Adding to this site’s archived posts of judicial criticism of expert witness advocacy, reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, finding that an ICBC hired expert witness’ opinion was “of little to no assistance to the Court“.
In today’s case (Tench v. Van Bugnum) the Plaintiff was injured in two collisions that the Defendants admitted fault for. The Plaintiff presented evidence that the collisions resulted in chronic Thoracic Outlet Syndrome (“TOS”) resulting in significant impairment. The Defendant’s insurer, ICBC, hired a doctor who did not examine the Plaintiff and provided an opinion rejecting the diagnosis. In dismissing this opinion as being of ‘little to no assistance‘ Madam Justice Fleming provided the following reasons:
 In this case, the conflict in the expert evidence regarding the diagnosis of TOS is easily resolved based on the much superior expertise and experience of Drs. Salvian and Caillier in diagnosing and treating TOS. Further, the strength of Dr. Karim’s opinion is significantly undermined by the fact that he did not examine Ms. Tench. There is no suggestion here that her TOS symptoms are susceptible to proper assessment by objective measures alone. Drs. Salvian and Caillier’s evidence made clear that their examinations and clinical testing of Ms. Tench played an important role in their diagnoses of her TOS. In any event, Dr. Karim’s opinion ultimately is of little to no assistance to the court, because it offers no explanation, prediction or recommendations with respect to any of Ms. Tench’s ongoing and significant symptoms.
 Therefore, I accept the entirely consistent expert opinions of Drs. Salvian and Caillier, along with their examination findings. I also largely accept the opinions and findings of Ms. Black regarding Ms. Tench’s functional capacity prior to the second accident.
In assessing non-pecuniary damages at $120,ooo the Court made the below findings and provided these further reasons:
 Without limiting the factual findings that flow from this acceptance, my findings include:
1. The first accident caused injuries to the soft tissues of Ms. Tench’s neck, shoulder girdle and back as described by Dr. Caillier, resulting in acute and significant pain in those areas, as well as neurologic TOS, likely the result of ongoing spasm and tightness in the scalene muscles. Her condition involves significant sensory symptoms including numbness and tingling and some pain in her arms and hands. Her pain and TOS symptoms improved somewhat but were chronic by the time of the second accident.
2. The first accident also caused the emotional and psychological symptoms Ms. Tench has experienced since then. In other words, I reject the defendants’ assertion her psychological complaints are not causally linked to the accident and are perhaps attributable to other potential causes, namely a genetic predisposition. I note that in cross-examination Ms. Tench was asked to confirm that two particular family members suffer from anxiety or depression, which she did.
Regarding factual causation, Ms. Tench is required to prove on a balance of probabilities that the defendants’ negligence was not the sole or predominant cause, but a cause of her injuries and loss, applying the “but-for” test: Athey v. Leonati,  3 S.C.R. 458 at paras. 13–17. It is well-established and must be remembered that cause in fact is determined in a “robust common sense fashion”. Scientific proof is not required. Inferences drawn from proven facts may suffice: Clements v. Clements, 2012 SCC 32 at para. 9; and Athey at para. 16.
Applying the but-for test, the opinion evidence of Dr. Caillier and the fact evidence of Mr. Smith, Ms. Buhler and Ms. Tench amply establish that the emotional and psychological symptoms she has experienced after the first and second accidents were caused by them. The causal mechanisms likely included the impact of the accidents themselves, her ongoing pain and sensory symptoms and their consequences for her, including poor sleep.
3. Ms. Tench’s physical symptoms interfered with her ability to work at Rona, prevented her from continuing to work at Starbucks, and significantly affected how she carried out her ESL teaching and TA responsibilities. Her symptoms also undermined her participation in graduate school. Whether or not the grades she obtained were significantly lower than they would have been absent her injuries, it is clear her pain and TOS symptoms prevented her from focusing, concentrating, reading and typing for sustained periods, undermining her ability to keep up with preparation and course work.
4. For the most part, I accept Ms. Black’s opinion about Ms. Tench’s functional vocational and non-vocational capacity shortly before the second accident. Based the fact evidence, I find Ms. Tench could not have worked more than she was at that time or by the time of the trial. It is clear that working as much as she did left her with little energy for anything else including her marriage and her relationships with family and friends. In other words, she was essentially exhausting herself.
5. Accepting Ms. Tench’s TOS symptoms were somewhat, but not significantly better before the second accident, I also accept that she had learned to better manage all of her symptoms and was experiencing less emotional distress and preoccupation with her physical condition by then.
6. Based on the clinical findings of Dr. Salvian and Dr. Caillier, and the evidence of Ms. Tench and Mr. Smith regarding her pain and TOS symptoms since the second accident, I am satisfied it significantly aggravated both conditions and she has not been able to durably perform anything other than light housekeeping, working as much as she has been. Although antidepressant medication has lessened her anxiety and allowed her to feel more calm, she is easily overwhelmed and her outlook is quite pessimistic. Her psychological and emotional symptoms include not just low mood but also reactivity.
