Litigation insurance (After the Event) - protection

There is a new type of insurance in Canada that one should consider when they are pursuing a risky motor vehicle accident case where liability may be in dispute.  In some cases, "After The Event" or ATE Insurance is available for purchase by some insurance providers in Canada.

As defined by DAS Canada ( - ATE insurance is a Legal Expense Insurance policy that protects a client against their opponent’s adverse costs and their own disbursements, should the case fail or be abandoned.

The Supreme Court Of British Columbia recently adjudicated whether ATE insurance costs can be recovered by a plaintiff who settles their case or obtains a judgment for damages against a defendant.  In that case, District Registrar Nielsen reviewed some of the law related to this issue and whether it is a "proper" or "necessary" disbursement.

District Registrar Nielsen ruled that it is not a recoverable disbursement saying that:

[7]           In my view, applying the reasons of the BCCA in MacKenzie v. Rogalasky, supra, the cost of insurance coverage is not a proper or necessary disbursement incurred in the conduct of the proceeding. No doubt it provides a measure of financial comfort to the plaintiff, however, it does not arise from the exigencies of the proceeding and relate directly to the direction, management, or control of the litigation used to prove a claim against the defendants. Accordingly, the cost of the insurance coverage is disallowed.

Although it cannot be recovered against the person who caused your accident, ATE insurance may still be an avenue for you and your lawyer to pursue in cases which or risky or where liability may be split.


Examination for Discovery: Evidence Prior to Trial

In Supreme Court actions in British Columbia, including personal injury lawsuits, the rules of civil litigation require that the parties attend an examination for discovery prior to trial. An examination for discovery is an opportunity for the opposing counsel to examine a party on matters relevant to the litigation. The starting point for defining the matters that are relevant to the litigation are the pleadings. Generally, questions that are posed by an opposing counsel must be answered unless your own counsel objects to the line of questioning. Where a genuine dispute arises from objections to a line of questioning, the parties may apply to the courts to resolve the dispute, which occurred in today's case, Thomson v A.R. Thomson Group, 2016 BCSC 2268.

In Thomson, a case where the plaintiff was seeking to have her partnership in the defendant reinstated, the defendant appealed an order from chambers, wherein the court ordered that a representative of the defendant must answer questions relating to the nature of business relationships between the family members involved in the partnership. As noted at paragraph 3, "the questions related to the nature of the relationships between the partners: whether those relationships had become strained; whether the managing partner... had in the course of the partnership had been falling out with any of his partners; whether since the creation of the partnership any partners had in his view done anything that had seriously damaged their relationship with their siblings; whether any of the partners since the formation of the partnership had refused to communicate with other partners...". In upholding Master Scarth's decision at chambers, Mr. Justice Greyell illustrated the way in which pleadings are analyzed in determining the scope of questioning at an examination for discovery:

[8]            In November 2009, Mr. Thomson made what is alleged to be an agreement with the plaintiff that in exchange for her cooperation in moving the company from the partnership, she would be reinstated as an equity partner when the litigation with the husband was resolved. The alleged agreement is the subject of the underlying litigation.

[10]        In its response to the notice of civil claim the defendant denies that the plaintiff was told by Mr. Thomson the defendant would restore her to a 15% interest in the partnership. In other words, the defendant denies the alleged agreement.

[11]        Further in addition to a number of other defences raised, the defendant says at paragraphs 32 to 34 of its response to civil claim::

32.       The relationship between the plaintiff, her parents and siblings was seriously damaged when her siblings discovered in September 2012, that the plaintiff was writing a blog in which she cast them, to their great embarrassment, in a false, misleading, and pejorative manner.

33.       Since that time, the relationship between the plaintiff, her parents and siblings has continued to deteriorate such that, at the present time, the plaintiff refuses to communicate with her parents except by email and does not communicate with her other siblings in any manner except for [one]…

34.       As a result of her actions the plaintiff has caused her father, mother and siblings to be justifiable concerned that if she was permitted to purchase an interest in the defendant, she would be disruptive and harmful to the business of the defendant.

[12]        The plaintiff did not file a reply to the response to civil claim and as such the issues raised by the defendant in that response are presumed to be at issue in the matter at large. The plaintiff has not specifically denied the defendant's allegations. See Certus Strategies (British Columbia) Corporation et al. v. Insurance Corporation of British Columbia, 2005 BCSC 608.


