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Tag: Mr. Justice Grauer

$85,000 Non-Pecuniary Assessment For Chronic Wrist Injury

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, assessing damages for a permanent wrist injury sustained in a vehicle collision.
In today’s case (Fatin v. Watson) the Plaintiff was involved in a 2014 collision.  The Defendant disputed fault but ultimately was found 75% to blame.
The Plaintiff suffered a variety of injuries the most serious of which affected his wrist and was expected to be permanent. In assessing non-pecuniary loss at $85,000 prior to apportionment of damages Mr. Justice Grauer provided the following reasons:

[28]         Dr. Fatin suffered a blow to his head and his left shoulder, but neither of these caused any lasting injury.  The significant injury was to his right wrist.  He suffered, and continues to suffer, from a condition called “SLAC wrist”.  SLAC is the medical short form for scapholunate advanced collapse, and comprises injury to the right scapholunate ligament leading to intercarpal and radialcarpal osteoarthritis.

[29]         This injury has had a marked effect on Dr. Fatin’s lifestyle.  Although retired from medicine for some years, he has been very active in carrying out extensive renovations and landscaping to the homes and recreational properties in which he and his family have lived, and was active in activities such as golf and bocce.  He can no longer lift a heavy item, wield a hammer, drive a screw, swing a golf club or put a backspin on a bocce ball.  He wears a brace on his right wrist to minimize the pain that comes with movement. 

[30]         The injury itself and the wrist osteoarthritis were not caused by the motor vehicle accident, but were pre-existing degenerative conditions that were asymptomatic.  It is not contested that the collision caused the osteoarthritis to become symptomatic, and that he will have a permanent disability in the form of pain, decreased wrist movement and decreased strength in the right upper limb. 

[31]         No one can say whether or when it would have eventually become symptomatic but for the accident.  His treating plastic surgeon, Dr. Slobodan Djurickovic, who has a special interest in hand and wrist surgery, wrote in his report:

It is impossible to know whether or not he would have had significant wrist pain had he not been involved in an accident.  It is my opinion that he likely would not have developed severe wrist pain.  He had significant arthritic changes and no pain into his 75th year and was able to golf etc.  As a result I feel he would have likely had only mildly painful wrist arthritis at the most if it weren’t for the motor vehicle accident.

[32]         I accept Dr. Djurickovic’s opinion.  It is consistent with the opinion of the defence orthopedic surgeon, Dr. Brenda Markland, who wrote in her report:

It is likely that Dr. Fatin would eventually have become aware of the osteoarthritis in his right wrist, but it is difficult to predict exactly when that would have happened.  After all, he made it to the age of 75 years without any symptoms, and might have lived out the rest of his life without knowing that the problem existed.  However, a fall on the outstretched hand or the strenuous activity involved in renovations might have brought out the symptoms earlier, or the progression of the degenerative changes over time might have given him gradually increasing pain.

[33]         Accordingly, I find that the motor vehicle collision caused Dr. Fatin’s pre-existing osteoarthritis to become symptomatic to the point where it became disabling, and that he would not have suffered that degree of disability but for the accident.

[34]         The only potential treatment is surgical: either a wrist fusion, which would likely relieve pain but completely limit movement, or a wrist joint replacement (arthroplasty), from which, according to Dr. Djurickovic, Dr. Fatin could expect a reasonable result, with reduction in pain, increased range of motion, and more comfort in activities of daily living, lighter duties and hobbies.  It is not clear that Dr. Fatin would be able to resume golf or undertake renovations, and he would be advised to continue wearing a splint for anything more than light activities.

[35]         Given Dr. Fatin’s age and physical demands, as well as the fact that he is right hand dominant, it is Dr. Djurickovic’s recommendation that he undergo the wrist replacement procedure.  Dr. Fatin is still considering his options…

[40]         Dr. Fatin is a man who took great satisfaction from his ability to carry out manual tasks at which he was very good.  These included, as I have noted, renovating his several houses, extensive maintenance, repair work, landscaping and gardening.  He engaged in these all his life, including in his retirement.  He has been considerably more active than many of his age.  All of this has been greatly impaired by his injury.  In addition, the leisure activities he has enjoyed in retirement have also been affected, particularly golf.  For him, the loss of independence that we all face as we age has been greatly accelerated.  Dr. Fatin has faced this stoically, but not without real frustration.

