Tag: Madam Justice Hyslop

Sometimes You Really Do Have to Sue Your Mother


Paul Hergott wrote a newspaper column a few years ago titled ‘sometimes you have to sue your mother‘.   Family members suing each other for compensation is more common than you may think, particularly in the context of ICBC claims.
When a motorist drives carelessly and causes injury the injured parties can sue for compensation.  ICBC’s Third Party Liability coverage typically covers these claims, even if the injured party is a relative of the at fault driver.  Reasons for judgment were released today by the BC Supreme Court, Kamloops Registry, demonstrating this reality.
In today’s case (Carson v. Henyecz) the Plaintiff was walking on her mother’s property.  She tripped and “stumbled forward bent at the waist into the middle of the asphalt driveway. At the same time her mother was backing up out of her driveway.  She failed to see her daughter and a collision occurred.  The Plaintiff suffered serious injuries including a fractured spine which required titanium rods and a bone graft for correction.
The Plaintiff sought compensation for her injuries from her mom’s insurer.  ICBC denied the issue of fault and forced the matter to trial.  Ultimately the Court found the Plaintiff’s mom 100% responsible for the collision.  In doing so Madam Justice Hyslop provided the following reasons:

[101] Looking at the photographs of the asphalt driveway (no measurements were taken as to its width or length), the Subaru struck Ms. Carson in the lower part of the upper half of the driveway. Mrs. Henyecz had an obligation throughout this entire manoeuvre; that is reversing down this long driveway, to be aware of what was behind her. Her obligation was to place her body in such a position that she would observe out of the rear-view window, her driver’s rear-view mirror and driver’s side mirror, the asphalt driveway until such a time that she would reach Singh Street, enter Singh Street, and then change direction.

[102] I infer from all of the evidence that Ms. Carson was visible before she stumbled and she certainly was visible when she stumbled onto the asphalt driveway. From all of the evidence that is before me, I conclude that as Mrs. Henyecz commenced reversing the Subaru down the asphalt driveway, she took no steps to determine whether she could reverse the Subaru down the driveway in safety.

[103] I conclude that had Mrs. Henyecz taken the precautions as she started her reversal and continued her reversal down the asphalt driveway, Mrs. Henyecz would have seen her daughter both before and after her daughter stumbled into the asphalt driveway.

[104] I find that Mrs. Henyecz breached her duty of care to Ms. Carson by failing to make all the observations that she could perform as she reversed down the asphalt driveway. Ms. Carson was out on the driveway to be seen.

[105] I conclude that Mrs. Henyecz was not driving at an excessive speed. The speed of the vehicle is not the issue here.

[106] Mrs. Henyecz alleges that Ms. Carson was negligent in that she stumbled. Ms. Carson’s stumble is not material. Ms. Carson’s stumble is not the cause of the accident. The cause of the accident is the failure of Mrs. Henyecz to position herself and make observations in such a way that as she reversed she was aware of what was on the asphalt driveway.

[107] The defence made reference to Rinta and the facts of that case. Counsel for Mrs. Henyecz suggested that these facts gave the driver a great deal more warning compared to the facts in this case. However, in the appeal court it is not the facts that are being appealed, it is as Mr. Justice Lambert said:

[8] The Supreme Court of Canada said that it was improper for this court to interfere with a finding of negligence or no negligence made by a trial judge unless there was an error in law, or it was clear that some evidence had not been understood or had been ignored. …

[108] I have already concluded in my analysis of the law that this is not a situation where a pedestrian must not leave the curb or a place of safety and walk or run into the path of a vehicle so that it is impracticable for the driver to yield the right-of-way. If s. 179 of the MVA applied to private property, I conclude that it is not relevant as under s. 179 the driver of the motor vehicle is driving forward and not in reverse.

[109] I conclude that Mrs. Henyecz breached her duty to Ms. Carson and was negligent when she reversed her motor vehicle down the asphalt driveway and hit Ms. Carson. I find Mrs. Henyecz is 100% responsible for the accident.

Fault For Rear End Collision Following Lane Change Discussed

Reasons for judgement were released last week discussing fault for a rear-end motor vehicle collision which occurred after the Plaintiff made a lane change into the Defendant’s lane of travel.
In last week’s case (Perry v. Ismail) the Plaintiff was driving in “bumper to bumper” traffic in the right lane of a highway.  There were few vehicles in the left lane as it was closed to traffic ahead further up the roadway.  The Plaintiff made a lane change into the left hand lane and shortly after he was rear-ended by the Defendant.

