Thursday, October 9, 2014

BC Supreme Court Clarifies Entitlement to "Revival" of Part 7 Disability Benefits

In the case of Symons v. Insurance Corporation of British Columbia 2014 BCSC 1883, a summary trial application, the Court considered the “revival” of ICBC disability benefits following the Plaintiff’s attempt to return to work. In reasons for judgment, released today, the BC Supreme Court clarified when an individual insured through ICBC is entitled to receive temporary total disability (TTD) benefits, under Part 7 of the Insurance (Vehicle) Regulation.
Here, the Plaintiff had been seriously injured when her vehicle was hit from the rear by a large truck, on April 20, 2008.These injuries were immediately disabling, and the Plaintiff was paid TTD benefits until early May of that same year. After taking these two weeks off from work, the Plaintiff felt compelled to return to her regular employment, as she had just recently started her own business and had purchased a home with a mortgage. She returned to work in what the court called a “creditably stoic and determined manner”, hoping to return to normal life after the accident.

It was soon clear that the Plaintiff’s injuries were not going to ameliorate over time, despite her initial and continued efforts of engaging in various forms of therapy. The Plaintiff underwent two separate discectomies, neither of which was successful in alleviating the Plaintiff’s symptoms, and she developed anxiety and depression associated with her disability. Since February 12, 2012, the Plaintiff was unable to work, and on January 23, 2013, she sought to have her TTD benefits from ICBC reinstated. By the time the Plaintiff filed the present Application, on February 4, 2014, the Defendant Corporation had not yet delivered a proper response.

In its reasons for judgment, the Court sets out the relevant provisions under Part 7:

[14] Sections 79 and 97 of the Regulation mandate that, to be entitled to Part 7 disability, medical or rehabilitation benefits, a person must:
a)     be an “insured” person as defined in s. 78 (section 79(1));
b)    have been injured in an accident involving the use or operation of a                  vehicle that occurred in Canada or the United States (section 79(1));
c)    promptly give ICBC notice of the accident (section 97(1)(a));
d)   give ICBC a written report of the accident with particulars of the
     circumstances in which the accident occurred and the consequences of the      accident no more than 30 days after the accident (section 97(1)(b)); and
e)   give ICBC a proof of claim within 90 days of the collision (section 97(1)(c)).

[15] There was no dispute, on this hearing, that the plaintiff complied with all of these preconditions to entitlement.
[16] Section 80 of the Regulation provides:
80(1) Where, within 20 days after an accident for which benefits are provided under this Part, an injury sustained in the accident totally disables an insured who is an employed person from engaging in employment or an occupation for which the insured is reasonably suited by education, training or experience, the [defendant] shall, subject to section 85, pay to the insured for the duration of the total disability or 104 weeks, whichever is shorter …
(a) the applicable amount of disability benefits set out in section 2 of Schedule 3 [in this case, $300 a week].
[17]         Total disability after 104 weeks is governed by s. 86 of the Regulation, which provides:
86 (1) Where an injury for which disability benefits are being paid to an insured under section 80 or 84 continues, at the end of the 104 week period, to disable the insured as described in the applicable section, the corporation shall, subject to subsections (1.1) and (2) and sections 87 to 90, continue to pay the applicable amount of disability benefits to an insured described in section 80 or 84(a) for the duration of the disability, or(b) until the insured reaches 65 years of age, whichever is the shorterperiod. [Emphasis added] 
The Plaintiff took the position that, once she met the prerequisites for total disability within the meaning of Part 7, the fact that she was able to return to work, even for a significant period of time, does not disentitle her to the TTD benefit payments after she again became totally disabled by injuries she had sustained in the same accident.

ICBC denied this, relying on the plain language of s86 of the Regulation, in asserting that the Defendant’s obligation to pay the Plaintiff TTD benefits ended at the time she was able to return to work. As Mr. Justice Baird points out at [21]:

Essentially, they say that TTDs cannot be revived or reinstated outside the 104-week period referred to in both ss. 80 and 86 of the Regulation: see the underlined phrase in s. 86, above, for the wording in contention, along with Rashella at para. 32 and Andrews v. Roffel, [1998] B.C.J. 631 (S.C.).
The Court considered the jurisprudence on the “revival” of TTD benefit payments, referring to a number of recent case which led the Court to find, at [35] – [36]:

