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Tag: Duty of Care

Can the Government Be Negligent For Not Shutting Down A “Smoker”?

Written by ERIK MAGRAKEN on . Posted in Uncategorized.

A smoker. In the combat sports world this is slang for an unsanctioned / unregulated fight. Cutting corners. Avoiding regulation. Exposing athletes to the dangers of a potentially neglectful environment.

Last week the BC Court of Appeal released reasons for judgement addressing whether the government could be liable for not shutting down such an alleged event.

The recent case (British Columbia Athletic Commissioner v. Simon Fraser University) involved a tragic outcome at an amateur level martial arts contest.

By way of background the Plaintiff Zhenhuan Lei, who was a PhD student at the University of British Columbia at the time, entered into what was advertised as a light contact martial arts tournament. He was struck in the head multiple times at the tournament. He eventually lost consciousness and was diagnosed with a subdural hematoma (bleeding of the brain) and remains in a persistent vegetative state. The competition was not regulated by the BC Athletic Commission. In the lawsuit one issue was whether the contest needed to be regulated and if so was the government negligent in not intervening.

Lei sued various parties alleging they negligently contributed to his life altering injuries. Simon Fraser University (“SFU”) was one of the parties named. SFU hosted the event on their property. SFU countersued the provincial government arguing the Athletic Commission’s office was aware that the promoter was hosting events that the Commission considered to be kickboxing without proper licensing. SFU argued the government should have shut the event down before it started and it was negligent in not doing so.

The government asked the court to dismiss the claims against them. A request that initially failed. Taking the matter to the BC Court of Appeal the court dismissed SFU’s claim. In doing so the Court left the door open for such a claim to proceed but found SFU’s allegations deficient. In short the Court said such a claim might be able to proceed but the pleadings must set out material facts setting out the government’s knowledge of the event and failure to act.

Below are some of the court’s key reasons:

[1]            On October 14, 2023, Zhenhuan Lei participated in a mixed martial arts tournament called the Western Canadian Martial Arts Championship (the “Tournament”). The Tournament was held at Simon Fraser University (“SFU”). While participating in the Tournament, Mr. Lei was catastrophically injured. As a result, his committee sued the Tournament organizers and SFU for damages for personal injury. SFU brought third party proceedings against the British Columbia Athletic Commissioner (the “Athletic Commissioner”) and the Province of British Columbia (the “Province”).

[2]            The Province applied to strike the third party notice on the basis that it was plain and obvious that the third party notice disclosed no cause of action. In a cross-application, SFU applied to amend its third party notice to, among other things, add Patrick Gilday, the Athletic Commissioner, personally. The applications were heard together in January and March 2025. The judge dismissed the Province’s application to strike and dismissed SFU’s application to add the Athletic Commissioner in his personal capacity. The Province and SFU have both appealed that decision.

[3]            This appeal raises questions about the extent to which a government regulator can be found liable in tort for injuries to individuals taking part in regulated activities. For the reasons that follow, I would allow the Province’s appeal on the basis that the third party notice does not give rise to a cause of action against the Province and should have been struck. SFU’s appeal of the judge’s dismissal of its application to amend its pleadings to add Mr. Gilday personally was withdrawn in the course of oral submissions so it need not be considered by this Court.

…

[46]         Unregulated combat events are generally prohibited under the Code because they involve activities that are broadly understood to be harmful to the public good, not just to the individuals participating in the events. The Code prohibition is indicative of a societal recognition that unregulated fighting as a spectator sport, even with the consent of the participants, violates community values and is contrary to the public interest.

[47]         Further, where there is to be an exemption from the Code prohibition, the statute and regulations advance the public good in another way, to ensure that event organizers need to have a licence and permit, which in turn impose some strict rules on the conduct of events. This benefits the members of the public who attend such events, by enabling them to discern between legal and licensed events and those that are neither.

[48]         Thus the purpose of the ACA is to regulate the industry of combat sports for the benefit of participants, organizers, the general public and the communities in which these events take place. It is not a statute with a singular purpose, and one of its purposes is the advancement of the public interest.

