Tag: Mr. Justice Funt

“Little Weight” Given To ICBC Experts in Three Cases Released Today

The BC government is making more noise about Rule of Court reforms regarding expert opinion evidence in personal injury cases in an effort to save ICBC money.  Their not so subtle message is that Plaintiff’s hire too many experts to prove their claims.  If cases released by the BC Supreme Court today are any guide it is ICBC that is in need of reform when it comes to the practice of hiring physicians hoping to refute collision related injuries.

In three separate cases published today by the BC Supreme Court three separate judges found ICBC hired expert opinions deserved “little weight“.

In the first case (Francello v. Cupskey) the Plaintiff was injured in two collisions.  ICBC retained a physician who provided opinion evidence minimizing the Plaintiffs injuries in connection to the crash.  In finding this opinion deserved “little weight” Mr. Justice Burnyeat provided the following comments:

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Injury Claim from Tenant Walking Into a Refrigerator Dismissed

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing an injury claim arising after a tenant walked into a refrigerator.

In today’s case (Van Hartevelt v. Oita Investments (BC) Ltd.) the Plaintiff was a tenant in an apartment complex owned by the Defendant.  A refrigerator was left in the hallway for several days.  The Plaintiff, who was aware the refrigerator was present, walked into it and allegedly injured his knee.  He sued for damages but the claim was dismissed finding that he was the author of his own misfortune.

In dismissing the claim Mr Justice Funt provided the following reasons:

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Court – Consent to Defendant Medical Exam Terms Or Risk Claim Dismissal

Forced consent is a strange concept and one that has found its way into injury litigation yet again.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a plaintiff to attend a Defence medical exam and to sign a consent form or risk claim dismissal.
In today’s case (Gill v. Wal-Mart Corporation) the Plaintiff alleged injury following a slip and fall.  The Plaintiff agreed to attend an independent medical assessment requested by the Defendant but refused to sign the doctor’s ‘consent’ form.  In ordering the Plaintiff to sign or risk claim dismissal Mr. Justice Funt provided the following reasons:

[39]         With respect to the Master’s second reason that the plaintiff would not be signing the form of consent voluntarily, I respectfully disagree. The plaintiff may choose not to sign the consent form in which case the IME will not be conducted. The defendant may, however, bring an application to strike the plaintiff’s claim against the defendant.

[40]         Although not necessary having regard to the binding authority of Kalaora, I note that the case at bar is readily distinguishable from Peel where our Court of Appeal set aside an order requiring particular parties to endorse a “consent order”. Ordering endorsement of a “consent” court order is not consent. In the case at bar, in context, the court is not forcing the plaintiff to sign the form of consent. If the plaintiff chooses not to sign the form of consent, the plaintiff’s claim may be struck. It is the plaintiff’s choice…

[52]         The plaintiff is ordered to sign the subject form of consent used by Dr. Travlos. If the plaintiff refuses to sign the form of consent, the defendant, Mr. Pandher, is at liberty to apply to have the plaintiff’s claim struck.

