Failure to examine plaintiff diminishes weight of expert report.
It is well established that failure of an ‘independent medical examiner’ to physically examine a patient is not, in and of itself, a reason for an expert report to be inadmissible in the BC Supreme Court. However, when a litigant relies on such a report the weight the court attaches to it is often negatively impacted. Reasons for judgement released by the BC Supreme Court on December 31, 2013, demonstrate this. In Johal v. Meyede the plaintiff was injured in a 2010 rear end collision. Fault was admitted by the defendant. The plaintiff suffered injuries which were ongoing at the time of...
read moreAdditional duties results in constructive dismissal.
When we think about a situation that leads to a finding of constructive dismissal, it is usually a situation where something has been taken away from an employee, such as key responsibilities, their title or earnings. However, in Damaso v. PSI Peripheral Solutions Inc., Ont. SCJ, 2013, Justice T. J. McEwen determined that an employer who gave additional duties to an employee breached the terms of the employment agreement resulting in the constructive dismissal of the employee and the award of 12 months notice. Mr. Damaso was hired for the positions of Field Service Technician and Computer...
read more$140,000 for “very serious” femur fracture.
On August 29, 2013, the BC Supreme Court assessed damages for a serious femur injury and moderate wrist in jury. In Han v. Chahal the plaintiff pedestrian was injuries when she was struck by the defendant’s vehicle while walking in a marked cross walk. The defendant was found fully responsible for the crash. The plaintiff suffered a variety of injuries the most serious of which was a fractured femur. Although the Court found some issues with the plaintiff’s reliability as a witness the Court did accept the injury left her with a degree of chronic pain and limited function. In assessing...
read moreKnock down the house of cards.
On August 23, 2013 a judge of the Supreme Court of BC held that when opinion evidence is introduced into court the factual underpinnings upon which the opinion is based must be proven, otherwise the opinion evidence is of no value. In Paller v. Regan, 2013 BCSC 1672, the plaintiff was injured in a 2009 collision. ICBC admitted the defendant was at fault but disputed the collision caused any injuries. In support of their position they relied on an orthopaedic surgeon who never examined the plaintiff but provided an opinion that it was “unlikely” the plaintiff’s injuries were caused by the...
read moreOne judge’s clarity is another’s ambiguity.
On June 4, 2013, the BC Court of Appeal reversed a trial decision in McLean v. Canadian Premier Life Insurance, 2013 BCCA 264,and in an unanimous decision allowed the appeal and held that the insured was entitled to the $1 million benefit provided by the policy. The McLean appeal decision is an interesting example of how one judge’s clarity is another’s ambiguity. The trial judge found that “the words of the contract are clear and unambiguous” and held that the loss did not come within the policy terms. Specifically, holding that at the time of the loss the deceased insured was not a...
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