[14]        Rule 7‑2(18) of the Supreme Court Civil Rules provides that a person being examined on an examination for discovery must answer any question relating to a matter in question in the action. It is well established that the permissible scope of questions asked during an examination for discovery must relate to a matter in the action as defined by the pleadings, Kendall v. Sun Life Assurance Company of Canada, 2010 BCSC 1556, at paragraph 8.

[15]        The scope of allowable questions is a broad one, Cominco Ltd. v. Westinghouse Canada Limited, [1979] B.C.J. No. 1963.

[16]        ...It is clear to me from a review of both the transcript and her oral reasons that Master Scarth was alive to the legal principles she was to apply.

[17]        At page 18 of the transcript, line 28, during the course of her discussion with counsel she said this:

So the question which then arises is what kind of ‑‑ what is the norm for this family?  What is the ‑‑ what has this family tolerated in the way of disruptive behaviour in the past which makes that position untenable?  And that is, it seems to me, where your friend's questions were going. So in other words, if on cross‑examination at trial Mr. Coles wanted to ask questions about the kind of sibling rivalry or interpersonal relationships which had happened in the past in this, it seems to me that that would be something that would be appropriate. And therefore it seems to me that it is appropriate on discovery because of the scope of discovery.

[18]        At page 19 she said this:

Well, I am not sure that the issue of probative value comes into it. The question is whether it is relevant on the broad test of relevance that is applied to questions on discovery. So I think what you are saying is only her relationship with the family is relevant on the pleadings.


THE COURT:  And it seems to me having reviewed the materials over the break and reviewed the discovery questions that that is too narrow a view of what is appropriate on discovery.

[19]        In her oral reasons Master Scarth at paragraph 2 outlined the nature of the action. At paragraph 3 she outlined the claims set out in the amended notice of civil claim. At paragraph 5 she said:

I have been given the appendix with the list of questions that are objected to. I have already stated in the course of submissions that in my view the defendant's position that the plaintiff's behaviour was too disruptive for the family business makes the question of what is the norm for the family business relevant. That is, what behaviour is tolerated or considered not to affect the business of the company and as a result questions with respect to the relationship of other partners are relevant.

[20]        She then went on to review each of the questions attached to Exhibit A, finding most to be relevant, qualifying others and finding two to be overly broad or irrelevant.

[21]        I am in agree with Master Scarth's reasoning that the nature of the business relationships between the family members of ARTG are relevant to the defendant's ultimate position that reinstating the plaintiff to the family business, that is the granting of her claim for specific performance, would be disruptive and harmful to the defendant's business.

[22]        The defendant's pleadings raise an issue as to what is the nature of the relationship between the plaintiff and her siblings. I refer specifically to paragraphs 32 and 33 of the amended response. In my view the defendant's pleadings also give rise to whether the defendant's decision not to reinstate the plaintiff to the partnership is a bona fide one and to its claim that specific performance of the agreement should not be granted should the agreement be found to be enforceable.

[23]        Accordingly, I dismiss the appeal.

As illustrated, it is important to ensure the questions in an examination for discovery are proper and relevant. This is an important role of any counsel representing a plaintiff in a Supreme Court action, including personal injury actions. This issue also illustrates the importance of being represented in your personal injury action. For more information about how an examination for discovery may become important of your claim, as well as the general benefits of representation for your personal injury litigation, please contact Jasroop or James.

Admissibility of Expert Medical Evidence at Trial

In today's case, Weatherill v. Cameron, 2016 BCSC 2217, the defendants were challenging the admissibility of an expert report prepared by the plaintiff's family physician. In personal injury actions, it is common for the plaintiff to rely on such an opinion from her/his family physician in order to prove the alleged injuries and/or losses. However, the admissibility of such expert medical opinions are often challenged on a number of grounds by the opposing counsel prior to the hearing of a trial. Such expert opinions are crucial for proving a personal injury case but are highly technical documents and must conform to specific and strict rules in order to be admissible and given full weight at trial. 

In this case, the plaintiff was seeking to have the doctor qualified to give opinion evidence in the field of family medicine, not specifically osteoarthritis. The defendants argued that, as a family physician, the doctor was not qualified to give an opinion regarding the plaintiff's osteoarthritis. The defendants further argued that the reasons for the opinion of the doctor only recited clinical records before providing an opinion.  It was also argued that, by making findings of fact, encroached on the function of the trial of fact (judge or jury). The court disagreed on all fronts.