[41]         There is no doubt that his injury is permanent.  It is possible that wrist replacement surgery would improve things, but it would not cure the condition.  Dr. Fatin has expressed some reluctance to proceed with such surgery because of experience he has had from procedures in the past where he has suffered side effects usually limited to 1% or so of the population.  There nevertheless remains, I find, a real and substantial possibility that he will choose to undergo such a procedure, if for no reason other than to reduce pain and relieve frustration, and I assess the likelihood at 50%.

[42]         Taking all of these factors into account, I assess Dr. Fatin’s claim for non-pecuniary damages at $85,000. 

$80,000 Non-Pecuniary Assessment for Chronic and Permanent Low Back Injury

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury sustained in a collision.
In today’s case (Gunson v. Sekhon) the Plaintiff was involved in a 2010 collision caused by the Defendant.  The plaintiff suffered a chronic and permanent low back injury.  The lingering symptoms caused some difficulties for the Plaintiff at work but did not outright disable him.  In assessing non-pecuniary damages at $80,000 Mr. Justice Grauer provided the following reasons:

[12]         It is not contested that Mr. Gunson suffered soft tissue injuries to his neck and back with symptoms including dizziness, headache and sleep loss, most of which problems were resolved within a year of the accident.  On his physician’s advice, Mr. Gunson took 28 days off work and underwent a course of physiotherapy.  I accept that he also suffered an exacerbation of pre‑existing situational depression related to his marital and financial difficulties. 

[13]         What did not resolve and is unlikely ever to resolve is injury to Mr. Gunson’s lower back, which I find has become chronic in the form of ongoing intermittent lower back pain and was caused by the accident.  An MRI taken at the request of Dr. Hershler demonstrated “mild changes consistent with facet joint arthropathy and ligamentum flavum hypertrophy at L3/4 and L5‑S1”, as well as shallow posterior disc bulge with a “minimal central canal encroachment but…mild encroachment on the left L4 nerve root”.  I am satisfied that these changes are part of the lower back injury caused by the accident.

[14]         Dr. Waiz recommended physiotherapy and approved a course of chiropractic treatment, while Dr. Hershler recommended a supervised one‑on‑one active exercise program to assist with further pain management. 

[15]         Apart from the first course of physiotherapy immediately following the accident, which was helpful, Mr. Gunson has not pursued these recommended treatments.  The defence does not, however, allege a failure to mitigate.  Rather, it points to this as indicative of Mr. Gunson’s ability to work without the need of such therapy.

[16]         What is the result of this chronic lower back injury?  Mr. Gunson concedes that he did not do housework before the accident, but he did do yard work and does less now.  He advances no claim for loss of housekeeping capacity.  As his counsel submitted, his real focus in life has been his work. 

[17]         Mr. Gunson continued to work full‑time, but testified that he has had to adjust how he has carried out his job, which is clearly a physically‑demanding one, delegating more of the heavy physical work to junior crew members and resting as required.  I will have more to say about this in relation to his claim for loss of income earning capacity.  At this point, I observe that, notwithstanding the injury he has clearly suffered, he has maintained full‑time employment for over five years, has taken no time off as a result of the injury beyond the first 28 days, has not found it necessary to undergo physical therapy or take pain medication, and was able to change employers twice, by choice, without any impediment arising from his physical condition.

[18]         Mr. Gunson also testified that his injury interferes with his ability to play with his growing children, particularly his three‑year‑old, so that he is unable to be as close to them as he would like.  If his back discomfort is aggravated by his work, it interrupts his sleep.  He has not been able to engage in activities such as snowmobiling and golf, and finds that long rides on his Harley cause a flare‑up of the lower back pain. 

[27]         In all of the circumstances of this case, I conclude that an appropriate award would be $80,000.

