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

Vehicle Owner Found Liable For Crash After Household Member Took Vehicle Without Permission

Source: Erik Magraken BC Injury and ICBC Claims Blog

Reasons for judgment were published last week with an extensive discussion of the principles of registered owner vicarious liability for BC collisions.

In the recent case (Bowe v. Bowe) the Plaintiff was injured as a passenger involved in a collision.  At the time of the crash the Plaintiff took his stepfathers car keys without permission.  They lived in the same household.  The Plaintiff contacted his cousin, who lived in a separate household, and collectively they took the vehicle.  In the course of the evening  the two boys drove around for several hours before the Accident.  Both took turns driving but at the time of the crash the cousin was behind the wheel.

The Plaintiff suffered serious injuries including a moderate brain injury.  A jury found the driver negligent and the plaintiff contributorily negligent.  A question arose as to whether the registered owner bears any liability in these circumstances.

Section 86 of BC’s Motor Vehicle Act establishes vicarious liability for vehicle owners when their vehicle is being driven by a household member or by anyone who acquired the vehicle with the owners consent.  The latter test was not applicable on these facts.  The court was asked whether the household member rule was triggered in these circumstances.  The applicable provision of the MVA reads as follows:

Responsibility of owner or lessee in certain cases

86(1)    In the case of a motor vehicle that is in the possession of its owner, in an action to recover for loss or damage to persons or property arising out of the use or operation of the motor vehicle on a highway, a person driving or operating the motor vehicle who

(a)        is living with, and as a member of the family of, the owner

Mr. Justice Voith found that, even though the cousin was not a household member at the time of the crash this provision was triggered and the registered owner was vicariously liable for the collision.  In reaching this conclusion the Court provided the following reasons:

[65]         It is important in this case not to be swayed by the fact that the Plaintiff took Mr. Boltz’s car keys without his permission.  This lack of consent, on the part of Mr. Boltz, is irrelevant, on a principled basis, to the intention and operation of s. 86(1)(a).  The provision is, instead, engaged in the first instance on account of the family relationship that exists between Mr. Boltz and the Plaintiff.  The Plaintiff’s own fault and contributory negligence, in taking the keys to the vehicle and in the events that gave rise to his injuries, are addressed by the jury’s specific findings on that issue.

[66]         Furthermore, the application of s. 86(1)(a) is not influenced by whether the injured party in a motor vehicle accident is an innocent and unknown third party who is struck by a vehicle or a passenger in that vehicle.  Under s. 86(1)(a), the same result necessarily ensues whether Dale struck an innocent person crossing the street or whether he injured the Plaintiff who was sitting beside him at the time of the Accident.  If the Defendants are correct, an innocent third party would have no recourse against Mr. Boltz.  I raise these matters because the result of this application must be consonant with the language of s. 86(1)(a) and with the object of that provision in the various circumstances that I have described.

[67]         The purview of s. 86(1)(a) clearly extends beyond those cases where a family member of the owner of the vehicle is involved in a motor vehicle accident while “driving” the vehicle.  It extends to cases where the family member is “operating” the vehicle.  How the words “operate” or “operating” are interpreted is a function of the meaning of those words and, to the extent different meanings are reasonably possible, a consideration of what meaning best achieves the intended purpose of the provision.

[68]         “Operate” in the MVA is, in other provisions, defined as having “the care or control” of a motor vehicle.  A somewhat extended definition of “operate”, found in the IVR, has earlier been considered in the context of s. 86.  That definition “includes” instances where an individual is in the “care, custody or control” of the vehicle.  The word “includes” in the IVR contemplates an even broader definition.  Furthermore, the specific words “care, custody or control” operate disjunctively.

[69]         In Hudson, the Court considered that the common sense meaning of “operate” extended to the “use” of the vehicle: see also Grey at paras. 9 and 10 and Barsaloux at para. 26.

[70]         In Morrison, providing access to the keys to a vehicle, albeit in the context of s. 86(1)(b), was associated with providing “the required degree of exclusivity of control”.

[71]         In this case, over the course of the evening, the Plaintiff and Dale drove Mr. Boltz’s vehicle and were passengers at different times.  When they changed roles, one would “drive” and the other would not.  This narrow set of activities only addresses the question of who was “driving” at different times.

[72]         When the Plaintiff obtained Mr. Boltz’s car keys, he initially sat in the driver seat and he held the car keys in his hand.  At that point, though he was not “driving”, the vehicle was in his “care, custody or control”.  I do not consider that that would change when he gave the keys to Dale.

[73]         To be specific, if the Plaintiff no longer held the keys he would likely no longer overtly have “control” of the vehicle.  He would, however, still have “care or custody” of the vehicle.  It would be open to him to ask for the return of the keys.  It would be open to him to require that they return to the Plaintiff’s home and that they return Mr. Boltz’s vehicle.

