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Tag: Mr. Justice Saunders

Motorcyclist At Fault for Collision After Making "Poor Reactive Choice"

Adding to this site’s archived case summaries addressing collision liability, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision when a motorcyclist wrongly assumed a vehicle was going to come into his path of travel.
In this week’s case (Vance v. Cartwright) the Plaintiff motorcyclist was travelling southbound when the Defendant approached a stop sign. After stopping the Defendant proceeded forward then stopped after seeing the Plaintiff.  The Plaintiff “reacted by deciding to go to his right…believing she was going to continue to make her left hand turn and that this would lead to a collision“.  In finding the Plaintiff fully at fault for the collision Mr. Justice Saunders provided the following reasons:
[42]         I find that the accident happened through no fault on the part of the defendant.  She did what was reasonably expected of her.  She stopped at the line, checked for traffic, moved forward slowly giving her improved sight lines, and when she saw the oncoming motorcycle stopped again.  She cannot be held responsible for his decision to veer to the right.
[43]         The plaintiff says that the defendant was moving into his lane and that he felt she was committed to making her left turn.  That evidence struck me as a post hoc rationalization of the plaintiff’s actions.  There was nothing in the defendant’s actions to indicate she was doing anything other than proceeding forward slowly before committing to a turn.
[44]         I find this accident happened solely due to the plaintiff’s fault.  He approached an intersection which he ought to have known had limited visibility, travelling not out towards the centre line where he would have been more easily seen, but far to the right, making him less visible to the defendant.  He was speeding which cut his reaction time and would have cut the reaction time of other drivers as well.
[45]         The evidence of how he reacted when he saw the defendant’s car is, at least, equally consistent with him having panicked when he saw the defendant’s car or with him having made a poor reactive choice reflecting his lack of training and experience.
[46]         The action is, therefore, dismissed.

ICBC Expert Witness Rejected for "Facile and Argumentative" Testimony

Adding to this ever growing database of case comments criticizing expert witnesses for advocacy, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, rejecting the evidence of an orthopaedic surgeon hired by ICBC and providing critical comments about his courtroom testimony.
In this week’s case (Devilliers v. McMurchy) the Plaintiff was involved in a 2008 collision.  She sustained “a significant back injury leading to significant pain that has become chronic and likely permanent“.  The Plaintiff was awarded non-pecuniary damages of $75,000.  In the course of trial the Defendant called an orthopaedic surgeon who minimized the connection between the plaintiff’s symptoms and the collision.  In rejecting this opinion Mr. Justice Saunders provided the following critical comments:
[34]         I am not persuaded by the alternative theories Dr. Grypma put forward. In attributing Ms. De Villiers’ continuing symptoms in part to deconditioning, Dr. Grypma completely overlooked Ms. De Villiers’ ongoing exercise routine, which has led to a 90-pound weight loss. He also gave no explanation as to how the relatively mild degenerative changes seen in the MRI study could account for Ms. De Villiers’ chronic pain and its resistance to the various treatments she has undertaken, without the accident having been a critical factor in the onset of her complaints. To accept his changed opinion, I would have to find that the emergence of symptoms of back pain in proximity to the accident was mere coincidence. I am not prepared to make that finding.
[35]         Furthermore, Dr. Grypma’s interpretation of Dr. Schuurman’s CL-19 report as only demonstrating a Grade I soft tissue injury overlooked the fact that Dr. Schuurman clearly found it to be a Grade II injury; the second page of the CL-19 form has a ticked box next to the description of a Grade II injury:
Neck/upper back
musculoskeletal signs:
·        decreased ROM
·        point tenderness.
Dr. Grypma initially maintained on cross-examination that a Grade II injury classification requires both decreased range of motion, and point tenderness. However, he conceded that the Québec Task Force Grade II classification uses point tenderness as a clinical sign, distinguishing this injury from a Grade I injury in which there are no clinical signs. Attempting to defend his position that this was not a Grade II injury, Dr. Grypma then asserted that Ms. De Villiers’ injury could be viewed as a “Grade 1.5”. There is no evidence of such a classification being recognized. I was not impressed by this testimony.
[36]         Dr. Grypma contended that as patients waiting for hip replacements usually have chronic pain over two to three years prior to having surgery, and the vast majority of these patients eventually recover, there is every reason to believe that Ms. De Villiers will also recover from her chronic low back pain. I found this analogy facile and argumentative. Dr. Grypma did not claim any expertise in the field of chronic pain treatment.
[37]         Overall I found Dr. Grypma’s evaluation of Ms. De Villiers to be ill-considered and superficial, and I give no weight to his evidence.