$65,000 Non-Pecuniary Assessment for Chronic Shoulder Injury

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages at $65,000 for a chronic shoulder injury.
In the recent case (Zhang v. Ghebreanenya) the Plaintiff was injured as a passenger in a taxi which lost control and left the roadway.  The taxi driver was found fully liable.  The collision caused a chronic shoulder injury to the plaintiff with symptoms persisting ot the time of trial.  In assessing non-pecuniary damages at $65,000 Mr. Justice Grauer provided the following reasons:

[27]        In his evidence at trial, however, Dr. Masri explained it this way.  Because of the symptoms of pain caused by the effect of the accident on his pre-existing degenerative condition, Mr. Zhang’s shoulder became deconditioned and weak from lack of use.  Normally, the remedy for this, once the pain subsides (as it largely has) is aggressive therapy to recondition the shoulder muscles.  In Mr. Zhang’ case, however, aggressive reconditioning is not possible because of the lack of an intact rotator cuff (the degenerative process).  But for the accident, he would not be in that same state of weakness.  Because of his pre-existing degenerative condition, he is unable to remedy it.

[28]        This explanation is consistent with the evidence of Dr. Kokan, and I accept it.  I find that because of the accident, Mr. Zhang has been left with significant weakness and intermittent pain in his right shoulder.  That a pre-existing degenerative condition contributed to this state of affairs does not interrupt the chain of causation between the accident and Mr. Zhang’s current condition: Athey v Leonati, [1996] 3 SCR 458.

[29]        In assessing Mr. Zhang’s loss, however, I take into account that his original pre-accident condition included arthritis in the right elbow that limited the strength and range of motion in that joint.  I also take into account what I consider to be a real and substantial possibility that the pre-existing rotator cuff tear would have led to symptoms of shoulder weakness and discomfort in the future in any event, albeit to a lesser extent than he now faces.

[30]        With respect to the impact of his injuries, I observe that Mr. Zhang had retired from TCM long before this accident.  The evidence of his daughter and granddaughter did not support the contention that he has been frustrated in attempting to pass on the family skill set.  The evidence does indicate that he stopped driving his youngest granddaughter to school and lessons after the accident, but this coincided with his eldest granddaughter obtaining a motor vehicle.  Nevertheless, I am satisfied on the whole of the evidence that the significant ongoing weakness in Mr. Zhang’s right shoulder and arm has had an impact on his ability to drive.  I also find that he has been impaired in his ability to prepare food (particularly to chop vegetables), to perform at least some aspects of household cleaning, and to lift heavy objects.  Socially, he goes out much less than he used to before the accident…

[54]        The plaintiff particularly commended to my attention the Gaudreault case, which involved a 43-year-old plaintiff who suffered tendon tearing in the shoulder, and had pre-existing but asymptomatic degenerative changes in the shoulder.  Mr. Justice Thompson awarded $75,000.  I note, however, that by the time of trial, the plaintiff’s shoulder continued to trouble him all day, every day, with daily neck pain and low back pain. 

[55]        No two cases, of course, are the same.  In this case, taking into account the plaintiff’s age, his pre-existing condition, the limitations imposed by his injury, the fact that the weakness will be ongoing, the impact on his housekeeping capacity and his ability to participate in family and social life, I assess his damages at $65,000.

