The issue being decided by the Court of Appeal was whether massage therapy is a benefit ICBC is obligated to pay as a Part 7 benefit. Is massage therapy a “physical therapy”, and therefore a mandatory benefit under Part 7?

The answer is yes.

Even though the amount was relatively small, $742, the precedent has now been set. Congratulations to Ms. Roesh-West and Mr. Bolda, and to Plaintiffs throughout the Province of BC.

From product liability to wrongful dismissal to personal injury, we at DBM will gladly do what we can to help.

The Chambers Judge in Hannah v. John Doe rejected ICBC’s argument and found the van used by the purse snatchers was indeed being used as a motor vehicle and Ms. Hannah was entitled to rely on s.24(1) to support her claim. ICBC appealed. Marcus Bolda and Harmonie Roesch-West represented Ms. Hannah before the three-member panel in the BC Court of Appeal in the second Hannah v. John Doe case where the court dismissed ICBC’s appeal and upheld Ms. Hannah’s right to continue her lawsuit.

Note: References to successful case outcomes where DBM lawyers have acted for a client or clients are not a guarantee of future results. The outcome of any legal proceeding depends on the specific facts of the case.

Marcus Bolda successful in class action suit against Eagle Ridge Pontiac in negligent misrepresentation case concerning a cashable voucher program.

In Payne v. Eagle Ridge Pontiac GMC Ltd. 2009 BCSC 530 DBM’s Marcus Bolda acted for Ms. Payne, the representative for a class of plaintiffs, seeking damages against the Eagle Ridge GM dealership for negligent misrpresentation.  More specifically, Ms. Payne was alleging negligent misrepresentation concerning a cashable voucher program designed to persuade customers to buy cars.  The program was advertised in The Tri-City News, a local Coquitlam newspaper, and promoted by Eagle Ridge sales representatives between October 6 and November 26, 2003.

Paraphrasing from the decision, the facts of Payne’s claim were that on October 9, 2003 she bought a 2002 Pontiac Sunfire from Eagle Ridge after being attracted by a newspaper ad published in the Tri-City News. Among other things the ad included phrases like “THIS IS NOT A MISPRINT,”  “EAGLE RIDGE PONTIAC IS OFFERING AN OPPORTUNITY TO CLAIM & RECEIVE UP TO $30,000 CASH BACK” and “If you think this is too good to be true…well think again.”  The ad also referenced a cashable voucher in the amount of $6,000 in relation to a 2002 Sunfire.  when Ms. Payne bought the Sunfire she was offered the $6,000 voucher and she claimed the voucher persuaded her to buy the car when she would not have otherwise.  When she signed the purchase agreement the Eagle Ridge office manager prepared and gave her a voucher with a face amount of $6000 and read her the terms and conditions on the reverse side of the document.  She didn’t ask for a price reduction in lieu of the voucher but instead read the terms and conditions when she got home and understood that she would have to follow the instructions to get the money from a company called Consumers Trust who she thought was part of General Motors.

In fact the cashable vouchers were issued by Eagle Ridge under an agreement with Consumers Trust – a UK company unaffiliated with GM.  Under the agreement Eagle Ridge could use the vouchers as a sales promotion tool for a fee of 15% of the written value of the vouchers issued but the vouchers themselves were to be ultimately paid by Consumers Trust.  The success of the program was based on the assumption that most people would fail to meet the stringent terms and conditions for redemption.  Further, the agreement specified that Eagle Ridge was not to help customers to meet the conditions, for example, by reminding them to send in the documents required.  Finally, even if the conditions were fulfilled a voucher holder was still only entitled to receive a proportional share of whatever fund was in existence 60 days after the 3^rd anniversary of the date the voucher was issued.  Unfortunately, Consumers Trust went bankrupt well before the first possible date when any of the voucher holders could have applied to redeem their vouchers and Eagle Ridge made no claim in the bankruptcy proceedings nor did they advise voucher holders to do so.

One of the primary purposes of negligence law is to enforce reasonable standards of conduct to prevent the creation of reasonably foreseeable risks.  In short, it’s a disincentive to risk-creating behavior.  On behalf of Ms. Payne, Marcus Bolda successfully argued that Eagle Ridge had special knowledge of the cashable voucher program that gave rise to a special relationship between it and its customers that resulted in a duty of care and further Eagle Ridge should have foreseen its customers would rely on representations concerning the program to their detriment.   Bolda, argued that the wording of the newspaper ad itself “Eagle Ridge Pontiac is offering an opportunity to claim and receive…up to $30,000 CASH BACK” suggested that Eagle Ridge was backing the vouchers and reasonably led the plaintiff to believe that Consumers Trust was a part of General Motors.  By allowing customers to think it (and not Consumers Trust) was offering the opportunity, Eagle Ridge failed to meet the standard of care required of a reasonable person in this situation.