[74]         I posit an example that arises in a slightly different context but one that mirrors, on a principled basis, the circumstances of this case.  If a father gives his son his vehicle keys and his son, while on a trip, allows a friend to drive, while he sits in the passenger seat, can it be said that the son no longer has “care” or “custody” of his father’s vehicle?  Can it be said that he is not “using” the vehicle?  Based on the common sense meaning of these words, and on the authorities I have referred to, I do not consider that this is so.  To determine otherwise would be to make the words “drive” or “operate” virtually synonymous in circumstances where it is clear that the two words are both intended to, and do, have different meanings.

[75]         These conclusions are further informed by the intended remedial purpose of s. 86(1).  It is to be recalled that the “only policy reasons underlying s. 86(1) to be considered are those in favour of protecting innocent third parties seeking compensation for injuries suffered at the hands of negligent automobile drivers and, vicariously, owners”: Barreiro at para. 28.

[76]         Having regard to the foregoing considerations, I am satisfied the Plaintiff was, at the time of the Accident, “operating” Mr. Boltz’s vehicle notwithstanding the fact that he was a passenger in the vehicle.

[77]         This conclusion recognizes and gives effect to each of the words “drive” and “operate”.  It is consistent with the meaning of the word “operate” in the MVA and the IVR––a related enactment.  It is consistent with the object and remedial purposes of s. 86(1).  Still further it is consistent with the relevant authorities.

[78]         Based on this conclusion, and on the deeming provision in s. 86(1), Mr. Boltz is vicariously liable for the Accident.  There is no need to consider whether the circumstances of this case would establish vicarious liability at common law: Morrison at para. 23.

[79]         The Plaintiff is to have the cost of this application.

bc injury law, Bowe v. Bowe, Mr. Justice Voith, section 86 BC Motor VEhicle Act, section 86(1) motor vehicle act, section 86(1)(a) motor vehicle act, vicarious liability

Defense Doctor Criticised For “Advocacy” and Requiring Cross Examination to “Ferret Out” Opinions

Source: Erik Magraken BC Injury and ICBC Claims Blog

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, New Westminster Registry, rejecting a defence expert for shortcomings in their opinion evidence.

In today’s case (Soltan v. Glasgow) the Plaintiff was injured in two collisions that the Defendants accepted fault for.  In the course of litigation the Defendants retained an orthopaedic surgeon who provided opinion evidence minimizing the impact of the Plaintiff’s injuries and prognosis.  In finding it “difficult to ascribe any weight” to these opinions Mr. Justice Saunders provided the following critical comments:

[32]         Having said that, I find it difficult to ascribe any weight to Dr. Boyle’s opinion. His opinions as to the “greater than 50%” likelihoods of certain outcomes, as described above, were stated in a conclusory manner. Rule 11-6 of the Supreme Court Civil Rules, B.C. Reg. 168/2009 requires that an expert state the reasons for their opinion, and indeed the letter of instruction from ICBC to Dr. Boyle specifically asked him to provide his reasons. In contrast to Dr. Hershler, who explicitly stated in his October 2015 report that his opinion was based on his experience with patient outcomes, and the fact that recovery can be prolonged when there have been multiple accidents, Dr. Boyle did not set out what path of reasoning led to the opinions he expresses. His report stated a number of positive and negative prognostic factors, but he did not weigh or analyze them in any fashion.

[33]         If Dr. Boyle’s unstated reasoning behind his opinions was simply that there were no objective signs of pathology, then his failure to acknowledge the subjective nature of pain and the possibility that Ms. Soltan may have found her pain levels intolerable, would mark his report as a work of advocacy. So too would his implication that a prognosis for probable full resolution of soft tissue symptoms may be based solely on objective criteria. The function of an expert witness is to assist the court, not to take sides. To demonstrate fairness and balance, Dr. Boyle’s acknowledgement of the potential for subjective pain being limiting and disabling, even in the absence of objective signs, ought to have been stated frankly in his report and not left to be ferreted out in cross-examination.

[34]         I also note that Dr. Boyle did not state in his report that Ms. Soltan’s decision to take time off work, commencing in February 2017, would not have been a reasonable approach to managing her symptoms and attempting to accelerate the process of recovery.

[35]         For these reasons, I prefer and accept the opinions of Dr. Hershler.

Advocacy in the Guise of Opinion, bc injury law, Mr. Justice Saunders, Soltan v. Glasgow

$65,000 Non-Pecuniary Assessment for Likely “Indefinite” Neck & Back Injury

 Written by ERIK MAGRAKEN

Reasons for judgement were published today by the BC Supreme Court, Nanaimo Registry, assessing damages for long-lasting soft tissue injuries.