"Upper Limit" Non-Pecuniary Damages Awarded Following Brain Stem Injury

Adding to this site’s archives addressing non-pecuniary assessments for traumatic brain injury, reasons for judgement were released today addressing a brain stem injury.
In today’s case (Van v. Howlett) the Plaintiff was a passenger involved in a 2007 collision.  The force of the collision ejected the plaintiff causing various injuries inclucing a brain stem injury.  Her prognosis for meaningful recovery was poor and in fact her functioning was expected to deteriorate as time went on.  In assessing damages at the maximum amount of $351,000 Mr. Justice Grauer provided the following reasons:
[26]         Dr. Jason Clement, a radiologist and a specialist in neuroimaging, provided the lead opinion concerning Ms. Van’s brain injury, and I do not hesitate to accept his evidence.  He noted that MRI investigation disclosed severe diffuse axonal injury (“DAI”) including grade 1, 2 and 3 lesions, as well as additional intracranial injuries in the form of subdural and subarachnoid haemorrhage.  A grade 3 DAI lesion involves the brainstem and is the most severe grade.  These lesions act as markers for diffuse underlying injury throughout the brain resulting in significant chronic cognitive dysfunction and impairment in all cognitive domains.  In fact, Dr. Clement explained, this type of injury is more consistent with people in a persistent vegetative state, which Ms. Van is not. 
[27]         The severe DAI sustained by Ms. Van is also known to trigger progressive cerebral atrophy leading to an increased risk of progressive cognitive decline and premature dementia.  In addition, the multiple focal brain injuries have left her with a lifelong increased risk of seizures. 
[28]         Dr. Clement explained that people do not recover from this sort of injury, and that the treatment focus must be on reducing further decline to the extent possible…
[50]         On the evidence before me, I have no difficulty in concluding that the injuries suffered by Ms. Van are catastrophic.  We are, in any practical sense, our brains.  A brain injury of this degree of severity is a loss of one’s very self.  Like Ms. Spehar, Ms. Van “has lost what to many is one of the most valuable aspects of being an adult human — the ability to have control over one’s own life” (Spehar at para 13).  No aspect of her life, including her closest relationships, has been left unimpaired.  Her outlook for the future is dismal.  Her days are filled with pain and frustration.  There is no possibility of recovery.  The best she can hope for is that her deterioration will be slowed, and that her anger, frustration and depression can be addressed through medication and distraction.  At worst, she will experience a premature and accelerated descent into dementia, losing what little has been left to her.
[51]         In these circumstances, I conclude that Ms. Van is entitled to an award at the upper limit.  I assess her non-pecuniary damages at $351,000.

Boundaries of Lay Opinion Evidence Discussed by BC Supreme Court

Generally opinion evidence is only admissible at trial by a duly qualified expert.  One exception to this rule relates to lay witnesses being able to provide a Court with opinions in limited circumstance.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing this exeption.
In this week’s case (American Creek Resources Ltd. v. Teuton Resources Corp.) the litigants were involved in a commercial dispute.  In the course of trial  the President of the Defendant company wished to provide the Court with certain opinions.  In addressing this Mr. Justice Grauer provided the following summary of the boundaries of lay opinion evidence:
[14]         Generally, opinion evidence is inadmissible unless it is expert evidence.  There are exceptions.  Lay opinion evidence may be admissible under circumstances discussed at length in Part II of Chapter 12 in The Law of Evidence in Canada, where the learned authors state at paragraph 12.14:
Courts now have greater freedom to receive lay witnesses’ opinions if: (1) the witness has personal knowledge of observed facts; (2) the witness is in a better position than the trier of fact to draw the inference; (3) the witness has the necessary experiential capacity to draw the inference, that is, form the opinion; and (4) the opinion is a compendious mode of speaking and the witness could not as accurately, adequately and with a reasonable facility describe the facts she or he is testifying about.  But as such evidence approaches the central issues that the courts must decide, one can still expect an insistence that the witnesses stick to the primary facts and refrain from giving their inferences.  It is always a matter of degree.  As the testimony shades towards a legal conclusion, resistance to admissibility develops.
[15]         I observe that the central issue in this case is whether the expenses claimed by the plaintiff constitute “exploration expenditures”.  The defendant takes the position that certain drill patterns employed by the plaintiff do not reflect exploration within the meaning of the agreement, so that the expenses for that portion of the drilling cannot be claimed as constituting “exploration expenditures”.  Accordingly, as stated in the excerpt quoted above, it is proper to insist that the witnesses stick to the primary facts and refrain from giving their inferences in relation to that issue. 
[16]         But that is not the only basis for such insistence.  The proffered evidence does not otherwise meet the required test.  In Graat, the Supreme Court of Canada ruled admissible lay opinion evidence about whether a person’s ability to drive was impaired by alcohol.  The witnesses in question all had an opportunity for personal observation, and the opinion was based on perceived facts as to the manner of driving and the indicia of intoxication of the driver.  These witnesses were in a better position than the trier of fact to determine the degree of impairment and could give the court real help.  The court noted at pages 837-838:
It is well established that a non-expert witness may give evidence that someone was intoxicated, just as he may give evidence of age, speed, identity or emotional state.  This is because it may be difficult for the witness to narrate his factual observations individually.  Drinking alcohol to the extent that one’s ability to drive is impaired is a degree of intoxication, and it is yet more difficult for a witness to narrate separately the individual facts that justify the inference, in either the witness or the trier of fact, that someone was intoxicated to some particular extent.  If the witness is to be allowed to sum up concisely his observations by saying that someone was intoxicated, it is all the more necessary that he be permitted to aid the court further by saying that someone was intoxicated to a particular degree. …  Nor is this a case for the exclusion of non-expert testimony because the matter calls for a specialist.  It has long been accepted in our law that intoxication is not such an exceptional condition as would require a medical expert to diagnose it.  An ordinary witness may give evidence of his opinion as to whether a person is a drunk.  This is not a matter where scientific, technical, or specialized testimony is necessary in order that the tribunal properly understands the relevant facts.  Intoxication and impairment of driving ability are matters which the modern jury can intelligently resolve on the basis of common ordinary knowledge and experience.  The guidance of an expert is unnecessary.
[17]         It seems to me readily appreciable from Justice Dickson’s discussion in Graat that the contemplated parameters of admissible lay opinion evidence do not extend to the sort of circumstances I am considering here.  The application of the factors discussed in The Law of Evidence in Canada confirms this.  Those factors begin with the proposition that the evidence consists of inferences drawn from observed facts, and end with the factor that the opinion is a compendious mode of speaking that allows the witness to sum up more accurately and adequately the facts he or she is testifying about.  Thus, “intoxicated” compendiously covers a number of observed facts including such things as staggering, smelling of alcohol, being red-faced and slurring words, all of which may have formed the basis for the inference of intoxication, and all of which can be explored in cross-examination as the sort of observations commonly understood as indicia of intoxication.

