ICBC Expert Opinion “Of Little To No Assistance To the Court”

Guest post was written by ERIK MAGRAKEN on .

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:

[150]     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.

[151]     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:

[153]     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, [1996] 3 S.C.R. 458 at paras. 13–17It 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.

[165]     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.

[166]     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.

[167]     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.

[168]     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.

“Unconstitutional” ICBC Expert Witness Rule Struck Down By BC Supreme Court

Source: Erik Magraken BC Injury and ICBC Claims Blog

Earlier this year BC’s Attorney General surprised the legal community with changes to the BC Supreme Court Rules limiting the number of expert reports in motor vehicle injury prosecutions.  The rule changes were brought without notice to the profession, were retroactive and were drafted to save a primary litigant, ICBC, money at the cost of the substantive rights of individuals before the judiciary.

In April a legal challenge was launched arguing these changes were unconstitutional.

Today the Chief Justice of the BC Supreme Court ruled on challenge and declared that these changes were “of no force and effect” due to their unconstitutional nature.

Mr. Justice Hinkson provided the following reasons finding these changes were out of line:

[120]     I find that the effect of the impugned Rule is to change the substantive law of evidence that has guided this Court from its inception, and I find that this is not one of the exceptional cases referred to by Justice Lambert where the Rules may create new substantive law. Accordingly, I find that the Rule 11-8 Orders (and with it, the impugned Rule) are not authorized by the Act…

[164]     The impugned Rule does more than limit the court’s discretion; it eliminates it, and that is the petitioners’ complaint.

[165]     The arbitrary limit of three expert witnesses to address damages, unless there is agreement to more by the parties or expert witnesses are chosen by the court could result in the very unfairness discussed by McLachlin J. in Porto Seguro…

[172]     …the impugned Rule places the court in a role that it should not be placed in. Transferring the responsibility of ensuring that there is relevant evidence upon which to decide the issues in a personal injury case from the parties to the court does, in my view, intrude upon what has, to date, been the core function of the court: to decide a case fairly upon the evidence adduced by the parties…

[185]     Considering the totality of the submissions and the evidence before me, I find that the impugned Rule compromises and dilutes the role of the court, and encroaches upon a core area of the court’s jurisdiction to control its process…

[197]     The petition is allowed in part.

[198]     I declare that the Rule 11-8 Orders are, in part, contrary to s. 96 of the Constitution Act, 1867, and thus unconstitutional and of no force or effect. In the result, sub Rules 11-8 (3), (4), and (5) are set aside. In the result sub Rules 11-8(10) and (11) must also be set aside.

Reading between the lines of the judgment the Court suggests that a ‘soft’ expert witness cap may be possible provided the Court retains real discretion to allow parties to marshall all the evidence necessary to prove their case.   Such a rule could likely be crafted and receive the support of various stakeholders who access the Courts in such claims.

$70,000 Non-Pecuniary Assessment For Low Back Injury With Nerve Root Irritation

The guest post was written by ERIK MAGRAKEN

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury.

In today’s case (Suc v. Skelton) the Plaintiff was involved in a 2013 collision that the Defendant admitted fault for.  The crash caused a bulged disc in the Plaintiff’s low spine which contacted his nerve root at L5-S1.  His prognosis for recovery was poor.  The injury caused significant limitations in the types of activities the Plaintiff could participate in.  In assessing non-pecuniary damages at $70,000 Madam Justice Baker provided the following reasons:

[35]         Based on his assessment of Mr. Suc over time, Dr. Hershler was of the opinion that Mr. Suc is unlikely to return to a pain-free state in the future. He says that, due to the fact that over time Mr. Suc’s symptoms and physical findings are unchanged, he is of the opinion that Mr. Suc has sustained a permanent injury, and will remain symptomatic indefinitely.

[36]         Dr. Heran noted that Mr. Suc had improved since the accident. He noted that Mr. Suc did have persisting symptoms, and that he must avoid certain tasks and movements which would aggravate his condition. He was of the view that Mr. Suc would require assistance for heavier duties if his condition does not improve any further. Dr. Heran stated, “From a future perspective, he is definitely at increased risk for exacerbations or aggravations of site of persisting symptoms, notably in the lumbosacral level.”

[37]         I find on a balance of probabilities that Mr. Suc will remain symptomatic over his lifetime, and that his current level of function is contingent on Mr. Suc modifying his behaviors to avoid movements and tasks which have the potential to aggravate his symptoms…

44]         Mr. Suc was 37 at the time of the accident. His injuries are serious and have had a serious impact on his life. As a result of the accident, he suffers from ongoing pain in his back from a disc bulge that is contacting his nerve root. While his daily pain levels have improved, he has also restricted his movements so as not to aggravate his pain. He also experiences excruciating pain from time to time. His pain has affected his sleep and his mood.

