Author: Glenn

B.C. Supreme Court Declares Civil Resolution Tribunal Unconstitutional As It Pertains To Motor Vehicle Accidents

On April 1, 2019, legislation was formally enacted by the British Columbia government that would introduce major reforms to the automobile insurance industry. This included a monetary cap of $5,500.00 (now adjusted for inflation) on cases involving “minor” injuries, as well as granting the Civil Resolution Tribunal jurisdiction to decide what is a “minor” injury, and to determine liability and damages for cases of $50,000.00 or less.


Constitutional challenges were subsequently launched by the Trial Lawyers Association of British Columbia.


In recently released Reasons for Judgment in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), the issue for the Court to consider was whether the grant of jurisdiction over certain motor vehicle accident claims to the Civil Resolution Tribunal offends section 96 of the Constitution Act, 1867.


In declaring certain sections of the Civil Resolution Tribunal Act to be unconstitutional, namely the section giving the tribunal jurisdiction to determine whether a injury is minor for the purposes of the Insurance (Vehicle) Act, and the section granting the tribunal jurisdiction to decide liability and damages for cases $50,000.00 or less, Supreme Court Chief Justice Hinkson commented :


[410]   The plaintiffs have conceded that subsection (a) of s. 133(1) of the CRTA is not, in isolation, unconstitutional. In my view, this subsection is severable. Likewise, the CRT’s jurisdiction to determine liability and damages for motor vehicle claims under $50,000 under subsection (c) is severable from its jurisdiction to determine whether an injury is a minor injury for the purposes of the Insurance (Vehicle) Act under subsection (b).


[413]   The Attorney General submits that at the present there is no disability on the part of the Supreme Court of British Columbia from hearing claims that arise from MVAs. In the result, the ability of both claimants and defendants in such cases to have their disputes resolved will not be impaired if the impugned sections of the legislation are struck down.


[414]   I will therefore accede to the plaintiffs’ request, in part, and grant an order declaring that ss. 133(1) (b) and (c) of the CRTA are unconstitutional and of no force or effect. I also declare that s. 16.1 is unconstitutional and should be read down insofar as it applies to accident claims, except for determination of accident benefits under s. 133(1)(a). I decline to grant any order with respect to the Accident Regulations associated therewith.


Chief Justice Hinkson also rejected unfounded government allegations that motor vehicle accident injury cases were consistently clogging up the court system, noting that between 2015 and 2019 fewer than one percent of such claims actually proceeded to trial.


Barring an appeal, accident victims will now once again be able to pursue their rightful remedies through the courts up to the point in time that the government introduces “no fault” legislation on May 1, 2021, where accident victims will receive no compensation for pain and suffering. Constitutional challenges are expected for this legislation as well.

Government Introduces Evidence Act Regulations To Cap Disbursements At 6% Of Judgment Or Settlement Amount

The British Columbia government has added regulations to the Evidence Act that now cap disbursements at 6% of the overall value of a motor vehicle accident claim that is litigated through the Supreme Court.


Although the intent of the new regulations is primarily aimed at the cost of expert reports, the scope of what actually constitutes a disbursement is widely encompassing, including such items as courier fees, process server fees, and photocopying charges.


Exceptions include fees payable to the Crown, such as court fees and filing fees.


The new limit will apply to court cases where a Notice of Trial was not filed and served by August 12, 2020, for a trial date before June 1, 2021.


The limit will not apply the limit in the following circumstances.


  • where a Notice of Trial was filed and served before August 12, 2020, and the trial date is before June 1, 2021
  • where a Notice of Trial was filed and served before August 12, 2020, the trial date is on or after June 1, 2021, and the Court is satisfied that the litigant necessarily or properly incurred disbursements before August 12, 2020, that were in excess of the limit


As was the case last year when the government introduced measures to restrict the amount of experts and expert reports that a Plaintiff could use, which were deemed unconstitutional, a constitutional challenge will likely ensue. The new regulations on disbursements as they stand now will mean that a Plaintiff may not be able to call all necessary evidence to fully prove their case. This will be particularly detrimental in more serious cases, where multiple experts are often required to testify to a multitude of injuries sustained by a Plaintiff.


