IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130306

Docket: M100748

Registry:
Vancouver

Between:

Matthew Van Gils

Plaintiff

And

Louis Grandmaison
and Pannu Bros. Trucking Ltd.

Defendants

Before:
The Honourable Mr. Justice Schultes

Oral Reasons for Judgment

[1]            
This is an application by the plaintiff, Mr. Van Gils, for an
advance on the damages that he expects to receive in his motor vehicle accident
trial. Mr. Van Gils was injured in that accident on April 26, 2008. Liability
for it has been admitted by the defendants.

[2]            
The first trial date was set for February of this year. It was set for
eight days. At the trial management conference, I adjourned that date when it
emerged that the number of witnesses that would be called would likely extend the
trial too far beyond the original number of days for the trial schedule to be
able to accommodate it.

[3]            
Mr. Van Gils’ counsel had made efforts to shorten his witness list
to try to fit within ten days, which could still have been accommodated, but
the defendants then decided that they would need to call additional witnesses,
which made Mr. Van Gils’s attempts to fit within the available time academic.

[4]            
By consent (in order to preserve my jurisdiction to hear this
application based on proper material at a later date) I made an order at the
time of the adjournment that an advance of damages would be a term of ordering
it, in an amount to be assessed. Of course the amount assessed could be zero,
so that did not commit counsel for the defendants to agreeing to a specific
award.

[5]            
It is common ground that the governing the authority is the decision of Mr. Justice
Macfarlane in Serban v. Casselman (1995), 2 B.C.L.R. (3d) 316 (C.A.)
leave to appeal ref’d [1995] S.C.C.A. No. 120.

[6]            
The often-cited passage is at para. 11:

While such orders are often made
when the adjournment was brought about through the fault of one party or where
the conduct of the litigation demands such an order, the rule is not restricted
to matters of that kind. It is obvious that an order for advance payments
should only be made in special circumstances. Obviously such an order should
not be made unless the judge who makes it is completely satisfied that there is
no possibility that the assessment will be less than the amount of the advance
payments.

[7]            
 I think that the current situation meets the requirement of “special
circumstances”. This trial was adjourned at the direction of the Court,
pursuant to the Supreme Court Civil Rules, because it would exceed the
original estimate and the trial schedule could not absorb that excess.

[8]            
Based on the material that I had at the trial management conference, I
would not have been able to attribute any lack of care or diligence to either
counsel for the increase in trial length since it was originally set. Mr. Van
Gils’ counsel advised that he had set it for eight days in the specific
anticipation that, if his estimate were to be exceeded slightly, the schedule
can usually still accommodate a trial of up to ten days.

[9]            
When the estimate grew to potentially exceed that upper limit, he was still
engaged in pruning his witness list when the defendants concluded that it was
appropriate to add further witnesses. Neither approach is unusual in the course
of trial preparation and neither is deserving of criticism.

[10]        
The penalty for an incorrect estimate is an extremely serious one: a
court-compelled adjournment at the trial management conference if the schedule
cannot accommodate the new time estimate.

[11]        
While this might be an appropriate deterrent for counsel who give their
original estimates carelessly or who grossly underestimate the time required,
it falls harshly on litigants and counsel whose original estimate was not unreasonable
and whose requirement for additional time is based on changing circumstances as
the trial grows closer.

[12]        
In addition, the material shows that Mr. Van Gils is in financial
difficulty and will now have to wait until sometime in September of 2014 (the
earliest date that a new trial can be set in accordance with counsel’s
calendars and court availability) to find out what damages he will be entitled
to.

[13]        
 I must also be "completely satisfied" that there is "no
possibility" that damages could be awarded in a lower amount than any
advance. This is not in any way a prediction of the possible outcome of the
trial, which is an impossible task in any event at this stage and on this
material. Rather, it is a negative assessment — identifying the point below which
it is certain that the damage awards will not fall.

[14]        
The heads of damages in issue for this case will be for pain and
suffering, loss of capacity to earn income, cost of treatment and special costs.
In addition, significant costs and disbursements for the preparation of the
case thus far have been incurred, in the range of almost $27,000.

