Our lawyers regularly represent clients at all levels of court in British Columbia and appear before a wide variety of tribunals and quasi-judicial proceedings. The following list includes a sample of the matters we have successfully dealt with before the Courts and Tribunals of this Province. Please note that references to successful case results are not necessarily indicative of future results. The outcome of a legal proceeding will vary according to the facts in each individual case.
Julie K. Lamb and Kristal M. Low acted on behalf of the defendant Fraser Health Authority operating as Royal Columbian Hospital in successfully obtaining a determination from the Workers Compensation Tribunal that the plaintiff was statutory barred from pursuing an action against Fraser Health Authority. In this case, the plaintiff was suffered a dislocated left elbow a left distal tibia fracture when he fell off a logging truck during the course of loading a log. The plaintiff underwent a number of operations to treat his injuries over the course of one year. The plaintiff alleged the hospital/nurses at the Royal Columbia Hospital were negligent in providing him treatment for his injuries. The Tribunal effectively held that the plaintiff was statutory barred from pursuing a civil action against the Fraser Health Authority.
Kristal M. Low and Alex Sayn-Wittgenstein acted on behalf of the defendant Fraser Health Authority operating as Royal Columbian Hospital in successfully obtaining a determination from the Workers Compensation Tribunal that the plaintiff was statutory barred from pursuing an action against Fraser Health Authority. In this case, plaintiff developed a severe allergic reaction and attended to the hospital for treatment. The plaintiff alleged that the hospital and nurses were negligent in providing treatment to him and as a result, he suffered physical and psychological injury, including depression and anxiety. The plaintiff alleged that the hospital/nurses were negligent in providing him medical treatment in response to this injuries. The Tribunal effectively held that the plaintiff was statutory barred from pursuing a civil action against the Fraser Health Authority.
David Bell acted for the health authority and its employees in a judicial review of a decision of the BC Human Rights Tribunal. The Complainant, an engineer employed by the health authority, alleged that the employer's requirement that he wear personal protective equipment (PPE) while at work was discriminatory as the PPE was incompatible with his physical disabilities. On application by the health authority, the Tribunal found that the Complaint had been made out of time and as such was limitation barred. The Complainant sought judicial review of that decision, alleging that the Tribunal's decision was patently unreasonable as his complaint had been one of a continuing contravention of the Human Rights Code, such that the Complaint was timely. On judicial review, the Court accepted the submissions of the health authority that the Tribunal's decision was not patently unreasonable and therefore should be upheld.
Laura Bakan, Q.C., David Bell and Kristal Low acted on behalf of the respondent school board in a human rights complaint by a dyslexic student that he and other learning disabled students had been discriminated against by the school board and the Ministry of Education's failure to provide the accommodations they required to meaningfully access education. The BC Supreme Court and Court of Appeal had ruled for the school board, but on appeal to the Supreme Court of Canada this decision was reversed and the ruling of the BC Human Rights Tribunal was reinstated with respect to the individual case of discrimination. The Supreme Court of Canada also ruled that no systemic case of discrimination was made out and no systemic remedy was warranted. This is an important human rights decision that clarifies the law on discrimination and the extent to which public bodies must go in accommodating the disabled. It also raises significant public policy issues with respect to the payment for private service provision by public bodies.
David Bell acted for the health authority in a judicial review of a decision of the BC Human Rights Tribunal. The Complainant, a nurse employed by the health authority, alleged that she had been discriminated against on the basis of her physical disabilities. She alleged that the employer had failed to take steps to accommodate her disabilities by providing her a modified position. On application by the health authority, the Tribunal found that the matter had been settled as between the employer and the Complainant's union and that this settlement bound the Complainant. The Tribunal dismissed the Complaint on that basis. The Complainant sought judicial review of that decision, alleging that the Tribunal's decision was patently unreasonable as it had been made arbitrarily. On judicial review, the Court accepted the position of the health authority that the Tribunal's decision was not patently unreasonable and therefore should be upheld.
