Reasons for judgment were published this week by the BC Supreme Court concluding that a trial court’s findings of liability are binding in subsequent Health Care Costs recovery prosecutions undertaken by the Province.
In the recent case (British Columbia v. Tekavec) the Defendant owned an apartment building. A guest fell from the balcony and sued for damages. The Defendant was found liable and ordered to pay damages. Prior to trial the Province initiated collateral proceedings under the HCCRA. They did not participate in the tort trial. After trial they continue the HCCRA prosecution against the Defendant. The Defendant brought an application to strike the Claim. Mr. Justice Bracken held that the action can continue and further that Defendant cannot re litigate the issue of liability as it was fully canvassed in the tort trial. In reaching this conclusion the Court provided the following reasons:
 While the Province could have joined in the original action to fully advance its claim, it chose not to. Perhaps that decision resulted from the conclusion in Gosselin that the Act did not apply to the injuries Mr. Jack suffered before the Act came into force so the Province concluded it could not take an active role in the original action and had to proceed with an independent action.
 Whatever the reason, it seems clear that the court in the original action thoroughly canvassed the issues the defendant has raised in its Response to Civil Claim filed in this action. I accept that the Province was sufficiently privy to the original action to engage the doctrine of issue estoppel. The Province had a right to participate with the plaintiff and had a participatory interest in the outcome. If the court had determined that the defendant was not negligent that outcome would have bound the Province for the purposes of this proceeding.
 The defendant referred to MacIver v. The Queen, 2005 TCC 250, as support for its submission; however, that case is distinguishable on its facts and was not a case where conclusions were reached after a full trial on the very issues the defendant wishes to raise again in this action. It is not appropriate to allow the same issues to be canvassed again in this action.
 The issues of liability and contributory negligence were fully dealt with and the defendant has exhausted any rights of appeal. I am satisfied that the defendant is prevented from raising any defence related to his liability or the plaintiff’s contributory negligence in this action.
When advancing a tort claim with ICBC it is important to remember that they have no duty to advise you of your limitation period. If the clock runs out before filing your lawsuit there is typically little a court can do other than offer words of criticism at ICBC for engaging in this practice. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating such a result.
In last week’s case (Tolentino v. Gill) the Plaintiff was injured in a 2004 collision. He dealt with ICBC directly with the Court making the following findings about their interactions:
22] …I find that on July 13, 2005, Mr. Tolentino told Ms. Brunac-White that he had not talked to anyone about his claim (including a lawyer) and Ms. Brunac-White advised Mr. Tolentino that it was not necessary to have a lawyer at that time. Ms. Brunac-White intended to discuss the matter with Mr. Tolentino after she obtained updated medical information. Mr. Tolentino was to contact her when he returned from a trip but he did not do so before the limitation period expired on January 10, 2006. Ms. Brunac-White did not attempt to contact Mr. Tolentino either, and she closed the file on February 2, 2006, after conducting a search for a writ of summons.
The Plaintiff ultimately started a lawsuit and ICBC applied to have it dismissed as being filed beyond the limitation period. The court sided with ICBC and dismissed the lawsuit but prior to doing so Madam Justice Fisher provided the following criticism:
 It is indeed unfortunate that Ms. Brunac-White made no effort to contact Mr. Tolentino before the limitation period expired. It would have been a simple task that could have served the interests of both parties. However, as the plaintiff concedes, ICBC as the insurer has no duty to advise him about the limitation period. Silence or inaction may be considered a representation only where the representor owes a legal duty to the representee to disclose something or take certain steps: Ryan v Moore, 2005 SCC 38…
 I wish to add, however, that I was disturbed by the adjuster’s approach in this case. She sought to rely on an “agreement” with the plaintiff about the next steps but when he did not contact her after several months, she ought to have considered that there could have been a misunderstanding. While she may not have been successful in making contact with the plaintiff given his history, her failure to make any attempt to contact him before the limitation period expired was in my view unreasonable. She had a telephone number and could have left him a message. Although she did not have a legal duty to do so, given her knowledge of the claim, this would have been a more reasonable and fair approach.
