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Tag: Mr. Justice Funt

The Evidentiary Value of Past Tax Returns In Undeclared Income Claims

Written by admin on . Posted in ICBC Wage Loss. 54 Comments on 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.
 

"All-Inclusive" Formal Settlement Offers Can Trigger Costs Consqeunces

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that an “all inclusive” formal settlement offer is capable of triggering costs consequences.
In today’s case (Wettlaufer v. Air Transat A.T. Inc.) the Plaintiff sued for damages after an “aircraft touched down and then braked, an unsecured food cart struck, with force,(struck) the back of the plaintiff’s seat.”.   Prior to trial the Defendant made an offer, inclusive of costs and disbursements, of $250,000.  The Plaintiff rejected this offer, proceeded to trial and sought damages of over $1 million.  Much of the Plaintiff’s claimed damages were rejected with an award of approximately $110,000.
The Plaintiff argued the all inclusive offer should not trigger costs consequences.  Mr. Justice Funt disagreed finding there is no prohibition to formal offers which have costs and disbursements built into them.  In reaching this decision the Court provided the following reasons:
[18]         The present Rules of Court provide greater discretion to the Court and avoid the formulaic approach reflected in the older rules set forth above.  Justice Masuhara in Dodge v. Shaw Cablesystems, 2009 BCSC 1765, described the rationale for the rejection of all-inclusive offers under Rule 37 (the old rule in Helm):
[22]      The old Rules provided a complete code which determined the costs consequences of an offer to settle:  Cridge v. Harper Grey Easton, 2005 BCCA 33 at para. 20, 37 B.C.L.R. (4th) 62.  Under the old Rule 37(24)(a), if the defendant made a monetary offer to settle which the plaintiff did not accept, and the plaintiff obtained a judgment equal to or less than the settlement amount, the defendant was entitled to costs from the date the offer was delivered.  With such rigid cost consequences from which the judge had no discretion to depart, the rationale for the rule against “all-in” offers in Helm was engaged.  Where the judge was unable to discern what part of the settlement offer was for costs and what part was for discharge of the action, the judge could not precisely evaluate whether or not the plaintiff obtained judgment more favourable than the settlement offer, leading to potentially drastic consequences.
[Footnote omitted.]
[19]         In his October 18, 2012 letter, defendant’s counsel, Mr. Dery, rejected the plaintiff’s offer to settle for $996,025 plus taxable costs and countered with the $100,000 all-inclusive offer.  The plaintiff did not provide a bill of costs and disbursements.
[20]         Absent a bill of costs, the defendant’s further all-inclusive offer of $250,000 is understandable.  Most litigants seeking to resolve a dispute prefer finality.
[21]         With Helm decided on the significantly different rules, the Court is not bound by the rule in Helm that all-inclusive offers cannot be considered.  The Court’s consideration of the $250,000 all-inclusive offer accords with the text, context and purpose of the current Rule 9‑1.
 

$70,000 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries and Headaches

Written by admin on . Posted in ICBC Headache Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, assessing damages for chronic soft tissue injuries.
In this week’s case (Lewis v. Scheer) the plaintiff was involved in a “significant” collision in 2010. The Defendant admitted liability. The collision caused various soft tissue injuries and headaches which lingered at the time of trial.  The Plaintiff had some pre-existing symptoms which left her susceptible  to developing chronic pain.  Her symptoms were expected to carry into the future with optimism that they can be reduced with weight loss and exercise.  In assessing non-pecuniary damages at $70,000 Mr. Justice Funt provided the following reasons:
[9]             In general terms, the plaintiff’s injuries involve her back, spine, shoulders and neck.  She has daily headaches and has chronic pain…
[18]         The three doctors were in general agreement that the plaintiff’s ongoing symptoms of daily headaches and pain affecting her neck, chest, shoulders and spine were caused by the MVA.  Dr. Travlos noted in his November 14, 2011 report that the plaintiff “was likely vulnerable to injury and the development of more chronic symptoms, given some of the pre-accident complaints she had”…
[22]         The medical evidence recognizes that the pain will be ongoing although it may reduce as a result of the recommended steps to be taken.  These steps include losing weight, a focus on functionality and not on pain, a regimen of exercise and activity, and the reduction of the medication the plaintiff is currently taking…
[35]         As noted, the plaintiff will have ongoing pain.  The focus for the future is on improving function.  In particular, the pain has affected and will affect her enjoyment of life, family and social relationships, and lifestyle.  The Court will award $70,000 inclusive of housekeeping capacity.  The plaintiff will be able to perform housekeeping functions, albeit with degrees of pain depending on the particular activity.
 