ICBC's "Casual Disregard" of Court Order Results in Steep Costs Punishment

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, hitting ICBC with a steep costs award for the “casual disregard” of a Court disclosure order.
In today’s case (Norris v. Burgess) the Plaintiff was injured in a 2010 collision and sued for damages.  Prior to trial ICBC offered to settle the claim for $678,500.  The Plaintiff rejected this offer and proceeded to trial where a jury awarded $462,374.  After statutory Part 7 deductions the amount was reduced by $70,196.
Normally where a Plaintiff is awarded less than a defence formal settlement offer they are stripped of some of their costs and sometimes ordered to pay some of the Defendant’s costs.  ICBC sought such a result but the Court refused.  Mr. Justice Funt instead ordered that ICBC pay the Plaintiff an additional $155,340.86 in ‘special costs’ because the insurer disregarded a Court order to produce surveillance evidence.  In reaching this decision Mr. Justice Funt provided the following reasons:
[65] As noted, at the October 20, 2015 trial management conference, Justice Koenigsberg ordered the listing and description of any surveillance or video to occur on or before October 23, 2015. The existence of the 2015 Video was not disclosed until the start of the fourth week of trial and was, as Mr. Miller stated, harmful to the defence.
[66] ICBC is a public insurance company and an agent of our provincial government. It is a sophisticated litigant which assumes conduct of trials on behalf of many insureds in our province.
[67] A simple “pilot check” by ICBC, possibly in the form of an email or call to Mr. Levy, a review of its paid surveillance video invoices, or a review of its file notes, would have revealed the existence of the 2015 Video. The Court finds that ICBC showed a casual disregard for the October 20, 2015 Court Order; an order designed to ensure that the scheduled jury trial was heard without surprises or ambush.
[68] Mr. Miller stated that an ICBC adjuster often handles a large number of files and that this may explain the late disclosure of the 2015 Video. If ICBC adjusters are overworked and therefore prone to make mistakes, then it was incumbent on ICBC, on being told by its counsel of the October 20, 2015 Court Order, to ensure that a mistake had not been made.
[69] The late disclosure affected the efficient administration of justice. It required plaintiff’s counsel to consider the plaintiff’s options, and likely discuss and receive instructions on a significant matter just as the plaintiff’s case was about to close, rather than be focused on the conduct of the plaintiff’s case..

[75]         When a jury trial is disrupted and affected by the actions of a party, the court’s rebuke or reproof is more likely warranted.

[76]         The reputation of the court was also affected. Especially with a jury trial, a reasonable member of the public would have questioned the efficient workings of the trial and, more generally, the efficient administration of justice. He or she would question the significance and respect ICBC gives a court order designed to avoid surprise and trial unfairness.

[77]         Finally, the video surveillance for all three years was central to the trial generally. Of course, the actual weight given to this evidence remains in the jury room, as it properly must.

[78]         In sum, ICBC’s casual disregard for the disclosure rules, especially when reinforced by the October 20, 2015 Court Order, warrants rebuke in the form of an award of special costs.

 
 

Plaintiff Allowed To Tell Jury About Defence Medical Exam That Resulted in no Report

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, confirming it is fair game for a plaintiff to testify they attended a defence medical exam where no report was produced and the Defence is not relying on opinion evidence from their expert.
In the recent case (Norris v. Burgess) the Plaintiff alleged injury as a result of two collisions.  The Defendants denied any injury occurred.  In the course of the lawsuit the Plaintiff attended a defence medical appointment with a psychiatrist.  The Defendants “chose not to obtain a medical opinion from the psychiatrist” and did not call him as a witness.  In the course of trial the Defendants objected to the Plaintiff testifying “as to her attendance and surrounding circumstances of the independent medical examination“.
In ruling that such testimony is fair game Mr. Justice Funt provided the following reasons:

[12]        The Court will rule in the plaintiff’s favour.

[13]        As Rule 7-6 of the Supreme Court Civil Rules contemplates, an individual medical examination may be ordered where the “physical or mental condition of a person is in issue”. In this case, the independent medical examination was not pursuant to a court order. The Rule, however, illustrates that an independent medical examination will usually occur only where there is a physical or mental condition in issue.

[14]        The plaintiff’s medical condition is clearly in issue. Where the defence asserts that the plaintiff may have exaggerated her injuries, steps taken by the plaintiff at the request of the defence may be relevant.

[15]        Even if there were for closing argument an agreed stipulation of the plaintiff’s attendance at the independent medical examination, I would prefer that the evidence be led as part of the plaintiff’s case. I would be concerned that the jury could be confused. Evidence and argument should be kept separate.

[16]        Civil litigation is adversarial and litigant-driven. Where one party asks that the other party attend an interview or examination with a third person (whether or not that person is an expert) and the other party so attends, the requesting party should not be surprised that the interview or examination may be relevant with evidentiary consequences, including the possibility of an adverse inference. An unwanted but foreseeable consequence does not give rise to unfair prejudice.

