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Tag: ICBC claims

ICBC Injury Claims, the Low Velocity Impact Program, and Human Rights in BC

Interesting reasons for judgement were released today by the BC Supreme Court dealing with ICBC’s Low Velocity Impact Program (LVI Program) and Human Rights complaints.
The respondent was involved in a motor vehicle collision 2004.  This collision fell into ICBC’s LVI program and they defended the claim of the Plaintiff in accordance with that LVI program that ICBC had in place at the time.  Mr. Justice Wilson, summarized the program as follows:

[5]                On 12 March 2004, Mr. Yuan was involved in a road traffic incident.  A vehicle driven by another motorist collided with the rear end of Mr. Yuan’s vehicle while Mr. Yuan was stopped at a red light.  The Insurance Corporation of British Columbia is the liability carrier for the other motorist.

[6]                It appears to be common ground that, in addition to a contractual duty the Corporation had to its insured other motorist, to adjust this claim, there was a statutory duty the Corporation owed to Mr. Yuan to adjust the claim.  Mr. Yuan did make a claim for personal injuries he alleged he received as a result of the incident.  The Corporation, therefore, commenced its adjustment of Mr. Yuan’s claim.

[7]                At all material times, the Corporation had a policy, among others, based upon an analysis of the physical forces generated by the collision of motor vehicles.  The Corporation determined that in the ordinary course of events, a collision which resulted from a deceleration of less than eight kilometres per hour would not cause damage or injury to human tissue.  That was a rebuttable presumption.  But if a collision was determined by the Corporation to involve what is called a “low velocity impact” phenomena, then it was adjusted according to, among other things, an expedited procedure.

[8]                In this case, the Corporation did determine that the collision involved a low velocity impact between the two motorcars.  Accordingly, Mr. Yuan’s claim was assigned to the procedures and practices applicable for low velocity impact claims.  It is a part of the policies and practices that once the matter is precipitated into this low velocity impact procedure, that the adjuster go about determining whether or not there is information or evidence that will rebut the presumption.  That is to say, could the injury complained of be plausibly caused by the collision.

[9]                In this case, the Corporation determined that there was no information which rebutted the presumption at the time of the investigation and on 4 May 2004, the Corporation’s representative informed Mr. Yuan by letter that the Corporation would not consider any payments with respect to his claim against its insured for injuries arising from the incident.

The Respondent brought a human rights complaint alleging that the LVI program constituted ‘discriminatory practice‘.
ICBC brought a motion to dismiss the human rights complaint on the basis that the complaint was filed out of time and that ‘the complaint had no reasonable prospect for success‘.
The Human Rights Tribunal dismissed ICBC’s application.  ICBC appealed to the BC Supreme Court.  Mr. Justice Wilson agreed with ICBC and concluded that the Respondent’s application had no reasonable prospect of success.  His key findings were made at 46-52 which I reproduce below:

[46]            As the tribunal said in Ingram, there would have to be some allegation that the complainant “has been discriminated against on the basis of disability in order for a potentially valid human rights complaint to exist.  In other words, a complainant must allege facts that, if proven, would establish that they have been in some way adversely affected by reason of their disability.”  The member did not do that analysis.  I do.  There is no evidence that Mr. Yuan had his claim adjusted under the low velocity impact guidelines because he was physically or mentally disabled.  Indeed, the member found that any information or evidence with respect to his then existing state of health was not relevant to his considerations.

[47]            Second, the information before me, which was the same as the information before the member, is that Mr. Yuan was placed into the low velocity impact adjustment guidelines because the Corporation determined that the collision was a low velocity impact type.  It had nothing to do with any physical or mental characteristic of Mr. Yuan.

[48]            Third, there is no evidence of specifically how this particular method of adjusting a claim adversely affects Mr. Yuan.  The evidence is clear.  The complaint was received.  The determination was made that it was a low velocity impact.  Inquiries were made into the nature of the injury complained of, and a determination was made that it was implausible that this kind of a collision would cause the injuries complained of.  It was simply a matter of causation.  Based on the analysis the Corporation had done, it made a rebuttal presumption that there probably would not be injury to human tissue in the ordinary course of events, but if there was evidence to rebut the presumption, it was open to the complainant to bring that evidence forward.  Which Mr. Yuan eventually did do.

