Tag: costs

Mild Soft Tissue Injury Valued at $4,000; BC Supreme Court Rule 14 Discussed

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing the value of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for a mild soft tissue injury.
In this week’s case (Brar v. Kaur) the Plaintiff was involved in a 2006 rear end collision.  Prior to trial the responsible motorist admitted fault for the crash.  The matter proceeded to court under the “summary trial” rule where the evidence was presented by affidavits.   The evidence established that the Plaintiff suffered a fairly minor soft tissue injury in the crash.  Mr. Justice Truscott awarded the Plaintiff $4,000 for his non-pecuniary damages and in doing so made the following comments about the severity of the injury and the difficulty in valuing a case without hearing live testimony from the Plaintiff:
[42] It is near to impossible to assess credibility on a summary judgment application supported only by affidavits. The plaintiff’s injuries were only soft tissue injuries caused by a very minor accident and those complaints were subjectively based and not objectively verifiable. Accordingly the Court must be cautious in accepting his complaints as proven.

[43]         However Dr. Sandhu does not suggest in his report the plaintiff is not to be believed on his complaints or even suggest that he is exaggerating. He appears to have accepted the plaintiff’s complaints as legitimate and consistent with the mechanism of the accident and I likewise am prepared to accept the complaints of the plaintiff as stated in his affidavit and as reported to Dr. Sandhu.

[44]         I am prepared to conclude that the plaintiff sustained mild soft tissue injuries to his neck and back areas. While Dr. Sandhu says the plaintiff was fully recovered in six months I observe that Dr. Sandhu’s last report of complaints from the plaintiff was on May 17, 2007, only five months after the accident. Thereafter it does not appear the plaintiff saw Dr. Sandhu again until over one year later and then it was for unrelated issues…

[54] I award the plaintiff $4,000 for non-pecuniary damages as his injuries lasted slightly longer than the injuries of the plaintiffs in Saluja and Bagasbas.

This case is also the first that I am aware of to apply the New BC Supreme Court Rule 14-1(10).  This rule prevents a Plaintiff who is awarded below $25,000 from being awarded costs unless they have “sufficient reason” to sue in the Supreme Court.  Mr. Justice Truscott held that the Plaintiff did not have sufficient reason to sue in the Supreme Court because “he could never have reasonably expected to obtain an amount in excess of the Small Claims jurisdiction“.

Mr. Justice Truscott applied this rule consistently with precedents developed under the old Rule 57(10) which reads identically to the new rule.  I should also point out that the BC Court of Appeal is expected to address the issue of whether Plaintiff’s in ICBC claims worth below $25,000 have sufficient reason to sue in the Supreme Court due to the “institutional” nature of ICBC and this upcoming judgement should add welcome clarity to this area of the law.

The Problem With Losing An ICBC Injury Claim at Trial


When Plaintiffs have their injury claim dismissed in the BC Supreme Court, not only do they get nothing to compensate them for their injuries, they actually end up having to pay the Defendant money.   How can this be?  The reason is something called “costs“.  Generally speaking, the loser has to pay the winner’s Court costs and disbursements.
So how much money are we talking about here?  The answer is thousands, sometimes tens of thousands, sometimes even over one hundred thousand dollars.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, demonstrating this.
In this week’s case (Pearlman v. Atlantic Trading Company Ltd.) the Plaintiff was involved in a motor vehicle collision in 2004.  He sued the party he claimed was responsible for his injuries.  He also sued ICBC alleging that ICBC “had requested a medical report from his family doctor whose authorization to provide the report had been revoked by the Plaintiff.”.
A jury dismissed the Plaintiff’s first claim and a Judge dismissed the Plaintiff’s second claim.  ICBC was awarded their Court costs.  The BC Supreme Court assessed these at $66,000 for the two claims combined.    The Plaintiff then appealed these costs awards.    Madam Justice Gropper dismissed the Plaintiff’s appeals and upheld the awards.
While this case does not contain any unique or novel principles of law, it is worth reviewing because it demonstrates the stark realty that people can pay a very high price if they are on the losing end of an ICBC claim in the BC Supreme Court.
If you are interested in more information on costs consequences in BC Supreme Court injury lawsuits you can click here to read my archived posts on this topic.

Plaintiff Awarded Double Costs for Beating Pre Trial Formal Settlement Offer; Relevance of ICBC Insurance Considered


In my continued efforts to track the judicial development of Rule 37B, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff double costs for the trial of her ICBC claim.  The contentious issue of the existence of Insurance as a potentially relevant factor was also considered.
In today’s case (Pham-Fraser v. Smith) the Plaintiff was injured in a BC motor vehicle collision.  Before trial the Defendant (insured with ICBC) offered to settle under Rule 37B for $115,000.  The Plaintiff responded with a formal settlement offer of $149,000.  Neither party accepted the respective offers and proceeded to trial where the Court awarded just over $400,000 in total damages (click here to read my previous post discussing the trial judgement).
The Plaintiff, having comfortably beat her formal offer, asked the Court to award double costs under Rule 37B.  In granting the motion Mr. Justice Greyell held as follows:

[24] The second factor referred to in Rule 37B(6) also operates in the plaintiff’s favour.  There is a wide difference between the offer to settle and the final judgment.  The judgment is almost three times the amount offered.  The plaintiff’s offer was made because she wished to avoid court and having to give her evidence.  Some of her evidence was of a private nature relating to matters she did not wish to talk about in the public forum of a court of law (that is, how the accident affected her work and home life, her marital relationship with her husband after the accident, and the fact she suffered from incontinence).