Regarding the first challenge by the defendants, the court noted that the doctor's CV, which was attached to her report, set out extensive experience in family medicine. The court further took judicial notice that a family physician would deal with arthritis as a part of their practice.  Regarding the defendants' objection that the report only recited clinical records before providing an opinion, the court disagreed that the opinion ought to be inadmissible on this basis and that this issue was better addressed as a matter of weight.  In particular, the court noted:

[7]             This is precisely the same objection that Mr. Justice Smith dealt with in Edmondson v. Payer, 2011 BCSC 118, where he says this at paras. 71 through 74:

[71]   On the question of weight, counsel for the defendant correctly characterized the medical opinions in this case as primarily a recitation of what the doctors were told by the plaintiff, followed by an opinion, with little explanation of how the opinion was arrived at. That does not mean, however, that there has been no application of medical expertise.

[72]   The extent to which an expert’s methodology must be clearly expressed in the opinion will always depend on the nature of the case, the type of expertise involved and the purpose for which the opinion is tendered. In this case, the soft tissue injuries alleged by the plaintiff are, by their very nature, not always susceptible to physical testing or analysis and the doctors must rely on the subjective symptoms reported by the plaintiff, as well as on their general medical knowledge and experience.

[73]   In such a case, the effect of the expert opinion is really nothing more than to confirm that the plaintiff’s reported symptoms make sense medically and are consistent with injuries known to be caused by the type of trauma the plaintiff experienced. That opinion assists the court in drawing factual inferences about the plaintiff’s injuries.

[74]   The extent to which the court accepts the opinion and draws those inferences depends, as I have already said, on the court’s assessment of the plaintiff’s credibility...

[8]             I agree with Justice Smith. This is a matter of weight, not admissibility. This passage from Edmondson applies as well to the defendants' second argument; that is, their technical objection to the form of Dr. Forgie's report. Given her level of expertise and the nature of the injuries, I am satisfied that the grounds for the conclusion she draws are set out in the opinion. I am also satisfied that she has listed the documents that she has considered albeit in very general terms.

[9]             I must note that it appears from their cross-examination of the plaintiff that defendants' counsel had the records upon which Dr. Forgie relies; however, if anything arises during her examination that causes them concern, they may bring it to my attention and we will revisit the issue.

[10]         Finally, I do not agree that Dr. Forgie in stating conclusions is encroaching on my function as trier of fact. As stated by Smith J., her opinion assists the court in drawing factual inferences about the plaintiff's injuries. The extent to which I accept the opinion and draw those inferences depends solely on my assessment of the evidence. Dr. Forgie’s report is therefore admissible.

Finally, regarding the defendants' final challenge, the court disagreed that the doctor was encroaching on the trier of fact's function. Instead, the court found that the opinion assisted the court in drawing factual inferences about the plaintiff's injuries and that it was up to the court to accept the opinion and inferences, depending on the assessment of the evidence at trial.

Proving psychological injuries from a personal injury incident

In this week's case, Harmati v Williams, 2016 BCSC 2199, the court was tasked with assessing the causation and extent of the plaintiff's injuries, which included psychiatric injuries. Proving the extent and causation of psychological injuries can prove to be a complicated task and has often attracted a debate between the thin skull and crumbling skull doctrines (explained below), particularly where a plaintiff has a pre-existing psychological condition. A pre-existing psychological condition does not, however, mean that a plaintiff is disentitled to compensation for such injuries arising from an accident as illustrated in this week's case. 

In Harmati the plaintiff was injured when the vehicle she was a passenger in was struck from behind by the defendant. In addition to her physical injuries, she claimed to be suffering from post traumatic stress disorder and generalized anxiety disorder as a result of the accident. She was noted to have had a history of psychological conditions prior to the accident, which included a previous suicide attempt. Following the accident, the plaintiff alleged that she developed a fear of riding in cars, an inability to manage stress and overwhelming anxiety. For example, following the accident she testified that she had thrown up a number of times while riding in a vehicle and she also had attempted suicide 3 times.

This case engaged the well established principles of the thin skull rule (where a plaintiff losses or injuries are more dramatic than than they would be for the average person) vs crumbling skull rule (where a plaintiff would have suffered the same losses or injuries regardless of the accident, due to a pre-existing condition). Specifically, the plaintiff relied on the thin skull rule in arguing that although the extent of her injuries was not foreseeable to the defendant, the type of injuries (including the psychological injuries) were foreseeable, and the defendant was liable for the same. In contrast, the defendant relied on the crumbling skull doctrine to argue that her pre-accident psychological problems were so dominant and the injuries from the accident were so trivial that the accident could not have caused the plaintiff's current injuries. The court ultimately agreed with the plaintiff and awarded $100,000 to compensate her for her non-pecuniary damages; in other words, her pain and suffering.