[49]            This complainant, Mr. Yuan, will not be able to establish that this Corporation put him into the low velocity impact adjustment process on the basis of his physical or mental disability or on the basis that it perceived him to be not disabled.  Therefore, I conclude that there is no reasonable prospect that his complaint against the Corporation will succeed under s. 27(1)(c) of theHuman Rights Code.

[50]            What the member did, however, as I say, was to set up a straw man.  What he said was, Mr. Yuan is treated differently because the Corporation perceives that he is not, or is less likely to be, injured or disabled.  So what attracts s. 8, according to the member, is not that there is discrimination against Mr. Yuan because of physical or mental disability but, rather, Mr. Yuan is discriminated against because the Corporation perceives him to not be physically or mentally disabled.

[51]            I agree with Ms. Westmacott.  That is to tip the analysis on its head.  To accept that notion seems to me to pound another nail into the coffin of common sense.

[52]            Those are my reasons.

I don’t write this post to support ICBC’s LVI program in any way.  I strive to have this blog comment on all ICBC cases of interest whether or not the results are pro Plaintiff or pro ICBC.  In my opinion the LVI program is designed to minimize claims costs and has little connection to whether or not injuries occur in a collision.  
Our courts deal with ICBC LVI claims frequently and the LVI archives of this website provide a good glimpse into how BC courts deal with LVI tort claims.  Nonetheless, this is an interesting judgement dealing with the unique allegation that the LVI program is somehow discriminatory. 

Small Claims Court Awards $10,000 for 4 month Soft Tissue Injury ICBC Claim

 (Image created by and used with permission of High Impact)
I usually focus my ICBC case law reports on cases from the BC Supreme Court and BC Court of Appeal but reasons for judgement were recently released from the Provincial Court of BC (commonly referred to as Small Claims Court) which caught my eye.
The Plaintiff was involved in a rear-end crash in May 2005.  From the judgement it appears to me to be a claim that fit ICBC’s Low Velocity Impact criteria (LVI) where ICBC takes the position that no compensable tort claim exists. 
The Plaintiff’s vehicle sustained little damage.  The evidence presented by the Plaintiff, her husband and her doctor was ‘fairly consistent’ and the court accepted that the Plaintiff suffered a ‘whiplash injury’ to her neck and back.
The court made the following findings “I accept that there is a four month injury from start to finish with approximately two months off work.  On those facts, it is my standard view and backed up by a number of cases, which oddly enough comes in directly between what the claimant puts forward way up at the upper end and what the defendant puts forward way down at the lower end, my view of this has been throughout coming towards the figure of $10,000 and that is the figure that I do award“.
The Plaintiff was also awarded her lost wages and special damages (out of pocket accident related expenses).
This judgement was only 3 pages long which is unusual for an ICBC personal injury case and makes for very easy reading.  I can’t find this judgment on the BC Provincial Court website but will post a link to the judgement if it becomes published.  This case shows how well suited the Provincial Court can be in some circumstances in dealing with ICBC injury claims involving minimal injuries which resolve quickly.

$30,000 Non-Pecuniary Damages awarded in Minimal Damage Collision

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $40,000 in total damages as a result of a 2003 motor vehicle collision.
The Plaintiff was stopped at a stop sign in Surrey, BC when her vehicle was rear-ended by the Defendant.  The issue of fault was not disputed.  What was disputed was whether the Plaintiff was injured in this crash and if so what the amount of her damages ought to be.
This case seems to be one that fit ICBC’s Low Velocity Impact (LVI) criteria.  The vehicles involved had very little damage.  Evidence was called from an insurance estimator who testified that there was nothing more than cosmetic damage to the vehicle and the repair estimate was slightly more than $500.  It is a frequent strategy of ICBC defence lawyers to focus on the amount of vehicle damage in LVI cases and this strategy appears to have been employed in this trial.
Despite the LVI-nature of this crash the Plaintiff satisfied the court she sustained injuries.  The Court was impressed with the Plaintiff and made the following finding:
[43]            I find that Ms. Orrell is an honest witness and accept her evidence of the event and the injuries that she sustained.  I am satisfied that she was injured in the collision, and that, as a consequence, she experienced pain and discomfort and disruption to her usual activities.  Those have not fully resolved at the time of trial.
Mr. Justice Williams summarized the injuries as follows in concluding that $30,000 was fair for the Plaintiff’s pain and suffering (non-pecuniary damages) 
[51]             The accident and the resultant injuries caused a reasonably significant measure of pain, suffering and loss of enjoyment of life for Ms. Orrell following the event.  Considering both her evidence and the first report of Dr. Miki, that effect was most pronounced for a period of approximately six months, but continued, albeit in a less debilitating way, up to the point of trial.  It has impacted on her participation in many endeavours, including being physically active in such pastimes as running, going to the gym, gardening, ordinary household tasks and, importantly, being as active with her son as she otherwise would have been. As I have indicated earlier, there are however other factors that must be taken into account, including her pre-accident status and her pregnancy in 2006.  Both of those contributed to her discomfort too.
Cases like this one show time and time again that the extent of vehicle damage does not determine what a person’s tortious injuries are worth in British Columbia, rather medical evidence is key in valuing ICBC injury tort claims.