[45]         Mr. Suc used to be a strong and healthy man, who could successfully take on physical tasks. He enjoyed and excelled in sports. It is unlikely his back pain will ever completely resolve, and he will not be able to resume his former level of activity. However, Mr. Suc is able to manage his day to day pain reasonably well. He is able to work full time. He can participate in some sporting activities, although not competitively or at the level he did before the accident.

[46]         Mr. Suc lost his job with RAS as a result of his injuries. This resulted in a period of financial insecurity for him and his young family, where they lost their house and had to move into their pastor’s home. Mr. Suc and his family have received generous support from their church, but it has been psychologically difficult for him to be unable to properly care for them. Mr. Suc has a new job which allows him to provide for his family, but this job is not ideal from the perspective of his family as it requires him to work weekends and evenings. He is no longer able to share responsibility with his wife for childcare and household responsibilities.

[47]         I find that an award of $70,000 is appropriate for non-pecuniary damages.

bc injury law, L5-S1 Disc Herniation, madam justice baker, nerve root irritation, Suc v. Skelton

“Little Weight” Given To ICBC Experts in Three Cases Released Today

The BC government is making more noise about Rule of Court reforms regarding expert opinion evidence in personal injury cases in an effort to save ICBC money.  Their not so subtle message is that Plaintiff’s hire too many experts to prove their claims.  If cases released by the BC Supreme Court today are any guide it is ICBC that is in need of reform when it comes to the practice of hiring physicians hoping to refute collision related injuries.

In three separate cases published today by the BC Supreme Court three separate judges found ICBC hired expert opinions deserved “little weight“.

In the first case (Francello v. Cupskey) the Plaintiff was injured in two collisions.  ICBC retained a physician who provided opinion evidence minimizing the Plaintiffs injuries in connection to the crash.  In finding this opinion deserved “little weight” Mr. Justice Burnyeat provided the following comments:

[124]     I am not prepared to find that the Opinion and the testimony of Dr. Bell is inadmissible as was requested by counsel for Ms. Fancello. However, I am prepared to give it very little weight and prefer the evidence in these regards provided by those who remain licensed, continue to see patients, remain up to date in their review of applicable literature, and who saw Ms. Fancello in a professional capacity. I also cannot conclude as did Dr. Bell that the falls being experienced by Ms. Fancello were “just an isolated incident” or that it would be appropriate to discount reports of dizziness.

In the second case released today (Dinnisen v. Lee) the Plaintiff was a pedestrian struck by a vehicle while in a marked crosswalk.  She suffered serious injuries including a fractured right collarbone, a fractured left wrist, and an injury to her brain.  In the course of litigation ICBC had her assessed by neurologist who provided opinions minimizing her injuries.  In giving “little weight” to this opinion Mr. Justice Funt provided the following reasons:

[84]         I have given little weight to Dr. Dost’s opinion for several reasons. First, Dr. Dost takes a primarily statistical approach based on medical literature rather than focusing on the plaintiff with her particular health history, medical imaging, and her symptoms…

[90]         Second, Dr. Dost’s clinical testing is suspect. Dr. Dost met with the plaintiff for 27 minutes in the morning of September 24, 2017 in order to conduct his assessment. During this time, Dr. Dost asked her a number of unchallenging questions as part of an intake questionnaire (e.g., height, time in hospital, work hours, recreational pursuits)…

[92]         I do not accept that even an experienced neurologist can observe and determine decreased processing speed except in obvious instances (e.g., slow to answer easy and readily understandable questions). Dr. Dost’s method is further suspect in that he did not test the plaintiff later in the day after she had been at work for at least several hours. In the plaintiff’s case, her cognitive fatigue occurred later in the day after several hours of work involving mental tasks…

[95]         Third, Dr. Dost failed to consider the possibility that the patient lost consciousness in the Accident…

[103]     Fourth, Dr. Dost testified that none of the other experts diagnosed the plaintiff as having suffered a moderate traumatic brain injury. A moderate traumatic brain injury may have affected the “effect size” in his statistical analysis. However, as may be seen below, Dr. Cameron opined that the plaintiff “suffered a complicated mild traumatic brain injury or moderate traumatic brain injury”…

[105]     Fifth, as quoted above, Dr. Dost in his June 13, 2018 report states:

I would recommend a psychiatric assessment and I would like the report provided for a review.

