Experienced litigators should leave nothing to chance. …

[39]         The fact is that only after some years that Mr. Ward had been counsel for the plaintiff was s. 10 of the WCA brought into issue.  The affidavit filed by the plaintiff discloses that Mr. Ward had never before dealt with the WCAT.

[40]         I have reviewed the various submissions made to WCAT as set out in the affidavit of Karin Reinhold, along with the decision of WCAT, and I find that the retention of Mr. Ishkanian to act for the plaintiff before WCAT was reasonably incurred at the time and the account is reasonable.

[41]         The sum of $8,400.00 is allowed as a disbursement in this action.

Can a Plaintiff's Treating Doctor Give Expert Opinion Evidence for the Defence in an Injury Claim?

Reasons for judgement were released today by the BC Supreme Court dealing with this interesting issue.
In today’s case (MacEachern v. Rennie) the Plaintiff ‘suffered traumatic brain injury when her head came into contact with a tractor trailer while she was walking or riding her bicycle along King George Highway in Surrey, BC
In the years before the collision the Plaintiff was treated by a physician, Dr. Dowey, who apparently “prescribed methadone (to the plaintiff) as part of her treatment for heroin addiction“.
In the months leading up to the trial the Defence lawyers had a pre-trial interview with the doctor which was not consented to by the Plaintiff’s lawyers.  After speaking with this doctor the defendants decided to rely on him as a witness in their case.
The Defendants called the doctor to give evidence and sought to have the doctor qualified as an expert to give medical opinions about the Plaintiff’s pre-accident condition and prognosis.  The Plaintiff opposed this for several reasons and argued that “it was improper for Dr. Dowey to have pre-trial meetings with counsel for the defendants in the absence of plaintiff’s counsel“.
In permitting the doctor to testify as an expert witness for the defence Mr. Justice Ehrcke of the BC Supreme Court summarized and applied the law as follows:
[22] Plaintiff’s counsel submits that as a treating physician, Dr. Dowey owed the plaintiff a duty of confidentiality not to divulge her personal information without her consent, and that Dr. Dowey breached his duty of confidence when he spoke with counsel for the CN Defendants in the their absence. The submission is that as a result, the CN Defendants should not be permitted to lead evidence of Dr. Dowey’s expert opinions….

[29]         The only question before me, then, is whether Dr. Dowey should be prohibited from giving opinion evidence. He has been subpoenaed by the CN Defendants. As a witness under subpoena, he must answer the questions asked of him unless there is a basis in law for excluding his evidence. The plaintiff does not make a claim of privilege, but rather submits that to permit Dr. Dowey to give expert opinion evidence would conflict with his duty of confidentiality.

[30]         The plaintiff relies on a decision of the Ontario Superior Court of Justice, Burgess v. Wu (2003), 68 O.R. (3d) 710 (Sup. Ct. of Justice). In that case, Ferguson J. emphasized the distinction between pre-trial disclosure and the admissibility of evidence at trial, as well as the distinction between a claim of privilege and the duty of confidentiality. He wrote at para. 55-57:

[55]      It is important at the outset to distinguish between access at trial and access before trial. Once a physician takes the witness stand, and regardless of whether he or she is called by the patient or subpoenaed by the defence, the physician must answer all relevant questions subject to a ruling in unusual circumstances that some subjects are privileged (see the discussion below re M. (A.) v. Ryan, infra). It is irrelevant whether or not the patient consents. The physician cannot refuse to answer on the ground of a duty of confidentiality:  Metropolitan Life Insurance Co. v. Frenette, [1992] 1 S.C.R. 647, 89 D.L.R. (4th) 653, at p. 687 S.C.R., p. 681 D.L.R., per L’Heureux-Dubé J.

[56]      This rule is consistent with the rules of ethics promulgated by the profession and by regulation which specifically state that the duty does not apply to situations where disclosure is “required by law”.

[57]      The issue of concern in the present case is access before trial. The general question is:  what is required by law outside the witness stand? In this context the primary restraint is the duty and right of confidentiality, and not the evidentiary issue of legal privilege.

[31]         Counsel for the plaintiff points out that Ferguson J. went on to hold that the doctor who had treated the plaintiff in that case would be prohibited from testifying as an expert for the defence. Counsel urges me to make a similar ruling here.

[32]         There are, however, two important distinctions between that case and this. First, Ferguson J. made a finding that there had been improper pre-trial contact between the witness and counsel for the defence, and that finding was instrumental in his decision that the witness should not be permitted to testify as an expert for the defence. He wrote at para. 134: “The party at fault should not benefit from the fruits of the impropriety.”  On the facts of the present case, I have found that there was no impropriety in the meeting between Dr. Dowey and counsel for the CN Defendants.

[33]         The second distinction is in the nature of the opinion evidence that is being sought. In Burgess v. Wu, the tenor of the opinion sought was expressed in a letter quoted at para. 21:

We are interested in your views, as a forensic psychiatrist, as to the likelihood that Mr. Burgess would have committed suicide (regardless of the prescription of Seconal), his prognosis otherwise, and the probability of him returning to a functioning lifestyle.

[34]         That is, the opinion sought in Wu related to the patient’s prognosis after the period of time when the witness had treated him. In the present case, counsel for the CN Defendants have stated that they do not seek any opinion from Dr. Dowey about Ms. MacEachern’s prognosis after the last date he saw her, November 29, 2004. More specifically, they do not seek from him an opinion about whether she likely would have continued using drugs after September 2005 had it not been for the accident. They might attempt to elicit such an opinion from another expert who did not treat the plaintiff, but they will not seek such an opinion from her treating physicians.

[35]         Counsel for the plaintiff has referred to the Personal Information Protection Act, S.B.C. 2003, c. 63, but its provisions do not support the plaintiff’s position since s. 3(4) of thatAct provides:

3(4) This Act does not limit the information available by law to a party in a proceeding.

[36]         In the circumstances of this case, I do not find that the duty of confidentiality would prevent Dr. Dowey from giving relevant opinion evidence as a medical doctor in relation to the period of time that she was his patient.