In the ruling, Madam Justice Choi canvassed the law pertaining to causation of injuries and psychological injuries:

[60]         In order to establish causation, Ms. Harmati must prove on a balance of probabilities that but for the accident, she would not have suffered the injuries she currently has. This is determined by using the “but for” test described in Athey v. Leonati, [1996] 3 S.C.R. 458 (paras. 13-17). The plaintiff must show on a balance of probabilities that "but for" the defendant's negligent act, the injury in question would not have occurred.

[61]         It is not necessary that the defendant be the only cause of the plaintiff’s injury to find that they are liable, simply that they be a contributing cause. Writing for the Court, Major J. stated:

[19]      The law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helped produce the harm...

As Athey established, it not necessary that a court find a defendant to be the sole cause of a plaintiff’s injuries in order to find them wholly liable for those injuries.

[62]         However, the defendant will not be responsible for any loss not caused by his/her negligence or for “debilitating effects of [a] pre-existing condition which the plaintiff would have experienced anyway” (Athey at para. 35). This works to limit a defendant’s liability so as only to cover damage caused by their action, excluding damage that would have occurred regardless of their action.

[63]         Two particular issues related to causation were brought in this case: the “thin skull rule” and crumbling skull. The “thin skull rule” stands for the proposition that a “tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though the plaintiff's losses are more dramatic than they would be for the average person” (Athey para. 34). This doctrine makes the defendant liable for the plaintiff’s injuries, even if those injuries are unexpectedly severe due to a pre-existing condition, either physical or psychological.

[64]         Alternatively, a defendant is not liable for damage suffered due to a “crumbling skull” which recognizes that the plaintiff’s current injuries were inherent in their original position (Athey para. 35). A defendant is not liable for an injury that would have happened regardless of their action. As recently stated by Russell J.: “the defendants will not be held responsible for putting the plaintiff in a better position than he would have been in had the accident not occurred.” (Mckenzie v. Lloyd, 2016 BCSC 1745 at para. 139).

[65]         In addition to damage for physical injuries, Ms. Harmati seeks damages for a psychological injury in the form of post-traumatic stress disorder and generalized anxiety disorder. In Yoshikawa v. Yu, [1996] B.C.J. No. 623 at para. 12, Lambert J.A. cited the test in for assessing psychological injuries found in Maslen v. Rubenstein, [1989] B.C.W.L.D. 2371 (B.C.S.C.) at para. 15 as follows:

[C]hronic benign pain syndrome will attract damages ... where the plaintiff's condition is caused by the defendant and is not something within her control to prevent. If it is true of a chronic benign pain syndrome, then it will be true also of other psychologically-caused suffering where the psychological mechanism, whatever it is, is beyond the plaintiff's power to control and was set in motion by the defendant's fault.

[66]         Liability for psychological injuries was dealt with in a more recent case, where the BCCA found the following in Hussack v. Chilliwack School District No. 33, 2011 BCCA 258 at para. 74:

… where the psychiatric injury is consequential to the physical injury for which the defendant is responsible, the defendant is also responsible for the psychiatric injury even if this injury was unforeseeable.  See White v. Chief Constable of South Yorkshire Police, [1999] 2 A.C. 455 at 470, Varga v. John Labbatt, [1956] O.R. 1007, 6 D.L.R. (2d) 336 (H.C.);  Yoshikawa v. Yu (1996) 21 B.C.L.R. (3d) 318, 73 B.C.A.C. (C.A.);  Edwards v. Marsden, 2004 BCSC 590;  Samuel v. Levi, 2008 BCSC 1447.

Thus, this case stands as an illustration that a plaintiff's pre-existing psychological condition does not necessarily disentitle a plaintiff from recovering compensation for psychological injuries resulting from an accident.