[49]         Generally, a statutory scheme that exists to advance the public good will not provide a sufficient basis to create proximity for the purposes of establishing a private law duty of care. This is true even if a potential claimant is a person who benefits from the proper implementation of the scheme: Frazier at para. 46; Wu at para. 56. Part of the rationale for not recognizing a private law duty of care in these circumstances is that such a duty may interfere with the government actor acting in accordance with its duties to the public: Wu at para. 56; Imperial Tobacco at para. 47.

[50]         SFU relies on Fullowka as an example of a case where a private law duty of care was grounded in a regulatory statute. In Fullowka,nine miners were killed when an explosive detonated at their workplace during a labour dispute. At issue was whether the regulator had a private law duty to keep the miners safe. The legislative scheme in question imposed upon the government regulator a positive duty to act. Specifically, the mining inspector was required to order the immediate cessation of work in a mine that the inspector considers unsafe. In this way, the legislative scheme in Fullowka is different than the ACA. The ACA does not impose any positive duty to act on the Athletic Commissioner in any circumstance.

[51]         In this case, a relationship of proximity between the Athletic Commissioner and individual athletes cannot be grounded in the legislation’s purpose, nor in any statutory duty to act. In my view, it is plain and obvious that the ACA and its regulations do not expressly or by implication create a private relationship of proximity between the Athletic Commissioner and individual athletes giving rise to a prima facie duty of care.

…

[52]         A combination of specific interactions between the parties and the government actor’s statutory powers and duties can give rise to the necessary proximity to ground a private law duty of care. However, the established approach to proximity when considering an allegation that a duty of care is owed by a government regulator requires the court to “look to the interaction between the regulator and the plaintiff to determine whether a sufficiently close and direct relationship exists to impose a prima facie duty of care”: Waterway Houseboats Ltd. v. British Columbia, 2020 BCCA 378 at para. 243 [emphasis added]. See also Tekamar Mortgage Fund Ltd. v. British Columbia, 2023 BCCA 20 at para. 67.

[53]         In this case, there is no allegation that there were any interactions whatsoever between the plaintiff and the Athletic Commissioner. SFU seeks to ground its theory of proximity on interactions between the Organizers and the Athletic Commissioner. A similar theory of liability was advanced in the companion cases of Cooper and Edwards v. Law Society of Upper Canada, 2001 SCC 80,where the plaintiffs allegedly suffered harm at the hands of a party involved in a regulated activity (in Cooper,a mortgage broker; in Edwards,a lawyer) and then alleged negligence on the part of the governmental authority in charge of regulating the activity that gave rise to the plaintiff’s loss (in Cooper, the Registrar of Mortgage Brokers; in Edwards, the Law Society of Upper Canada). The plaintiffs in those cases were unsuccessful in establishing proximity in part because they had no direct relationship with the governmental authority.

[54]         However, there is a body of jurisprudence in which proximity is grounded not in the direct interactions between the plaintiff and a government regulator but rather in the government’s responsibility to prevent the actions of a third party from harming the plaintiff. In such cases, proximity is established by the fact that the government entity “failed to act to protect the life and safety of individuals when the regulator was fixed with knowledge of a clear, present and significant danger posed to a discrete and identifiable segment of the community”: Taylor v. Canada (Attorney General),2012 ONCA 479 at para. 114. See also, Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, 74 OR (2d) 225, 1990 CanLII 6611.

[55]         In Frazier, this Court considered a proximity argument where the alleged duty of care arose “from a combination of the factual relationship between the parties and the regulator’s powers and duties under the legislation”: at para. 53. The Court in Frazier did not rule out a duty of care being imposed on a regulator where the regulator has knowledge of a danger combined with foreseeable harm to a limited group of persons: at para. 66.

[56]         Cases like Taylor, Doe, and Frazier support the proposition that proximity could arguably be established absent direct communication between a government entity and a plaintiff where the regulator knew of a danger to an identifiable population and took no steps to protect those individuals. However, claims that seek to ground proximity on this basis will not survive a strike application if the pleadings do not contain the material facts necessary to establish proximity: Frazier at para. 79.

…

[63]         In this case, it is simply not clear on the record before this Court whether there are material facts available to SFU that would remedy the defects in the amended third party notice. If such facts exist, they have not been pleaded, nor has SFU suggested in argument that it presently knows of additional material facts that would support its claim against the Athletic Commissioner. As such, the appropriate remedy is to strike the third party notice.