 The plaintiff’s action is dismissed…
Last week the BC Court of Appeal provided reasons for judgement clarifying in what circumstances a Plaintiff can have separate proceedings to address the issue of increased premiums following a collision versus a tort claim for other damages. In short the Court held that a separate claim against ICBC for breach of contract or breach of statutory duty (to revisit their division of liability for insurance premium purposes) will not be a barrier to a separate tort claim for damages against the at fault motorist. However, if a claim is filed against the tortfeasor for damages for increased premiums then a subsequent lawsuit for other damages would be estopped.
In last week’s case (Singh v. Mchatten) the Plaintiff sued another motorist for damages as a result of a motor vehicle collision. The Plaintiff succeeded and was awarded damages for his deductible to be returned with a finding the Defendant was liable for the collision. The Plaintiff then commenced a Supreme Court action for damages for personal injuries sustained in this crash. The second action was dismissed by the Court of Appeal who found the action was estopped by virtue of the prior litigation. In doing so the Court of Appeal provided the following reasons:
 The other flaw in the judge’s reasoning lies in her equating the respondent’s motivation in bringing the first action with a cause of action. The causes of action in the two proceedings are undeniably the same: damages for negligence. In order to achieve the respondent’s goal of reversing ICBC’s fault determination and to recover the deductible, it was necessary for the respondent to sue the driver and owner/lessor and prove all the elements of negligence: duty of care, standard of care, causation and loss. He would have to repeat the same process in the Supreme Court action in order to recover personal injury damages.
 The respondent could have sued ICBC in Small Claims Court without attracting an estoppel defence in the later proceeding. Those were the circumstances of Innes v. Bui, 2010 BCCA 322.
 In that case, Ms. Bui was unhappy with ICBC’s assignment of fault to her in a two-vehicle accident. She sued ICBC in Small Claims to reverse the determination but decided to substitute Ms. Innes as the defendant. The judge dismissed the action on the ground that he could not decide whose version of the accident to accept and since Ms. Bui bore the onus of proof on the balance of probabilities, she lost. Then Ms. Innes sued Ms. Bui for damages in the Supreme Court and met a plea of res judicata which was upheld. For this Court, Low J.A. reversed the decision and held that no liability determination was made in the first instance and so the doctrine did not apply. He went on to observe:
 In the Small Claims action, Ms. Innes was the wrong defendant. She certainly was not a necessary defendant. That action was not based in tort. It was either in contract or under statute, or both, and the only issue raised by the pleadings was whether ICBC acted properly or reasonably in administratively assigning responsibility for the collision to Ms. Bui alone. That was an issue only between Ms. Bui and ICBC. Ms. Innes apparently had no say about being substituted as the defendant in place of ICBC. She had no control over the conduct of the action and she had no right of appeal independent of ICBC. To say that the judgment given in the Small Claims action should have the effect of denying Ms. Innes the opportunity to present her own case stretches the equitable defence of res judicata to limits which, in the interests of justice, the defence should not be taken. In that action, Ms. Innes did not have her day in court in any real sense.
 On this basis I question whether it is correct to say that the parties, in reality, were the same in the two actions or that any consideration of privy arises.
 In any event, if all the criteria for res judicata were met, I would think that this is a special circumstances case in which the doctrine should not be applied.
 In the present case, the judge purported to follow Innes v. Bui. She concluded her reasons in this way:
 The facts of this case are similar to the facts in Innes v. Bui and Evans v. Campbell [(1993), 77 B.C.L.R. (2d) 211 (C.A.)]. Whether issue estoppel or cause of action estoppel is applicable, at the end of the day the court must determine whether it should exercise its discretion to bar the action by reason of res judicata or whether there are exceptional or special circumstances that should apply.
 I find that all of the criteria necessary for cause of action estoppel or issue estoppel have not been met. If I am wrong, there are special circumstances not to apply res judicata for to do so would cause a real injustice to the plaintiff. The plaintiff has not had his day in court on his claim for damages for personal injuries arising out of the accident. It may be that the issue of liability is res judicata, but the application was not argued on that basis. Rather, it is argued that the plaintiff should have brought his claim for personal injuries at the same time he brought his action in Small Claims Court. In certain circumstances that may be correct but only if the claim can be brought within the monetary limit of Small Claims Court. However, the fact remains that the plaintiff’s claim for damages for personal injuries has never been before a court and considered. To dismiss the plaintiff’s claim at this stage of the litigation would be denying the plaintiff an opportunity to be heard on that issue and unjust.