Adam Howden-Duke and Kristal Low acted for the defendant Interior Health Authority in an action brought by the family members of the deceased, who died as a result of a streptococcus A infection of his foot. The plaintiffs alleged that when the deceased attended the hospital, the hospital and nurses failed to order a diagnostic investigation of the deceased's foot, which they claimed would have revealed the infection and led to treatment, and that they failed to provide medication and a cast to the deceased because he was impecunious. After the initial attendance to the hospital, the deceased failed to or refused to return to the hospital when his foot worsened. At the summary trial application brought on behalf of the Health Authority, the Court affirmed that the ability to make medical diagnosis, order further exams, including laboratory tests of body samples, and discharging patients remains the responsibility of the attending physicians and not with the hospital or the nurses. The court found the plaintiffs led insufficient evidence to meet their burden that the hospital and nurses were negligent and in fact, took no steps to investigate their allegations of negligence against the hospital. The action was dismissed with costs to the defendant Health Authority.
David Bell acted for the defendant Dr. Cofman in a claim arising from a motor vehicle accident in 2004. The plaintiff initially brought a tort action against various defendants arising from the MVA. That action was dismissed and he subsequently brought a number of other actions against various individuals, insurance corporations and law firms, alleging that they had in some manner contributed to his losses and to the failure of the MVA action. As against Dr. Cofman, the plaintiff's former treating dentist, the plaintiff alleged that the defendant had improperly issued an expert report, breached his privacy rights, and defamed him. On summary trial, the action was dismissed with costs to Dr. Cofman.
David Bell and Tim Wedge acted for the respondent Fraser Health Authority in a human rights complaint brought by an employee nurse. The Complainant alleged that he had been disciplined and differentially treated by FHA on the basis of his mental disability, depression. Fraser Health argued that the Complainant had made numerous medication dispensation errors relating to narcotics and that patient safety concerns required the health authority to place the Complainant on leave pending investigation. The investigation and the Complainant's subsequent return to work was delayed by over two years due to the Complainant's medical status and the suspension of the Complainant's nursing license by his professional college. After a six day hearing, the Tribunal found that there had been a prima facie case of discrimination made out by the Complainant, but that Fraser Health had established that it had accommodated the Complainant to the point of undue hardship. The Complaint was dismissed.
David Bell acted for the health authority in a judicial review of a decision by the BC Human Rights Tribunal. The Complainant, an employee of the health authority, alleged that she had been discriminated against on the basis of physical and mental disabilities by a co-worker and that the health authority had taken no steps to make her safe from harassment at work. The Complainant took a lengthy stress leave, during which her department was reorganized and her position changed. She alleged that this amounted to further discrimination. The human rights tribunal, on application by the health authority, dismissed the complaint as not having a reasonable prospect of success. The Complainant sought judicial review, alleging that the tribunal's decision was patently unreasonable and that it breached the rules of procedural fairness and natural justice. After a two day hearing, the Court dismissed the petition and upheld the Tribunal's decision to dismiss the complaint.
David Bell acted for the defendant Fraser Health Authority in a claim brought by an employee nurse who alleged that she had been discriminated against by her employer and her union and/or had been constructively dismissed. On summary trial, Fraser Health argued that the action could not be heard in the BC Supreme Court as the subject matter was exclusively within the jurisdiction of the BC Human Rights Tribunal and the BC Labour Relations Board. The Court accepted that it did not have jurisdiction to hear the claim as jurisdiction was vested in the administrative tribunals by virtue of their operating statutes and caselaw interpreting same. The civil claim was dismissed with costs to the defendant.
David Bell acted for the defendant, a solicitor, in a claim related to the renewal of a leasehold over commercial property. The plaintiffs claimed business interruption loss, increased cost of doing business, and personal injury damages. On summary trial, the action against the defendant was dismissed on the basis that the plaintiffs had failed to prove any damages arising from the alleged breach of the standard of care.
