Recent Decisions & Matters

Legere v. Provincial Health Services Authority et al, 2013 BCSC 306 - 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.

Moore v. British Columbia (Minister of Education), 2012 SCC 61 - Laura Bakan, Q.C., David Bell and Kristal Lo 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.

De Silva v. Fraser Health Authority et al, 2012 BCSC 1710 - 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.

Pearlman v. Critchley et al, 2011 BCSC 1479 - 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.

Maslin v. Fraser Health Authority, 2011 BCHRT 275 - 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.

Pirsel v. Northern Health Authority, 2011 BCSC 1309 - 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.

De Silva v. Fraser Health Authority and BC Nurses' Union, 2011 BCSC - 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.

Kim and Kim v. Burgess, 2011 BCSC - 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.

Re: Pauls, WCAT-2011-00740 - 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.

Ince v. Dr. Sanders and BC Women's Hospital, 2010 BCSC 872 - 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.

British Columbia (Minister of Education) v. Moore, 2010 BCCA 478 - 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.

Westfield v. City of Burnaby, 2009 - 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.

Kahlon v. Vancouver Coastal Health Authority et al, 2009 BCSC 922 - with Catherine Woods, defended the Health Authority in a serious personal injury claim arising from the plaintiff's development of tubercular meningitis.  Successfully argued for an apportionment of contributory negligence to the plaintiff and for a reduction in life expectancy.

Menard v. Northern Health Authority, 2009 BCSC 507 - acted for the defendant Health Authority in an occupier's liability action arising from a slip and fall in the psychiatric ward of Prince George Regional Hospital. Additionally, it was alleged that the nursing staff had breached its duty of care to the plaintiff, an involuntarily committed mental patient, by permitting her to wear unsafe footwear. The action was dismissed at trial on a finding that there had been no negligence on the part of the nursing staff and that the plaintiff had failed to prove that the actions or non-actions of the defendant had caused or contributed to her injuries.

Matheson v. School District No. 53 and Collis, 2009 BCHRT 112 - acted for the respondents in a human rights complaint in which it was alleged that a school district teacher had been discriminated against by her employer on the basis of her mental disability. The matter was dismissed on a preliminary application on the basis that the complainant had no prospect of proving her complaint.

British Columbia (Ministry of Education) v. Moore, 2005 BCHRT 580 (B.C. Human Rights Tribunal); 2008 BCSC 264 - with Laura Bakan, acted for the School Board in 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, unreported, February 5, 2008, Vancouver Registry No. S056465 (B.C.S.C.) - 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.

Blane v. Corporation of Delta, unreported, August 2, 2007, Vancouver Registry No. S043960 (B.C.S.C.) - 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.

Miller v. Burnaby Hospital, [2007] BCJ No. 1823 (B.C.P.C.) - successfully defended an Occupier's Liability claim in which 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.

Education & Professional Affiliations

Education:

• 2001 Called to the British Columbia Bar
• 2000 Bachelor of Laws University of British Columbia
• 1994 Bachelor of Arts (History, Education) - Simon Fraser University
• 1994 Certificate of Liberal Arts - Simon Fraser University

Professional Affiliations:

• Member, Law Society of British Columbia
• Member, Canadian Bar Association, B.C. Branch (Health Law, Civil Litigation, Human Rights and Insurance Law sections)
• 2003-2004: Member of the Executive of Human Rights Sub-section

Lectures & Publications

Lectures:

• November 12, 2004 Accommodating Special Needs Students: Human Rights and Education, at the Conference on Emerging Legal Issues in Public Education,
• November 22, 2006 Ethics and Negligence, to University of British Columbia School of Dentistry,
• March 8, 2007 Human Rights and Education in the Context of Independent Schools, at the Conference of Catholic Schools of British Columbia,
• How to Avoid Seeing Your Malpractice Lawyer, at the Pacific Dental Conference, March 7, 2008

Publications:

• Sechelt Seawalls by the Seashore: Discrimination and City Planning, in Legal News for Local Governments, February 2005;
• Personal Injury Interview and Examination for Discovery, Law Society of BC Practice Checklist Manual, 2009, Co-editor with J.A. Doyle
• General Litigation Procedure, Law Society of BC Practice Checklist Manual, 2009, Co-editor with J.A. Doyle

Community Involvement

• Member of the executive of Port Coquitlam FC Soccer Association
• Minor soccer and lacrosse coach
• Member of Mundiavocat FC (Vancouver Lawyer’s World Cup Team)

Recent Decisions & Matters

Legere v. Provincial Health Services Authority et al, 2013 BCSC 306 - 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.