[15]        
I will deal with that last item first, because the answer to it is clear.
Absent evidence that the costs and disbursements were incurred by Mr. Van
Gils personally, rather than on his behalf by his counsel pending any award of
damages, it is not possible for me to reflect them in any advance payment. I
accept that an adjournment like this one also works a hardship to a plaintiff’s
counsel, who has to carry such significant expenses for longer than originally
anticipated, but the vehicle of an advance award to a plaintiff is not a
suitable one for addressing it.

[16]        
Mr. Van Gils has given an affidavit describing in detail how the
accident and the recent adjournment have affected his situation.

[17]        
He described himself as being physically active and in good shape before
the accident. He was a lumber mill worker for many years and except for an
ankle injury that landed him on disability for about eight months beginning in
2005, he was always physically able to fulfil the requirements of his job.

[18]        
His earnings in the last few years prior to the end of that employment
were somewhere in the range of $24 to $27 an hour, a good hourly wage. The mill
he was working at shut down at the end of 2007. He took advantage of a
self-employment program available through employment insurance and started a
business with his wife making jewellery for pets, taking advantage of her
significant jewellery-making experience. He was a full-time participant in this
program and had his benefits extended in early 2008 to allow him to develop the
business.

[19]        
The plan was for him and his wife to work at part-time jobs when
necessary until the business was sufficiently advanced to support them both. He
deposes that the motor vehicle accident in April of 2008 prevented him from
devoting his efforts fully to the business. To make matters worse, his wife was
herself severely injured while doing her fall-back job as a restaurant server
in November of 2008.

[20]        
Mr. Van Gils says that his accident symptoms prevent him from being
able to return to any of the physically demanding types of mill jobs for which
he is otherwise qualified. Instead, his post-accident work has been part-time
doing odd jobs, followed by ongoing work as a security guard, with some
tentative forays into the work of financial advice and insurance sales. That
last type of employment has been limited, because developing clients in
financial and insurance work is time-intensive, and he still needs the
certainty of ongoing income. As a result he has had to stick mainly with the relatively
poorly-paid security work. Overtime work in security, by which he was
previously able to increase his earnings in that field, is no longer available
to him.

[21]        
His wife has significant expenses due to her ongoing serious medical
problems. For various reasons, he is now about $40,000 in debt. He deposes that
the delay of the trial caused by the adjournment threatens his ability to
survive financially. He raised the possibility of bankruptcy, which he does not
want to pursue.

[22]        
Mr. Van Gils has also attached reports from the medical expert
witnesses who he will call at trial.

[23]        
His family doctor diagnosed myofascial sprain-type injuries to the
cervical, dorsal and lumbar spine, and an ankle sprain. Mr. Van Gils
continues to suffer pain to his neck, back, head and right ankle as well as
anxiety, according to that doctor’s report.

[24]        
Dr. Jaworski, his physiatrist, diagnosed Mr. Van Gils as
having chronic myofascial pain syndrome and described his prognosis as guarded.
Mr. Van Gils took four sessions of psychotherapy based on Dr. Jaworski’s
recommendation. These were a positive experience for him, but he stopped when
ICBC refused to fund any more of them.

[25]        
Dr. Helper, another physiatrist, also diagnosed myofascial pain
syndrome, as well as thoracic outlet syndrome, mechanical neck pain, and an
aggravation by the accident of Mr. Van Gils’ pre-existing ankle injury. Among
other treatments, Dr. Helper recommended a left-sided block to the cervical
joints.

[26]        
Dr. Lau, a specialist in pain management, described a litany of
symptoms that have been experienced by Mr. Van Gils as a result of the
accident, including: ongoing headaches; pain to his upper neck, upper back,
left arm and ankle; as well as poor sleep and ongoing stress. Dr. Lau’s
opinion is that Mr. Van Gils has not reached maximum medical improvement,
and she recommends intramuscular stimulation, prolotherapy and the pain
medication Nabilone.

[27]        
Mr. Cheesman, an occupational therapist, assessed Mr. Van Gils
and found that he no longer has the functional capacity to work in any of the
mill or heavy manufacturing types of work at which he was employed in the past.
Mr. Cheesman recommends physical therapy and an ergonomic assessment for Mr. Van
Gils.

[28]        
The significant costs of the treatments that have been recommended by
the experts were also included in the material. Potentially they run into many
thousands of dollars. Mr. Van Gils has also documented slightly under
$2,600 in out-of-pocket expenses so far.

[29]        
In very dramatic contrast to these opinions are the reports of the
defendants’ expert, Dr. Boyle, an orthopedic surgeon. In his opinion, Mr. Van
Gils suffered myofascial strains to the cervical and lumbar spine areas in the
accident. Dr. Boyle believes that the likelihood is of a full resolution of
symptoms, and if that does not occur then the remaining symptoms would not be
disabling. In essence, he describes limited ongoing symptoms that may improve
over time.

[30]        
Dr. Boyle did not resile from this opinion through two
supplementary reports, despite his having access to the plaintiff’s expert
medical opinions that I have summarized. Specifically he rejects the diagnosis
of thoracic outlet syndrome or the theory that the accident aggravated any of Mr. Van
Gils’s pre-existing back problems.

[31]        
Obviously if Dr. Boyle’s opinion holds sway at trial, there will be
no need for compensation in relation to pain and suffering or treatment, beyond
what he identifies as a reasonable period for the resolution of the acute
symptoms. Nor would there be any ongoing interference with Mr. Van Gils’s earning
capacity beyond the identified period.

[32]        
Taking into account what are alleged to be the debilitating, ongoing and
chronic symptoms, the high cost of treatments and the need for supports to
ameliorate his suffering, the significant interference with earning capacity
and his current dire financial situation, Mr. Van Gils’ counsel submits
that a very substantial award can reasonably be anticipated at trial, and that
an advance on it now in the range of $40,000 is quite appropriate.

[33]        
In response, counsel for the defendants in response points to critical
conflicts in the evidence concerning the “severity, chronicity and prognosis”
of Mr. Van Gils’ injuries, as he described them. The defendants will also
argue at trial that:

·      
Mr. Van Gils failed to mitigate his losses by pursuing useful
treatments;

·      
there are inconsistencies in his reporting of the effects of the
accident to third parties;

·      
there is a conflict even among Mr. Van Gils’ own experts
about whether future treatment will do him any good;

·      
there is a significant doubt in about whether Mr. Van Gils
would ever have returned to the type of mill or heavy manufacturing work that
he now claims the accident has placed beyond his capacity; and

·      
there is a real question as to whether Mr. Van Gils’
developing business with his wife was actually viable, quite aside from any effects
of his injuries.

[34]        
In addition counsel submits that awards for the kinds of pain and
suffering that are actually present here are only in the range of $10,000 to
$15,000.

[35]        
In short, the defendants’ position is that there is significant
uncertainty about the outcome of this trial and, in view of the standard in Serban
v. Casselman, great caution should be exercised in any amount that is
advanced.

[36]        
The cases relied on by the defendants for non-pecuniary damages seem to
me to represent the very low end of the range of awards for the injuries that
they contend Mr. Van Gils actually suffered. However they are all fully-reasoned
decisions, and all but one come from this Court, and I accept that they
represent a worst-case scenario for Mr. Van Gils if the defendants’
medical evidence is preferred, if credibility concerns arise from the alleged
contradictions in his reporting, or there is an acceptance of some failure on
his part to mitigate.

[37]        
Adhering to the extreme caution and the negative analysis mandated by Serban
v. Casselman, I award an advance on non-pecuniary damages of $15,000.

[38]        
The defendants conceded that some wage loss in the security guard job
resulted from the symptoms of the accident, but that has not been quantified. Doing
the best with the evidence available, I award an advance of $500 under the
heading of past wage loss.

[39]        
Nor has the quantification of special damages been questioned by the
defendants, so I feel comfortable in awarding that amount in its entirety as
claimed as an advance of $2,584.24.

[40]        
I am unable to award any advances for impairment or earning capacity,
cost of future care or loss of housekeeping capacity. The outcome of those
claims will depend on a determination of Mr. Van Gils’ credibility (and
that of any supporting witnesses) and the weight that is attributed to the
various experts in the trial. I cannot say that it is
impossible the defendants will prevail completely on those issues.

[41]        
The total advance is therefore $18,084.24.

[42]        
Costs will be in the cause.

The
Honourable Mr. Justice T.A. Schultes