[35] Following Brewer, Halbauer, and Cai, insured persons currently have a right to revive their TTDs (assuming all the other regulatory requirements are met) in three situations:
1.     Entitlement and revival under s. 80: the insured person receives benefits under s. 80, returns to work, and again becomes totally disabled from employment within the 104-week period.
2.     Entitlement and revival under s. 86: the insured person receives 104 weeks of benefits under s. 80, transitions to benefits under s. 86, then returns to work for a period before again returning to total disability.
3.     Entitlement under s. 80 and revival under s. 86 (intervening alternate insurance benefits): the insured person receives TTDs under s. 80, then receives private insurance benefits for more than 104 weeks, before reviving Part 7 benefits under s. 86.
[36] The plaintiff in this case established entitlement under s. 80, and seeks revival under s. 86. In my view, the plaintiff is entitled to a revival of her TTDs. While none of the cases have taken the exact step that the plaintiff urges upon me, Brewer, Halbauer, and Cai have certainly cleared the path. Indeed, there is a plausible argument that Cai has already answered this question in the affirmative. For convenience, I repeat Bruce J.’s conclusion:
Section 86 should be interpreted in a purposive manner. Provided the insured remains eligible for benefits under s. 80, whether or not they are currently in receipt of monies from ICBC pursuant to that provision, they are eligible to apply for a continuation of those benefits under s. 86. [Emphasis added.]

The Court also sought to clarify the intent of the legislation, adding, at [40] – [42]:

[40] The Regulation is part of a legislative scheme of universal compulsory vehicle insurance. It is designed to provide “no fault” benefits to insured persons who are seriously injured in motor vehicle accidents. These benefits are meant to temper the negative financial consequences — in particular, the loss of employment or homemaking ability — that flow from such injuries.
[41] Part 7 is also designed to promote the injured person’s rehabilitation, defined in s. 78 as “the restoration, in the shortest practical time, of an injured person to the highest level of gainful employment or self-sufficiency that … is … reasonably achievable”. To this end, Part 7 also includes rehabilitation benefits under s. 88, including the provision of funds for various one-time expenses that are likely to promote the person’s recovery (for vocational training, for example, or alterations to the insured’s residence to improve accessibility), and funds for medical treatments and rehabilitative therapies.
[42] In other words, Part 7 (at least so far as it is concerned with benefits following injury, rather than death benefits) has two related objects: to compensate an insured person for a portion of the financial loss accrued from temporary total disability caused by a motor vehicle accident; and, where possible, to do so in a manner that brings about the end of the total disability by returning the injured person to employment or self-sufficiency. (For some discussion of these purposes, see Halbauer at para. 41.)
Continuing, with regard to interpretation of the Regulation, at [43] – [44]:

[43] In Halbauer, the court rejected the plain meaning of another provision in the Regulation because that interpretation led to absurd consequences and frustrated the rehabilitative object of Part 7. A similar concern animated the court in Brewer, where Melnick J. noted at para. 18 that, absent a right to reinstatement, “claimants may be reluctant to attempt to return to work when they experience improvement for fear that, if the improvement proves to be temporary, their benefits will not be reinstated.”
[44] I have similar concerns about the defendant’s interpretation of the regulatory provisions under consideration in this case. Given that Brewer has already established a right to reinstatement prior to the 104-week mark, the plain meaning interpretation of s. 86 would simply encourage claimants to end any attempt to return to work at the 103-week mark or, as observed in Brewer, to avoid such an attempt entirely.
The Court then concluded:

[49] I therefore conclude that an insured person is eligible to apply for the revival of TTDs under s. 86 so long as a) they have previously established eligibility and received TTDs under s. 80; b) they can demonstrate that they are totally disabled as defined in s. 80; and c) they can show that the total disability is due to injury sustained in the original accident.
The Plaintiff was granted a declaration that she is entitled to TTD benefits, as well as medical and rehabilitation benefits, under Part 7 of the Insurance (Vehicle) Regulation. Judgment was ordered in her favour, for benefits that ought to have been paid following her first discectomy, and for her current period of total disability.

posted by Collette Parsons at 0 Comments

Friday, October 3, 2014

Plaintiff Awarded $3.1M For Nightclub Assault After Defendants Snub Settlement Offer of $1.4M

The case of Maras v. Seemore Entertainment Ltd. 2013 BCSC 1842, involved a Plaintiff who was assaulted outside a Downtown Vancouver nightclub. Liability for the incident was shared by the corporate Defendant, which owned the nightclub, and three of the club’s security personnel or “bouncers”, in a judgment delivered on June 9, 2014 The Plaintiff was found not to be contributorily negligent.

Before trial, the Plaintiff had made three separate formal offers to settle the matter:
  1. The first offer, made on March 6, 2012, was for $1,800,000 plus costs and disbursements, in exchange for a consent dismissal order on a without costs basis. This offer was not responded to by the Defendants.
  2. The second offer was made on April 3, 2012, approximately two weeks before a 20 day trial was set to commence with a jury, though trial did not proceed at that time. This offer was also in the amount of $1,800,000 plus costs and disbursements, payable by the Defendant Seemore Entertainment Ltd., in exchange for a consent dismissal order on a without costs basis. Additionally, the Plaintiff offered to waive his claim for punitive damages and all claims against the other parties, upon payment. This offer had been left open for over one year, and was formally withdrawn on June 27, 2013.
  3. The third offer to settle was made on September 9, 2013. This offer was for $1,425,000 plus costs and disbursements. The Plaintiff additionally offered to waive his claim for punitive and exemplary damages, if the offer was accepted. This offer was left open for acceptance for ten days, but the Defendants again did not respond.

