ICBC Law

Further to my numerous posts revieiwng BC Supreme Court cases interpreting and applying Rule 37B following an injury claims trial, reasons for judgement were released today dealing with a unique issue; in exercising discretion under the Rule can the Court consider the conduct of the successful litigant?

In today’s case (Lakhani v. Elliott) the Plaintiff was injured in a 2005 car crash.  Before trial the Plaintiff made a formal offer to settle her case under Rule 37B for $95,000 plus costs and disbursements.

While the Plaintiff did not obtain all the compensation she sought at trial she fared well enough to beat her formal offer.  Specifically, after an 11 day trial Mr. Justice Voith awarded the Plaintiff just over $105,000 in total damages (You can click here to read my post summarizing the trial findings).

Despite the Plaintiff’s relative success at trial all did not go smoothly.  Mr. Justice Voith made some damaging findings with respect to her credibility.  Some of the highlights of these findings were as follows:

[33]      The defendants asserted that Mrs. Lakhani’s credibility was suspect. I agree in significant measure. I believe there are a number of distinct factors that have caused me to question, in some cases reject, and in other cases to significantly discount her evidence. In the main, I find that Mrs. Lakhani has overstated her symptoms resulting from the Accident; downplayed the significance of her 2001 workplace injury; and has been untruthful regarding the Accident’s effect on her graduation from nursing school. I will discuss these concerns in turn…

[40]      I believe that Mrs. Lakhani has tended to considerably overstate the severity of the symptoms that she suffers from as a result of the Accident….

[46]      For the plaintiff to assert that she has routinely and consistently suffered from pain, from the date of the Accident to the trial, which approaches the worst pain possible is not tenable. For her to describe her pain in terms which would be comparable to that of patients who are heavily medicated to assist with their pain management or who are inextremis goes beyond mere subjectivity or imprecision. It is instead either so inaccurate a description as to be of no value or it is a description intended to overstate. In either case it is not a description that can be relied upon….

[51]      The second significant concern with the plaintiff’s evidence was a tendency to downplay the significance of her 2001 workplace injury or to suggest some improvement in her symptoms in relation to that injury prior to the Accident…

[54]      Indeed Mrs. Lakhani sought broadly to suggest that in late 2004 she reclaimed or reassumed control of her life. She said this was so with respect to spending time with her sister, with respect to gardening and even with respect to her household activities. This too is all inconsistent with the objective record of what she told others she could do, with the medical assessment that her condition had plateaued or with her admission that things had become “as good as they were going to get”…

[59]      Quite simply the overall picture which the plaintiff sought to paint with her evidence was one where the very significant “life altering changes” brought on by her low back injury occupied little or no space. This absence of balance in her evidence had the affect of considerably detracting from its weight.

[60]      A third concern with Mrs. Lakhani’s evidence arises from having testified that the Accident caused her to graduate two terms later than she otherwise would have. Specifically, Mrs. Lakhani said that the pain and difficulty associated with the Accident caused her to skip the May to August 2005, as well as the January to April 2007 academic terms. This is not credible on an objective basis…

[66]      Plaintiff’s counsel sought to persuade me that an eight month delay in Mrs. Lakhani’s graduation was a very modest component of the plaintiff’s claim and not one that would cause the plaintiff to be less than forthright. In my view, however, the focus of the plaintiff’s evidence was not designed to obtain the modest financial benefit that receiving her degree earlier would have generated, but rather to impress upon the court the ongoing severity of her injuries. Quite apart from her motivation, the documents I’ve referred to as well as the admissions she made in cross examination, simply do not accord with the evidence she first gave.