[106]     The defendant obtained a psychiatric assessment from Dr. P. Janke but the defendant did not give Dr. Dost a copy of Dr. Janke’s report. Dr. Janke was not called as a witness at trial nor was his report tendered as expert opinion. Dr. Janke’s report was given to the plaintiff and the plaintiff gave it to her medical experts. Under cross-examination by defence counsel, Dr. Cameron referred to Dr. Janke’s report.

[107]     The fact that Dr. Dost recommended a psychiatric assessment of the plaintiff and asked to see the relevant report makes his report provisional…

[110]     It is unhelpful to the fact finding process that a party holds back from one of its own experts an opinion of another of its experts where the areas of expertise overlap, especially when the opinion has been provided to the other party.

[111]     As seen above, in his June 13, 2018 report, Dr. Dost states:

I would expect that if these issues are based on psychiatric issues, then treatment of her psychiatric problem will lead to improvement. [Emphasis added.]

[112]     Dr. Dost’s opinion was provisional. In his October 15, 2018 addendum, his opinion remained unchanged. By this time, he had received the October 26, 2017 independent medical examination report prepared by Dr. D.H. Smith, a psychiatrist. In his October 26, 2017 report, Dr. Smith agrees with Dr. Cameron that in terms of outcome, a mild complicated traumatic brain injury is more like a moderate traumatic brain injury.

[113]     In sum, I have given little weight to Dr. Dost’s report, addendum, and evidence. I find that he did not undertake a sufficiently thorough analysis of the plaintiff’s symptoms and surrounding circumstances in order to provide sufficient reliability of opinion evidence to the Court. He was also somewhat hampered by not having been given a copy of Dr. Janke’s report.

In the final case released today (Miller v. Resurreccion) the Plaintiff was injured in a 2011 collision that the Defendant admitted fault for.  ICBC again retained an expert who minimized the connection of the Plaintiff’s injuries to the collision.  In finding aspects of his opinion deserved “little weight” Madam Justice Baker provided the following comments:

In his second report he questioned whether the flare up of symptoms experienced by Ms. Miller in 2016 could be related to the accident. He did note that migraines fluctuate and can worsen when psychological issues develop.

[81]         Dr. Woolfenden’s opinions were based in part on his understanding that Ms. Miller had a longstanding history of pre-accident headaches, including severe headaches, and neck pain. Under cross examination, Dr. Woolfenden agreed that his understanding of Ms. Miller’s pre-accident pain and headaches arose primarily from the records of Ms. Gibson and Dr. Miles. Both Ms. Gibson and Dr. Miles testified at trial, and their evidence did not support the understanding Dr. Woolfenden gained from their notes. As such, I place little weight on Dr. Woolfenden’s conclusions on the possible origin of Ms. Miller’s headaches.

Advocacy in the Guise of Opinion, bc injury law, Dinnessen v. Lee, Fancello v. Cupskey, madam justice baker, Miller v. Resurreccion, Mr. Justice Bunryeat, Mr. Justice Funt

Police Officer in Pursuit Found Fully at Fault for Intersection Collision

Reasons for judgement were published today by the BC Supreme Court, Chilliwack Registry, finding a police officer fully at fault for an intersection collision with another motorist.

In today’s case (Burroughs v. Chiasson) the Plaintiff was an RCMP officer involved in a crash in 2013.  At the time, while driving a fully marked RCMP vehicle, she “pursued a truck with an uninsured trailer by attempting to turn left, on a red light, onto Young Road from the westbound curb lane on First Avenue. While making this turn, she collided with a minivan driven by the defendant, Jennifer Chiasson. Ms. Chiasson was driving eastbound on First Avenue.”.

The RCMP officer sued the other motorist claiming damages from the collision.  The claim was dismissed with the Court finding that the Plaintiff entered the intersection when it was dangerous to do so in circumstances with no particular urgency.  In dismissing the claim and finding the officer fully at fault for the crash Mr. Justice Basran provided the following reasons:

[46]         As a trained and experienced police officer, Ms. Burroughs knew that there was a significant risk in turning left on a red light from a curb lane in front of a bus that blocked her view of oncoming traffic. She also knew that expired insurance on a trailer did not pose an imminent threat or danger. There was no need for immediate apprehension of the trailer.

[47]         Ms. Burroughs’ position that the offence was “arrestable” and that this explanation justified her actions demonstrates that she failed to weigh the risk of the required maneuver in relation to the risk to the public of letting the trailer proceed. Ms. Burroughs should have abandoned her pursuit and followed up at the trailer owner’s address instead of pursuing this vehicle by making a dangerous maneuver. In my view, the risk to the public from turning left significantly outweighed the risk to the public posed by expired insurance on a trailer. As in Watkins, there was a safer option, but Ms. Burroughs failed to consider it.