Although collisions such as these can be caused by the fault of both motorists in last week’s case the Court determined that the Defendant was fully at fault for the crash for failing to keep a proper lookout.  In assessing the Defendant 100% liable Madam Justice Hyslop provided the following reasons:

[25] Before making his lane change, Mr. Perry shoulder checked and put on his signal light indicating his intention to change lanes. He concluded and I accept he could make the lane change safely. I do not accept Mr. Perry’s evidence that he actually recalls independently at the time of trial doing all of those checks before making the lane change. I do accept that he signalled, looked in his mirrors, did a shoulder check and decided that it was safe to change lanes.

[26] Mr. Perry had completed his lane change and was travelling at least 40 kilometres per hour, accelerating, and had not reached his intended speed when the rear end collision occurred.

[27] Mr. Ismail occupied the left lane and was he aware that vehicles might change lanes given the traffic conditions in the right lane.

[28] As Mr. Ismail drove in the left lane there was nothing to obscure his vision. He did not see the Perry vehicle until the very last moment when he slammed on his brakes, colliding with the rear of the Perry vehicle. He did not see the Perry vehicle’s signal, nor the change of lanes. I find that Mr. Ismail came upon Mr. Perry who was about four to five car lengths ahead of the Kelly vehicle and accelerating. Mr. Ismail should have seen the Perry vehicle signal and should have seen the lane change and should have seen the Perry vehicle ahead of him. He did not see any of these events.

[29] I conclude that Mr. Ismail was negligent in that he was not paying attention and failed to keep a proper lookout for other vehicles as he drove in the left lane on Lougheed Highway. When the Perry vehicle was finally seen by him it was too late. He slammed on his brakes and struck the Perry vehicle.

[30] I find all the witnesses to the accident to be truthful and they did their best to recall the events. Mr. Ismail did not attempt to explain away the accident. He was transparent, despite the fact there may be consequences to him from his employer.

$40,000 Non-Pecuniary Damage Assessment For Chronic Grade 2 Whiplash

Reasons for judgement were released last week by the BC Supreme Court, Kamloops Registry, assessing damages caused by a motor vehicle collision.
In last week’s case (Cameron v. Hsu) the Plaintiff was injured in a 2008 collision.  The Plaintiff was rear-ended and pushed into the vehicle ahead of him.  Fault for the crash was admitted by the Defendant focusing the trial on quantum of damages.  The Plaintiff sustained a Grade 2 Whiplash Associated Disorder as a result of the collision.   His symptoms continued at the time of trial some three years following the crash.  In assessing non-pecuniary damages at $40,000 Madam Justice Hyslop provided the following reasons:

[85] I have concluded that Mr. Cameron did suffer neck and shoulder injuries as a result of the accident. As a result of these injuries he suffered headaches. Those appear to no longer occur or are infrequent.

[86] I also conclude that these injuries caused Mr. Cameron difficulties in certain seasons at which time Mr. Cameron sought physiotherapy to resolve the symptoms.

[87] I have also concluded and take into consideration in assessing Mr. Cameron’s claim for pain and suffering that Mr. Cameron, at the outset, had a tendency to “myofascial pain in the neck and upper shoulders” [Dr. Laidlow] several years before the 2007 accident. I also conclude that before this accident that Mr. Cameron’s injuries from the 2007 accident were resolved. I also conclude that Mr. Cameron has resisted doing exercises designed to assist or improve the mobility and flexibility in his neck and in the area of his upper shoulder…

[99] Mr. Cameron, at the time of the trial, continued to suffer from tightness in the shoulder and neck beyond that of his pre-existing condition. Mr. Cameron did not lose time at work and he never thought he should do so or would do so. Mr. Cameron, as confirmed by the evidence of his father, sought medical treatment only when there was something wrong. The evidence is that Mr. Cameron has difficulty with his neck and shoulder when doing office work and not when working on-site and in good weather.

[100] Mr. Cameron chose not to pursue exercise as recommended by Dr. Laidlow and his physiotherapist, so it is difficult to determine the progress he would have made had he done so. Taking that into consideration, I award Mr. Cameron general damages in the amount $40,000.00 for pain and suffering and loss of enjoyment of life.

