Mussio Goodman Successfully Obtains Court Order Striking a Jury

Posted on by Mussio Goodman

ICBC is entitled to have a jury hear his or her case as of right. However, there are times when it is unfair to the injured party to have a jury decide their case because it is too complicated for the jury to understand. In these circumstances the injured party can apply to the court to have the jury struck, and have the case decided by only a judge.

In the recent court decision of Forstved v. Kokabi, 2018 BCSC 1878, Mussio Goodman ensured that their client will have a fair trial by obtaining an order to remove the jury.

Removing the defendant’s right to a jury is a tough thing to do, and the court will only do so where the injured party makes a strong argument that the case involves prolonged examination of documents and/or is overly complex.

In determining whether it is convenient to have a jury hear the evidence Courts have noted that jury members are to be considered quite capable, as referenced by Master Dick:

[27] The context in which a court is obliged to apply Rule 12-6(5) was set out by Madam Justice Arnold-Bailey in Gulamani v. Chandra, 2009 BCSC 1042 at para 43:

…juries in this province are held to be informed and intelligent and capable of assessing expert evidence where it is properly presented. In other words, the threshold for determining whether a prolonged examination of documents or a scientific investigation is necessary and whether it can be conveniently done by a jury … or whether the issues are of a complex or intricate nature … is relatively high even in the context of a long trial with many difficult legal questions.

Mussio Goodman argued on behalf of the plaintiff that the trial could not be conveniently heard by a jury:

[30] Counsel for the plaintiff submits that this matter will require prolonged examination of documents and scientific investigation such that it cannot be conveniently heard by a jury. There is disagreement as to whether the plaintiff sustained a concussion in the accident, a mild traumatic brain injury, and/or a brain injury of any severity. There is a difference of opinion as to whether the plaintiff suffers from any cognitive disabilities as a result of the injuries sustained in the accident…

On the other hand ICBC argued that the case was a typical one, well understandable by the jury. By providing an in-depth overview of their case, Mussio Goodman convinced the court that the high bar to remove the defendant’s right to a jury had been passed and the complexity of the case warranted a trial with only a judge. Master Dick concluded:

[50] In this case, I agree with the plaintiff. The evidence in this case is sufficient to establish that this case will require a prolonged examination of documents or accounts and that the issues require a scientific or local investigation.

[54] If I was just considering the number of experts, the expert’s use of terminology, the volume of medical evidence, and divergent opinions alone, that would not necessarily cause me to strike the jury in this case. What makes this case more difficult is the fact the plaintiff’s income and business losses are not straightforward. The jury will have to review and understand the plaintiff and his spouse’s income tax information as well as the financial statements from all of the corporations he owned. The jury will then have to analyze, understand, and interpret the documents to assess his income and business loss.

Ensuring a fair trial means having lawyers who understand the law, what arguments to make, and the best strategy for your particular case.

Wes Mussio Interviewed on the Importance of Hiring an Injury Lawyer Who Does Not Also Work for ICBC

Posted on by Mussio Goodman

As discussed on our website, many personal injury lawyers supplement their practice by acting for ICBC as well. The result is a potential conflict, and clients may be left wondering whether their lawyer avoided a fight out of fear of losing ICBC’s business on other files.

Wes Mussio was recently asked to expand on this issue in an article by Kamloops Matters:

All firms that take on ICBC defence work sign strategic alliance agreements – contracts worth up to millions of dollars each year that legally prevent them from alleging bad faith or from suing ICBC for punitive or exemplary damages, even in cases where they represent plaintiffs.

“If you’re a defence lawyer or have a lot of defence files at your firm, you’re not going to be … taking some really aggressive approaches against ICBC when ICBC is being unreasonable. So it does hand-tie you a bit,” said Wes Mussio, managing partner at Mussio Goodman, a Vancouver plaintiff-only personal injury firm.

“In all honesty that would be something that has to be disclosed, but I don’t think it is unless somebody asks.”

ICBC has a more than 40-year history of hiring external legal defence firms to assist with litigation. Since 1999, the insurer has held six procurements for legal services and currently has contracts with 72 firms across B.C. that assist with litigation at below-market rates.