Prior to commencement of the trial on April 7, 2014, three of the Defendants had made one offer to settle, which was put forward on June 3, 2011, in the amount of $20,000 inclusive of costs but not disbursements.

At trial, the Plaintiff was awarded damages in the amount of $3,084,200.

The Court now had to consider judgment in relation to costs. The applicable principles in this assessment included Supreme Court Civil Rule 9-1(4)-(6):

Offer may be considered in relation to costs 
(4) The court may consider an offer to settle when exercising the court's discretion in relation to costs.  
Cost options 
(5) In a proceeding in which an offer to settle has been made, the court may do one or more of the following:
(a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle; 
(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle; 
(c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made; 
(d) if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant's costs in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle.
 Considerations of court 
(6) In making an order under subrule (5), the court may consider the following:
(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date; 
(b) the relationship between the terms of settlement offered and the final judgment of the court; 
(c) the relative financial circumstances of the parties; 
(d) any other factor the court considers appropriate.

Also considered were a number of principles generated in case law, which had been outlined in the case of Bideci v. Neuhold 2014 BCSC 1212, examined at [31]:

(a) the party “seek[ing] to displace the usual rule [as to costs] has the burden of persuading the judge that the rule should be displaced: Giles v. Westminster Savings and Credit Union, 2010 BCCA 282 (CanLII) at para. 75, citing Grassi v. WIC Radio Ltd., 2001 BCCA 376 (CanLII) at para. 24; 
(b)  the overarching purpose of Rule 9-1 is to promote reasonable settlements and to attach some consequences to the failure of a party to accept a reasonable settlement: Brewster v. Li, 2014 BCSC 463 (CanLII) at paras. 15-16; 
(c)  the present Rules provide the court with considerable discretion to define and fix an appropriate cost award: Brewster v. Li at para. 14, citing Bailey v. Jang, 2008 BCSC 1372 (CanLII) at paras. 10, 18. The presumption under Rule 14-1(9) that a successful party is entitled to his costs is subject to the broad purpose of Rule 9-1 and the opportunity for judicial discretion under Rule 9-1(4) in that “the court may consider an offer to settle when exercising its discretion in relation to costs. Rule 9-1(5) enumerates the orders the court may make. In making an order under subrule (5), the court may consider the factors listed in subrule (6)”: Wafler v. Trinh, 2014 BCCA 95 (CanLII) at para. 79 [emphasis in the original]; 
(d)  unlike under the former Rule 37, it is not mandated under Rule 9-1 that a plaintiff who rejects a reasonable offer should face some sort of sanction. Rather, “[t]he permissive wording in Rules 9-1(5) and (6) indicates the legislature intended to preserve the historically discretionary nature of costs awards, including an award of costs where an offer to settle has been made”: Wafler v. Trinh at para. 82 [emphasis added in Bideci v. Neuhold]; 
(e)  in addition to indemnifying a successful litigant, the purposes for which cost rules exist were articulated by Frankel J.A. for the court in Giles v. Westminster at para.74 and include:

        • “deterring frivolous actions or defences”: Houweling Nurseries Ltd. v. Fisons Western Corp. (1988), 1988 CanLII 186 (BC CA), 37 B.C.L.R. (2d) 2 at 25 (C.A.), leave to appeal to the S.C.C. refused, [1988] 1. S.C.R. ix;
        • “to encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the opposite effect”: Skidmore v. Blackmore, [1995] 2 B.C.L.R. (3d) 201 at 208 (C.A.);
        • “encouraging litigants to settle whenever possible, thus freeing up judicial resources for other cases”: Bedwell v. McGill, 2008 BCCA 526 (CanLII) at para. 33; and
        • “to have a winnowing function in the litigation process” by “requir[ing] litigants to make a careful assessment of the strength or lack thereof of their cases at the commencement and throughout the course of the litigation”, and by “discourag[ing] the continuance of doubtful cases or defences”: Catalyst Paper Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16 (CanLII) at para.16.

The Court found that the proposition that a plaintiff should face sanctions for not accepting a reasonable offer applies equally to defendants. The question then turns to whether any of the formal offers were ones that ought reasonably to have been accepted by the Defendants, an indicator being whether or not the offer was within the range of reasonably expected outcomes.


