Wiebe v. Wiebe, 2018 BCSC 1062

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Wiebe v. Wiebe, 2018 BCSC 1062 Date: 20180627 Docket: M147898 Registry: Vancouver Between: Janelle Joy Wiebe Plaintiff And Greg Wiebe, Peter Bruce Wiebe, Tanya MacDonell, John Alexander MacDonell and Karin Joan Blouw Defendants Corrected Judgment: The text of the judgment was corrected at paragraph [11] on July 4, 2018 Before: The Honourable Mr. Justice Tindale Reasons for Judgment Re: S. 83 Deductions Re: Costs In Chambers Counsel for plaintiff: D. Grunder Counsel for defendants: D.W. Lindsay Place and Date of Hearing: Prince George, B.C.

February 16, 2018 Place and Date of Judgment: Vancouver, B.C. June 27, 2018 [ 1 ] The plaintiff’s personal injury trial was heard on November 23-25 and November 28-30, 2016 (the “Trial”). [ 2 ] On May 30, 2017 Reasons for Judgment were released. Those Reasons for Judgment are indexed as Wiebe v.

Wiebe , 2017 BCSC 898 (the “Reasons”). [ 3 ] In the Reasons I awarded the plaintiff damages totaling $200,262 (the “Award”). [ 4 ] I said the following in the Reasons with regard to the cost of future care at paras. 235-239: [235] The plaintiff seeks an award for the cost of future care in the amount of $3000 for vocational rehabilitation services as recommended by Ms. Thompson. I have placed no weight on Ms.

Thompson’s report and as such I will not make an order with regard to the vocational rehabilitation services as recommended by her. [236] The plaintiff also seeks an award of $900 for physiotherapy as recommended by Andrew Hosking. Dr. Reddy also recommended physiotherapy. It is reasonable to award that amount to the plaintiff. [237] Finally the plaintiff seeks an award with regard to massage therapy at a cost of $80.95 per visit on a basis of 26 visits per year. The plaintiff seeks this amount for a period of 10 years.

In my view there is no basis to award this amount for 10 years. [238] The plaintiff does obtain some relief from massage therapy and I will make an order based on 26 visits per year for two years which is $4209. [239] The plaintiff is entitled to a total award under this head of damages of $5109. [ 5 ] There are two matters that the parties wish me to determine on this hearing.

[ 6 ] First, what deductions, if any, should be made from the Award pursuant to s. 83 of the Insurance (Vehicle) Act , R.S.B.C. 1996, c. 231 (the “ Act ”)? [ 7 ] Second, what costs should the plaintiff receive for the Trial? S. 83 Deductions Defendants [ 8 ] The defendants argue that the cost of physiotherapy and massage therapy that were awarded to the plaintiff as part of the cost of future care must be deducted from the Award. These costs are mandatory benefits pursuant to s. 88 (1) of the Insurance (Vehicle) Regulation B.C.

Reg. 447/83 (“Part 7”). [ 9 ] The defendants rely on the affidavit of ICBC Adjuster Terry Mann made on July 14, 2017. Mr. Mann deposes to the following at paras 11 and 12: [11] Based upon the Court awarding 18 physiotherapy visits at a cost to ICBC of $23.60 per visit, then the amount to be paid out by ICBC under

Part 7 would be $424.80, with the balance of the $900 awarded by the Court to be paid by the Plaintiff as user fees. [12] Based upon the Court awarding 52 massage therapy visits at a cost to ICBC of $23 per visit, then the amount to be paid out by ICBC under

Part 7 would be $1196, with the balance of the $4209 awarded by the Court to be paid by the plaintiff as user fees. [ 10 ] Mr. Mann further stated the following at para. 10 of his affidavit made July 14, 2017: I am authorized on behalf of ICBC to accept the decision of the Court, on causation and reasonableness, as set out in the Reasons for Judgment, and of future benefits payable under

Part 7, in place of the opinion of ICBC’s medical advisor, for the purposes of

Part 7 payments. And, in particular, in place of ICBC’s right to rely upon the opinion of the corporation’s medical advisor pursuant to sections 87 and 90 of the Insurance (Vehicle) Regulation . [ 11 ] The defendant argues that physiotherapy treatments are mandatory benefits which ICBC is obliged to pay and massage therapy benefits are included in the meaning of “physical therapy” under

Part 7: Park v. Targonski 2015 BCSC 1531 at para. 32 and Olson v. Farran 2016 BCSC 2149 at para. 60 . [ 12 ] The defendants argued that the total deductions that must be made from the Award is $1,620.80. The defendants argue that the net amount of the Award is $198,641.20 (“Net Award”).