[17]        In short, plaintiff’s counsel may lead evidence as to the plaintiff’s attendance, and surrounding circumstances, regarding the independent medical examination requested by the defendants.

$140,000 Non-Pecuniary Assessment For Permanent Low Back Nerve Injury

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing damages for a permanent low back nerve injury with accompanying depression.
In today’s case (Bellaisac v. Mara) the Plaintiff, who was described by the Court as “an uncomplicated man who enjoys life’s simple pleasures, including those of hard physical labour” was injured in a 2009 rear end collision.  The crash caused L5-S1 Disc Injury which impacted and permanently injured the S1 nerve root.  In describing the injury and prognosis the Court accepted the following medical evidence –

[36]         Dr. J. Fuller was called by the plaintiff. Dr. Fuller’s key opinions with respect to the plaintiff’s back are set forth in paragraphs 41 and 43 of his March 18, 2014 report:

41. With reference to the low back, the primary finding remains a significant L5-S1 disc protrusion now detected both on CT scan taken at Surrey Memorial Hospital on February 22nd and further MRI of the lumbosacral spine taken at Surrey Memorial Hospital on July 7, 2012. He also presents with a further CT scan of the lumbosacral spine taken at Jim Pattison Outpatient Clinic October 17, 2012. These further investigations merely confirmed the presence of the L5-S1 disc with probable compromise to the S1 roots. His clinical presentation at this juncture is more suggestive of compromise to the left S1 root in that he presents with weakness of calf musculature. He demonstrates at this juncture a degree of root tension on the left, probably involving the left S1 root. There is the probable hyperactivity of the left ankle reflex. There is also numbness of the sole of the left foot and weakness of plantar flexion/pointing the foot downward. All these signs involve the S1 root. There therefore appears to be little reasonable discussion as to the cause of his persistent symptoms.

43. As has been previously discussed, he has really exhausted conservative/nonoperative therapeutic options. On the other hand, he is a poor candidate for surgical intervention. It is now four years and eight months since the motor vehicle accident of July 6, 2009. His symptoms can therefore be considered to be established and it is probable that the trauma to the left S1 root is irreversible. It is also significant that his primary concern has been low back pain. The results of discectomy/removal of a protruding disc are less successful when directed towards low back pain as opposed to severe sciatic pain. He can therefore be considered to have reached maximal medical recovery as was indicated in my previous report of April 13, 2012 page nine, paragraph 45. I would in fact strongly oppose surgical intervention at this juncture in that the prognosis for success is indeed poor.

In assessing non-pecuniary damages at $140,000 Mr. Justice Funt provided the following reasons:

[71]         The Court will award the plaintiff $140,000 in non-pecuniary damages. In considering the various factors, the Court has placed particular weight on the plaintiff’s age, which favours an award larger than if he were much older. He will be living with chronic back pain and fluctuating chronic depression for the rest of his life.

[72]         In making the award, the Court considered the fact that Dr. Fisher, in his March 12, 2014 report, mentions the possibility of surgery. As noted, in his April 13, 2012 report Dr. Fuller states:

43. As has been previously discussed, he has really exhausted conservative/nonoperative therapeutic options. On the other hand, he is a poor candidate for surgical intervention. It is now four years and eight months since the motor vehicle accident of July 6, 2009. His symptoms can therefore be considered to be established and it is probable that the trauma to the left S1 root is irreversible. It is also significant that his primary concern has been low back pain. The results of discectomy/removal of a protruding disc are less successful when directed towards low back pain as opposed to severe sciatic pain. He can therefore be considered to have reached maximal medical recovery as was indicated in my previous report of April 13, 2012 page nine, paragraph 45. I would in fact strongly oppose surgical intervention at this juncture in that the prognosis for success is indeed poor.

[73]         With Dr. Fuller’s opinion in mind the Court finds that the future possibility of lower back surgery is not a real and substantial possibility.