7. Given the aggravation of her chronic pain condition and chronic TOS caused by the second accident, and accepting Ms. Tench was struggling to manage the demands of working part-time at three ESL positions while completing three prerequisite courses at the time of the trial, I find that her functional capacity deteriorated after the second accident.
8. Botox injections provide temporary relief from some of her neck and TOS symptoms but limited improvement in function. Although she is better able to carry light objects without the same fear of dropping them, she must still avoid aggravating her condition by engaging in the problematic activities and postures identified by Dr. Salvian, Dr. Caillier and Ms. Black.
9. Ms. Tench’s prognosis is poor. Her chronic myofascial pain syndrome and chronic TOS are likely permanent. Accepting it is probable she will improve to where she was before the second accident, this outcome would still leave her with significant ongoing pain in her neck and shoulders, that will fluctuate in intensity based on her activities, and intermittent but significant symptoms of numbness and tingling in her arms and hands, along with some pain. She also faces an increased risk her conditions will worsen, and is vulnerable in particular to an aggravation of her TOS caused by further injury to her neck or even ongoing scalene spasm as explained by Dr. Salvian. I also accept however that implementing many of the recommendations of Dr. Salvian, Dr. Caillier and Ms. Black, and working less than full-time will allow Ms. Tench to better manage her conditions.
 Once a thriving, dynamic, energetic young woman with very bright future, Ms. Tench has been left struggling to manage chronic, significant pain and TOS symptoms that have cast a shadow over all aspects of her life. Since the accidents she has worked and studied in significant pain, discomfort and distress. Coping with her physical symptoms and the demands of work and school have left her with little energy for anything else.
 Accepting her condition played some role in her decision not to pursue a PhD, she lost the chance to fulfill her dream of a richly intellectual work life.
 Her relationship with Mr. Smith has been deeply affected. Even physical affection causes her difficulty. She fears being unable to care for the children they hope to have in the future. No longer able to contribute much at home, Ms. Tench has lost the sense of fulfillment she derived from cooking, baking, decorating and entertaining, and maintaining her own fastidious standards. She is also unable to participate meaningfully in almost all of her other previous hobbies and activities. Close to her family, extremely social and very active in her church before the accidents, Ms. Tench is now quite isolated.
 Sadly, her pain and TOS conditions are permanent. Although Botox injections offers serial temporary relief of some of her symptoms, they are not a cure. The prospect of some improvement although probable is less than certain. She could improve to the point she reached prior to the second accident, but she also faces the risk of worsening symptoms. Better management of pain is the most realistic scenario.
Despite the efforts of insurers to exclude coverage in habitational insurance policies for losses caused by cannabis cultivation or production, a recent Alberta case serves as a reminder that coverage may, nevertheless, apply where an insured’s tenant’s grow-op causes a loss. This is due to the existence of so-called “innocent insured” provisions in the Insurance Acts of Alberta, British Columbia and Manitoba.
Home insurance policies have traditionally excluded coverage for losses caused by illegal activities. Many have also specifically excluded coverage for losses arising from illegal drug activity. With the Cannabis Act having come into force on October 17, 2018, Canadians may now legally cultivate up to four cannabis plants at a time in their dwelling-house. As such, some insurers have amended their policies to exclude losses caused by growing cannabis, regardless of its legality.
However, insurers in Alberta, British Columbia and Manitoba may still be at risk of cannabis-caused losses even with broad exclusions on the growing or production of cannabis in a dwelling.
The innocent insured provisions
The innocent insured provisions protect insureds who are not responsible for or complicit in intentional acts that cause damage. Specifically, exclusions barring coverage for losses caused by a criminal or intentional act or omission are of no effect vis- à-vis an insured person who does not:
Cause the loss;
Abet or collude in causing the loss; and
Consent to the act or omission while knowing—or having ought to have known—that the act or omission would cause the loss.
The innocent insured provisions of the three provinces are all identical. British Columbia, Alberta and Manitoba brought their provisions into force in 2011, 2012 and 2014, respectively. Their enactment was a response to the Supreme Court of Canada’s (SCC) decision in Scott v. Wawanesa Mutual Insurance Co. [Scott]. In Scott, the majority of the SCC held that, upon the insured plaintiff’s son intentionally setting fire to the plaintiff’s house, coverage was not available to the plaintiff, as the policy excluded coverage for loss caused by a criminal or wilful act of the insured.
While the innocent insured provisions have received relatively little judicial consideration, the recent 2019 Alberta case of Lafferty v. Co-Operators General Insurance Co. [Lafferty] should serve as a reminder that an insurer in Alberta, British Columbia or Manitoba could be on the hook for damage caused by a tenant’s grow-up, notwithstanding a cannabis exclusion.