In today’s case (Poulin v. Armstrong) the Plaintiff was involved in a 2013 collision.  She was a passenger at the time and was 14 years of age.  The Defendant admitted fault.  The crash caused soft tissue injuries to her neck and upper back which became chronic and were expected to linger indefinitely.

In assessing non-pecuniary damages at $65,000

Mr. Justice Baird provided the following reasons:

11]        The plaintiff was assessed by Dr. Jonathan Hawkeswood, physiatrist, on August 13, 2018. He submitted a report that documented the plaintiff’s history of difficulties, his diagnosis, and recommendations for her future heath care. According to him the claimant continues to suffer from post-traumatic myofascial neck pain with large trigger points at the medial trapezial fibres, upper intrascapular pain, likely predominately soft tissue in nature, and headaches related thereto. He noted no pre-accident injuries or illness and concluded that the plaintiff’s current upper body pain and headaches are attributable to the accident. His overall prognosis and expectations were reported as follows:

Based on the duration of symptoms and today’s clinical presentation, a complete resolution of all accident related injuries has a probability of less than 50%. In other words, I expect Ms. Poulin will continue to have neck pain indefinitely. This can be reasonably described as a chronic neck pain issue. Furthermore, it is probable she will experience headaches in association with neck pain on a long term basis.

[12]        Dr. Hawkeswood said that the plaintiff is not disabled from light or moderate duty work because of her injuries. In particular, he did not consider her to be disabled from a career as a physiotherapist but concluded that her work tolerance and productivity will likely be compromised by her injuries. “In the future”, wrote Dr. Hawkeswood, “she may well require consistent sick time or perhaps vacation time dedicated to physical recovery due to her injuries.” He also recommended, if the plaintiff ends up pursuing another career, that she should choose a field that does not require heavy lifting, allows for frequent positional changes, and minimises overhead work.

[13]        The plaintiff was also examined by Brent Armstrong, a functional capacity evaluator. He spent the better part of a day with the plaintiff putting her through various physical tests. He concluded that the plaintiff is competitively employable as both a physiotherapist and a kinesiologist, but he predicted that she will experience exacerbations of neck and upper back pain in the course of her work in either occupation. He predicted that she would need to moderate her pace, take regular breaks, and ask for assistance or accommodations in order to succeed in her daily tasks…

[18]        Here, the plaintiff was injured at a very young age. According to the uncontested medical evidence she will likely continue to suffer indefinitely from pain in her upper back and neck with associated headaches. She has been deprived of the full enjoyment of her physical person in the prime of her life and will suffer from these deficits for many years. This is a significant setback, especially for someone as active as the plaintiff.

[20]        I have concluded that a fair award under this heading is $65,000.

bc injury law, Mr. Justice Baird, Poulin v. Armstrong

$100,000 Non-Pecuniary Assessment for Central Neuropathic Pain With Poor Prognosis

Reasons for judgment were published today by the BC Supreme Court, Nanaimo Registry, assessing damages for central neuropathic pain caused by a vehicle collision.

In today’s case (Laliberte v. Jarma) the Plaintiff was involved in a 2015 vehicle collision.  She was a passenger in a vehicle driven by the Defendant that lost control “went through a fence and over a bump and landed in a field”.  Liability was admitted.

The collision caused various soft tissue injuries resulting in central neuropathic pain.  The prognosis was for symptoms to continue.  These were largely controlled with medication.  In assessing non-pecuniary damages at $100,000 Madam Justice Russell provided the following reasons:

[28]         The parties agree that the plaintiff suffered soft tissue injuries to her lower back, and was diagnosed with CNP. The parties also agree that the plaintiff’s prognosis for this injury is ongoing chronic pain. The plaintiff continues to suffer symptoms daily, although they are now at a tolerable level when the plaintiff is on medication.

[29]          The plaintiff described her pain at trial as “more of an irritation”. She testified that the medication she takes, Topiramate, reduces her pain by 80-90%. However, if she runs out of Topiramate, her serious symptoms immediately resume and she runs the risk of being bedridden with pain.

[30]         The plaintiff’s position is that she will require medication for her symptoms long term and possibly for the rest of her life, and that she faces the possibility of aggravating her injury by engaging in moderate or heavy physical activities regardless of how effective the medication may be.

[31]         The plaintiff’s evidence was that she had suffered some episodes of depression and anxiety as a teen, and had taken some medication for this but had discontinued use prior to the accident. After the accident, the plaintiff was referred to a counsellor by her family physician but did not attend any such counselling sessions or seek any other help concerning her psychological symptoms.