[25] It is not necessary to consider factors set out in Rule 37B(6)(c) and (d).  I do not accept the plaintiff’s submission I ought to consider that the defendants, being represented by ICBC, are in a “sophisticated” position in terms of providing settlement instructions and that this is a factor to be taken into account and operate in the plaintiff’s favour in exercising my discretion under the rule.   The plaintiff’s argument seems to me to simply be another way of putting a “deep pockets” argument forward: an argument the courts have thus far rejected as being a factor to be considered in determining whether to award costs under Rule 37B.

[26] After considering the factors which I do consider relevant under Rule 37B, I conclude the plaintiff is entitled to an award of double costs.

As previously discussed, the BC Supreme Court is inconsistent on whether a Defendant being insured is a relevant factor under Rule 37B and clarity from the Court of Appeal would be welcome.  While more cases than not have held that insurance is not a relevant consideration it is not yet clear that this is correct.  If the law was settled it would assist lawyers in advising their clients of the potential risks and benefits of trial.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

More on Court Costs and "Sufficient Reason" For Suing in the BC Supreme Court

Further to my previous posts on this topic, if a Plaintiff successfully sues in the BC Supreme Court but receives damages below $25,000 they may be deprived of their court ‘costs’ unless they had ‘sufficient reason’ for choosing the Supreme Court over small claims court.
Two judgements were released this week by the BC Supreme Court discussing this area of law.  In this weeks cases (Spencer v. Popham and Spencer v. Horton) the Plaintiff was involved in 2 separate  BC car crashes.  She started separate lawsuits in the BC Supreme Court but settled her cases before they went to trial.  Both claims settled form amounts below $25,000 (the current financial limit of BC’s small claims court).  The Plaintiff and ICBC could not agree on the issue of costs.
ICBC argued that since both cases were in the small claims courts jurisdiction the Plaintiff did not have sufficient reason for suing in the Supreme Court.  Mr. Justice Punnett disagreed and awarded the Plaintiff costs in both claims.  In doing so he provided the following useful and through summary of this area of the law:

[8] Rule 57(10) of the Rules of Court states:

A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

[9] This rule encourages persons to bring actions in Small Claims Court when a claim falls within that court’s monetary jurisdiction. It is an example of “proportionality”; the judicial process should match the amount in dispute. However, the court must also respect a party’s “legitimate choice” of forum: Reimann v. Aziz, 2007 BCCA 448, 286 D.L.R. (4th) 330 at para. 35.

[10] The burden is on claimants to evaluate their claims prior to commencement and to justify their decision if they recover less than the Small Claims Court limit, currently $25,000:Reimann at para. 38. If plaintiffs fail to sufficiently investigate and assess their claims prior to commencement, they risk not recovering costs. In a personal injury action this may require plaintiffs to obtain medical records and medical reports, to gather evidence to support claims for loss of earnings and earning capacity, and to assess the evidence in support of the claims being advanced before commencing the action.

[11] However, as noted by Justice Savage in Gradek v. DaimlerChrysler Financial Services Canada Inc, 2010 BCSC 356 at para. 19, R. 57(10) contemplates the possibility that factors other than quantum must be considered:

[19]      The proviso in Rule 57(10) is “unless the court finds that there was sufficient reason for bringing the proceeding in Supreme Court and so orders”. The Rule does not define “sufficient reason”. There is nothing in the Rule that limits the extension of the term “sufficient reason” to matters relating to the quantum of the claim.

[12] Factors that can give rise to “sufficient reason” were set out in Kuehne v. Probstl, 2004 BCSC 865 at para. 22, and accepted in Icecorp International Cargo Express Corp. v. Nicolaus, 2007 BCCA 97, 38 C.P.C. (6th) 26 at para. 27. They include:

i. the legal or factual complexity of the case;

ii. the need for discovery of documents and examinations for discovery;

iii. the need for a judgment enforceable outside of British Columbia;

iv. a bona fide preference for a jury trial; and

v. access to the summary trial procedure available in Supreme Court.

Other factors can be the need for the plaintiff to have legal counsel (Faedo v. Dowell, 2007 BCSC 1985 at para. 36; Ostovic v. Foggin, 2009 BCSC 58 at para. 42; Gradek at para. 43), and the defendant’s denial of liability, causation, and injury or loss and allegations of contributory negligence, pre-existing conditions, previous causes and a failure to mitigate (Ostovic at paras. 39-40; Gradek at para. 35).

[13] Therefore, a plaintiff’s evaluation of his or her claim, can also involve an assessment of these factors. Even if the plaintiff assesses the claim to be within the jurisdiction of the Small Claims Court, the plaintiff can rely on these other reasons to commence the action in Supreme Court: Johannson v. National Car Rental (Canada) Inc., 2009 BCSC 1284 at para. 5.

