Tag: Mr. Justice Pearlman

ICBC's Part 7 Exam Thwarts Defence Medical Exam Application

As previously discussed, when a Defendant is insured with ICBC their ability to set up an ‘independent‘ medical exam can be compromised if ICBC exercised their rights to have the Plaintiff examined under section 99 of the Insurance (Vehicle) Regulation and if that exam went beyond what was required for a ‘part 7’ opinion.  Reasons for judgement were recently released by the BC Supreme Court, Rossland Registry, demonstrating such an outcome.
In the recent case (Wocknitz v. Donaldson) the Plaintiff was injured in a 2008 collision.  Both the Plaintiff and Defendant were insured by ICBC.  Before litigation got underway ICBC had the Plaintiff assessed by a physiatrist.   As is not uncommon with these types of examinations, the report generated exceeded the narrow scope of Part 7 Benefit needs.
In the course of the lawsuit the Plaintiff obtained their own expert opinion from a physiatrist.  The Defendant’s brought an application to compel the Plaintiff to be assessed by another physiatrist and by a psychiatrist.  They argued this was necessary to ‘level the playing field’.  Mr. Justice Pearlman disagreed and dismissed the application.  In doing so the Court provided the following helpful reasons:

[14] In Robertson v. Grist, 2006 BCSC 1245, at paragraph 14, Madam Justice Dillon addressed the question of whether a Part 7 examination constitutes a first independent medical examination for the purposes of a tort claim. She said this:

[14]      Whether the Part 7 examination constitutes a first independent medical examination depends upon the scope of the examination, given the rest of the circumstances here.  There was no limitation on Dr. Jaworski’s examination and the request letter covered matters that would solely be relevant to a tort action.  The doctor’s report was not limited to a rehabilitation opinion about whether the injuries sustained in the accident totally disabled the plaintiff from work within 20 days of the accident and for a period of 104 weeks or less, the criteria in section 80 of the Part 7 benefits Regulations.  The examination was a first independent medical examination within the meaning of Rule 30.

[15] In this case, the letter from the adjustor instructing Dr. Findlay has not been put in evidence.  However, it is clear from Dr. Findlay’s report that it deals with matters which go beyond an inquiry restricted to Part 7 benefits, and deals with matters directly relevant to the tort claim. ..

[19] In this case, there have been no subsequent unforeseeable events which would, in my view, warrant a second examination by a physiatrist.

[20] With respect to the application of the defendants for an order for an independent medical examination by a psychiatrist, again this is not a case where such an examination is required in order to level the playing field.  This is not a case where the plaintiff has obtained or intends to obtain a psychiatric report.  An independent medical examination by a psychiatrist is a particularly invasive form of examination and, in the circumstances of this case, it is not one that I would be prepared to order.

[21] With respect to the defendants’ submission that because Dr. Findlay provided his report some nine months after the accident, he was not in a position to pronounce in any definitive way with respect to a prognosis, in my view the timing of Dr. Findlay’s examination was a matter that was entirely within the control of the defendants.  That does not provide a basis which would justify an order for a second independent examination by a physiatrist.  As counsel for the plaintiff has pointed out, it would still be open to the defendants to have Dr. Findlay review the report of Dr. Valentine, and the clinical records that have been produced, and to provide a rebuttal report for use at trial.

[22] The application of the defendants for the two independent medical examinations sought is dismissed.

