COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Enviro West Inc. v. Copper Mountain Mining Corporation,

2012 BCCA 23

Date: 20120118

Docket: CA038580

Between:

Enviro West Inc.

Respondent

(Plaintiff)

And

Copper Mountain
Mining Corporation
Similco Mines Ltd.
Boundary Electric (1985) Ltd. and
0712603 B.C. Ltd. dba Canyon Electric

Appellants

(Defendants)

Before:

The Honourable Madam Justice Saunders

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Tysoe

On appeal from: Supreme
Court of British Columbia, October 15, 2010
(
Enviro West Inc. v. Copper Mountain Mining Corporation,
2010 BCSC 1443,
Vancouver Docket No. S088649)

Counsel for the Appellants:

R. Anderson, Q.C.
T. Tomchak

Counsel for the Respondent:

R. Skolrood
L. Cook

Place and Date of Hearing:

Vancouver, British
  Columbia

June 10, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 18, 2012

Written Reasons by:

The Honourable Madam Justice Saunders

Concurred in by:

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Tysoe

Reasons for Judgment of the Honourable
Madam Justice Saunders:

[1]

The principle of contributory negligence is concerned solely with the
plaintiffs behaviour and the duty to take care in ones own interests. This
appeal concerns the application of this principle to a collector of waste
products, in the relatively new business field of hazardous waste removal.

[2]

The appeal is brought from the dismissal of a claim of contributory
negligence in an action commenced by a waste oil collection firm for clean-up
costs it incurred after removing waste oil containing a high level of
polychlorinated biphenyls, colloquially referred to as PCBs, from an old
transformer at a mine site near Princeton, British Columbia. Enviro West Inc.
is the waste oil collector. It was hired by the appellants, collectively, to
remove the waste oil. When the removed oil was discovered to be heavily laden
with PCBs, Enviro West was required by environmental protection agencies to
clean up its facilities and to ensure the contaminated oil was destroyed. Enviro
West commenced the action to recover the costs of remediation from those who
hired it to perform the service.

[3]

Ruling on Enviro Wests claim, Madam Justice Boyd found the appellants
collectively liable to Enviro West in negligence for damages in the amount of
$655,337.81 plus interest of $2,558.89. She apportioned liability 60% to Copper
Mountain and Similco Mines Ltd., 20% to Boundary Electric and 20% to Canyon
Electric. The learned judge dismissed a third party claim by Copper Mountain
and Similco against Canyon Electric, and she dismissed the claim in
contributory negligence.

[4]

Neither the finding of liability against the appellants nor the
dismissal of the third party claim is in issue in this appeal. The appeal is
directed solely to the appellants contention that the judge erred in finding there
had been no contributory negligence on the part of Enviro West, that is, that Enviro
West bears no legal responsibility for the contamination or the clean-up costs.

[5]

The appellants contend:

1.       although
the judge correctly set out the factors required to be considered in
determining the applicable standard of care, she failed to consider all of
these factors as they relate to the issue of Enviro Wests contributory
negligence, thereby committing an error of law;

2.       the
trial judge erred in failing to appreciate relevant evidence and in
disregarding relevant evidence; and

3.       the
judge erred in finding, on consideration of the evidence as a whole, that
Enviro West was not contributorily negligent. They say such a finding was
unreasonable and demonstrates a palpable and overriding error.

Preliminary
Matter

[6]

Although each of these grounds of appeal is distinct, and contains its
own nuances, the general theme is that the judge decided the contributory
negligence issue on too narrow a basis, and failed to consider relevant factors
pertaining to the posited contributory negligence of Enviro West, as well as
evidence relating to the companys practices and procedures. The latter, they
say, is distinct from and should have been considered separate and apart from
the direct evidence of the actions and inactions of the employee driver who
collected the oil and transported it to Enviro Wests storage tank in Kelowna,
British Columbia.

[7]

At the hearing of the appeal, the respondent contended that all
submissions made to us had been made at trial, and that the appellants were
asking us, effectively to retry the case, which is beyond our role. Yet the
reasons for judgment describe the claim in contributory negligence only in
terms of the drivers conduct:

[121]    The defendants have
submitted that the plaintiffs own contributory negligence has contributed to
this loss.  In particular they submit that Enviro Wests employee, Costain: (1)
failed to heed the verbal warnings of both Bishop and Mehr that he was about to
collect and transfer oil with a high PCB content from the Transformer; (2)
failed to heed the warning sign at the door of the MCC 1 room as well as the
various warning labels on the Transformer itself, warning him that there was
PCB-laden waste oil in the Transformer; (3) failed to request production of the
PCB Report or conduct his own field test to determine the level of PCBs in the
Transformer oil prior to commencing the collection and pumping process; (4)
failed to ensure a manifest was properly completed prior to departing the Mine;
and (5) failed to test the tanker truck oil to determine the level of PCBs in
the waste oil prior to offloading it into Storage Tank 12 at the Enviro West
Kelowna facility.

[8]

As the reasons for judgment do not address the broader theory of
contributory negligence asserted in the appeal, we asked counsel whether
written submissions made at trial were available, thereby to determine whether
the theory of contributory negligence advanced before us was put to the judge.
Counsel have since provided us with those submissions. Based upon them, I am
confident the issues addressed in the appeal are issues that were part of the
trial, and that it is proper for this court to consider the appeal on the basis
that the appellants, in contending at trial for a finding of contributory
negligence, alleged deficiencies on the part of Enviro West that went beyond
the conduct of its driver. I turn now to the case.

The
Background to the Incident

[9]

The case arises from the re-starting of a mine near Princeton, British
Columbia, owned by Similco which in turn is owned by Copper Mountain. The
distinction between these two mining companies is not material to the appeal,
and I refer to them together as Copper Mountain or, occasionally, as the mine
owners.

[10]

A number of electrical transformers at the mine dated from the 1970s, an
age when hazardous waste, particularly PCBs, was not regulated to the same
extent that it is today. A report of the B.C. Ministry of Energy, Mines and
Petroleum Resources outlining deficiencies at the mine identified leakage from
one of the old transformers. A subsequent report commissioned by Copper
Mountain on the nature of the oil that was leaking described the oil as pure
PCB. Copper Mountain contracted with Canyon Electric to carry out the work
required by the Ministry report, and accepted Canyon Electrics suggestion that
it contact Boundary Electric for a cost estimate for disposing of the leaky
transformer. Boundary Electric in turn contracted with Enviro West, a waste oil
collection firm, to pump the oil contained in the leaky transformer and
transport it off the mine site. In the course of contracting with Enviro West for
the removal of the waste oil, Boundary Electric informed the office manager in
Kelowna that the oil contained PCBs, but did not advise Enviro West of the
level of PCB contamination. Enviro Wests licence to transport hazardous waste did
not permit it to carry oil containing PCBs in excess of 50 parts per million (ppm)
and it had never been asked to pump oil containing PCBs over that level. The
waste oil picked up by Enviro West from the mine site contained PCBs far in
excess of 50 ppm, resulting in PCB contamination of the truck, a storage tank
at Enviro Wests Kelowna facility, and other waste oil contained in the storage
tank.

The
Findings of Negligence

[11]

Although the appeal concerns only the issue of contributory negligence, to
understand that issue, it is useful to review the basis of the trial judges finding
of negligence against the appellants.

[12]

In general terms, the finding of negligence against Copper Mountain rested
largely on its knowledge of the presence of concentrated PCBs in the waste oil
removed from the leaky transformer. As against all appellants, the finding of
liability rested on their individual and collective failure to communicate the
presence of high PCB levels to Enviro West. Before the judge, the appellants had
denied that their actions and inactions in communicating the presence of
concentrated PCBs were negligent and had asserted, in a submission that went to
the heart of the issues of standard of care and causation, that they had
provided sufficient warnings that PCBs were present to avoid responsibility in
law for the clean-up costs. In saying this, they relied in part upon the actions
and inactions of the Enviro West driver who had made the pick-up. He had
received no hazardous waste training and in particular was both unschooled regarding
the regulations applicable to PCBs and unaware of the terms of Enviro Wests
hazardous waste carriage licence. When the driver attended at the mine site he
was met at the gate by the mine superintendent who told him that the oil in the
transformer at issue contained PCBs. Further, the door to the room containing
the transformer which was set off to the side to allow for removal of the
transformer, had a sign that read WARNING and THIS ROOM HAS TRANSFORMER OILS
WHICH CONTAIN PCBs. The judge held that the driver had seen this sign, as well
as labels affixed to the transformer that read:

ASKAREL (CHLOREXTOL) FILLED

CONTAINS PCB POLYCHLORINATED BIPHENYLS

A TOXIC ENVIRONMENTAL CONTAMINANT
SCHEDULED UNDER THE ENVIRONMENTAL CONTAMINANTS ACT. IN CASE OF ACCIDENT, SPILL
OR FOR DISPOSAL INFORMATION CONTACT THE NEAREST OFFICE OF THE ENVIRONMENTAL
PROTECTION SERVICE, ENVIRONMENT CANADA.