"Plaintiffs are not Given Carte Blanche to Undertake any and all Therapies Which They Believe Will Make Them Feel Good"

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, underlying the importance of having medical opinion evidence in support of claimed special damages in an injury claim.
In this week’s case (Redl v. Sellin) the Plaintiff was injured in a 2009 collision.  Fault was admitted by the Defendant and there was no disagreement that the Plaintiff suffered from a chronic pain disorder as a result of her collision related injuries.  What was disputed was the significant treatment related expenses the Plaintiff advanced at trial.
The Plaintiff advanced special damages of over $46,000.  The Court disallowed many of these noting there was no medical evidence to justify many of these expenses.  In rejecting much of the sought special damages claim Mr. Justice Saunders provided the following reasons:
[44]         Ms. Redl is advancing a claim for special damages which is remarkable in its size and scope. The total amount sought is $46,501.22…
[55]         Generally speaking, claims for special damages are subject only to the standard of reasonableness. However, as with claims for the cost of future care (see Juraski v. Beek, 2011 BCSC 982; Milina v. Bartsch(1985), 49 BCLR (2d) 33 (BCSC)), when a claimed expense has been incurred in relation to treatment aimed at promotion of a plaintiff’s physical or mental well-being, evidence of the medical justification for the expense is a factor in determining reasonableness. I accept the argument expressed through Dr. Frobb, that a patient may be in the best position to assess her or his subjective need for palliative therapy. I also accept the plaintiff’s counsel’s argument that in the circumstances of any particular case, it may be possible for a plaintiff to establish that reasonable care equates with a very high standard of care. In the words of Prof. K. Cooper-Stephenson inPersonal Injury Damages in Canada, (2d ed., 1996) at p. 166:
Even prior to the Supreme Court’s endorsement of the restitution principle [in Andrews v. Grand & Toy Alberta Ltd. and Arnold v. Teno], in the area of special damages the courts had been prepared to allow optimum care, and damages were awarded for expenses of a character that stretched far beyond the resources of even an affluent Canadian.
That being said, and while Dr. Frobb’s paradigm of the patient becoming their own physician may have at least a superficial appeal, plaintiffs are not given carte blanche to undertake any and all therapies which they believe will make them feel good.
[56]         In the present case, Ms. Redl undertook an extraordinarily wide variety of therapies, some without advice, and some less conventional than others. She did so at considerable expense. It is probable, in my view, that she undertook this course of action in part through a desire to recover quickly and in part on the basis of her positive past experience, pre-accident, with massage therapy and chiropractic. However, her firm beliefs notwithstanding, there is no medical evidence that the therapies she undertook accelerated her return to work or have otherwise improved her physical condition. With regard to the palliative effect of the therapies, Ms. Redl did not experiment with trying one modality at a time. She did not experiment with lengthening the time between appointments. There is no evidence that the palliative effect of these therapies was any greater than what may have resulted from the use of over-the-counter medications. Ultimately, the evidence does not persuade me on a balance of probabilities that Ms. Redl’s physical or mental well-being is or could reasonably have been expected to be any greater as a result of undertaking these frequent therapies, than it would be if she had stuck to her pre-accident pattern of weekly or bi-weekly massage and monthly chiropractic treatments.
[57]         I am allowing, as special damages, the cost of her first 12 massage therapy sessions ($936.50), and her first 12 chiropractic treatments ($930), as such would have been reasonable during the acute phase of Ms. Redl’s recovery. Beyond that, I find that had the accident not occurred, the pre-accident pattern of these treatments likely would have continued up to the present date, even had the accident not occurred, and no greater frequency of treatment has been demonstrated to have been reasonable.
[58]         I am further allowing the cost of massage therapy sessions she underwent when on cruise vacations in September 2010 and March 2012, when she experienced flare-ups ($650). I am also allowing the physiotherapy ($210) and kinesiology ($453) expenses, as they were incurred on medical advice, and the 14 acupuncture treatments rendered at Dr. Frobb’s clinic ($2,100). The expense of the Pilates course is also allowed ($3,974.92), as being in furtherance of core strengthening, which Dr. Frobb referred to as a priority. I am disallowing the balance of the massage therapy, acupuncture and chiropractic expenses, and the claims for naturopathic and reflexology treatments, as not having been demonstrated as reasonable.

