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Mussio Goodman Successfully Overturns Decision in the BC Court of Appeal

Posted on by Mussio Goodman

We are pleased to announce that the BC Court of Appeal unanimously agreed with the position presented by partner Thomas O’Mahony of Mussio Goodman, holding that the trial judge had not considered all the evidence when assessing whether the Plaintiff had taken reasonable steps to find the driver in the hit and run case.

The Court of Appeal additionally dismissed the argument presented by the Respondent ICBC, clarifying the law that there is no ‘2-step’ assessment to determining whether a person has acted reasonably first at the scene of an accident, and then in the time frame thereafter. Justice Horsman, writing for the panel, stated:

[25]      I am not persuaded that the two-stage analysis set out in Cook is consistent with the language of s. 24(5) of the Insurance (Vehicle) Act or with the jurisprudence interpreting that provision. Undoubtedly, the question of whether a plaintiff has made all reasonable efforts to identify the other driver requires consideration of the plaintiff’s conduct at the time of the collision, as well as afterwards. This is because the question of whether the standard has been met must be assessed in the full circumstances of the case. It is a single inquiry into the reasonableness of the plaintiff’s efforts. There is, in my view, no justification in the language of s. 24(5), or the relevant case law, to bifurcate the analysis so as to create artificial constraints on what is meant to be a holistic assessment…

It is a reality that trial judges can and do make mistakes, just like everyone else. When this happens, it is important to have experienced appellate counsel like those at Mussio Goodman, who will fight to make sure that those mistakes don’t prejudice their clients.

Eric Goodman Interviewed by CTV News on Lawsuit Against Vancouver Police

Posted on by Mussio Goodman

A recent lawsuit filed by Eric Goodman on behalf of his client has attracted the attention of the news media. You can watch the television segment and Eric Goodman’s interview here.

The accompanying article is as follows:

Vancouver woman’s lawsuit alleges she was mistakenly bitten, dragged by police dog

In late June 2022, Erin McLeod was walking home from work when she made the fateful decision to sit on the steps of Grandview Elementary School in Vancouver, with her back to the street.

“I was listening to music really loud, and looking at my phone and staring off, and then boom, it felt like something grabbed me really hard on my side. And then I went to push it off, and something grabbed my arm, and I realized it was a dog. And I was kind of being yanked around, it pulled me down the steps,” said McLeod, who was 18 years old at the time.

She added it took several minutes for the VPD dog handler to get control of the German shepherd, and officers acknowledged McLeod was not their target.

“I can’t even begin to understand how they could allow this to happen,” said Mcleod. “I was very surprised, and they apologized to me and said I was handling the situation very well. I talked to them for a bit, they were very apologetic, they felt really bad.”

The teenager was taken to hospital and treated for injuries to her back and arm.

“It did break through some of my muscle and a lot of fat was coming out, they had to clean up the wound, I had to dress it for a couple of months afterwards and keep it covered,” she said.

While her physical wounds have since healed, the now 20 year old says emotional scars remain.

“Prior to this, I was a really big dog person. I grew up with dogs. But after that, I just couldn’t be around them anymore. Almost any dog, I would feel this extreme anxiety,” McLeod said.

When she sought out therapy for PTSD, she recalled officers on scene had told her she could contact VPD if she needed support. “Later on I tried to contact them saying I wanted to do counselling, and I was hoping they could help me fund it. And they told me that they couldn’t fund it at all.”

McLeod decided to hire a lawyer and last week, she filed a civil suit against the unnamed VPD dog handler and the City of Vancouver.

“Erin suffered in a way of physical and emotional injuries, so she deserves to be compensated for that. She has been undergoing counselling, so she deserves to be reimbursed for those treatments,” said her lawyer Eric Goodman, who added getting information from the police has been difficult.

“We do know that there was an internal investigation by the VPD, but we haven’t received a copy of that report,” Goodman said. “The purpose of this lawsuit is not only to ensure that Erin is fairly compensated for her injuries and her treatments, but also for holding police accountable so this type of conduct doesn’t happen again.”

