26 Sep Class Action Certification: Ennis v. Johnson & Johnson, 2024 BCSC 1759

Posted at 08:25h in Uncategorised

Judge: The Honourable Mr. Justice Armstrong Decision Release Date: September 23, 2024Kelly Ennis brought a class action lawsuit against Johnson & Johnson, its consumer companies, and subsidiaries under the Class Proceedings Act, alleging that the company’s talc-based product, Johnson’s® Baby Powder, contributed to the development of ovarian cancer in users who applied it perineally. Ms. Ennis, who had used Baby Powder in the genital region for most of her teenage and adult life, was diagnosed with epithelial ovarian cancer in 2021.The certification hearing faced numerous challenges. In a November 2020 decision, the court had initially allowed certification but required the plaintiff to provide additional information on the methodology to prove general causation. This was necessary to establish a plausible way to link the use of Baby Powder with the development of ovarian cancer on a class-wide basis. The plaintiff then presented an expert report from Dr. Daniel W. Cramer, a clinical epidemiologist, who opined that there was a statistically significant association between perineal Baby Powder use and epithelial ovarian cancer.Justice Armstrong considered whether this evidence met the standard required for certification. Dr. Cramer’s methodology highlighted various risk factors, including menopausal status and hormone therapy, and compared these against the average increased risk presented by Baby Powder use. He suggested that the carcinogenic pathway of talc was similar to that of asbestos, causing chronic inflammation and DNA damage. Despite the defendants’ experts countering that ovarian cancer consists of different types with distinct causes and characteristics, the court found Dr. Cramer’s methodology to be a realistic means to test general causation.Although the defendants argued that individual factors like genetics and lifestyle would still dominate any causation analysis, the court concluded that the class could be certified for those who used Baby Powder perineally and were subsequently diagnosed with epithelial ovarian cancer. However, the...

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26 Sep Use of Police Force: Sidhu v. Vancouver (City), 2024 BCSC 1735

Posted at 08:14h in Uncategorised

Judge: The Honourable Justice Elwood Decision Release Date: September 19, 2024Summary of the Incident: Ayisha Sidhu was involved in a street fight outside a nightclub in Vancouver's Granville Entertainment District, which began when an unidentified woman, Ms. X, attacked her group of friends. As Ms. Sidhu tried to defend herself and her friends, the situation escalated, and Vancouver Police Department (VPD) officers, including Constable Matt Oliver, intervened. During the altercation, Ms. Sidhu was taken to the ground twice, and she claimed that Constable Oliver's use of force was excessive and caused her injuries. Ms. Sidhu also alleged that she was unnecessarily restrained with handcuffs at the hospital, which further violated her rights.Summary of the Key Legal Principles: The court analyzed whether the police actions were justified under Section 25(1) of the Criminal Code, which permits police to use necessary and proportionate force in enforcing the law. The assessment was based on a three-part test: (1) whether the officer’s conduct was required or authorized by law, (2) whether the officer acted on reasonable grounds, and (3) whether the force used was necessary and proportionate. This analysis considered both the subjective beliefs of the officers at the moment and an objective assessment of their reasonableness given the circumstances.Findings on Necessity and Proportionality of Actions:Use of Force #1: During the initial scuffle, Constable Oliver grabbed Ms. Sidhu and pulled her away from Ms. X to stop the fight. Ms. Sidhu did not comply with his commands to stop, so he briefly lost balance and dropped her to the ground. The court found this use of force necessary and proportionate given the chaotic situation and Ms. Sidhu’s resistance. Use of Force #2: After separating Ms. Sidhu and Ms. X, Constable Oliver held Ms. Sidhu by her wrist and neck, and fearing she might re-engage in the fight, took...