[14] In my opinion, a plaintiff’s simple desire to retain counsel is not in and of itself a sufficient reason for commencing the action in Supreme Court. Other factors, such as those noted above, determine whether retaining counsel is justified.

[15] In Faedo, the plaintiff was in a low impact collision and suffered a soft tissue injury to her neck and back. Justice Vickers found that the case was not that complex and plaintiff’s counsel could not have considered ICBC’s original dispute of liability a serious threat to recovery. However, Justice Vickers concluded that it was reasonable for the plaintiff to have brought her claim in Supreme Court for two reasons: (1) when the action was commenced, the plaintiff believed she was suffering from the accident and her pleadings included a claim for loss of earning capacity and disruption of the ability to earn income; and (2) ICBC put her credibility seriously in issue when it took the position that she had not suffered from any injury or any significant injury. Justice Vickers continued at para. 36:

[36]      … I observed this plaintiff to be very nervous in court. She had no previous experience in court and in my opinion when she was confronted with a case where the defendant represented by counsel was suggesting that she hadn’t been injured at all and this was a low impact accident in which it was suggested she wouldn’t be injured, that the plaintiff reasonably required counsel to represent her and reasonably started an action in the Supreme Court where she could hope to recover some of the cost of retaining that counsel which was necessary for her to properly put her case to get the compensation I have found her entitled to. Furthermore, an offer to settle such as the plaintiff made in this case puts very little pressure upon a defendant to settle where there is no exposure to costs.

[16] In Ostovic, another case arising out of a low impact accident, Justice Savage noted that because the defendant denied liability, causation and special damages, the plaintiff had to prove these issues in court. Because of this, the plaintiff needed to avail himself of pre-trial discovery, which provided important evidence of the speed of impact, the consequences of impact and concern over the plaintiff’s condition. In addition, Justice Savage found at para. 42:

[42]      There is the additional factor that, as in Faedo and Kanani [v. Misiurna, 2008 BCSC 1274], the Plaintiff faced an institutional defendant which, in the ordinary course, has counsel. To obtain any recovery the Plaintiff is forced to go to court, where he is facing counsel and counsel is reasonably required, but in Provincial Court there is no way of recovering the costs of counsel.

[17] In Gradek, before the issuance of the writ, the defendants’ insurers had informed the plaintiffs that their position was the accident did not result in any compensable injury. In their pleadings, the defendants denied liability and injury or loss and alleged contributory negligence, the existence of a pre-existing injury and previous causes, and a failure to mitigate. There was a broad range of findings possible respecting liability. The plaintiff, Henryk Gradek, was a Polish immigrant who spoke halting English. Justice Savage found at para. 42 that “he would have had extraordinary difficulty presenting a case on his own” and would have been “out-matched” by either a lawyer or an ICBC adjustor. The plaintiff needed counsel to obtain a just result and, therefore, had sufficient reason to begin the action in Supreme Court.

[18] Plaintiffs do not have an ongoing duty to reassess their claims as the matter proceeds: Reimann at para. 44. Thus, the court must assess whether a plaintiff had “sufficient reason” to bring the action in Supreme Court when the plaintiff started the action: Ostovic at para. 35. This analysis is necessarily done with the benefit of hindsight since it only occurs after trial or settlement, but the court must be careful not to use that hindsight in deciding what was reasonable: Faedo at para. 28.

[19] It also must be remembered R. 57(10) “does not involve an exercise of discretion.” Rather, “the court must make a finding that there was sufficient reason for bringing the action in the Supreme Court” (emphasis added): Reimann at para. 13.

In my continued effort to cross reference the current Supreme Court rules with the new Rules of Court that come into force on July 1, 2010 I will note that the Current Rule 57(10) will become Rule 14-1(10) and it reads identical to the current rule so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants under our new rules.

BC Court of Appeal Clarifies Discretionary Costs Awards in Fast Track Trials

As I’ve previously written, when a person wins in a lawsuit in the BC Supreme Court they are usually entitled to ‘costs‘.
The normal amount of costs a successful litigant is entitled to are set out in a tariff as an appendix to the Rules of Court (appendix B).  However, in fast track trials, the amount of costs a person is entitled to is capped under Rule 66.  A judge has discretion to waive this cap and award a litigant more.  Today, the BC Court of Appeal released reasons for judgement dealing with the extent of that discretion.
In today’s case (Majewska v. Partyka) the Plaintiff was injured in a 2007 BC car crash.  ICBC admitted that the driver was at fault.  The lawsuit focused on the value of the Plaintiff’s claim.  The Plaintiff made a formal offer to settle her case for $50,000.  ICBC made a formal offer for $25,000.  The trial judge ultimately awarded just over $62,000 in damages.
The Court went on to award the Plaintiff double costs under the ‘usual tariff‘.  ICBC argued that while the Court did have discretion to award costs above the capped amount set our in Rule 66(29) the Judge was wrong in awarding them under the ‘usual tarriff’ and should have used the limited amounts set out in Rule 66 as guidance for the increased costs award.  The BC Court of Appeal agreed and set out the following principles:
[29] Thus, Anderson established two principles. First, it confirmed that there is discretion to award costs beyond the limits in R. 66(29) if there are special circumstances. Second, where such an award is justified, it affirmed that costs should be calculated using those limits as reference points, rather than under the usual tariff…

[31] I appreciate that Anderson dealt only with a settlement offer, whereas there were additional special circumstances in this case. The trial had run for three and a half days, and there was an issue of some complexity. However, the approach in Anderson can easily be adapted to calculate costs for extra days of trial by adding a further $1,600 for each day, based on the present figures of $5,000 and $6,600 in R. 66(29). This was the approach used by Gerow J. in Park, where the R. 66 trial had taken three days.