In finding that all three of the offers were not offers that ought reasonably to have been accepted by the Defendants, the Court pointed to the following, at [46]:

      • the examinations for discovery of all the defendants were not completed until the fall of 2013;
      • the garnering of medical and other evidence by both the plaintiff and the defendants, but particularly the defendants, pertaining to the plaintiff’s injuries and the effect on his functioning was ongoing after Offer #3 expired;
      • the plaintiff’s biomechanical engineering expert report pertaining to the forces required to cause the plaintiff’s injuries was not served on the defendants until January 2014; and
      • the change to the court-ordered discount rate came into effect as of April 30, 2014, after the commencement of the trial and after the plaintiff’s economist had testified. Mr. Carson prepared revised reports that increased the defendants’ maximum exposure for damages for loss of earning capacity and cost of future care by almost $1 million. He was also recalled to give evidence with respect to his revised reports dealing with this issue.
However, the Court did find that significant cost consequences were applicable to the unsuccessful Defendants, in their decision to see the case through a lengthy jury trial. The reasons for this included factors discussed at [47]:

a)    by mid-January 2014 at the latest, the defendants were well aware of the risks they were assuming in taking this action to trial;

b)    while offers to settle are often left open for acceptance up to the eve of trial, it is not a prerequisite to the court’s exercise of discretion on costs that this occur;

c)    insofar as liability was concerned, by mid-January 2014, all examinations for discovery had been completed and the individual defendants’ denial of any involvement had been tested under oath. In addition, the plaintiff’s biomechanical engineering report had been received. The defendants chose not to serve any engineering report in response;

d)    I do not accept the defendants’ submission that the conduct of the plaintiff’s counsel impeded their ability to access Mr. Caines-Walker and Ms. Frigon, the two independent witnesses to the incident. In August 2012, the defendants brought an application to examine these two witnesses under oath. This application was dismissed by Master Scarth with liberty to re-apply. The basis of this order was that a list of written questions had been provided by defence counsel to be answered by Mr. Caines-Walker and Ms. Frigon and if counsel were not satisfied with the responses received then there was liberty to reapply to examine these potential witnesses under oath. Defence counsel was satisfied with the answers received and an examination under oath was not pursued;

e)    as for the defendants’ exposure on damages, they knew or should have been well aware by mid-January 2014 as to the potential magnitude of the claim. The defence experts were in agreement that the plaintiff had sustained a complicated mild traumatic brain injury. There was an issue as to whether cognitive behavioral therapy had been undertaken by the plaintiff and, if not, the extent to which that therapy could assist him in the future. However, there was no real dispute that the plaintiff’s functioning had been seriously compromised by the injuries that he had sustained. He was a young man in his 20s. There was a serious claim advanced as to the loss of a potential professional soccer career. The evidence led on the plaintiff’s behalf that his future employability would likely be restricted to a sheltered environment was not seriously tested by the defendants’ experts;

f)     the plaintiff made three attempts to settle his claims;

g)    the only offer made by the defendants prior to the trial commencing in April 2014 was the June 2011 offer for $20,000 plus disbursements; and

h)  notwithstanding this set of circumstances, the defendants, as counsel candidly admitted during submissions, made the decision, which was their right, “to take the case to trial and let the jury decide”.

The Court awarded the Plaintiff costs at 1.5 of the unit amounts for the preparation and attendance at the trial, as of January 15, 2014, and the Defendants were ordered to pay  costs on the basis of one and one-half counsel for preparation and attendance at trial.

posted by Collette Parsons at 0 Comments

Tuesday, September 30, 2014

Nurse Awarded $680,000 Following Rear-End Collision

Earlier today, the B.C. Supreme Court released its judgment in the case of Hawkins v. Espiloy 2014 BCSC 1804, where the 30 year old Plaintiff was injured in a rear-end collision while completing her nursing degree.

As a result of the accident, the Plaintiff experienced pain, bilateral foot numbness, and several episodes of urinary incontinence, in the weeks and months following the accident. Injuries and the effects of medications used to treat her numerous symptoms prevented the plaintiff from attending her required practicum sessions, and compromised her ability to concentrate during classes. Within months of the accident, the Plaintiff had experienced significant physical and psychological changes. With changes in medication, the Plaintiff did experience some relief and was able to graduate from her nursing program. Initially, the Plaintiff accepted a full-time position as an acute care nurse, a goal she had worked toward from a young age, but shifted to part-time work within seventeen months, on account of her physical limitations.

The Defendant made submissions suggesting that the Plaintiff’s move from full-time to part-time work was made for the purposes of both scheduling certainty and work-life balance, questioning whether injury factored into this decision at all. Madam Justice Fenlon dismissed these submissions, stating:

[56]      I find that the plaintiff has established that she is working part-time because of her injuries and not by preference. I earlier alluded to Ms. Hawkins’ testimony concerning her passionate desire to serve her community as a full-time acute care nurse. If Ms. Hawkins really was interested in working less and enjoying life more given the low cost of living in Mackenzie and her relative financial security, she could have worked part-time from the date of her graduation. In this regard it is telling that she did not apply for the permanent part-time position when it was first created in April 2013 despite being urged to do so by her family. She applied only in August 2013, as her ability to cope declined, when she finally and reluctantly admitted that she could not continue as she had been.

