Lee v. Dawson et al., (2006) 224 B.C.A.C. 199 (CA)

• Judge: Rowles, Donald and Braidwood, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 31, 2006
• Jurisdiction: British Columbia
• Citations: (2006), 224 B.C.A.C. 199 (CA);2006 BCCA 159

Lee v. Dawson (2006), 224 B.C.A.C. 199 (CA);

    370 W.A.C. 199

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. AP.008

Ik Sang Lee (respondent/appellant by cross-appeal/plaintiff) v. Gary Robert Dawson and James Western Star Ltd. (appellants/respondents by cross-appeal/defendants) and British Columbia Coalition of People with Disabilities (intervenor)

(CA031066; 2006 BCCA 159)

Indexed As: Lee v. Dawson et al.

British Columbia Court of Appeal

Rowles, Donald and Braidwood, JJ.A.

March 31, 2006.

Summary:

The plaintiff sued for damages for a traumatic brain injury, severe depression, stunted psychological growth and permanent facial scarring that he suffered as a result of a road accident. Liability was not at issue. The action was tried by a jury. The jury awarded the plaintiff $2,000,000 for non-pecuniary loss, $782,000 for future diminished earning capacity and $62,569 for future non-wage benefits.

The British Columbia Supreme Court, in a decision reported at [2003] B.C.T.C. 1012, reduced the award for non-pecuniary loss to accord with the rough upper limit ($294,600). The  defendants appealed. The plaintiff cross-appealed the order reducing the non-pecuniary award.

The British Columbia Court of Appeal dismissed the appeal and the cross-appeal.

Civil Rights - Topic 960.1

Discrimination - Mental or physical disability - General - A jury awarded the plaintiff in a personal injury action $2,000,000 for non-pecuniary loss - The trial judge reduced the award to accord with the rough upper limit ($294,600) - The plaintiff asserted that the cap had to be interpreted to accord with Charter values and should no longer be applied because it was inconsistent with the equality and non-discrimination guarantee of s. 15 of the Charter - The plaintiff proposed that the appropriate comparator group was comprised of less severely disabled plaintiffs who were entitled to full compensation for their non-pecuniary damages by virtue of the fact that the cap did not curtail their full recovery of non-pecuniary damages - The British Columbia Court of Appeal stated that insofar as the proposed comparator group depended solely on the severity of the injury as the basis for discrimination, it was misconceived - A more appropriate comparator group would be comprised of plaintiffs injured through negligence who, owing to the nature of their injuries, required solace and amelioration of their condition, but these requirements could be fully addressed by a quantum of non-pecuniary damages that fell beneath the cap - See paragraphs 67 to 83.

Courts - Topic 15

Stare decisis - Authority of judicial decisions - General principles - Stare decisis v. civil rights - A jury awarded the plaintiff in a personal injury action $2,000,000 for non-pecuniary loss - The trial judge reduced the award to accord with the rough upper limit ($294,600) - The plaintiff appealed, pointing out that the Supreme Court of Canada decisions which established the cap (the trilogy) predated the Charter - The plaintiff asserted that if the cap was properly regarded as a rule of law and the court found that the rule was inconsistent with Charter values, the court was not bound by stare decisis to apply it - The British Columbia Court of Appeal agreed that the time might have come for the rationalization or conceptual underpinning for having a rough upper limit on non-pecuniary damages to be re-examined - However, it was not open to the court to proceed on the footing that the trilogy was not binding on it - See paragraphs 84 to 90.

Courts - Topic 126.1

Stare decisis - Authority of judicial decisions - Courts of superior jurisdiction - Supreme Court of Canada - General - [See Courts - Topic 15 ].