[32] Using the amounts in R. 66(29) as a basis for awarding increased costs because the issues were complex is not as straightforward. I am persuaded, however, that theAnderson approach could be adapted effectively to accomplish this, again by using those amounts as the basis for calculations.

[33] This approach brings desirable consistency and predictability to costs awards following fast track litigation. The varied approaches that have developed under R. 66 have led to uncertainty with respect to both exposure to and recovery of costs under the rule. Having opted into the R. 66 process, fast track litigants should be able to reliably assess their potential costs liability or recovery in making decisions about the conduct of the case….

[37] I would conclude that the discretionary nature of R. 66(29) is circumscribed by the objectives of R. 66: to provide a speedier and less expensive process for relatively short trials. Those objectives are best served by awarding lump sum costs, calculated by reference to the amounts in R. 66(29).

[38] I acknowledge there may be situations that justify a departure from such costs. I anticipate these would be “exceptional” circumstances rather than “special” circumstances, and might include situations deserving of special costs or solicitor client costs, however, such matters must be left for another day.

[39] I would therefore allow the appeal, and calculate costs under R. 66(29) as follows. Under the present limits of $5,000 and $6,600 I take the pre-trial portion of costs to be $3,400, and $1,600 as representative of each day of trial. The plaintiff’s offer to settle was delivered only six days before trial. Thus, she is not entitled to double costs for trial preparation. She is, however, entitled to double costs for three and a half days of trial, calculated at $3,200 per day. Total costs are thus $14,600 ($3,400 plus $11,200) before disbursements and taxes.

Despite winning the appeal, the BCCA ordered that ICBC pay the Plaintiff’s costs of the appeal because this was a ‘test case‘ and but for that reason ICBC would not have proceeded with the appeal.  The Court stated as follows:

[42] In my view, an order that each party bear its own costs would not be appropriate. The amount in issue is not so significant that the parties would have undertaken the appeal of their own accord. Because the defendant’s insurer chose to use it as a test case, the plaintiff was put to the expense of responding to the appeal. The defendant’s late and unsuccessful attempt to raise a second ground of appeal increased that expense, as the plaintiff had to reply to the new ground as well. In Patterson v. Rankel (1998), 166 D.L.R. (4th) 574 (B.C.C.A.), Southin J.A. described the same insurer’s agreement to pay the plaintiff’s costs in a “test case” as “a very proper thing to do”, and ordered costs in those terms. I agree that is the appropriate result in such a case.

I should point out that Rule 66 is being taken off the books as of July 1, 2010 and being replaced with Rule 15.  However, today’s case ought to retain value as a precedent under the new rule because Rule 15-1(15) has language almost identical to Rule 66(29).

More on Formal Settlement Offers – Relevance of Insurance and a Novel Use of Rule 37B


In my continued efforts to write about the development of Rule 37B (the rule that deals with costs consequences after a party beats a formal settlement offer at trial) two cases were released this week further interpreting this rule.
The first case (Ostiguy v. Hui) the Plaintiff was injured in a 2003 BC car crash.  She ultimately represented herself.  In the course of the lawsuit ICBC made a formal settlement offer under the old Rule 37 for $30,000.  The Plaintiff did not accept this offer and went to trial.  The Jury awarded the Plaintiff $10,000.   The Defendants brought a motion for costs.
After addressing a technical issue about the offer’s general compliance with the old Rule 37 Mr. Justice Williams decided that the offer was capable of triggering costs consequences under the new Rule 37B.  The Court went on to award the Defendant 60% of their costs from the time that liability was admitted onward.  In reaching this decision the Court held that whether the Defendant was insured with ICBC was not to be considered (an issue the BC Supreme Court cannot agree on and needs to be addressed by the Court of Appeal).
The Court made the following notable comments:
[68] I have no knowledge as to the circumstances of the defendants; I will proceed on the basis that they are ordinary people of ordinary means. I should note parenthetically that, although they were represented by an insurer, it is their circumstances and not those of the insurer which are to be considered…

[71] In this case, the costs which the plaintiff is liable to pay are substantial. That is attributable in significant part to the fact that this litigation dragged on considerably. The plaintiff hired and subsequently discharged two different lawyers before proceeding to act for herself. There were a number of delays. Costs have mounted.

[72] The law is clear that sympathy is not a basis to determine the outcome of matters such as this. Nevertheless, it is quite disconcerting to see the plaintiff’s award of damages for her injury completely obliterated and overshadowed by a costs obligation, and for the consequences in fact to go further, to leave the plaintiff with a huge bill to pay as well.