[13]

Although this sign meant that the oil present was essentially 100% PCB
filled, the driver did not know the signs import. While he was in the room,
the driver was advised by mine personnel that the oil in the transformer was
hot or high in PCBs, and concern was expressed to him about leakage. The
driver, however, took no additional steps, assuming wrongly that appropriate
steps had been taken by Enviro West before he was dispatched. In addition, customer
signatures are generally required on the manifest describing hazardous waste cargo,
to be obtained prior to departure. In this case, the driver did not have mine
personnel sign the manifest and the manifest did not describe the PCB content
of the waste oil, contrary to legislative requirements.

[14]

After the driver left the mine, he picked up automotive waste oil from
customers at other locations, which oil became contaminated with PCBs from the
transformer oil. He then delivered all the accumulated oil to a storage tank at
Enviro Wests Kelowna facility, thereby contaminating the waste oil contained in
that tank, as well as pump equipment and associated piping.

[15]

In her analysis of the negligence claim, the judge relied upon the
reasons for judgment in
Wainwright (Town of) v. G-M Pearson Environmental
Management Ltd
., 2007 ABQB 576, affd 2009 ABCA 18, leave to appeal refd
[2009] S.C.C.A. No. 36, as an accurate application of the principles of
negligence in the context of a case of environmental contamination.

[16]

The judge held that all of the defendants owed Enviro West a duty of
care based on their knowledge that someone would have to collect the PCB laden
oil:

[77]      In the case at bar, I
find that all of the defendants owed Enviro West a duty of care. There was a
sufficiently close relationship between the parties such that all of the
defendants should have reasonably contemplated that carelessness on their part
might cause damage to Enviro West. While not all of the defendants knew the
precise identity of Enviro West, all of the defendants knew the Transformer
contained PCB-laden oil and that someone would have to collect, transport and
dispose of the PCB waste oil.

[17]

The judge next addressed the standard of care required of the defendants.
In
Wainwright
the standard of care owed by a waste generator is
described at para. 193:

... the standard of care is to
create and communicate sufficient accurate information to enable receivers of
the waste to handle that waste safely and to minimize the risks related to
handling those materials.

[18]

Applying that standard, the judge observed:

[74]      ... The well-established objective, yet contextual,
approach to the standard of care means that the standards of care applicable to
the parties in the case at bar cannot depend on where each contractor sits in
the chain. Rather, the standard of care applicable to each contractor must be
determined based on what would be the reasonable actions for each type of
contractor in the particular circumstances.

[75]      In determining the
conduct of a reasonable person in any given circumstances, the Court will
consider a variety of factors: the foreseeable risk, the likelihood of damage,
the seriousness of threatened harm, the cost of preventative measures, the
utility of the defendants conduct, any circumstances of emergency, compliance
with approved practice or custom, and post-accident precautions. A higher
standard of care is applied to those persons who represent themselves as having
special skill and knowledge which allows them to perform tasks that are
normally beyond the capacity of the ordinary person.

And:

[79]      Clearly, Copper
Mountain was the generator of the waste oil in issue.
Wainwright
establishes that a waste generators standard of care is to:  (1) fully
understand the physical and chemical properties of the waste; (2) characterize
and summarize the risks arising from those properties; (3) describe the nature
of the levels; and (4) advise through a variety of means the difficulty of
handling the waste and the risks related to the handling of that waste.

And further:

[100]    As the Court held in
Wainwright
,
the standard of care requires that the waste generator fully inform the next
waste handler and anyone else who might come in contact with the Transformer
and the PCB waste oil of the true nature and risks associated with handling
such a hazardous waste. ...

[19]

The judge first examined the actions of Copper Mountain. She found that no
steps were taken by this waste generator to ensure the hazardous material was
being properly entrusted to a party experienced and qualified to handle the
waste, or to properly communicate the PCB concentration to Boundary Electric.
She observed that the verbal communication was not only woefully insufficient
but it was . . . directed to the wrong individual. She said:

[101]    From the outset, long before the Enviro West oil
tanker arrived on site, the critical information concerning the nature of this
hazardous waste and the risks associated with the disposal of the PCB waste
(both the Transformer itself as well as the oil within) ought to have been
adequately communicated by Copper Mountain to Boundary Electric. That verbal
communication should have been supported by documentation in the form of a
purchase order or work order which detailed this critical information. I find
it was unreasonable for Copper Mountain to expect that Costain, the Enviro West
truck driver, would be the gatekeeper of this information. I accept that
Costain was in no position to weigh or consider this critical information or to
assess the associated risks.

...

[103]    While perhaps in
compliance with the regulatory requirements, I am not persuaded that by virtue
of posting the warning sign and affixing the labels, Copper Mountain can be
said to have met the standard of care imposed on a waste generator. Given both
Costains and Enviro Wests history of attending at other sites to collect
waste oil with PCBs less than 50 ppm, a label reading Attention PCBs was not
likely to raise any alarm bells in Costains mind.

[20]

In the result, the judge found that Copper Mountain had failed to meet
the standard of care imposed on a waste generator to properly identify the hazardous
waste located at the mine and to warn other potential handlers of its nature.

[21]

The judge likewise found that Canyon Electric and Boundary Electric had
failed to meet the standard of care required of them. She concluded that the
representative of Canyon Electric, Mr. Leardo, breached the duty of care that
was owed to Enviro West, and that his casual and flagrantly cavalier attitude
towards the disposal of the [t]ransformer laid the groundwork for the
miscommunications which followed. Turning to Boundary Electric, she found it
had failed to take any proper steps to establish the nature of the transformer
and the waste oil within. Although Boundary Electric knew there were PCBs in
the waste oil and communicated that fact to Enviro West, Canyon Electric had
not informed Boundary Electric of the level of PCB contamination. The judge found
that Boundary Electrics principal, Mr. Docksteader, simply never turned
his mind to the risks or hazards associated with bringing a waste oil
collection company ... to the site to collect and transport waste oil from the
[t]ransformer which Boundary Electric had never taken the time to inspect.

[22]

Such was the basis for finding a breach of the duty of care. The judge then
addressed causation. Applying the but for test, she said:

[116]    Overall, Copper Mountain failed to take any steps to
ensure the PCB waste in its possession was handled in compliance with the
regulatory requirements. Had Copper Mountain been diligent in providing
information about the nature of the Transformer oil and the risks associated
with this PCB-laden waste oil, Enviro West would have never collected the PCB
waste oil from the Transformer, would have never transferred the PCB waste oil
into its tanker truck, and would have never offloaded the PCB waste oil into
the storage tank at its Kelowna facility.

[117]    But for Copper Mountains failure to communicate the
nature of the Transformer oil in a reasonable manner to Canyon Electric and to
ensure that this information was properly communicated to Boundary Electric,
Boundary Electric would have never accepted the Transformer [oil] and would
have never retained Enviro West to collect, transport and dispose of the
Transformer oil.

[118]    But for Canyon Electrics failure to advise Boundary
Electric that it either knew this was almost pure PCB-laden oil or
alternatively that it did not know the PCB content of the Transformer oil,
Boundary Electric would have followed its regular practice of requiring and [
sic
]
analytical test report for the waste oil or perform its own field test of the
Transformer oil before agreeing to accept this Transformer. Had Boundary
Electric had the analytical test report indicating the true PCB content of the
Transformer oil, Boundary Electric would not have agreed to accept the
Transformer.

[119]    But for Boundary
Electrics failure to advise Enviro West that the Transformer oil contained
PCBs in excess of 50 ppm, that the PCB Report was available, and that Boundary
Electric itself had not verified the PCB level in the Transformer oil, Enviro
West would not have collected, transported, stored and disposed of the
Transformer oil.

[23]

In the result, the judge found that Copper Mountain, Canyon Electric and
Boundary Electric were liable in negligence for the costs of remediation
occasioned by the contaminated waste oil.

The
Claim of Contributory Negligence at Trial

[24]

Arguing in the alternative, in the event that the judge were to find
liability in negligence, the appellants alleged at trial that in these
circumstances Enviro West was contributorily negligent.