[64]         However, unlike Frazier and Imperial Tobacco, in this case there may be additional material facts that support proximity, known to the parties but not to the Court. As a result, while I would strike the third party claim, I would do so without prejudice to SFU’s procedural rights under the Supreme Court Civil Rules,B.C. Reg. 168/2009 [Rules]. Like any defendant, SFU may apply in the Supreme Court of British Columbia for leave to file a new third party notice under R. 3-5(4) of the Rules if it is aware of additional material facts that would support proximity, or if material facts are later discovered. Nothing in this judgment is intended to bar SFU from making such an application.

Over two years have passed since this event took place. Lei remains in a persistent vegetative state. Here is a link to a fundraiser for anyone who wishes to assist his family to contribute to his ongoing caregiving needs.

No Legal Duty of Care Between "Ski Buddies"

Written by admin on . Posted in Uncategorized. 53 Comments on No Legal Duty of Care Between "Ski Buddies"

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing a novel claim; whether ‘ski buddies’ owe each other a legal duty of care.
This week’s case (Kennedy v. Coe) involved a heli-skiing expedition.  The Plaintiff’s husband and the Defendant never met before.  The skiers were to ski in a buddy system for certain runs and the two were paired up for this purpose.
During a run which did not require buddy supervision the Plaintiff’s husband had a fatal accident.  The Defendant did not notice at the time but when he realized the Plaintiff’s husband was absent he alerted the group and a search was undertaken.  The Plaintiff sued for damages arguing that had the Defendant paid better attention the search could have been undertaken sooner and possibly saved her husband’s life.
Madam Justice Fischer dismissed the claim finding the Defendant acted reasonably in the circumstances and even if he did not there was no legal duty of care in these circumstances.  In reaching this conclusions the Court provided the following reasons:
[99]         There is no question that there are many inherent risks in back-country heli-skiing such that all skiers and snowboarders who agree to be buddies should look out for each other so far as is practicable in whatever circumstances they may find themselves. However, translating a moral obligation into a legal one requires as a first step a relationship of proximity that meets the factors established in the jurisprudence I have reviewed. For the reasons I have outlined, I conclude that none of the three factors in Childs support the imposition of a positive duty to act in the circumstances of this case, and the plaintiff has failed to establish aprima facie duty of care. A skier participating in guided, back-country skiing who agrees to be assigned as a ski buddy with another skier on a particular run is not, without more, in a relationship of sufficient proximity to give rise to a duty of care to the other skier when they are not skiing as buddies on other runs. The “more” may require clear instructions from the guides or a clearly defined mutual understanding between ski buddies of their roles and responsibilities to each other in varying terrain, snow conditions and other circumstances, which would be subject to an analysis of the contrary policy considerations at stage two of the Annstest…
[121]     The plaintiff’s claim is dismissed. It is indeed very sad that Mr. Kennedy met a tragic and untimely death, but he did so after a terrible accident while participating in a high-risk sport and responsibility for his death cannot be placed on Mr. Coe.
 

More on Commercial Host Liability and Excessive Alcohol Service

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


As previously discussed, a commercial host can be liable for damages if they serve patrons to the point of intoxication and those patrons then are injured or cause injury to others.  Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, addressing this topic.
In yesterday’s case (Van Hove v. Boiselle) the Plaintiff was injured in a “fatal motor vehicle accident”.  The defendant was allegedly drunk at the time.  Prior to the collision the Defendant was drinking at the Artful Dodger Pub “to the point that the Defendant became heavily intoxicated“.
The Plaintiff sued the driver for damages.  ICBC, in the defence of the claim, brought Third Party proceedings agaisnt the Pub arguing they were partly at fault for the collision due to over-service.  The Pub brought a summary trial arguing the claims against them should be dismissed.  Mr. Justice Smith refused to dismiss the claim finding the case could not be disposed of by summary trial and dismissed the Pub’s application.  In doing so the Court provided the following reasons:

[16] The duty of care that commercial hosts who serve alcohol owe to the general public arises out of the profit making nature of the enterprise and the well-known dangers associated with the product. It is generally foreseeable that intoxicated patrons may, as a direct result of their intoxication, cause injury to others.

[17] The question then becomes one of the standard of care – whether, in the circumstances of a particular case, the commercial host did what was necessary to fulfill the duty. That inquiry includes the question of the whether the actual circumstances and means of injury were foreseeable.