Court Allows Addition Of Defendant After 2 Year Limitation Period, Whose Name ICBC Had Failed To Disclose

When ICBC cases are not settled within two years of the date of the accident, the Plaintiff must file a legal document called a Notice of Civil Claim in order to preserve the Plaintiff’s legal action. File materials provided by ICBC to counsel for the Plaintiff contain the names of the driver and owner of the Defendant’s vehicle, which must be included as named parties within the Notice of Civil Claim. Although the vast majority of the time such information is accurate, situations can arise where improper names are provided, as well as cases where names that should be provided are not.


In Littlejohn v. Clavelle, the Plaintiff was injured in a motor vehicle accident, and consequently commenced legal proceedings. Counsel for the Plaintiff was provided with names of Defendants by ICBC, however it would turn out to be the case that the name of the driver was omitted. The Notice of Civil Claim was filed, however shortly thereafter counsel for the Plaintiff was informed by ICBC of the error.


Counsel for the Plaintiff brought an application to add the name of of the Defendant driver. Counsel for the other Defendants took no position on the application, which means they did not agree to the amendment, nor did they object to it.


In allowing the amendment to the Notice of Civil Claim and finding that there was no prejudice to the current Defendants, the Court commented,


[6]              It is well-established that the addition of a party is a matter of discretion and it should be exercised generously to allow effective determination of the issues without delay, inconvenience or separate hearings (Delta Sunshine Taxi (1972) Ltd. v. Vancouver (City), 2014 BCSC 2100).


[7]              I note that the plaintiff was advised of the name of the actual driver of the defendants’ vehicle on May 27, 2020, three days after the expiry of the applicable limitation period on May 24, 2020. I also note that the original claim was filed in November 2019 and there is no evidence or suggestion of delay on her part or on the part of her counsel. It is clear that litigation was contemplated some time ago and the names of the current defendants were provided by ICBC in the normal course of business between counsel. Counsel for the plaintiff was entitled to rely on that information as being accurate. As well, the one year allowed for service has not passed (McIntosh v. Nilsson Bros. Inc., 2005 BCCA 297).

Court Rules That ICBC Fails To Meet Burden For Section 83 Deductions

Accident benefits through ICBC, otherwise known as Part 7 Benefits, can come in many forms, including payments of benefits prior to trial, as well as payments of benefits into the future after trial.


When awards are made by a Court for future care, a common application brought by an ICBC lawyer is for the deductibility of certain future care items that would be paid in any event pursuant to the Part 7 Benefits scheme.


For example, if a claimant is awarded $10,000.00 for future care, but ICBC takes the position that $5,000.00 of this amount would be paid in any event in the future through Part 7 Benefits, then ICBC would argue for a deduction of $5,000.00 from the future care award, so as to prevent the Plaintiff from benefiting from double recovery.


The former Section 83 of the Insurance (Vehicle) Act, that allows for potential deductibilitly of parts or all of a future care award, was amended through the passage of Bill 20, which is applicable to accidents occurring on or after May 17, 2018.


Whereas previously, deductions by a Court from future care awards were not that common due to ICBC’S proven history of unjustifiably terminating benefits, the Court now does not have to consider the likelihood that ICBC will pay any future benefits when ruling on any potential deductions.


Typically, a Court when ruling on such an issue must estimate the amount of potential Part 7 future benefits, and take such an estimate into account by reducing the amount of the future care award accordingly.


In Siverston v. Griffin, the Plaintiff was injured in a motor vehicle accident, and consequently commenced formal legal proceedings for several types of damages, including the cost of future care. Following a jury trial, an award for future care was made in the amount of $60,000.00. The Court reasoned that virtually all of the future treatments in question were categorized as discretionary Part 7 Benefits.