Compelled Independent Medical Exams and "Consent"


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing a much debated topic; can a Plaintiff be forced to sign a ‘consent‘ document when compelled to attend an independent medical exam under the Rules of Court.  In short the Court held that this was possible.
In this week’s case (Kalaora v. Gordon) the Plaintiff was injured in a motor vehicle collision and sued for damages.  In the course of the lawsuit the Plaintiff agreed to attend a defence medical exam.  At the appointment the physician asked the Plaintiff to sign a consent form authorizing the physician to proceed with the medical examination.  The Plaintiff refused to sign this.  The Defendant brought an application to compel this document to be signed.  In granting the application Madam Justice Hyslop provided the following reasons:

[79] Rule 13-1(19) of the Supreme Court Civil Rules provides assistance in this matter:

Orders on terms and conditions

(19) When making an order under these Supreme Court Civil Rules, the court may impose terms and conditions and give directions it considers will further the object of these Supreme Court Civil Rules.

[80] In Nikolic, Mr. Justice Williams stated that Rule 1(12) (the former Rule)

grants the court wide discretionary powers, in the making of orders, to impose terms and conditions and give directions as its thinks just. Read collectively [he is referring to the then document rules], a master or judge of this Court has the jurisdiction to create the mechanisms by which relevant non-privileged documents in a litigant’s “power” will be produced, including the jurisdiction to order him or her to execute the necessary documentation allowing a record-holder, whether residing in or outside British Columbia, to effect the release of those documents.

Rule 13-1(19) together with Rule 7-6(1), (the medical examination rule) read together, permit the court to order that the plaintiff to sign an authorization.

[81] By refusing to sign a consent or give a verbal agreement, Dr. Smith is open to charges of assault and battery. To insist that the defendant find another psychiatrist to pursue the medical examination without the consent of the plaintiff is unlikely.

[82] When plaintiff’s counsel consented to the medical examination of Mr. Kalaora by Dr. Smith, and Mr. Kalaora appeared at Dr. Smith’s office as scheduled, it certainly could be inferred that Mr. Kalaora agreed to the medical examination. However, when he refused to sign the consent or consent verbally, he withdrew that consent.

[83] Based on the case law, the Supreme Court Civil Rules and their purpose, the underlying need for full disclosure, the court can order a litigant to sign a consent or authorization.

[84] The plaintiff made it clear that they are agreeable to attending a medical examination with Dr. Smith. I order that the plaintiff attend a medical examination with Dr. Smith at a time and place as agreed. I order that the plaintiff sign an authorization or consent in the exact terms as sought by Dr. Smith for the original medical examination which did not proceed.

For two recent case summaries further discussing the Court’s ability to order a Plaintiff to sign authorizations/waivers you can click here and here.  From my perspective there appears to be some inconsistency in the authorities addressing the power of the BC Supreme Court to order a Plaintiff to sign an authorization and clarification from the BC Court of Appeal or by way of Rules Amendment would be helpful.