[18] A plaintiff who proves breach of both the duty and the standard of care must then prove causation – whether the breaches actually caused the injury, which would not have occurred “but for” the negligent conduct of the defendant.

[19] L.J.D. in effect submits that Ms. Boiselle’s safe arrival home proves that the standard of care was complied with and/or proves that the chain of causation was broken. In my view, that ignores the highly fact-specific nature of both inquiries. The proposition that L.J.D. puts forward may well be one the properly applies in many, if not most, cases of this kind, but it cannot be treated as a principle of law that applies regardless of any additional facts that may arise in an individual case.

[20] One such fact in this case, on which I do not have sufficient evidence, is the level of Mr. Goll’s intoxication. If L.J.D.’s employees knew or ought to have known that he was as intoxicated as Ms. Boiselle, or nearly so, it may be open to a trial judge to find, on all of the evidence, that allowing her to leave the pub in his company did not meet the standard of care. It may also be open to a trial judge to find that her arrival home with an equally intoxicated person did not amount to a “safe” arrival within the meaning of the authorities and did not break the chain of causation.

[21] I therefore find myself unable to find the facts necessary to decide this matter on summary trial and the third party’s application must be dismissed.

Driver Fully Liable Following Passenger Ejection From Box of Pick Up Truck

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

The BC Court of Appeal released reasons for judgement this week assessing a driver 100% at fault for serious injuries to a passenger who was ejected from the box of his pick-up truck.
In this week’s case (Vedan v. Stevens) the Defendant driver allowed 4 children sit in the box of his pick-up truck.  The 12 year old Plaintiff was one of these children.  In the course of the trip the defendant ”first became aware of a problem when he heard pounding on the cab of his truck…he stopped the truck and determined that one of the children, the plaintiff, was no longer in the truck box. He looked back and could see the plaintiff lying in the middle of the road“.
The Court heard no evidence as to how the Plaintiff came to fall out.   At trial the motorist was found at fault for negligently allowing the Plaintiff to ride in the box.  The Plaintiff was also found 25% at fault with the Court concluding that the Plaintiff “must have at least moved from a seated position” in being ejected.  The Plaintiff appealed this finding arguing there was no evidence to support this conclusion.  The BC Court of Appeal agreed and placed 100% of the blame on the motorist.  In doing so the Court provided the following reasons:

[14] A plaintiff must take reasonable care for his or her own safety. The question when considering reasonable conduct by children is whether the child exercised the care to be expected from a child of like age, intelligence and experience. (Ottosen v. Kasper (1986), 37 C.C.L.T. 270 at 275; McEllistrum v. Etches [1956] S.C.R. 787 at 793).

[15] In this case, we do not know why Inquala stood up or even if he stood up voluntarily. As already noted, no one gave evidence about how Inquala left the back of the truck – whether he got up himself and fell out, whether he was bounced out, whether he was pushed out, whether a wasp was buzzing around him, or whether the other children were harassing him and he had to move. There was no evidence of the circumstances that caused him to get up from his seated position and, therefore, there is no basis for a finding that Inquala did not take reasonable care for his safety. Such a finding is based on speculation.

[16] In my respectful view, there was no foundation in the evidence upon which the trial judge could reasonably infer that Inquala was contributorily negligent. This conclusion is a palpable and overriding error, with which we may interfere.

[17] I would allow the appeal, set aside the part of the order which found Inquala contributorily negligent, and assess liability to Mr. Stevens at 100%.

Lawsuit Against Delta Police Following Bar Fight Dismissed

Written by admin on . Posted in Occupier's liability claims, Uncategorized.


