Friday, October 31, 2014
Thursday, October 9, 2014
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.
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
 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].
 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]
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 :
The Court also sought to clarify the intent of the legislation, adding, at  – :
Friday, October 3, 2014
- 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.
- 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.
- 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.
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.
(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.
(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,  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,  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.
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.
Tuesday, September 30, 2014
 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.
Monday, September 22, 2014
a safe distance, and
the highway until safely clear of the overtaken vehicle.
vehicle, must cause the vehicle to give way to the right in favour
of the overtaking vehicle, and
passed by the overtaking vehicle.
signalled his or her intention to make a left turn,
unobstructed lane on the side of the roadway on which the driver
is permitted to drive, or
one direction of movement, where the roadway is free from
obstructions and is of sufficient width for 2 or more lanes of
 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.
Thursday, September 18, 2014
Tuesday, September 16, 2014
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%.
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.
 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:
Ultimately, Mr. Justice Funt concluded: