BC Take Five May 2011

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May 2011

BRITISH COLUMBIA EDITION EDI-

Inside this Issue:

opFeatured Cases:

Damages; Types of Damages; Physical and Psychological Injuries- p.3Civil Procedure; Jurisdiction- p.5Property Law; Interests in Land; Partition- p.6Family Law; Custody and Access; Removal of Child from Jurisdiction- p.8Insurance Law; Practice and Procedure; General Principles- p.10

Classified Section: Job opportunities, sales of law practices, and other law-related postings.- pp.12

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Burdett v. Eidse, 2011 BCCA 191

Areas of Law: Damages; Types of Damages; Physical and Psychological Injuries Under Appeal: Justice Loo

The respondent in this case, Mr. Burdett, was involved in two motor vehicle accidents approximately six months apart. The first accident, occurring in 2005, was with a vehicle owned and operated by the appellants Mr. and Mrs. Eidse. The second, occurring in 2006, was with the appellant Mr. Nguyen. Before the accidents, the respondent suffered from hypertension, diabetes, high cholesterol, and cerebrovas-cular disease. He also had a pre-existing brain injury that made him more susceptible to significant and prolonged symptoms. The respondent sued both Mr. and Mrs. Eidse

and Mr. Nguyen for damages in negligence. The trial judge found that the first accident was caused solely as a result of the negligence of the appellants Mr. and Mrs. Eidse, and that as a result of this accident, the respondent suffered soft tissue injuries and cognitive impairment resulting in a personality change. The trial judge held that as a result of the second accident, for which Mr. Nguyen admitted liability, the respondent’s soft tissue injuries were further aggravated. The trial judge held that the appellant’s condition was not likely to improve and assessed damages at $1,111,359, including $900,000 for loss of earning capacity. She did not apportion damages between the two accidents or between the two appellants because the parties did not address this issue at trial. The appellants Mr. and Mrs. Eidse appealed the award on three grounds: (i) that the trial judge erred in declining their application to adjourn the trial when the respondent produced new documents; (ii) that the trial judge erred in concluding that the respondent’s problems were attributable to injuries suffered in the accident rather than his pre-existing condition; and (iii) that the trial judge erred in her assessment of the respondent’s lost earning capacity. [continued on the next page]

BACKGROUND

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The appeal was allowed in part. With respect to the first issue on appeal, the Court of Appeal held the trial judge did not err when she refused the requested adjournment. The trial judge properly assessed the positions of the parties and exercised her discretion properly. With respect to the second issue on appeal, the Court held the

trial judge did not err in attributing the respondent’s injuries to the accidents. The evidence was capable of supporting the trial judge’s conclusions as to the extent and the cause of the respondent’s injuries. With respect to the third issue on appeal, the Court held that the trial judge erred in her assessment of the damages awarded for future earning capacity.

The Court found it was not likely that the respondent would work for as long as the trial judge estimated due to his pre-existing medical conditions. Consequently, the Court reduced the award for loss of future earning capacity to $600,000.


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Burdett v. Eidse (cont.)

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The appeal was dismissed. The Court of Appeal held that the nature of the case was an ordinary personal injury action arising from a motor vehicle accident. The simple fact of the appellant’s residence in British Columbia did not found jurisdiction in a British Columbia court over a resident of another province. The accident occurred in Alberta. The vehicle in question was an Alberta vehicle. Neither respondent had any connection to British Columbia and both respondents contested the jurisdiction of the British Columbia courts. Under the circumstances, the trial judge properly found that there was no real and substantial connection between British Columbia and the facts upon which the proceeding was based.

The appellant in this case was Megan Dembroski.