[25]

Similco was the last added defendant, joined some time after the
pleadings between the other parties were complete. Its statement of defence
contains the most fully developed pleading of contributory negligence. The
essential averments are:

12.       ... the Plaintiff was contributorily negligent in
failing to observe or act upon the warning signs set out above. Similco pleads
and relies on the provisions of the
Negligence Act,
R.S.B.C. 1996, c.
333, and amendments thereto.

13.       The Plaintiff was also negligent in failing to
request test results for the oil in testing the oil prior to pumping. The
Plaintiff was also negligent in mixing the oil it had pumped from the
Transformer with other oil without testing and despite having been warned of
the dangers of such a practice.

14.       The Plaintiff was negligent in failing to properly
complete the manifest with respect to the shipment of oil, including the fact
that the Plaintiff failed to obtain a signature on the manifest.

15.       The Plaintiff has failed to meet the statutory
requirements imposed on it, including the
Environmental Management Act,
the
Hazardous Waste Regulations,
the
Canadian Environmental Protection
Act
and the
PCB Regulations.

16.       The Plaintiff failed to
employ a driver with proper training related to the handling and identification
of hazardous wastes. The Plaintiff failed to establish appropriate policies and
procedures for hazardous waste identification and handling or procedures for
employees to follow to ensure there was proper documentation for dealing with
waste.

[26]

As replicated at para. 7 above, the judge described the defendants
submissions on contributory negligence as alleging that the Enviro West driver:

1.       failed
to heed verbal warnings that he was about to collect and transfer oil with a
high PCB content;

2.       failed
to heed the warning signs on the door of the room and on the transformer, alerting
him to the presence of PCBs;

3.       failed
to request production of a PCB report or failed to conduct his own field tests
to determine the level of PCBs prior to collecting the transformer oil;

4.       failed
to ensure the manifest was complete before departing the mine; and

5.       failed
to test the collected oil for PCBs before offloading it into the storage tank.

[27]

In addressing the allegations listed, the judge rejected the first three
submissions for the reasons she had already given on the determination of
primary liability.

[28]

As to the fourth submission concerning the drivers failure to
adequately complete the manifest and have it signed, the judge found it was not
unusual for Enviro West to pick up waste oil from a site where there was no one
available to sign the manifest. More importantly, she found there was no
evidence that events would have taken a different course had the manifest been
signed by a representative of the mine as required. In other words, the judge found
that causation was not established. She said:

[129]    Despite Docksteaders evidence that his employees
would have likely stopped the shipment of waste oil, I am satisfied that even
if a Boundary Electric employee had been on site and signed the manifest, no
alarms would have been raised. So far as Boundary Electric was concerned the
Transformer oil was regular waste oil. Even after attending later and finding
the leaky Transformer with the PCB warning labels in place, the Boundary
Electric truck driver employee was not concerned, and was apparently content to
transport the Transformer carcass to the Boundary Electric yard without ever
realizing the nature of the hazardous waste.

[130]    As to Copper Mountain,
while its employees were acutely aware of the nature and level of PCBs in the
Transformer oil, no one at Copper Mountain was apparently aware of the
regulatory requirements regarding the transportation of such hazardous waste. No
one asked that either Enviro West (at the time of pick-up of the Transformer
oil) or Boundary Electric (at the time of the later pick-up of the Transformer
carcass) produce a license verifying their authority to transport this
hazardous waste.

[29]

In relation to the issue of the incomplete manifest, the judge concluded:

[131]    I therefore find that
Costains failure to ensure the manifest was signed on site prior to departure
was not negligence on his part.

[30]

The judge next addressed the fifth submission she had listed, namely that
Enviro West was contributorily negligent because the driver did not test the
oil for PCBs before offloading it into the storage tank. She found that the
driver, who had been told by mine personnel on site that there were high PCBs
in the transformer oil, did not relay that information to Enviro West personnel
prior to offloading the collected oil. However, she rejected the various
submissions to the effect that Enviro Wests practices were faulty given that the
bulk of its business consisted of collecting oil with only low levels of PCBs.
She held that the standard of care in the circumstances did not require the
testing advocated by the appellants, and said:

[138]    While I agree that Enviro West was aware it was
assuming some degree of risk in accepting loads of transformer oil at its
facility, I am not persuaded that risk translated into a duty to test each of
its tanker trucks for PCB content prior to offloading the waste oil into its
storage tanks. There is no evidence of any industry standard requiring Enviro
West to conduct such testing. Nor is there any regulatory requirement to do so.
...

...

[140]    While Boundary Electric
has suggested that Enviro West should have at least screened Boundary
Electrics Transformer oil alone, I am satisfied it would have been impossible
to do so unless Boundary Electrics Transformer oil was isolated from other
waste oil and presumably carried in a separate tanker or pup trailer and not
mixed with other waste oil. I accept that such a practice would have been a
non-starter in terms of costs. Nor is the issue satisfactorily addressed by
suggesting the testing ought to have been done earlierthat is at the time of
pick-up at the Mine, using a field test kit to test for PCB content. The only
evidence regarding the reliability of such tests was adduced from Docksteader,
who acknowledged that even those field tests are known to yield false positive
results. There was no expert evidence before the Court concerning the
reliability of such field test kits nor whether it would have been reasonable
for Enviro West to have conducted and relied on such tests prior to mixing a
transformer oil pick-up with other waste oils in its storage tank.

[31]

Last, the judge rejected the appellants submission that Enviro Wests
failure to test the collected oil prior to offloading made the company
completely responsible for the ensuing loss:

[142]    Finally, I should note
that there was some suggestion by the defendants that Enviro West was entirely
responsible for this loss by virtue of failing to test the tanker truck oil for
PCBs prior to offloading into its storage tanks. The defendants say that had Enviro
West conducted such testing prior to offloading the PCB contaminated waste oil,
the loss would have been entirely or at least substantially avoided.

[32]

This proposition, she said, was a version of the last clear chance
doctrine, no longer applicable in British Columbia: see
Lowe v. Insurance
Corp. of British Columbia
, 2002 BCCA 514;
Lawrence v. Prince Rupert
(City),
2005 BCCA 567; and
Dyke v. British Columbia Amateur Softball Assn.,
2008 BCCA 3.

Discussion

a)
Standard of
Review

[33]

Consideration of a case such as this must begin with recognition of the
limited role of this court on appeal. We may only interfere with an order where
it is demonstrated that the order was made on a mistake of law or principle, or
in respect to a factual matter, there is an obvious (palpable) error that is
material to the outcome (overriding):
Housen v. Nikolaisen
, 2002 SCC 33,
[2002] 2 S.C.R. 235. This high hurdle on issues of fact reflects deference to
the trial function, and recognizes the complex role of a trial judge charged
with the task of hearing all of the evidence, making findings of credibility
and determining the facts on a balance of probabilities.

b)
General Framework of
Contributory Negligence

[34]

The appellants claim of contributory negligence is governed by
s. 1(1) of the
Negligence Act
, R.S.B.C. 1996, c. 333:

1 (1)     If by the fault of 2 or
more persons damage or loss is caused to one or more of them, the liability to
make good the damage or loss is in proportion to the degree to which each person
was at fault.

[35]

The foundational principle of contributory negligence was laid out by
the Privy Council in
Nance v. B.C. Electric Railway
, [1951] A.C. 601, and
applied, for example, by this court in
Alberta Wheat Pool v. Northwest Pile
,
2000 BCCA 505, 80 B.C.L.R. (3d) 153. Writing for the majority in
Alberta
Wheat Pool
, Mr. Justice Finch (now C.J.B.C.) described the duty of care applicable
to a claim of contributory negligence as the duty to take reasonable care on ones
own behalf.

[36]

In
Bradley v. Bath
, 2010 BCCA 10, 1 B.C.L.R. (5th) 228, Mr.
Justice Tysoe for the Court adopted at para. 25 the description of contributory
negligence in John G. Fleming,
The Law of Torts
, 9th ed. (Sydney: LBC
Information Services, 1998) at 302 as follows:

Contributory negligence is a plaintiffs failure
to meet the standard of care to which he is required to conform for his own
protection and which is a legally contributing cause, together with the
defendants default, in bringing about his injury. The term contributory negligence
is unfortunately not altogether free from ambiguity. In the first place,
negligence is here used in a sense different from that which it bears in
relation to a defendants conduct. It does not necessarily connote conduct
fraught with undue risk to
others
, but rather failure on the part of the
person injured to take reasonable care of himself in his
own
interest.
... Secondly, the term contributory might misleadingly suggest that the
plaintiffs negligence, concurring with the defendants, must have contributed
to the
accident
in the sense of being instrumental in bringing it about.
Actually, it means nothing more than his failure to avoid getting hurt ...