PAU Strips Ontario Insurer of Defense for Payment of BC No Fault Benefits

As previously discussed, BC’s Financial Institutions Act requires out of Province vehicle insurers to sign a “Power of Attorney Undertaking” in essence promising to provide the minimum insurance coverage available in BC when their insured vehicles are travelling in this Province and further not to raise any defences which are not available to BC insurers.  As many North American jurisdictions have insurance limits well below those required in BC this often creates excess exposure for foreign insurers.  Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, stripping a PAU signatory of a defence they otherwise would be entitled to.
In the recent case (McCord v. Insurance Corporation of British Columbia) the Plaintiff was injured as a pedestrian in a BC collision.  He was insured for no-fault benefits both with ICBC  and a private insurer from Ontario.  He received benefits from ICBC and subsequently sought coverage with the Ontario provider.  The Ontario insurer denied payment relying on an Ontario regulation which limited payments “if the person receives benefits under the law of the jurisdiction in which the accident occurred“.
The Plaintiff sued arguing the Ontario insurer could not rely on this section as they signed the PAU.   Mr. Justice Saunders agreed and provided the following reasons:
[9]             Western Assurance says that there has been no violation on its part of the PAU; it has not set up a defence as to coverage, but has simply taken a position as to the amount of coverage available….
[10]         The PAU sets out two provisions. One is an undertaking not to raise defences. The other is an undertaking to pay limits as set out in (a) and (b) of the PAU. A “position” taken by a foreign insurer that only the minimum amount is payable, and not the full amounts otherwise payable under the foreign insurer’s policy, is, in every sense of the word, a defence. The position being taken here by Western Assurance is one of the types of conduct which the PAU is designed to prevent…
[12]         In my view, the raising of the provisions of the Regulation by Western Assurance is a defence within the meaning of the PAU, and reliance on those provisions as a defence would constitute a breach of the undertaking under the PAU.
[13]         The application is therefore allowed, and s. 57(1.1) of the Regulation will have no application to Mr. McCord’s claim for benefits.