Producing False Witness To Collision Leads to $200,000 in Financial Consequences

In an illustration of BC’s motor vehicle insurance system having real teeth to punish fraudulent acts, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, ordering substantial damages against a couple who produced a false witness to ICBC following a motor vehicle collision.
In this week’s case (ICBC v. Panag) the Defendant was involved in a 2006 collision.  The parties had competing versions of how the collision occurred.  The Defendant produced a witness in support of her claim.  After investigation ICBC determined this individual in fact did not witness the collision and was known to the Defendant.
ICBC paid out over $188,000 in claims following the crash.  ICBC held the Defendant in breach of insurance and sued to recover this money on the basis that the Defendant attempted to commit insurance fraud.  Mr. Justice Grauer agreed and ordered repayment of these damages along with punitive damages.  In reaching this decision the Court provided the following reasons:
64]         In these circumstances I am satisfied that the Panags and Harinder Grewal were in fact involved in a conspiracy to put forward Mr. Grewal to ICBC as a witness to the collision knowing that he had not in fact witnessed it, and with the intention that he provide ICBC with evidence that he did not have and which they knew to be untrue.  The facts, in my view, cannot fairly admit of any other inference.  Speculation is not required…
[67]         It follows that both Mr. and Mrs. Panag participated in a conspiracy to deceive ICBC about both how the accident happened and the status of Mr. Grewal as a witness to the accident.  They clearly intended ICBC to rely upon their representations, and ICBC as a result was left scrambling for a considerable period of time as it embarked upon an extensive investigation in an attempt to straighten out what would otherwise have been and should have been a straightforward matter.  This amounts to fraud.  See, for instance, ICBC v. Nisbet, 2009 BCSC 1570, at para. 85.
[68]         In the result, the Panags have forfeited their right to coverage under s. 19(1)(d) of the IMVA as well as s. 19(1)(e), and ICBC is entitled to recover against both of them.  Whether directly as a consequence of the Panags’ conspiracy to commit fraud or as a result of the application of the principles of unjust enrichment, this would include the moneys paid out to Mr. Panag for his material damage claim and to Mrs. Panag for her Part VII claim.  The total amount awarded to ICBC in this regard is $188,722.86, which I am satisfied accurately represents what ICBC paid out, to which I add pre-judgment interest of $8,460.21.  I have deducted $305.06 from the interest claimed because of the absence of evidence concerning the date when expenses related to surveillance were incurred…
[70]         In providing ICBC with willfully false statements and in conspiring to commit fraud, the Panags undoubtedly engaged in conduct that was reprehensible.  In the particular circumstances of this case, however, I note that the consequences of their actions have exposed them to statutory liability far beyond the actual financial consequences of their actions.  Had they succeeded in their deception, they would have saved a mere $801 plus whatever might have been gained through a potential personal injury claim.  Now they must pay over $188,000 plus interest…