[73] At the same time, the Court must be cautious that the sound and basic principles that underlie the costs regime are not simply disregarded because the plaintiff chose to represent herself and chose to proceed as she did.

[74] In the final result, the matter requires a balancing of a number of considerations and a significant application of judgment to try and fashion an outcome that is fair in the circumstances. Approaching the task in that fashion, I have decided as follows:

(a)      The effective date of the Offer will be July 14, 2008, when the defendants advised the plaintiff that liability was being admitted.

(b)      Up to July 14, 2008, the plaintiff is entitled to recover from the defendants her costs and disbursements.

(c)      For the time period following July 14, 2008, the defendants are entitled to recover from the plaintiff their disbursements and 60% of their costs.

For my readers not familiar with the potential extent of cost consequences I should point out that on these findings there is a good chance that the Plaintiff, despite being awarded $10,000 by the Jury, would end up owing ICBC money.  When preparing for trial it is imperative that parties consider the potential consequences of formal settlement offers.

________________________________________________________________________________________________

The second case released this week was interesting because the Defendant made what appears to be a novel use of Rule 37B.  Usually parties restrict formal settlement offers to the issues to be addressed at trial.  In this week’s case (Moro v. El Mantari) the Defendant used Rule 37B in a Chambers application.

The parties could not agree on a lot of issues in the lawsuit.  Prior to trial the Parties brought cross motions to be decided in Chambers.  Prior to this pre-trial hearing the Defendant made a formal settlement offer under Rule 37B asking that the Plaintiff consent to various aspects of their motion.

The Defendant was largely successful in Chambers.  The Court was asked to award the Defendant double costs for Chambers because of the formal offer.  In the first case that I’m aware of using Rule 37B in this fashion Mr. Justice Chamberlist agreed that it was a permitted use of the Rule.  Specifically the Court held as follows:

[18] The defendant submits that it should be entitled to double costs on the basis of its offer to settle to the plaintiff made on June 26, 2009.  At that time the defendant asked the plaintiff to consent to items 1, 4, 6, 7, 8, and 10 of her notice of motion.

[19] The fact is that R. 37 has since 2008 been amended by deleting the subrules that an offer to settle did not apply to interlocutory proceedings.  The overriding fact is that there must be substantial success.  ..

22] Thus R. 37B(4) permits the court to consider an offer to settle when exercising the court’s discretion in relation to costs.

[23] As a result, the fact that the defendant has failed to meet the terms of the offer to settle will no longer necessarily mean that she would be deprived of her double costs.  In various decisions of this court it would appear that an issue which has been discussed in many cases is whether the offer to settle is one that ought reasonably to have been accepted (R. 37B(6)(a))….

[26] The enactment of R. 37B so that it now applies to interlocutory applications as well as trial, demonstrates the purpose of the new rule is to allow an offer to settle to be made, and if I were to follow the plaintiff’s position it would completely ignore the important deterrent function of the rule…

[32] In this case the offer to settle was made on June 26, 2009, and I find that the defendant was substantially successful.  The defendant shall have her costs of her attendance before me on August 27 and 28, 2009, as calculated in accordance with R. 37B, namely double costs.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as these retain their value as precedents.

ICBC Injury Claims, Trials and Adjournments – Let's Be Reasonable

Often times when a BC Supreme Court trial date approaches in an ICBC Injury Claim there are reasons why one party would like to adjourn the trial.  Key witnesses can be unavailable, perhaps the case is not quantifiable due to ongoing medical investigations or maybe one side is simply not prepared.
Whatever the reason if the parties don’t consent an application can be brought to a Supreme Court Judge or Master requesting an adjournment pursuant to Rule 39(9) which holds that “The court may order the adjournment of a trial or fix the date of trial of an action or issue, or order that a trial shall take precedence over another trial“.
The legal test for adjournment applications has long been established and it is clear that courts have the discretion to adjourn a trial.  In exercising this discretion the Court must take into account the “interests of justice”. The interests of justice are determined by ‘balancing the interests of the parties, which is a difficult and delicate matter requiring a careful consideration of all the elements of the case‘.
With this introduction out of the way that brings me to the topic of today’s post.  What if a trial needs to be adjourned for very clear and obvious reasons but the opposing side does not consent?  Unreported reasons for judgement came to my attention today dealing with such a scenario.
In this case (Davis v. Clark, BCSC Chilliwack Registry, June 8, 2009) the Plaintiff’s personal injury claim was set for trial.  Fault was admitted leaving the court to only deal with the issue of damages (value of the personal injury claim).  The trial date, unfortunately, was set on the same date that the Plaintiff’s lawyers daughter was being married.  The Plaintiff was content to have the trial adjourned but the Defendant refused to consent.  A motion was brought asking for an adjournment and it was granted.  The Court went further, however, and ordered that the Defendants pay the Plaintiff $703 in costs ‘forthwith‘ for their unreasonable refusal to consent.
Master Baker had the following to say:
Anyway, in the case before me, liability is not in issue.  It is admitted.  I just do not see there is any prejudice to the defence, but, with respect, it strikes me as just an eminently reasonable request on the part of the plaintiff to adjourn this.  I wonder where litigation is going when someone says, “Look, my child is getting married and I want an adjournment,” and it is refused.  I find that unacceptable.  It frustrates and angers me, frankly.  I just wonder where it is going…The order will go.  Costs in any event payable forthwith.”
Sometimes there are legitimate reasons for an adjournment and sometimes there are not.  This case, however, demonstrates that where there is a very reasonable request for an adjournment and it is unreasonably refused the Court can punish the unreasonable party with costs payable forthwith.
Note:  Rule 39(9) will be kept intact when the New BC Supreme Court Rules come into force on July 1, 2010 and can be found at Rule 12-1(9).

