Reasons for judgement were published today by the BC Supreme Court, Smithers Registry, ordering an RCMP constable and the crown to pay $55,000 in damages to a Plaintiff who was injured during a wrongful detention.
In today’s case (Joseph v Meier) the Plaintiff was shopping at a retail store when another woman shopping in the same area of the store put a scarf into her bag and then, when confronted, threw the scarf to the floor and fled. The plaintiff, who was elderly with limited mobility, continued shopping. The store manager mistakenly believed the two women were together and had the police called.
When the Defendant RCMP constable confronted the plaintiff she “refused to stop or provide information to him. She repeatedly told him that she had done nothing wrong and did not need to talk to him” . He took her to the ground and attempted to handcuff her while she resisted. The Plaintiff was injured in the altercation. In finding the Constable liable for false arrest, false imprisonment, assault and battery Madam Justice Brown provided the following reasons:
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, stripping a Plaintiff of post offer costs after receiving a jury award less than a pre-trial defence settlement offer.
In today’s case (Rutter v. Vadnais) the Plaintiff was injured and sued for damages. About 2 years prior to trial the Defendant offered to settle for $50,000. The offer was rejected and at trial a jury awarded global damages of $20,000.
The Court stripped the Plaintiff of costs from the time of the offer forward which would significantly impact the award given the costs of running the trial. In reaching this decision Madam Justice Brown provided the following reasons:
 Turning to the effect of the offers exchanged in this matter, Rule 9-1(5) and (6) provides:
(5) In a proceeding in which an offer to settle has been made, the court may do one or more of the following:
(a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;
(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;
(c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;
(d) if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle.
[am. B.C. Reg. 119/2010, Sch. A, s. 21.]
Considerations of court
(6) In making an order under subrule (5), the court may consider the following:
(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date;
(b) the relationship between the terms of settlement offered and the final judgment of the court;
(c) the relative financial circumstances of the parties;
(d) any other factor the court considers appropriate.
 The plaintiff in this case had strong medical opinions to support her position. The defence position was contrary to the weight of the medical evidence. Although the jury award is less than that offered by the defendant, I am not persuaded that the offer made was one that ought reasonably to have been accepted either on the date that the offer was delivered or any later date. As Madam Justice Adair said in Currie v. McKinnon, 2012 BCSC 1165 at para. 20: “While the purpose of the Rule is to encourage reasonable settlements, parties should not be unduly deterred from bringing meritorious, but uncertain, claims because of the fear of a punishing costs order.”
 Second, while the amount recovered is less than the settlement offer, that is rarely a determinative factor, particularly as jury awards are more difficult to predict than judge assessments (Smagh v. Bumbrah, 2009 BCSC 623 at para. 13).
 The relative financial circumstances are also a neutral factor in this case. Although Ms. Rutter does have some assets, I am not able to say that losing her costs or paying Ms. Vadnais her costs would not have a dramatic financial effect on Ms. Rutter.
 Finally, although the defendant suggests that the history of negotiations between the parties is such that the offer of $50,000 was reasonable in response to the plaintiffs immediately preceding offer of $61,000, I am persuaded by the plaintiff’s response submissions that there were good reasons for her increasing her offer beyond $61,000 “as her retraining exposed her to physical demands of what she could expect to encounter ‘on the ward’ this showed her that her loss was likely to be more than she had previously thought.” The offer of $61,000 was made at the start of her retraining.
 In conclusion, having considered the submissions of the parties and the factors set out in Rule 9-1, the plaintiff will have her costs of the action at Scale B until March 15, 2014, a reasonable time in which to consider the defendant’s offer. The parties will bear their own costs thereafter.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry assessing damages for numerous injuries sustained by a pedestrian struck by a vehicle.
In today’s case (Starchuk v. Hannig) the Plaintiff was a customer standing in a store “when a vehicle driven by the defendant, Helmutt Hannig, crashed into it. Ms. Starchuk was pushed into the wall of the deli, breaking the drywall.”