ICBC’S lawyer applied to have this award reduced, arguing that many of the future care components that constituted the overall award could eventually be paid at different times in the future pursuant to ICBC’S Part 7 accident benefits scheme.


Counsel for the Plaintiff submitted that ICBC’S lawyer did not meet the required burden to show what the Plaintiff’s entitlement to future benefits would be, as there would be too much uncertainty as to what any future entitlement would be. Further, it was submitted that the Court could infer from ICBC’S refusal of benefits before trial, that this same pattern would continue after trial as well.


The Court refused to reduce the cost of future care award, ruling that ICBC’S lawyer had failed to meet the required burden for deductibility.


[47] To establish a basis for a deduction under s. 83(5), the defendants have the burden of establishing a correlation between the plaintiff’s claim (as determined by the court) and treatments and services available as Part 7 Benefits. It is the quantum of that entitlement that is relevant for deductibility purposes.


[48] The defendants rely on Sangha as support for the proposition that an affidavit from an ICBC claims specialist deposing ICBC accepts the court’s findings is sufficient to establish the plaintiff can expect to receive correlating Part 7 Benefits. However, Sangha was not a jury trial. The affidavit of the claims specialist in this case states “ICBC accepts the Court’s implicit finding that the future care treatments and medications set out in the reports are necessary” [emphasis added]. In Sangha, Riley J. particularized the basis of the plaintiff’s cost of future care damage award in the trial reasons. While a judge’s reasons for judgment setting out precise factual findings may not be the exclusive pathway for establishing whether and to what degree a cost of future care award reflects services or treatments that are available as Part 7 Benefits, in this case, the lump sum nature of the jury’s cost of future care award makes it impossible for me to ascertain whether and to what degree there is a correlation.


[49] The Supreme Court of Canada’s observation at para. 47 of Gurniak that “a second level of matching between a specific head of damage in a tort award and a specific head of damage under the insurance scheme in question” does not obviate the need for the correlation s. 83(5) requires. That first stage of “matching” is still required. In Gurniak, the Court was able to assess whether there was a match between the accident benefits paid under Quebec’s no-fault insurance scheme and those paid under the British Columbia Insurance Act, because both were ascertainable: Gurniak at para. 54. That is not the case here. The basis of the jury’s cost of future care award is unknown.


[50] Accordingly, I find the defendants have failed to discharge their burden to prove the plaintiff has any entitlement to Part 7 Benefits respecting the loss on which the jury determined her claim is based.


Court Of Appeal Refuses To Order New Trial In Chronic Pain Case, Despite Inappropriate Jury Submissions By Plaintiff’s Counsel

In Brown v. Goodacre, the Plaintiff was injured in a motor vehicle accident, and consequently initiated legal proceedings. The case was heard before a judge and jury, with the jury awarding damages of $847,000.00.


ICBC’S lawyer appealed the jury award, arguing that counsel for the Plaintiff acted inappropriately during his opening statement and closing submissions to the jury, thus rendering the trial unfair. In particular, it was argued that counsel for the Plaintiff had expressed personal opinions to the jury. ICBC’S lawyer acknowledged that he had made only limited objections, and that the trial judge did instruct the jury by cautioning them about counsel for the Plaintiff personalizing the case. Regardless, ICBC’S lawyer submitted that there were exceptional circumstances that warranted a new trial.


Despite the fact that the Court of Appeal agreed that the previous submissions at trial of counsel for Plaintiff were inappropriate, it ruled that the trial judge’s instructions to the jury, when considered in light of the failure of ICBC’S lawyer to object to most of the comments or to request a mistrial, was enough to overcome the possible prejudicial effect of the submissions of counsel for the Plaintiff. In dismissing the appeal, the Court commented,


[40] I agree with the appellant that many of the comments of plaintiff’s counsel improperly personalized the case or expressed a personal opinion inappropriate for a jury address. I would not, however, give effect to the appeal on that ground for two reasons. First, the trial judge instructed the jury appropriately concerning personal opinions of counsel on two separate occasions, once in the middle of closing submissions of plaintiff’s counsel and once in his charge to the jury, to caution them not to be influenced by such comments.