[57]    The defendant points out that the plaintiff’s sick days did not increase as her 17 months of full-time work at the Mackenzie Hospital unfolded. While that is true, I attribute it to Ms. Hawkins’ general stoicism and her sense of responsibility to her patients. I accept that it was the avocational aspects of her life that increasingly suffered, rather than her attendance at work.
The Defendant further argued that the Plaintiff’s pregnancy also supported the Defendant’s position that the Plaintiff reduced her hours to part-time work as a matter of choice and not necessity.

The Court responded, stating:

[60]     The description of Ms. Hawkins’ pre-accident energy and work ethic is not consistent with someone who prefers leisure time. I accept Ms. Hawkins’ testimony that she always planned to be a full-time worker. Both Justin Hawkins’ parents and Ms. Hawkins’ parents live in Mackenzie and are eager to provide childcare. I find it highly probable that Ms. Hawkins would have worked full-time throughout her career but for the accident, other than during maternity leaves.
[61]      In summary on this issue, I find Ms. Hawkins chose to work part-time because her injuries make full-time work unsustainable.

In assessing the Plaintiff’s loss of future earning capacity, the Court found that the Plaintiff was likely to suffer significant out-of-pocket loss as a result of employment limitations caused by the accident, stating:

[66]     In assessing damages, the out-of-pocket loss to the plaintiff due to her lost earning capacity must take into account contingencies, both negative and positive: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.). Such contingencies include the potential for improvement in health, opportunities for advancement, loss of employment, and the usual chances and hazards of life.
[67]     Mr. Wickson, a consulting economist, calculated the loss of future earnings at $852,400 based on the difference between full and part-time earnings. However, that base calculation must be adjusted for positive and negative contingencies. In the case before me, the plaintiff might in future work more than 0.62 of a full-time position. Ms. Hawkins testified that she accepted on average one extra shift per month. This contingency would therefore decrease the magnitude of the loss.
[68]     The plaintiff might also become accustomed to better managing her chronic pain and may be able to increase her regular hours of work.
[69]     On the negative side, as Ms. Hawkins ages, Dr. Filbey predicts that her condition may worsen, making it more difficult for her to continue in her physical job, even on a part-time basis.
The Defendant made submissions calculating $25,000 as adequate compensation for the Plaintiff’s loss of future earnings.

The Court responded to this submission, finding:

[72]     The plaintiff is 30 years old. She has a career of 35 years ahead of her. I accept that the plaintiff has lost capacity for work due to her injuries and that she will suffer a significant out-of-pocket loss as a result. Damages are not a precise calculation but an estimate of loss. I fix that loss at $525,000.
Finally, in dismissing the Defendant’s argument that the Plaintiff failed to mitigate her losses by not seeking formal accommodation from her employer, the Court held:

[77]     The defendant has the burden of proving the plaintiff could have avoided all or a portion of her loss. This involves proving two elements:  first, that the plaintiff acted unreasonably in not taking the step advocated by the defendant; and second, the extent, if any, to which the plaintiff’s damages would have been reduced had she taken that step:  Chiu (Guardian ad litem of) v. Chiu, 2002 BCCA 618 at para. 57. The test is a subjective/objective one, which takes into account the knowledge possessed by the plaintiff in considering the advocated step:  Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 56.
[78]     Although in both Chui and Gregory the alleged failure to mitigate involved recommended medical treatments, this test has also been applied in cases where the defendant alleges the plaintiff ought to have mitigated his or her loss by seeking formal employment accommodation or other positions within his or her field:  Gallina v. Honda Canada Finance Inc., 2014 BCSC 974 at paras. 122-131; Sendher v. Wong, 2014 BCSC 140 at paras.126-132, 139-145.
[79]    In the present case, the defendant has not proved the second component of the mitigation test. There is no evidence before me either that accommodation was available or that if it were, it would have permitted Ms. Hawkins to work more than 0.62 of a full-time position.
[80]      In summary on this issue, the defendant has not established that the plaintiff failed to mitigate her losses.

The Plaintiff was awarded total damages of $684,149.65.

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Monday, September 22, 2014

Driver Negligent for Risky Passing During Heavy Snowfall

On September 19, the Supreme Court of British Columbia released its judgment in a case where a highway motorist was covered in snow by an overtaking vehicle, resulting in a single vehicle collision with a safety barrier.

In Link v. Insurance Corporation of British Columbia 2014 BCSC 1765, Mr. Justice Ball found the actions of the defendant driver to be negligent, contrary to ss. 157-159 of the Motor Vehicle Act, when he maneuvered dangerously while overtaking another vehicle in heavy snowfall conditions.