[Emphasis
in original; footnotes omitted.]

c)
The
Claim of Contributory Negligence Against Enviro West

[37]

There are, therefore, two questions to be answered in considering a claim
of contributory negligence: did the plaintiff fail to take reasonable care in
its own interests; and if so, was that failure causally connected to the loss
the plaintiff sustained. The submissions of the appellants, analytically, are
directed mainly to the first issue. In saying that the judge failed to consider
all the relevant factors, and omitted consideration of a body of evidence, the
appellants are saying there are fatal flaws in the reasoning process employed
by the judge in concluding that Enviro West did not fail to take reasonable
care of itself.

[38]

To some degree the submissions of the parties miss each other, and such
was the case with the written submissions at trial. Enviro West was focused on
the potential for finding contributory negligence through the actions of the
driver and specifically the criticisms levelled at him for pumping the PCB
laden oil into his truck, for failing to obtain a signature on the manifest, for
mixing other waste oils with the PCB laden oil, and for permitting the
collected waste oil to be pumped into the storage tank without prior testing,
all in the face of the verbal warnings provided by mine personnel and the various
labels and warning signs posted and seen by him at the mine. The judge dealt
with these criticisms in a comprehensive manner, holding that the impugned
actions of the driver did not amount to contributory negligence. In doing so,
faced with conflicting evidence as to the content of certain conversations and
the timing of events, the judge carefully sorted the evidence and made her
findings based on the body of evidence before the Court, as she was bound to
do. Her conclusions in this respect are, in my view, unassailable. Without
attempting to create an exhaustive list, her treatment of these criticisms includes
the following: the judges conclusions at para. 129, replicated above,
regarding Enviro Wests failure to obtain a completed manifest signed by the
customers representative; the judges conclusion that the incomplete nature of
the manifest was not causally connected to the damages sustained by Enviro
West; the judges treatment of the driver, his knowledge, his actions and
inactions, and her acceptance of his explanation for failing to appreciate the
significance of the imprecise information given to him and thus not recoiling
upon hearing the words hot and PCBs; and the judges conclusion regarding the
timing of the drivers statement to personnel at the Enviro West office that he
had been told the waste oil was hot or had high PCBs.

[39]

However, the criticisms of Enviro West advanced by the appellants, and
in particular Copper Mountain, went further and were explored by the appellants
in the evidentiary phase of the trial. Enviro West witnesses were asked
questions at trial about the training provided to Enviro West staff, the
breadth of its business, the hazardous waste licensing system and its corporate
knowledge of the licensing restrictions constraining its activities, and the
response that should have been provided by Enviro West office personnel upon
being told that the waste oil contained PCBs.

[40]

At trial, Enviro West disputed the allegation that Boundary Electric had
told Enviro Wests Kelowna officer manager that the oil to be removed from the
transformer contained PCBs. The judge, however, found that such information had
been provided to Enviro West before the driver was dispatched, although, as
everyone agreed, no information was communicated regarding the PCB
concentration level. Upon that finding, the evidence of Enviro Wests General
Manager that a call from a customer requesting collection of oil containing
PCBs should have triggered a question in response regarding the concentration
of PCBs, as well as a request for documentation of test results, became
relevant. Yet there is no discussion of the General Managers expectations in
this regard in the reasons for judgment.

[41]

Similarly, there is no discussion in the reasons for judgment of other
evidence relevant to contributory negligence adduced at trial that was not
directed to the issue of the drivers conduct, including:

1)       evidence
from the General Manager that the Kelowna office should ensure drivers are
aware of the serious implications of transporting oil with PCB concentrations
over 50 ppm, and his evidence that, if drivers were not aware of this threshold,
someone had dropped the ball;

2)       evidence
from Enviro Wests founder and Chief Executive Officer, who has extensive experience
in the industry, that he expected his employees to be aware of the meaning of
labels required by the Federal Government to identify high levels of PCBs,
which labels were present at the mine, but which neither the Kelowna Operations
Manager nor the driver knew the import of;

3)       the
lack of guidelines or written policies in place at Enviro West to ensure
employees or middlemen knew their statutory obligations relating to PCBs; and

4)       evidence
that Enviro Wests founder and Chief Executive Officer had, in the past, advocated
against acting on a presumption of good faith in dealing with waste removal
customers and had advocated for testing, which was not performed by Enviro West
until immediately after the incident.

[42]

In my view, this evidence is material to the issue of Enviro Wests fulfillment
of its duty to take reasonable care in its own interests, and reasons for
judgment on the contributory negligence claim that do not consider Enviro
Wests corporate behaviour, characterized by the appellants as systematic, fail
to fully address the content of the requisite standard of care.

[43]

The judge observed in her reasons for judgment that a finding of
contributory negligence risks putting too high a burden on the driver, saying that
it could be unreasonable to expect him to act as the gatekeeper. This
observation reflects an approach to the issue of contributory negligence that
focuses solely on the drivers behaviour, rather than on the behaviour of
Enviro West
qua
a hazardous waste collector and transporter. The
observation, however, does fairly measure the responsibility of the driver in
these circumstances, given his apparent lack of training on the limitations of his
employers hazardous waste carriage licence and the import of those
limitations, and the apparent lack of information provided to him when he was
dispatched to the mine. The latter resulted from the appellants negligence,
for which they have been held accountable, but the former is a circumstance within
the control of Enviro West that received no consideration in the reasons for
judgment.

[44]

The question should be asked whether, with prudent enquiry as to the
nature of the cargo to be collected and basic training on hazardous materials
and the scope of Enviro Wests licence to transport hazardous waste, a
reasonable driver confronted with a similar situation would behave differently.
We know that on a daily basis drivers throughout the province safely collect,
transport and off-load hazardous materials. Likewise, employees regularly engage
in the proper handling of other materials associated with serious risk, such as
asbestos. The problem identified by the judge of the driver being asked to act
as the gatekeeper may not arise where the corporate organization, in the words
of the General Manager, has not dropped the ball, but the judge did not
advert to this aspect of the appellants claim in contributory negligence.

[45]

In determining whether, on a full consideration of the evidentiary
record and the findings of the judge regarding the circumstances of the
incident, contributory negligence was established, I am mindful that the judge
found that Enviro West had never handled cargo with high levels of PCBs. This
finding helps explain why events unfolded as they did, but it does not respond
to the testimony of Enviro Wests General Manager that information of PCB
content should trigger further enquiry, the evidence that old transformers are
a known PCB risk, or the tenor of the evidence from Enviro Wests founder and Chief
Executive Officer regarding the dangers of PCB contamination and the components
of safe practice. Likewise, I recognize that the judge found there was no
evidence of an industry standard of testing. However, this conclusion does not address
the evidence from Enviro Wests senior management regarding the need in such
situations to gather more information before dispatching a driver to pick up a customers
waste oil.

[46]

I should comment, as well, on the judges reference to the doctrine of
last clear chance. She remarked that the appellants submission that the collected
oil should have been tested before being off-loaded was a version of that
doctrine, which is no longer applicable in British Columbia. Although my
conclusion rests on the larger issue of the applicable duty in contributory
negligence and its application to a hazardous waste collector in this case, I
would not agree that the last clear chance doctrine was a spectre here. The
abolition of this doctrine, as admirably described in the cases to which the
trial judge referred, penned by Mr. Justice Esson (
Lawrence v. Prince Rupert
(City),
in dissent) and Mr. Justice Donald (
Dyke v. British Columbia
Amateur Softball Assn.
), prevents an either/or analysis in the assessment
of liability. To use Mr. Justice Donalds phrasing, the change in the law requires
us to view multiple fault situations as a web rather than a chain of events
and actors. I do not understand how the submission that the cargo should have
been tested prior to off-loading can be seen as an either/or claim when it is made
in the context of a claim of contributory negligence. Indeed, it seems to me
that the essence of a claim of contributory negligence is a denial of the last
clear chance doctrine.

[47]

In her reasons for judgment, the judge referred to the regulatory scheme
governing hazardous waste, relying upon it in finding a breach of the duty of
care owed by each of the appellants to Enviro West:

[80]      Legislative standards are a relevant factor in
determining the common law standard of care, and a breach of a statute is
evidence of negligence (
Ryan v. Victoria (City)
, [1999] 1 S.C.R. 201).
Here the handling and disposal of hazardous waste is regulated by both the
federal and provincial government through several statutes and regulations
including, most notably, at the time of the incident, the
Environmental
Management Act
, S.B.C. 2003, c. 53 (
EMA
), the
Hazardous Waste
Regulation
, B.C. Reg. 63/88 (
HWR
), and the
Canadian
Environmental Protection Act, 1999
, S.C. 1999, c. 33 (
CEPA
).