The Plaintiff suffered a host of psychological and physical injuries including a breast implant capsular tear requiring surgical repair. In assessing non-pecuniary damages at $135,000 Mr. Madam Justice Brown made the following findings:
 In summary, I am satisfied that as a result of the motor vehicle accident of May 13, 2013, Ms. Starchuk has suffered soft tissue injury to her neck, shoulders, upper limbs, back, chest, and right foot; a capsular tear of her breast implant which required surgery and has left her with postoperative pain and loss of nipple sensation; chronic mechanical neck and shoulder pain; soft tissue injuries to her arms with persisting forearm and hand pain, numbness and tingling; posttraumatic stress disorder, somatic symptom disorder, chronic pain, and a mild traumatic brain injury. I accept that Ms. Starchuk:
1. will remain at risk for a potential reduction in capacity due to her psychiatric diagnoses because of exacerbation from stress or other triggers; increased risk of developing another psychiatric diagnosis; and increased risk of developing fibromyalgia and chronic fatigue syndrome;
2. would likely benefit from further therapy for her soft tissue injuries within the next year, but that she will be left with ongoing pain and activity restrictions related to neck, back, chest, arms and hands which will likely be permanent and enduring; and
3. has had a good result from her breast revision surgery, but is left with pain and lack of sensation and the result is not aesthetically satisfying to her…
 I have considered the cases provided to me by each of the parties. It is trite to state that no two injuries and no two plaintiffs are the same (Boyd v. Harris, 2004 BCCA 146 at para. 42). Considering the factors set out in Stapley v. Hejslet, 2006 BCCA 34, in my view the appropriate award for damages for Ms. Starchuk’s pain and suffering is $135,000.
Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, finding a formal offer that was bested by 9% and was delivered a few days prior to trial was capable of triggering double costs.
In today’s case (Kostinuk v. Fellowes) the Plaintiff was involved in a personal injury prosecution and issued a formal offer to settle his claim, three days before trial, for $175,000. After a 6 day trial judgement of $192,345 was obtained.
The Defendant argued, among other things, that no post offer double costs should be awarded as the offer was issued too late. In rejecting this argument and awarding double costs Madam Justice Brown provided the following reasons:
 Reasonableness is to be assessed by considering such factors as the timing of the offer, whether it had some relationship to the claim (as opposed to being simply a nuisance offer) and whether it could be easily evaluated and whether some rationale for the offer was provided (Hartshorne v. Hartshorne, 2011 BCCA 29 at para.27). Here, although the offer was delivered on the Friday before the commencement of trial, there was an adequate period of time within which to evaluate the offer. As the plaintiff submits, by that point in time all of the evidence was available to the party. They had exchanged earlier offers. Discoveries were complete, expert opinions available. The defence would have been well able to assess the offer in the time available to it. Moreover, the plaintiff had provided an explanation that followed the offer within a few hours. The offer was within the range of likely outcomes. In the circumstances, the defendant would be able to assess the reasonableness of the offer and make a decision on it.
 The judgment was $192,354.05 (including gross wage loss) as such, the offer is just slightly below the amount awarded by the court.
 I do not have information as to the arrangements between the plaintiff and his counsel. Accordingly, I cannot assess the relative positions of the parties and their ability to finance the trial.
 The other factor which I consider appropriate in this particular case is that the defence was conducted by the insurer who was well able to assess the risks of proceeding to trial. The insurer did so knowing that it could be exposed to an award of double costs should Mr. Kostinuk succeed.
 In my view, having considered all of the factors, it is appropriate that the defendant pay the plaintiff costs at Scale B for the steps taken up to and including the date the plaintiff served the formal offer to settle with double costs thereafter, excluding disbursements which will be at the normal rate.
Adding to this site’s database addressing non-pecuniary damages for knee injuries, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, addressing such an injury.
