Tag: Mr. Justice Fitch

Plaintiff Stripped of $56,207 of Costs and Disbursements for Not Beating Formal Defense Offer at Trial

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, highlighting the judicial flexibility and potential financial risks that come into play when a formal offer of settlement is not beat at trial.
In today’s case (Park v. Targonski) the Plaintiff was injured in a collision and sued for damages.  Prior to trial the Defendants made a formal offer of $321,407.  The Plaintiff declined this offer and proceeded to trial where she was awarded $302,643 after applicable statutory deductions.
The Defendants asked the Court to strip the Plaintiff of her post offer costs and disbursements of $56,207 and further to pay the Defendants’ post offer costs and disbursements of $63,769.
The Court found that the offer ought to have been accepted and that it was appropriate to strip the Plaintiff of her post offer costs and disbursements.  The Court noted, however, that awarding the Defendant their costs would create “an unduly punitive sanction”.  In reaching this conclusion Mr. Justice Fitch provided the following reasons:

[47]         Upon consideration of the above-noted factors, as well as the overall purpose of the rules respecting formal offers, I conclude that, pursuant to Rule 9-1(6)(a), the plaintiff shall have her costs at Scale B up to the date of the offer to settle, but not thereafter.  The costs sanction to the plaintiff arising from this order is significant.  She will be denied her costs and disbursements totaling $56,207 from the date of service of the offer to settle.

[48]         I have given close consideration to whether the defendants should be awarded all or a portion of their costs for steps taken in the proceeding after service of the offer to settle pursuant to Rule 9-1(6)(d).  Balancing the applicable considerations as best I can, I have determined not to make this order.  In my view, it is unnecessary to make this order to give effect to the purposes underlying the rule.  More importantly, and for the reasons already given, doing so in this case would visit upon the plaintiff an unduly punitive sanction – one that fails to give any weight:  (1) to the challenges associated with forecasting how a court might assess her loss of future earning capacity claim; and (2) to the plaintiff’s compromised ability to accurately evaluate her own situation.

[49]         The parties will bear their own costs arising out of this application.

Pain Clinic Treatment a "Mandatory" Item Under ICBC's Part 7 Benefits

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether ICBC’s no-fault benefits cover payment for treatment at a pain clinic.  In short the Court found they do.
In today’s case (Park v. Targonski) the Plaintiff was injured in a collision and sued for damages.  At trial future care costs were awarded including $8,500 for treatments from a pain clinic.  The Defenant argued that these damages should be deducted as ICBC must cover the cost under the Plaintiff’s no fault beneifts.  In agreeing with this submission and finding such treatments are included in ICBC’s no-fault coverage Mr. Justice Fitch provided the following reasons:

[44]         …The narrow issue before me is whether a pain clinic that is focussed on “necessary physical therapy” is a mandatory benefit as contemplated by s. 88(1).

[45]         The mere fact that psychological and/or cognitive obstacles to optimal physical rehabilitation are likely to arise in the administration of what amounts, at its core, to a physical rehabilitation program does not negate the fact that the program is designed to achieve “necessary physical therapy.”  The law must take cognizance of our growing awareness of the intersection between physical and mental therapy.  Indeed, it is difficult to envision aggressive implementation of the sort of active rehabilitation Back in Motion has in mind without necessarily engaging psychological and/or cognitive issues, particularly for an individual in the plaintiff’s situation.  Looking at the issue this way, it is unnecessary and unrealistic to hold that a physical therapy program that incidentally engages psychological and/or cognitive issues ought not to be characterized as a s. 88(1) benefit in circumstances where the language of the provision does not dictate this result.  Further, it is undesirable for courts to embark upon the impossible task of deciding which discrete components of a holistic pain program constitute s. 88(1) benefits because they are purely given to physical therapy, and which components fall outside the scope of s. 88(1) because they engage psychological issues that stand as barriers to the successful implementation of an active rehabilitation program.  Such an approach is not only artificial, it is one that would breed uncertainty and spawn further litigation in an area already beset by what the Court of Appeal in Raguin charitably described as “jurisprudential inconsistencies”.