Rule 15 Caselaw Update – Costs For Trials Exceeding Three Days

Adding to this site’s archived caselaw dealing with BC Supreme Court’s Fast Track Rule, reasons for judgement were released addressing the appropriate costs for a Fast Track trial which exceeds 3 days.
Rule 15-1(15)(c) fixes costs for fast track trials which exceed two days at $11,000 “unless the court otherwise orders”.   In the recent case (Coutakis v. Lean) the Court held that the circumstances were appropriate to depart from this default amount.
In the Coutakis case the Plaintiff suffered C6/7 disk herniation.   His claim proceeded via fast track trial and ultimately took more than three days to conclude.  The Plaintiff argued that the $11,000 costs cap should be set aside to account for the lengthier than anticipated trial.  Mr. Justice Saunders agreed finding that the pronged hearing was due in part to the Defendant leading “irrelevant” and “ineffectual” evidence.  In assessing costs at $14,000 the court provided the following reasons:
[10]         Under subrule 15-1(15), the court is given a wide discretion to order an amount of costs other than the fixed amounts set out therein.  In my view, this is a case which clearly calls for the exercise of that discretion, in favour of the plaintiff.  That the hearing of the evidence took three days, rather than two, was largely as a result of the defence’s cross-examination of four of the plaintiff’s treating physicians, and the defence’s tendering as opinion evidence of the consultation report of a neurosurgeon.  Hearing the evidence of all of these physicians took more than three hours, and, as I stated in my judgment, all of it was ineffectual.  Further time was spent hearing irrelevant evidence from the defendant.
[11]         I find that the plaintiff is entitled to costs for each of the four days spent hearing evidence and argument, and for the fifth day which was scheduled but on which the trial did not proceed.
[12]         The plaintiff seeks a further allocation for additional preparation associated with the trial being continued eight months after it commenced.  Having reviewed the evidence before the court on the third day of trial, I do not think that the additional preparation would likely have been significant, and in any event any further cost incurred by the plaintiff is addressed by having awarded the plaintiff full costs for the aborted day of trial.
[13]         Using the amounts prescribed in the subrule as reference points, I award the plaintiff base costs of $14,000, plus disbursements.

Double Costs Awarded Following Liability Only Trial

Adding to this site’s archived posts of costs consequences following trials with formal settlement offers, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing this topic following a ‘liability only’ trial.
In this week’s case (Cyr v. Blaine) the Plaintiff was involved in a 2009 collision.  The parties agreed that, subject to proving fault, the value of the claim was $60,000.  The parties could not agree on fault both arguing the other was to blame.  Prior to trial the Plaintiff delivered a formal settlement offer of $50,000.
At trial the Defendant was found fully at fault entitling the Plaintiff to the agreed damages of $60,000.  Mr. Justice Saunders found that it was appropriate to award the Plaintiff post offer double costs in these circumstances.  In doing so the Court provided the following reasons:

[13] The defendants say that it was reasonable for them to try the case on the basis of their theory that the plaintiff had a duty to look to her left as she passed by the front of the vehicle that had stopped for her in the intersection.  But even if the plaintiff had been under an obligation to anticipate that there might be another vehicle in the same lane as the stopped vehicle, attempting to pass that stopped vehicle on the left, the defendants had no evidence that, by the time she would have been able to see the defendants’ vehicle, she would have been able to bring her own vehicle to a stop in time to avoid the collision, given the defendants’ speed.

[14] The defendant Mr. Blaine passed a stopped vehicle, on its left, when he was in the same lane as that vehicle. As I found, it ought to have been apparent to Mr. Blaine from the opening in the divider separating eastbound and westbound traffic that he was passing through an intersection, and that cars travelling in his direction had stopped to let a vehicle or vehicles through the intersection. By the time the subject offer was delivered, it ought to have been apparent to the defendants that they would be found wholly or at least substantially liable for the accident.

[15] Given that damages had been agreed at $60,000, the plaintiff’s $50,000 offer represented a discount of roughly 17%, or, to put it another way, roughly a 50% chance of a finding of one-third contributory negligence on the plaintiff’s part.  It was an offer that reasonably ought to have been accepted upon delivery.

[16] The plaintiff, I find, is entitled to double costs of all steps taken after the offer was delivered.

$45,000 Non-Pecuniary Assessment for C-7 Disc Herniation With Radiculopathy

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for injuries sustained in a collision.
In this week’s case (Coutakis v. Lean) the Plaintiff was involved in a rear-end collision in 2008.   The crash was of ‘considerable force‘.  While there was competing evidence as to the exact speed of impact the Court made the following common sense observation “The precise speed does not matter.  What does matter is that there is no evidence that the force of the collision, given the defendant’s estimated speed, would have been insufficient to cause the injuries complained of“.
The collision caused low back soft tissue injuries in addition to a C-7 disc herniation with nerve root impingement causing pain and weakness in the Plaintiff’s arm.