Passenger Found 40% At Fault For Riding in Over-Crowded, Speeding Vehicle

Update October 26, 2016Today the BC Court of Appeal overturned the finding of contributory negligence but otherwise left intact the trial reasons rejecting much of the Plaintiff’s claim
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Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, largely rejecting a personal injury claim from a Plaintiff who sustained modest injuries in a 2009 roll-over collision.
In today’s case (Wormald v. Chiarot) the Plaintiff was 15 year old passenger in the Defendant’s vehicle at the time of the collision.  The Defendant had a Novice licence and had 9 passengers in her vehicle ‘far exceeding its designed capacity’.  The vehicle’s passengers encouraged the driver to speed, who did so and ultimately lost control of the vehicle, rolling several times coming to a stop in a ditch.
The Plaintiff sued for damages arguing she suffered serious injuries and sought approximately $250,000 in damages.  The Plaintiff’s claim was largely rejected with the Court noting that the Plaintiff’s evidence was not entirely reliable.
The Court assessed damages for the Plaintiff’s scars, bruises, scrapes and cuts at $8,000 and then reduced these by 40% due to the Plaintiff’s contributory negligence.  In reaching this deduction Mr. Justice Funt provided the following reasons:

[52]         In assessing Ms. Wormald’s contributory negligence, the Court has considered that she knew that:

(a)       Ms. Chiarot had a novice licence;

(b)       Ms. Chiarot had been drinking, contrary to her novice licence;

(c)        Ms. Chiarot had more passengers in the vehicle than was allowed by her novice licence;

(d)       the vehicle had more occupants in it than it was designed to carry;

(e)       over the course of the night in question, she had several opportunities to remove herself from the situation but did not do so;

(f)         she sat in an area of the vehicle where she knew there were no seatbelts; and,

(g)       the other occupants planned to throw eggs at people from the moving vehicle (with the reasonable expectation that the vehicle might be chased).

[53]         With respect to Ms. Wormald’s failure to wear a seatbelt, the Court notes that she was not thrown from the vehicle. There was no evidence presented that her injuries would have been any different if she had been wearing a seatbelt. Accordingly, the Court will ignore this factor in assessing Ms. Wormald’s contributory negligence based on the rule in Koopman v. Fehr (1993), 81 B.C.L.R. (2d) 145 (BCCA).

[54]         The Court has also considered Ms. Chiarot’s involvement. She would have known everything Ms. Wormald knew regarding the situation and, moreover, as the driver of the vehicle, would have had control of the situation. Accordingly, Ms. Chiarot was at greater fault than Ms. Wormald. The Court finds Ms. Wormald to be 40% at fault.

Overstating Severity of Collision Leads to Claim Dismissal Following Low Velocity Impact

Update February 18, 2016 – the below case was overturned on appeal with a new trial being ordered with the Court of Appeal expressing concern that the trial judge failed “to offer any explanation of his reasons for rejecting important corrobative evidence“.
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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dismissing a personal injury claim following a minor collision.
In today’s case (Andraws v. Anslow) the Plaintiff was involved in modest rear end collision in 2011 which the Defendant took full responsibility for.  The Plaintiff went to hospital via ambulance following the incident and participated in some therapies thereafter.  The Plaintiff sought damages of over $65,000 but the claim was rejected in its entirety with the Court noting that the Plaintiff failed to meet her burden in proving the modest collision caused her injuries.  In reaching this decision the court was troubled with the plaintiff’s “overstatement” of the severity of the collision.  In dismissing the claim and ordering the Plaintiff to pay the Defendant’s costs Mr. Justice Funt provided the following reasons:

[8]             The collision occurred at very low speed.  The defendant’s car was behind the plaintiff’s van in a line leaving Guildford Mall.  The line was merging into available breaks in traffic so that egress onto 152nd Avenue could be made safely.