Winners and Losers: More on Costs Consequences and Formal Settlement Offers


How can a Plaintiff who is awarded damages following a personal injury trial end up owing ICBC money?  The answer relates to the costs consequences that can be triggered by formal settlement offers.  I’ve discussed this topic previously and two sets of reasons for judgement were released this week by the BC Supreme Court further demonstrating this reality.
In the first case (Dempsey v. Oh) the Plaintiff was injured in a bicycle accident when he was struck by the Defendant’s vehicle.  In the course of the lawsuit ICBC made a formal settlement offer of $40,000.  As trial neared ICBC increased their formal offer to $165,000.  The Plaintiff rejected this and proceeded to trial.  At trial the Court made some critical findings relating to the Plaintiff’s credibility and awarded damages of just over $20,000.
Following trial ICBC asked for an order pursuant to Rule 9-1(5) that the Plaintiff pay all of the Defendant’s costs following their first formal offer.  The Plaintiff objected to such a result arguing that “if he is ordered to pay the defendant’s costs he will end up owing it money“.  Mr. Justice Myers rejected this argument and ordered that the Plaintiff pay the Defendant’s post offer costs.  In rejecting the Plaintiff’s submission the Court made the following comment “It is not the court’s function to ensure that a plaintiff makes a net recovery from an action when it has ignored a reasonable offer.  That would defeat the purpose of the Rule and does not accord with common sense”.
On another note, this case is worth reviewing in full for the Court’s discussion of Rule 14-1(10).  The Defendant argued that the Plaintiff should be deprived of his pre-offer costs as there was no sufficient reason to sue in Supreme Court.   Mr. Justice Myers rejected this argument finding that when the lawsuit was started the Supreme Court was an appropriate venue.  In making this finding the Court provided the following useful reasons:
[11]    In part due to the loss of income, this was a more complicated case than Ghelen.  This action was commenced approximately six months after the accident.  At that point I find it was reasonable for the plaintiff to have commenced the action in this Court because he was reasonably entitled to see the impact of the accident on his prior condition.  There is nothing in the rules which imposes a cost penalty on a party who files its suit quickly after its cause of action arises.  And, in Reimann v. Aziz, 2007 BCCA 448, the Court of Appeal held that there is no ongoing obligation on a party to assess his action as it progresses in the Supreme Court in order to consider whether it should be moved to Provincial Court.
In the second case released this week (Miller v. Boughton) the Plaintiff was injured in a 2006 collision.  She sued for damages and her case went before a jury.  The trial lasted 7 days.  Prior to trial ICBC made a series of escalating formal settlement offers starting at $22,000 with the final offer made shortly before trial topping out at $62,500.
The Plaintiff rejected these offers and proceeded to trial.  The Jury found the Plaintiff 45% at fault for the crash and the Defendant 55% at fault.   After taking this split into account the Jury’s award was a modest $3,880.  ICBC’s motion for post offer costs and disbursements was granted.  After factoring these in the Plaintiff likely ended up owing ICBC a significant amount of money.   (UPDATE September 12, 2011 – click here for follow up reasons confirming the Defendant’s costs were assessed at over $42,000)
Cases such as these illustrate the important lesson that formal offers create a “loser pays” system which could result in significant costs swings following trial.  When considering ICBC formal settlement offers it is important to keep this in mind when deciding whether to accept the offer or proceed to trial.

Non-Pecuniary Damages Discussed for "Waxing and Waning" Soft Tissue Injuries


As I’ve previously discussed, some of the most important factors to consider when valuing a claim for pain and suffering are the severity and duration of the injury.
Not all injuries have the same course of recovery.  Some soft tissue injuries never heal.  Sometimes they cause constant chronic pain.  Other times these injuries largely recover but ‘wax and wane’ with activity.   What is the fair value of a soft tissue injury with symptoms that come and go over the years?  Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, addressing such an injury.
In this week’s case (Schmidt v. Hawkins) the Plaintiff was involved in a 2005 BC motor vehicle collision.  The crash happened at near highway speed when the Defendant pulled into the Plaintiff’s lane of travel resulting in a significant T-bone type collision.  The Defendant admitted fault for the crash focusing the trial on the value of the Plaintiff’s ICBC claim.
The Plaintiff suffered soft tissue injuries.  These affected her neck and upper back and caused headaches.  her symptoms improved somewhat by the time of trial but were expected to ‘wax and wane‘ over the course of her lifetime.   Madam Justice Hyslop assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000.  In arriving at this figure the Court made the following findings about the nature and severity of the Plaintiff’s injuries:

[78]         Drs. Waller, Raghavan and Lau, for the most part, agree in their diagnosis and prognosis. Drs. Raghavan and Lau expect Mrs. Schmidt’s injuries to “wax and wane” over her lifetime. Drs. McDougall and Boyce are much more optimistic. For the most part, the doctors agree on the nature of Mrs. Schmidt’s injuries.

[79]         They all agree that Mrs. Schmidt should participate in a gym conditioning program. This was initially recommended by Dr. McDougall on February 6, 2007. Dr. Lau discouraged dependency on outside modules in place of an aerobic program, as did Dr. Boyce. All the doctors were of the opinion that Mrs. Schmidt could return to full-time employment….

[96]         At the time of trial, Mrs. Schmidt was age 39. The accident resulted in causing injuries to Mrs. Schmidt leaving her with a stiff and painful neck, pain in her upper back and, in particular, between the shoulder blades and headaches.

[97]         Mrs. Schmidt believes that her condition was not getting any better causing Mrs. Schmidt to have some minor depression.

[98]         It impacted her social life and some of her activities. At trial, for the most part, she was back to her regular activities.

[99]         As a result of her injuries, she required some assistance from family members and neighbours to meet some of her household and gardening responsibilities…

[141] I assess Mrs. Schmidt’s non-pecuniary damages at $45,000.00.