[81]      The
EMA
and the
HWR
govern the
handling, transport, recycling, and disposal of hazardous waste within British
Columbia.

[82]      Hazardous waste is a defined term in s. 1 of the
HWR
and includes both PCB wastes and waste oil. As of August 2008, s. 10(1) of the
EMA
and s. 46(1)(e) of the
HWR
, prohibited a person who produced or stored a
hazardous waste from using or allowing any hazardous waste with 500 g or more
of PCB to be transported from the property where he or she produced or stored
that hazardous waste, unless the person first completed the part of the
manifest that applied to him or her and filed the manifest in the prescribed
manner. The person was also required to ensure that the person transporting
hazardous waste with 500 g or more of PCBs from the place where it was produced
or stored had a licence for that purpose. Finally, the person who produced or
stored the hazardous waste containing 500 g or more of PCBs was prohibited from
causing or allowing that hazardous waste to be transported to a place unless
the place is authorized to store PCBs.

[83]      The
HWR
also defined the term consignor.
In August 2008, consignor was defined as a person to whom s. 10(1) of the
EMA
applied because the person (a) produced or stored hazardous waste, and (b)
caused or allowed more than the quantity of hazardous waste prescribed in this
regulation to be transported from the property where it was produced or stored.
A consignor was prohibited by s. 44 of the
HWR
from offering to
transport 5 litres of hazardous waste containing PCBs without first obtaining a
Provincial Identification Number and writing that number on every manifest the
person was required to use under s. 10(1) of the
EMA
.

[84]      In addition, PCBs are regulated by the federal
Transportation
of Dangerous Goods Act, 1992
, S.C. 1992, c. 32 and the
Transportation of
Dangerous Goods Regulations
, S.O.R./2008-34 (
TDG Regulations
). In
August 2008, s. 2.2(1) of the
TDG Regulations
directly placed the
responsibility for classification of the dangerous good on the consignor, where
classification as defined in Part 1 of the
TDG Regulations
means
shipping name, primary class, compatibility group, subsidiary class, UN number,
and packing group.

[85]
The legislative scheme quite properly places the
burden on the waste generator and the consignor to classify and identify the
hazardous waste
. By placing the responsibility on the generator and/or
consignor, the legislative scheme is designed to prevent waste from entering
the wrong waste stream, as obviously occurred in this case.

[Emphasis
added]

[48]

I agree entirely with the judge in her conclusion that the regulatory
scheme places a significant burden upon the waste generator. For that reason, a
high standard of care in relation to the communication of information will normally
be applied to the waste generator, and greater responsibility assigned to it
than to others involved in the stream of hazardous waste removal. Yet this
conclusion does not answer the question of the content of the hazardous waste
collectors duty to itself, which is the duty in issue here. To put it another
way, finding that the waste generator breached its obligation to provide
information does not inoculate the waste collector from the requirement that it,
too, act with reasonable care.

[49]

There are, in my view, important questions to be considered in a claim
of contributory negligence as between waste generators and a waste collector
and transporter. With respect to hazardous waste, the parties are operating within
a highly regulated industry, and from generation to the ultimate destruction of
the waste, the legislative scheme imposes limits, obligations and penalties on all
the parties involved. The factors described in
Wainwright
as the tools
by which compliance with the requisite standard of care is measured, namely the
foreseeability of risk; the likelihood of damage; the seriousness of the
threatened harm; the cost of preventative measures; the utility of the
defendants conduct; any circumstances of emergency; compliance with approved
practice or custom; and post-accident measures, are useful, although perhaps
not exhaustive. It must be borne in mind that
Wainwright
was a case dealing
with primary, rather than contributory, negligence and that the plaintiff in
Wainwright
had been expressly told that the risk that ultimately materialized,
flammability, was not present. Thus
Wainwright
, while helpful with
regard to the standard of care owed by those who generate hazardous waste, is
less illuminating on the subject of contributory negligence and the duty of a
party situated down the waste stream from the waste generator to be reasonably
vigilant in looking out for its own safety. The
Wainwright
factors, in
the least, must be adapted to the party whose conduct is under examination,
harkening to the approach described by Professor Fleming.

[50]

I respectfully conclude, therefore, that there is a portion of the
appellants claim in contributory negligence, and considerable evidence
material to the issue, that is not insignificant and that was not addressed by
the judge in her reasons for judgment. In consequence, in my view, the order
dismissing the claim in contributory negligence must be set aside. This conclusion
leads to two possible courses of action: remitting the claim in contributory
negligence to the trial court, or substituting our own order as we are
empowered to do under s. 9 of the
Court of Appeal Act
.

[51]

On balance, I consider there is much value in remitting the matter to
the trial court for determination, including such additional fact finding as
may be necessary, consideration of such factors as the trial court considers
bears upon compliance of Enviro West, in its role as a waste collector and
transporter, with its duty to take care in its own interests, and, in the event
there is a finding of contributory negligence, assignment of the respective
degrees of fault, which is by s. 6 of the
Negligence Act
, a
question of fact.

[52]

I therefore would set aside the order dismissing the claim in contributory
negligence and remit the matter to the trial court for determination in the
manner it considers appropriate.

The Honourable Madam Justice Saunders

I AGREE:

The
Honourable Madam Justice Kirkpatrick

I AGREE:

The Honourable Mr. Justice
Tysoe


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Van Buskirk,

2012 BCCA 34

Date: 20120118

Docket:
CA036409

Between:

Regina

Respondent

And:

Brent William Van
Buskirk

Appellant

Before:

The Honourable Mr. Justice Tysoe

The Honourable Madam Justice Neilson

The Honourable Mr. Justice Hinkson

On Appeal from: Supreme
Court of British Columbia, December 10, 2007
(
R. v. Van Buskirk,
2007 BCSC 1925, Victoria Dockets 130269 & 130270)

Oral Reasons for Judgment

Counsel for the Appellant:

P. M. Fullerton

Counsel for the Respondent:

M.J. DeWitt-Van
  Oosten, Q.C.

Place and Date of Hearing:

Victoria, British
  Columbia

January 18, 2012

Place and Date of Judgment:

Victoria, British
  Columbia

January 18, 2012

[1]

TYSOE, J.A.:
The appellant was found to have committed the
offences of contempt of court, murder and two conspiracies to commit murder. He
was sentenced as a youth under the
Youth Criminal Justice Act
, S.C. 2002,
c. 1, in respect of the murder, and he was sentenced as an adult in
respect of the other three offences. This appeal relates to his sentences for
the two conspiracies to commit murder, which the appellant says are unfit as a
result of the operation of s. 743.5 of the
Criminal Code
.

[2]

The convictions for contempt of court and murder both related to a
contract killing of a man outside his home. The appellant shot the man in the
back of his head with a .45 calibre handgun in August 2004. At the time, the
appellant was a few days away from his eighteenth birthday.

[3]

Another man, named Mr. Abu-Sharife, was also charged in connection
with the murder. The appellant refused to give evidence at the trial of Mr. Abu-Sharife,
who was ultimately found not guilty. The appellant was held to have committed
contempt of court and, on December 21, 2006, he was sentenced by Mr. Justice
Grist to two years incarceration (2006 BCSC 1981).

[4]

Mr. Justice Groberman sentenced the appellant for the murder on
November 30, 2007 (2007 BCSC 1924). It was agreed that the appropriate
length of the sentence was the maximum youth sentence of 10 years, consisting
of up to six year custody and the balance under conditional supervision to be
served in the community.

[5]

Mr. Justice Groberman held that the murder sentence should be
consecutive to the contempt sentence and that the appellant should be given a
one-to-one credit on the murder sentence for the period of his pre-sentence
custody. The result was a sentence of four years and two months custody and
four years community supervision.

[6]

The sentencing for the two conspiracies to murder also came before
Mr. Justice Groberman, and the sentences imposed by him are the ones that are
the subject matter of this appeal. The sentences were imposed on December 10,
2007 (2007 BCSC 1925).

[7]

The first charge involved a conspiracy to murder competitors of Mr. Abu‑Sharife
in the drug trade. It was planned that the appellant would detonate a plastic
explosive in a night club, killing the competitors and other people in the
club. Efforts were made to obtain the explosive, but it was not procured. Mr. Abu-Sharife
was also charged, and he received an effective eight year sentence after
pleading guilty.