[46]         As is evident from the foregoing, I favour the result reached on this point in Klonarakis.  In the result, I am of the view that a pain clinic focused on “necessary physical therapy” is a mandatory benefit; one that shall be paid by ICBC even in circumstances where it is anticipated that psychological issues may arise in the implementation of the program.

[47]         As noted in Ayles v. Talastasi, 2000 BCCA 87 at para. 32:

As a claim covered by s. 88(1) I.C.B.C. is obliged to pay the benefits. It is not a matter of discretion under s. 88(2) where entitlement depends “on the opinion of the corporation’s medical adviser”. The risk in deducting too much from the tort award for discretionary benefits is that I.C.B.C. may ultimately refuse to pay on items which although found to be compensable in the tort claim were deducted on the assumption that they would be paid as a no fault benefit. In that instance the claimant is out of pocket for the expense and I.C.B.C. enjoys a windfall. But here the class of future expense is obligatory, not discretionary, and so the plaintiff does not stand to lose anything by the deduction. It is only in circumstances where the classification of the future cost is unclear or an issue arises whether the item is covered by Part 7 at all, that some caution is required.

[48]         As I am satisfied in this case that the pain clinic is a mandatory benefit and that ICBC is obliged to reimburse the plaintiff for all reasonable expenses associated with her attendance at the clinic, there is no uncertainty as to whether this benefit will be paid.

$85,000 Non-Pecuniary Assessment For Persistent Soft Tissue Injuries and Headaches

Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic soft tissue injuries and headaches following a collision.
In today’s case (Snidal v. Spires) the Plaintiff, who was 20 at the time, was involved in a 2010 collision in Parksville BC.  The Defendant admitted fault.  The Plaintiff suffered persistent soft tissue injuries and headaches which were partly disabling and not expected to improve.  In assessing non-pecuniary damages at $85,000 Mr. Justice Fitch provided the following reasons:
[3]             The accident caused persistent soft tissue injuries to the plaintiff’s neck, back and right shoulder.  She continues to experience neck, back and shoulder pain – particularly along the top of her right shoulder.  She has suffered from headaches since the accident, some of which are debilitating…

[131]     The plaintiff is a young woman.  More than four years from the date of the accident, she continues to experience fairly constant pain and occasionally debilitating headaches.  Although her symptoms have likely plateaued, they are now chronic in nature and will be a permanent and regular feature of her daily existence.

[132]     The plaintiff is no longer able to enjoy her favourite recreational activities, nor the active lifestyle she once enjoyed.

[133]     She has become more withdrawn.  Her self-esteem and sense of self-worth were seriously compromised in the aftermath of the accident.

[134]     She experienced a major depressive disorder attributable to the accident and will likely experience some residual, but manageable, symptoms of that disorder in the future.

[135]     In all the circumstances of this case, and applying the factors in Stapley v. Hejslet, I consider an award of $85,000 for non-pecuniary damages to be just and appropriate.

$100,000 Non-Pecuniary Assessment for Shoulder and Knee Injury

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a knee and shoulder injury sustained in two motor vehicle collisions.
In last week’s case (Wong v. Hemmings) the 36 year old Plaintiff was injured in two collisions, the first in 2006 and the second in 2008.  These caused a fairly serious shoulder injury which, despite extensive therapy, did not fully recover and was expected to pose ongoing problems in the Plaintiff’s vocation as a server into the future.  In addition to this, the Plaintiff suffered a knee injury which also lingered on.  In assessing non-pecuniary damages at $100,000 Mr. Justice Fitch provided the following reasons:

[111] In assessing non-pecuniary damages, I have had regard to the following considerations. The plaintiff is a young woman. She has endured 5 1/2 years of significant shoulder and, to a lesser extent, knee pain as a consequence of the two accidents.

[112] She has undergone two injections of anesthetic and corticosteroids into her shoulder and has tried a number of different types of therapeutic interventions to obtain pain relief. Her pain is undoubtedly exacerbated by the weight bearing demands of her position. Despite this, the plaintiff has continued to work as a server because that position affords her the best opportunity to provide for herself and for her daughter.