The respondents were Gilles and Benoit Rhainds. The parties were involved in a motor vehicle accident that occurred in Alberta. At the time of the accident, the appellant was attending college in British Columbia. The respondent who owned the vehicle was a resident of Quebec, while the respondent who drove the vehicle was a resident of Alberta. Two witnesses to the accident resided in Alberta. The appellant was treated for her injuries

Dembroski v. Rhainds, 2011 BCCA 185

Areas of Law: Civil Procedure; JurisdictionUnder Appeal: Justice Truscott

in British Columbia and commenced an action against the respondents in British Columbia, seeking damages and recovery for health care costs as a beneficiary under the Health Care Costs Recovery Act. She argued that the witnesses attesting to her quantum of damages, including family, co-workers and medical practitioners, all resided in British Columbia. The respondents sought a dismissal of the action on jurisdictional grounds. The trial judge found in favour of the

respondents on grounds that there was no real and substantial connection between British Columbia and the facts underlying the proceeding, and dismissed the action.

BACKGROUND

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BACKGROUND

Sahlin v. Nature Trust of British Columbia, Inc., 2011 BCCA 157Areas of Law: Real Property Law; Interests in Land; Partition

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Records and DocumentationIf you are carrying on a business, you are required to keep adequate records that provide sufficient details and support to determine how much tax you owe. Estimates and incomplete information are not acceptable to CRA. In this regard, I refer you to CRA’s Guide RC4409 Keeping Records, which can be found on CRA’s Website.

A CompanyAnother way to do business is through a company. A company is a separate legal entity that can undertake to do business and own property in its own name. A company has its own requirements to file tax returns, pay taxes, and meet other obligations. A company pays tax at different rates than does an individual proprietor.

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Kathryn G. Edwards, CA, is a Partner with Pagnanini Edwards Lam Chartered Accountants.

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The appellant in this case was the Nature Trust of British Columbia (the “Trust”). The respondents were members of the Sahlin family. The Sahlin family and the Trust each held a one-half undivided interest jointly or in common with the other in a 330-acre parcel of land on Savary Island. The property contained a number of ecologically and

environmentally sensitive areas. The Sahlin family sought an order partitioning the land into four parcels, with two non-contiguous lots awarded to each party, as per the plan known as Map 1. The Trust took the position that the whole of the lands should be sold on the open market, where the Trust would seek to purchase it for conservation purposes. Alternatively, the Trust was agreeable to

another plan of partition submitted by the Sahlin family known as Map 3, which divided the land into three lots, with the two non-contiguous lots awarded to the Sahlin family. The chambers judge divided the land pursuant to Map 1. The Trust appealed on the basis that the judge should have exercised his discretion in favour of an order of sale. Alternatively, the Trust submitted that the land should be divided as per Map 3. In addition, and notwithstanding its alternative position, the Trust argued that there was no statutory jurisdiction to divide a property into more than two lots when there were only two co-owners. for the fair and efficient resolution of the common issues in dispute. Further, the trial judge found that the appellants had failed to show a workable litigation plan. He therefore dismissed the application for certification.

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Steele v. Toyota Canada Inc. (cont.)

The appeal was dismissed. The Court of Appeal determined that the chambers judge did not err in concluding there was good reason not to order the sale of the land. The factors underlying the judge’s conclusion included the Sahlin family’s longstanding connection to the property, the family’s desire to use the land in a manner which

respected its ecological and environmental sensitivities, and the risk that an order of sale would expose them to a third-party purchaser who did not share the same respect for those sensitivities. The trial judge further concluded that an order for partition allowed both parties to realize their objectives for the use of the property. Having regard to those factors, it could not be said that the judge was

wrong in the exercise of his discretion. He was justified in finding that partitioning the property in accordance with Map 1 was a just and equitable way of resolving this matter. The Trust did not establish any basis for interfering with that aspect of the decision. The merit of the Trust’s submissions regarding the jurisdiction to order division into more than two parcels was not addressed as its position was inconsistent with the relief sought in chambers and on appeal.