The Plaintiff was a retired maintenance engineer but made spare money in his retirement painting houses.  The injuries disabled him from this work.  In assessing non-pecuniary damages at $45,000 Mr. Justice Saunders provided the following reasons:

[47]In summary, Mr. Coutakis was an active and relatively healthy person prior to the motor vehicle accident, with no significant low back pain other than the occasional flare-ups which we are all subject to, and with every reason to expect a healthy and active retirement.  His plan to keep working at painting was reasonable, and there is a significant probability to be attached to his thought of continuing to work, health permitting, approximately to age 75.  His current complaints disable him from pursuing his employment as a painter.  I find that his current complaints were materially contributed to by the accident.  There is no basis, on the evidence, for concluding that any pre-existing degenerative changes in his cervical or lumbar spines – the cervical herniation, and the lumbar disc bulging – would have become symptomatic but for the accident, and certainly not to the present level of dysfunction and disability.

[48]There is some reason to hope for some modest resolution of Mr. Coutakis’ complaints with continuing conservative treatment.  However, the only expert witness to express any significant degree of optimism is his family physician, Dr. Cox.  Dr. Cox is not a specialist and I am not inclined to give his optimism a great deal of weight.  He did not have the benefit of Dr. Rothwell’s report, when he examined Mr. Coutakis in September 2010.

[49]I regard the possibility of Mr. Coutakis making any really significant recovery to the level of having a pain-free life, as small.  Even if he were to recover to the level where he might be physically able to resume work, the question at that point would be whether he would be inclined to do so, given his age; with all that he has been through, at that point it would be entirely reasonable for Mr. Coutakis to retire fully and enjoy what is left of his healthy retirement years…

[52]I assess non-pecuniary damages at $45,000.

More on Costs and the Flexibility of the New Rules of Court

(Update June 5, 2013- the underlying trial verdict was upheld in reasons for judgement released today by the BC Court of Appeal)
As previously discussed, one of the best changes in the New Rules of Court is the ability for trial judges to have discretion in assessing costs consequences where one party bests their formal settlement offer at trial.
Generally where a Plaintiff fails to beat a Defence formal settlement offer they can be punished with a significant costs award.  Fortunately Rule 9-1 does not force a Court to this result and instead leaves some discretion in the process.   This discretion was demonstrated in reasons for judgement released last week by the BC Supreme Court, New Westminster Registry.
In last week’s case (Gatzke v, Sidhu) ICBC, on the Defendant’s behalf, made a formal settlement offer of $50,000.  The Plaintiff proceeded to trial and after a split finding of liability was assessed damages at “an amount to someting less than $10,000“.
ICBC brought a motion to be awarded post offer costs.  Mr. Justice Saunders refused to make this order instead simply ordering that the Plaintiff be deprived of her post offer costs and that the Plaintiff pay the disbursements associated with bringing the Defendant’s IME doctor to trial.  In reaching this result the Court provided the following reasons:

[14] …. Ordinarily, where a plaintiff obtains judgment for less than the amount offered in settlement, the legislative purpose of the Rule would be fulfilled by awarding the defendant its costs from the date the offer was made.  However, where there is a very significant gap between the judgment amount and the offer, it may be the case that a defendant is in a better position for having gone to trial, even taking its counsel’s fees into account.  This appears to have quite possibly been the case in the present circumstances.  The damages assessed, net of the plaintiff’s contributory negligence, are a small fraction of the offer.

[15]Defendants should not be discouraged from making generous settlement offers.  But where the end result is dramatically different than the offer resulting in a net savings to the defendant, a defendant found to be partially at fault can reasonably expect to bear some of the cost of obtaining that result.

[16]The plaintiff apparently has very limited financial means.  This factor, however, will be given the most weight where it is the subject accident, or other issue between the parties, which is responsible for the plaintiff’s circumstances.  That is not the case here.