Motorcyclist Found Liable for "Negligent Acceleration"

Reasons for judgement were released today by the BC Supreme Court finding a motorcyclist liable for injuries to his passenger.
The Plaintiff was a passenger on the Defendants motorcycle.  He turned onto a highway in British Columbia and changed gears.  This produced a ‘burst of accelaration’ and at this time the Plaintiff was thrown off the back of the motorcycle.
The Plaintiff sustained road rash types of injuries ‘including loss of skin to various parts of her body, soft tissue injuries, various extensions and strain injuries, a lingering loss of sensation in her fingertips, and a reoccurrence of previously suffered depression‘.
The court found that the Defendant driver was liable in negligence for these injuries.   The courts key findings were made at paragraphs 23-24 which I reproduce below:

[23]            I find that Mr. James was an experienced motorcyclist.  I also find that Ms. Santiago was an experienced passenger on a motorcycle and that she had considerable experience as a passenger on a motorcycle driven by Mr. James.  As an experienced passenger, Ms. Santiago would have been very much aware of what occurs when the driver of a motorcycle shifts gears.  I find that nothing on August 13, 2002 would have diverted Ms. Santiago’s attention away from what she could expect would be how Mr. James would operate his motorcycle.  I find that she would have no expectation of sudden acceleration and that her previous experience including the trip that day from Dewdney to Harrison Mills would not have led her to believe that the motorcycle would be driven by Mr. James in a way that sudden acceleration would occur.

[24]            I find that Mr. James did operate the motorcycle negligently that day.  I find that he accelerated between first and second gear and beyond in an unsafe manner and at a rate which was far in excess of what a passenger like Ms. Santiago would expect and was entitled to expect.  I find that the excessive acceleration was undertaken without warning Ms. Santiago that it was about to occur.

The court assessed the Plaintiff’s non-pecuniary damages (pain and suffering) for her various injuries at $40,000.
This is a useful case for anyone advancing an ICBC injury tort claim who was injured even though no actual collision occurred.  This case demonstrates that a collision is not a pre-requisite for succeeding in a tort claim in British Columbia.  

ICBC Claims and Litigation Privilege

Reasons for judgement were released today by the BC Supreme Court ordering the production of certain documents that the defendants claimed were exempt from disclosure due to ‘litigation privilege.’
The Plaintiff suffered severe head injuries when struck as a pedestrian in 2006.   In the course of her lawsuit her lawyer served the defendants with a Demand for Discovery of Documents.  In exchanging their List of Documents the Defendants claimed ‘litigation privilege’ over some of the documents.  The Plaintiff brought motion to compel production of these documents and largely succeeded with the court holding that:
the defendants failed to provide sufficient information to enable the plaintiff to assess whether the defendants were correctly claiming litigation privilege over each of the documents found in P3 to P9 of their list of documents.
In reaching this conclusion Mr. Justice Blair provided a great overview of the legal principles relating to a claim of litigation privilege which I reproduce below:

[5]                Litigation privilege extends to those documents prepared for the dominant purpose of preparing for ongoing or reasonably anticipated litigation as discussed in Hamalainen (Committee of) v. Sippola, [1991] B.C.J. No. 3614; 2 W.W.R. 132; 9 B.C.A.C. 254; 62 B.C.L.R. (2d) 254.  Wood J.A. (as he then was) for the Court of Appeal stated at ¶18 that the two following factual findings required answering to determine whether litigation privilege applied to a document:

(a)        Was litigation in reasonable prospect at the time the document was produced, and

(b)        If so, what was the dominant purpose for the document’s production?