 
 

Failure to Examine Patient Impacts Weight of Expert Report

Written by admin on . Posted in independent medical exams, Uncategorized. 57 Comments on Failure to Examine Patient Impacts Weight of Expert Report

It is well established that failure of an ‘independent medical examiner’ to physically examine a patient is not, in and of itself, a reason for an expert report to be inadmissible in the BC Supreme Court. However, when a litigant relies on such a report the weight the court attaches to it is often negatively impacted.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Johal v. Meyede) the Plaintiff was injured in a 2010 rear end collision.  Fault was admitted by the Defendant.  The Plaintiff suffered injuries which were ongoing at the time of trial and expected to effect her well into the future.  In the course of defending the claim ICBC retained a neurologist who did not examine the Plaintiff and provided a more conservative opinion with respect to the plaintiff’s limitations and care needs.  In placing less weight on this opinion, in part for failing to examine the plaintiff, Mr. Justice Funt provided the following reasons:
[47] The defendants also called Dr. F. Kemble as an expert witness. He had been retained to provide a responding medical-legal report. He was qualified, without objection, to provide expert evidence with respect to neurology. Dr. Kemble concluded his October 22, 2013 report saying:
I do not feel that there is any indication for any thoracic outlet surgery. Ultimately, the probability is that she will be able to work full time although she will probably have minor difficulty in terms of using her arm and moving her neck. I am optimistic, that with the measures outlined by Dr. Travlos and Dr. Caillier, that the pain will significantly reduce.
[48] For two reasons, I have given less weight to Dr. Kemble’s report and testimony than the other medical experts. First, he did not meet or examine the plaintiff. Second, in cross-examination, Dr. Kemble conceded that the basis for his report could be incorrect to the extent it was based on the assumption that the plaintiff’s symptoms would become intermittent.

Admissibility of "Incompetent" Litigant Hearsay Canvassed in BC Injury Claim

Written by admin on . Posted in Civil Procedure, Uncategorized.

Adding to this site’s archived caselaw addressing points of civil procedure, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the admissibility of various out of Court statements made by a Plaintiff involved in injury litigation.
In this week’s case (Saadati v. Moorehead) the Plaintiff was injured in a 2005 collision and sued for damages.  He was also involved in subsequent and previous collisions not before the Court.  Prior to trial the Plaintiff was declared “mentally incompetent” and could not testify.  In the course of the trial both the Plaintiff and the Defendant sought to introduce various pre-trial statements into evidence as exceptions to the hearsay rule.  The decision is worth reviewing in full for the Court’s analysis.  The statements considered included
1. an excited utterance at the scene of the collision
2.  statements to his GP, kinesiologist and treating specialist
3. statements to friends and family
4.  statements to an ICBC adjuster
5. paycheque stubs, pay statements, pay sheets and tax returns
6. Admissions against interest

Case Plan Conference Orders Can't Trump Privilege

Written by admin on . Posted in BCSC Civil Rule 5, BCSC Civil Rule 7. 50 Comments on Case Plan Conference Orders Can't Trump Privilege

Last year I highlighted a decision confirming that the Court’s powers under the new rules of court don’t allow orders to be made which will trump legitimate privilege claims.  Reasons for judgement were released earlier this month by the BC Supreme Court, Vancouver Registry, confirming this principle.
In the recent case (Blackwell v. Kwok) the Defendant sought an order at a Case Planning Conference requiring the Plaintiff to disclose the specialty of the expert witness(es) the Plaintiff intends to rely on.  The Court refused to make this order finding it would trump the privilege in the Plaintiff’s counsel’s solicitor’s brief.  In dismissing the request Mr. Justice Funt provided the following reasons:
[11]         Plaintiff’s counsel referred me to the Court’s decision in Nowe v. Bowerman, 2012 BCSC 1723.  In Nowe, the defendant proposed that each party be limited to one expert each and that the plaintiff advise the defendant of the area of expertise by November 17, 2012, approximately ten months before the scheduled trial.  The Court denied the application:
[10]  The area of expertise of an intended expert witness is a matter of trial strategy.  Trial strategy is a key component of a solicitor’s brief.  It may well evolve as plaintiff’s counsel builds a case and makes decisions based upon a myriad of factors and considerations.  Intentions may change as the process unfolds over time.
[11]  In my view, unless and until the intention to rely upon a particular expert in a particular field is declared by delivery of a report in accordance with the timelines established by the Rules, in the absence of a compelling reason an early incursion into this aspect of the solicitor’s brief will not be justified.
[12]  That being said, there may well be cases in which a departure from the usual timelines can be justified.  For example, in complex cases such as those involving brain injuries as a matter of fairness it may be necessary to provide defence counsel with a longer period than would be available under the usual regime in order to schedule appointments with certain kinds of experts. …
[12]         I note that in Nowe, the plaintiff argued that it was “not the kind of case in which a long period is required in advance of an appointment being made with a certain type of expert” (para. 7).  Although possibly a longer period may be justified in some cases, I am not satisfied that a “departure from the usual timelines can be justified” in the case at bar.
[13]         In my view, the defendants’ application should be rejected.  I see no prejudice if the normal rules for delivery of expert reports apply.  If the defendants choose to retain an expert to conduct an independent medical examination and prepare a report based on the plaintiff’s pleaded injuries, but no psychological injury is alleged at trial, an appropriate award of costs will afford the defendants the necessary relief.
[14]         Not surprisingly, I cannot state matters better than Chief Justice McEachern in Hodgkinson: “While I favour full disclosure in proper circumstances, it will be rare, if ever, that the need for disclosure will displace privilege”.
[15]         The Court declines to make the order sought.
 

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