Lengthy reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, disposing of a personal injury lawsuit launched by a former NHL enforcer against the Delta Police and others following a 2006 assault which occurred at the Cheers Pub in Delta, BC.
In this week’s case (Burnett v. Moir) the Plaintiff suffered a moderately severe traumatic brain injury after being struck on the head with a bar stool.  The injury ended the Plaintiff’s professional hockey career.
There was video surveillance which showed “an assailant striking the plaintiff on the head with a bar stool taken from the premises afer he apparently stumbled and fell to the ground as he and the others were being ejected“.  The assailant was never identified.
The Plaintiff sued the owners and managers of the Cheers Pub, the local police, and the local government for compensation for his personal injuries.  Prior to trial he settled his case with the Pub.  The Plaintiff alleged that the local police and the local government were liable because they “failed to properly identify Cheers as a nuisance to the public, a trap for the unwary, and to take pre-emptive steps to abate the danger it represented to potential patrons”.
The Plaintiff led evidence to support his allegations including evidence that from 1998-2007 “there were a total of 2,410 police service calls to Cheers during that period, 231 of which were for assaults, 9 of which were for uttering threats, 10 of which were obstructing a peace officer, 138 for suspicious person/vehicle occurrences, 200 of which were for creating a disturbance, 217 for “unspecified assistance” and 1,605 of which were for “other”“.
Despite this evidence the lawsuit was dismissed with the Court finding that the Police and Local Government did not owe the Plaintiff a duty of care in these circumstances. Mr. Justice Cullen summarized his analysis as follows :

[411] The presence or absence of a close causal connection between the negligence alleged and the harm caused is a factor in determining proximity.  In Odhavji Estate v. Woodhouse, supra,Iacobucci J. held as follows in the context of a proximity analysis at para. 57:

Although a close causal connection is not a condition precedent of liability, it strengthens the nexus between the parties.

[412] Where, as here, the causal connection, insofar as the failure to warn is concerned, is remote and speculative rather than close, it cannot be said that the nexus between the parties is strong or compelling.

[413] For those reasons, while finding some limited evidence of a connection between the Delta Defendants and prospective Cheers patrons arising from the police corporate knowledge that a person entering Cheers was likely to be exposed to an environment involving some violent or turbulent circumstances, I am not satisfied the evidence reaches the level of establishing a close and direct relationship featuring the indicia of proximity identified by Chief Justice McLachlin in Hill v. Hamilton Wentworth, supra, or manifested in other decisions such as Jane Doe, Mooney, orSchacht.

[414] I thus conclude the relationship at issue does not sustain sufficient proximity to found a duty of care.  The plaintiff was but one of a large indeterminate pool of potential patrons of Cheers, rather than an identifiable potential victim of a specific threat.

Lawsuits Against Insurance Brokers: When Policy Exclusions Are Not Discussed

Written by admin on . Posted in Uncategorized. 73 Comments on Lawsuits Against Insurance Brokers: When Policy Exclusions Are Not Discussed


Important reasons for judgement were released last month by the BC Court of Appeal making it clear that insurance brokers can be sued for professional negligence if they fail to properly advise clients of the limits of their insurance policies.
In last month’s case (Beck v. Johnston, Maier Insurance Agencies Ltd.) the Plaintiff’s home was intentionally burned down by her husband in a tragic murder/suicide.  The home was insured however the policy had an exclusion for losses that occurred as a result of “intentional acts by named insureds“.
The Plaintiff’s estate sued the insurance broker claiming they were negligent in failing to discuss this exclusion when the policy was renewed (which last occurred after the Plaintiff split up with her husband).  The claim succeeded at trial.  The insurance brokers appealed arguing the claim should be dismissed as this damage was not forseeable.  The BC Court of Appeal dismissed the appeal and in doing so provided the following reasons which should ring as a caution to insurance brokers when selling policies of insurance:
[17] Members of the public purchase insurance to protect themselves and their property from unforeseen events. Policies of homeowner’s insurance, rented dwelling insurance and tenant’s insurance are invariably written by insurers, who describe the coverage that they are prepared to provide and the exceptions to that coverage in the policies they write. They then quote the premium that they require to provide the coverage….
[21] Both Mr. Sache, an insurance broker retained by the appellant and Mr. Pat Anderson, a licensed insurance broker retained by the respondent agreed that it is standard practice for brokers to explain the intentional act exclusion in a homeowner’s policy to a customer when insurance is first placed for that customer….
[25] While Ms. Beck may not have had any knowledge or belief that Mr. Beck intended to harm the home at the time her insurance coverage was renewed in July of 2007, such knowledge was not the issue. The issue was whether her insurance broker ought to have discussed her insurance needs with her when it was clear that she and her husband had separated….