[6]                Wood J.A. held that the onus is on the party claiming privilege to establish on a balance of probabilities that both tests are met in connection each of the documents for which the party claimed litigation privilege.  With respect to the first factual finding, Wood J.A. wrote at ¶20 that

. . . litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all pertinent information including that peculiar to one party or the other, would conclude it is unlikely that the claim for loss will be resolved without it. The test is not one that will be particularly difficult to meet.

[7]                With respect to the second factual finding Wood J.A. wrote:

21.       A more difficult question to resolve is whether the dominant purpose of the author, or the person under whose direction each document was prepared, was “… [to use] it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation …”.

22.       When this Court adopted the dominant purpose test, it did so in response to a similar move by the House of Lords in Waugh v. British Railways Board, [1980] A.C. 521. In that case the majority opinion is to be found in the speech of Lord Wilberforce, who agreed “in substance” with the dissenting judgment of Lord Denning M.R. in the Court below. While the Court of Appeal judgments do not appear to have been reported, some excerpts from Lord Denning’s opinion are to be found in the speech of Lord Edmund-Davies, including the following at p.541 of the report:

If material comes into being for a dual purpose — one to find out the cause of the accident — the other to furnish information to the solicitor — it should be disclosed, because it is not then ‘wholly or mainly’ for litigation. On this basis all the reports and inquiries into accidents — which are made shortly after the accident — should be disclosed on discovery and made available in evidence at the trial.

23.       At the heart of the issue in the British Railways Board case was the fact that there was more than one identifiable purpose for the production of the report for which privilege was claimed. The result of the decision was to reject both the substantial purpose test previously adhered to by the English Court of Appeal and the sole purpose test which by then had been adopted by the majority of the Australian High Court in Grant v. Downs.

24.       Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

[8]                The dominant purpose test in the context of litigation privilege came before the Supreme Court of Canada in Blank v. Canada, 2006 SCC 39.  Fish J. for the majority noted at ¶60 that the dominant purposes standard was consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure.

Mechanics Found Liable for Single Vehicle Collision for Negligent Brake Repair

Reasons for judgement were released today compensating a Plaintiff as a result of injuries and loss sustained in a 2006 single vehicle collision that occurred in Vancouver, BC.
The Plaintiff, an 80 year old woman, was driving her Nissan back home from the hair salon.  She drove down hill, applied her brakes but they did not respond.  She lost control of her vehicle and smashed into a lamp standard prior to coming to a stop.  The collision was significant and caused numerous injuries.
The Plaintiff sued Kal Tire Ltd. who serviced her vehicle in the years prior to the crash.  ICBC also sued Kal Tire Ltd. for repayment of funds they paid to the Plaintiff as a result of this crash.
The court found that Kal Tire was responsible for this collision and thus ordered that damages be paid to the Plaintiff and to ICBC.  The key finding was made at paragraphs 51- 53 which I reproduce below:

[51]            The evidence demonstrated on the balance of probabilities that Kal’s negligence in servicing the Nissan’s brake system caused the brakes to fail.  Mr. Brown’s physical observations of undisturbed front bleed screws is consistent with a failure to properly perform the brake fluid flush.  This would have left existing contaminated brake fluid in the system.

[52]            Ms. D’Oliveira did not notice a change in the brake system functioning after the servicing.  The brakes may have been performing poorly before the servicing, which led to the replacement of the rear wheel cylinders.  If the brake fluid flush was done incorrectly, brake function would not improve despite the servicing.  Alternatively, Ms. D’Oliveira may not have been particularly sensitive to the sponginess of the brakes.  While it appeared sudden to Ms. D’Oliveira, the brake system was likely performing poorly even prior to servicing, and there simply continued to be a slow deterioration leading to complete failure. 

[53]            As a result, Kal is liable for Ms. D’Oliveira’s injuries arising from the accident, and for the sum agreed between the parties in the ICBC Action.

The Plaintiff suffered various injuries which are summarized at paragraphs 54-56 of the judgement which I reproduce below.   The court assessed the Plaintiff’s non-pecuniary damages at $40,000.  

[54]            Ms. D’Oliveira suffered significant orthopaedic injuries of ten broken ribs, a crushed right heel, and a fracture to the C-7 vertebra.  She had surgery on her heel to insert pins, had a cast on her leg for seven weeks, and was placed in a neck collar.  She spent 52 days in a hospital setting.  She was discharged using a wheelchair, but shortly afterwards was able to walk with a walker and then a cane.  During this time she was assisted in household activities by her son and sister. 

