IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121217

Docket: M091770

Registry:
Vancouver

Between:

Mohammed Hamed
Stanikzai

Plaintiff

And

Balwinder K. Bola
and Jaswinder Singh Bola

Defendants

Before:
The Honourable Mr. Justice N. Smith

Reasons for Judgment

[1]            
On June 8, 2012, I gave judgment for the plaintiff in the amount of
$189,750 for injuries sustained in a motor vehicle accident on August 25, 2007.
That amount reflected a 25 per cent reduction for contributory negligence: 2012
BCSC 846.

[2]            
 The plaintiff now seeks special costs, while the defendant seeks a
deduction from the award for benefits paid or payable under Part 7 of the Insurance
(Vehicle) Regulation, BC Reg 447/83 [Regulations], the regulations to
the Insurance (Vehicle) Act, RSBC 1996, c 231 [Act].

Costs

[3]            
The plaintiff seeks special costs primarily because the defendant driver
Balwinder Bola refused to be examined for discovery. On May 27, 2011, Ms. Bola
failed to appear at an examination for discovery. No explanation was offered at
the time, but when asked at trial why she had not appeared, Ms. Bola simply
said she had been too busy.

[4]            
Counsel for the plaintiff took no immediate steps in response to the
non-appearance, but attempted to schedule another examination for discovery in
February 2012, shortly before the trial that was to begin on March 19, 2012. When
the office of defence counsel attempted to contact Ms. Bola, her husband (who
is the other named defendant as owner of the vehicle) said she was out of the
country and would not return until after the trial. That information was
communicated to counsel for the plaintiff, who proceeded to trial without the
benefit of an examination for discovery.

[5]            
In fact, Ms. Bola was not out of the country and appeared at trial. She testified
that she knew nothing about the false information that had been given to
defence counsel.

[6]            
Parties to civil litigation are required by R. 7-2(1) of the Supreme
Court Civil Rules, to make themselves available for examinations for
discovery. It is not something a litigant can choose to do or not do on the
basis of her own convenience. If Ms. Bola was unable to attend the examination
on the day it was set, her obligation was to notify her counsel and discuss
alternate dates. Instead, she simply failed to show up.

[7]            
I also find it difficult to believe that she had no knowledge of the
false information her husband was apparently providing to defence counsel when
a second discovery was requested. Ms. Bola showed a complete and unacceptable
disregard for her duties under the law. I stress this was not the fault of
defence counsel, who attempted to get her cooperation.

[8]            
Counsel for the plaintiff was clearly left at a disadvantage in having
to cross-examine Ms. Bola at trial without the benefit of discovery, but that
likely had no effect on the result. My findings on both the defendant’s
liability and the plaintiff’s contributory negligence were based primarily on
the evidence of an independent witness. I also note that the problem could have
been dealt with by an application to compel the defendant’s attendance at
discovery immediately after her initial non-appearance.

[9]            
Special costs are awarded when a party has been guilty of “reprehensible
conduct”. That term includes conduct that is scandalous or outrageous, but also
includes “milder forms of misconduct deserving of reproof or rebuke”: Garcia
v Crestbrook Forest Industries Ltd, (1994) 9 BCLR (3d) 242 at para 17
(BCCA). The decision on whether to order special costs is “highly
discretionary” and specific to the facts of the individual case: Li v Huang,
2007 BCSC1806 at para 3.

[10]        
I find that the defendant’s refusal to appear at discovery meets the
definition of “reprehensible conduct” and I would not hesitate to award special
costs if I thought that conduct had affected the outcome of the trial. But, in
the specific circumstances of this case, I find that there is another, more
proportionate rebuke available.

[11]        
Under normal circumstances the plaintiff, having been found 25 per cent
responsible for the accident, would recover only 75 per cent of his costs. This
arises from s. 3(1) of the Negligence Act, RSBC 1996, c 333:

3 (1) Unless the court otherwise
directs, the liability for costs of the parties to every action is in the same
proportion as their respective liability to make good the damage or loss.

[12]        
Although payment of costs in proportion to the degree of liability is
the default rule, the court has discretion to depart from it. That departure
must be for reasons connected with the case, with the principle consideration
being whether application of the usual rule will result in an injustice: Moses
v Kim, 2009 BCCA 82 at para 70.

[13]        
In these circumstances, I find that the interest of justice can best be
served by depriving the defendants of the reduction in costs that they would otherwise
benefit from and I award the plaintiff the full costs of this action.

Part 7 Deductions

[14]        
The award to the plaintiff included amounts for past income loss and cost
of future care. The defendants seek to deduct $14,825.40 for benefits in
respect of employment insurance as well as future physiotherapy treatments and
fitness programs. The Act and Part 7 of the Regulations provide
for payment of certain disability, medical and rehabilitation benefits. Where a
plaintiff has been awarded a judgment, deductions are to be made for benefits
the plaintiff has received or is entitled to receive.

[15]        
 In Li v Newson, 2012 BCSC 675 at para 14, Abrioux J. summarized
the governing principles relevant to an application for deduction of benefits. Those
applicable to this case are:

(a) the defendant bears the onus of proving that the
plaintiff is entitled to the benefits which the defendant seeks to deduct …;

(b) strict compliance with the statute is required …; [and]

(c) uncertainty as to whether a Part
7 benefit will be paid must be resolved in favour of the plaintiff …[.]

[16]        
 Section 80 of the Regulations provides for payment of benefits
when, as a result of injuries sustained in accident, an employed person is
totally disabled from work, up to a maximum of 104 weeks. However, s. 83 says:

83 Where an insured who is also an insured person under
the Employment Insurance Act (Canada) is injured, the corporation is not
liable to pay benefits under this Part for the injury, notwithstanding that the
insured, his spouse or personal representative has elected not to claim or has
forfeited the insured’s claim under the Employment Insurance Act
(Canada) for the injury, except to the extent that the amount of any benefit
payable under this Part exceeds the amount that would be payable to the
insured, his spouse or personal representative under the Employment
Insurance Act (Canada) for the same injury.

[17]        
The defendants argue that the plaintiff was entitled to receive
employment insurance benefits totalling $6,870 for the period from September 8
to December 28, 2007. That calculation is contained in an affidavit of an
Insurance Corporation of British Columbia (ICBC) adjuster, who simply states
that the plaintiff was an insured person under the Employment Insurance Act,
SC 1996, c 23. No evidence is provided in support of that bald assertion.

[18]        
The evidence at trial was that the plaintiff was an independent
contractor who delivered certain food products to retail stores using his own
vehicle and was responsible for paying any helpers or replacements he required.
To the best of my recollection, there was no evidence that he was eligible for employment
insurance or that premiums were deducted from the payments he received from the
employer. There is no evidence on this application that the employment insurance
authorities would have accepted any claim for benefits the plaintiff might have
made. The defendants have not met the onus of proving that this deduction is
appropriate.

[19]        
The other deductions the defendants seek relate to benefits payable
under s. 88 of the Regulations, which reads in part:

88 (1) Where an insured is injured in an accident for which
benefits are provided under this Part, the corporation shall, subject to
subsections (5) and (6), pay as benefits all reasonable expenses incurred by
the insured as a result of the injury for necessary medical, surgical, dental,
hospital, ambulance or professional nursing services, or for necessary physical
therapy, chiropractic treatment, occupational therapy or speech therapy or for
prosthesis or orthosis.

(2)  Where, in the opinion of the corporation’s medical
adviser, provision of any one or more of the following is likely to promote the
rehabilitation of an insured who is injured in an accident for which benefits
are provided under this Part, the corporation may provide any one or more of
the following:

…

(e) funds to the insured for
vocational or other training that

(i)  is consistent with the
insured’s pre-injury occupation and his post-injury skills and abilities, and

(ii)  may return the insured
as nearly as practicable to his pre-injury status or improve the post-injury
earning capacity and level of independence of the insured;

(f) funds for any other costs
the corporation in its sole discretion agrees to pay.

(3)  Before incurring an
expense or obligation under subsection (2) for which the insured intends to
request payment by the corporation, the insured shall obtain written approval
from the corporation and the corporation may, before giving its approval,
require the insured to submit such information as it considers necessary to
assist it in making a decision.

[20]        
Some benefits are therefore mandatory under s. 88(1), while others are
discretionary under s. 88(2). Physiotherapy is a mandatory benefit and the
affidavit from the adjuster says that “ICBC will pay” for two physiotherapy
sessions a year for 18 years at a cost of $17.65 a session, totalling $635.40.

[21]        
I agree that a deduction for physiotherapy is required and rely
particularly on the adjuster’s clear statement under oath that ICBC will
pay for these treatments. That is one factor that distinguishes this case from Paskall
v Scheithauer, 2012 BCSC 1859, where an adjuster merely said that he
“expects” the corporation to pay certain benefits in the future.

[22]        
However, I note that the adjuster has calculated the total deduction
simply by multiplying the cost of a single physiotherapy session by the number
of sessions over an 18 year period. An award for cost of future care is made on
the basis of the present value of the goods and services that will be required
over the relevant period. The amount that the defendant is entitled to deduct
should be similarly discounted to reflect the present value of those future
payments. I leave it to counsel to agree on that calculation.

[23]        
The defendant seeks a further deduction of $7,320 for
kinesiology/trainer fees, for 8 sessions a year for 18 years. This appears to
arise from para 61 of my judgment in which I accepted evidence that the
plaintiff “will likely obtain some relief and improve his functional ability
through a reconditioning program and ongoing work with a trainer knowledgeable
in kinesiology.”

[24]        
In her affidavit, the adjuster says that such a fitness program is “similar
to physiotherapy” and therefore a mandatory benefit under s. 88(1). I cannot
accept that assertion. Section 88(1) refers to “physical therapy”, which
presumably means therapy by a licensed physiotherapist. It also refers to
certain other specific forms of therapy. It does not refer to services by other
professionals that may be “similar” to the named therapies.

[25]        
Having regard to the requirement for strict compliance with the Act and
its Regulations, the training program is not a mandatory benefit under
s. 88(1). I accept that it could qualify as a discretionary benefit under s.
88(2), but under that section an opinion from “the corporation’s medical
advisor” is a precondition to payment. There is no evidence of any such opinion.
The defendants have failed to prove a basis for that deduction.

Summary

[26]        
The plaintiff is awarded 100 per cent of his taxable costs and
disbursements. The Part 7 deduction is limited to the present value of
physiotherapy, as discussed in paras 20-22 above.

“N. Smith
J.”