[9]             The plaintiff did not see the collision develop.  She only felt the impact of the defendant’s car.  She described the collision as a “hard hit” and that her chest hit the steering wheel.  The plaintiff testified her car was pushed forward but could not say how far forward.  The coffee in a cup-holder spilled.  The plaintiff’s friend, who was in the front passenger seat of the van at the time of the accident, did not testify…

13]         The defendant is an older gentleman.  He was an RAF pilot in World War II.  Age has treated him well.  He enjoys a clarity of expression and a quick mind.

[14]         As the defendant described the collision, he was behind the plaintiff as her van edged towards 152nd Avenue.  He did not see the van stop and his vehicle rolled into it.  The defendant estimated the speed of his car as “dribbling along” at approximately 2-3 kph, a “drifting speed”.  He acknowledged there was a “sudden bang” when the plaintiff’s van was bumped, not “hit”.  He felt little impact.  A Kleenex box resting on the rear seat of the defendant’s car remained in place, and did not fall to the floor upon impact.

[15]         The defendant suffered no injuries as a result of the accident. He initially thought there was no need to exchange information with the plaintiff because he could see no damage other than possible scuff marks on the van’s bumper…

[38]         The burden remains on the plaintiff to prove to the Court the nature and extent of his or her injuries and that these injuries were caused by the defendant’s negligence, whether the collision is minor or major.

[39]         The defendant’s description of the collision was consistent with the cosmetic damage to each vehicle and the overall traffic configuration at the time of the collision.  The Court finds that the collision involved only minor forces.  The plaintiff has overstated the severity of the collision.

[40]         A collision of minimal forces makes it more probable that there would not be serious injury.  As noted above, Dr. Parikh’s opinion was that the plaintiff was totally disabled from any type of employment requiring the continued use her upper and lower back muscles for almost a year.  In his deposition, he testified that the plaintiff would be “capable of some sort of sedentary-type job within six months of her injury, after she’d completed as session — extended session of physiotherapy”.  As noted above, based on questionnaires completed by the plaintiff, as of January of this year, Mr. Teh, the kinesiologist, described the then-current disability in the plaintiff’s upper body and neck as “severe”.

[41]         The Court finds that the plaintiff has not been sufficiently reliable to prove her claim on a balance of probabilities.  As described above, the Court finds that the plaintiff overstated the severity of the collision.  Without foundational reliability, the Court is not satisfied on a balance of probabilities that her complaints reflect any injury arising from the collision.  As the Supreme Court of Canada in F.H. also stated (at para. 46): “evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test”.

[42]         Without sufficient reliable evidence, the Court finds that no injuries were occasioned by the accident.  The plaintiff has not discharged her burden of proof.

Mitigation of Damages – "The Law Does Not Encourage Indolence"

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, reducing a Plaintiff’s pain and suffering award by 20% for failure to take reasonable steps to mitigate damages.
In today’s case (Rasmussen v. Blower) the Plaintiff was involved in a 2008 rear end collision.  Fault was admitted.  The Plaintiff suffered “whiplash type injuries” with some symptoms persisting to the time of trial.  The Court found that the Plaintiff failed to follow reasonable treatments recommended to him.  In reducing his non-pecuniary damages by 20% as a result of this Mr. Justice Funt provided the following reasons:

[38]         The law does not encourage indolence.  An injured party has a duty to mitigate:  see Graham v. Rogers, 2001 BCCA 432, at para. 35.  In this type of case, the plaintiff must seek and follow the advice of his or her physician with the goal of overall improvement and recovery.

[39]         Regarding lack of mitigation, plaintiff’s counsel submits that the plaintiff did not follow the recommended treatment of physiotherapy and massage, stating that the two sessions that he did attend were painful, that he was constantly travelling, and that he could not afford the treatments.

[40]         The Court rejects the plaintiff’s reasons for failure to mitigate.  Realistically speaking, perseverance is often the key to allowing medical treatments a chance to work.  During the approximately three months for which the plaintiff claims past wage loss, he could have attended physiotherapy and massage sessions.  The Court is satisfied that he had sufficient funds or, as noted by defence counsel, he could have claimed Part 7 benefits (Insurance (Vehicle) Regulation, B.C. Reg. 447/83, Part 7).