In the recent case (Majchrzak v. Avery) the Plaintiff was injured in a 2007 motorcycle collision when the Defendant’s vehicle failed to yield the right of way. The Plaintiff suffered a knee injury which continue to pose problems at the time of trial and likely would need full replacement in the future. In assessing non-pecuniary damages at $95,000 Madam Justice Brown provided the following reasons:  I consider the following factors relevant in this case: (a) Age of the plaintiff: Mr. Majchrzak was 51 years old at the time of trial. The evidence establishes that he will likely suffer some measure of pain for the remainder of his life. (b) Nature of the injury: Mr. Majchrzak suffered grade 2 chondromalacia and post-traumatic arthritis from the impact of the accident. His knee is permanently damaged, and it is likely that he will require knee replacement, although it is unclear when that will be. He also suffered minor injuries and bruising to his left hand and back that resolved uneventfully. (c) Severity and duration of pain: Almost six years post-accident, the plaintiff continues to suffer pain daily. While he has been able to work through the pain, by doing stretching exercises, icing his knee and taking medication, I have concluded that he has endured much pain doing so. Indeed, he is now retraining to work in a less physically demanding position. (d) Disability: The plaintiff has a permanent impairment of his physical capabilities. (e) Emotional suffering: Dr. Raffle and Mrs. Majchrzak both gave evidence that Mr. Majchrzak has suffered some measure of depression and anxiety caused by chronic pain and his inability to work and provide for his family. (f) Loss and impairment of life: Mr. Majchrzak has permanent injuries that require him to leave what he described as his “dream job”. Furthermore, many of his non-work activities, such as ballroom dancing with his wife, sports activities with his children, and maintenance of his home have been affected.  After both reviewing the authorities and considering the specific factors in this case, in my view, an appropriate award for the plaintiff is $95,000.
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision between a motorist and a child on a scooter.
In last week’s case (Adams v. Zanatta) the Plaintiff, who was 9 years old at the time, suffered serious injuries in a 2006 collision. The Plaintiff was travelling down a paved alley on a kick scooter. At the same time the Defendant was operating a vehicle. From the Defendant’s perspective the alley was obstructed from view because of a fence. The Plaintiff came from the alley and entered the roadway without yielding the right of way. A collision occurred. The Plaintiff sued for damages arguing the Defendant should have been more cautious in the circumstances. In dismissing the claim Madam Justice Brown provided the following reasons:
 I accept Mr. Zanatta’s evidence that Mr. Adams did not stop before crossing 19th Avenue, even though Mr. Zanatta’s vehicle was an immediate hazard. To fix blame on Mr. Zanatta, Mr. Adams must show that after Mr. Zanatta became aware, or with reasonable care could have become aware, he had a sufficient opportunity to avoid the accident.
I am not satisfied that Mr. Zanatta could have avoided the accident by exercising reasonable care.
Mr. Zanatta was driving in a careful and prudent manner after he turned onto 19th Avenue. He was aware of the obstructed view of the alley caused by the fence. He was also concerned about the construction on the north side of 19th Avenue and the cars parked on both sides of the street. Although I am not able to determine exactly how fast Mr. Zanatta was traveling, I accept his evidence that he was driving slowly and that his best estimate, after returning to the site, is that he was traveling approximately 20 km per hour. I also accept his evidence that he was beside the tree and portable toilet shown in the photos when he saw Mr. Adams. At that point, Mr. Adams was just by the fence, coming out of the alley. Mr. Zanatta applied his brakes as hard as he could and tried to swerve to the right, but could not avoid the collision.
The evidence does not satisfy me that Mr. Zanatta’s driving was in any way inappropriate or negligent. He was not traveling at an excessive speed for the circumstances. I am satisfied that he was driving very slowly…
Here, I am able to make the following findings: Mr. Zanatta was driving very slowly, approximately 20 km per hour. Mr. Adams was traveling quickly. I am satisfied that he was traveling faster than 5-10 km per hour, although I cannot determine how quickly he was traveling. Mr. Adams did not stop. As soon as he saw Mr. Adams, Mr. Zanatta braked hard, but could not stop his vehicle before the point of impact.