Plaintiff [ 13 ] The plaintiff argues that there should be no deductions made from the Award for the cost of future care. [ 14 ] The plaintiff also argues that she is entitled to prejudgment interest on the past income loss and special damages. [ 15 ] The plaintiff agrees that massage therapy is subsumed in the category of physical therapy. [ 16 ] The thrust of the plaintiff’s argument is that the defendants obtained a medical report from Dr. Padilla dated January 25, 2016 in which Dr.

Padilla opined that the plaintiff would not have any future restrictions or need any medical treatments as a result of the motor vehicle accidents. The plaintiff argues that it is clear that the defendants’ position at the Trial was that physiotherapy and massage therapy are not necessary or reasonable expenses. [ 17 ] The plaintiff’s general practitioner Dr. Reddy however opined in his medical report of August 25, 2016 to the following at page 2: (

h) is my opinion, that she would require ongoing massage therapy, acupuncture or physical rehabilitation treatments to help with the mobility and discomfort that she experiences in the mid and upper back regions. She would also benefit from having a home exercise program that would help prevent her symptoms from worsening. [ 18 ] The plaintiff argues that even though benefits are considered mandatory under s. 88 (1) of

Part 7 they still must be deemed “reasonable” and “necessary” by ICBC and they must arise from the subject motor vehicle accident. The plaintiff argues that there is uncertainty as to whether these benefits will be paid because of Dr. Padilla’s opinion. [ 19 ] The plaintiff further argues that in order for a deduction to be made the treatment must be solely for rehabilitation purposes. In that regard the plaintiff relies on the decisions of Uhrovic v. Masjhuri , 2008 BCCA 462 , Li v. Newson , 2012 BCSC 675 and Kelly v.

Kotz , 2014 BCSC 1022 . [ 20 ] The plaintiff argues that the defendant bears the onus to prove that the deductions should be made and there must be strict compliance with the relevant statutes. [ 21 ] The plaintiff argues that a statement by an adjuster does not release him or ICBC from the preconditions as to entitlement under

Part 7. [ 22 ] The plaintiff argues that the award for future care is not granted solely for rehabilitation purposes and is therefore not deductible. Decision on Deductions

[ 23 ] S. 83 of the Act states:

(1) In this

section and in

section 84, “benefits” means benefits (

a) within the definition of

section 1.1, or (

b) that are similar to those within the definition of

section 1.1, provided under vehicle insurance wherever issued and in effect, but does not include a payment made pursuant to third-party liability insurance coverage.

(2) A person who has a claim for damages and who receives or is entitled to receive benefits respecting the loss on which the claim is based, is deemed to have released the claim to the extent of the benefits.

(3) Nothing in this

section precludes the insurer from demanding from the person referred to in subsection (2), as a condition precedent to payment, a release to the extent of the payment.

(4) In an action in respect of bodily injury or death caused by a vehicle or the use or operation of a vehicle, the amount of benefits paid, or to which the person referred to in subsection (2) is or would have been entitled, must not be referred to or disclosed to the court or jury until the court has assessed the award of damages.

(5) After assessing the award of damages under subsection (4), the amount of benefits referred to in that subsection must be disclosed to the court, and taken into account, or, if the amount of benefits has not been ascertained, the court must estimate it and take the estimate into account, and the person referred to in subsection (2) is entitled to enter judgment for the balance only.

(6) If, for the purpose of this

section or

section 84, it is necessary to estimate the value of future payments that the Corporation or the insurer is authorized or required to make under the plan or an optional insurance contract, the value must be estimated according to the value on the date of the estimate of a deferred benefit, calculated for the period for which the future payments are authorized or required to be made. [ 24 ] S. 78 of

Part 7 states: In this part: … “rehabilitation” means the restoration, in the shortest practical time, of an injured person to the highest level of gainful employment or self-sufficiency that, allowing for the permanent effects of his injuries, is, with medical and vocational assistance, reasonably achievable by him; …. [ 25 ] S. 88 of

Part 7 states:

(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 advisor, 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: …..

(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 a written approval from the corporation and the corporation may, before giving its approval, require the insurer to submit such information as it considers necessary to assist it in making a decision.

(4) The corporation is not liable to insure, repair, replace or maintain a motor vehicle acquired by an insured under subsection (2) (

a) except in the course of an approved repair resulting from a subsequent claim for insured loss or damage to the vehicle.

(5) The amount by which the liability of the corporation under this

section is limited is the amount set out in

section 3 of

Schedule 3.

(6) The corporation is not liable for any expenses paid or payable to or recoverable by the insured under a medical, surgical, dental or hospital plan or law, or paid or payable by another insurer.