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18 Sep Bevan v. Husak (2024 BCCA 323): Negligent Infliction of Mental Suffering

Posted at 12:23h in Uncategorised

In Bevan v. Husak the Court of Appeal addressed the plaintiff's claim for negligent infliction of mental suffering, ultimately allowing the appeal and reinstating the claim. The lower court had previously struck out the claim, finding insufficient proximity between the parties to establish a duty of care. The lower court had reasoned that Mrs. Bevan's psychological harm resulted from what happened to her daughter Katelin, not from Husak’s conduct itself.However, the Court of Appeal found that the chambers judge applied an overly narrow interpretation of proximity and foreseeability. The appellate court clarified that in claims for negligent infliction of mental suffering, a duty of care can arise if it is foreseeable that the plaintiff would suffer emotional distress as a result of the defendant’s negligent conduct. Given that Husak's misrepresentations led to Mrs. Bevan leaving her daughter in his care, it was foreseeable that Mrs. Bevan could experience mental harm upon discovering her daughter was harmed while in Husak's custody.The Court of Appeal emphasized that Mrs. Bevan’s emotional distress claim was not based on distant consequences, but on the direct results of Husak’s actions, specifically his misrepresentations and failure to protect Katelin. This was sufficient to establish an arguable claim for the tort of negligent infliction of mental distress. To be clear: the Court of Appeal did not find the plaintiff's claim was successful, merely that it did not "have no prospect of success whatsoever".This brief summary is provided for informational purposes only and should not be relied upon for any legal purpose....

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18 Sep Case Summary: Roberts v. Colbourne (2024 BCSC 1720)

Posted at 12:11h in Uncategorised

The Honourable Justice S. Ramsay presided over this case, with judgment delivered on September 17, 2024. The plaintiff, Jennifer Roberts, was involved in two motor vehicle accidents. The first accident on September 17, 2012, was caused by the defendant, Joel Kenneth Colbourne, who rear-ended Roberts. The second accident occurred on August 18, 2017, involving an RCMP vehicle. The injuries from the first accident were aggravated by the second. Roberts was also diagnosed with rheumatoid arthritis (RA) during this period, complicating her overall recovery. Both defendants admitted liability, and the case focused on the assessment of damages.Roberts’ injuries included chronic pain in her neck, shoulders, and back, as well as driving-related anxiety. The court found that the second accident exacerbated her pre-existing injuries, and while her RA was unrelated to the accidents, it complicated her recovery. A key legal question was whether the injuries from both accidents were divisible or indivisible, with the court ruling them largely indivisible due to the aggravating effects of the second accident.Damages Awarded:Non-pecuniary damages: Initially assessed at $140,000, these were reduced by 5% due to the plaintiff’s failure to seek timely treatment, resulting in a final award of $133,000. The court considered her chronic pain, anxiety, and the significant impact on her daily life, including her inability to perform household duties or engage in activities she previously enjoyed. Past loss of earning capacity: The court awarded $36,000 for the period between the first and second accidents. Roberts was found to have reduced earning potential due to her injuries, though she was able to work part-time. For the period after the second accident, an additional $24,000 was awarded, reflecting the continued impairment of her ability to work. Future loss of earning capacity: Roberts was awarded $73,000 for her reduced ability to work in the future. The...

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16 Sep Case Summary: Roth v. Cape Scott Cedar Products Ltd. (2024 BCSC 1431)

Posted at 11:00h in Uncategorised

This case was overseen by the Honourable Justice Kirchner, with judgment issued on August 7, 2024. Karen Roth, the plaintiff, was rear-ended by a truck owned by Cape Scott Cedar Products Ltd., and driven by Theodore Deveau on October 22, 2015. The collision occurred on the Island Highway near Nanoose Bay. Ms. Roth sustained soft tissue injuries, including neck and lower back pain, and claimed to have suffered a concussion, resulting in cognitive issues affecting her capacity to work. The defendants admitted liability for the accident but disputed the severity of the claimed injuries.Ms. Roth, employed at Waypoint Insurance at the time of the accident, experienced significant cognitive challenges post-accident, particularly with concentration and noise tolerance, which impacted her job performance. Despite attempts to return to her role, she left the position in 2017. She later retrained as a pharmacy technician and now works part-time at Parksville Pharmacy. While her condition has improved, she still struggles with chronic pain and occasional cognitive difficulties in busy environments.Damages Awarded:Non-Pecuniary Damages: Ms. Roth was awarded $95,000 for her chronic pain and cognitive impairments, which continue to affect her quality of life, including her ability to enjoy social activities and physical hobbies . Past Loss of Earning Capacity: The court awarded $60,000 for Ms. Roth’s loss of earnings during the period between her departure from Waypoint Insurance and her transition into pharmacy work. The defendants acknowledged some level of past impairment but argued her decision to leave Waypoint was not solely due to the accident . Future Loss of Earning Capacity: Ms. Roth was awarded $65,000, reflecting her reduced capacity to work a full five-day week. The court considered her ability to continue working in a supportive environment, but recognized that she could not maintain full-time employment due to ongoing pain and cognitive...