[27] The summary trial judge was bound to accept, as she did, the uncontradicted evidence before her of the standard of care to be expected on an insurance broker. In areas where the courts lack expertise with respect to a particular field of endeavour, it is necessary to rely on expert evidence of standard practice of those in that field of endeavour in order to determine whether the requisite duty of care has been met. In ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at para. 39 Sopinka J. referred with approval to the following statement by Professor Fleming in The Law of Torts(7th ed. 1987) at p. 109:

Conformity with general practice, on the other hand, usually dispels a charge of negligence. It tends to show what others in the same “business” considered sufficient, that the defendant could not have learnt how to avoid the accident by the example of others, that most probably no other practical precautions could have been taken, and that the impact of an adverse judgment (especially in cases involving industry or a profession) will be industry-wide and thus assume the function of a “test case”. Finally, it underlines the need for caution against passing too cavalierly upon the conduct and decision of experts.

[28] It was unnecessary for the respondent to prove that Ms. Beck foresaw that Mr. Beck Sr. represented a “real” or an actual risk of intentionally damaging the home. On the evidence, Ms. Beck’s change in circumstances presented a foreseeable new risk to be considered vis a vis her insurance needs…

[33] The summary trial judge was clearly of the view that, when a renewal of insurance coverage is required, the broker similarly has a duty to provide relevant information about the types of coverage available to the client, to meet any change in needs that the client may have as a result of any changes in his or her circumstances of which the broker is or should be aware. There was ample evidence upon which the trial judge could make that finding, and no basis upon which this Court can interfere with it.

BC Government Shielded From Liability in "Shaken Baby" Lawsuit

Written by admin on . Posted in BCSC Civil Rule 9, Shaken Baby Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, discussing when a government authority can be pursued for damages for the negligent excercise of their powers.
In last week’s case (Sivertson (Guardian ad litem of) v. Dutrisac) the infant Plaintiff was brain injured allegedly “while in the care of…a licensed daycare ‘Kare Bare Child Care’ “.  The Plaintiff sued various Defendants including the Capital Health Region “CHR” who were responsible for licensing the Daycare in question.
The CHR brought an application to dismiss the lawsuit against them arguing that even if they inadequately exercised their duties the lawsuit could not succeed because the CHR did not owe the Plaintiff a ‘private law duty of care‘.  Madam Justice Boyd agreed and dismissed the lawsuit against the CHR.  In doing so the Court provided the following reasons:
[51] The overall statutory scheme governing the licensing of daycare facilities provides an efficient framework to ensure the operation of community care facilities “in a manner that will maintain the spirit, dignity and individuality of the person being cared for “(s. 4(1)(a)(i)). …

[57] As in the Cooper decision, the CHR and its inspectors must balance a myriad of competing interests when dealing with the licensing and inspection of daycares, including the daycare owner’s interest in the continued operation of her business and the parents’ and the public’s interest in the protection of children in the care of the daycare owner.

[58] In my view, this balancing of interests is inconsistent with the imposition of a private duty of care.  Thus, on a review of all of the authorities, and a consideration of the legislation in issue, I reject the notion that any private law duty of care was owed by the CHR (and its employees) to the infant plaintiff and his family.

[59] If however I am in error, and it is found that such a private duty of law does arise in the circumstances of this case, then I nevertheless find that the application of the second stage of theAnns test yields no different result.  As the Ontario Court of Appeal held in Williams v. Canada (Attorney General), 2009 ONCA 378, at para. 17, at the second stage :

…the court considers whether there are “residual policy considerations” that militate against recognizing a novel duty of care.  …These are policy considerations that “are not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally”.

[60] In my view, any private law duty of care which may arise in this case would be negated for overriding policy reasons as in the Cooper case.  This is because (i) the licensing officers were exercising both policy and quasi-judicial functions such that any decision required the balancing of both public and private interests.  The Director must act fairly or judicially in removing an operator’s license and this is potentially inconsistent with a duty of care to children and families; (ii) the Director must make difficult discretionary decisions in an area of public policy.  His decisions are made within the limits of the powers conferred on him in the public interest; and (iii) if there was a private duty of care owed by the Director to the children and parents, it would effectively create an insurance scheme for all those children attending licensed daycares within the Province, at great costs to the taxpaying public.  As the Court held in Edwards, there is no indication here that the Legislature intended that result.  Indeed the statutory immunity from liability provision suggests the contrary.