[8]

The second charge involved a conspiracy with someone else to kill an unidentified
person in Whistler. The planning did not get past the stage of travelling to
Whistler to conduct preliminary reconnaissance. The co-conspirator was awaiting
trial at the time of the appellants sentencing.

[9]

Mr. Justice Groberman concluded that the appropriate sentences for
the two conspiracies were eight years and six years imprisonment,
respectively, to be served concurrently. He disagreed with the defence position
that the conspiracy sentence should be concurrent to the murder sentence. Mr. Justice
Groberman also concluded that the appellant should be given additional credit
in respect of his pre-sentence custody because he had only received one-to-one
credit when he was sentenced for the murder, and he gave a further one year
credit. The result was concurrent sentences of seven and five years
imprisonment.

[10]

The appellant does not say that the sentences for the conspiracy
offences are themselves unfit, but contends that the sentences offend the
totality principle as a result of the operation of s. 743.5(1) of the
Criminal
Code
, which provides that the youth sentence is to be dealt with as if it
had been a sentence imposed under the
Criminal Code
as a result of the
fact that the adult sentences for the conspiracy offences were imposed while
the appellant was subject to the youth sentence. Subsection (3) of s. 743.5
states that, for greater certainty, the youth sentence and the adult sentence
are deemed to constitute one sentence of imprisonment for the purposes of s. 139
of the
Corrections and Conditional Release Act
, S.C. 1992, c. 20
(the
CCRA
). Section 139 of the
CCRA
provides that, if a person
serving a sentence receives another sentence, the person is deemed to have received
one sentence such that the two sentences are merged.

[11]

The appellant has provided an affidavit sworn by a representative of the
Correctional Service of Canada in October 2008 to the effect that in
calculating the appellants parole eligibility, the full length of the youth
sentence, and not just the custodial component of the sentence, is to be taken
into account. The appellant says this has the effect of transforming the entire
youth sentence into a committal to custody and results in a custodial sentence
that is four years longer than Mr. Justice Groberman intended.

[12]

Our attention has been drawn to a decision of the Federal Court of
Appeal that post-dates the affidavit provided by the appellant. In
P. (J.)
v. Canada (Attorney General)
, 2010 FCA 90, 253 C.C.C. (3d) 425, the
offender received a youth sentence for second degree murder consisting of a 22
month custodial portion and a 36 month conditional supervision portion. He was
over 20 years of age at the time of his sentencing and, as a result of s. 89(1)
of the
Youth Criminal Justice Act
, he was committed to a provincial correctional
facility for adults to serve his sentence. The National Parole Board calculated
the offenders parole eligibility in the same fashion as the Correctional
Service did in the present case; namely, the length of the sentence for the
purpose of the calculation included both the custodial portion and the
conditional supervision portion.

[13]

The offender challenged the calculation of the National Parole Board by
way of judicial review, taking the position that the calculation should only be
done on the custodial portion of the youth sentence. The judicial review
application was successful in the Federal Court, and its ruling was upheld on
appeal. The Federal Court of Appeal concluded that the term sentence as
defined in s. 2 of the
CCRA
, and as used in sections 119 and 120 of
the
CCRA
to calculate parole eligibility, means only the custodial
portion of the youth sentence.

[14]

The appellant in this case has not sought to judicially review the
decision of the Correctional Service and urges us to decide the appeal on the
basis that its decision is correct. However, I have difficulty in determining
this appeal on that basis because I have reservations as to the correctness of
the decision of the Correctional Service. It would seem to me that there is an
argument of some substance that the reasoning in
P. (J.)
applies to the
present situation and that the result is not affected by the provisions of s. 743.5
of the
Criminal Code
.

[15]

In my view, it would not be appropriate for us to make a definitive
decision on the correctness of the Correctional Services position. The Federal
Crown is not a party to this appeal, and no submissions have been made on its
behalf. In addition, a decision by us on the point in this appeal would not be
binding on the Correctional Service or the National Parole Board.

[16]

The situation produces a form of stalemate. I would not be willing to
decide the appeal on the assumption that the decision of the Correctional
Service is correct, nor am I prepared to make a determination as to whether the
decision is correct or not. We cannot force the appellant to seek judicial
review of the decision of the Correctional Services.

[17]

In these circumstances, I have concluded that the appropriate course of
action is to stay the appeal, with liberty to apply for a dissolution of the
stay in the event of a determination by the Federal Court that the decision of
the Correctional Service is correct.

[18]

NEILSON J.A.:
I agree.

[19]

HINKSON J.A.:
I agree.

[20]
TYSOE J.A.:
The
appeal is stayed with liberty to apply for a dissolution of the stay in the
event of a determination by the Federal Court that the decision of the
Correctional Services is correct.

The Honourable Mr. Justice
Tysoe


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Cassells v. Ladolcetta,

2012 BCCA 27

Date: 20120119

Docket: CA037506

Between:

John Franklin
Cassells

Respondent

(Plaintiff)

And

Meeyoung
Ladolcetta and
Adrian Tatsuki Wilding

Appellants

(Defendants)

Before:

The Honourable Madam Justice Levine

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Frankel

On appeal from: Supreme
Court of British Columbia, August 25, 2009
(
J.F.C. v. Ladolcetta
, 2009 BCSC 1151, New Westminster Docket M102443)

Counsel for the Appellants:

S. B. Stewart and M. D.
  Wilhelmson

Counsel for the Respondent:

D. N. Osborne

Place and Date of Hearing:

Vancouver, British
  Columbia

November 9, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 19, 2012

Written Reasons by:

The Honourable Mr. Justice Lowry

Concurred in by:

The Honourable Madam Justice Levine

The Honourable Mr. Justice Frankel

Reasons for Judgment of the Honourable
Mr. Justice Lowry:

[1]

In October 2005, when he was a 32-year-old plumbing apprentice, the plaintiff
(respondent) was involved in a head-on collision.  In November 2006, he
commenced this action for damages to compensate him for the injuries he
suffered.  It was tried over the course of three weeks in 2009 before Mr. Justice
N. Brown who, on the evidence of 19 witnesses plus 17 expert witnesses, found
the named defendants solely responsible for the accident and made a substantial
award against them.  His 77-page judgment is indexed as 2009 BCSC 1151.

[2]

The respondent had for some time suffered from, and been treated for,
skin psoriasis.  He was found to have also manifested an early indication of
psoriatic arthritis.  After the accident, in time the psoriasis became
particularly bad and the psoriatic arthritis became fully developed to the
point that the respondent was no longer able to do the physical work of a
journeyman plumber for which he had apprenticed.  The primary issue at trial
was whether, and if so the extent to which, the accident had served to aggravate
the respondents pre-existing disease.

[3]

The defendants now raise three grounds of appeal.  They first contend
the judge made an error of fact in finding, as he did, the accident had caused
a serious life-altering aggravation of the respondents pre-existing medical
condition.  They then say that, while the respondent was found to have failed
to some extent to mitigate his loss by refusing recommended treatment, the
judge erred in principle and in fact in not finding the respondent should have
taken the treatment much earlier than the judge suggested and thereby mitigated
his loss to a much greater extent.  Finally, they say the award of damages is
inordinately high.

The Aggravation of Psoriasis and Psoriatic Arthritis

[4]

While the focus at trial was primarily on the respondents psoriasis and
psoriatic arthritis, he was otherwise quite badly injured in the accident.  In
particular, he suffered extensive soft tissue injury to his neck, thoracic and
lumbar spine, right shoulder, elbow, and right knee, as well as a compression
fracture in his lumbar spine, all which left him with residual symptoms that it
was said he would continue to experience to some degree.  In addition, he
sustained a minor frontal lobe brain impact injury and he developed what the
judge found to be a subclinical post traumatic stress disorder.  The judge
compared his life before the accident with what it was afterward, as follows:

[30]      At this time in his life it is clear from the
evidence that the plaintiff was functioning well, even without benefit of
Willows intensive therapy and its usual remissionary effects.  He was happy,
optimistic, and looking forward to becoming a journeyman plumber, to making a
lot of money, and eventually to marriage and children.  Apart from his
psoriasis, he was in good mental and physical health.

[31]      It is equally clear
that within three years after the accident, his health and psychological state
had deteriorated to the extent it led Dr. M. W. Jones, a neurologist who
examined him with respect to his concussion, to comment in his report, Its
rather sad and upsetting to see what has happened to this gentleman over the
last 3 years in terms of his overall dramatically decreased Quality of Life.