The VPD did not respond to CTV’s request for comment and the City of Vancouver said it would not comment as the matter is before the courts.

“Hopefully police will learn from this experience and there will be an adjustment in training protocols,” said Goodman. “We have a lot of respect for law enforcement, they have a very difficult job to do. But especially in the case of a canine handler, there is a duty to act reasonably and take certain precautions to ensure the safety of the general public.”

McLeod believes the dog attack has changed the trajectory of her life. “I feel like I’ve lost a lot in the process of that happening to me. I feel like I’ve become a bit of a different person after it happened,” she said. “I feel like I’m kind of owed something.”

Court Awards Our Client over $600,000 After Rejecting ICBC’s Arguments

Posted on by Mussio Goodman

Mussio Goodman is pleased to share our recent success following an eight-day trial in the BC Supreme Court. In Singh v Liske, 2023 BCSC 2016, the Court awarded over $600,000 to our client, who suffered both physical and psychological injuries following two motor vehicle accidents.

Our client, a 39-year-old career-driven woman, had immigrated to Canada from Fiji on a skilled worker visa shortly before her first accident. While in Fiji, she obtained a degree in finance and economics and worked as a personal financial analyst. She secured a banking advisor internship in Canada only a few months after her arrival, which she was in the process of completing when the first accident occurred. Following the first accident, she was unable to return to her internship program due to her accident-related injuries and symptoms. Despite ICBC’s argument that regardless of the accidents, the plaintiff may have never completed her internship and moved on to becoming a banking advisor, the court concluded otherwise, stating:

[73]      Ms. Singh worked at a bank for eight years before moving to Canada and then obtained a job in the banking industry despite her depression and the difficulties she was having adjusting to Canada.

[74]      I agree with the plaintiff’s assertion that but for the accident, the plaintiff would have remained at RBC and received her training income until the end of 2017 and then moved on to become a bank advisor in 2018 and that the base income of a bank advisor should be used, adjusted for yearly inflation up to the time of trial.

As a result, our client was awarded over $350,000 for her past and future wage loss.

Furthermore, our firm successfully rebutted ICBC’s argument that our client failed to mitigate her damages by not pursuing further treatments, despite her adherence to her doctors’ recommendations. ICBC submitted to the Court that her damages should have been reduced by 15%. The Court rejected this argument, stating:

[47]      Our Court of Appeal set out the law on failure to mitigate in Haug v. Funk, 2023 BCCA 110. This requires a defendant to prove, on a balance of probabilities, that failure, in this case, to follow medical recommendations would have reduced Ms. Singh’s damages or symptoms.

[48]      The defendants say that Ms. Singh should have pursued more treatment modalities; and if she did so, given the positive prognosis for improvement, her symptoms would have been lessened.

[49]      Ms. Singh does not have a general practitioner. She relies upon the physicians at her clinic to provide her with medical advice and relies upon their opinions. She consulted with her treating physician at the medical clinic about all of her treatment choices. I agree with defence counsel that Ms. Singh advocated for the treatment choices and her physician agreed with her choices. In these circumstances, though, I am of the view that it was reasonable for her to follow their medical advice.

Singh v Liske exemplifies how ICBC will make unfounded arguments in an attempt to diminish all aspects of damages and undermine a plaintiff’s claim. In securing this favorable outcome for our client, Mussio Goodman demonstrated a robust understanding of both legal intricacies and the client’s unique circumstances. Through diligent representation, we effectively countered ICBC’s assertions, ensuring that our client’s rights were protected and upheld by the court. The decision not only reflects the strength of our advocacy but also underscores our commitment to pursuing justice for those we represent.

 

 

Court Rejects Defense Application Seeking Documents From Client

Posted on by Mussio Goodman

Mussio Goodman is pleased to report our success in Court after defense counsel sought medical records of our client just two weeks before trial.

In Singh v. Liske 2023 BCSC 1745, the Court agreed that our client should not be expected to produce additional medical records when trial is imminent.