[17]The defendants, on the other hand, were presumably being defended by the Insurance Corporation of British Columbia.  An insured defendant’s greater financial ability to defend is a factor which was described by the B.C. Court of Appeal in Smith v. Tedford, 2010 BCCA 302, as being a matter “of no small importance to considering whether and to what extend the financial circumstances of the parties, relative to each other, bear on an award of costs”.

[18]This appears to have been a case where both parties undertook a course of action based on an overestimation of the risk to the defendants.  There is no compelling case, in the circumstances, for awarding the defendants the entirety of their post-offer costs.  Given the plaintiff’s financial circumstances and the very modest damages, the purpose of the Rule will be met by awarding the plaintiff 30% of her costs to the date of the offer, and awarding the defendants only the disbursements incurred in association with the attendance at trial of their expert witness, Dr. Sovio.  Dr. Sovio’s attendance at trial was only required for cross-examination at the plaintiff’s request, and it is appropriate that this cost be borne by the plaintiff.  That amount is to be set off against the plaintiff’s award of damages.

Defendant Called During Plaintiff's Case in Traumatic Brain Injury Claim

In most BC Supreme Court lawsuits Plaintiff’s obtain evidence from the opposing side prior to trial by way of examination for discovery.   Helpful portions of the discovery transcript are then read into the trial record in support of the Plaintiff’s claim.   This is a controlled way to lead helpful evidence from a potentially damaging source.
There is, however, another way (albeit a riskier way) to use the Defendant in support of a Plaintiff’s claim.  The Rules of Court allow one party to call an “adverse party” as part of their case in chief with delivery of a subpoena and witness fees.   Rule 12-5(22) goes further and allows a Plaintiff to put the Defendant on the witness stand without notice if the Defendant is “in attendance at the trial“.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, demonstrating this seldom used option in action.
In last week’s case (Rintoul v. Gabriele) the Plaintiff pedestrian was struck while in a cross-walk.   The Plaintiff was born without upper limbs and after being struck “would have been unable to break her fall.  In landing on the pavement, she hit her head and was briefly unconscious“.
Both liability and quantum (fault and value of the case) were at issue with the Defendant arguing the Plaintiff was to blame at least in part for the collision and that her on-going issues were not related to the brain trauma suffered in the collision.  Mr. Justice Saunders disagreed and found the Defendant fully at fault for the impact.  In the course of the trial the Plaintiff’s lawyer took advantage of Rule 12-5(22) and put the Defendant on the stand as their first witness.  Damaging admissions were extracted which could not be remedied when the Defendant was re-called as a witness in the Defence case.  In highlighting this interesting turn of events Mr. Justice Saunders provided the following reasons:
[7] The defendant, Ms. Gabriele, was in attendance on the first day of trial. She was called to the witness stand as the first witness for the plaintiff’s case, and cross-examined…

[14] Ms. Gabriele testified that she was turning her vehicle and had just started to enter the pedestrian crosswalk, going perhaps 10 or 15 km/h, when she felt a bump, and saw a flash of a face in her headlights. She stopped and got out, and ran to the front of her vehicle. The plaintiff was lying unconscious in the crosswalk.

[15] Ms. Gabriele was not challenged on her estimate of her speed.

[16] Ms. Gabriele was asked why she did not, after looking to the right, look to the left again before making her turn, to see if any of the pedestrians she had previously seen on the southeast corner were walking in the crosswalk. She replied, “I made a mistake”….

[24] There was a break in the trial of just over two months. During that time period, Ms. Gabriele walked through the accident scene with her counsel. After the trial resumed, Ms. Gabriele was called to give evidence as part of the defence case. Testifying in chief, she gave a slightly different version of events. She said in her evidence in chief that after looking at the southwest corner, she looked back in front of her, did not see anything, and then proceeded to make her turn.