[32]         The plaintiff had no prior history of low back pain. She described suffering low back pain starting the day after the accident. I note that the plaintiff went into labour three days after the accident. Her mother had to help her into the shower and off the toilet, and she could not climb stairs without significant pain. Prior to the accident, the plaintiff enjoyed longboarding, drawing and art, and played basketball in high school. The plaintiff testified that her level of activity has increased since the date of the accident and she is now at a similar level than she was pre-accident, although she engages at a less intense level…

[48]         The plaintiff’s young age, the potentially lifelong duration of her injury and its impact on her physical ability, the severity of her pain before she went on medication, the emotional suffering caused by her aggravated depression, the impact her pain and depression had on her ability to raise and bond with her newborn son in the crucial months immediately following his birth (as well as the increased pain during the birth itself), and the strain her injuries put on her relationship with her parents, all stand in favour of a higher award.

[49]         I consider the loss of her ability to cradle her baby in her arms and to breastfeed without pain to be serious losses.

[50]         Should she wish to have more children, she faces a difficult choice:  to go off her medication for the duration of the pregnancy and suffer serious pain, or to deny herself the opportunity to bear more children. As a corollary of this issue, she must not allow herself to become pregnant again without carefully considering the consequences.

[51]         On the other hand, the plaintiff’s ongoing injury is not a disabling injury because its effects can be managed through the use of medication, the injury is limited to her lower back, and the injury has not caused a substantially material loss or impairment of her life or lifestyle as compared with her level of activity, recreational pursuits and social inclinations before the accident.

[52]         I also find that her injuries have not necessarily caused any marked impairment of her mental abilities  so long as she is on medication controlling her chronic pain, her academic performance does not stand to be affected. These factors favour a more limited award…

[56]         Having regard to the Stapley factors, and the relevant cases cited by the parties, I award the plaintiff $100,000 in non-pecuniary damages.

bc injury law, Central Neuropathic Pain, CNP, Laliberte v. Jarma, Madam Justice Russell

$70,000 Non-Pecuniary Assessment for Partly Limiting Chronic Pain

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain with partial limitations arising from a vehicle collision.

In today’s case (Rabiei v. Oster) the Plaintiff was involved in a 2016 collision.  The Defendants accepted fault.  The crash resulted in various soft tissue injuries resulting in chronic pain in the plaintiff’s neck, back and shoulder.  These injuries resulted in some impairment in the Plaintiff’s ability to work and also impacted activities outside work.  Full recovery was not expected.  In assessing non-pecuniary damages at $70, 000 Madam Justice Adair provided the following reasons:

[140]     I find that, as a result of the accident, Ms. Rabiei sustained soft tissue injuries to her neck, upper, mid and lower back.  These diagnoses are made by both Dr. Stewart, and by Dr. Parhar, who saw and examined Ms. Rabiei about a month after the accident.  These are not inconsistent with Dr. Goel’s impression concerning Ms. Rabiei’s primary injury (although he was unable to opine on what the injury was related to).  For a period of some months after the accident, she also suffered from headaches.  Physiotherapy treatments, which began at the end of April and continued until the middle of July 2016, were helpful in addressing her symptoms and improving her ability to function.  Her headaches and lower back symptoms eventually resolved.  However, Ms. Rabiei remained off work for the balance of 2016, because she remained symptomatic in her neck, upper back and left shoulder and (at least in part) because of the advice she received from Dr. Parhar.  The pain symptoms in her neck, upper back and left shoulder, while they improved, have persisted and become chronic.  Although the symptoms are not debilitating, and they come and go, they impair Ms. Rabiei’s ability to function at her pre-accident level, both with respect to her work and her activities outside of work.  Further medical improvement is unlikely, although if Ms. Rabiei follows through on recommendations to work with a kinesiologist on an active rehabilitation program, she has the opportunity to become stronger and more functional…

[148]     Ms. Rabiei is a young woman, just 30.  She has many years ahead of her to live with chronic pain symptoms.  When injured, she was just establishing a new career in B.C.  Her pre-accident work history once she arrived in B.C. showed that she was willing to work hard and was ambitious.  As a result of the injuries she sustained in the accident, she has been and will be working with pain, and is less able to pursue career goals she had for herself.  The satisfaction she can enjoy from her work is diminished.  She is less independent at home. 

[149]     Following the accident, she has been less socially active.  However, beginning with her job at Fresh, her work schedule (where she worked Fridays and weekends) must be considered a factor – she has less time available to go out dancing and to clubs with friends. 

[150]     Ms. Rabiei has given up playing the violin, which is a major loss for her.  It has also affected her social life as she and Mr. Hekmatshoar no longer get together regularly to perform.

[151]      In view of my findings above, and taking into account the factors mentioned in Stapley (including in particular Ms. Rabiei’s age and stage of life) and the cases cited to me in argument, I conclude that a fair and reasonable award of non-pecuniary damages is $70,000.

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