[5]

The defendants contend the change in the respondent may be in large part
attributable to the psoriasis and psoriatic arthritis from which he suffers,
but say the evidence does not establish that is a consequence of the accident.
They say, in particular, the judges conclusion in this regard is based on
expert opinion for which there is no empirical medical evidence.  It is, they
say, opinion that should have been afforded no weight  it had no evidentiary
value  such that the judge made an overriding and palpable error in relying
upon it to make the findings of fact he did.

[6]

The judge described psoriasis and psoriatic arthritis as follows:

[15]      The evidence of the medical experts explained that
psoriasis is what is thought to be an auto-immune mediated skin disease that
can fall anywhere on a graph between a minor nuisance to grave condition.  It
is not curable, but in most cases treatment can control it, with varying
degrees of success.  Most people with this condition can work and live their
lives mostly unimpeded, but in some cases it can be a challenging, even
debilitating, and worse, disease to live with.  Dermatologists usually treat
psoriasis.

[16]      Psoriatic arthritis is
a form of arthritis closely connected to psoriasis.  It is also thought to be
auto-immune mediated.  Not all people with psoriasis develop psoriatic
arthritis, which typically presents itself in some form within 10 years,
usually in peripheral joints.  Rheumatologists treat psoriatic arthritis, so
psoriatic arthritis patients consult with two specialists, one to treat the
skin, the other the joints.

[7]

The respondent was diagnosed with psoriasis in 1992, when he was 19 or
20.  The psoriasis would wax and wane.  It had on occasion covered as much as
60% of his body.  In 2002, he took a course of phototherapy treatment at the
Willow Skin Clinic which was effective in substantially reducing the psoriasis
on his skin.  The therapy was repeated perhaps three times before the
accident.  It was not a cure but would retard the psoriasis coverage on his
body to as little as 6%.  The psoriasis would then return incrementally until
he had the next treatment.  He took only one treatment after the accident, in
January 2006.  Psoriasis can, over a period of years, lead to psoriatic
arthritis, but prior to the accident the respondent had no generalized symptoms
in his joints.  The indication he had the disease was a discomfort in his foot
(said to have been plantar fasciitis) in 2003 that he overcame using prescribed
orthotics.

[8]

After the accident, the respondents psoriasis continued to wax and wane
but in time it became worse and the psoriatic arthritis took hold and became
symptomatic, apparently beginning with what he described as a flare involving
his ankles, Achilles tendon at the back of his right foot, his right toe,
elbow, the small of his back, and right knee soon after the accident.  The
respondent convalesced for four months before returning to work.  It appears
that his medical concerns in 2006 were as much or more related to the other
injuries he had suffered, and emotional difficulties he was having, as they
were to the psoriasis and arthritis, although, as indicated, he underwent
treatment at the Willow clinic in January.

[9]

Things appear to have turned for the worse in the fall of 2006 in
respect of his skin condition and, although he was working, he was having great
difficulty because of the arthritis in his ankles and feet in particular, and
the fatigue the arthritis caused.  The judge followed the course of the
respondents deterioration thereafter in great detail.  All of his difficulties
caused him to stop working in June of 2007 and abandon his hope of becoming a
journeyman plumber.  His life from the time of the accident had been one of
unending medical attention from many doctors of differing disciplines, as well as
seeing a psychologist, a physiotherapist, and a vocation counsellor.
Consistent with the expert opinion he accepted, the judge concluded that all the
plaintiff had suffered, physically, psychologically and emotionally, had served
to aggravate his psoriasis and psoriatic arthritis.  He concluded as follows:

[189]  ... All of the plaintiffs
injuries and associated symptoms, including those from his mild concussive
frontal lobe injury, his subclinical PTSD and its symptoms, the stress and
anxiety he experienced related to pain from his soft tissue injuries, his
incrementally worsening psoriasis and psoriatic arthritis, and his inability to
work operated over time to produce a serious depression.  These factors in
varying degrees punctuated the plaintiffs experiences from the time of the
accident onwards, and produced the levels of psychological stress that produced
the ongoing exacerbation of the plaintiffs condition that plaintiff experts
identified as the cause of the worsening of the plaintiffs psoriasis and
psoriatic arthritis.  Given the extensive evidence heard, I find this
consilient view of the evidence and medical opinions removes the need to reduce
judicial findings to specific diagnostic categories; at the same time more
accurately reflecting the actual subjective experiences of the plaintiff.  These
causative stressors were caused directly or indirectly by the accident, subject
to consideration of mitigation arguments.

[10]

To reach that conclusion, the judge had to decide whether psoriasis and
psoriatic arthritis could be aggravated by trauma and stress such as the
respondent suffered.  Opinion evidence of rheumatologists and dermatologists as
well as psychiatrists and other physicians bearing on the point in varying
degrees was tendered on both sides.  After thoroughly reviewing all of the
expert evidence adduced, the judge concluded:

[153]    Given the evidence
before me from rheumatologists and dermatologists, as well as Dr. OShaughnessy
and other experts called, there are sound and substantial reasons for
concluding that emotional trauma/stress, as well as physical trauma, may
exacerbate both psoriasis and psoriatic arthritis, and I so find.

[11]

The conclusion is consistent with the opinion of Dr. Dafna Gladman,
recognized to be the leading rheumatologist in Canada on psoriatic arthritis,
upon which the judge relied.  She wrote:

With regards to the relationship
between the psoriatic arthritis and the motor vehicle accident, since [the
respondent] had evidence of psoriasis and possibly psoriatic arthritis
(presence of plantar fasciitis a couple of years before the accident), one
could not claim that the accident led to the development of psoriatic
arthritis.  However, it is quite possible that the accident precipitated more
severe psoriasis and more aggressive psoriatic arthritis.  In [the
respondents] case, although the trauma did not cause the psoriatic arthritis,
it certainly made it worse.  We have seen this response to trauma among our
patients with psoriatic arthritis.

[12]

Dr. Gladman referenced various medical papers written on the subject
that she considered supported her opinion to some extent and was cross-examined
at length in that regard.  She acknowledged there were shortcomings in much of
what she referenced and accepted that the research on the subject of the effect
of trauma and stress on psoriasis and psoriatic arthritis is limited.  She
explained that is because the cost and time required to undertake a definitive
study would be prohibitive.  With respect to this aspect of her evidence in particular,
the judge said:

[140]    As the trier of fact, I do not see this case turning
completely one way or the other on the scientific literature; cases seldom do.
From the literature reviewed and the considerable time spent on examination and
cross-examination on it, it was obvious that the investigators themselves
believe there is a connection between physical and emotional trauma and onset
of psoriatic arthritis there to be empirically shown. Some of the (better)
studies find supporting data, but not all; all the studies are flawed in
various ways, some of the flaws discernible without expert assistance. These
are, however, the best studies available.

[141]    Scientific literature in
given fields may offer widely varying degrees of empirically rich probative
information, and no authority is needed to justify say[ing] that even perfectly
designed generously endowed ones producing relatively clear findings will not [be]
pre-eminently conclusive in the courtroomespecially unless the results are then
gathered into a clear consensus within the specialist scientific community. And
there also, one would logically still expect clinical experience to play some
part in the formation of that consensus. Further, while it is apparent that Dr.
Gladman cited research in support of her opinion, as did Dr. Shuckett, it
remained an opinion that remained foundationally formed around her knowledge of
the disease and thirty years of clinical experience and study. It is obviously
appropriate for a specialist to make reference to the best available scientific
literature; they might be subject to criticism for not doing so in some cases;
but citing it does not necessarily automatically signal that it has become the
only foundation for the opinion expressed, which it evidently was not in this
case.

[13]

The defendants challenged reliance on Dr. Gladmans evidence on
essentially the same basis at trial as they do now.  Their contention was and
remains that her opinion was based on what they say is novel science: no
scientific data established, beyond mere speculation, that her theory was
valid.  They say that at most the theory is an unproven hypothesis.  They cite
the criteria for evaluating the soundness of novel science found in
R. v.
Mohan
, [1994] 2 S.C.R. 9, 89 C.C.C. (3d) 402, as drawn from
Daubert v.
Merrell Dow Pharmaceuticals, Inc.
, 509 U.S. 579, 113 S.Ct. 2786 (1993), and
discussed in
Taylor v. Liong
, 2007 BCSC 231, [2007] 7 W.W.R. 50.