$85,000 Non-Pecuniary Assessment for Bilateral Carpal Tunnel Syndrome and Chronic Soft Tissue Injuries

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing non-pecuniary damages for a host of injuries including a broken nose, bilateral carpal tunnel syndrome requiring surgery and chronic soft tissue injuries.
In this week’s case (Mayervich v. Sadeghipour) the 72 year old Plaintiff was injured in a 2007 crash.  Liability was admitted by the Defendant.   The Plaintiff suffered chronic injuries in the crash with symptoms persisting to trial.  While there was some room for further improvement some symptoms were expected to last indefinitely   In assessing non-pecuniary damages at $85,000 Mr. Justice Grauer provided the following reasons:
[57]         In my mind, the significant features of this case are these: 
·                 As a result of the accident, Mrs. Mayervich suffered a constellation of injuries, the most significant of which has been myofascial injury in the neck and back resulting in a chronic pain condition accompanied by a major depressive order and cognitive difficulties. 
·                 Included the constellation were a deviated septum (broken nose), and injuries to the arms and hands that culminated in bilateral carpal tunnel syndrome.  Both of these conditions required surgical intervention and both have resolved.  There was additional discomfort from injuries to the abdomen and chest. 
·                 These injuries have had a significant impact on Mrs. Mayervich’s quality of life.  The myofascial injuries in particular continue to interfere with her activities of daily living and recreation and have impaired her ability to interact with her husband, her daughters, and her grandchildren. 
·                 Mrs. Mayervich has already experienced nearly 5½ years of physical pain, depression, emotional upheaval and cognitive difficulty as a result of the accident. 
·                 It is likely Mrs. Mayervich will experience real improvement if she undertakes a program such as that recommended by Dr. Posthuma; full recovery however is unlikely, and a real possibility remains that she will experience no significant recovery. 
[58]         In my view, these features bring Mrs. Mayervich’s situation closer to the cases cited by counsel by the plaintiff than those cited by counsel for the defendants.  The award of $125,000 approved by the Court of Appeal in the Rizzolo case was to a considerably younger man who had suffered debilitating chronic pain affecting all aspects of his life but who had been able to return to his pre-accident employment.  In Hsu, on the other hand, the most recent of the three cases relied on by the defence where the award was $30,000, the plaintiff suffered from chronic neck and back myofascial disorder but this was an aggravation of pre-existing soft tissue conditions from a previous accident that had already given rise to chronic pain. 
[59]         Each case must of course be decided upon its own facts.  Considering all of the facts discussed above, I assess Mrs. Mayervich’s non-pecuniary damages at $85,000.

ICBC Internet Domain Name Challenge Fails

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with the challenge of the use of “icbc” in a domain name not owned or operated by ICBC.
In today’s case (ICBC v. Stainton Ventures Ltd.) ICBC alleged that the use of ‘icbc’ in a domain name used as a marketing tool for personal injury lawyers was misleading and in breach of ICBC’s intellectual property rights.  Mr. Justice Grauer dismissed these aspects of the claim finding that websites that use the name ICBC in their domain that comment on ICBC would not confuse an “average customer of normal intelligence“.  Mr. Justice Grauer provided the following reasons:

[26] Anyone familiar with motoring in British Columbia would, I expect, conclude that “” was probably about the Insurance Corporation of British Columbia.  ICBC is, after all, a very large institution that is the subject of widespread public commentary.  In this context, would British Columbians be likely to mistake “” for ICBC’s official mark?  I think not.  More probably, I find, they would take it as identifying the subject-matter of the site, not whose site it is.

[27] I therefore conclude that the defendant has not acted contrary to sections 9 and 11 of the Trade-marks Act in its use of the website/domain name “”.  The same logic applies to the defendant’s use of the domain names <>, <> and <>.

