Lee v. Dawson et al., (2005) 209 B.C.A.C. 153 (CA)

• Judge: Rowles, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 02, 2005
• Jurisdiction: British Columbia
• Citations: (2005), 209 B.C.A.C. 153 (CA);2005 BCCA 133

Lee v. Dawson (2005), 209 B.C.A.C. 153 (CA);

    345 W.A.C. 153

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. MR.031

Ik Sang Lee (respondent/appellant by cross-appeal/plaintiff) v. Gary Robert Dawson and James Western Star Ltd. (appellants/respondents by cross-appeal/defendants)

(CA031066; 2005 BCCA 133)

Indexed As: Lee v. Dawson et al.

British Columbia Court of Appeal

Rowles, J.A.

March 2, 2005.

Summary:

The plaintiff sued for damages for a traumatic brain injury, severe depression, stunted psychological growth and permanent facial scaring that resulted from a motor vehicle 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 $292,600 to accord with the rough upper limit. The defendants appealed. The plaintiff cross-appealed the order reducing the non-pecuniary award. The British Columbia Coalition of People with Disabilities (BCCPD) applied for leave to intervene in the cross-appeal.

The British Columbia Court of Appeal, per Rowles, J.A., allowed the application.

Practice - Topic 682

Parties - Adding or substituting parties - Intervenors - Interest in subject matter - The plaintiff sued for damages for injuries suffered in a motor vehicle accident, including a traumatic brain injury and stunted psychological growth - A jury awarded, inter alia, $2,000,000 for non-pecuniary loss - The trial judge reduced the award to $292,600 to accord with the rough upper limit - The defendants appealed - The plaintiff cross-appealed, asserting that the trial judge erred in applying the rough upper limit - The British Columbia Court of Appeal, per Rowles, J.A., granted the British Columbia Coalition of People with Disabilities (BCCPD) leave to intervene in the cross-appeal - Given BCCPD's extensive experience in dealing with issues surrounding the effect of disabilities, it was well-suited to elucidate the extent to which the rigid application of the rough upper limit had the potential to adversely affect disabled persons - Although this was private litigation, the cross-appeal raised issues that invited argument on both s. 15(1) Charter values and public policy - While BCCPD lacked a direct interest in the litigation's outcome, it had an interest in ensuring that the Court was aware of how a change in the law or its application concerning the rough upper limit might affect disabled persons - Although the plaintiff's factum contained submissions on how the rough upper limit might conflict with Charter values respecting disabled persons, BCCPD would be able to provide a more comprehensive perspective on the issue.

Practice - Topic 684

Parties - Adding or substituting parties - Intervenors - Where constitutional issue raised - [See Practice - Topic 682 ].

Practice - Topic 685

Parties - Adding or substituting parties - Intervenors - On appeal - [See Practice - Topic 682 ].

Cases Noticed:

Dilello v. Montgomery (2005), 208 B.C.A.C. 165; 344 W.A.C. 165; 2005 BCCA 56, refd to. [para. 5].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 11].

Amos v. Virk, [2003] B.C.A.C. Uned. 141; 18 B.C.L.R.(4th) 335; 2003 BCCA 449, refd to. [para. 11].

U.T.U., Local 1778 v. BC Rail Ltd., [1990] B.C.J. No. 2503 (C.A.), refd to. [para. 12].

EGALE Canada Inc. et al. v. Canada (Attorney General) et al. (2002), 170 B.C.A.C. 204; 279 W.A.C. 204 (C.A.), refd to. [para. 12].

Smith v. Funk, [2003] B.C.A.C. Uned. 110 (C.A.), refd to. [para. 12].

Kempling v. College of Teachers (B.C.) et al. (2004), 203 B.C.A.C. 256; 332 W.A.C. 256 (C.A.), refd to. [para. 12].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 13].

Canada (Attorney General) v. Aluminum Co. of Canada Ltd. (1987), 10 B.C.L.R.(2d) 371 (C.A.), refd to. [para. 14].

Richmond (Township) v. Dha (1991), 47 C.P.C.(2d) 23 (B.C.C.A.), refd to. [para. 14].

Authorson v. Canada (Attorney General) (2001), 147 O.A.C. 355; 9 C.P.C.(5th) 218 (C.A.), refd to. [para. 14].

Hobbs v. Robertson et al. (2002), 164 B.C.A.C. 157; 268 W.A.C. 157; 2002 BCCA 168, affd. (2002), 169 B.C.A.C. 314; 276 W.A.C. 314; 2002 BCCA 250, refd to. [para. 14].

Okanagan Similkameen (Regional District) v. Blackwell Stores Ltd., [2001] B.C.A.C. Uned. 73; 2001 BCCA 119, refd to. [para. 14].

Guadagni v. Workers' Compensation Board (B.C.) (1988), 30 B.C.L.R.(2d) 259 (C.A.), refd to. [para. 14].

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].

Counsel:

P.G. Foy, Q.C., for the appellants;

M.P. Maryn, for the respondent;

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

This appeal was heard and decided on March 2, 2005, in Chambers, at Vancouver, British Columbia, by Rowles, J.A., of the British Columbia Court of Appeal. Rowles, J.A., delivered the following written reasons on March 10, 2005.