Our client was 33 years old when she was rear-ended in two separate motor vehicle accidents in the Spring of 2017. As a result of the accidents, she was left with significant long-term injuries to her brain, neck, shoulder, lower back, extremities, and debilitating headaches. Psychologically, our client was left with multiple illnesses including PTSD, anxiety, depression, and various cognitive difficulties from her brain injury.

Just over two weeks before trial, defense counsel brought a court application seeking additional medical records of our client. Our firm took the position that it was now simply too late for these requests to be seriously entertained. Our lawyers argued that the lack of timeliness on behalf of defense counsel introduces unnecessary chaos when our client and firm are in the final stages of trial preparation.

Master Bilawich of the BC Supreme Court agreed, writing the following reasons:

[8] What has happened here is, unfortunately, what happens all too regularly in applications that come before me, is that the parties are effectively two weeks before trial, and a fairly substantial document application is being made seeking documents from non-parties, to be provided within five business days. For the same reasons set out in Chohan, Forstved, and Kaur, I agree with those decisions that at some point you are just simply too close to trial to be entertaining these sorts of applications. They are incredibly disruptive to trial preparation. They could potentially lead to disruption of the trial.

[9] This is really something that, as all experienced counsel know, ought to be pursued a whole lot earlier. Perhaps in this case there was hope that there would be a settlement at mediation. That has not occurred. But regardless of the timing for the mediation, this is something that ought to have been pursued earlier than it was. In my view, it is simply too late and too disruptive at this point to grant the orders that are being sought. For the same reasons that are set out in the Chohan, Forstved, and Kaur decisions, I dismiss the application.

While medical records are understandably relevant in personal injury proceedings, a plaintiff cannot be expected to produce extensive records on the eve of trial. This is especially true when the records need to be obtained from parties that are not directly involved in the litigation. Our clients can rest assured knowing that Mussio Goodman will shield them from these sorts of unreasonable demands by defense counsel.

 

Mussio Goodman Successfully Removes an Executor in a Conflict of Interest with the Estate

Posted on by Mussio Goodman

Mussio Goodman is pleased to announced our success in removing an executor who is in a conflict of interest with the administration of the estate.

The deceased mother was survived by six children who were named as equal beneficiaries to her estate. Two of the siblings were named co-executors under the will, with one of them eventually renouncing his executorship due to a conflict of interest.

We were recently successful in an application put forth by our client and her sister to remove the remaining executrix as a result of her disqualifying conflict of interest and inability to act in the best interests of all beneficiaries.

This case involved a complicated and acrimonious family history, with severe mistrust in place between the siblings. Prior to the passing of the mother, her estate was being managed by Solus trust as a result of a previous court order. The executrix and 3 other siblings then commenced an action attempting to subvert Solus’ authority and power to sell the estate property.

A certificate of pending litigation was placed on the property and our client and her sister were named defendants in that action, along with Solus. This action was later abandoned but not discontinued or withdrawn.

We argued that the executrix was a in a disqualifying conflict of interest because if she discontinued the action, she would be under a duty to recover costs from herself and her co-plaintiffs.

Justice Girn agreed, writing:

[56] I conclude that by commencing actions against the Estate, Gail could be liable to pay for costs to the Estate. This puts Gail in a disabling conflict of interest.

There is no way to get around this conflict of interest.

We also argued that the executrix’s position with respect to unpaid rent from one of the siblings demonstrated her bias towards that particular beneficiary. Again, the Court agreed with our position:

[57] As well, Gail’s steadfast position relating to debts owed by Thomas to the Estate have demonstrated that she is not capable of being neutral in order to act in the best interests of all of the beneficiaries and not just Thomas. As executrix of the Estate, she must consider whether rent is owing by Thomas to the Estate. By refusing to even look into this, in my view, Gail’s position endangers the administration of the Estate to the detriment of all of the beneficiaries.

[58] While Gail may believe that Hazel wanted Thomas’ work in maintaining and improving the Dewdney Trunk Property to be compensated, the evidence does not support this and is not consistent with the position of two of the beneficiaries, Susan and Patricia. In particular, the evidence reflects Gail’s strong animosity towards Patricia for her decision to seek Solus’ appointment.