(7) The maximum amount payable by the corporation under this

section for medical, surgical, dental, nursing or physical therapy services or for chiropractic treatment, occupational therapy or speech therapy listed in the payment

schedule established by the Medical Services Commission under the Medicare Protection Act is the amount listed in the payment

schedule for that service, treatment or therapy.

(8) The corporation is not liable to pay for more than 12 physical therapy treatments for an insured for each accident unless, before any additional treatment is given, the corporation’s medical advisor or the insured’s medical practitioner certifies to the corporation in writing that, in his opinion, the treatment is necessary for the insured.

[ 26 ] Physical therapy which includes massage therapy is a mandatory deduction pursuant to s. 88 (1) of

Part 7. I do not accept the plaintiff’s argument that in order for a deduction to be made from the Award for physical therapy those benefits must be likely to promote the “rehabilitation” of the plaintiff. That test for entitlement relates to the discretionary deductions pursuant to s. 88 (2). [ 27 ] However, s. 88 (1) as it relates to a mandatory deduction for physical therapy requires that the expense be reasonable and necessary. [ 28 ] In Li , Mr.

Justice Abrioux conveniently summarized the applicable legal principles to be applied when analysing a deduction for future cost of care items awarded by the court at para. 14: The legal principles to be applied based on a consideration of the authorities referred to above include the following;

a) the defendant bears the onus of proving that the plaintiff is entitled to the benefits which the defendant seeks to deduct ( Uhrovic v. Masjuri SC at para. 10 , referring to Lynn v. Pearson at para. 18);

b) strict compliance with the statute is required ( Uhrovic SC at para. 10 )

c) uncertainty as to whether a

Part 7 benefit will be paid must be resolved in favour of the plaintiff ( Uhrovic SC at para. 10 );

d) the ability to make this deduction is not dependent on the actual receipt of benefits by the plaintiff. Issues between the plaintiff and ICBC regarding the benefits are not relevant to the deductibility by a tort-feasor from an award to the plaintiff ( Schmitt at para. 18);

e) is it no longer a requirement that there be a match between the heads of damage for a tort award and specific heads of damage under the benefit recovery scheme ( Gurniak at para. 47);

f) the task of the court is to estimate the amount of

Part 7 benefits, if any, the plaintiff is or would be entitled to receive for the costs reflected in the future care award ( Uhrovic SC at para. 11 ). It then must make the appropriate deduction;

g) benefits under s. 88 (2) of the Regulations arise when ICBC’s medical advisor holds the opinion that the costs are “likely to promote the rehabilitation” of the plaintiff. The term “rehabilitation is defined in s. 78 of the Regulations as follows: “Rehabilitation” means the restoration, in the shortest practical time, of an injured person to the highest level of gainful employment or self-sufficiency that, allowing for the permanent effects of his injuries, is, with medical and vocational assistance, reasonably achievable by him.

h) the uncertainty of the entitlement of payment created by the Regulations may lead the court to conclude that only a nominal deduction is appropriate. Trial judges must be cautious in their approach to determining the estimate inasmuch as a reduction results in a lessening of the award in the tort action. If that is a result of uncertainty created by the Regulations, ICBC cannot be heard to complain ( Uhrovic SC at para. 9 , referring to Schmitt at paras 18-19 and 21);

i) the court is to take into account ICBC’s discretion with respect to whether certain amounts will be paid in addition to restrictions in the Regulations with respect to amounts payable ( Schmitt at para. 22). [ 29 ] There must be strict compliance with the statute (in this case the Act and

Part 7) when determining what deductions if any should be made. While I accept that it is Mr. Mann’s intention to pay the amounts awarded for physiotherapy he is bound by the preconditions as to entitlement: Kelly v. Kotz 2014 BCSC 1022 at para. 23 . [ 30 ] In order for physical therapy treatments to be considered mandatory benefits pursuant to s.88 (1) of

Part 7 these treatments must be reasonable and necessary. I determined that these treatments were necessary in the tort action. Mr. Mann has deposed that ICBC accepts the Reasons. I do not accept the plaintiff’s argument that because the defendants in the tort action relied on Dr. Padilla’s opinion there is some uncertainty as to whether ICBC will pay for these benefits pursuant to

Part 7. [ 31 ] Further Mr. Mann in his affidavit made on July 14, 2017 attached as Exhibits A and B the payments that ICBC has made on behalf of the plaintiff for physical therapy and chiropractic treatments as well as payments made on behalf of Dr. Reddy. There has been no reluctance by ICBC to pay for the physical therapy benefits. [ 32 ] The physical therapy benefits are a mandatory deduction pursuant to s. 88 (1) of

Part 7. While ICBC is bound by any restrictions as to payment in the relevant statutes Mr. Mann has expressly stated on behalf of ICBC that they will pay for these benefits. There is nothing in the evidence that would suggest that there is any uncertainty as to whether these benefits will be paid. [ 33 ] For all the above noted reasons pursuant to s. 83 of the Act I deduct $1,620.80 for the physical therapy benefits from the Award of $200,262 resulting in the Net Award of $198,641.20.