The plaintiff had been following tire tracks along the slow lane, or curb lane, while travelling southbound on Highway 99 during heavy snowfall. Traffic had been moving single file at approximately 40-60 kilometers per hour. The defendant driver’s SUV approached the plaintiff from behind then moved into the passing lane, overtaking the plaintiff’s vehicle at high speed before abruptly cutting in front of him. The maneuver resulted in a “rooster tail” of snow covering the plaintiff’s windshield. Unable to see, the plaintiff instinctively tapped the brake, which caused his vehicle to spin and collide with the cable-and-post safety median. At issue in this case was whether or not the defendant driver’s actions constituted negligence.

The Court identified the relevant provisions establishing a statutory duty of care, as follows:

[8] Sections 157-159 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA] establish a statutory duty of care on the driver of a vehicle overtaking another vehicle. These provisions provide as follows:
157 (1) Except as provided in section 158, the driver of a vehicle overtaking another vehicle
(a)  must cause the vehicle to pass to the left of the other vehicle at
                      a safe 
distance, and
(b)  must not cause or permit the vehicle to return to the right side of
highway until safely clear of the overtaken vehicle.
(2) Except when overtaking and passing on the right is permitted, a driver of an overtaken vehicle,
(a) on hearing an audible signal given by the driver of the overtaking
                     vehicle, m
ust cause the vehicle to give way to the right in favour
                     of the overtaking 
vehicle, and
(b)  must not increase the speed of the vehicle until completely
                      passed by the 
overtaking vehicle.
158 (1) The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle, except
(a)  when the vehicle overtaken is making a left turn or its driver has
                      signalled his 
or her intention to make a left turn,
(b)  when on a laned roadway there is one or more than one
                      unobstructed lane 
on the side of the roadway on which the driver
                      is permitted to drive, or
(c)  on a one way street or a highway on which traffic is restricted to
direction of movement, where the roadway is free from
                      obstructions and is of 
sufficient width for 2 or more lanes of
                      moving vehicles.
(2) Despite subsection (1), a driver of a vehicle must not cause the vehicle to overtake and pass another vehicle on the right
(a)  when the movement cannot be made safely, or
(b)  by driving the vehicle off the roadway.
159 A driver of a vehicle must not drive to the left side of the roadway in overtaking and passing another vehicle unless the driver can do so in safety.

In distinguishing this case from those proffered by counsel, the Court pointed out that here the hazard was clearly visible to all drivers on the road, and that despite this awareness, the defendant chose to conduct his vehicle in a manner which he did know or ought to have known would result in snow blanketing the plaintiff’s vehicle, stating:

[19]        In the case at bar, the highway was blanketed with a large amount of snow that was clearly visible for all drivers to see, which made driving a treacherous task. Despite the poor road and weather conditions, the driver of the SUV blew by Mr. Link at a high speed in the left lane. Unlike the situation in Lang, where Hood J. found that the spray was unanticipated and a surprise to the overtaking driver, the driver of the SUV, given the conditions, would have - or should have - appreciated the likelihood that the act of passing at high speed and returning to the slow lane immediately in front of the overtaken vehicle would result in a significant amount of snow being thrown onto the overtaken vehicle causing a total loss of visibility. This risk could have been avoided by the driver of the SUV by passing at a lower rate of speed and not returning to the slow lane abruptly.
In finding that the defendant driver fell short of the statutory standard outlined in the above provisions of the Motor Vehicle Act, Mr. Justice Ball stated:

[20]        There is, in my view, a very heavy onus on the driver of an overtaking vehicle to make sure that passing can be done in safety; particularly in poor road and weather conditions. The driver of the SUV in this case did not respect the circumstances that the standard of care dictated. That driver was in clear breach of the standard of care.
[21]        Mr. Link did not voluntarily accept the risk that another driver on the highway would fail to pass him in safety. As for causation, I am satisfied that, as in Rowe, the unsafe pass “precipitated a chain of events” which culminated in Mr. Link’s accident. The driver of the SUV “roared right by” Mr. Link and “a big rooster tail of snow completed covered [the] windshield”. This caused Mr. Link to lose complete visibility, and he tapped his brakes because he could not see. The Link Vehicle then spun out and hit the median. I find, in the circumstances, that the driver of the SUV caused the accident.
[22]        No contributory negligence has been proven by the defendant. Mr. Link was in a smaller vehicle competing with bad weather and snow conditions. I find that Mr. Link was driving in a safe manner at low speed consistent with the difficult conditions. I also find that Mr. Link’s actions in tapping his brakes was a reasonable reaction to losing total forward visibility.
        In the result I am satisfied that Mr. Link has proven on a balance of probabilities that the driver of the SUV was negligent in all of the circumstances of this case.

posted by Collette Parsons at 0 Comments

Thursday, September 18, 2014

No 'Failure to Mitigate' Reductions for Refusal of Medical Marijuana

In the March 2014 decision of Mr. Justice Baird in Glesby v. MacMillian,2014 BCSC 334, the Court found that the plaintiff could not be penalized on the defendant’s argued grounds of failure to mitigate, due to her refusal to use medical marijuana .