[44] The second reason I would not give effect to this ground of appeal is that defence counsel (who is not counsel on the appeal) did not object to plaintiff’s counsel’s personalizing of the case, or ask the judge to take any of the stronger steps the appellant now asks this Court to take. I say this without being in any way critical of defence counsel’s decisions. He may well have considered that any unfair aspect of the plaintiff’s jury address was adequately addressed by the judge’s instructions to the jury. He may not have considered the comments of plaintiff’s counsel to be very serious at all. He may have considered that plaintiff’s counsel was doing more harm than good to his own client’s cause. In any event, the failure to object weighs heavily against appellate intervention.


[50] Having in mind the cautionary instructions given by the trial judge to the jury, it is my opinion that there are no exceptional circumstances in this appeal sufficient to overcome the absence of objection by defence counsel to the conduct about which the appellant now complains. I would dismiss the appeal.

Court Orders ICBC To Produce Statement Of Defendant, Ruling It Is Not Subject To Litigation Privilege

Often during the course of an ICBC injury claim, an adjuster or ICBC lawyer will refuse to produce a statement made by a Defendant with regard to how a motor vehicle accident occurred, citing it as a privileged document.


In Canning v. Mann, the Plaintiff was injured in a motor vehicle accident, and consequently commenced legal proceedings. The Defendant provided a statement to ICBC, detailing the circumstances of the accident, however ICBC’S lawyer refused to produce the statement to counsel for the Plaintiff, claiming it to be subject to litigation privilege.


The issue for the Court to decide was whether or not the statement in question was prepared for the dominant purpose of litigation.


The Court cited the British Columbia Court of Appeal case of Hamalainen for the two part test to consider, namely was litigation in reasonable prospect at the time that the document was produced, and if so, what was the dominant purpose for it’s production ?


The key question for the Court to consider was if the statement was prepared for use in order to obtain legal advice, or to conduct or aid in the conduct of litigation. If there was more than one identifiable purpose for the production of the statement, then it could not have been created for the dominant purpose of litigation.


In ordering ICBC’S lawyer to produce the statement to counsel for the Plaintiff, the Court commented,


[9] The claims centre notes appended to this affidavit discuss tort limits, vehicle damage, liability, and the plaintiff’s injuries, among other things. However, it is not at all clear, from a fair reading of these notes that ICBC created this document for the dominant purpose of litigation such that any future documents that they created, such as the statement that is the subject of this production application, must necessarily be for the dominant purpose of litigation.


[10] The defendant has not brought forward evidence that establishes that the statement was produced for the dominant purpose of litigation. The evidence it relies on suggests that there could have been multiple reasons why the claims documents were produced. It certainly does not clearly establish that litigation was the dominant consideration from the date this claims document was produced going forward.


[11] I order that the statement of the defendant dated February 19, 2016 be produced to the plaintiff on the basis that the defendant has not established the dominant purpose for its production was to obtain legal advice or aid in the conduct of litigation and it is, therefore, not subject to litigation privilege.


When Does ICBC’S Cap On “Minor” Injuries Take Effect ?

I have been receiving many calls from current clients and prospective clients who are wondering if they will be affected by the new cap on “minor” injuries that is set to take effect on April 1, 2019.


It has been reported somewhat inaccurately in some newspapers that Plaintiff’s counsel have been scrambling to commence legal action prior to April 1, 2019, or that Plaintiffs are trying to get whatever they can get for their current files prior to that time.


To be clear, the cap on “minor” injuries will only affect people injured in accidents on April 1, 2019, or later. People injured in an accident prior to April 1, 2019, will not be affected by the cap on “minor” injuries.


“Minor” injuries are described in Section 101 of Part 7 of the Insurance (Vehicle) Act , and Section 102  confirms that Part 7 applies to an accident occurring on or after April 1, 2019.