The Court reserved decisions on granting of relief to await further submissions from the parties and determination of individual issues.  During the time frame the program was in effect Eagle Ridge sold 256 vehicles and issued a total of 148 Cashable Vouchers. If you bought a car from Eagle Ridge Pontiac GMC between October 6 and November 26, 2003 contact Marcus Bolda at 604.939.8321 to find out if you are eligible to participate in the proceedings.

To read the full judgement click on the case name in the first paragraph.

Richard Brodeur started the tournament in 2000 as a way for the 1982 Canucks to help support their former coach Roger Neilson in his battle against Lukemia. Since then, proceeds from year to year have been donated to many worthwhile charities in our community. This year Camp Goodtimes, Tuberous Sclerosis Canada, BC Prader-Willi Syndrome Association and the Vancouver International Children’s Festival will benefit from the tournament.  If you are interested in participating or helping to sponsor the event we encourage you to visit the tournament website by clicking on the link above.

Harmonie will be focusing on personal injury and general litigation files – you can read her full Bio and more about what is happening at DBM on the firm’s website.

The RCMP claimed the chase had not been at high speeds but this was contradicted by witnesses in the car driven by the young offender. Also, given the extent of our client’s injuries we had questions about this supposed “slow speed chase” and proceeded to investigate. As it turned out, the constable had come across the stolen car while investigating an unrelated B&E in the same neighbourhood. Instead of disabling the car or taking precautions to insure he had sufficient back up to block the stolen car from escaping the constable focused on trying to apprehend the thief when he returned. The result was a police pursuit in a residential neighbourhood.

On behalf of our client we raised the issue of whether the constable had properly followed police pursuit procedure given that the primary principle of that procedure is public safety. In the end, the court found that the collision injuring our client was a consequence of the police pursuit and because the constable had the opportunity and means to disable the vehicle and should have done so and further could have avoided the chase by making sure other police vehicles were available to cut off the thief’s escape, he was negligent and partially responsible for our client’s injuries. Since the Province is liable for the conduct of its police officers it too was liable to our client under the legal principle of joint and several liability. While the judge found that the young offender was 85% responsible for the collision she also found the RCMP constable (and through him the Province) 15% liable for Mr. Radke’s injuries.

The Attorney General appealed the ruling on behalf of the Province but lost and the matter was settled out of court. You can read the appeal court’s decision in Radke v. M.S. (Litigation guardian of) 2007 BCCA 216.

I practice mainly in the area of personal injury and general commercial litigation, with a view to helping clients get the best result for the smallest expenditure possible in that legal cockpit known as the law courts…

My first job, ironically enough, is to keep clients out of court in the first place, through a variety of so called “alternate dispute resolution” mechanisms, such as settlement negotiations or mediation, and my second job–if the first just isn’t viable–is to see the client through his or her day in court, hopefully with a great win and with said client’s wallet still (relatively) intact: Pyrrhic victories need not apply.

Another way of looking at my role is that of risk management: just like a doctor, it’s my duty to place the client in a position of informed risk; if a certain procedure is engaged in, what are the odds of this or that happening and why it’s better (or not) to choose one course of action over another. Litigation is all about risk: a good barrister will make the other side see that paying out a decent settlement is better than getting hammered in court! But beware the lawyer who guarantees you an easy win–the only certainties in this life are the two you’ve already heard about and anyone who says different ain’t been to Vegas.

Over the coming weeks and months, I will be posting on topics of interest to those of you unfortunate enough to have been injured–primarily in motor vehicle accidents (although we represent a fair number of clients who have been involved in slip and fall type accidents or who have been attacked by dogs). People who have been through this process often don’t know which is worse: being hurt through someone else’s negligence or dealing with the insurance company afterwards.

Personal injury lawyers–despite being maligned as ‘ambulance chasers’ and the like–are often the beacon of hope for those struggling to obtain fair compensation and get their lives back on track in the wake of an accident. That’s called job satisfaction and is one of the main reasons we put up with the often crazy hours this profession demands. We work closely with the medical profession too, in helping to coordinate the best treatment plan available and, where necessary, making sure clients get to see the right specialist–who not only help with the management of injuries but also provide the medical legal expertise that is required in court to prove the case.