$135,000 Non-Pecuniary Damages Awarded for Multiple Orthopaedic Injuries


(Illustrations provided courtesy of Artery Studios Ltd.)
Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff just over $426,000 in total compensation for injuries and losses as a result of a 2007 motor vehicle collision.
Fault for the collision was hotly contested in today’s case (Hildebrand v. Musseau) .   The Defendant was operating a pick-up truck.   The Plaintiff was operating a dirt bike.  The vehicles approached each other from opposite directions.  Both motorists gave evidence that the other was on the wrong side of the road as they approached.  Ultimately the Court concluded that the Defendant was in the Plaintiff’s lane of travel as the vehicles approached each other.  The Plaintiff took evasive measures but was unsuccessful and was struck by the Defendant’s truck.   The Defendant was found 90% at fault for the crash.
The Plaintiff suffered serious injuries including a fractured right ankle and right wrist.  Both of these required surgery.  The Plaintiff also fractured his left femur which required splinting along with various soft tissue injuries.  Some of the injuries, particularly the injury to the knee and ankle, were expected to pose long term problems for the Plaintiff.  In awarding $135,000 for the Plaintiff’ non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Madam Justice Hyslop provided the following reasons:

[216]     The plaintiff is a young man who suffered three different broken bones in his body. He lost eight and a half months of work convalescing. He had surgery to repair his broken bones and eventually had further surgery in which to remove plates and screws. He was initially confined to a wheelchair, then walked with crutches and eventually a cane. Many of his recreational activities were curtailed, some of which have been curtailed permanently, particularly if they relate to high impact-type activities. He has lost some range of motion in his right ankle which is unlikely to improve. The prognosis for osteoarthritis in the right ankle in the long-term is moderate. His injuries have prevented him in part from pursuing some renovations he wished to do in his home. The plaintiff’s injuries, particularly his right ankle and right knee, affect his ability to carry heavy loads, climb stairs and ladders, squat or kneel for extended periods of time.

[217]     The plaintiff, at the time of the accident, was aged 21 and had recently been certified as a journeyman auto body repair technician, a trade to which he appears to be well-suited.

[218]     He has a permanent disability as it relates to his ankle which prevents him from pursuing activities that he pursued prior to the accident and he may have wished to pursue in the future.

[219]     I assess non-pecuniary damages in the amount of $135,000.00.

Formal Settlement Offers and Strict Compliance with Rule 37B


Reasons for judgement were released today considering whether strict compliance with Rule 37B is required for a Court to award a successful party Double Costs after beating a formal settlement offer at trial.
In today’s case (Eigeard v. Muench) the Plaintiff sued for personal injuries.  Prior to trial the Plaintiff made a written settlement offer to resolve the claim for $107,500.  The claim went to trial and the Plaintiff enjoyed success with a Jury awarding more than settlement offer.
The Plaintiff then asked the Court to award Double Costs under Rule 37B.  The Defendant objected arguing that the formal offer did not strictly comply with Rue 37B(1)(c)(iii) which requires formal offers to contain the following sentence:
“The ….[name of party making the offer]…. reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has rendered judgment on all other issues in this proceeding.”
The Plaintiff argued that the Court still had the discretion to award double costs because “the defendant’s insurers are sophisticated and understood the content of the offer and there is no confusion.” and that “this was a legitimate attempt by the plaintiff to resolve the action.
Madam Justice Hyslop disagreed and concluded that the Court did not have the discretion to award double costs in these circumstances.  The Court went onto summarize the applicable law as follows:
[16] In Roach, the exact words of Rule 37B(1)(c)(iii) were not contained in the offer to settle pursuant to Rule 37B. Despite this, the trial judge ordered double costs. This was one of the grounds of appeal.

[17]         The offer to settle was in the form of a letter directed to counsel. The letter set out an offer of settlement and then stated:

We reserve the right to bring this letter to the attention of the judge as a matter of costs in accordance with Rules 37 and 37A. [para. 32]

[18]         Madam Justice Prowse, writing for the Court, stated:

[35] It is not disputed that the terms of Ms. Roach’s offer substantially complied with the requirements of an offer under Rule 37B(1)(c): it was made in writing; it was delivered to Mr. Dutra (through his counsel); and it contained a sentence in terms similar to those set forth in subrule (1)(c)(iii). Nor is there any suggestion that Mr. Dutra was misled by the offer in any way, or that he believed that he could disregard the offer with impunity with respect to costs because it did not track subrule (1)(c)(iii) word-for-word. Rather, Mr. Dutra takes what appears to be the highly technical point that if an offer does not contain the exact wording set out in subrule (1)(c)(iii), it does not come within the definition of an “offer to settle” within the meaning of Rule 37B(1) and, therefore, cannot attract an award of double costs.