[113] In October, 2010 plaintiff underwent arthroscopic subacromial decompression surgery on her left shoulder in addition to an arthroscopic procedure designed to reduce pain associated with her biceps tendon. That procedure was conducted as a result of Dr. Regan’s fear that if no intervention was tried, the plaintiff was going to be left with a permanent partial disability that could limit her ability to continue in the workforce given the demands of her job. Dr. Regan was frank in his pre-surgical assessment that if she did not benefit from these procedures, she would likely suffer long-term consequences, including permanence of her pain pattern affecting her shoulder which would limit her from doing repetitive above shoulder height activities or repetitive lifting activities. While the subacromial bursal excision provided the plaintiff with some relief, she continues to experience pain over the biceps tendon which is likely aggravated by her work duties. Dr. Regan concluded that while her left shoulder was improved from its pre-operative status, it would not improve in the future. One further surgical procedure could be performed on the plaintiff’s shoulder but this would require her to be off work for between three and four months. Dr. Regan testified that he would only undertake this procedure if the plaintiff continued to suffer pain associated with the activities of daily living despite quitting her job. Although the arthroscopic surgery was a partial success, the fears expressed by Dr. Regan prior to the surgery have now largely come to pass.

[114] With respect to her left knee, Dr. Regan concluded that the plaintiff was continuing to suffer pain associated with an injury caused by the first accident to her peroneal nerve. He is of the opinion that a cortisone injection is unlikely to help the situation at this time. If the plaintiff’s symptoms worsen over time, a further surgical procedure with a six to eight week recovery period is the only treatment option available to her.

[115] With respect to the plaintiff’s myofascial pain, Dr. Regan expressed the view that while the condition will likely settle, the plaintiff’s recovery will be prolonged and she may be left with chronic pain in the left side of her neck and the trapezius, levitator scapula and paraspinal muscles in her neck and back.

[116] Dr. Anton similarly opines that while the plaintiff had a reasonably good outcome from her shoulder impingement surgery, she is not pain free and has essentially exhausted surgical and non-surgical options for her left shoulder. He concludes that the prognosis for further improvement of her left shoulder is poor as long as she continues in her current work. In fact, he concludes that so long as the plaintiff continues in her current position, she will experience shoulder pain. Even if the plaintiff finds suitable alternative employment, Dr. Anton is of the view that she will probably be at increased risk for episodes of pain in her left shoulder indefinitely. With respect to her left knee, Dr. Anton is of the view that the plaintiff continues to have irritation of the peroneal nerve and that the prognosis for improvement is uncertain.

[117] In short, the injuries suffered by the plaintiff in the two accidents are serious, have caused long-term and ongoing pain which may, insofar as the myofascial pain is concerned, be chronic in nature. Those injuries have not been resolved by various types of surgical and non-surgical treatment. The plaintiff will continue to suffer pain in the future which will be aggravated by the repetitive, weight bearing demands of her job as a server.

[118] Prior to the accidents, the plaintiff was a vigorous, energetic and physically active person who participated in a broad range of sporting activities. Constant pain and sleep deprivation have made her less energetic and much less inclined to participate in the kinds of sporting activities she enjoyed before the accidents. The plaintiff’s continuing symptoms have significantly affected her lifestyle. For an individual who uses physical activity to promote good mental health, the loss to the plaintiff in this regard has been significant.

[119] Perhaps even more significantly, the accidents and the symptoms that the plaintiff continues to experience have caused her to become more socially withdrawn. She is moodier and less patient with others, including with her daughter, Brooke. I find that the accidents have resulted in a significant loss of enjoyment of life and some impairment of the plaintiff’s social relationships.

[120] The plaintiff’s injuries have also taken an emotional toll. The plaintiff has carried the burden of supporting herself and her daughter as a single mother. She continues to work through pain because she feels she has no choice to do otherwise. She faces the stress of an uncertain medical and financial future with the possibility of additional surgical interventions in relation to her left shoulder and left knee.