Driver Liable to Passenger Ejected from Box of Truck

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

(Update November 2, 2011 – Note the below case was modified by the BC Court of Appeal with a finding that the motorist should be 100% at fault due to the absence of any evidence of contributory negligence)
Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, discussing the issue of fault when a passenger riding in the box of a truck is ejected and injured.
In today’s case (Vedan v. Stevens) the Defendant driver allowed 4 children sit in the box of his pick-up truck.  The 12 year old Plaintiff was one of these children.  In the course of the trip the defendant “first became aware of a problem when he heard pounding on the cab of his truck…he stopped the truck and determined that one of the children, the plaintiff, was no longer in the truck box. He looked back and could see the plaintiff lying in the middle of the road“.
Madam Justice Beames determined that the Plaintiff rose from a seated position in the course of the trip and then was ejected.  The court held that both the Plaintiff and the Defendant were at fault with the Defendant shouldering most of the blame.  Madam Justice Beames provided the following reasons:
[31] There is no question that the defendant was responsible for allowing the plaintiff and the other children to ride in the box of his truck. He did not have to allow the plaintiff to get into the box of the truck, and he had enough seats and seat belts, I find, inside the truck to accommodate all of his passengers, including the plaintiff…

[34] I find the defendant owed a duty of care to the plaintiff and that he breached that duty and failed to exercise a standard of care of a reasonable person in the same circumstances. That negligence was clearly causally connected to what happened to the plaintiff. The plaintiff would not have been injured had the defendant not allowed him to ride unrestrained in the box of his truck. It was foreseeable, in my view, that what occurred would or could occur.

[35] I turn now to the issue of contributory negligence on the part of the plaintiff…

[44] In the circumstances of this case, I would not find that the plaintiff was contributorily negligent simply by riding in the back, or the box, of the truck. He was allowed to be there by an elder from the Sun Dance ceremony which featured community, trust and respect for elders. However, I do find that the plaintiff was, by getting up from a seated position on the floor of the box in a moving truck, negligent in fact.

[45] Consequently, the defendant has proved contributory negligence…

[53] In all of the circumstances of this case, I apportion fault between them as follows: the plaintiff, 25 percent; the defendant, 75 percent.

BC Supreme Court Finds Liability Can Follow Unreasonably Low Certification Standards

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(UPDATE October 27, 2011:  An appeal of the below decision was dismissed by the BC Court of Appeal on October 27, 2011. Despite upholding the trial result the BC Court of Appeal provided comments on the Duty of Care of CSA at paragraphs 58-61 differing from the below analysis.  The Court of Appeal concluded that “For policy reasons, CSA does not have a duty of care in negligence to hockey players who are injured while wearing certified hockey helmets“)

Earlier this week the BC Supreme Court, Victoria Registry, released reasons for judgement dismissing a lawsuit for compensation as a result of a traumatic brain injury sustained during a hockey game (More v. Bauer Nike Hockey Inc).
The incident occurred in 2004 when the Plaintiff was 17 years old.  He was playing an organized game of hockey.  He was wearing a helmet which was certified by the Canadian Standards Association (the “CSA”) and met all CSA standards.   During the game the Plaintiff fell into the boards and suffered a subdural hematoma.  This was apparently the only reported incident of a helmeted player sustaining a subdural hematoma while playing organized hockey in Canadian history.
The effects of the injury caused severe and profound disability in the Plaintiff.  The Plaintiff sued various Defendants including the manufacturer of the helmet and the CSA.  The Plaintiff alleged that the helmet was negligently manufactured and that the CSA was negligent in failing to adopt proper standards for helmet certification.  The Plaintiff’s claims were ultimately dismissed with the Court finding that the helmet was not defectively manufactured and that the standards set by the CSA were appropriate.
This case has received considerable press in Canada and abroad even gaining mention in the New York Times sports blog.  What interests me most about this case is not the ultimate result rather it was the Court’s discussion of the potential liability of institutions which set inadequate safety standards.
In the course of the lawsuit the CSA argued that even if their standards were unreasonably low they could not be sued because they did not owe the Plaintiff a duty of care.  Mr. Justice Macaulay disagreed and held that institutions that set certification standards for safety equipment can be sued in negligence if they set their standards too low.  Specifically the court held as follows:

212] I am satisfied that it was reasonably foreseeable that a hockey player and wearer of a mandatory certified hockey helmet might suffer harm if the CSA set the certification standard unreasonably low in the circumstances. On the question of proximity, I extrapolate from Cooper at paras. 32–34. Is the player, who must obtain and wear a certified helmet in order to participate in organized hockey, so closely and directly affected by the CSA decision respecting the adequacy of the certification standard that the latter ought reasonably to have the player’s legitimate interest in safety in mind? In my respectful view, the answer must be yes.