[55]            Ms. D’Oliveira was able to walk unaided about nine months after the accident.  By that time she was mostly pain-free, and able to resume most of her activities.

[56]            Ms. D’Oliveira’s on-going problems are that she is unsteady on her feet.  She has given up her regular stay-fit classes.  She is more cautious in turning her head.  She has to wear wide shoes to accommodate swelling. 

ICBC Claims, Low Velocity Impacts and Engineering Evidence

Like many insurance companies the ICBC has a “Low Velocity Impact Program” (LVI) where tort claims are denied on the basis of little vehicle damages in collision.
When these claims are prosecuted one of the strategies often used by ICBC defence lawyers is to try to have the trial focus on the amount of vehicle damage sustained in the collision.    This can be done in many ways.  Often the Defendant is called to give evidence on the lack of vehicle damage, photos of the vehicles can be put into evidence and evidence of ICBC Vehicle Repair Estimators is sometimes put before the court.  Sometimes ICBC goes further and retains a professional engineer to give evidence about the amount of force involved in the collision.
British Columbia courts are not always receptive to engineering evidence being permitted in motor vehicle tort claims.  Reasons for judgement were released today by the BC Supreme Court ordering that such a report was indeed inadmissible.  Since the judgement is very succinct and easy to follow I reproduce it in its entirety below:

[1]                The plaintiff applies for an order that the expert report prepared by James Bowler, a professional engineer, not be admitted as evidence on the basis that it is neither relevant nor necessary. 

[2]                Mr. Bowler graduated in 1995 and since then has worked for MEA Forensic Engineers & Scientists.  The report makes the assumption that “the provided materials accurately describe the vehicle damages from this accident.”

[3]                Some of the material that was provided and referred to in the report was a final I.C.B.C. CL14 Repair Estimate and an I.C.B.C. CL14E Low Velocity Impact claim form on the plaintiff’s vehicle, and an I.C.B.C. CL14E Low Velocity claim form on the defendant’s vehicle.

[4]                None of this material is before me.

[5]                The purpose of the report was to prove what speed change occurred when the plaintiff’s vehicle was struck by the defendant’s vehicle.  The vehicles were not examined by the engineer.  He relied entirely upon the photographs and the materials supplied by I.C.B.C.

[6]                Mr. Bowler stated that the impact severity was assessed by comparing the damage in the incident with two staged collisions tests previously conducted by MEA.

[7]                The tests involved a 1985 Mazda RX7 and a 1984 Chevrolet Celebrity.  The plaintiff was driving a Nissan 2002 Sentra GXE 4-door sedan and the defendant was driving a Honda 2005 Element 4-door wagon. 

[8]                The experiment that was conducted by the MEA concluded that on the white Celebrity used in the experiment, which had a mass similar to that of the plaintiff’s vehicle, there was a speed change of 1.3 km/hour. 

[9]                The conclusion reached was that the plaintiff’s vehicle likely sustained a speed change (slowing of 1.3 km/hour to 2.9 km/hour in the accident). 

[10]            The defendant says that the change in speed is a factor that I can consider when determining the injuries suffered by the plaintiff.  However, without medical evidence as to the effect of the change in speed, this information is not of assistance.

[11]            It is trite to say that the opinion expressed by an expert is only as good as the facts that have been proven.  Here, there is no evidence as to the validity of the two-stage collision test conducted by MEA.  There is no evidence as to the qualifications of the people that performed these tests, whether or not this experiment was published in a peer review article, or whether or not Mr. Bowler had anything to do with those experiments.  It seems from the evidence that he did not, as he reviewed two video tapes of these staged collisions.  Additionally, the defendant has not put into evidence the I.C.B.C. Low Velocity Impact claim forms or the repair estimate.

[12]            I find that the report is not admissible.