At the time of the accident, the plaintiff was a 24 year old student teacher. She was a fully-belted back seat passenger in a vehicle that was struck from behind while stopped at a red light. The collision resulted in pain and discomfort in the plaintiff’s neck, shoulder, and upper back, which remained unresolved four years after the accident. The plaintiff claimed damages for losses she had allegedly incurred as a result of the April 2009 motor vehicle accident.

Among other submissions at trial, the defendant argued that the plaintiff had failed to mitigate her losses by her refusal to follow various aspects of medical advice given to her by a number of physicians, including the use of medical marijuana to manage her pain. The Court noted:

[47]        Dr. Hershler examined the plaintiff on May 2, 2013, some five months before trial. His diagnosis was much the same as Dr. Kleinman’s, but without discussion of a possible interrelationship of physical and psychological factors. Soft tissue injury and chronic pain were the culprits, he said, and echoed Dr. Kleinman’s recommendation that the plaintiff should embark upon a core strengthening program. He also encouraged the plaintiff to consider the use of medical cannabis to manage her pain. The plaintiff has not taken this advice, either. She has reservations about the legality of the acquisition and use of cannabis, and, in any event, she is a committed life-long abstainer from narcotics and drugs of all sorts.
While the Court did find a number of the plaintiff’s refusals of other treatment recommendations to be unreasonable and reduced damages accordingly, Mr. Justice Baird stated the following, with regard to the advised medical marijuana use and the plaintiff’s subjective beliefs:

[69]        I decline to find that the plaintiff failed to mitigate her losses by not taking medical cannabis. Dr. Hershler’s advice came after the end of what, for the reasons just stated, I consider to be a reasonable recovery period. In any event, I accept as sincere the plaintiff’s reservations about the acquisition and use of cannabis.

This is not to say that subjective belief contrary to the form or frequency of an advised therapy can always (or even often) cause a plaintiff to avoid penalty, where mitigation of damages is in issue. The question of “reasonableness” of refusal remains one of fact; it is for a judge or jury to consider all the circumstances of a plaintiff’s refusal to follow medical advice. The rule in Janiak v. Ippolito [1985] 1 SCR 146, which states that when assessing damages, the courts must consider what a reasonable person would do in order to minimize losses resulting from a given injury, is not a hard and fast rule. There are limits to a plaintiff’s duty to mitigate, and this case has established that a physician’s recommendation of medical marijuana falls outside the reasonable expectations of a plaintiff who holds beliefs contrary such an endorsement.

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Tuesday, September 16, 2014

Non-Pecuniary Damages Reduced for Failure to Mitigate

The BC Supreme Court recently released its reasons for judgment, in the case of Rasmussen v. Blower 2014 BCSC 1697, where the Court ultimately reduced the plaintiff’s award for non-pecuniary damages by 20% for failure to mitigate his damages.

In this case, the plaintiff, Christopher Rasmussen, was a passenger in a stopped vehicle which suffered a rear end hit by defendant, Todd Blower’s, car. Liability was admitted.

Mr. Rasmussen suffered soft tissue injuries, which left him with neck and back pain, knee pain, left leg numbness and headaches. These injuries, along with a number of additional damages, including pain and suffering and loss of enjoyment of life in the future, were pleaded by the plaintiff. The defendant responded, pleading in part that, by the plaintiff’s failure to follow medical advice and recommended courses of treatment, the plaintiff failed to mitigate his damages. Particularly with respect to his consumption of alcohol while taking prescribed medications, the defendant submitted that the plaintiff’s non-pecuniary award should be reduced by 10-20% to account for his failure to follow medical advice, or to take steps to reduce or alleviate his own injuries, and/or the accompanying symptoms of pain he had reported. The Court ultimately agreed with the defendant, reducing the plaintiff’s non-pecuniary damages by 20%.

In his reasons, Mr. Justice Funt pointed to the duty of an injured party, to mitigate their damages, stating:

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

In rejecting the plaintiff’s submissions as to why medical advice was not followed, the Court went on to comment:

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

Finally, the court reiterated the requirements to be met, for a defendant to prove that a plaintiff could have avoided their loss (either in whole or in part), affirming that the onus was met in this case, stating:

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

[57]      The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss.  In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff's damages would have been reduced had he acted reasonably. These principles are found in Janiak v. Ippolito, 1985 CanLII 62 (SCC), [1985] 1 S.C.R. 146.