[28] In my view, the defendant’s use of the acronym “ICBC” throughout its website also does not contravene the Trade-marks Act.  The defendant does not use that acronym as a “trade-mark or otherwise” in the sense required, which is the use of the mark in connection with its business in some way that is intended to identify and distinguish its products.  Rather, it simply uses the acronym to identify the plaintiff, as thousands do every day, and as I do in these reasons…

[47] As the Court of Appeal observed in Private Career Training Institutions Agency v. Vancouver Career College (Burnaby) Inc., 2011 BCCA 69, 14 B.C.L.R. (4th) 358 at para. 35, “the consumer must be given credit for having normal intelligence.”

[48] In the context of British Columbia’s universal automobile insurance scheme, I am satisfied that the average customer of normal intelligence would not be led astray, and would have no difficulty recognizing that would probably relate to how to deal with ICBC in an arm’s length or even adversarial sense, rather than in a manner endorsed by ICBC.

[49] I conclude that the plaintiff’s claim based upon the common law and statutory tort of passing-off must be dismissed.

Emergency Driver Found Fully at Fault for Intersection Crash; Abuse of Process Discussed

The BC Motor Vehicle Act provides the RCMP and other drivers of ‘emergency vehicles‘ the right to speed and run red lights and stop signs.  This right, however, is not absolute and cannot be exercised without care to other motorists.   If an emergency vehicle operator is careless in the exercise of their emergency powers they can be liable for a resulting collision.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating such a result.
In today’s case (Haczewski v. British Columbia) the Plaintiff was killed in a 2007 motor vehicle collision.  His vehicle was struck in an intersection.  He entered on a green light.  At the same time an RCMP vehicle was approaching with “her emergency lights and siren” on.  She entered against the red light at high speed and the collision occurred.
At trial the Defendant agreed she was careless and contributed to the collision but argued the Plaintiff was also partly to blame.  Mr. Justice Grauer rejected this argument and found the Defendant fully at fault.  In doing so the Court provided the following reasons:

[12] No statute need be cited for the general proposition that a vehicle entering a controlled intersection with a green light has the right-of-way over vehicles facing the red light.  But is this still the case when the vehicle with the red light is a police car responding to an emergency with its lights flashing and siren sounding?  The answer is:  it depends.

[13] The Motor Vehicle Act provides certain privileges to emergency vehicles, including the limited right to proceed through a red light without stopping:…

[14] The use of those privileges is governed by the Motor Vehicle Act Emergency Vehicle Driving Regulation, B.C. Reg. 133/98…

[16] Thus the statutory privileges granted by the Motor Vehicle Act’s section 122 exemption are subject always to balancing the exigencies of the emergency with the risk of harm arising from the operation of the vehicle.  In particular, the driver of any emergency vehicle exercising those privileges who approaches or enters an intersection must slow to a speed consistent with reasonable care.

[17] The Motor Vehicle Act deals further with right-of-way in section 177:

177 On the immediate approach of an emergency vehicle giving an audible signal by a bell, siren or exhaust whistle, and showing a visible flashing red light, except when otherwise directed by a peace officer, a driver must yield the right of way, and immediately drive to a position parallel to and as close as possible to the nearest edge or curb of the roadway, clear of an intersection, and stop and remain in that position until the emergency vehicle has passed…

[22] An article included as an appendix to the manual, entitled Rules of the Road: Some Perspectives on Emergency Driving, contained this recommendation:

8.         Come to a complete stop at all controlled intersections (e.g. red lights, stop signs) where you would not have the right-of-way without warning equipment.

Most accidents of any kind, but especially those involving emergency vehicles on emergency calls, occur at intersections.  The practice of stopping at intersections has not appreciably hurt my agency’s response times, although it has caused some shortening of brake life.  But faithful adherence to it has resulted in countless instances in which vehicles would otherwise have been broadsided by motorists who either insisted on their right-of-way or did not perceive the warning equipment.

[23] As a result of this accident, this recommendation has, as I understand it, now become RCMP policy.  At the time of the accident, the policy for an officer approaching a controlled intersection was to slow sufficiently, and to stop if necessary, in order to ensure that it was safe to proceed through the intersection, consistent with section 6 of the Regulation

[46] On all of the evidence, I have no difficulty in concluding that Constable Kostiuk failed to exercise the degree of care required of a reasonable police officer, acting reasonably and within the statutory powers imposed upon her, in the circumstances she faced that night (see Doern v. Philips Estate (1994), 2 B.C.L.R. (3d) 349 (S.C.) at para. 69, aff’d (1997), 43 B.C.L.R. (3d) 53 (C.A.)).