ICBC Claims and Formal Admissions

ICBC personal injury claims lawyers know all too well that the true issues in an ICBC injury claim are not always narrowed down at the beginning of a claim.
Typically, after a Writ of Summons and Statement of Claim are filed, rather boiler-plate Statements of Defence are filed.  Oftentimes not only is the issue of fault not admitted but allegations are made that the Plaintiff was not injured, if injured the Plaintiff is at fault for such injuries, if injured the injuries are not connected to the trauma and on and on.  Such defences can significantly broaden the scope of a lawuit.  As the lawsuit progresses the true focus of the claim often times becomes narrower.  
One of the tools in a litigants arsenal in the BC Supreme Court to help narrow the focus of a lawsuit is the Notice to Admit.  Rule 31 permits either side in a BC Supreme Court lawsuit to ask the other side to make formal admissions.  This tool can be effective in helping narrow the scope of an ICBC injury claim.  If a side fails to make reasonable admissions in a BC lawsuit the court can penalize that party with a costs order pursuant to Rule 31(4).
Rule 31 reads as follows:

Rule 31 — Admissions

Notice to admit

(1)   In a proceeding in which a statement of defence, answer or answer and counter petition has been filed, a party may, by delivery of a notice to admit in Form 23, request any party of record to admit, for the purposes of the proceeding only, the truth of a fact or the authenticity of a document specified in the notice.

[en. B.C. Reg. 143/94, s. 6.]

Effect of notice to admit

(2)   Unless the court otherwise orders, the truth of a fact or the authenticity of a document specified in the notice to admit shall be deemed to be admitted, for the purposes of the proceeding only, unless, within 14 days, the party receiving the notice delivers to the party giving the notice a written statement that

(a) specifically denies the truth of that fact or the authenticity of that document,

(b) sets forth in detail the reasons why the party cannot make the admission, or

(c) states that the refusal to admit the truth of that fact or the authenticity of that document is made on the grounds of privilege or irrelevancy or that the request is otherwise improper, and sets forth in detail the reasons for the refusal.

Copy of document to be attached

(3)   Unless the court otherwise orders, a copy of a document specified in a notice to admit shall be attached to the notice when it is delivered.

Unreasonable refusal to admit

(4)   Where a party unreasonably denies or refuses to admit the truth of a fact or the authenticity of a document, the court may order the party to pay the costs of proving the truth of the fact or the authenticity of the document and may award as a penalty additional costs, or deprive a party of costs, as the court thinks just.

Withdrawal of admission

(5)   A party is not entitled to withdraw

(a) an admission made in response to a notice to admit,

(b) a deemed admission under subrule (2), or

(c) an admission made in a pleading

except by consent or with leave of the court.

Application for order on admissions

(6)   An application for judgment or any other application may be made to the court using as evidence

(a) admissions of the truth of a fact or the authenticity of a document made

(i)  in an affidavit or pleading filed by a party,

(ii)  in an examination for discovery of a party or a person examined for discovery on behalf of a party, or

(iii)  in response to a notice to admit, or

(b) admissions of the truth of a fact or the authenticity of a document deemed to be made under subrule (2)

and the court may, without waiting for the determination of any other question between the parties, make any order it thinks just.


(7) to (9)   Repealed. [B.C. Reg. 95/96, s. 14.]

The reason why I author this blog post is because interesting reasons for judgement were released today dealing with the issue of when ‘deemed’ admissions can be set aside.
In this case the Plaintiff delivered a Notice to Admit.  The Defendant failed to deliver a response as required by Rule 31thus deeming that the facts noted in the Notice to Admit being admitted by the Defendant.
The Defendant brought a motion asking that the deemed admissions be set aside.  The court granted the motion noting that ‘the interests of justice require that the Defendants be at liberty to withdraw (their admissions)
In doing so the court summarized the following factors which can be considered when considering whether deemed admissions should be judicially set aside:

1)         That the test is whether there is a triable issue which, in the interests of justice, should be determined on the merits and not disposed of by an admission of fact.

2)         That in applying that test, all the circumstances should be taken into account including the following:

3)         That the admission has been made inadvertently, hastily, or without knowledge of the facts.

4)         That the fact admitted was not within the knowledge of the party making the admission.

5)         That the fact admitted is not true.

6)         That the fact admitted is one of mixed fact and law.

7)         That the withdrawal of the admission would not prejudice a party.

8)         That there has been no delay in applying to withdraw the admission.

If you are involved in an ICBC injury claim in the BC Supreme Court and beleive the focus of your lawsuit can be narrowed you may wish to consider delivering a Notice to Admit under Rule 31.