[48]         After deciding to pursue the trailer, Ms. Burroughs should have followed her training and cleared the lanes one at a time by ensuring that she could see, and be seen, by all vehicles in, and approaching, the intersection. She knew that the bus created a blind spot and obstructed her view of oncoming traffic. She therefore should have addressed this by stopping and exercising considerable caution prior to crossing in front of the bus. Her poor visibility of oncoming traffic is a factor that increased the potential harm to the public: Regulations, s. 4(6)(b).

[49]         Both Ms. Burroughs and Ms. Chiasson testified that there was no time to react prior to the accident. By the time they perceived each other, the accident was imminent.

[50]         Ms. Sawatzky had a clear and close view of the events leading to the accident. Ms. Burroughs did not stop in front of the bus. She kept moving in front of it and then accelerated past it causing the accident with Ms. Chiasson’s vehicle.

[51]         No witnesses corroborated Ms. Burroughs’s recollection that the siren was on prior to the U-turn. I do not accept that Ms. Burroughs turned on her siren when she executed the U-turn on First Avenue, 20 to 30 seconds prior to the accident. Ms. Burroughs may have thought she activated the siren well before the accident, but no one, including Ms. Sawatzky and Ms. Marchuk, recalls hearing a siren until mere moments before impact. I find it is more likely that while making the left turn maneuver, Ms. Burroughs knew she could not see past the bus, but was nevertheless determined to pursue the trailer, and activated her siren immediately before accelerating in front of the bus. I accept Ms. Chiasson’s evidence that she heard the siren shortly before the collision and that she had no time to react to it.

[52]         Had Ms. Burroughs stopped in front of the bus and waited for the southbound light on Young Road to turn green, the accident would not have happened. If Ms. Burroughs had done this, it is possible that she may have lost sight of the trailer, but as noted above, immediate apprehension of the uninsured trailer was not required.

[53]         In my view, Ms. Burroughs contravened s. 177 of the MVA by not activating her siren before entering the intersection of First Avenue and Young Road.

[54]         Ms. Chiasson could not see Ms. Burroughs’ car and did not hear a siren until shortly before the collision. Ms. Chiasson had no visual and virtually no audible cue to warn her of the presence of Ms. Burroughs’ vehicle. She had a green light and entered the intersection as she was entitled to do. She could not have avoided the accident and is therefore not liable for it.

[55]         I find that Ms. Burroughs’ actions were the sole cause of the accident and she is 100% liable for it.

bc injury law, Burroughs v. Chiasson, intersection collisions, Mr. Justice Basran, Police Pursuit Cases

BC Court of Appeal Upholds Special Costs Award Against Disability Insurer Despite No Litigation Misconduct

Reasons for judgment were published today by the BC Court of Appeal finding that trial judges do have authority to award special costs against litigants even in circumstances where no litigation misconduct occurred.

In today’s case (Tanious v. The Empire Life Insurance Company) the Plaintiff was insured with the Defendant.  She became disabled and sought long term disability benefits but the Defendant ‘rejected her claim’.  The Plaintiff successfully sued and was awarded damages along with an order of special costs.

The Defendant appealed arguing the judge was wrong in awarding special costs absent litigation misconduct.  The BC Court of Appeal disagreed and found that in “exceptional cases” such awards could be justified.  In upholding the award the court provided the following reasons:

[69]         To summarize, in British Columbia the general rule is that party and party costs are awarded to a successful litigant in the absence of litigation misconduct.  In ordinary litigation, this partial indemnity strikes a fair and proper balance of the costs burden to be borne by the winning and losing parties and enhances the policy objectives of predictability and consistency.  However, in exceptional cases special costs may be awarded for non-punitive purposes in the interests of justice to provide a higher degree of indemnification to the successful party.  When deciding whether to award special costs, a judge should exercise his or her discretion based on established principles and consider the nature and conduct of the litigation, bearing in mind the purposes and objectives of the costs regime, any salient policy considerations and the relevant facts as established by the evidence…

[77]         I am not persuaded that the judge erred in law or principle in exercising his discretion to award special costs in the circumstances of this case.  Nor, in my view, is the award so clearly wrong as to amount to an injustice.  The judge concluded that disability insurance claims are a uniquely challenging, complex and costly type of contractual dispute litigation and that Ms. Tanious experienced the challenges, complexities and costs inherent in such claims to an extent that special costs were warranted in the interests of justice.  There was an evidentiary basis for his conclusion, which, in my view, was not unreasonable.  Bearing in mind the privileged position he occupied and the high degree of appellate deference that applies, I would not interfere with the judge’s principled determination.  