Damage Awards - Topic 11

Injury and death - General - Continuing pain - When the plaintiff was 17 years old he suffered a traumatic brain injury, dramatic personality changes, permanent psychological injury, major chronic depression, permanent facial scarring and other physical injuries causing permanent, constant and disabling pain - One year later, he underwent an operation on his face and eyelid - For nearly two years following the surgery, he had to wear a Jobst compression face mask - His facial disfigurement caused him shame, alienation, social isolation and psychological trauma - His cultural background exacerbated the impact of the injuries - As the first born son in a Korean family, he was required to meet high expectations and an inability to do so was considered shameful - His psychological age would remain at 17 - He was unemployable in the competitive workplace - A jury awarded him $2,000,000 for non-pecuniary loss - The trial judge reduced the award to accord with the rough upper limit ($294,000) - The defendants appealed, seeking to have the award reduced to $195,000 - The British Columbia Court of Appeal dismissed the appeal - It was clear from the jury's verdict that they regarded the plaintiff's injuries as catastrophic, both physically and emotionally - See paragraphs 91 and 92.

Damage Awards - Topic 102

Injury and death - Head injuries - Brain damage - [See Damage Awards - Topic 11 ].

Damage Awards - Topic 117

Injury and death - Head injuries - Facial injuries - Scarring - [See Damage Awards - Topic 11 ].

Damage Awards - Topic 203

Injury and death - Psychological injuries - Personality change - [See Damage Awards - Topic 11 ].

Damage Awards - Topic 204

Injury and death - Psychological injuries - Depression - [See Damage Awards - Topic 11 ].

Damages - Topic 1501

General damages - General principles - General - Cap or ceiling on - [See Civil Rights - Topic 960.1 and Damage Awards - Topic 11 ].

Damages - Topic 1542

General damages - General damages for personal injury - Structured settlements or awards - Section 55(1) of the Ontario Insurance (Motor Vehicle) Act set out when a court had to order that an award for pecuniary damages in a motor vehicle action be paid periodically - The British Columbia Court of Appeal stated that "... different onuses seem to be engaged by subsections 1(a) and 1(b) of s. 55. Section 1(a) requires that an order for periodic payments be made if, after s. 25 of the Act has been applied, the award for pecuniary damages is at least $100,000, ' and the court considers it to be in the best interests of the plaintiff'. That positive phraseology is unlike the negative formulation in subsection (1)(b)(ii), where an order for periodic payments is to be made if the court considers that the order 'is not contrary to the best interests of the plaintiff'. The words 'not contrary' in s. 55(1)(b)(ii) suggest that the court is to assume that the structured judgment is in keeping with the best interests of the plaintiff, unless the plaintiff demonstrates otherwise. The difference in wording may alter how the onus falls but that it is not a point that needs to be explored in this case." - See paragraph 34.

Damages - Topic 1542

General damages - General damages for personal injury - Structured settlements or awards - A defendant in a personal injury action sought to have a portion of the damage award paid as a structured judgment under s. 55 of the Ontario Insurance (Motor Vehicle) Act - The British Columbia Court of Appeal stated that "It is the responsibility of the defendant to produce for the court a structured judgment proposal. It is not the court's function to draft the terms of a structured judgment. The particular terms of a structured financial plan are within the expertise of actuaries and other trained financial planners. I mention this because the defendants proposed a 'two-stage' approach in which the plaintiff must first demonstrate that it is not in his best interests to have periodic payments. That approach appears to me to mask the importance of the question of whether the structure of the particular plan proposed accords with the plaintiff's best interests. ... It also seems to me that in order to meet the onus of showing that periodic payments are not in his or her best interests, a plaintiff does not have to propose an alternative structure to that of the defendant. Nor does the plaintiff have to put forward a definitive plan as to how he or she will invest the lump sum. What factors are relevant in making the determination will vary from case to case and depend on the evidence." - See paragraphs 35 and 36.