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16 Sep Case Summary: Federico v. Viveros (2024 BCSC 1689)

Posted at 10:45h in Uncategorised

The Honourable Madam Justice D. MacDonald presided over Federico v. Viveros (2024 BCSC 1689), with judgment released on September 11, 2024. The plaintiff, Ida Federico, was involved in a motor vehicle accident on January 2, 2018, where the defendant, Carlos Riascos Viveros, collided with her vehicle in Vancouver. Liability was admitted by the defendant, and the case focused on the extent of Ms. Federico’s damages, including both physical and psychological injuries.Ms. Federico suffered from myofascial pain, headaches, and Post-Traumatic Stress Disorder (PTSD) as a result of the accident, as well as depressive symptoms and panic attacks. While she experienced some improvement through therapy, her symptoms, particularly the psychological ones, were expected to persist long-term. Medical experts testified that her prognosis for a full recovery was poor, especially given her chronic pain and emotional impairments.The court concluded that Ms. Federico’s injuries were directly caused by the accident - awarding  $190,000 in non-pecuniary damages for chronic pain, PTSD, and their effects on her family and professional life.Prior to the accident, Ms. Federico earned between $76,783 and $94,028 annually while working for Gallo Wines. After the accident, her physical and psychological challenges diminished her motivation and productivity, although she continued working for over two years post-accident without a significant income reduction. When she transitioned to real estate after being laid off during the COVID-19 pandemic, her earnings dropped, partially due to anxiety and mental health struggles. The court awarded $20,000 in damages for her diminished earning capacity in 2022 and 2023, with an additional $7,500 for 2024. For future loss of earning capacity, expert testimony suggested that her PTSD could trigger relapses, further limiting her work potential. The court estimated her future loss at $400,000, accounting for a 30% reduction in her earning potential until retirement at age 65.This brief summary is provided...

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10 Sep Will Variation Case: Kan v. Cheong (2024 BCSC 1633)

Posted at 13:28h in Uncategorised

In Kan v. Cheong, 2024 BCSC 1633, Justice Warren presided over a wills variation case brought by Celina Kan, who challenged her father’s will under section 60 of the Wills, Estates and Succession Act (WESA). The plaintiff, Celina, was one of three biological daughters of the testator, Tat Kuan Cheong. When Celina was four, she was sent to live with her aunt and uncle in Hong Kong, while her sisters, Ina and Sophia, remained with their father. This early separation led to a distant relationship between Celina and her father.In his will, Tat Kuan left Celina $10,000 USD, referring to her as his “niece.” Meanwhile, the residue of his estate, worth approximately $730,000 CAD, was to be divided equally between Ina and Sophia. Celina claimed the bequest was inadequate and sought an equal share of the estate’s residue. Initially, Ina and Sophia argued that Celina had no standing to challenge the will, claiming she had been adopted by their aunt and uncle. However, this was later conceded, and Celina was recognized as a "child" under WESA.The court examined whether the will had made adequate provision for Celina. Justice Warren found that, despite the distant relationship, the breakdown in father-daughter ties was due to Tat Kuan’s decision to relinquish his parental role. The court determined that this did not absolve him of his moral duty to Celina. The $10,000 bequest was deemed inadequate, and there was no valid reason for the significant difference between what Celina and her sisters were left.The court varied the will to award Celina a one-third share of the residue of the estate, equal to her sisters’ shares.NOTE: This brief summary is provided for informational purposes only and should not be relied upon for any legal purpose. ...