ICBC Claims, CPP Disability and Deductibility of Wage Loss Awards

Reasons for judgement were released today dealing with the issue of whether a defendant ordered to pay a plaintiff money for future wage loss as a result of a BC motor vehicle accident can deduct from such an award disability benefits the Plaintiff will receive from the Canada Pension Plan (CPP).
The Plaintiff was injured in a 2005 motor vehicle collision.  Liability was not seriously contested and the Defendant was found 100% at fault at trial.  The Plaintiff suffered serious injuries including a

1. Fractured sternum; and

2. Head injury with probable significant cerebral concussion; and

3. Contused lower thoracic spine and upper lumbar spine; and

4. Multiple rib contusions.

The most contested injury was whether the Plaintiff suffered from on-going problems as a result of a brain injury allegedly sustained in the collision.  The court found for the Plaintiff noting that 
[71]            On balance I conclude that I accept the expert evidence to the effect that it is more likely than not that there are persisting, but very mild, sequelae from the mild traumatic brain injury affecting cognition.  The effects on Mr. Kean’s cognition are so subtle as to be virtually indistinguishable from the concurrent effects from the other operating causes, namely pain, pain medication, and depressed mood. 
The Court assessed damages as follows:

Non-pecuniary damages:


Past wage loss:


Future earning capacity loss:


Future care costs:


Special damages:




ICBC argued that money the plaintiff has/will receive from CPP should be deducted from his awards for past wage loss and future wage loss awards.  The court dismissed this argument concluding that  “the law in this jurisdiction is settled to the effect that CPP disability benefits fall within the insurance exception to the rule against double recovery and should not be deducted from tort awards for past or future wage loss”
The key discussion took place at paragraphs 102 – 111 which I reproduce below:

[102]        Counsel for the defendant and the third party argued that CPP disability benefits received by Mr. Kean should be deducted from his award for past wage loss, and the present value of future CPP disability benefits should be deducted from his future income award.  The thrust of their argument is that this is necessary to prevent double recovery.  The defendant argues that CPP disability benefits are a form of mandatory social insurance that workers cannot negotiate out of, and the scheme is a form of income replacement.

[103]        The defendant’s argument is essentially the same argument that these same counsel made unsuccessfully in the case of Maillet v. Rosenau 2006 BCSC 10.  In Maillet, the plaintiff had received social assistance payments which were deducted from the past wage loss, but Powers J. did not accede to the defendant’s argument that future CPP disability benefits should be deducted from the award for losses of future earnings.  As here, the defendants relied on the case of M.B v. British Columbia, 2003 SCC 53, suggesting that the rationale applied in that case to conclude that social assistance payments were deductible from a future wage loss award, was equally applicable to CPP disability benefits and that the decision represented a change in the law.

[104]        In Maillet, Powers J. followed a line of authority which had held that the CPP disability pension scheme was essentially an insurance scheme and covered by the insurance exception to the rule against double recovery.  This line of authority includes Canadian Pacific v. Gill,[1973] S.C.R. 654, Hayre v. Walz (1992), 67 B.C.L.R. (2d) 296 (BCCA) and Cugliari v. White, (1998) 159 D.L.R. 4th 254 (Ont.C.A.).

[105]        Like Powers J, I do not see the reasoning in M.B. as effecting a change in the law as it applies to CPP disability payments.  The analysis undertaken in that case was outlined in ¶24 of the decision:

The first question is whether social assistance is a form of income replacement.  If it is not, no duplication arises.  If it is, the further question arises of whether social assistance can be excluded from the non-duplication rule under an existing or new exception.

[106]        The court determined that social assistance was a form of income replacement and then stated in ¶28:

It follows that the only way in which they can be non-deductible at common law is if they fit within the charitable benefits exception, or if this court carves out a new exception. Otherwise, retention of them would amount to double recovery.

[107]        After holding that social assistance payments did not fit the charitable benefits exception (because the rationale for that exception did not concern the purpose of charitable donations, but its effect on the owners and the difficulties of valuation), the court discussed whether it should carve out a new policy- based exception.  The court decided that it should not do so.  Clearly there was no viable argument that the insurance exception might be applicable to social assistance and that was not considered.

[108]        The defendant wishes to characterize the CPP disability payments as a form of social security because it is a legislative creature and contributions are mandatory. But, unlike social assistance, it is funded by contributions and only those who have contributed can benefit.  There is an overlap of recovery, but that is inherent in the insurance exception to the rule against double recovery.  The other side of the coin is that to deduct the CPP benefits from a tort award is to force the injured contributor to share the benefits of his contributions, (which represent deductions from his former earnings), with the tortfeasor.