$160,000 Non-Pecuniary Damage Assessment for L4-5 Disc Herniation

(UPDATE August 8, 2012 The below judgement was modified in reasons for judgement released today by the BC Court of Appeal.  In short, the Court held the 40% damage reduction was not justified by the evidence and substituted a 20% damage reduction.  The BCCA’s reasons can be found here).
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for serious injuries following a BC motor vehicle collision.
In this week’s case (Bouchard v. Brown Bros. Motor Lease Canada Ltd.) the Plaintiff was involved in a 2005 rear-end collision.  He was faced in an awkward position when his vehicle was struck and he sustained injuries.  Fault for the crash was admitted focussing the trial on assessing damages.
Although there was competing medical evidence, the Court ultimately found the collision was a cause of a L4-5 disc herniation which required bilateral discectomies and foraminotimies at the L4-L5 and L5-S1 levels of the spine.
The Plaintiff’s symptoms of pain continued and he ultimately was diagnosed with a chronic pain syndrome.  The Court accepted that the Plaintiff would likely not work in his profession again.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $160,000 Mr. Justice Pearlman provided the following comments:
[117]     I find that the motor vehicle accident was a significant factor contributing to the herniation of the plaintiff’s disc at L4-L5, and the development of the plaintiff’s symptoms of severe and disabling lower back pain, and that there is a substantial connection between Mr. Bouchard’s low back injuries and the motor vehicle accident….
[155]     The assessment of non-pecuniary damages depends upon the particular circumstances of the plaintiff in each case. The factors that the court must consider include the plaintiff’s age, the nature of his injury, the severity and duration of pain, disability, emotional suffering, impairment of marital and social relationships, impairment of physical and mental abilities, and loss of lifestyle:Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave to appeal ref’d 2006 CarswellBC 2598 (S.C.C.). Here, I find that the appropriate award for Mr. Bouchard in all of the circumstances is $160,000.
This case is also worth reviewing for the Court’s discussion of causation and indivisible injuries set out at paragraphs 97-117 of the reasons for judgement.  The Court found that while the collision was a cause of the injury, that there was “a very significant risk” that the Plaintiff’s back problems would have developed even absent the collision and the damages were reduced by 40% to take this risk into account.
Lastly, this case is worth reviewing for the Court’s discussion of the adverse inference principle.  Following the Plaintiff’s surgery the Plaintiff obtained and exchanged copies of the relevant medical records.  The Plaintiff called various expert witnesses to support the case but the treating surgeon was not called.  The Defence asked the Court to draw an adverse inference.  Mr. Justice Pearlman refused to do so and provided the following helpful reasons:
[121] Here, there has been full disclosure of Dr. Heran’s consultation reports and his operative procedure report. Those records were available to the defendant when Dr. Hepburn prepared his second report of October 27, 2009. It was open to the defendants to interview and call Dr. Heran if they chose to do so. Furthermore, in my view, Dr. Hunt, whose practice is devoted to the treatment of patients with chronic pain, and who was directly involved in the ongoing testing, management, and treatment of the plaintiff’s symptoms from October 2008 through May 2010, was in a better position than Dr. Heran to provide an opinion on the extent of the plaintiff’s disability and his requirements for future care. Finally, I also take into account the explanation of counsel for the plaintiff that obtaining an expert report from Dr. Heran would have put Mr. Bouchard to additional expense, and would have involved yet another review of all of the reports and clinical records of those doctors who did testify at trial. For all of these reasons, I decline to draw an adverse inference against the plaintiff.

Over 36,000 Reasons for Learning Motorists to Drive With A Qualified Accompanying Passenger

Reasons for judgement were released today demonstrating some of the real world consequences drivers with a learner’s licence could face if they are found to be in breach of their policy of insurance.
In today’s case (King v. ICBC) the Plaintiff was involved in a 2007 BC motor vehicle collision.  4 vehicles were involved in the crash.  The Plaintiff was insured with ICBC and they paid out over $36,000 with respect to the claims made from the crash.  At the time of the collision the Plaintiff had a Class 5L learners licence and was operating his vehicle “without a qualified accompanying passenger“.   As a result he was found in breach of his insurance.   He was found to be the at fault motorist and ICBC asked that he pay them back the over $36,000.
The Plaintiff sued ICBC arguing that he was not at fault and that he was not in breach of his insurance.  ICBC counterclaimed for $36,613.33.  Prior to trial ICBC made an offer to settle their claim against the Plaintiff for $33,000.  The Plaintiff declined this offer and proceeded to trial.  Ultimately Mr. Justice Pearlman found the plaintiff was the at fault motorist and that he was in breach of his policy of insurance.  He ordered that he pay back ICBC the funds they paid out with respect to the collision claims.
The Court went further and ordered that the Plaintiff pay ICBC double costs for failing to accept their pre trial offer.  In reaching this judgement Mr. Justice Pearlman provided the following reasons:

[30]         The plaintiff’s claim failed as a result of the court finding that neither his testimony, nor that of his witness, Ms. Gromova, was credible.  The court found that the plaintiff had wilfully made a false statement respecting Ms. Gromova’s presence in the vehicle at the time of the accident.