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10 Sep Tommy v. 7-Eleven Canada, Inc. (2024 BCSC 1558)

Posted at 08:09h in Uncategorised

Tommy v. 7-Eleven Canada, Inc., 2024 BCSC 1558 was decided by The Honourable Madam Justice Burke on September 4, 2024. The case involved Crystal Leanne Tommy, who was injured on May 2, 2018, after tripping in a pothole at a 7-Eleven parking lot in Smithers, BC. On her way to work, Ms. Tommy stopped for coffee and, as she exited the store, she fell and fractured her ankle in three places, resulting in a distal fibula fracture, a lateral talar dome osteochondral injury, and an anterior distal tibia fracture. These injuries led to significant complications, including chronic pain, swelling, and impaired mobility.The central legal issue was whether 7-Eleven was negligent under the Occupiers Liability Act. Ms. Tommy contended that the store had failed to maintain the parking lot in a safe condition, causing her accident. The defendant argued that the pothole was minor and that they had a reasonable system of inspection in place. However, the court found that no evidence was presented to show that inspections or maintenance were properly followed at the time of the accident. As a result, Justice Burke concluded that 7-Eleven was liable for the plaintiff's injuries.One key issue was whether the ankle injury contributed to a second fall on December 25, 2018, when Ms. Tommy slipped on icy stairs and injured her back. The court found that her ongoing mobility issues from the ankle injury, including a pronounced limp, materially contributed to this second fall. Justice Burke noted that, while the icy conditions played a role, Ms. Tommy's impaired ability to walk, caused by her ankle injury, was a significant contributing factor. The court accepted her testimony that the limp had developed after the initial accident, and the pain and instability in her ankle made it difficult for her to navigate stairs, thereby aggravating...

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09 Sep Baragar v. Bowers (2024 BCSC 1656)

Posted at 12:24h in Uncategorised

Judgement in Baragar v. Bowers (2024 BCSC 1656) was recently issued on September 6, 2024. This case concerned a plaintiff, Darcy Baragar, who was rear-ended in January 2018 while driving his Volkswagen Jetta, resulting in significant injuries. At the time, Baragar, a truck driver and certified welder, was on his way to a welding project at Crofton Mill. The defendant, Trevor Bowers, argued that the accident was unavoidable, but Justice Hoffman found Bowers solely liable for failing to keep a proper lookout despite driving on a well-lit highway.Baragar’s injuries included a concussion and long-term post-concussive symptoms, which severely impacted his ability to work in physically demanding roles, such as welding and metal fabrication. Before the accident, Baragar had secured employment with Seaspan, a shipbuilding company, which offered stable work and strong benefits. However, due to his injuries, he was unable to continue working at Seaspan or in similar physically demanding jobs. The court accepted the testimony of medical experts that Baragar’s symptoms were unlikely to fully resolve, affecting his long-term work capacity.The court awarded $778,870.20 in total damages. This included $233,796 for past income loss and $283,000 for future loss of earning capacity, calculated using a capital asset approach. The court recognized that, absent the accident, Baragar would have likely continued in a well-paying position at Seaspan or a similar job. Additionally, $28,237 was awarded for future care costs to cover therapy and necessary medical treatments. The court's findings on Baragar's work history and the physical nature of his previous jobs played a critical role in determining his future earning capacity.Please note this brief summary is provided for informational purposes only, and ought not to be relied upon for legal purposes....

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17 Nov Class Action Discontinued

Posted at 13:21h in Uncategorised

Please note that the proposed class action lawsuit Sondermann v. PR Seniors Housing Management 2 Ltd. D.B.A. Retirement Concepts et. al., brought pursuant to the Alberta Class Proceedings Act, has now been discontinued. Any persons who believed they may have had a claim through this lawsuit, if successful, should promptly seek legal advice.Attached is a copy of the filed order which discontinues this proposed class action lawsuit.Sondermann Order...

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