Tag: Master Elwood

Court Comments on “Disproportionate Burden” Of ICBC 6% Disbursement Regulation

Written by ERIK MAGRAKEN on October 13, 2021. Posted in Uncategorized.

Earlier this year a regulation came into force artificially limiting the recoverable disbursements in many motor vehicle actions to 6% of the damages. The government made little effort in disguising that this rule was brought in to save a single litigant money, namely ICBC.

In one of the first judicial comments on the regulation the Court noted that this rule places a disproportionate burden on plaintiff’s in proving their claims.

In today’s case (Zhang v. Scrott) the Plaintiff was injured in a 2018 collision (predating the retroactive regulation) and sued for damages. In advancing his claim the Plaintiff noted his disbursements may exceed the 6% cap. The Defendant applied for a defence medical exam. The Plaintiff argued this should be denied because if granted the plaintiff may need responsive evidence which would then result in further disbursements beyond the recoverable cap.

The Court, while granting the application, noted with a more fulsome record a litigant may succeed in arguing that the cap “upsets the balance of fairness and equality. In an appropriate case, it might be argued that the limit on recoverable disbursements weighs against an additional IME by the defence.”

In granting the application but noting the regulation’s disproportionate burden Master Elwood provided the following reasons:

Expert Report Privilege Waived With Disclsoure to Disability Carrier

Written by ERIK MAGRAKEN on November 19, 2019. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff involved in a vehicle collision injury claim to turn over an otherwise privileged report to the Defendant because the report had been previously disclosed to the Plaintiff’s disability benefits provider.

In today’s case (Malimon v. Kwok) the Plaintiff was involved in a 2015 collision and sued for damages. In the course of the lawsuit the Plaintiff obtained a medico-legal report from a physiatrist. The Plaintiff did not disclose the report to the Defendants maintaining a claim of litigation privilege.

The Plaintiff did share a copy of the report with her long-term disability benefits provider hoping it would assist in their assessment of her claim.

The Defendants succeeded in obtaining an order that the above disclosure waived litigation privilege and the BC Supreme Court ordered that a copy be provided to them. In reaching this decision Master Elwood provided the following reasons:

Somatic Symptom Disorder Not “Too Complex” For Jury Trial

Written by ERIK MAGRAKEN on August 7, 2019. Posted in BCSC Civil Rule 12.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, considering whether a claim involving psychological injury was too complex for a jury trial.

In today’s case (Lee v. Averbach) the Plaintiff was involved in two collisions and sued for damages. The Defendants elected trial by jury. The Plaintiff argued given the medical evidence the claim was too complex for a jury trial. The court disagreed and dismissed the Plaintiff’s application to strike the jury notice. In doing so Master Elwood provided the following reasons:

When a Two Year Limitation Period is Actually Three

Written by ERIK MAGRAKEN on July 18, 2019. Posted in BCSC Civil Rule 6.

In British Columbia many legal claims are subject to a two year limitation period. Once a lawsuit is started in the BC Supreme Court a Plaintiff has a year to serve the claim on the Defendants being sued. This period, totalling potentially three years, is considered when adding new parties to an existing lawsuit as demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.

In today’s case (Jamal v. Young) the Plaintiff was involved in a series of collisions and sued for damages. The Plaintiff sought to add more parties to one of the claims beyond the expiration of the two year limitation period. The application was opposed with the Defendants arguing the passage of time and limitation period was prejudicial. The Court granted the application noting the relevant period to consider prejudice in these circumstances is three years. Master Elwood provided the following useful summary of the law:

ICBC Jury Trial Request Denied Where In House Counsel Failed to File Jury Notice in Time

Written by ERIK MAGRAKEN on June 25, 2019. Posted in BCSC Civil Rule 12, BCSC Civil Rule 22, Jury Trials.

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, dismissing an ICBC application to lengthen the applicable time frame to file a jury notice.

In today’s case (Chapman-Fluker v. Gustavson) the Plaintiff was injured in a collision and sued for damages. The Defendants, insured by ICBC and initially represented by in house counsel, failed to file a jury notice in the applicable time frame.

Months before trial the Defendants applied to allow them to file their jury notice beyond the specified time limits.