Tag: Madam Justice Murray

CRT Blasted For Arbitrary Decision Based on “Non-Existent” Facts

Written by ERIK MAGRAKEN on March 11, 2021. Posted in BC Civil Resolution Tribunal.

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, setting aside a decision of the BC Civil Resolution Tribunal involving a dispute with ICBC addressing fault for a collision and ordering the matter be remitted for proper determination. In the process the BC Supreme Court had noted “the tribunal exercised its discretion arbitrarily and on the basis of predominantly irrelevant and/or non-existent facts“.

In today’s case (Devendra v. British Columbia Civil Resolution Tribunal) the Petitioner was involved in a crash prior to April 1, 2019 (the date the CRT obtained jurisdiction to hear most BC collision cases which was then declared unconstitutional last week). The CRT was accessed based on their jurisdiction not for vehicle collisions specifically but based on their small claims jurisdiction for claims under $5,000.

ICBC found the applicant fully at fault for the crash. The Applicant sued ICBC and the other motorist involved arguing “ICBC refused to properly investigate the incident” and asked that his deductible and increased premiums be returned. At the same time the other motorist sued the Applicant in the BC Supreme Court for alleged negligence causing injuries stemming from the same crash. ICBC “made clear in their written response to the tribunal that liability was not going to be an issue in the BCSC action“. Despite this the CRT decided they were not the appropriate forum to adjudicate the applicants dispute and the issue of fault was better to be decided in the BC Supreme Court. In finding the decision was patently unreasonable and failed to understand their role in a dispute of this nature Madam Justice Murray had the following critical findings:

“Broad” Non Disparagement Clause Makes Settlement Agreement “Unjust to Enforce”

Written by ERIK MAGRAKEN on August 20, 2020. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, finding that the settlement of a personal injury claim could be set aside given the inclusion of a broad non disparagement clause.

In today’s case (Wannan v. Hutchison) the Plaintiff sued for damages for injury and loss she alleges to have suffered as a result of naturopathic treatments performed on her by the defendant. In the course of the lawsuit the Defendant presented a formal settlement offer which the Plaintiff, through her counsel, accepted. As part of the settlement a release had to be signed which included a confidentiality and non-disparagement clause. After accepting the offer the Plaintiff objected to the broad language contained in the non disparagement clause as it prevented her from voicing her concerns about the treatments she received.

The Defendant brought an application to enforce the settlement. The court rejected this finding that “that this is one of those rare cases in which it would be unjust to enforce the agreement.”. In refusing to enforce the settlement Madam Justice Murray provided the following reasons:

ICBC Ordered To Pay “Accelerated Depreciation” Damages Following Vehicle Collision

Written by ERIK MAGRAKEN on May 6, 2019. Posted in Uncategorized.

As I’ve previously written, when a vehicle is involved in a crash and is then repaired it is generally worth less than it would be had it not been damaged. The reason for this is quite simple. When a buyer is looking to purchase a used vehicle, those that have previously been damaged and repaired carry a stigma. This stigma generally results in a lower resale value.

Lawsuit Against Expert Witness Dismissed on Grounds of Witness Immunity

Written by admin on January 2, 2019. Posted in Uncategorized.

In British Columbia expert witnesses in litigation are granted a broad immunity in cases where they are alleged to be negligent or otherwise provide less than adequate services when testifying. Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, applying this principle in dismissing a lawsuit against an expert witness.
In today’s case (Owimar v. Warnett) the Plaintiff was involved in several collisions and sued for damages. In the course of the lawsuits the Defendants retained a physician who “examined the plaintiff three times, provided five medical reports from 2003 to 2013 and testified in court“.
The Plaintiff sued the Doctor and the defence counsel that retained him alleging “various kinds of fraud and negligence in their respective capacities as defence counsel and expert witness and claims that they substituted his lumbar spine x-ray taken in November 1996 with an x-ray that would disprove his claims of being injured in the MVAs.“.
The lawsuits were dismissed for various grounds with the Court noting that “the allegations advanced by the plaintiff are nothing more than wild speculation.“. Additionally, one of the reasons dismissing the claim against the expert witness was the principle of witness immunity. In triggering and applying this doctrine Madam Justice Murray provided the following comments:

[34] With regard to Dr. McGraw I am satisfied that the doctrine of witness immunity applies. Under that doctrine witnesses are immune from civil liability. In addition as for expert witnesses the doctrine applies to anything they say in court as well as pre-trial activities including assessments and reports: P.(J.) v. Eirikson, 2015 BCSC 847 at paras. 21 and 25.

[35] Our Court of Appeal recently confirmed that a professional witness who gives evidence in court is protected from civil action in 311165 BC Ltd v. Canada (A.G.), 2017 BCCA 196:

[50] It must be kept in mind that the immunities from suit that prevent claims based on evidence given in court and on bringing litigation are broad in order to protect the justice system. Witnesses should not be dissuaded from giving evidence or fettered in what they tell a court by the fear that an aggrieved person will sue them. Prosecutorial decisions must be allowed to be made in an atmosphere that is free from the chilling effects of potential civil liability. Access to the courts must not be impeded by leaving litigants in fear of being open to lawsuits brought in retaliation.

[36] As a result of the witness immunity defence I am satisfied that the plaintiff’s allegations against Dr. McGraw will fail. Accordingly there is no genuine issue to be tried and the claim must be dismissed under Rule 9-6(5)(a).

[37] In conclusion, having considered all of the evidence and all of the submissions I am satisfied that the action against the defendants must be dismissed as it offends Rule 9-5(1). In the alternative I am satisfied for the reasons above that the action against the defendants must be dismissed under Rule 9-6.

$80,000 Non-Pecuniary Assessment for Chronic and Disabling Soft Tissue Injuries

Written by admin on February 23, 2018. Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and partly disabling injuries caused in a collision.
In today’s case (Senger v. Graham) the Plaintiff was involved in a 2014 collision. The Defendant accepted fault. The crash caused chronic soft tissue injury which disabled the Plaintiff from her chosen profession as a dental hygienist. In assessing non-pecuniary damages at $80,000 Madam Justice Murray provided the following reasons:

[43] Taking into account all of the evidence I find the following:

i. The injuries suffered in the accident have interfered with Ms. Senger’s schooling, work, household and recreational activities and will continue to do so;

ii. She is limited in her capacity to work as a dental hygienist and will not be able to sustain a career in that field;

iii. Ms. Senger will likely never be able to work full-time;

iv. Her injuries will continue to plague her for the rest of her life. It is unlikely that she will ever be pain free;

v. She has reached her maximum rehabilitation;

vi. Ms. Senger will always require assistance with housekeeping and yard work; and

vii. She will never be able to engage in many of the activities she previously enjoyed.

…

[49] Considering the case law and all of the circumstances, I am satisfied that an award of $80,000 for non-pecuniary damages is appropriate.