[121] The accidents have significantly impacted the plaintiff in physical, emotional and social ways. They are likely to have that impact into the future and will certainly persist as long as the plaintiff continues to work as a server.

[122] In all the circumstances, I assess non-pecuniary damages at $100,000.00.

Undeclared Income Compensation and the Reality of Trial Testimony


As previously discussed, while income loss from ‘under the table’ earnings can be recovered in a personal injury claim in BC, doing so often requires testifying to untruthful past tax filings with respect to past earnings.  The papertrail this creates puts plaintiffs with undeclared earnings in a difficult position if they seek to recover damages for their full losses as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Wong v. Hemmings) the Plaintiff was injured in two collisions.  She worked as a server for the Fairmont Hotel.  As with many servers, her income was derived from wages and tips.  Her injuries impacted her vocational abilities and damages were awarded for past and future diminished earning capacity.  In presenting her case the Plaintiff presented evidence as to her actual earnings which differed from her declared earnings to Revenue Canada.  Mr. Justice Fitch summarized this evidence as follows and provided the following comments with respect to her undeclared earnings:

[75] It is noteworthy that the plaintiff was informed by the Fairmont, in writing, in early 2011 that her gratuities from credit card sales alone for 2010 were $30,652.82. The plaintiff was advised by her employer that, “this information may be helpful to you when you are preparing your 2010 tax return”.

[76] The plaintiff testified that she makes about $63,000.00 a year. She said it is her practice to declare about $5,000.00 in tip income each year. She is aware that she is obliged to declare all income, including tips and gratuities, on her tax return. She testified that she was, “following industry standard” in not declaring the full amount of her tips and gratuities. She testified that she does not know anyone in the restaurant service industry who declares the full amount of their tips. Having said that, the plaintiff admitted knowing that failing to declare all of her tips and gratuities was wrong. She testified that she could not have supported herself and her daughter had she declared and been taxed on the full amount of her income. She testified that, consistent with her past practice, it was not her intention to declare the full amount of her tip income on her 2011 tax return…

[125] The defendants assert that the plaintiff should not be granted a past wage loss award that includes undeclared tips. They assert this position to preserve an ability to argue the issue in another forum as counsel for the defendants otherwise concedes that this Court is bound by Iannone v. Hoogenraad (1992), 66 B.C.L.R. (2d) 106 (C.A.), leave to appeal dismissed [1992] S.C.C.A. No. 185, which holds that failure to declare tip income is no bar to the recovery of undeclared tips as past wage loss.

[126] The defendants also submit that the plaintiff has failed to establish what she would have earned in gratuities on her cash sales. As noted above, the Fairmont’s records reflect only the total amount of the plaintiff’s cash sales as a server. Any tip received by a server on a cash sale would be known only to them. The defendants point out that in 2006, for example, and assuming an average 12% tip on cash sales, the tips received by the plaintiff on cash sales represented 8.6% of her total tip earnings. Using this as a baseline, the defendants argue that the plaintiff’s past tip loss should be discounted by 8.6% to reflect the amount of cash tips allegedly lost but not proven.

[127] The defendants are, at least in theory, on firmer ground on this issue. Iannone stands for the proposition that the plaintiff has the burden of leading evidence of past wage loss and that it will be a difficult burden to discharge where there is no confirmatory evidence, such as income tax returns, to establish that the amount claimed would, in fact, have been earned. In this case, however, I am satisfied that the plaintiff has met her burden of proof on this issue. The records of the Fairmont Hotel clearly establish the total of the plaintiff’s cash sales as a server. The plaintiff testified that she would receive, on average, a 12% tip on her cash sales. I accept her evidence on this point.