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Larkin v. Glase, 2011 BCCA 167

Areas of Law: Family Law; Custody and Access; Removal of Child from Jurisdiction Under Appeal: Justice Grauer

The appellant in this case was the father. The respondent was the mother. The parties separated in 2006. They had four children, aged 10, 12, 13 and 15. The mother retained sole custody of the children after separation. In 2008, the mother applied for a mobility order to move with the children to Prince Edward Island, to improve her employment prospects and live closer to her extended family. The application was denied, but the judge ordered the father to increase his

BACKGROUND


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spousal and child support payments in order to allow the mother and children to continue residing in Vancouver. After the order was issued, the father failed to pay spousal and child support at the level ordered by the Court. In 2010, the mother brought an action against the father contesting his noncompliance with the support order and seeking to vary the mobility order to allow her to move to P.E.I. with the children. The trial judge granted the mother’s request on grounds that the initial goal of keeping the children in

their existing environment and neighborhood could no longer be sustained due to the father’s failure to pay the ordered support. The judge concluded there had been a material change in circumstances and that moving to P.E.I. was in the best interests of the children, as the mother’s future prospects would be much brighter in P.E.I., and the enhancement of her financial security and independence would benefit the children.appearance to the appellant’s application, buto [continued on the next page] t file a statement of defence




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The appeal was dismissed. The Court of Appeal held the chambers judge did not err in making the mobility order. The trial judge did not misapply the law to the facts, did not make a palpable and overriding error in his findings of facts, and properly considered the best interests of the children. The Court further held that there was sufficient evidence that the children had suffered considerable stress as a result of the hostility and mistrust between the parties, and that the move to P.E.I. would enhance their well-being, as well


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Larkin v. Glase (cont.)

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trial, the judge held that the respondent’s injuries were caused by Mr. Hagan’s negligence. Since Mr. Hagen’s truck was insured under an owner’s certificate with the appellant ICBC, the respondent was permitted to seek payment for the judgment from the appellant. He therefore commenced an action for a declaration that the appellant was liable to him under Mr. Hagen’s insurance. The trial judge found that the appellant was liable to compensate the respondent for injuries on grounds that the “attached equipment exclusion” in section 72 of the pertinent regulations did not exclude coverage. The appellant appealed on grounds that the trial judge erred in her construction of the exclusion regulation and, in particular, in the meaning she attributed to the words “at a site”.

The appellant in this case was the Insurance Corporation of British Columbia (ICBC). The respondent was Mr. Wormell. At the time of the accident, the respondent was riding in a flatbed truck being driven by his friend, Mr. Hagen. Mr. Hagen was a log homebuilder, and owned the truck for business purposes. On the day of the accident, the respondent accompanied Mr. Hagen and another

Wormell v. Insurance Corp. of British Columbia, 2011 BCCA 111

Areas of Law: Insurance Law; Practice and Procedure; General Principles Under Appeal: Justice Loo

BACKGROUND

BACKGROUND individual to an auction yard. On the return trip Mr. Hagan stopped at the government scales for a routine inspection, and was advised that his load was too wide, that the truck was overweight, and that further documentation was required for some of the load. The respondent assisted Mr. Hagan in adjusting the load to alleviate some of the problems. While he was on top of the load, he felt the load shift, jumped out of the way, and was injured while landing. At




http://www.courts.gov.bc.ca/jdb-txt/CA/11/01/2011BCCA0166.htm

http://www.courts.gov.bc.ca/jdb-txt/CA/11/01/2011BCCA0166.htm

May 2011

The appeal was dismissed. The Court of Appeal determined the trial judge did not err in her inter-pretation of the impugned regulations. The Court found that the trial judge interpreted the regulations in accordance with the principles of interpre-tation of statutes and insurance policies. The trial judge correctly found that the plain meaning of the words in s. 72 was that “at a site where the

attached equipment [was] being operated” meant a site such as a construction site, a building site, or some other work site, as opposed to a vehicle like that owned by Mr. Hagan.


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Wormell v. Insurance Corp. of British Columbia , (cont.)

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BC Take Five May 2011

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