[78]         I do not accept Empire Life’s submission that the judge compensated Ms. Tanious twice for the emotional harm its conduct caused by making both an award for mental distress damages and a special costs award.  The special costs award responded to the impact of the unique characteristics of the disability insurance contract in the litigation, not the emotional consequences of its breach.  Nor do I accept Empire Life’s submission that the judge erred by holding, in substance, that a disability insurance policy confers a contractual right to full indemnity costs.  On the contrary, he repeatedly stated that it did not. 

[79]         I am satisfied that, despite some ambiguity, when the reasons are read as a whole it is reasonably apparent that the judge exercised his discretion to award special costs based on his assessment of the interests of justice in all the circumstances of the case, not based on a contractual obligation.  His references to “contractual obligations” and the need to realize the “full benefit of the contract” must be read within the context of the entire decision. Had the judge relied on a contractual analysis in making the special costs award, I would agree with Empire Life that he erred in principle.  However, it seems to me that the “driving consideration” for the judge was the injustice he saw in permitting the unique challenges, complexities and costs inherent in disability insurance litigation to render an impoverished and disabled litigant’s pursuit of subsistence-level insurance benefits wholly impractical. 

[80]         In other words, while he did not express it in precisely these terms, at bottom, the judge’s concern with fulfilling the “intention of the insurance coverage” was the need he perceived to provide meaningful access to justice to Ms. Tanious in the unusual circumstances in which she found herself.  Importantly, that need arose in the context of a unique and distinct category of contractual dispute litigation, namely, a claim for subsistence-level disability insurance benefits, and not in the context of an “ordinary” insurance or personal harm claim.

[81]         As I have noted, the Supreme Court of Canada recently emphasized the importance of ensuring access to justice as a policy objective.  Long embedded within the law of costs, our understanding of the consequences of failing to achieve this objective has grown significantly in the last two decades, as the Report highlights.  In seeking to achieve justice in this case, the judge considered the merits of the case, weighed the consequences of a special costs award for both parties and decided it would be contrary to the interests of justice to ask Ms. Tanious (or her “low bono” counsel, Ms. Hayman) to bear the financial burden associated with pursuit of her claim: see Carter.  I see no error in his overall approach, which, in my view, was based on principle, not sympathy, and, given its narrow parameters, did not amount to judicial overreach.

[82]         As discussed, where reasons of principle and policy do not apply the law may evolve without resiling from a general rule by recognising policy-based exceptions: see Fidler; Hollander.  In my view, the law of costs has evolved to the point that a judge may consider a litigant’s challenging personal and financial circumstances, including the availability and nature of counsel’s services, in a disability insurance claim of this sort where there is an evidentiary basis for doing so and, if the interests of justice warrant it, may depart from ordinary costs rules and award special costs in the absence of reprehensible conduct.  The factors in question are linked to the exceptional nature of such a claim and, therefore, the usual costs principle favouring partial indemnity in ordinary litigation may not be applicable.  On the other hand, consideration of these factors in such cases enhances the policy objective of ensuring access to justice for disadvantaged litigants by, for example, encouraging more lawyers to act on deserving but otherwise unremunerative disability insurance claims.

[83]         Moreover, in my view, the policy objectives of predictability and consistency are not compromised by this incremental development in the law of costs, at least not significantly.  Given the unique nature of the particular contractual relationship in question and the related dispute, unlike many opposing litigants, disability insurers are likely to be familiar with an insured’s circumstances and the associated implications of denying benefits and to consider them when assessing their costs exposure.  Further, the prospect of facing a special costs award if a denial of benefits turns out to be unjustified may well encourage disability insurers to scrutinize claims extremely carefully at every stage of litigation, which, in turn, may encourage settlement and avoid the sort of cursory response seen here that falls short of bad faith but negatively impacts access to justice for a disadvantaged litigant.  On the other hand, if, on close and continuous examination, a defence appears strong and meritorious, the possible price of losing seems unlikely to keep a well-resourced disability insurer from the courtroom door: see Sidorksky.

[84]         In the final analysis, in my view, in balancing the parties’ interests in this unique litigation the judge did not err by concluding that it was just for the unsuccessful institutional defendant to indemnify the impoverished and disabled claimant fully for the reasonable costs of pursuing her claim for subsistence-level disability insurance benefits and, therefore, awarding special costs.

bc injury law, LTD, special costs, Tanious v. The Empire Life Insurance Company

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