Catherine Woods QC and Adam Howden-Duke, acting for the Hospital and its nurses, successfully overturned a $5.14million trial award by a unanimous Court of Appeal decision. The majority reasons (Kirkpatrick and Levine JJA) have received much media coverage holding, inter alia, the trial Judge had plagiarized the Plaintiff's closing submissions such that the Judgment could not be considered to represent his reasons and remitted the matter back to the trial court for a new trial. However, the minority reasons (Smith JA), while acknowledging the wholesale copying of the Plaintiff's submissions in the judgment, would have allowed the appeal, quashing the judgment against the Hospital and nurses without the need to remit the matter back for a new trial. The plaintiff's have since sought leave to appeal to the Supreme Court of Canada.
David Bell acted for worker in employer's review of WCB's initial decision to allow the worker's claim for mental stress arising from a train derailment. The worker, an engineer, was trapped in a locomotive for a number of hours after a derailment and suffered an Adjustment Disorder as a result. Upon Review, the Workers' Compensation Review Board found for the worker and upheld the initial award. The employer appealed from that decision to the Workers' Compensation Appeal Tribunal, alleging procedural and substantive errors in the below decisions. On appeal, WCAT accepted the worker's arguments and upheld the lower decisions.
Don Yule Q.C. acted for Manitoba Public Insurance Corporation in a matter determined by Madam Justice B.J. Brown on November 4 2010. A BC pedestrian was hit by a Manitoba insured truck in BC. A prior decision had held that MPIC was the primary no-fault payor. The question to be determined was whether MPIC was required to pay "ICBC level" no-fault benefits (in which the monetary limit for medical and rehabilitation expense was $150,000.00) or Manitoba PIPP (Personal Injury Protection Plan) benefits which were much more generous. The court concluded that the PAU signed by MPIC did not require MPIC to pay PIPP benefits, which under the Manitoba legislation were only available to either Manitoba residents or non-residents injured in Manitoba. MPIC however was required to pay "ICBC level" benefits.
David Bell and Rodney Scollard defended the Hospital in a claim that the plaintiff had sustained serious personal injury while undergoing a hysteroscopy and endometrial biopsy. On summary trial, the Court noted that medical malpractice claims require expert evidence to establish negligence on the part of medical practitioners and hospitals. The Court determined that the plaintiff had failed to meet her onus of proof in this regard and dismissed the matter. The Court further considered the defendants' defence under the Limitation Act and held that the claim was statute barred in any event.
Laura Bakan and David Bell acted for the North Vancouver School Board in an appeal arising from a human rights complaint that the School Board and Ministry of Education had discriminated against a young dyslexic student by failing to provide him the accommodations he required to access education. The Court of Appeal upheld the ruling of the BC Supreme Court and found that the complainants had failed to prove a prima facie case of discrimination against the School Board.
Vernon Pahl, Ian Mackie, and Shaun Frost defended the Township of Langley in an action brought by the Plaintiffs against: the vendor of property they purchased; the vendors' realtors; the Township of Langley, and an engineering firm for damages resulting from a slope failure allegedly caused by a stream being diverted resulting in a failure at the toe of the slope upon which the Plaintiffs' house was located. After a five day Summary Trial the Court concluded that the matter could not be resolved without cross-examination of the experts for the parties.
The lands in question had at one time been part of the Railway Belt lands and the complex issues involved included: the ownership of the stream bed; liability for nuisance; and whether the Natural Watercourse exception continues to apply in BC.
Carla Forth and Russell Bailey acted for three defendant chiropractors in an action arising from a series of chiropractic treatments in the Fall of 2003. The Plaintiff alleged that the treatments were performed negligently, causing her serious bodily harm. In dismissing the case, the Court found that the defendant chiropractors had not breached the applicable standard of care. The Court also provided a useful summary of recent caselaw on informed consent in a medical context.