Ultimately, Mr. Justice Funt concluded:

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

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Wednesday, September 10, 2014

Airline Incident Reports Not Subject to Litigation Privilege

In Smith v. Air Canada 2014 BCSC 1648, on appeal from an order of a Master of the Supreme Court of British Columbia, the defendant, Air Canada sought to overturn an order that the company disclose an incident report prepared by Air Canada personnel. The report was prepared following an incident during the boarding of a flight scheduled to depart from Vancouver to Toronto.

The plaintiff, Ms. Smith, suffered damages when a passenger failed to store a bag securely in the overhead compartment allowing it to fall on Ms. Smith. An incident report was prepared by an Air Canada employee, and the Court was to consider whether this document properly fell within the scope of documents subject to privilege.

The legal principles regarding the claim of privilege over documents are well-established, and were reiterated by the Court.

 6     In respect of the production of documents over which privilege is claimed the legal principles to be applied on such an application are succinctly reviewed by Master Bouck in Beer v. Nickerson, 2010 BCSC 718, paras. 17-18:
            [17] The legal principles to be applied on this application are well-settled and set out in Hamalainen (Committee of) v. Sippola (1991), 62 B.C.L.R. (2d) 254, and Stevanovic v. Petrovic, [2007 BCSC 1392]. Those principles are as follows:

1.         The party withholding disclosure bears the onus of establishing a claim for privilege over a document.

2.         The test for considering whether litigation privilege is established is two-fold:
(a)       Was litigation a reasonable prospect at the time the document in dispute was created?
(b)       If so, was the dominant purpose of the document's creation for use in litigation? (commonly known as the "dominant purpose" test.)

3.         Litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all the pertinent information including that particular to one party or the other, would conclude that it is unlikely that the claim for loss will be resolved without it.

4.         However, the prospect of litigation alone is not sufficient to meet the claim of privilege. Nor does the denial of liability alone mean that all documents produced thereafter are subject to a claim for privilege. As stated by the court in Hamalainen v. Sippola:

Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.


6.         It is not incumbent upon the court to accept without question the opinion of either deponent on one of the very issues that is to be decided. Whether or not litigation was a reasonable prospect is a matter for the court to decide on all the evidence.

            [18] To these principles I would add that the dominant purpose test is consistent with "the more contemporary trend favouring increased disclosure": Blank v. Canada (Department of Justice), 2006 SCC 39 at paras. 60-61.

Applying these principles to the order under review, the Court found that Air Canada did not clear the first part of the established test. Despite affidavits asserting that the dominant purpose of the incident report was to provide information regarding the event to Air Canada’s legal department, this did not require consideration, as the Court found that litigation was not a reasonable prospect at the time the incident report was created, in the first place.

24     As noted, the first part of the test, whether the document was prepared in contemplation of litigation, must be satisfied before the court goes on to consider the dominant purpose of the creation of the document. Master Baker considered the first part of the test in light of the affidavits that were provided and as a matter of fact. He properly considered, in my view, that when Ms. Soroka prepared her incident report she was attempting to discover the cause of the accident, whether there were witnesses, and the nature of the injuries sustained by Ms. Smith. She said that her first concern was customer safety.

25     As with any claim of privilege, the trier of fact must assess whether the assertion that the document was prepared in contemplation of litigation is reasonable. He cannot simply rely on the statement that the document was prepared in contemplation of litigation. If that were so the mere assertion would determine whether the document was privileged.

26     Master Baker assessed the circumstances at the time the report was written and concluded that it was not reasonable to accept that Ms. Soroka prepared the incident report in contemplation of litigation.

27     As I stated, the Master applied the appropriate test and reached a reasonable conclusion. The Master's view that litigation was not a reasonable prospect at the time the incident report was created is not clearly wrong.

Air Canada further suggested that the Master had not properly considered that the company was particularly vulnerable to liability claims arising from incidents on board their aircrafts, and that this fact further demonstrates that incident reports are created in reasonable contemplation of litigation. The Court dismissed this assertion, pointing out that it is only at the time that a claim becomes a matter of litigation that the incident report is forwarded to Air Canada’s legal counsel.

30     I do not accept that the document is privileged because of the vulnerability of Air Canada to litigation claims from its passengers. Air Canada has a specific department to deal with claims, of which Mr. Gilchrist is the manager. Despite the presence of the claims department within the law department of Air Canada, it is clear that the claims department deals with claims until the matter becomes a matter of litigation. It is then that the incident report is forwarded to Air Canada's legal counsel. This too does not establish that the document was prepared in contemplation of litigation.

Given the Court’s finding that the incident report had not been created in reasonable contemplation of litigation, and thus that the Master’s view was not clearly wrong, the application for review of the Master’s decision was dismissed, and the document was to be produced to Ms. Smith and her counsel.

Richard Parsons and Nick Peterson of Collette Parsons Harris acted for the Plaintiff.

The trial Judge's full reasons can be viewed at the link provided above.

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