Discovery Evidence and the Principled Exception to the Hearsay Rule


As previously discussed, one of the limits of examination for discovery evidence at trial is that it is generally only admissible against the person being examined.   Rule 12-5(46) permits the Court to make exceptions to this restriction in appropriate circumstances.  Reasons for judgement were released earlier this year by the BC Supreme Court, Vancouver Registry, addressing one such exception.
In the recent case (Yamakami v. Whittey) the Plaintiff was injured in an intersection crash.  Fault was contested.  In the course of the lawsuit the Defendant was examined for discovery.  Prior to trial the Defendant died.
The Defendant’s lawyer wished to rely on his examination transcript at trial in support of the Defence case.  Mr. Justice Fitch allowed this finding it was necessary to do so.  Interestingly, although the Court admitted the evidence finding that an examination for discovery created the necessary safeguards to meet the principled exception to the hearsay rule, the Court ultimately placed little weight on the Defendant’s version of events.  In allowing the evidence to be introduced Mr. Justice Fitch provide the following reasons:
[3] Mr. Whittey, who was 81 years of age when the accident occurred, died before trial but after his examination for discovery was completed on May 11, 2010. Counsel for the defendants applied at the outset of the trial to have his examination for discovery admitted in evidence for the truth of its contents under the principled approach to the hearsay rule. The application was opposed. As Mr. Whittey was deceased at the time of trial, the necessity criterion was met. Counsel for the plaintiff argued that despite the existence of process-based substitutes compensating for the loss of an ability to engage in contemporaneous cross-examination of the defendant (the oath, cross-examination and the existence of a verbatim record of the examination for discovery) the evidence Mr. Whittey gave on the examination for discovery was so inherently unreliable that the test of threshold reliability at the admission stage was not met. In oral reasons for judgment delivered November 4, 2011, I concluded that the process-based compensators present in this case provided a satisfactory basis for evaluating the reliability of the evidence in issue. Accordingly, I exercised my discretion to admit the evidence but made clear that it was for me, at the end of the day, to determine the ultimate or actual reliability of the evidence and the weight it should be accorded.

Driver Faultless for Intersection Crash Despite Turning Left on Red

A reality at busy intersections is that drivers, after committing to an intersection on a green light, sometimes need to wait until the light turns red to complete their turn.  If a crash occurs in these circumstances a driver can (depending on the specific facts of course) be found faultess for the collision.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such a scenario.
In this week’s case (Yanakami v. Whittey) the Plaintiff was attempting a left hand turn.  She committed to the intersection.  After her light turned red vehicles in two of the three oncoming lanes came to a stop.  At this time she proceeded to complete her turn.  The Defendant, who was travelling in the third oncoming lane, ran the red light and a collision occurred.

Mr. Justice Fitch found the Defendant fully at fault for the crash.  In doing so the Court provided the following reasons:

[62] Against the background of this discussion, I make the following factual findings:

1. the plaintiff began her left turn immediately after the light for east and westbound traffic changed to red;

2. two other vehicles traveling east had come to a stop at the intersection in the curb and centre-line lanes;

3. the plaintiff was cognizant of, and attentive to, the considerations one would expect to be in the mind of a reasonably prudent driver including the colour of the traffic light, the location and speed of oncoming traffic, the location of Mr. Whittey’s vehicle at various points in time, including when the light turned red, and the potential for there to be pedestrians walking to the south in her intended path of travel;

4. Mr. Whittey had ample time to stop before the intersection and do so in safety, just as two other eastbound vehicles had done, when the light changed to yellow;

5. the plaintiff concluded, and was entitled in fact and in law to conclude, that the defendant’s vehicle did not present a hazard, that he had plenty of time stop (as other vehicles had done) and that it was safe for her to proceed with her left turn;

6. the defendant was not being attentive to the factors a reasonably prudent driver would have been attentive to before the collision, including the presence of the plaintiff’s vehicle in the westbound left turn lane immediately in front of him or the fact  that a car had already come to a stop ahead of him in the eastbound centre-line lane. This conclusion is supported by the defendant’s own admission that he was not looking at the left turn lane for westbound traffic as he approached the intersection because it was not important for him to do so;

7. Mr. Whittey entered the intersection after the light turned red;

8. the plaintiff could not possibly have taken evasive action at that point to avoid the collision.

[63] Applying these facts to the applicable law, I am satisfied that this accident was caused solely by the negligent driving of the defendant, Mr. Whittey.

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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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