Costs [ 34 ] In the normal course the plaintiff having been awarded an amount for damages would be entitled to her costs. [ 35 ] However, on October 27, 2016 Mr. Lindsay on behalf of the defendants sent a letter by fax enclosing an offer to settle to Mr. Grunder on behalf of the plaintiff. The offer to settle was for $200,000 (“Defendants’ Offer”). [ 36 ] On October 27, 2016 Mr. Grunder sent a letter by fax to Mr. Lindsay enclosing an offer from the plaintiff to settle the action for $250,000. [ 37 ] Rule 9 - (5) of the Supreme Court Civil Rules B.C. Reg. 168/2009 states:

In a proceeding in which an offer to settle has been made, the court may do one or more of the following:

a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the preceding after the date of delivery or service of the offer to settle;

b) award double costs of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;

c) award to a party, in respect of all or some of the steps taken in the preceding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;

d) if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendants costs in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle. [ 38 ] Rule 9-(6) states: In making an order under subrule (5), the court may consider the following:

a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date;

b) the relationship between the terms of settlement offered and the final judgment of the court;

c) the relative financial circumstances of the parties;

d) any other factor the court considers appropriate. Position of the Parties Defendants [ 39 ] The defendants argue that after the deductions pursuant to

Part 7 are made the Net Award is $198,641.20. They argue that the court has a number of options in relation to costs. The court can deprive the plaintiff of her costs from the date of delivery of the Defendants’ Offer. The court can award the defendants their costs from the date the Defendants’ Offer was made. The court can make an order in relationship to costs incorporating a combination of the above. [ 40 ] The defendant argues that the plaintiff’s Bill of Costs is for $63,918.90.

If the plaintiff is deprived of her costs from the date that the Defendants’ Offer was made this would be a deduction of approximately $24,659.20. [ 41 ] The defendant’s Bill of Costs is approximately $19,452.87. [ 42 ] The defendants argue that the plaintiff should be deprived of her costs from the date of the Defendants’ Offer and the defendants should receive their costs from that date.

This would amount to an approximately $45,000 deduction to the plaintiff’s costs. [ 43 ] The defendants argue that there should be a consequence for not accepting the Defendants’ Offer. [ 44 ] The defendants also argue that the plaintiff should be deprived of her costs in relationship to her expert Sheryl Thompson because that evidence was given no weight in the Reasons. Plaintiff [ 45 ] The plaintiff argues that she is entitled to prejudgment interest on the past income loss and the special damages.

The plaintiff has calculated the prejudgment interest on the past income loss to the date of judgment at $689.51 and the prejudgment interest on the special damages at $140.66. This amounts to a total of $830.17 for prejudgment interest. Adding $830.17 to the Net Award would total $199,471.37. [ 46 ] The plaintiff argues that she should be awarded her costs. She acted reasonably in not accepting the Defendants’ Offer. [ 47 ] The plaintiff argues that the difference between the Defendants’ Offer and the Award is very small.

She further argues that the Defendants’ Offer lacked clarity because of its reference to the s. 83 deductions. In that regard the Defendants’ Offer stated the following: The Settlement Payment (

a) is offered after taking into account

Part 7 benefits paid or payable, pursuant to

section 83 of the Insurance (Vehicle) Act , R.S.B.C. 1996, c. 231; (

b) is offered after taking into account any advances paid to date; (

c) includes court order interest; and (

d) excludes the Settlement Costs. [ 48 ] The plaintiff estimates that if she is deprived of her costs and disbursements from the date of the Defendants’ Offer this would be approximately $32,367.02. In addition if the defendants are awarded their costs and disbursements of $19,452.87 this would reduce the plaintiff’s costs by approximately $51,818.89. [ 49 ] The plaintiff in her 1 st affidavit made on January 26, 2018 deposed that she is a person of modest means.

She also deposed that she was aware that an offer of $200,000 plus costs and disbursements had been made on October 2017 by the defendants. [ 50 ] The plaintiff was aware that any award may be subject to deductions under s. 83 though she did not understand what that meant despite the fact that it was explained to her by her lawyer.