As I have said, Mr. Zanatta’s speed was entirely appropriate to the circumstances, which included the restrictions to visibility caused by the fence and the parked cars and the construction, as well as the possibility that children and others may be in the area, and may emerge from the alley on either side. I am not satisfied that a reasonably careful driver would have scanned the alley rather than looking forward, given all of the traffic concerns in the vicinity, on both sides of the street. In any event, I am not satisfied that Mr. Zanatta could have avoided the collision if he had been looking toward the alley.
Mr. Zanatta braked hard as soon as he saw Mr. Adams. He met his obligation pursuant to s. 181 of the Act. The Court of Appeal stated the duty of a driver toward children in Brewster (Guardian ad litem of) v. Swain, 2007 BCCA 347 at para. 18:
Chohan does state the law with respect to the duty on drivers to watch for children on or near the roadway. Children are less inclined to obey the rules of the road and are more likely than adults to act unpredictably. Mr. Justice Taylor said this: “Once observed in a dangerous situation, children must be given special attention, so that any precautionary or evasive action indicated will be taken in time” (my emphasis). This is especially so in suburban areas.
As I have said, Mr. Zanatta was driving very slowly, in part because there might be children in the vicinity, although he had not seen any on 19th Avenue. As soon as he saw Mr. Adams, he braked hard. In my view he fulfilled his duty. A reasonably careful driver would not have done more.
In a rare judicial intervention into a lawyer’s practice, reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, stripping a lawyer from all of his cases relating to the residential school Independent Assessment Process class action settlement. The Court determined it had jurisdiction to make such an order pursuant to section 12 of BC’s Class Proceedings Act.
In yesterday’s case (Fontaine v. Canada (Attorney General)) lawyer David Blott was on record ‘for approximately 2,900 (IAP) claimants‘. ‘Concerns‘ were raised with respect to this lawyer’s practice. These led to an investigation of the lawyers practice resulting in a final report with various troubling findings (these are highlighted at paragraphs 17 and 18 of the reasons for judgement).
An application was made seeking significant judicial intervention including an order stripping the lawyer of all of his IAP files. In granting this extraordinary relief, Madam Justice Brown provided, amongst other criticism, the following comments:
The conclusion of the LSA panel regarding Mr. Blott’s conduct bears repeating:
But after considering all of the evidence in this matter and hearing Mr. Blott, we continue to be concerned that Mr. Blott does not appear to understand what it means to be a lawyer. We are concerned that Mr. Blott appears not to recognize that his primary role is as a fiduciary and everything else is secondary.
I share the LSA’s concern that Mr. Blott does not understand what it means to be a lawyer. Further, while I also understand the desire to avoid additional victimization of the members of an already-vulnerable class, a more lasting remedy than the interim measure implemented by the LSA is required. The process approved by the LSA, and advanced by Mr. Blott on this application, would see at least 1,500 clients moved from the Blott firm to other lawyers in any event. Viewed in that light, the issue is not whether disruption will be experienced by Blott clients, but rather the number of clients who will experience it.
It would be far better to have this client transfer process conducted under the supervision of the court and it is necessary for the integrity of the process and the protection of the clients that it be a complete transfer. Therefore, I will accept and implement the Monitor’s recommendation in respect of the removal of David Blott, David Blott Professional Corporation, Blott & Company, and any associated entity from the current or future representation of claimants in the IAP or any other process embodied in the settlement.
Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, disallowing the use of a PowerPoint presentation in an opening statement before a jury.
In last week’s case (Moore v. Kyba) the Plaintiff was injured in a motor vehicle collision. Shortly prior to trial the Plaintiff advised the Defendant that he was going to use a PowerPoint presentation in his opening statement. The Defendant objected arguing this ought to have been canvassed at a Trial Management Conference. Madam Justice Brown agreed and refused the presentation from being presented to the Jury. The Court provided the following reasons:
In Brophy v. Hutchinson, 2003 BCCA 21, the British Columbia Court of Appeal sets out the principles which apply to an opening statement.