Left turner relied on oncoming drivers waving him through, found at fault for collision

In today's case, Purewal v Li, 2016 BCSC 1792, the plaintiff was driving westbound in the curb lane on Marine Drive in Vancouver, BC. As he was proceeding through the intersection of Marine Drive and Columbia Street the defendant, who was proceeding eastbound, attempted to turn left onto Columbia Street and ended up striking the plaintiff's vehicle on the front driver side of his vehicle. The plaintiff subsequently sued for injuries and losses resulting from the collision and in the ensuing litigation, the defendant denied being at fault for the same. The defendant alleged that the plaintiff was entirely at fault and had been unsafely passing the other traffic that was proceeding eastbound on Marine Drive (in the lanes to the plaintiff's left) which was stopped. At trial, the defendant testified that "he stopped at the intersection, turned his left turn signal on, waited about 15 seconds and then proceeded to make his left turn after being waved to do so by drivers in the first vehicles in both of the two westbound lanes who were stopped immediately before the intersection" (at para. 11). In ruling that the defendant was 100% at fault for the collision, the court stated the following:

[25]        Mr. Li’s defence appears to have been that as he had been waved through by one of the other drivers he could proceed and was not required to look for traffic in the curb lane. It is not a defence for Mr. Li to rely on the fact he was waved to proceed through the intersection by drivers who were stopped at the intersection. A driver bears responsibility for his or her own actions while driving. It is not a defence for a driver to assert that he or she relied on signals from another driver when the law places the driver in a subservient position of having to yield the right of way to a dominant driver (emphasis added by blogger): see Abma v. Paul, 2008 BCSC 783 where Madam Justice Gropper stated at paras. 19-21:

[19]      Further, Ms. Brandy admitted that seeing around the cars in the curb lane attempting to enter the school parking lot was difficult and she had to move into the curb lane in order to accomplish that. Even if Ms. Abma changed lanes abruptly, it was Ms. Brandy who was crossing the line of traffic and who was entering the road from a driveway; in those circumstances she was required to yield the right of way to traffic on the highway. Whether Ms. Abma changed lanes in front of the driveway or before the driveway, when Ms. Brandy entered onto the road she did not yield the right of way to Ms. Abma. While Ms. Abma was required to execute her lane change with regard to the safety of other vehicles, that did not change the obligation of the driver coming onto the road to yield the right of way to approaching traffic.

[20]      Finally, although Ms. Morgan appears to be confused about distances and time elapsed between her seeing Ms. Abma’s vehicle and the impact, she was certain in her evidence about her observations of Ms. Brandy checking to the left and then to the right and not rechecking the left before emerging from the driveway. It may be that Ms. Brandy was confused by the southbound driver turning left into the parking lot and her attention was focused on that driver. She may have wrongly interpreted that driver’s wave as a signal that it was safe to proceed. In that regard, if she relied on that signal, without checking again, she abdicated her responsibility to ensure that it was safe for her to leave the driveway to that southbound driver.

[21]      I am thus satisfied that the liability for the second accident rests solely on the defendants Brandy.


[27]        In the present case Mr. Li was required under s. 174 of the MVA to yield the right of way to any vehicle approaching the intersection that constituted an immediate hazard to his safe passage through the intersection. Mr. Li did not look for vehicles approaching from his right as he moved through the intersection. He had a duty to do so.

[28]        I find that had Mr. Li looked to his right he would have seen Mr. Purewal’s vehicle approaching from the west. Mr. Hubbard testified Mr. Purewal’s vehicle was one to two vehicle lengths away from the intersection after Mr. Li commenced his turn. Mr. Purewal’s vehicle constituted an “immediate hazard” to Mr. Li.

[29]        Counsel for the defendant argued Mr. Purewal was also at fault for the accident as he did not slow down as he approached the intersection with traffic stopped on either side. Counsel submits the facts in Frers v. De Moulin, 2002 BCSC 408, are on “all fours” with those in the present case. In Frers the defendant was found to be 60% at fault for the accident by “sailing” through an intersection in the curb lane.

[30]        I do not accept the defendant’s position that Frers is applicable to the facts in this case. In Frers the trial judge found the defendant “was not paying sufficient attention to his driving”. While all drivers must drive with due care and attention having regard to the prevailing circumstances, there is no evidence in this case to suggest that even had Mr. Purewal slowed down his vehicle as suggested by the defendant that the accident would not have occurred. The defendant has not established anything Mr. Purewal did or did not do would have prevented or lessened the damages caused by the collision. Simply put, Mr. Li was required to yield the right of way to the plaintiff. He did not look for a vehicle approaching from his right in the curb lane. Had he done so I find it more likely than not he would have seen Mr. Purewal’s vehicle approaching the intersection and would have been able to stop his vehicle in time to avoid the collision.

[31]        I find Mr. Li is 100% responsible for the Accident.

Liability for an collision is a very important consideration in pursuing a claim for damages. Depending on the liability circumstances for a collision, a person may or may not be able to pursue a claim for damages, or in the alternative, could risk having their entitlement to damages reduced in proportion to their fault for a collision. For more information about liability and how it can relate to your claim, contact Apna Law.




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