Discussion [ 51 ] The parties have referred me to the following authorities: Park v. Targonski , 2016 BCSC 31 ; Wepryk v. Juraschka , 2013 BCSC 804 ; Zhao v. Yu , 2015 BCSC 2342 ; Anderson v. Kozniuk , 2016 BCSC 783 ; G iles v. West Minister Savings and Credit Union , 2010 BCCA 282 ; A.E. v. D.W.J ., 2009 BCSC 505 ; Saopaseuth v. Phavongkham , 2015 BCSC 45 ; Bergen v. Gaetz, 2016 BCSC 896 ; Smith v. Telford , 2010 BCCA 302 ; Wattar v. Lu , 2013 BCSC 1080 ; Day v. Doerksen , 2016 BCSC 2145 and Anderson v. Routbard , 2007 BCCA 193 . I have considered these authorities.

Relationship Between the Offer and the Judgment [ 52 ] Taking into account the deductions pursuant to s. 83 of the Act the Net Award is $1,358.80 less than the Defendants’ Offer. [ 53 ] Adding in prejudgment interest in the amount of $830.17 to the Net Award results in a total of $199,471.37. This is a difference of $528.63 between the Net Award (including prejudgment interest) and the Defendants’ Offer. [ 54 ] Costs should be used as a penalty for unreasonable litigation and not as a penalty for wrongly guessing the outcome of the litigation: Fan (Guardian ad litem of) v.

Chana , 2009 BCSC 1497 at para. 19 . [ 55 ] The difference between the Defendants’ Offer and the Net Award is nominal and in the circumstances of this case is of little assistance in the analysis as to the appropriate costs to be awarded. Relative Financial Circumstances of the Parties [ 56 ] I have little information with regard to the financial circumstances of the plaintiff.

The plaintiff in her 1 st affidavit made on January 26, 2018 deposes that she is a person of modest means. [ 57 ] The plaintiff further deposed that “While I would be disappointed at such a result, it would not be an insurmountable setback for me” in relationship to the defendants being awarded their costs. [ 58 ] Depriving the plaintiff of her costs from the date of the Defendants’ Offer would not be insignificant, however as the plaintiff stated it would not be an insurmountable setback for her.

Whether the Offer Ought Reasonably to Have Been Accepted [ 59 ] The plaintiff deposed in her 1 st affidavit made on January 26, 2018 that she was aware in considering the Defendants’ Offer of the possible consequences of not beating that offer. She was informed by her lawyer that there is a range in personal injury cases for damages and she was informed about possible deductions pursuant to s. 83. [ 60 ] The plaintiff’s loss of future earning capacity was a contentious issue in the litigation.

The plaintiff called as an expert witness Sheryl Thompson who opined that the plaintiff was no longer competitively employable and would likely remain limited in the number of hours she was able to work. I placed no weight on the opinion of Ms. Thompson because she did not have a proper evidentiary foundation to base her opinion on and in my view she took on the role of an advocate. [ 61 ] Ms. Thompson gave her evidence by way of video deposition prior to the commencement of the Trial. The plaintiff had to have been aware of the frailties of Ms. Thompson’s evidence given the cross-examination by Mr.

Lindsay of her at the video deposition. [ 62 ] In my view for this reason alone the plaintiff ought reasonably to have accepted the Defendants’ Offer. [ 63 ] The plaintiff also argues that the Defendants’ Offer was ambiguous. [ 64 ] In my view there was nothing ambiguous about the offer. It clearly stated what the offer was. I would not accede to this argument. [ 65 ] The plaintiff suffered legitimate and serious injuries as a result of the negligence of the defendants.

To deprive her of her costs from the date of the Defendants’ Offer as well as awarding the defendants costs would result in the plaintiff being under compensated for her damages. [ 66 ] In my view the plaintiff should be deprived of her costs from the date of service of the Defendants’ Offer.

However, the defendants should not be awarded their costs. [ 67 ] I have also considered the defendants’ argument that the plaintiff should be deprived of her costs from the date of the video deposition with Sheryl Thompson however I would not accede to that argument because it would not have been obvious to the plaintiff as to the frailties of her evidence until after the deposition was complete. Conclusion [ 68 ] Pursuant to s. 83 of the Act $1,620.80 will be deducted from the Award.

The defendants have been successful on their application for these deductions and they will have their costs for that application. [ 69 ] The plaintiff will be deprived of her costs of the Trial after the date of service of the Defendants’ Offer. [ 70 ] There has been mixed success on the application for costs. Each party will bear their own costs for that application.

“The Honourable Mr. Justice Tindale”