[213] By legislative definition, any hockey helmet that is not certified is a hazardous product and cannot be sold in Canada. No matter how well designed the helmet may, in fact, be, no manufacturer can offer it for sale unless it is certified. The consumer hockey player has no choice and buys, or otherwise obtains, the helmet for the purpose of self-protection in a game that has inherent dangers. Nonetheless, there is some reliance by the consumer on the fact of certification and an expectation that the risk of at least some injuries is reasonably reduced. Otherwise, there would be no need for any helmet at all.

[214] With the greatest of deference to the possibility that Hughes stands for a different outcome, I am satisfied that there is sufficient proximity in the present case for a prima facie duty of care.

In short, this decision means that if an institution sets certification standards for products to be sold in British Columbia that institution may be liable if their standards are set at an unreasonably low level.

More on the Standard of Care When Driving Near Children

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 66 Comments on More on the Standard of Care When Driving Near Children


As I’ve previously written, children can be unpredictable.  Accordingly drivers need to use extra care when passing by children otherwise they can be found liable for an accident in circumstances where their actions may not otherwise be considered careless.  In legalese, the presence of children raises the ‘standard of care‘.  Reasons for judgement were released today discussing this area of law in an unsuccessful personal injury lawsuit.
In today’s case (Chen v. Beltran) the Plaintiff was involved in an unfortunate accident in New Westminster, BC in 2006.  The 11 year old Plaintiff was lying on a skateboard travelling down a steep hill.  The Plaintiff lost control and entered an intersection against a red light.  He was struck by an oncoming motorist and was injured.
The Plaintiff’s lawyer agreed that the Plaintiff was at fault for this accident but argued that the driver was partially at fault as well.  Mr. Justice Greyell disagreed and found the Plaintiff was fully at fault for the incident.  Before dismissing the case, however, Mr. Justice Greyell summarized the standard of care imposed on motorists when driving by children.  The Court stated as follows:

[25] The law to be applied in determining the duty of a driver when there are children in or about the area was set out by Hood J. in Bourne (Guardian ad litem of) v. Anderson, [1997] B.C.J. No. 915, 27 M.V.R. (3d) 63 (S.C.) at paras. 55 and 56:

55 In my opinion, once the presence of a child or children on a road is known, or should have been known, to the driver of a vehicle proceeding through a residential area where children live, that driver must take special precautions for the safety of the child or children seen, and any other child or children yet unseen whose possible appearance or entrance onto the road is reasonably foreseeable. The precautions include keeping a sharp look out, perhaps sounding the horn, but more importantly, immediately reducing the speed of the vehicle so as to be able to take evasive actions if required.

…

The above standard of care has been followed in numerous subsequent decisions:  see for example, Hixon (Guardian ad litem of) v. Roberts, 2004 BCCA 335; Mitchell (Guardian ad litem of) v. James, 2007 BCSC 878; Johnson v. Eyre, 2009 BCSC 1711.

[27] The general principle underlying any determination of fault or blameworthiness rests on a finding whether the defendant could reasonably foresee that his or her conduct would cause or contribute to the accident.  When it is known there are young children in the area drivers must use extra care and attention as children do not always behave as adults would in similar circumstances.  In Chohan v. Wayenberg (1990), 67 D.L.R. (4th) 318 (B.C.C.A.), the Court of Appeal stated at 319:

… There is, of course, a need for constant vigilance for children on the roads, especially in suburban areas, for the very reason that they can not be expected always to act with the same care that is expected of adults.

While this greater standard of care ultimately did not assist the Plaintiff in succeeding in his lawsuit, this case demonstrates that our Courts will place greater scrutiny on the actions of a driver when they are driving by an area where there are children.

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