Damages - Topic 1542

General damages - General damages for personal injury - Structured settlements or awards - A 23 year old plaintiff would remain, psychologically, at age 17, the chronological age at which he was injured - A jury awarded him $2,000,000 for non-pecuniary loss, $782,000 for future diminished earning capacity, $62,560 for future non-wage benefits and $88,000 for future special damages - The defendant sought to have $68,000 of the $88,000 and $500,000 of the $782,000 paid as a structured judgment under s. 55 of the Insurance (Motor Vehicle) Act - The trial judge rejected the defendants' submissions that the plaintiff might spend all of the money in the next few years and become a burden on society - The plaintiff and his family were fiscally responsible and, if the award was paid in a lump sum, the plaintiff's father would engage a professional to manage the funds and would oversee the management of a discretionary trust fund - The structure proposed by the defendant lacked flexibility and would make it difficult for the plaintiff to save sufficient money to pay for an operation to repair damage to his face - The plaintiff had discharged the onus of establishing that a structured judgment was not in his best interest - The British Columbia Court of Appeal dismissed an appeal - See paragraphs 30 to 41.

Cases Noticed:

Thornton et al. v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552, refd to. [para. 17].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 17].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [para. 17].

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para. 20].

ter Neuzen v. Korn - see Neuzen v. Korn.

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361, refd to. [para. 20].

Wilson et al. v. Martinello et al. (1995), 81 O.A.C. 24; 23 O.R.(3d) 417; 125 D.L.R.(4th) 240 (C.A.), refd to. [para. 33].

Chesher v. Monaghan (2000), 179 O.A.C. 90; 48 O.R.(3d) 451; 186 D.L.R.(4th) 595 (C.A.), leave to appeal refused (2001), 276 N.R. 393; 152 O.A.C. 198 (S.C.C.), refd to. [para. 33].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 44].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 48].

EGALE Canada Inc. et al. v. Canada (Attorney General) et al. (2003), 182 B.C.A.C. 35; 300 W.A.C. 35; 225 D.L.R.(4th) 472; 2003 BCCA 251, refd to. [para. 48].

Halpern et al. v. Canada (Attorney General) et al. (2002), 163 O.A.C. 276; 60 O.R.(3d) 321; 215 D.L.R.(4th) 223 (Div. Ct.), refd to. [para. 48].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201; 2004 SCC 65, refd to. [para. 50].

Boyd v. Harris (2004), 195 B.C.A.C. 217; 319 W.A.C. 217; 237 D.L.R.(4th) 193; 2004 BCCA 146, refd to. [para. 51].

Moore v. Mobile Infirmary Association, 592 So.2d 156 (Ala. Sup. Ct.), refd to. [para. 54].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 55].

Ferraiuolo Estate v. Olson (2004), 357 A.R. 68; 334 W.A.C. 68; 2004 ABCA 281, refd to. [para. 65].

Hodgson v. Walsh (1999), 121 O.A.C. 255; 44 O.R.(3d) 598 (C.A.), refd to. [para. 69].

Payne v. Alb - see Hodgson v. Walsh.

Granovsky v. Minister of Employment and Immigration, [2000] 1 S.C.R. 703; 253 N.R. 329; 2000 SCC 28, refd to. [para. 73].

Leischner et al. v. West Kootenay Power & Light Co. et al. (1986), 70 B.C.L.R. 145; 24 D.L.R.(4th) 641 (C.A.), refd to. [para. 78].

Krangle v. Brisco et al., [2002] 1 S.C.R. 205; 281 N.R. 88; 161 B.C.A.C. 283; 263 W.A.C. 283; 2002 SCC 9, refd to. [para. 87].

Boren v. Vancouver Resource Society for the Physically Disabled et al. (2003), 184 B.C.A.C. 210; 302 W.A.C. 210; 2003 BCCA 388, refd to. [para. 87].

Statutes Noticed:

Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231, sect. 55(1) [para. 31].

Counsel:

P.G. Foy, Q.C., A.M. Gunn and R.W. Parsons, for the appellants;

J.J. Arvay, Q.C., and M.P. Maryn, for the respondent;

N.H. Smith, Q.C., and D.K. Miura, for the intervenor.

This appeal was heard at Vancouver, British Columbia, on April 26, 27 and 28, 2005, by Rowles, Donald and Braidwood, JJ.A., of the British Columbia Court of Appeal. Rowles, J.A., delivered the following judgment for the court on March 31, 2006.