With this background at hand the Plaintiff brought an application for double costs under Rule 37B.  The Defendants opposed and argued that given the Plaintiff’s “failure to be forthright at trial” the Court should not exercise its discretion to award the Plaintiff double costs.  Mr. Justice Voith agreed and provided the following analysis:

0] While the dominant objective of Rule 37B, found under the heading “Offers of Settlement”, is likely to promote early or reasonable settlement, additional factors, and in particular the conduct or honesty of one of the parties, can be relevant in considering whether to make an order of double costs under 37B(5)(b). This is apparent from numerous sources…

[13] Second, both the permissive nature of Rule 37B(5), which establishes that the new rule does not purport to create any automatic double cost consequences, and the non-exhaustive list of factors in Rule 37B(6) acknowledge the flexibility inherent in Rule 37B and the prospect that the Rule is amenable to furthering legitimate policy objectives apart from settlement…

[15] It is important to emphasize that in this case there is no issue of depriving the plaintiff of the ordinary costs to which she is entitled or of any award of special costs being made against her. Instead, the only issue is whether she should be entitled to double costs in light of various findings that I made in my Reasons for Judgment.

[16] Having regard to the foregoing authorities, and the underlying rationale that drives them, I can see no principled reason why a lack of candour or probity on the part of a party who gives evidence at trial should not constitute an “other factor the court considers appropriate” under Rule 37B(6)(d) in any potential award of double costs. An award of double costs, or a refusal to award such costs, is one of the means available to a court of signalling to litigants the types of conduct or behaviour it considers as either worthy of promotion or, conversely, as worthy of rebuke…

[20]        The same considerations apply to a party whose evidence is found by a court to be dishonest or designed to exaggerate or inflate a claim. Such a party should understand the seriousness with which that conduct will be regarded. It should similarly understand the potential consequences of that conduct, including its relevance to an award of double costs that the party might otherwise be entitled to.

[21]        In making these comments I am mindful that there are a great many cases where a party’s evidence is not accepted by the court for a variety of reasons. In many cases a party’s best recollection may simply not accord with other objective evidence. A party’s candid evidence may not, in light of the expert evidence, be accepted. Indeed it is not remarkable or unusual for a party to place a somewhat positive slant on given events. The mere fact that a party’s evidence is not accepted by the court, without more, does not engage the considerations I have identified. There is nothing in the conduct of such a party that warrants any reproach or criticism. It is, instead, the natural result of all cases where competing memories or competing versions of given events require resolution…

[24] In this case, the specific findings I referred to go beyond the “normal trial process” and do extend to a finding that the plaintiff sought to mislead the court and to significantly exaggerate the claim being advanced. Such conduct is worthy of censure and, in the circumstances of this case, disentitles the plaintiff to the award of double costs that she seeks.

This case serves as an important reminder of the crucial role that Plaintiff credibility plays in injury litigation.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

When I was growing up in Toronto I remember public service commercials often being played in the wintertime with the slogan “Be Nice, Clear Your Ice“.  Due to the temperate climate of Victoria, BC I have not heard a similar public service announcement for years.  That being said, regardless of where in Canada you live if you are responsible for a roadway/driveway/sidewalk/parking-lot that is covered in ice/snow reasonable steps should be taken to remove it.  Not only is removing it from your property the sensible thing to do, failing to do so can lead to a successful lawsuit and reasons for judgement were released by the BC Supreme Court, Vancouver Registry, demonstrating this.

In today’s case (O’Leary v. Rupert) the Plaintiff rented a basement suite in the Defendants home.  When returning from work one day the Plaintiff parked her car in the driveway and attempted to walk up the driveway to the stairs of her basement suite.  It was dark outside and none of the lights were on.  Before reaching the stairs the Plaintiff slipped and fell.   The Plaintiff sued for damages and succeeded.  In finding the Defendants liable Mr. Justice Voith found that they did not take reasonable steps to keep the driveway clear of hazards.  Specifically the Court summarized and applied the law as follows:

[38] The obligation of the Ruperts under the Tenancy Agreement was to “maintain the residential property in a reasonable state of …. decoration and repair.” Conversely, the obligation of Ms. O’Leary under s. 10 of the Tenancy Agreement was to “maintain reasonable health, cleanliness and sanitary standards.” In saying this, I recognize that as a matter of practice Mrs. O’Leary swept and shovelled the stairs and pathway leading to her suite.