Even More on Costs and "Sufficient Reason" to Sue in the BC Supreme Court

Further to my previous posts on this topic, reasons for judgement were released today considering whether to award a Plaintiff Supreme Court Costs in an ICBC Claim where the judgement amount was within the Small Claims Court’s jurisdiction.
In today’s case (Mohamadi v. Tremblay) the Plaintiff was awarded $10,490 in his ICBC Claim after trial (click here to read my summary of the trial judgment).
The Plaintiff brought an application to be awarded ‘costs’ under Rule 57(10) which reads as follows:
A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
ICBC opposed this application.  Mr. Justice Truscott set out the leading test in applying Rule 57(10) from the BC Court of Appeal (Reimann v. Aziz) where the BC high court held that “Considering Rule 57(10) in its legislative context and applying its words in their grammatical and ordinary sense harmoniously with the scheme of the legislation and its objects, I conclude that a plaintiff does not have an ongoing obligation to assess the quantum of a claim and that the point in time for a consideration of whether a plaintiff had sufficient reason for bringing a proceeding in the Supreme Court is the time of the initiation of the action.”
Mr. Justice Truscott held that this Plaintiff did not have “sufficient reason for bringing” his lawsuit in the Supreme Court.  He summarized the key reasons behind his conclusion as follows:

[58] I recognize that most plaintiffs with personal injury claims probably feel more comfortable with counsel representing them and more confident that they will obtain a greater amount of damages for their claim with the assistance of counsel than by acting on their own in Small Claims Court.

[59] However, the onus to prove that at the beginning of the claim there is sufficient reason for bringing the proceeding in Supreme Court, as Rule 57(10) states, lies in practice to some great extent on plaintiff’s counsel who is advising the plaintiff on the value of his claim and commencing the action.

[60] Here, I am satisfied that if Dr. Fox’s medical records pre-accident had been obtained and if his opinions and the opinions of Dr. Cameron had been obtained before the writ of summons was issued, with the plaintiff’s credibility at issue with respect to the injuries he was alleging that were not supported by his doctors, with his false statement to ICBC, and with the contrary evidence of his employer, it could and should easily have been determined that the action should be commenced in Small Claims Court and not this Court.

In my continued exercise to get used to the New BC Supreme Court Civil Rules, I am cross referencing all civil procedure cases I write about with the new rules.   The Current Rule 57(10) will become Rule 14-1(10) and it reads identically to the current rule so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants after July 1, 2010.

BC Personal Injury Law Round Up

The volume of ICBC and other personal injury cases released by our Superior Courts over the past 2 days has been higher than usual so I present today’s BC Injury Law Update in a ‘round up‘ fashion.
The first case of note was from the BC Court of Appeal and dealt with limitations under the Local Government Act.  When suing a local government for damages a Plaintiff must comply with s. 286 of the Local Government Act which holds in part that a Plaintiff must give “notice in writing…within 2 months from the date on which the damage was sustained“.  Failure to comply with this section can be a bar to suing.  An exception to this limitation period, however, is contained in s. 286(3) which holds that:

(3)        Failure to give the notice or its insufficiency is not a bar to the maintenance of an action if the court before whom it is tried, or, in case of appeal, the Court of Appeal, believes

(a)        there was a reasonable excuse, and

(b)        the defendant has not been prejudiced in its defence by the failure or insufficiency.

Today the BC Court of Appeal dealt with the issue of what is a ‘reasonable excuse’.

In today’s case, Thauili v. Delta, the Plaintiff sued for injuries sustained while in a fitness class in a community center operated by Delta.  The Plaintiff did not give notice within the 2 months set out in s. 286 of the Local Government Act.  Delta brought a motion to dismiss the Plaintiff’s claim but this motion was dismissed.  Delta appealed to the BC Court of Appeal.  This too was dismissed and in so doing the BC Court of Appeal added clarity to the issues that can be considered when addressing a ‘reasobable excuse’ for not giving notice within the required 2 month period.  The highlights of this discussion were as follows:

[10] In Teller, a five-judge division of this Court considered the construction to be placed on the words “reasonable excuse”, taken in the context of s. 755 of the Municipal Act, R.S.B.C. 1979, c. 290.  Section 755 contained the same notice requirement found in s. 286(1) of the Local Government Act as well as the same saving provision now found in s. 286(3).  Although not identically worded, there is no difference in substance between s. 755 of the Municipal Act and s. 286 of the Local Government Act.