[25] I do not accept this second version of events…

The Court went on to conclude that the Plaintiff did suffer from long term consequences as a result of her injuries and assessed global damages at just over $950,000 including non-pecuniary damages of $175,000.  In addition to the above point of civil procedure, this case is worth reviewing in full for Mr. Justice Saunders lengthy discussion of the expert evidence called to address the issue of the Plaintiff’s traumatic brain injury.

More on Registered Owner Liability and the Implied Consent Test

As previously discussedsection 86 of the BC Motor Vehicle Act makes owners or lessees of vehicles responsible for any damage or loss caused by the operation of their vehicle by an individual to whom consent was given.  In other words, if you let someone drive your vehicle and they cause a collision you can be sued to pay the damages.
Usually owners admit they allowed the driver to operate the vehicle.  In these cases there is ‘express consent‘.  Where there is no express agreement the law looks into the circumstances to decide if there was ‘implied consent‘.   Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dealing with this area of law.
In this week’s case (Green v. Pelley) two plaintiffs sustained serious injuries when their vehicle was struck by a vehicle (owned by the Defendant McIvor) and driven by the Defendant Pelley.
The Plaintiff’s sued for damages.   There was no issue that Pelley did not have express consent to drive McIvor’s vehicle.  The Plaintiff’s alleged that there was implied consent.  Mr. Justice Saunders disagreed and dismissed the claim against the Defendant McIvor.  In doing so the Court summarized the legal principles with respect to ‘implied consent‘ as follows:

[39] The test for a finding of implied consent under s. 86, in situations where consent has been given to one person but the vehicle ends up being driven by a third party, is as set out in Hartley v. Saunders (1962), 33 D.L.R. (2d) 638 (B.C.S.C.), and in Godsman v. Peck (1997), 29 B.C.L.R. (3d) 37 (C.A.). The evidence must establish that the vehicle owner had both an expectation and willingness that a third party would drive the vehicle.  Both an expectation and willingness must be shown.  One without the other will not suffice: L’Heureux v. Eustache, 2003 BCSC 347 at para. 9.

[40] The requirement that an owner have an actual expectation of a third party driving the vehicle is relaxed, where it is clear from the circumstances that consent would have been given, if sought, as a matter of course in the particular circumstances confronting the person who is in possession by consent: dissenting judgment of Porter J.A. in Palsky v. Humphrey (1963), [1964] 41 D.L.R. (2d) 156 (Alta. S.C. (A.D.)), as approved of and adopted by the Supreme Court of Canada on appeal, [1964] S.C.R. 580 at 662…

[53] The plaintiffs urge me to take a broad view of the concept of consent in light of the legislative intent behind s. 86, which is said to be that of maximizing the availability of compensation for injured parties.  Indeed, Macdonell J. stated in the Bareham decision, at para. 27, that the only public policy reasons to be considered in interpreting s. 86:

. . . are those in favour of protecting innocent third parties seeking compensation for injuries suffered at the hands of negligent automobile drivers and, vicariously, owners.  . . .

Bareham, as I have noted, is a case in which consent was found.  In Bareham, the public policy argument addresses the subject of whether the consent had been vitiated by the driver’s illegal use of the vehicle.

[54] The same public policy considerations were cited by the B.C. Court of Appeal in Morrison (Committee of) v. Cormier Vegetation Control Ltd. (1996), [1997] 28 B.C.L.R. (3d) 280 (C.A.), at para. 24, as justifying the legislation’s departure from the common law’s strict approach to vicarious liability.  These same considerations were also cited in Barreiro v. Arana, 2003 BCCA 58, as justifying the statute’s modification of the law of agency.

[55] Godsman, in which the Court of Appeal approved of and restated the “willingness and expectation” test, was decided after Morrison and Bareham.  I do not read Barreiro as having modified the Godsman test in any way.

[56] I find that there is no evidence of Mr. McIvor having consented by implication to Pelley’s operation of the vehicle.  Therefore, as I understand the issue before me, the claim of the plaintiffs against Mr. McIvor based on vicarious liability is to be dismissed.