[31]          The over-riding principle is whether, if the Offer to Settle had been accepted, there would have been significant, or any savings in litigation costs to the parties or to the court: LeFler v. Anderson, 2008 BCSC 1563, at para. 18. Here, acceptance of the offer would have spared both parties the significant costs of a four day trial where the amount in dispute was, exclusive of court order interest, less than forty thousand dollars.

[32]         Taking all these factors into consideration, I conclude that an award of double costs should be made in this case, and is consistent with the objective of deterring unreasonable conduct in litigation.  I find that the plaintiff was entitled to a reasonable time to consider the defendant’s Offer to Settle, following its delivery on September 24, 2010.  Taking into account the disclosure of the will say statements of the defendant’s witnesses on September 29, and allowing Mr. King a reasonable time to consider his position, and the defendant’s Offer following the delivery of the will say statements, I find that the defendant is entitled to an award of double costs  commencing October 7, 2010.


[33]         The defendant will recover its costs and disbursements of this action from its commencement until October 7, 2010.  Those costs will be at Scale B.

[34]         The defendant is entitled double costs commencing October 7, 2010 and to disbursements incurred after October 7, 2010.  Disbursements will be allowed in the amount incurred, rather than at a double rate.

Lawyer Ordered to Repay Legal Fees Collected During "Conflict of Interest"

Lawyers owe their clients a duty of loyalty and cannot act if their personal interests or interests of other clients create a conflict of interest.  Where a conflict of interest arises a lawyer needs to obtain informed consent from a client to continue acting or sometimes stop acting for the client altogether.  If a lawyer fails to do so he/she can be exposed to various consequences including the loss of their right to claim fees for services rendered.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this area of law.
In last week’s case (Campbell v. Ragona) the Plaintiff was injured in a motor vehicle collision in Hong Kong in 1992.  He hired a Vancouver lawfirm to prosecute his claim.  The Vancouver firm retained a Hong Kong firm to assist in the prosecution.  A trial was held on the issue of fault in 1998 and a Hong Kong judge found that the motorist who struck the Plaintiff’s vehicle was at fault for the crash.     The ‘damages‘ portion of the trial did not proceed in a  timely fashion.   In 2004, some 12 years after the crash, the at fault driver brought a motion to have the lawsuit dismissed for ‘want of prosectution’ and succeeded.  The Plaintiff appealed this dismissal.  Prior to having the appeal heard the Plaintiff settled his lawsuit on a compromised basis with the at fault motorist and waived his right to sue the Hong Kong lawfirm that acted on his behalf.
The Vancouver lawfirm continued to act for the Plaintiff during the settlement negotiations.  After the claim was settled the Plaintiff sued his Vancouver lawyer and lawfirm arguing that they were negligent and that they continued to act on his behalf despite a conflict of interest.  Mr. Justice Pearlman agreed with the Plaintiff and found that the Vancouver lawfirm should have insisted that the Plaintiff obtain independent legal advice after the Hong Kong lawsuit was dismissed for want of prosectuion.
Mr. Justice Pearlman went on to award the Plaintiff the difference between the realistic trial value of his personal injury  lawsuit and the settlement amount.  The Court went on to order that the Vancouver firm ‘discourge‘ the legal fees collected for representing the Plaintiff.  In making this order Mr. Justice Pearlman made the following comments about a lawyer continuing to act after a conflict of interest arises:

[563]     The rationale for the duty of loyalty, including the duty to avoid conflict, was explained by Wilson J.A. (as she then was) in Davey v. Woolley, Hames, Dale & Dingwall (1982), 35 O.R. (2d) 599 (C.A.) at 602:

The underlying premise … is that, human nature being what it is, the solicitor cannot give his exclusive, undivided attention to the interests of his client if he is torn between the client’s interests and his own or his client’s interests and those of another client to whom he owes the self-same duty of loyalty, dedication and good faith….

[565]     The codes of conduct published by both the British Columbia Law Society and the Canadian Bar Association contain provisions requiring the withdrawal of a lawyer if the lawyer’s continued employment would place the latter in a conflict of interest.  The Canadian Bar Association Code of Professional Conduct Rule XII Commentary 4(c) provides:

Obligatory Withdrawal

4. In some circumstances the lawyer will be under a duty to withdraw …:

(c) if it becomes clear that the lawyer’s continued employment will lead to a breach of these Rules such as, for example, a breach of the Rule relating to conflict of interest (Chapter V).