[59] I note that Hazel’s will is silent on the issue of rent payable by Thomas. She could have considered Thomas’ contribution to the farm but chose not to. Gail

cannot impose her views of what Hazel’s wishes were in respect of Thomas living on the property and his contributions.

Removing an executor is never easy. However, this case demonstrates Mussio Goodman’s steadfast commitment to resolving estate matters that involve complicated family dynamics and difficult emotions. Mussio Goodman pays careful attention to detail and employs creative strategies to ensure we develop strong legal arguments while obtaining the best evidence to support them in court.

Court Awards Our Client over $600,000 After Rejecting ICBC’s Arguments

Posted on by Mussio Goodman

Mussio Goodman is pleased to announce our recent achievement following a ten-day trial in the BC Supreme Court. In Bloomfield v. Berg, 2023 BCSC 1089, the Court awarded our client $601,000, significantly more than ICBC’s final offer of $424,000 before trial.

Our client was a 31-year-old nursing student at the time of the accident. He sustained injuries after being struck by a vehicle driven by the defendant while walking across the street. Our client suffered a multitude of injuries from the accident, including to his neck, shoulders, back, right arm, right knee, right ribs, right hip, and headaches. Our client also faced numerous psychological troubles, including insomnia, anxiety, and depression, all of which had a devastating effect on his personality and social life.

At trial, ICBC argued that our client’s damages should be reduced because he supposedly failed to mitigate his injuries. ICBC took this stance on the basis that our client should have gone to further doctors when his surgery was unsuccessful, and undergone specific treatments for his psychological symptoms. ICBC made this argument despite the multiple other doctors and treatments our client already pursued for his symptoms. The Court agreed with Mussio Goodman’s independent psychiatrist who noted our client was limited in the treatments he could pursue due to his ongoing symptoms, and firmly disagreed with ICBC:

[130] With respect to Dr. Muir’s evidence that a lack of insight and avoidance [of therapy] result from Mr. Bloomfield’s somatic symptom disorder, Mr. Berg submits that there is no evidence that Mr. Bloomfield was unable to seek out and participate in therapy.

[132] I am not satisfied that Mr. Bloomfield acted unreasonably in not pursuing further surgery for his hip pain or psychotherapy. I accept the evidence of Dr. Muir that Mr. Bloomfield’s somatic symptom disorder impacted his ability to take advantage of potential therapies. […]

[133]   In conclusion, I do not find that Mr. Berg has met his onus of proving that Mr. Bloomfield failed to mitigate his damages and therefore decline to make any deduction to Mr. Bloomfield’s damages award on this basis.

Further, ICBC took the stance that our client’s damages for loss of earning capacity should be reduced. This position was partially based on a hypothetical argument that despite his serious injuries from the accident, our client was already prone to hip pain decades from now, which would have limited his earnings anyway. We directed the court to see that this argument is entirely hypothetical and has no basis in reality. The Court agreed, noting:

[89]      The medical evidence establishes that primarily as a result of his pain symptoms, compounded by his somatic symptom disorder, Mr. Bloomfield has been rendered less capable overall of earning income from all types of employment. […] For the same reasons, Mr. Bloomfield has lost the ability to take advantage of all job opportunities that might otherwise have been open. Finally, I am satisfied that as a result of his reduced capabilities, Mr. Bloomfield, who previously considered working in a number of areas a nurse, is less valuable to himself as a person capable of earning income in a competitive labour market.

[90]      I am satisfied that Mr. Bloomfield has demonstrated a real and substantial possibility of diminished earning capacity which will cause income loss.

This case is illustrative of the inconsiderate positions ICBC will take, such as arguing that an injured person should be pursuing endless treatments before they are entitled to appropriate compensation. Further, it demonstrates the hypotheticals ICBC will resort to in order to undermine an injured person’s damages claim. Mussio Goodman has extensive experience advocating for our clients in the face of ICBC’s strategies.