Alexander D.C. Kask successfully defended a claim against the Defendant municipality by a Plaintiff who was injured when he slipped and fell on an icy sidewalk. The Plaintiff challenged the zoning scheme for the location of the loss and argued that the City's maintenance policy was alternatively patently unreasonable or not being followed. The court ruled that the municipality was acting in a good faith manner, in compliance with a bona fide policy, and therefore a claim in negligence could not be maintained. As a result the claim was dismissed with costs to the Defendant.
Alexander D.C. Kask successfully pursued a claim on behalf of a Plaintiff injured in a motor vehicle accident. After an 8-day trial, the court determined that the Plaintiff should be awarded $411,348.76 for pain and suffering, special damages, future care, and loss of opportunity, plus taxable costs and disbursements. The award was net of deductions for amounts that had been paid for no-fault benefits prior to trial.
Viera v Quantum Facilities et al, 2009
Adam Howden-Duke acted for a Defendant concrete plant in this action arising from a single motorcycle accident on the roadway in front of its premises where it was alleged the accident was due to debris deposited by it. At a Summary Trial, rendered necessary by 1 defendant declining to agree to a dismissal of the claims against the others (of which the concrete plant was one), we were successful in obtaining judgment and costs on the basis the Plaintiff pay those up until the point it agreed to a dismissal, and the co-defendant pay from that point on, including the costs of the Summary Trial (despite the later success of the co-defendant in the action).
David Bell and Mark Gyton acted for the defendant municipality in an action arising from a trip and fall in a crosswalk. The plaintiff alleged that the municipality had failed to adequately inspect and maintain the crosswalk and that this failure led to her fall. On summary trial, the Court accepted the defendant's argument that the decision not to inspect was a pure policy decision and that as such no duty of care was owed to the plaintiff in respect of her fall. The Court, in dismissing the action, helpfully reviewed and clarified the law on municipal policy defences.
Catherine L. Woods Q.C. and David Bell acted for the defendants in the defence of a significant personal injury claim arising out of the delay in diagnosis of spinal meningitis due to late reporting of CT scan results, which left the plaintiff completely disabled. We were successful in establishing contributory negligence on the part of the plaintiff.
Catherine L. Woods Q.C. acted in this case involving the interpretation of the ultimate limitation period of six years within which to bring a claim against physicians and hospitals. The Court of Appeal reinforced the fact that discoverability does not apply to the ultimate limitation period and that regardless of the state of knowledge of the injured party, the six-year limitation begins to run at the time the cause of action arose and was not postponed until nervous shock was suffered by the plaintiff upon learning of the medical error.
Menard v. Northern Health Authority
Matheson v. School District No. 53 and Collis, 2009 BCHRT 112
Donaldson v. John Doe et al. 2009 BCCA 38
Donald J. Smith and Alexander D.C. Kask successfully defended a $1.7 million claim relating to allegations concerning Malfeasance in Public Office, Breach of Trust, Breach of Charter Right, and Negligence. This matter concerned the Plaintiff's transfer of a military building to Hornby Island that resulted in infractions of a Land Use Bylaw. The Plaintiff alleged, among other things, intentional wrongdoing and conspiracy targeting the Plaintiff and her winery on the part of the named trustees and insufficient oversight and incompetence of other defendants. The claim was dismissed after 28 days of trial with an order for costs to the Defendants.
Baines v. Prince George, 2009 BCSC
Alexander D.C. Kask successfully defended a claim against the municipality by a Plaintiff who alleged injury during the course of his arrest by police officers from the city detachment. The court considered whether the municipality was an appropriate defendant given the nature of contract policing in British Columbia and the terms of the Police Act. The court ruled that the Plaintiff's claim should be dismissed with costs to the Defendant.
Alexander D.C. Kask successfully defended the respondent authority with respect to the suspension of a contractor's Class A Certification as per Section 15(a) of the Safety Standards Act. The Tribunal heard evidence and submissions over 9 days concerning issues relating to Code compliance, limits of regulatory resources, and the structure and function of the Safety Standards system in British Columbia. The Tribunal ruled that the authority had provided the Appellant with numerous opportunities to correct his work and that the suspension was correctly issued. As such the appeal was dismissed.