 The opening’s purpose is to outline the case the party bearing the onus of proof (usually the plaintiff) intends to present. Counsel’s goal in opening is, or should be, to assist the jury in understanding what his or her witnesses will say, and to present a sort of “overview” of the case so that the jury will be able to relate various parts of the evidence to be presented to the whole picture counsel will attempt to present.
The court continues:
 In an opening statement, counsel may not give his own personal opinion of the case. Before any evidence is given he may not mention facts which require proof, which cannot be proven by evidence from his own witnesses, or which he expects to elicit only on cross-examination. He may not mention matters that are irrelevant to the case. He must not make prejudicial remarks tending to arouse hostility, or statements that appeal to the jurors’ emotions, rather than their reason. It is improper to comment directly on the credibility of witnesses. The opening is not argument, so the use of rhetoric, sarcasm, derision and the like is impermissible: see Halsbury, supra, at para.103; Williston and Rolls, The Conduct of An Action (Vancouver: Butterworths, 1982); Olah, The Art and Science of Advocacy (Toronto: Carswell, 1990) at 8-8; Lubet, Block and Tape, Modern Trial Advocacy: Canada, 2nd ed. (Notre Dame: National Institute for Trial Advocacy, 2000). Against this general background, I will consider the objections the plaintiff now makes to the defendant’s opening address.
I was also provided with Schram v. Austin, 2004 BCSC 1789 and Ramcharitar v. Gill, 2007 Oral Ruling, Docket 01-2332, a decision of Mr. Justice Macaulay.
In Ramcharitar, the defendant did not object to the use of the presentation but to the form and some of the specific content.
At para. 9, Mr. Justice Macaulay said:
Counsel should not expect to use a presentation as an aid during an opening unless he or she has first shown it to opposing counsel and the court, so that any issues about form and content can be addressed in the absence of a jury.
As pointed out in Schram, and as was done here, the proposed use should be raised at a pre-trial conference. The risk of a mistrial arising otherwise from the improper use of a presentation is simply too great, and any counsel who seeks to rely on the use of a presentation at the last minute, without seeking consent or permission beforehand, may find that the proposed use is not permitted.
Here, there are problems with the content of the Power Point, which include references to the contents of opinions not yet in evidence. The Power Point would need to be modified before it could be used before the jury. However, the Power Point was delivered too late to the defendant and to the court to permit this to be done. As Mr. Justice Macaulay indicated, the Power Point presentation should be dealt with at a trial management conference, it should not be left to the morning of trial to be addressed. In this case, there was simply no time available to deal with this problem.
Reasons for Judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for an intersection collision.
In today’s case (Minosky v. Brar) the motorists were involved in a two vehicle collision. They both claimed the other was at fault and both sued each other. Both trials were heard at the same time.
The collision occurred at the intersection of 121st Street and 64th Avenue in Surrey, BC. The Minosky vehicle was heading northbound on 121st. He was faced with a stop sign. The Brar vehicle was heading in the ‘fast’ eastbound through lane on 64th. As the Minosky vehicle attempted to drive through the intersection he struck the Brar vehicle.
Madam Justice Brown found the Minosky vehicle 100% at fault for the collision for failing to yield the right of way and not complying with the duty set out in s. 175 of the Motor Vehicle Act. In coming to this conclusion the Court provided the following useful reasons:
I conclude that the Brar vehicle was much closer than Mr. Minosky believed it to be when he left the intersection. It was an immediate hazard. Ms. Brar was not speeding and was attending to traffic. She had no opportunity to stop and avoid the collision.
Mr. Minosky argues that, based on Ms. Brar’s estimates of speed and distance, Ms. Brar would have had ample opportunity to avoid Mr. Minosky’s vehicle if she saw him moving out from the stop sign. Mr. Minosky argues that Ms. Brar said that she was some two to five car lengths from Mr. Minosky when she concluded that he wasn’t going to stop. Had this been so, she would have travelled by Mr. Minosky before he had an opportunity to enter her lane of travel.