[109]        The defendant’s book of authorities included, in fairness, the case of Sulz v. Minister of Public Safety and Solicitor General 2006 BCCA 582, which was decided shortly after theMaillet decision.  In Sulz, the British Columbia Court of Appeal quotes from Mr, Justice Iacobucci in Sarvanis v. Canada 2002 SCC 28 at ¶33:

….it has already been held by this court that CPP disability payments are not to be considered indemnity payments, and therefore that they are not to be deducted from tort damages compensating injuries that actually caused or contributed to the relevant disability.  See Canadian Pacific Ltd. v. Gill; Cugliari, supra.  This rule is passed on the contractual or contradictory nature of the CPP.  Only contributors are eligible, at the outset received benefits, provided that they then meet the requisite further conditions.

[110]        The issue in Sulz was the deduction of superannuation pension from a tort award.  The British Columbia Court of Appeal, in a decision written by Madam Justice Levine, (who was the trial judge in M.B. whose deduction of social assistance payments was upheld by the Supreme Court of Canada) said, at ¶65:

The superannuation pension received by the respondent is of the same character as CPP disability benefits and other pension payments, which have consistently held to be non-deductible from tort damages.

[111]        I conclude, as did the court in Maillet, that the law in this jurisdiction is settled to the effect that CPP disability benefits fall within the insurance exception to the rule against double recovery and should not be deducted from tort awards for past or future wage loss.

NOTE – the reasoning of this case may not apply to all ICBC claims.  For example in ICBC UMP Claims where ICBC is entitled to certain statutory deductions from the damages they need to pay to an insured.

Pain and Suffering for Dislocated Shoulder / Elbow and Soft Tissue Injuries

Reasons for judgement were released today awarding damages as a result of injuries and loss from a 2002 BC motor vehicle collision.
The Plaintiff was a passenger.  He was involved in a single vehicle accident.  The collision was significant and is described at paragraph 2 of the reasons for judgment as follows:
                The thirty-two year old plaintiff was travelling from Prince Rupert to Terrace as passenger with three children in a car driven by the defendant, Crystal Caroline Bird (“Bird”), when Bird lost control of the vehicle after encountering ice on the highway.  The vehicle, a 1998 Toyota van owned by Bird, crossed the centre line of the highway and rolled twenty feet down an embankment, flipping over before it landed.  According to Wilson, he lost consciousness briefly in the accident and felt pain in his shoulder, elbow and left knee immediately.  He bled from his head, having hit the window.  His back hurt.  A passing driver was hailed and managed to open the passenger door.  Wilson got out of the vehicle and sat, waiting for the ambulance.  The vehicle was very significantly damaged.
The Plaintiff sustained some fairly serious injuries and these, along with their recovery, are summarized well at paragraph 31 of the judgement which I reproduce below:
The plaintiff suffered a dislocated right shoulder, dislocated left elbow, contusion and sprain of the left knee, mild sprain of the cervical spine, and multiple contusions and bruises in the motor vehicle accident of November 30, 2002.  I accept Dr. Kokan’s assessment that the plaintiff’s left knee was not dislocated in the accident but was probably sprained and has fully recovered.  The right shoulder had largely resolved by August 2003 but remains vulnerable to re-injury.  The left elbow has been the greatest problem, heightened by the lengthy wait for surgery.  The plaintiff has lost about ten percent of the movement in this elbow and has residual tenderness.  The incapacity is, however, mild and the plaintiff still has a good range of motion in the elbow.  The left knee had largely resolved to its pre-accident state by June 2005.  It is difficult to ascribe continuing lower back pain to the accident.  I conclude that there was some accerbation of the historical back pain in the accident but do not find that continuing problems can be attributed to the accident.  The plaintiff’s scalp laceration and facial abrasions have healed.
In awarding $85,000 for the Plaintiff’s Pain and Suffering the court made the following observations:
[34]            Wilson’s injuries here are more significant that in either Thorp or Foreman.  The plaintiff required two surgeries for the left elbow dislocation (including a closed reduction) and a closed reduction of the dislocated right shoulder, among other injuries described above.  Wilson has greater permanent restriction in movement of the left elbow than did the plaintiff in Thorp and still has nagging pain.  He is stoical about the continuing pain and discomfort.  Although I do not find that the permanent elbow restriction hinders recreational activity, the plaintiff’s right shoulder injury caused pain when swimming until June 2005.  The plaintiff suffered while he waited for surgery between 2003-2006.  I assess non-pecuniary damages at $85,000.