[39] Second, as I have said, it is common ground that the Ruperts maintained and shovelled the whole of their driveway without ever suggesting to Mrs. O’Leary that this obligation properly fell to her. Liability may be imposed on a party who has voluntarily undertaken to do something they were not otherwise obligated to do: see Goodwin v. Goodwin, 2007 BCCA 81, 64 B.C.L.R. (4th) 280, at para. 26. Where that voluntary task is performed negligently and causes foreseeable harm to a plaintiff, liability may arise. Once the Ruperts undertook to maintain and shovel the whole of their driveway, regardless of whether they were under a legal obligation to do so, they had a duty not to perform this task negligently.

Analysis

[40] In MacLeod, Mr. Justice Burnyeat listed a series of factors, and the legal authorities where they are referred to, that are relevant in considering whether an occupier has fulfilled the duty imposed by s. 3 of the OLA. These factors include “whether an unusual danger was present, whether a warning had been provided to the plaintiff, the ease or difficulty and the expense with which the unusual danger could have been remedied, and any prior record of safe usage of the premises by others or by the plaintiff.”

[41] In this case, the application of most of these factors, together with the factors I have referred to earlier that emanate from Zavaglia, support the conclusion that the defendants breached the duty of care they owed to the plaintiff. The driveway of the Rupert home was sloped. I have found that it was routinely slippery and that it was icy on the night of January 12, 2007. It was dark on that evening and it was routinely unlit. These factors, in combination, gave rise to a situation that was unsafe or hazardous. In addition, the defendants knew that Mrs. O’Leary was required to cross over parts of the driveway, after exiting her car, to access her suite. Her use of the areas in question and the hazards it presented were thus foreseeable.

[42] In saying this, I recognize that we live in a relatively northern climate and that our winter weather conditions often create an environment that is inherently precarious. In Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420 at p. 439, the court said “Ice is a natural hazard of Canadian winters. It can form quickly and unexpectedly. Although it is an expected hazard it is one that can never be completely prevented.”

[43] Still further, I accept that the standard or test is one of “reasonableness and not perfection”: Fournier v. Grebenc, 2003 NBQB 221, [2003] N.B.R. (2d) (Supp.) No. 28 at para. 31. Finally, I recognize that this case deals with a residential home rather than an apartment building, as in Neilson v. Bear, [1999] B.C.J. No. 86 (S.C.), or a shopping centre, as in Murphy v. Interprovincial Shopping Centres Ltd., 2004 NLSCTD 210, 241 Nfld. & P.E.I.R. 316, or a parking lot, as in Parmar v. Imperial Parking Ltd., [1977] B.C.J. No. 486 (S.C.), where the standards and procedures established by the landlord in response to winter conditions are designed to accommodate greater volumes of personal traffic. Accordingly, they are likely to be more rigorous or exacting.

[44] Nevertheless, the conditions that existed at the Rupert home were unnecessarily unsafe. I say unnecessarily unsafe because with little effort and at modest expense the conditions on the driveway could have been much improved. The simple installation of lighting that worked either on a timer or on a motion detector would have provided Mrs. O’Leary with the illumination necessary to better see where she was walking. Both devices are inexpensive. Both would have addressed the inconsistency with which the Ruperts turned on their outside lights or the occasions where, as in the case of the evening when Mrs. O’Leary fell, they had not yet arrived home from work to turn on the lights.

[45] Similarly, the use of salt or some other traction agent would have addressed the icy condition of the driveway. Though the Ruperts were diligent about shovelling their driveway, that step, without more, was not enough. Once again this step would have been relatively inexpensive and would not have been time consuming.

[46] I am also satisfied that the failure of the defendants to take these measures to address the icy and precarious condition of the driveway caused Mrs. O’Leary to fall.

[47] It is noteworthy that the Ruperts have, since Mrs. O’Leary’s accident, both taped the switch for the outside lights open and begun to apply salt to their driveway following a snowfall. It is clear that post-accident conduct cannot be viewed as an admission of negligence: Anderson v. Maple Ridge (District) (1992), 71 B.C.L.R. (2d) 68, 17 B.C.A.C. 172 (C.A.) at p. 75. Nevertheless, in Anderson, Wood J.A., as he then was, concluded that moving a stop sign after an accident was relevant to the question of whether it was difficult to see prior to the accident. Here the steps taken by the defendants post-accident are relevant to whether the driveway was dark and whether it remained slippery or icy after being shovelled.