[19]         Madam Justice Prowse considered both a strict and relaxed interpretation of Rule 37B(1). In doing so, she reviewed the history of Rule 37 and the enactment of Rule 37B.

[20]         She concluded that the enactment of Rule 37B was a move away from strict compliance as was the situation of Rule 37. In considering the offer, Madam Justice Prowse stated at para. 52:

That said, I am also of the view that the wording of the offer must be substantially compliant with the wording of subrule 1(c)(iii) such that no reasonable person could be misled as to the intent of the offer or the fact that it was an offer within the meaning of Rule 37B. In other words, the offer must be in writing, the wording must make it clear what party is making the offer and to whom it is made, and it must include the fact that the party making the offer is reserving the right to bring the offer to the attention of the court in relation to costs after judgment on all other issues in the proceeding.

[21]         The court in Roach upheld the trial judge’s finding that the offer meant the requirements of Rule 37B. At para. 54, Madam Justice Prowse endorsed the trial judge’s admonition that:

…counsel would be well advised to ensure that the language of their offers complies precisely with subrule 1(c)(iii) (and, in future, Rule 9-1) to avoid any possibility of their offers being found deficient. In this case, the offer was made just days after the new rule came into effect. It may be that the same measure of flexibility will not be accorded to offers in the future which are non-compliant. That is especially so if it proves that flexibility in the application of the Rule undermines its purpose of encouraging settlement of disputes in a fair, timely and cost-efficient manner, in accordance with the object and spirit of the Rules as a whole.

Madam Justice Hyslop then dismissed the application for double costs with the following reasons:

[25]         The offer does not meet the criteria set out in Roach. Rules 37(22) and (37) address the consequence of accepting an offer. There is nothing in the offer of the plaintiff to suggest that the plaintiff intends to bring the offer to the trial judge’s attention as it relates to costs.

[26]         The court’s discretion under Rule 37B comes into play after the court determines whether the offer complies with Rule 37B(1)(c) and as interpreted by Roach.

[27]         I dismiss the plaintiff’s application for double costs. The defendant shall have costs of this application pursuant to scale B to be set off against the costs otherwise awarded to the plaintiff.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B so this case will likely retain its value as a precedent moving forward.

ICBC Insurance Benefits, Independent Medical Exams and Witness Immunity


Further to my many previous posts discussing Independent Medical Exams in the context of ICBC Injury Claims, reasons for judgement were released today highlighting a very interesting issue; the ability to sue an Independent Medical Examiner.
When a person is seeking medical benefits from ICBC under their own policy of insurance (Part 7 Benefits) ICBC has the right to send that person for a “medical examination“.  ICBC gets this power from s. 99 of the Insurance (Vehicle) Regulation which holds as follows:

Medical examination

99 (1)  An insured who makes a claim under this Part shall allow a medical practitioner, dentist, physiotherapist or chiropractor selected by the corporation, at the expense of the corporation, to examine the insured as often as it requires.

(2)  The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section.

When ICBC obtains a medical exam under s. 99 they often base their decision of what Part 7 benefits to pay based on the physician’s recommendations.

For a variety of reasons ICBC tends to use a handful of doctors over and over again for these independent examinations.  In turn the business of independent medical exams is quite profitable for some BC doctors.

It is not uncommon for a medical examiner to author a report to ICBC which contradicts the opinions of a person’s treating physicians.  When this happens ICBC sometimes cuts off benefits from an insured even when the treating physicians feel further funding of therapy is appropriate.  When ICBC and an insured differ as to what benefits should be paid the insured can sue ICBC and the Court’s can offer a binding resolution.  What about the independent medical examiners?  Can they be sued?  Reasons for judgement were released today by the BC Supreme Court addressing this very interesting issue.