The practices of some of the firms on the list are limited to ICBC defence work, but most also take on plaintiff-side work, and ICBC has confirmed that all law firms it works with, and every lawyer at those firms, have agreed not to advance claims for punitive, exemplary or bad-faith damages while under contract.

The Law Society of British Columbia (LSBC), the professional regulatory body for lawyers in B.C., has on a couple of occasions addressed whether an ICBC defence firm’s strategic alliance agreement with the insurer creates a conflict of interest in the firm’s plaintiff-side work.

In 2006, an LSBC bencher’s bulletin confirmed that lawyers working for ICBC must advise plaintiff clients of their relationship with ICBC, of the restrictions the lawyer is under and of the implications of those restrictions.

The recommendation to disclose the information is an ethical, not a legal, obligation. It doesn’t prevent lawyers from handling ICBC plaintiff files.

“I think there’s a problem there,” Mussio said, “because invariably if an adjuster takes a hard line on a file and denies a claim for simple benefits such as temporary total disability benefits, one of the strategies you can use as a plaintiff lawyer is to sue ICBC for bad faith or punitive damages, and the way the current rules are is you can’t do that if you have defence work in your firm.”

 

Mussio Goodman Breaks New Legal Ground With Latest Court Decision

Posted on by Mussio Goodman

Mussio Goodman is pleased to announce our success with the judgment of Terezakis v. Ekins, 2018 BCSC 249. This application involved the plaintiff applying for leave under s.151 of the Wills, Estates and Succession Act, SBC 2009 c. 13. to secure standing to bring an action on behalf of the Estate of Aikaterini Terezakis, the deceased.

This decision is the first successful case in British Columbia where a beneficiary or intestate successor has been granted leave, based on necessity alone, to bring an action on behalf of an estate to sue for a resulting trust over a property that was transfered by the deceased before death.

Mussio Goodman successfully argued in Terezakis that the plaintiff had fulfilled the requisite criterion to obtain standing. The criterion being:

  1. the beneficiary made reasonable efforts to cause the personal representative to commence or defend the proceeding;
  2. the beneficiary gave notice of the application to the personal representatives and any other beneficiaries;
  3. the beneficiary is acting in good faith; and
  4. it is necessary or expedient for the protection of the estate or the interest of the beneficiary or intestate successor for the proceeding to be brought or defended.

The Honorable Madam Justice Morellato opined at paragraph 31 in Terezakis that the court can grant leave under s. 151 on the criterion of necessity alone:

“[31]        Ms. Ekins is in a difficult position.  She is the executor of the Estate, a beneficiary under the Will and also the owner in fee simple of the Richmond Property which Mr. T. Terezakis claims she holds in trust for the Estate, an allegation which Ms. Ekins vigorously disputes.  Ms. Ekins deposed in her affidavit sworn January 31, 2017 that, “in her capacity as Executor” of the Estate, she intend to take a neutral position” in the Action.  By taking a “neutral position”, Ms. Ekins is clearly unwilling to prosecute the claims articulated by Mr. T. Terezakis, on behalf of the Estate,  since a key issue in this suit would challenge her ownership interest in the Richmond Property.  Further, because of her asserted interest in the Richmond Property, she is in a conflict of interest, making her effectively “unable to proceed” on behalf of the estate.  In this light, given that I have found the other pre-conditions of s. 151 have been satisfied, I conclude that I may exercise my discretion to grant leave under s. 151 on the criterion of “necessity” alone.”

This precedent setting judgment shows that obtaining legal counsel with experience, knowledge, and expertise in estate litigation can get you results previously unheard of. At Mussio Goodman, we provide our Wills and Estates clients with the requisite experience, knowledge, and expertise.

News 1130 Interviews Eric Goodman on Why Injury Caps Punish Victims Instead of Bad Drivers

Posted on by Mussio Goodman

From the article:

One of the key things the province is tasking ICBC to do is to, clearly and legally, redefine what a minor injury is. We know it will include things like: sprains, strains, mild whiplash, cuts, bruises, stress and anxiety from a crash but not broken bones, brain injuries or concussions.

Vancouver lawyer Eric Goodman wonders if it’s fair that someone with a minor injury doesn’t get enough money to handle a lifetime of pain. “What they’re trying to do is just use a blanket term: ‘minor injury’, and apply it to everybody no matter what the personal circumstances and that’s just not the way it works.”