The new cap will not automatically be in place for perpetuity. A constitutional challenge will be launched in the Supreme Court of British Columbia, and the losing party there will undoubtedly appeal to the Court of Appeal of British Columbia, with the losing party there likely seeking leave to appeal to the Supreme Court of Canada. It thus could be quite a lengthy period of time before it is known whether or not the cap that will take effect on April 1, 2019, will remain law in British Columbia.


Similar legislation introducing a cap on “minor” injuries was struck down in Alberta as being unconstitutional, but this decision was later reversed on appeal, and leave to appeal to the Supreme Court of Canada was denied.


Court Rules That Victims Of Hit And Run Accidents Are Not To Be Held To A Standard Of Perfection

There is a common misconception that a victim of a hit and run accident can simply report the matter to ICBC and the police, and then do nothing else.


This is, in fact, not the case, and following such a path will likely result in ICBC and/or a court dismissing your claim. Under British Columbia law, it is incumbent upon victims of hit and run accidents to make “reasonable efforts” to ascertain the identity of the driver and/or owner of the vehicle that caused the hit and run accident. It is important to bear in mind that you do not have to actually find the driver and/or owner of the offending vehicle, but that you have made “reasonable efforts” to do so. Whether or not a claimant has made “reasonable efforts” will depend on the circumstances of each case.


In addition to notifying ICBC and the police of the circumstances of the hit and run accident, “reasonable efforts” include placing posters at the scene of the accident asking for witnesses, placing online ads asking for witnesses, placing an ad in the newspaper, speaking to residents in the area of the accident, and speaking to local merchants and businesses near the area of the accident.


In Ghuman v. ICBC, the Plaintiff sustained injuries after being involved in a hit and run accident, with the offending driver fleeing the scene shortly after the accident. The Plaintiff commenced formal legal proceedings, naming ICBC as a nominal Defendant.


Steps taken by the Plaintiff to ascertain the identity of the driver and/or owner of the other vehicle included notifying ICBC, notifying the police, posting flyers at the scene, and running an ad in the newspaper.


ICBC’S lawyer argued that the Plaintiff did not make “reasonable efforts” to ascertain the identity of the other driver and/or owner, as he did not follow up with the police after initially reporting the accident, and as he did not speak with local businesses in the area.


In ruling that the Plaintiff did indeed make “reasonable efforts”, thereby satisfying section 24(5) of the Insurance (Vehicle) Act, the Court commented,


[72] I wish to make it very clear that there is no admissible evidence before me that those efforts (canvassing for video surveillance and/or seeking records of potential witnesses that may have come forward to nearby businesses) were made. However, in the circumstances of this case, I would not consider such extensive efforts necessary in order for this plaintiff to comply with s. 24(5). Given the distances of the surrounding businesses from the Collision site and the layout of the area, I accept there would have been little benefit in contacting businesses for video surveillance and/or records of people who may have come forward to those businesses. Such efforts would be highly unlikely to produce any results.


[73] In the end, Mr. Ghuman is not to be held to the standard of perfection. Even if the timing of his telephone call to police and his lack of follow up with police could be viewed as something less than reasonable in and of themselves, I agree with the plaintiff that what is reasonable in all of the circumstances of one case does not rise and fall on a single effort. What sets this case apart from other cases provided is that Mr. Ghuman was faced with a driver who immediately fled the scene of a low impact type of accident in an area with transient traffic, surrounded by parking lots. Despite these obvious limitations in obtaining information regarding that vehicle’s identity, Mr. Ghuman nevertheless chose to take several positive steps to investigate. He was proactive from the outset. That he was unsuccessful is of no consequence. All that is required is that he take all reasonable steps to ascertain the identity of the unknown driver and owner of the SUV. I find that he did in the circumstances of this case.


Court Refuses To Allow ICBC To Withdraw Admission Of Fault In Late Stages Of Litigation

In Bodnar v. Sobolik, the Plaintiff was injured in a motor vehicle accident, and subsequently commenced formal legal proceedings.