[566]     Similarly, the Law Society of British Columbia’s Annotated Professional Conduct Handbook, Chapter 10, s. 1 states:

Obligatory withdrawal

1. A lawyer is required to sever the solicitor-client relationship or withdraw as counsel if:

(d) the lawyer’s continued involvement will place the lawyer in a conflict of interest, …

[568] Mr. Ragona knew, at the very latest, on June 9, 2004 that there was the potential for a claim for professional negligence against him and his firm.  Mr. Ragona told Mr. Campbell that he could or should get independent legal advice when they met at the offices of AHBL on June 23, 2004.  At that time, the plaintiff indicated that he did not wish to obtain independent legal advice, and Mr. Ragona did not insist that he do so….

[574]     Independent legal advice at this point would probably also have ensured that if Mr. Campbell chose to continue with AHBL’s representation, he would do so on the basis of an informed waiver of the conflict of interest.

[575]     A client must have a full understanding of the nature of the conflict in order to make an effective waiver. This may require independent legal advice: Moffat v. Weinstein (1996), 135 B.L.R. (4th) 298 (Ont.Gen.Div.).

[576]     In some cases, nothing short of the lawyer ceasing to act for the client will suffice to avoid subsequent liability for the consequences of breach of fiduciary duty: Davey v. Woolley, Hames,Dale & Dingwall (1982), 35 O.R.(2d) 599 (C.A.), leave to appeal to SCC refused, 37 O.R.(2d) 499. In my view, given the nature of the conflict, and AHBL’s role in the loss of Mr. Campbell’s right to maintain his action in Hong  Kong, this was a case where AHBL ought  either to have informed the plaintiff that they could no longer act, or they should have insisted that that the plaintiff take independent legal advice, at their expense, before they settled his claim. If AHBL did not withdraw, then they were under a duty to insist that Mr. Campbell obtain independent legal advice: Re A Solicitor (1995), 14 B.C.L.R. (3d) 100 (C.A.).  Because Mr. Ragona continued to act for Mr. Campbell and did not insist upon the plaintiff obtaining independent legal advice, he and AHBL must bear the consequences of their breach of the fiduciary duty to avoid conflicts of interest.

[577]     The defendants are responsible for the consequences flowing from their breach of fiduciary duty.  The plaintiff bears the onus of proving a causal relationship between a breach of fiduciary duty and any loss for which he claims compensation.  Here, by the time of the breach of the duty to avoid conflict of interest, which occurred upon dismissal of the Hong Kong action for want of prosecution, Mr. Campbell had already suffered the loss resulting from inordinate delay in the prosecution of his action, for which he claims damages in contract and tort.

[578]     In Strother v. 3464920 Canada Inc., [2007] S.C.R. 177 at paras. 75 and 76, Justice Binnie held that the remedy of disgorgement may be ordered for either prophylactic or restitutionary purposes.  The prophylactic purpose is served by appropriating “for the benefit of a person to whom the fiduciary duty is owed any benefit or gain obtained or received by the fiduciary in circumstances where there existed a conflict of personal interest and fiduciary duty or a significant possibility of such conflict, the objective is to preclude the fiduciary from being swayed by considerations of personal interest.” Strother at para. 75, citing Chan v. Zacharia (1984), 154 C.L.R. 178 (Aust H.C.) per Deane J., at p.108.

[579] The prophylactic purpose of disgorgement is intended to teach fiduciaries that conflicts of interest do not pay.  The plaintiff is not required to prove a loss in order to recover a gain or benefit received by the fiduciary as a result of its breach of duty: Strother, at para.77.

[580] Subsequent to the dismissal of Mr. Campbell’s action for want of prosecution, Mr. Ragona, in breach of the fiduciary duty he owed to avoid conflict of interest, accepted the plaintiff’s offer of hourly remuneration for work performed on the file. He did so in order to benefit himself and his firm, at the plaintiff’s expense. The plaintiff is entitled to disgorgement of all fees or benefits received by Mr. Ragona and AHBL in consequence of this breach of their fiduciary duty to avoid conflict of interest  : Strother at para. 83.

[581] There will be an order that AHBL disgorge and pay to Mr. Campbell’s estate the sum of $84,391.86, representing the full amount of the fees charged by AHBL in their account rendered to Mr. Campbell dated December 29, 2004.

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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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