Moore v. British Columbia (Minister of Education), 2012 SCC 61 - Laura Bakan, Q.C., David Bell and Kristal Lo 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.

De Silva v. Fraser Health Authority et al, 2012 BCSC 1710 - 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.

Pearlman v. Critchley et al, 2011 BCSC 1479 - 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.

Maslin v. Fraser Health Authority, 2011 BCHRT 275 - 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.

Pirsel v. Northern Health Authority, 2011 BCSC 1309 - 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.

De Silva v. Fraser Health Authority and BC Nurses' Union, 2011 BCSC - 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.

Kim and Kim v. Burgess, 2011 BCSC - 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.

Re: Pauls, WCAT-2011-00740 - 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.

Ince v. Dr. Sanders and BC Women's Hospital, 2010 BCSC 872 - 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.

British Columbia (Minister of Education) v. Moore, 2010 BCCA 478 - 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.

Westfield v. City of Burnaby, 2009 - 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.

Kahlon v. Vancouver Coastal Health Authority et al, 2009 BCSC 922 - with Catherine Woods, defended the Health Authority in a serious personal injury claim arising from the plaintiff's development of tubercular meningitis.  Successfully argued for an apportionment of contributory negligence to the plaintiff and for a reduction in life expectancy.

Menard v. Northern Health Authority, 2009 BCSC 507 - acted for the defendant Health Authority in an occupier's liability action arising from a slip and fall in the psychiatric ward of Prince George Regional Hospital. Additionally, it was alleged that the nursing staff had breached its duty of care to the plaintiff, an involuntarily committed mental patient, by permitting her to wear unsafe footwear. The action was dismissed at trial on a finding that there had been no negligence on the part of the nursing staff and that the plaintiff had failed to prove that the actions or non-actions of the defendant had caused or contributed to her injuries.

Matheson v. School District No. 53 and Collis, 2009 BCHRT 112 - acted for the respondents in a human rights complaint in which it was alleged that a school district teacher had been discriminated against by her employer on the basis of her mental disability. The matter was dismissed on a preliminary application on the basis that the complainant had no prospect of proving her complaint.

British Columbia (Ministry of Education) v. Moore, 2005 BCHRT 580 (B.C. Human Rights Tribunal); 2008 BCSC 264 - with Laura Bakan, acted for the School Board in 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, unreported, February 5, 2008, Vancouver Registry No. S056465 (B.C.S.C.) - 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.

Blane v. Corporation of Delta, unreported, August 2, 2007, Vancouver Registry No. S043960 (B.C.S.C.) - 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.

Miller v. Burnaby Hospital, [2007] BCJ No. 1823 (B.C.P.C.) - successfully defended an Occupier's Liability claim in which 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.

Education & Professional Affiliations

Education:

• 2001 Called to the British Columbia Bar
• 2000 Bachelor of Laws University of British Columbia
• 1994 Bachelor of Arts (History, Education) - Simon Fraser University
• 1994 Certificate of Liberal Arts - Simon Fraser University

Professional Affiliations:

• Member, Law Society of British Columbia
• Member, Canadian Bar Association, B.C. Branch (Health Law, Civil Litigation, Human Rights and Insurance Law sections)
• 2003-2004: Member of the Executive of Human Rights Sub-section

Lectures & Publications

Lectures:

• November 12, 2004 Accommodating Special Needs Students: Human Rights and Education, at the Conference on Emerging Legal Issues in Public Education,
• November 22, 2006 Ethics and Negligence, to University of British Columbia School of Dentistry,
• March 8, 2007 Human Rights and Education in the Context of Independent Schools, at the Conference of Catholic Schools of British Columbia,
• How to Avoid Seeing Your Malpractice Lawyer, at the Pacific Dental Conference, March 7, 2008

Publications:

• Sechelt Seawalls by the Seashore: Discrimination and City Planning, in Legal News for Local Governments, February 2005;
• Personal Injury Interview and Examination for Discovery, Law Society of BC Practice Checklist Manual, 2009, Co-editor with J.A. Doyle
• General Litigation Procedure, Law Society of BC Practice Checklist Manual, 2009, Co-editor with J.A. Doyle

Community Involvement

• Member of the executive of Port Coquitlam FC Soccer Association
• Minor soccer and lacrosse coach
• Member of Mundiavocat FC (Vancouver Lawyer’s World Cup Team)