[47] As she headed up Kingsway in response to what she reasonably believed to be an emergency, Constable Kostiuk significantly exceeded the speed limit.  On a quiet night with little traffic, that was justified.  But circumstances changed when she approached the intersection with Royal Oak, a main street, facing a red light.  She was not familiar with the intersection, and visibility was limited.  She ought not to have entered it against the red light without first taking adequate steps to ensure that she could do so safely.  She failed to do so.  Reasonable care required her to slow right down before proceeding into that intersection, in order to ensure that it was in fact clear, and that she could enter it without risk of harm to the public.  Instead, she accelerated into the intersection from what was already a high speed.  In those circumstances, it was impossible for her to have any confidence that she could proceed safely, and the collision was the result.  Such action was in no way justified by the exigencies of the emergency to which she was reacting.

In addition to the above, this decison is also worth reviewing for the application of the ‘abuse of process’ doctrine following a motor vehicle act conviction.

In today’s case the RCMP officer was charged criminally with dangerous driving causing death.  She eventually plead guilty to careless driving under the motor vehicle act.  The Plaintiff argued it was an abuse of process to dispute civil liability in these circumstances.  Mr. Justice Grauer disagreed and provided reasons at paragraphs 154-160 setting out his view of why a guilty plea to careless driving should not be an absolute barrier to subsequently denying civil liability.  It is worth noting there is some inconsistency in this area of the law.

Imposed Limitation Thwarts Sex Abuse Class Action Certification

Last year the BC Supreme Court refused to certify a class action for victims of sexual abuse at the hands of a corrections guard employed by the Province of BC.  While the Plaintiff and the Province of BC wished to have the matter certified Mr. Justice Grauer was concerned that inadequate notice provisions and a short opt-out provision would result in some victims losing their right to sue.
The parties attempted to address these concerns by creating more meaningful notice provisions and a more generous period for plaintiffs to advance their claims.  They re-applied for certification.  In reasons for judgement released this week (Lakes v. MacDougall) Mr. Justice Grauer once again rejected the proposed class action finding the limitation period created by certification would be too prejudicial for victims of historic sexual abuse.  In dismissing the application Mr. Justice Grauer provided the following reasons:

[13] Here is the situation.  For those of MacDougall’s victims who have already come forward and consulted counsel, there is no problem.  If they have already commenced litigation, they are deemed to have opted out, and otherwise may do so if they wish within the 90-day period provided.  They already have the advantage of access to legal counsel and will have no difficulty in exercising their options.  Consequently, it does not surprise me that the clients of Mr. Poyner and those of Mr. Simcoe support the proposed settlement.

[14] But what of the rest of the proposed class, who remain unidentified?  The evidence before me clearly establishes the roadblocks that inhibit these victims from breaking silence and coming forward to disclose the abuse they suffered.  They are accordingly particularly vulnerable to losing their claims through the effluxion of time.  This is exacerbated by notice provisions that, while likely to ensure maximum dissemination to those still in the prison population, offer little hope of reaching those in more isolated circumstances.

[15] It is no answer, in my view, to say that these victims may avoid the risk of losing their rights by simply filing a single piece of paper to opt out within the 90-day period mandated for doing so.  That is a very short time in the context we are discussing.  Once it has passed, they may no longer opt out; they are left with 21 months within which to file a claim, failing which they are forever barred.

[16] It is my respectful opinion that this additional time remains insufficient to counterbalance the prejudice to this particular group arising from the imposition of a limitation period where none previously existed.  Those members of the class who remain unidentified still face the prospect of losing more than they and the rest stand to gain should the settlement be approved and the action certified.  The amended terms represent an improvement, but not enough.  It is not open to me to craft acceptable settlement terms, or to impose them.

[17] In the circumstances, I conclude that the parties have failed to establish that a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issue raised in this matter.  The proposed procedure does, in my view, offer certain procedural advantages to the proposed class, as discussed above.  These are not, however, sufficient to offset the continuing risk of severe prejudice to this vulnerable population to which the terms of the settlement agreement give rise.

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