 With respect, Innes v. Bui, is not similar to the case at bar but is its mirror opposite. The Small Claims action in this case is not framed in terms of contract or breach of statutory duty against ICBC but in negligence against alleged tortfeasors…
 For these reasons, I would allow the appeal, set aside the order below, and dismiss the action.
You can click here to read my comments on the BC Court of Appeal’s previous decision of Innes v. Bui.
Limitation periods are important. If your case is not settled before your limitation period expires a formal lawsuit needs to be filed within time otherwise the right to pursue the claim effectively disappears.
When dealing with ICBC directly it is important not to rely on them for assistance in bringing limitation periods to your attention. They are under no duty to tell you when your limitation is coming up. ICBC is allowed to ‘run the clock’. Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, demonstrating this reality.
In today’s case (Field v. Harvey) the Plaintiff was injured in a 2008 collision. In her dealings with ICBC some discussions were had regarding settlement with ICBC writing a ‘without prejudice‘ letter referencing bills for massage therapy indicating that “we can discuss this at the time of settlement“.
The Plaintiff never did settle her claim. She commenced a formal lawsuit but did so after her limitation period expired. The Plaintiff argued that ICBC should be estopped from relying on the limitation period because of ICBC’s letter discussing settlement. Mr. Justice Bracken disagreed and dismissed the lawsuit. In doing so the Court provided the following words of caution:
 Finally, the defendants argue that ICBC does not have any duty, statutory or otherwise, to inform potential claimants of the specific date on which the right to commence an action upon a claim will expire…
 It is clear from the case law that ICBC was under no obligation to warn the plaintiff that the limitation period had commenced, was not postponed, and would soon expire….
 The plaintiff relies solely on the December 15, 2008, letter for her argument that the defence of estoppel can be applied as a defence to the provisions of the Limitation Act. That letter explicitly states: “[n]othing herein contained is or shall be construed as either an admission of liability on the part of the insured or a waiver or extension of any applicable limitation period.”
 A reasonable interpretation of this letter in no way evidences a representation or promise, by convention or otherwise, to waive or extend the applicable limitation period. In my opinion, it does quite the opposite by warning the plaintiff that, although all claims are negotiated toward the goal of settlement, time is still running.
 Limitation periods exist, in part, to encourage plaintiffs to bring their actions in a timely manner. The plaintiff has failed to bring her action in a timely manner and has not satisfied this court that there exists a lawful reason for her failure to comply with the provisions of the Limitation Act.
 The plaintiff’s cause of action is therefore dismissed, pursuant to s. 9 of the Limitation Act, as having been commenced after the expiry of the applicable limitation period.
(UPDATE June 28, 2012 – the case discussed in the below post was reversed by the BC Court of Appeal in reasons for judgement released today; you can click here to read the Court of Appeal’s reasons)
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this topic.
In last week’s case (Singh v. McHatten) the Plaintiff was involved in a 2006 motor vehicle collision. Following the collision ICBC found the Plaintiff at fault. Displeased with this decision, the Plaintiff sued the Defendants in small claims court asking the Court to decide the issue of liability. The Plaintiff sought damages for his deductible and increased insurance premiums. His trial succeeded with the Court finding the Defendants at fault and awarding damages to the Plaintiff.
Before the limitation period expired the Plaintiff sued for damages stemming from his personal injuries from the same collision. He did so in the BC Supreme Court. ICBC brought a motion to dismiss the lawsuit arguing that the Plaintiff was “estopped” from suing again due to the small claims court trial. Madam Justice Loo disagreed and allowed the personal injury lawsuit to proceed. In dismissing ICBC’s motion the Court provided the following reasons:
 In my view the cause of action in the prior Small Claims action is distinct from the cause of action in this Court. While the Notice of Claim filed by the plaintiff in Small Claims Court claimed “vehicle damage & repair costs”, it is clear on a review of the transcript of the proceedings that the plaintiff’s vehicle had been repaired by ICBC; he was not seeking damages for repair costs because ICBC had paid the repair costs. The primary issue was ICBC’s determination that the plaintiff was wholly at fault for the accident and the plaintiff’s increased insurance premiums. Counsel for the plaintiff made it clear that the claim for personal injuries and damages would be dealt with later, and that was understood by counsel for ICBC. On that basis neither the third nor the fourth criteria for cause of action estoppel, or the first criteria for issue estoppel have been met.