[11] Teller did not propound a test to determine what constitutes “reasonable excuse”.  Rather, Teller instructs that “all matters put forward as constituting either singly or together a reasonable excuse must be considered.” (at 388)  The question is whether it is reasonable that the plaintiff be excused, having regard to all the circumstances.

[12] Teller expressly overruled those trial decisions which had excluded ignorance of the law as a factor to be considered in deciding whether there was reasonable excuse for the failure to give notice. …

[37] There can be no doubt that after its pronouncement, Teller became – and has remained – the governing authority on the construction of “reasonable excuse” found in the saving provision in s. 755 of the Municipal Act.

[42] As to the purpose of the section, Southin J.A. said, at 383:

What then is the purpose of the section?  Clearly one of the purposes of the section is to enable a municipality to investigate a claim fully.  But that purpose is addressed by the second branch of the concluding sentence.  The only other purpose I can think of was to protect municipalities against stale claims in order to enable them to estimate their future liabilities and make budgetary provision for them.  But I know of no authority for that surmise. It really is difficult to make much sense out of the words “reasonable excuse” in the context….

43]         After considering the provenance of the section, the state of the law as revealed by the case authorities in 1957 when the provision was, in effect, newly enacted, and the case authorities, including Horie v. Nelson (1988), 20 B.C.L.R. (2d) 1, [1988] 2 W.W.R. 79 (C.A.), leave to appeal to S.C.C. refused 27 B.C.L.R. (2d) xxxv [Horie], Southin J.A. concluded, at 388:

[T]he maxim “ignorance of the law is no excuse” is not a rule of law determinative of an issue of statutory interpretation in every instance.

In the end, the question is simply what do the words at issue mean in the context.  In my opinion, ignorance of the law is a factor to be taken into account.  So for that matter is knowledge of the law. But all matters put forward as constituting either singly or together a reasonable excuse must be considered.

Those decisions of the court below which exclude ignorance of the law as a factor are, therefore, overruled.

[50] The decision in Teller does not propound a test or establish criteria which must be met before the court may find a reasonable excuse for the failure to give notice; instead, the decision invites a determination informed by the purpose or intent of the notice provision, taking into account all matters put forward as constituting either singly or together a reasonable excuse.  The determination of whether there is reasonable excuse is contextual.  The question is whether it is reasonable that the plaintiff be excused, having regard to all the circumstances.

Ultimately the Court held that ignorance of the law can be a reasonable excuse in certain circumstances under the Local Government Act.

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The second case released today dealt with Pain and Suffering Awards for Soft Tissue Injuries.  In this case (Robinson v. Anderson) the Plaintiff was injured in a 2005 rear end car crash in Tsawwassen, BC.  Liability was admitted leaving the court to deal with the value of the injuries.

Mr. Justice Bernard awarded the Plaintiff $25,000 for her non-pecuniary damages (pain and suffering and loss of enjoyment of life).  In so doing he summarized the Plaintiff’s injuries and their effect on her life as follows:

[18] It is not disputed that the plaintiff sustained soft-tissue injuries to her neck, back, left shoulder and right knee in the collision. Similarly, there is no suggestion that the plaintiff is a dishonest witness who is prevaricating or exaggerating in relation to her pain and the various consequences it has wrought upon her life….

[22] Causation is established where the plaintiff proves that the defendant caused or contributed to the injury: see Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235. In regard to the instant case, I am satisfied that the plaintiff has proved that the defendant caused or contributed to the injury which has manifested itself in ongoing symptoms of pain. The evidence establishes consistency and continuity in the plaintiff’s symptoms (albeit with some amelioration) and an absence of any intervening cause which might otherwise account for the plaintiff’s current pain. A dearth of objective medical findings is not determinative; this is particularly so for soft tissue injuries.

[23] Notwithstanding the aforementioned causal link, the evidence strongly supports finding that: (a) the plaintiff’s injuries are not permanent; (b) if the plaintiff takes reasonable steps to improve her fitness level, then significant, if not full, recovery is very likely; and (c) if the plaintiff does take those reasonable steps, then recovery is attainable within a relatively short time frame. In this regard, the medical opinions of both Dr. Hodgson and Dr. Werry (on May 6, 2009 and April 9, 2009 respectively) suggest that the plaintiff’s present symptoms would decrease substantially through a reduction of her “habitus” (body size and shape), increased physical activity, and working through that which is sometimes described as “the pain of reactivation”.

[24] There are similarities between the plaintiff in the instant case and the plaintiff in Nair v. Mani, [1991] B.C.J. No. 2830. Ms Nair was 49 years of age, overweight, and physically unfit at the time she was injured in a motor vehicle collision. She complained of ongoing back, thigh and knee pain. The plaintiff was not a malingerer, but the court found that she could have accelerated her improvement and lessened the impact of her injuries through exercise and weight loss. In relation to the plaintiff’s fitness the court said:

A defendant must take her victim as she finds her, be it with a thin skull or an out of shape musculature. But when it comes to the reasonable efforts expected of a plaintiff to aid her own recovery after the accident, then those reasonable steps include exercise and muscle toning so that an injury may be shaken off more quickly.