This argument places too much weight on Ms. Brar’s estimates of distance. When she first concluded that Mr. Minosky was not going to stop, it would have been an emergency situation. She said she slammed on her brakes and honked, but was not able to avoid the collision. In these circumstances, I do not expect that a person would be able to measure with precision the distance between her vehicle and the vehicle with which she was about to collide. I give little weight to Ms. Brar’s estimates of distance. Many people are poor judges of distance. However, I do accept her evidence of how the collision happened.
Section 175 of the Motor Vehicle Act places the burden on Mr. Minosky to yield to traffic that is approaching so closely that it constitutes an immediate hazard. Mr. Minosky has not satisfied me that he yielded as required. Rather, I have concluded that when he entered the intersection, the Brar vehicle was an immediate hazard. I find that Mr. Minosky is 100% at fault.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, deciding the issue of fault for a two vehicle collision.
In today’s case (Tang v. Rodgers) the Plaintiff was travelling on West 33rd Avenue in Vancouver when he was struck by the Defendant’s vehicle. There was one lane in the Plaintiff’s direction of travel at the scene of the collision. The Plaintiff attempted a right hand turn into the driveway to his residence. At this time the Defendant was attempting to pass the Plaintiff’s vehicle on the right and a collision occurred.
There was conflicting evidence at trial but ultimately the Court found that both motorists were to blame. The Defendant was faulted for passing on the right when it was unsafe to do so. The Plaintiff was found 25% at fault for failing to engage his right hand turn signal in a timely fashion. In arriving at this apportionment Madam Justice Brown provided the following reasons:
 Section 158 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, prohibits passing to the right in most circumstances. Mr. Rodgers was negligent in passing on the right without ensuring that it was safe to do so. Mr. Tang was moving slowly in the travel lane when Mr. Rodgers decided to pass. Mr. Rodgers did not know what Mr. Tang was doing and thought he was confused. Mr. Rodgers took a significant risk.
 Mr. Tang was also negligent. Section 167 of the Motor Vehicle Act provides that a driver of a vehicle must not turn the vehicle to the right from a highway at a place other than an intersection unless the driver causes the vehicle to approach the place as closely as practicable to the right hand curb or edge of the roadway. Mr. Tang did not do so. Rather, as some drivers do, he placed his vehicle to the left before turning right. His vehicle was not as close as practicable to the right hand curb or edge of the roadway. Second, Mr. Tang did not shoulder check or look to his right before turning right. Finally, Mr. Tang only turned his right turn signal on immediately before the accident, which was too late to give warning to those behind him.
 The circumstances of this case are very similar to the circumstances that were before Mr. Justice Curtis in Boyes v. Mistal,  B.C.J. No. 1755, 1990 CanLII 528 (SC), aff’d 1992 CanLII 1954 (BCCA). There Mr. Justice Curtis said:
Mrs. Boyes did not give sufficient warning when she signalled. Like many drivers she signalled and turned almost simultaneously, too late to warn Mr. Mistal. Nor did Mrs. Boyes turn from as close as practicable to the right hand edge of the roadway, she turned when there was more than a car width to her right – thereby risking the sort of collision that did occur. Mrs. Boyes is at fault in the collision for these reasons.
I find Mr. Mistal’s fault to be the greater. Mrs. Boyes was occupying the only lane of travel, she never left her lane, and had a right to be there. Mr. Mistal chose to pass Mrs. Boyes when she slowed down on the basis of what he assumed was happening. She had not signalled and Mr. Mistal should have known that in choosing to pass a vehicle which was obviously intending some maneuver not yet signalled, in its own lane, he was taking a significant risk. I find Mr. Mistal to be 75% at fault and Mrs. Boyes 25%.
 I, too, conclude that Mr. Rodgers’ fault was the greater. I find Mr. Rodgers 75% at fault and Mr. Tang 25% at fault.
When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
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