 The facts of this case are similar to the facts in Innes v. Bui and Evans v. Campbell. Whether issue estoppel or cause of action estoppel is applicable, at the end of the day the court must determine whether it should exercise its discretion to bar the action by reason of res judicata or whether there are exceptional or special circumstances that should apply.
 I find that all of the criteria necessary for cause of action estoppel or issue estoppel have not been met. If I am wrong, there are special circumstances not to apply res judicata for to do so would cause a real injustice to the plaintiff. The plaintiff has not had his day in court on his claim for damages for personal injuries arising out of the accident. It may be that the issue of liability isres judicata, but the application was not argued on that basis. Rather, it is argued that the plaintiff should have brought his claim for personal injuries at the same time he brought his action in Small Claims Court. In certain circumstances that may be correct but only if the claim can be brought within the monetary limit of Small Claims Court. However, the fact remains that the plaintiff’s claim for damages for personal injuries has never been before a court and considered. To dismiss the plaintiff’s claim at this stage of the litigation would be denying the plaintiff an opportunity to be heard on that issue and unjust.
 The application is dismissed with costs.
As a point of interest, the recent BC Court of Appeal case of Innes v. Bui is worth reviewing for the Court’s comments on appropriate parties to sue when the only dispute following a collision is ICBC’s determination of fault and the premium consequences that flow from this.
When collisions occur in BC typically ICBC is the insurer for all involved. After the collision ICBC internally decides who to blame and apportions the parties respective degree of fault. Depending on the decision some of the motorists insurance premiums may rise. If this happens to you and you disagree with ICBC who do you sue?
The conventional route is to sue the motorist alleged to be at fault for the crash. The theory being that if another motorist is found at fault in a negligence claim they will be ordered to pay the faultless party’s accident related expenses including increased insurance premiums. When an injury lawsuit is started its easy to add this additional damage to the claim. In practice ICBC will honour a court decision respecting fault and overturn their internal decision if its inconsistent with the Court finding.
What if you are not making an injury claim and your only dispute is with ICBC and their apportionment of fault? Is the offending motorist the only party you can sue to address ICBC’s decision? The answer, apparently, is no and this was recently discussed by the BC Court of Appeal in reasons for judgement released earlier this year.
In the recent case of Innes v. Bui the Plaintiff sued the Defendant for injuries. The case made it’s way to the BC Court of Appeal. The appeal did not focus on increased insurance fees rather it concentrated on the legal doctrine of ‘res judicata’ (You can click here to read my previous article discussing this issue and giving more background on the case). Despite the alternate focus of the case, Mr. Justice Low provided the following commentary about the proper parties to a lawsuit over increased ICBC insurance premiums:
 In her hand-written Notice of Claim, Ms. Bui, with the assistance of a translator, described the collision from her point of view and added, in understandably inexact English, “later ICBC had decided that my fault but they didn’t let me know until I renew my insurance, I think ICBC was unfair when they state that I at fault and I want to [contest against?] this decision”. The claim was stated to be for “Extra money I had to pay for ICBC” and “return my 40% discount from my insurance – $1095”. Ms. Bui later amended the Notice and pleaded that “… ICBC put the fault on me, as the result my insurance was up. I wish to recover the money which ICBC made me pay”. In completing the portion of the form which requires quantification of the claim, she wrote “Money I paid for ICBC – $1095”….
 The reasons of the Small Claims judge fell well short of deciding the negligence question. That issue remains alive in the Supreme Court action. The res judicata arguments of both parties fail.
 The above is enough to allow this appeal. However, I would like to add a few more observations.