[25] The plaintiff’s weight is not relevant to causation; however, it is germane to the plaintiff’s duty to mitigate her losses. It is trite law that a plaintiff has an ongoing duty to mitigate his or her damages. In the case at bar, as in Nair v. Mani, the plaintiff’s duty to mitigate includes taking reasonable steps to reduce her body habitus and increase her fitness level…

[28] Assessment of just and fair compensation for non-pecuniary losses by reference to other cases is a daunting task. Each case is unique in its plaintiff and set of circumstances; nonetheless, I accept that the cases cited by the parties assist in defining reasonable upper and lower limits for a non-pecuniary damages award in the case at bar. The most salient factors of the case at bar are: (a) the absence of proof of a permanent or long-term injury; (b) the existence of some amelioration of symptoms; and (c) the absence of enduring and incessant debilitating pain. In relation to (c), I accept that the plaintiff has suffered from pain since the accident and that it has had an adverse effect upon many aspects of her life; I simply note that the intensity of the pain has not been to the degree suffered by many other plaintiffs.

[29] Having due regard to all the foregoing and the cases cited by counsel, I find that a fair and just award for the plaintiff’s non-pecuniary losses is $25,000.

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In the third case released today the Court was asked to deal with the issue of fault when the occupant of a parked car opens his door and is struck by a cyclist.

In today’s case (Hagreen v. Su) the Defendant was parked and opened his car door.  As he did so the Plaintiff, who was travelling on his bicycle, drove into the open door and was injured.  The Defendant was found 100% at fault for the Plaintiff’s injuries and in so finding Mr. Justice Brooke summarized and applied the law as follows:

] On the day of the accident, Mr. Hagreen was wearing a helmet as well as reflective stripes on his jacket and boots and was proceeding eastward. Cars were parked on his right side in the 2400 block of East Broadway, and as a matter of course, the plaintiff said that while monitoring the vehicle traffic in the two lanes to his left, he also monitored the driver’s side of the parked cars, in order to alert himself to any potential risk. Mr. Hagreen estimated his speed at 25 to 30 km/hr when he said, without any warning, the driver’s door of Mr. Su’s vehicle opened; that he, Mr. Hagreen, yelled, “Whoa,” but immediately hit the door. He described his upper body hitting the door, and he injured his ankle as well when he hit the ground. Emergency services were called, the first responder being a fire truck before the ambulance arrived, and Mr. Hagreen was transported to hospital. He indicated that he believes that he passed out in hospital, but after being seen by a physician, he was told that he could go home. Mr. Hagreen said that when he tried to put his shirt on, he could not lift his left arm above his head, and this resulted in x-rays being taken of his left arm region. Mr. Hagreen saw his family doctor, Dr. Montgomery, who prescribed Tylenol and Codeine to treat the pain throughout the plaintiff’s upper body, principally in the area of the right collar bone. As a result of continuing complaints of pain in the left collar bone, the plaintiff was referred for physiotherapy which provided some relief for what he was told were soft tissue injuries. Mr Hagreen was off work for seven days, and on his return, he avoided heavy lifting and stretching which resulted in other employees having to do that work.

[4] The defendant, Mr. Su, said that on the day of the accident, it was raining and his child was ill, so he had moved the car to the front of the house to take the child to the doctor. He said that he checked what was behind him, and he saw a cyclist about six or seven houses back, and he felt that he had enough time to get out. He said that he put one leg out and turned his body when the bicycle crashed into the door. In cross-examination, Mr. Su acknowledged giving a statement shortly after the accident, and in that statement, he said that he opened the car door slightly and made shoulder check, then he opened the door further and moved both of his legs out, when he saw the bike approaching “really fast” and the resulting collision occurred. Mr. Su had earlier indicated that he had passed the test in English for a second language, although most of his customers speak Chinese rather than English. Mr. Su was asked in cross-examination whether it was true that he did not see the bicycle until the door was opened and that it was then too late, and he acknowledged that that was true but indicated that it was some few years past. It was put to Mr. Su that he did not see the bicycle until it was too late, to which he said yes, and it was put to him that that was the truth, to which he also said yes.

[5] I am satisfied that the defendant is solely responsible for the collision, having opened his door when it was unsafe to do so. Section 203(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, says:

(1) A person must not open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so.

[6] I find that the defendant, Mr. Su, is wholly responsible for the collision and that the plaintiff took all reasonable steps available to him to avoid the collision, but that the door was not opened by Mr. Su until the plaintiff was so close that he had no opportunity to brake or to take evasive action. I now turn to the question of damages.

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The last ICBC related case released today dealt with the issue of costs.  In this case (Mariano v. Campbell) the Plaintiff sued for injuries as a result of a car crash.  The claim was prosecuted under Rule 66 and the trial took 4 days (which exceeds the 2 days allowed under Rule 66).

When a Plaintiff sues and succeeds in a Rule 66 lawsuit their ‘costs’ are capped at $6,600 “unless the court orders otherwise” as set out in Rule 66(29).

In today’s case the Plaintiff was awarded a total of just over $115,000 after trial.  She brought an application to be permitted an additional $3,200 in costs.  Madam Justice Loo allowed this application.  This case is worth reviewing in full to see some of the factors courts consider when addressing additional costs to the successful party in a Rule 66 Lawsuit.

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.

Contact

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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