[48] Similarly, post-accident conduct can be used as an indication of the ease with which a risk might have been avoided: Niblock v. Pac. Nat .Exhibition. (1981), 30 B.C.L.R. 20 (S.C.) at p. 25.

Mr. Justice Voith awarded the Plaintiff $25,000 for non-pecuniary damages.  Her most serious injury was a “second degree sprain of her ankle” which continued to impede the Plaintiff in some recreational activities some two years later.  There are not too many cases out there dealing with ankle sprains from the BC Supreme Court and this precedent may prove useful for others with similar injuries.

When you sue for damages in the BC Supreme Court in an ICBC Injury Claim you are subject to certain rules of compelled disclosure.  These rules require you to give verbal, documentary and even physical discovery (independent medical exams).

When ICBC gets access to this private information in the lawsuit process it is subject to an “implied undertaking of confidentiality“.  What this means is this information is not to be used by ICBC for purposes outside of the lawsuit.

If you have a further ICBC Claim involving similar injuries making the previous records relevant, can ICBC provide these records to their lawyer to be used against you in a subsequent claim?  Reasons for judgement were released today addressing this issue and the answer is no, at least not without your consent or a court order.

In today’s case (Chonn v. DCRS Canada Corp dba Mercedez-Benz Credit Canada) the Plaintiff had a history of ICBC Injury Claims.  In the most recent claim the Defence Lawyer gathered documents from the previous claims and intended to use them in the current lawsuit.  The Plaintiff objected to this.  A motion was brought before the BC Supreme Court and Mr. Justice Voith was asked to decide whether “the Insurance Corporation of British Columbia (“ICBC”), which, by operation of statute, had conduct of the defence of each of the Earlier Actions and has conduct of the Current Action, can list the documents it obtained from the plaintiff in the Earlier Actions without first obtaining the plaintiff’s consent or leave of the court.”

In answering this question Mr. Justice Voith summarized the law behind the “implied undertaking of confidentiality” and set out the limits of ICBC’s use of records in subsequent claims.  The highlights of the decisions are set out below:

[25] A party who has documents from earlier litigation that are impressed with the implied undertaking simply cannot make use of those documents without the concurrence of the party from whom they were obtained or leave of the court. The implied undertaking protects documents or oral discovery obtained in earlier litigation from being used for any purpose “collateral” to that litigation. Thus, the documents cannot be used for internal strategic review in subsequent litigation. They cannot be used for the purposes of drafting pleadings. They cannot be sent to counsel for the purposes of obtaining an opinion in new litigation. All of these obligations bound the named defendants in the Current Action as well as ICBC in its conduct of that litigation.

[39] Once one recognizes that a central focus of the implied undertaking rule is to prevent the use of documents in subsequent litigation without consent or leave of the court, it is not sound to assert that Rule 26 displaces the application of the implied undertaking rule. Rule 26 is a rule of broad application and it governs virtually all civil actions. There are like provisions in most other jurisdictions. The result advanced by the defendants would significantly curtail the efficacy and ambit of the rule.

[40] The submission of the defendants would also significantly erode both policy objectives underlying the rule. It would impair the privacy interests of the party to the earlier action who made disclosure and gave discovery evidence. It would also subvert the policy objective of encouraging parties to “provide a more complete and candid discovery” referred to inJuman at para. 26.

[41] The intended purview of the “statutory exceptions” rule which is referenced by the Court in Juman, is limited to specific legislation which compels disclosure and which expressly overrides the privilege and/or confidentiality concerns of the holder of the information. Rule 26 does not achieve these objects. Though it requires disclosure from parties to litigation, both Rule 26(2) and the structure of Form 93 recognize the ongoing entitlement of a party to maintain a claim for privilege. While documents covered by an implied undertaking are not, strictly speaking, privileged, I believe that it would be appropriate for a party, from whom document disclosure is sought, to list those documents in its possession which are subject to an implied undertaking under part 3 of its list of documents.

This case also addressed the remedies available when there is a breach of an implied undertaking and these are worth reviewing for anyone interested in BC Privacy Law.