 In the Small Claims action, Ms. Innes was the wrong defendant. She certainly was not a necessary defendant. That action was not based in tort. It was either in contract or under statute, or both, and the only issue raised by the pleadings was whether ICBC acted properly or reasonably in administratively assigning responsibility for the collision to Ms. Bui alone. That was an issue only between Ms. Bui and ICBC.
Res Judicata is a legal principle which prevents a claimant from having their legal issues decided twice. Once you’ve had your day in Court on an issue you are stuck with the result (subject to an appeal). You can’t sue again and have a second trial hoping for a different result. Reasons for judgement were released today by the BC Court of Appeal discussing the scope of this principle.
In today’s case (Innes v. Bui) the parties were involved in a a two vehicle intersection collision in 2001. They approached each other from opposite directions. The Plaintiff (Innes) attempted to go through the intersection and the Defendant (Bui) commenced a left turn. The vehicles then collided.
ICBC, as is often the case in British Columbia, was the insurer for both parties. ICBC decided that the Ms. Bui was entirely at fault. This raised her insurance premiums. Ms. Bui sued ICBC in small claims court arguing that she was not at fault and should have her increased premiums returned. Eventually Ms. Innes was substituted for ICBC. Ms. Innes was defended by an ICBC appointed lawyer. ICBC argued that Ms. Bui was at fault.
At trial the Judge found that both Ms. Innes and Ms. Bui were ‘honest people” and he could not choose between their testimony. The Small Claims judge dismissed the lawsuit finding that “In essence, I cannot choose between them, and to use a probably inappropriate sports metaphor, tie goes to the defendant in a case like this. In other words, because I cannot decide who it is that I believe, I have to dismiss the claim, and that is what I am doing.”
At the same time Ms. Innes filed a separate lawsuit against Ms. Bui in the BC Supreme Court alleging that Ms. Bui was at fault. The Plaintiff was asking for compensation for her personal injury claims. ICBC appointed a lawyer to Defend Ms. Bui and in this lawsuit argued that Ms. Innes was at fault. ICBC brought a motion asking the lawsuit to be dismissed based on the principle of “res judicata“. They argued that since the Small Claims judge already heard the issue of fault and called it a ‘tie‘ Ms. Innes’ case needs to be dismissed in the same way that Ms. Bui’s case was.
A chambers’ judge agreed and dismissed the lawsuit. The Plaintiff appealed. The BC High Court overturned the dismissal and found that the Chamber’s judge misapplied the law of ‘res judicata’. The BC Court of Appeal provided the following useful analysis setting out the limits of the res judicata principle:
19] There are two forms of the doctrine of res judicata: cause of action estoppel and issue estoppel. Both operate where the court has adjudicated a cause of action between two or more parties and one of them seeks to re-litigate on the same facts. Where the cause of action is the same, cause of action estoppel operates to prevent re-litigation of any matter that was raised or should have been raised in the prior proceeding. Where the cause of action in the two proceedings is different, issue estoppel operates to prevent re-litigation of any issue determined in the prior proceeding.
 The pre-conditions to making out issue estoppel are stated in Angle v. Minister of National Revenue,  2 S.C.R. 248 at 254:
Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), at p. 935, defined the requirements of issue estoppel as:
… (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies …..
It seems to me that in the circumstances of this case, all that had to be considered on both motions before the court was whether the criteria set out in Angle had been met and, if they had been met, whether the court should exercise its discretion against applying the doctrine of res judicata.
 In my opinion, it cannot be said that the question of liability for the collision was adjudicated upon in the Small Claims proceeding. Having decided as a fact that the parties left their respective stop signs at “more or less the same time”, the Small Claims judge failed to consider the other important factual question before him – whether Ms. Bui had her left-turn signal on. Furthermore, he failed to consider the rules of the road imposed upon each of the parties under the applicable sections of the Motor Vehicle Act, R.S.C.B. 1996, c. 318 and how those rules would apply to the determination of responsibility in tort for the collision. This was not a case of inevitable accident or of no negligence. One or the other of the parties was wholly responsible, or liability was to be divided.
 The reasons of the Small Claims judge fell well short of deciding the negligence question. That issue remains alive in the Supreme Court action. The res judicata arguments of both parties fail.
 The above is enough to allow this appeal.