In the Response to the Plaintiff’s Notice of Civil Claim, ICBC’S lawyer admitted fault on behalf of the Defendant. There was video footage of the accident which the decision to admit fault was based on. Successive adjusters also shared a similar viewpoint with respect to admitting liability.


Well into the litigation stages, ICBC’S lawyer hired an engineer to review the video footage. Based on the engineer’s opinion regarding the speed of the Plaintiff’s vehicle, ICBC’S lawyer tried to withdraw the earlier admission of fault.


With respect to a withdrawal of an admission, Rule 7-7(5) of the Supreme Court Civil Rules of British Columbia states that :


A party is not entitled to withdraw

(a) an admission made in response to a notice to admit,
(b) a deemed admission under subrule (2), or
(c) an admission made in a pleading, petition or response to petition

except by consent or with leave of the court.


The Court was to determine whether or not it would be in the interests of justice to allow the withdrawal of the admission. In ruling that it would not be, the Court commented:


[14] ICBC clearly understood the material contained on the video footage. The admission was not made hastily, inadvertently and without knowledge of the facts. Successive adjusters worked on the file and gave instructions to admit liability with full knowledge of the video footage. At the time liability was admitted ICBC had the video footage. The defendants had been aware of the existence of video footage when they were provided with a copy. The preparation of a report on September 28, 2018 was well after ICBC and defence counsel had both received a copy of the video footage.


[15] At this late stage both cars have been written off and are no longer available for inspection.


[16] It is not in the interests of justice to allow a withdrawal of the admission of liability because there is now a difference of opinion about the cause of the accident.

Court Orders Plaintiff To Pay Defendant’s Post-Offer Costs For Failing To Beat Defendant’s Formal Offer

Proceeding to a trial in an ICBC injury claim can carry great financial risk. For example, if a Plaintiff, although successful at trial in obtaining a judgment, does not beat the amount of ICBC’S last formal offer to settle, he or she can be subject to serious financial consequences.


Nowhere is this more evident than in the case of Gill v. McChesney.


The Plaintiff was injured in a motor vehicle accident, and consequently brought formal legal proceedings. Prior to trial, ICBC’S lawyer made two formal offers to settle, with the second one before shortly before trial. The offer was rejected by the Plaintiff.


The Plaintiff succeeded at trial in obtaining a judgement, however it was far less than the amount of ICBC’S final formal offer to settle. This triggered the Court’s discretion to consider costs consequences against the Plaintiff.


The Court  considered the four factors in Rule 9-1(6) of the Supreme Court Rules :


(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.


In focusing on Rules 9-1(6)(a) and (b), the Court ruled that the Plaintiff should have accepted a reasonable offer, and that the amount of the judgment was significantly less than the amount of both of the lawyer for ICBC’S offers.


[54] When I apply the legal framework to which I have referred and consider all the relevant factors, the real issue in my view is whether the plaintiff should pay the defendants’ costs after August 18, 2015, or whether the parties should bear their respective costs from that date onwards.


[55] While not entirely analogous, this case does have certain similarities to those in Dennis, where the finder of fact concluded the plaintiff was untruthful and/or misled experts, as opposed to the situation where the plaintiff cannot be expected to know in advance how the court might assess his/her credibility in the witness box.


[56] Here, the plaintiff did not accept a reasonable offer and the award at trial was significantly less than either the First or the Second Offers.


[57] As was stated in Luckett v. Chahal, 2017 BCSC 1983 at para. 47:


[47] But what happened here is that the plaintiff, well aware of the significant credibility issues at stake, chose to gamble or “take his chances” by going to trial and lost. He should live with the consequences which Rule 9-1(4) seeks to avoid: Wafler v. Trinh, 2014 BCCA 95 at para. 81.


[58] In my view, that is what occurred in this case.


[59] Accordingly, the plaintiff is entitled to her costs and disbursements at Scale B to August 18, 2015, and the defendants to their costs and disbursements at Scale B thereafter.