Catherine L. Woods, Q.C. and Stacey E. Grubb successfully defended this medical malpractice claim brought by two former patients against Eagle Ridge Hospital and a number of nurses in which they alleged that they had suffered serious physical harm as a result of contracting Group A streptococcus (necrotizing fasciitis) during their hernia repair surgeries which took place in the same operating room on the same day with the same surgical team. We were successful in having the claim dismissed, the trial judge finding that the hospital and nursing staff met the standard of care expected in the circumstances of the cases and holding that the plaintiffs could not establish that their infection was contracted as a result of the negligence of the defendant hospital.
On Side Restoration Services Ltd. v. Seixeiro and Optimum West Insurance Company, Third Party (3 March, 2008), Port Coquitlam C7359 (B.C. Prov. Ct.)
Mark Gyton, as counsel for the Third Party, defeated a claim for monies owing under a contract for fire restoration services.
Bunge S.A. v. The Owners and All Others Interested in the MV Nikos and the Ship MV Nikos O, and Star Maritime Limited (28 February 2008),(B.C.S.C.)
Vernon Pahl and Mark Gyton, acted for a petitioner time-voyage charterer in this successful petition for access to a vessel for the purposes of conducting an unrestricted inspection and survey.
The Board of School Trustees of School District No. 44 (North Vancouver) v. Moore, Fredrick on behalf of Jeffery Moore, Her Majesty the Queen in right of the Province of British Columbia as represented by the Ministry of Education, and the British Columbia Human Rights Tribunal (2008) BCSC 2624
Laura Bakan and David Bell acted for the School Board in a judicial review of a human rights complaint made by the parent of a dyslexic student in which it was alleged that the School Board had discriminated against him by failing to provide proper or sufficient educational accommodations. On judicial review the BC Supreme Court overturned the decision of the Human Rights Tribunal and found for the School Board.
Salvador v. Vancouver Coastal Health Authority, February 5, 2008, (B.C.S.C.)
David Bell defended the Health Authority in a claim by the spouse of a former patient that she had suffered damages as a result of injuries sustained by the patient. On summary trial the claim was dismissed, with the trial judge finding that there was no claim for loss of consortium in British Columbia and that the Health Authority owed no duty of care to the spouses of patients.
Calling Foundation v. Elaine Williams (June 2008), (B.C.S.C.)
Ian Mackie represented the Calling Foundation in a summary trial successfully arguing that a settlement agreement be specifically performed.
Chisamore v. Canadian Cancer Society, et al (June 2008), (B.C.S.C.)
Ian Mackie, as counsel for the Canadian Cancer Society, successfully argued that the Plaintiff’s claim be struck out for failing to disclose an actionable claim.
Leveque v. Children’s and Women’s Hospital, (November 2007) (B.C.S.C.)
David Bell defended the Hospital in a claim by a former patient that she had been disfigured by scarring sustained during a cast removal procedure. The claim was dismissed on Summary Trial.
Mark Gyton, acting for the claimant/respondent, successfully defeated an Appeal from a Provincial Court decision awarding damages for tresspass to property.
Stromgren v. Benningshof, (June 27, 2007) (B.C.S.C.)
Alex Kask, for the plaintiff, succeeded in this determination of liability in a motor vehicle accident, and the defendant was found entirely at fault.
David Bell and Jen Bye successfully defended an Occupier’s Liability claim where the plaintiff had been a patient and alleged he had contracted disease and infection by stepping on broken glass in the defendant hospital. At trial the court found that there was no evidence that the hospital had breached the standard of care.
Adam Howden-Duke successfully defended the Hospital in a two-week trial alleging medical malpractice against the hospital and physicians in connection with a patient death caused by alleged failure to diagnose and treat infarcted bowel which resulted in necrosis and sepsis.
Alex Sayn-Wittgenstein successfully defended St Paul’s Hospital against a claim where the plaintiff alleged physical and psychological injuries as a result of contracting tuberculosis while visiting a hospitalized friend whose tuberculosis had yet to be diagnosed.