In Lafferty, the insured plaintiffs owned a house in which their tenants were growing cannabis. The insureds had no knowledge of this. The grow-op caused damage to the house. After the insurer denied coverage based on an illegal drug operations exclusion, the insured sued for coverage. Ultimately, the Court held the innocent insured provision to be unavailable to these insureds, as the loss occurred in 2010, while the provision came into force in Alberta on July 1, 2012.
Nevertheless, the Court in Lafferty commented that the innocent insured provision could have prevented the insurer from relying on the drug operations exclusion had the loss occurred after the provision came into force.
One may contrast the Court’s comments in Lafferty with a recent decision out of Saskatchewan, a province that does not have an innocent insured provision in its provincial Insurance Act. In the 2018 case of Carteri v. Saskatchewan Mutual Insurance Co., the Court dismissed the insured plaintiffs’ claim for coverage after an explosion and fire severely damage their rental property. The explosion and fire evidently resulted from the tenants’ attempt to produce cannabis resin. The insurance policy contained an exclusion denying coverage for loss caused by the manufacturing of illicit drugs. The exclusion functioned to bar coverage, even though the insured property owners were arguably “innocent of any wrongdoing.”
Rental properties are at a much higher risk
The innocent insured provisions afford protection to property owners when a tenant’s act or omission causes a loss, provided the insured is a natural person (as opposed to a corporation), and does not consent to or collude in such activity. This may prove problematic for insurers writing habitational policies in Alberta, British Columbia and Manitoba.
As rental properties already represent a higher risk exposure, insurers will want to underwrite such policies carefully, especially considering the increased likelihood of tenants seeking to grow marijuana plants in their dwellings legally, regardless of whether the property owner forbids it. Given that cannabis exclusions may not protect insurers in this situation, it is even more prudent that insurers require their insureds to conduct regular, periodic inspections of rental dwellings, in an effort to sniff out any cannabis production before it causes a loss.
For more information, please contact Robert Gilroy or another member of Dentons’ Insurance group.
 See Lafferty v Co-Operators General Insurance Co., 2019 ABQB 515, discussed below.
Kate Hurman was frustrated and confused when her insurance company cancelled her policy a month after last year’s tornadoes damaged her property in the city’s Greenboro neighbourhood — all because she’d filed a separate claim within the past four years.
Hurman’s home was one of many in the region to suffer damage when a series of tornadoes ripped through several residential areas in September 2018.
“It took out my fences, it took out my deck, my gazebo, my furniture. It spun my barbecue around and smashed it down into my deck,” Hurman told CBC Radio’s All In A Day Monday. “Then it bounced over my house and took out my neighbours’ roofs.”
So Hurman turned to Johnson Insurance, the same company that had helped her several months earlier when a smaller wind storm resulted in minor damage to her property and her neighbour’s.
After a series of delays and missteps, Hurman eventually received $20,000 to repair her property and replace damaged items.
But then the insurance company, which Hurman had used for 19 years without ever making a claim, decided not to renew her policy.
‘I was shocked’
Hurman said she first received the news in a cryptic email. She followed up with a phone call, only to discover her policy was being cancelled.
Hurman said the company told her it was because she had filed two claims in a 48-month period — even though both claims were for weather-related events out her control.
“I was shocked. I mean, honestly, I was just shocked.”
Hurman said the 48-month window wasn’t mentioned anywhere in her policy.
“It’s not on their website. It’s nowhere that I could locate it,” she said.
CBC Radio reached out to RSA Canada, an umbrella group that includes Johnson Insurance, for comment.
“Due to privacy regulations, we’re not able to comment on specific claims or customer insurance policies. Johnson’s complaint liaison office is available to any consumer who wishes to discuss specific policy discussions,” the company said in a statement.
But when Hurman started searching for a new company, she said it became clear the rule wasn’t an industry standard.
“I asked them outright: Do you have such a policy? And some companies … were hesitant. The company I went with said, ‘No, we don’t have that policy.'”
‘Upfront and clear’
Hurman is now calling for insurance companies to be “upfront and clear” about their policies.
“I wonder how many people in the Ottawa area understand that if you make two claims with some companies within a 48-month period, you will no longer have insurance with that company,” she said.
The affair has been a particular sore point for Hurman, who initially recommended her insurance company to her neighbours in the aftermath of the tornado.
“Here I was on the street writing on little Post-it notes to my neighbours, ‘Hey, my insurance company is great.'”
Her advice to others who could get stuck in a similar situation is simple: “Go ask them directly. They cannot lie but … they will not, up front, give you this information. And to me, it’s pretty vital information.”
Life, critical illness and disability insurance isn’t just for individuals and families. It can help protect your business, too.