[41]         The defendant did not argue that, if the plaintiff had followed the medical advice he received, the plaintiff’s injuries would have resolved within “6 months to a year or so”:  Price, supra.  The defendant stated that the plaintiff’s non-pecuniary award should be reduced by 10%-20% in order to take into account the plaintiff’s failure to mitigate.  The defendant has satisfied the two-pronged test in Chiu v. Chiu, 2002 BCCA 618, set forth by the late Mr. Justice Low, writing for our Court of Appeal:

[57]      The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss.  In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff’s damages would have been reduced had he acted reasonably. These principles are found in Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[42]         The Court will reduce the non-pecuniary award it would otherwise have ordered by 20%.  The plaintiff failed to mitigate by not following the reasonable treatments recommended to him.  He also consumed alcohol in quantity which, pragmatically viewed, probably reduced or nullified the effectiveness of the prescribed medications.

The Evidentiary Value of Past Tax Returns In Undeclared Income Claims

Although damages for past loss of income can be assessed even if a Plaintiff does not accurately report income to Revenue Canada, the figures reported on tax filings have a high evidentiary value in Court.  This was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Saadati v. Moorhead) the Plaintiff was involved in a number of collisions.  The Plaintiff worked as a truck driver and advanced a claim for lost income of $6,000 per month for a period of two years.  Prior to trial the Plaintiff  was declared mentally incompetent and could not testify on his own behalf.   The Court was presented with evidence addressing the Plaintiff’s claim for past loss of income, most notably evidence of very low reported earnings in the years prior to the collision.  The Court relied heavily on this, accepting the reported earnings as accurate, and dismissed the Plaintiff’s claim for past loss of income.  In reaching this decision Mr. Justice Funt provided the following reasons:
[74]         It is also clear that the plaintiff earned very little income during his 2001 to 2004 taxation years. The plaintiff did not report any income for his 2001, 2002 and 2003 taxation years and for 2004 only $12,796 in taxable capital gains was reported. In sum, his tax returns for the years prior to the accident show very little income. I note that in 2007 the plaintiff reported $22,500 in employment income.
[75]         There was evidence that the plaintiff during the years prior to the July 5, 2005 accident did not appear to be in financial difficulties and was able to provide for his wife and two sons. The Court will not impute income to the plaintiff for these years. He filed tax returns which he would have certified to be correct (the Income Tax Act, RSC, 1985, c. 1(5th supp.) also provides significant penalties for a false tax return). As many people do, he may have kept his financial affairs to himself. The imputation of income would be tantamount to finding possibly gross negligence or tax evasion which is unwarranted, especially having regard to the fact that the plaintiff is not able to testify to explain matters and defend his reputation.
[76]         In Hoy v. Williams, 2014 BCSC 234, Justice Kent set forth the test to determine whether an award for past income loss should be made.
[141]    Compensation for past loss of earning capacity is to be based on what the plaintiff would have, not could have, earned but for the injury that was sustained: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; M.B. v. British Columbia, 2003 SCC 53 at para. 49. The burden of proof of actual past events is a balance of probabilities. An assessment of loss of both past and future earning capacity involves consideration of hypothetical events. The plaintiff is not required to prove these hypothetical events on a balance of probabilities. The future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: Athey v. Leonati at para. 27; Morlan v. Barrett, 2012 BCCA 66 at para. 38.
[77]         As stated previously, I have found that the July 5, 2005 accident did not aggravate the plaintiff’s pre-existing physical injuries but that it did cause a personality change and cognitive difficulties.
[78]         The plaintiff has not provided sufficient evidence that “by reason of his [psychological] injuries, [he was] unable to do many things that, but for his injuries, he could have done to earn income” (Rowe v. Bobell Express Ltd., 2005 BCCA 141, at para. 34) or would have earned income.
[79]         The Court, therefore, dismisses the plaintiff’s claim for an award for past wage loss.
 

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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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