He also feels having the insurance company define the word moving forward is a little biased.

“Claims that they initially determined to be minor and for which they put aside a certain amount of money to pay-off eventually turned out to be very complex. So, that in it of itself is proof that you can’t just, right after an accident say, ‘this is a minor claim, here’s a few thousand dollars, be on your way.’ These types of injuries can be insidious and it takes time to determine how it effects that individual person.”

Victoria is also looking to cap the payout for minor injuries claims at $5,500 and Goodman thinks this may backfire. “What it has shown us that in Alberta and Ontario, putting caps on injury claims do not work. In Ontario, the premiums are higher than in BC and the courts are bogged down in fighting.”

Fighting because, he adds, minor claims will be handed off to a group of independent adjudicators and Goodman expects lengthy delays as people attempt to fight for their rights.

Goodman suggests the government look elsewhere to fix the problems at ICBC.

“The fact is ICBC was wildly profitable up until just a few short years ago before the Liberals took the profits out of their coffers and before ICBC started to get very litigious in the way they handled claims. If they had just compensated claimants fairly early, we wouldn’t be in this mess. This won’t alleviate the burdens on the legal system, in fact, it may just exacerbate the problem.”

Court Rejects ICBC’s Application to Assess Our Client By ICBC Doctor

Posted on by Mussio Goodman

Mussio Goodman is pleased to announce our recent success in the Supreme Court of British Columbia, in which we defended our client’s interests by preventing a medical assessment (IME) by an orthopedic surgeon chosen by ICBC.

IMEs are often obtained by both the claimant and ICBC during the litigation process, the purpose of which is to have independent doctors provide the parties, and ultimately the Court, with an impartial expert opinion on the claimant’s injuries. The law is clear with regards to IMEs; the Plaintiff must attend these appointments so long as they are reasonable and fair.

In this recent case, our client was in a motor vehicle accident where she suffered a number of injuries including a concussion, traumatic brain injury, and a number of soft tissue injuries. At this point of the claim, our client had already consented to an IME with a neurologist selected by ICBC.

Interestingly, ICBC instructed the neurologist to provide a fulsome report of our client’s injuries, not restricting him to opinions of a neurological nature. The ICBC doctor commented extensively on our client’s soft tissue injuries, providing views that went well beyond his expertise as a neurologist. We stood firm in our position that a subsequent IME was inappropriate as ICBC had already received a fulsome report of our client’s injuries. As a result, ICBC applied for a court order to compel our client to attend.

We argued that the second IME was unnecessary to put the parties on an equal playing field. We further argued that ICBC was simply looking to bolster the weaknesses of the previous report from the neurologist. They were in essence ‘doctor shopping’ for a more favourable opinion.

Madam Justice MacNaughton of the Supreme Court of British Columbia agreed with our submissions and dismissed ICBC’s application with costs.

NDP’s Proposed “Injury Caps” and ICBC Doctor Martin Grypma

Posted on by Mussio Goodman

Mussio Goodman has written extensively about one of ICBC’s favorite “independent medical examiners” Dr. Grypma here and here. Dr. Grypma’s reports have been rejected by the courts more than a dozen times. Judges have described him as being “deliberately or grossly careless”, “argumentative” and “incorrect”, and his opinions have been disregarded as “ill-considered and superficial.”

Now the Globe and Mail has just published a damning exposé on ICBC’s use of Dr. Grypma, which mirrors the very public advisories we previously issued.

Indeed, in spite of their assurances about treating injured claimants fairly, ICBC has hired and continues to hire doctors who have a well-established reputation for bias and other questionable conduct.

Now the NDP wants to institute a “cap” on “minor injuries”, which will limit an injured victim’s access to legal representation, rehabilitation, and fair compensation. The question is, who determines whether the injury is minor? The public has every right to be concerned over the prospect of ICBC paying very good money to their stable of reliable doctors to ensure they get the “minor” diagnosis they want.

ICBC was well aware of Dr. Grypma’s dubious reputation for years, and yet they kept hiring him. One can reasonably assume it was to achieve their goal of cutting benefits and reducing compensation. And now we want to give them even more power over injured victims’ access to rehab and fair compensation?

There are other ways to solve ICBC’s financial problems. Punish the bad drivers, not the victims. Call your MLA and say NO to caps.