In today’s case (Mund v. Sovio) the Plaintiff was injured in a 2007 motor vehicle collision.  The Plaintiff applied to ICBC for Part 7 Benefits.  In the course of processing the request for benefits ICBC sent the Plaintiff to Dr. Sovio for a medical examination under section 99.    Dr. Sovio authored an opinion which was apparently harmful to the Plaintiff’s interests in which he stated that:

a) the Plaintiff was “staying at home, not doing any exercise and appears to be content to carry on in this fashion”;

b) “there is nothing to suggest that” the Plaintiff “should be disabled to this degree” and the Plaintiff’s “medical care appears to be somewhat disjointed”;

c) “legal matters” were interfering with the Plaintiff’s case; and

d) the Plaintiff “has a history of [being] off work for an extended period of time in the past and seems content to continue with this role of disability at this time”.

After receiving this report the Plaintiff and ICBC could not agree as to what PArt 7 benefits ought to be paid.  The Plaintiff responded in a unique way, he sued Dr. Sovio directly arguing that Dr. Sovio failed to assess his injuries in “an objective, fair and even handed manner.“.

Dr. Sovio applied to dismiss the lawsuit arguing, despite any consequences the report may have had between the Plaintiff and ICBC with respect to Part 7 benefits, that he owed the Plaintiff “no duty in contract, no duty of insurer-insured good faith and no duty of care in negligence”.  Dr. Sovio went further and argued that even if there was such a duty that the lawsuit had to be dismissed because he had “witness immunity“.

Madam Justice Hyslop of the BC Supreme Court sided with Dr. Sovio’s arguments and dismissed the Plaintiff’s lawsuit.  In doing so the Court made the following critical findings:

[34] Dr. Sovio’s role and relationship with Mr. Mund cannot be greater than that of ICBC.  It is not within the power of Dr. Sovio to determine whether Mr. Mund receives Part 7 benefits.  The power and the exercise of that power is that of ICBC. ..

[37] I find that Dr. Sovio is not in a fiduciary relationship, nor in a doctor/patient relationship, nor is one created between Mr. Mund and Dr. Sovio as a result of the medical examination by Dr. Sovio of Mr. Mund…

[48] In British Columbia, ICBC may choose, pursuant to s. 99, the medical practitioner.  The sole purpose of the s. 99 examination is that the medical practitioner examine the insured.  It is entirely at the discretion of ICBC when, and if, there is an examination.  There is no requirement that the medical practitioner provide a plan of care for the insured such as the Ontario DAC.  The doctor’s opinion is not binding on anyone; neither the insured nor the insurer.  ICBC may use, for different claims, for different insureds, the same medical practitioner time and time again.  ICBC may reject the medical practitioner’s opinion in whole or in part.  It is simply not a process in which the insured participates in other than to present himself or herself to the medical practitioner designated by ICBC…

[71] In Howatt v. Klassen, 2005 CanLll 11191, Dr. Klassen was requested by the College of Physicians and Surgeons of Ontario to examine Dr. Howatt.  That was the extent of the relationship between Dr. Klassen and the plaintiff, Dr. Howatt.  The court concluded that Dr. Klassen acted as an agent and for an appointee of the college.  In dismissing Dr. Howatt’s action, the court stated:

[11]      In any event, I agree with the submission that Dr. Klassen is protected by the common law doctrine of witness immunity, which protects individuals from civil suit based on their status as witnesses or potential witnesses at judicial proceedings.  The case law establishes that this protection is absolute so that even allegations of bad faith are insufficient to exclude the application of the witness immunity doctrine.

[72] A similar situation occurred in N. (M.) v. Forberg, [2009] A.J. No. 253.  The court found a witness immunity applied to a psychologist who counselled children involved in a custody and access dispute.  In proceedings between the parents of the children, the mother of the children asked the psychologist to give an opinion.  The opinion was adverse to the plaintiff father, and the court found the psychologist owed no duty of care, no fiduciary duty to the father and concluded that witness immunity applied, stating the following at para. 57:

If professionals in the field of health care are exposed to the threat of law suits when they intervene on behalf of persons to whom they clearly owe a duty and have determined are vulnerable individuals, there will be a chilling effect on the willingness of health care providers to deliver their necessary assistance to the Court, and to be full and frank in their opinions when doing so.

[73] Similarly, Dr. Sovio, in providing assessments pursuant to s. 99, must not be exposed to the threat of lawsuits for delivering his opinion, even if those opinions or actions are contrary to those of Mr. Mund…

Dr. Sovio is not a public official, but an expert retained by ICBC.  His position is similar to that of Dr. Klassen in Howatt and Ms. Froberg. …

[79] For these reasons, Mr. Mund’s ASC is struck out and the claim dismissed for failure to disclose a reasonable cause of action.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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