Carla Forth and Alex Sayn-Wittgenstein, acting for the defendant hospital, succeeded against a claim alleging brain injury from a medication overdose. Liability had been admitted, and the question at issue was whether the Plaintiff had suffered a brain injury that had rendered him unemployable. Damages awarded were below the hospital’s prior formal offer to settle.
Yan v. Vancouver Community College and O'Flaherty and Leung 2007 BCHRT 450
Mark Gyton acted for the respondents in a Human Rights Tribunal hearing, obtaining an order dismissing this complaint.
Adam Howden-Duke, acting for the defendant Highway Maintenance Contractor, successfully disposed of this claim which alleged negligence against a highway maintenance contractor, via Summary Trial. The action was for personal injuries following an MVA in icy conditions where it was alleged the contractor had negligently maintained the highway. At issue was the standard of care applicable to an infrequently used side road.
Catherine L. Woods QC and David Bell successfully defended this medical malpractice claim against Kelowna General Hospital, alleging brain injury secondary to respiratory arrest following surgery. They also successfully defended the trial decision on Appeal - now a leading decision on causation and medical malpractice claims, confirming that the burden of proof rests with the Plaintiff on a balance of probabilities to establish causation using the ‘but for’ test.
Catherine L. Woods QC, acting for the defendant hospital, successfully defended this medical malpractice claim, arising out of an alleged delay in delivery of the infant Plaintiff following profound bradycardia resulting in serious brain injury.
Kyle v. Fraser Health Authority et al. (31 July, 2007), Surrey 60134 (B.C. Prov. Ct.)
Mark Gyton, as counsel for the defendant Health Authority and hospital, succeeded in obtaining the dismissal of a medical negligence claim on Application.
Alex Sayn-Wittgenstein, as counsel for the defendant Health Authority, succeeded in a dismissal of a claim for false imprisonment and assault based on an expired limitation period, which decision was upheld on appeal.
David McKenzie, as counsel for the defendant Highway Maintenance Contractor, successfully defended this claim alleging negligence for personal injuries arising out of a motor vehicle accident in icy conditions.
David Bell defended the Corporation of Delta in a “trip and fall” case on a Delta sidewalk. On summary trial, the claim was dismissed on the basis that Delta had complied with its reasonable policy of inspection and maintenance of the sidewalk and that the plaintiff had not met her obligation to have reasonable care for her surroundings.
Neil McLean, acting for a defendant architect in a multi party water ingress claimed, succeeded in an application precluding an action against his client.
Laura Bakan and David Bell acted for the School Board in this nine-week trial relating to allegations of discrimination in access to education. The plaintiff, an autistic child, alleged that his Constitutional rights had been violated by the School Board in its provision of educational services to him and other autistic students. The Court found that while there had been a failure to consult with the parents of the student, the Board had not violated the student’s Constitutional rights.
Ian Mackie acted for eighteen respondents in complaints filed pursuant to the Human Rights Code by two complainants. All complaints filed by one complainant were dismissed and all but three complaints filed by the remaining complainant were successfully struck out for breach of the limitation period.
Alex Sayn-Wittgenstein acted for the Municipality in this prosecution by the municipality in respect of cleanup costs relating to construction waste deposited on three adjoining properties over a period of twenty years. The claim considered the issues of trespass, negligence, nuisance, occupiers liability, estoppel, and spoliation, all within the context of a claim brought against a land owner who was not directly involved in the creation of the waste pile-up issue.
Jurkiewicz v. Burnaby, September 7, 2006, Vancouver Registry No. M033603 (B.C.S.C.)
David Bell, as counsel for the defendant Municipality, succeeded at Summary Trial in a dismissal of this action, where the plaintiff claimed that he had been injured on a water slide at one of the City’s public swimming pools. The plaintiff’s claim was dismissed on the basis that the City had followed its own inspection and maintenance policy and that the plaintiff was unable to identify the mechanism of injury.