[14]

The judge said the criteria pertain to the admissibility of expert
evidence.  Admissibility requires the weighing of threshold reliability.  No
issue had been taken with the admissibility of Dr. Gladmans opinion which it
was evident is consistent with a widely held belief in the scientific
community.  Quoting from
R. v. Terceira
(1998), 38 O.R. (3d) 175, 123
C.C.C. (3d) 1 (C.A.), affd [1999] 3 S.C.R. 866, to the effect the threshold
test of reliability must adapt to changing circumstances, the judge said that,
in the face of studies that did reflect a wide provisional acceptance of
Dr. Gladmans hypothesis, the lack of a conclusive study should not be
fatal to either the admissibility or the weight of her opinion.

[15]

Unlike instances where, as in
Taylor
, the opinion of an expert
which is shown to be no more than uncertain theory has been ruled inadmissible,
here, as the judge said, Dr. Gladman expressed her opinion on the basis of what
she said she had seen in response to trauma among her patients with psoriatic
arthritis.  What is said to be the inconclusive literature she referenced was,
as the judge said, not the only foundation for the opinion she held.  It was an
opinion based on thirty years of her experience.

[16]

The judge reached the ultimate conclusion he did concerning the
aggravation of the respondents psoriasis and psoriatic arthritis relying on
the evidence of the various physicians whose opinions he had to consider.  Dr.
Gladmans opinion on the effect of trauma on psoriatic arthritis is consistent with
the other opinion evidence which the judge found acceptable, as well as with
the evidence of the respondents medical condition and, for that matter, the
deterioration in his life after the accident.  I do not consider there to
be any sound basis on which it can now be said the judge made an overriding and
palpable error in concluding the respondents psoriasis and psoriatic arthritis
were aggravated by trauma and stress attributable to the accident by relying on
Dr. Gladmans opinion.

Mitigation

[17]

The judge reduced the amounts he assessed for the respondents
non-pecuniary loss and his past income loss by 20% and 30% respectively because
he had failed to mitigate those losses by taking medication recommended to him
in the spring of 2007.  The judge did so, at least in part, on the basis of
what he described as a modified subjective approach to determining whether
and to what extent a plaintiff has failed to mitigate loss.  The defendants
contend the failure to mitigate must be assessed on an objective basis, citing
Janiak
v. Ippolito
, [1985] 1 S.C.R. 146, 16 D.L.R. (4th) 1.  They say the
reductions in the judges awards should have been substantially greater.

[18]

The respondent commenced a regime of medication (methotrexate) in 2009
not very long before the trial.  He did so on the advice of Dr. Gladman after
she explained to him, apparently in no uncertain terms, the risks he faced with
respect to the progression of his disease and the benefit he may well derive
from taking the medication.  The medication is not a cure but it has a 40% to
50% success rate in controlling psoriasis as well as reducing joint
inflammation caused by psoriatic arthritis to some degree.  As the judge noted,
Dr. Gladman said the medication may not prevent the progression of joint damage;
anti-inflammatory drugs are more effective at controlling joint inflammation
and damage.  In assessing the amount he awarded the respondent for his loss in
future earning capacity, the judge assumed the treatment would to some extent
be successful and be continued.

[19]

However, the medication was recommended to the respondent by another
physician, Dr. Hong, a dermatologist, in January 2005 and, after the accident,
in December 2005.  In April of 2007, with the respondent suffering to the point
he had to stop working in June, Dr. Hong is said to have again recommended he
take the medication.  On my review of Dr. Hongs testimony, it is less than
clear why it is said he recommended the medication in April 2007.  He said he
saw the respondent then but did no more than refer him to the Willow clinic and
the respondent was unable to be clear as to when Dr. Hongs advice regarding
medication was given.  In the course of submissions, counsel stated the
medication was recommended in April 2007, but it is not evident on what basis
that statement was made.  In any event, the respondent refused the medication.
He did not want to take it.  He apparently had done his own Internet research
and wrongly assessed the risks associated with methotrexate to be substantially
greater than they are.  He said Dr. Hong did not explain the risks and benefits
of the medication to him in the way that Dr. Gladman did.

[20]

In October 2007, Dr. Hong mentioned the opportunity of an alternative
treatment (biologics) which is said to have a success rate of 70% controlling
psoriasis and the progression of joint damage.  That treatment was
prohibitively expensive, but it would have been administered on a trial basis
at no cost.  The respondent did not pursue it.

[21]

The judge took the view that, given the deterioration in his condition
by the spring of 2007, the respondent should within perhaps six months have
commenced the treatment Dr. Hong recommended rather than waiting as he did
another year and a half to do so.  He also found the respondents failure to
address his worsening skin condition in the fall of 2006 with further treatment
at the Willow clinic (having had no treatment since January of that year) made
a significant contribution to the mix of stressors that was exacerbating both
his skin and joint condition.

[22]

With respect to the first year and a half following the accident, to
April 2007, the judge said:

[203]    Since his condition
responded to light therapy in January of 2006 and did improve to some extent in
the summer of 2006, I find it was certainly reasonable for the plaintiff to
refuse to undergo the medications for at least a year and a half.  In making
this finding I note that phototherapy was still being presented to him as a
treatment
option
(albeit his physicians considered methotrexate/biologics
the best choice), and also note his increasingly fragile psychological state.  Until
that point, I cannot find that the risk-benefit equation obligated him to take
medications, especially if his physicians did not fully and clearly explain the
risk/benefit equation to him in the way that the plaintiff says (and I accept)
Dr. Gladman did in January 2009.

[23]

With respect to the next six months, to October 2007, the judge
considered the plaintiffs accident-induced psychological state substantially
inhibited his capacity to make a rational decision.  He said:

There
came an earlier point [earlier than January 2009] however, when it should have
been sufficiently obvious to the plaintiff that his disease was changing, and
that the risk-benefit equation he was facing was now very different from what
it had been before the accident; he could no longer just cope with his symptoms
and expect them to improve.  This should have at least begun to be apparent to
him by [October] 2007, when Dr. Hong offered the plaintiff an opportunity to
participate in the free trial of a new form of biologics.  The plaintiff
declined then, citing having to cope with too many other problems then, and I
note again his fragile psychological state.

[204]    I accept witnesses
testimony about the plaintiffs state of mind and also the fact that Dr.
Gladmans forceful advice left a strong impression on him.  But I remain unable
to find that he was justified in waiting that long to commence treatment,
especially considering that his increasingly fragile psychological state was in
considerable measure related to his failure to follow earlier treatment
advice.  In my view,
Janiak
and
Elloway
[
Elloway v. Boomars
(1968), 69 D.L.R. (2d) 605 (B.C.S.C.)] lends support to making some allowance
for the plaintiffs accident-induced psychological state where it substantially
inhibited his capacity to make the rational decision, as was the case here;
only to the extent the evidence justifies, and bearing in mind that his duty to
mitigate is a positive one owed to the defendant.  In this case, I find that
allowance can be made for the effect of the plaintiffs accident-induced
psychological state on his capacity only to the extent that it excuses some
further delays in coming to the decision he ultimately made  a decision that
in itself demonstrated that Dr. Gladman was able to reason with the plaintiff;
he was ultimately capable of weighing the risks and benefits even though he was
in a fragile psychological state then too.  Dr. Hong may have explained the
risks and benefits in a less forceful way, but he impressed me as a caring and
insightful dermatologist who was genuinely concerned about the plaintiffs well
being.  I find the principles laid out in
Janiak
, and the evidence,
support a finding that within six months or so of the plaintiffs April 2007
discussion with Dr. Hong, he should have commenced a medication treatment
regimen.  This will enter accordingly into my assessment of what is a fair
reduction in damages.

[24]

The judge reasoned he could make the six-month allowance he did in the
respondents favour following Dr. Hongs recommendation in April 2007 based on
the legal analysis he undertook, quoting from
Janiak
.  He said:

[193]    The difficulty in this case lies in the fact the
plaintiff sincerely held strong negative views about taking medications in
general and methotrexate in particular.  His negative views about the potential
ill-effects of methotrexate were fuelled in part by his own misleading internet
research.  In the circumstances of this case, there is no question that based
on a pure objective test, the plaintiff ought to have followed his doctors
advice.  Likewise, if that were all that needed to be considered, the correct
result again is obvious because in Canada the law does not excuse objectively
unreasonable choices, so long as the plaintiff has the requisite capacity to
make them.
Janiak v. Ippolito
, [1985] 1 S.C.R. 146, is the foundational
case for the law of mitigation in Canada.  Wilson J., speaking for the court
explains:

24        Non-pathological but
distinctive subjective attributes of the plaintiff's personality and mental
composition are ignored in favour of an objective assessment of the
reasonableness of his choice. So long as he is capable of choice the assumption
of tort damages theory must be that he himself assumes the cost of any
unreasonable decision.

[194]    Wilson J. refers to
Morgan v. T. Wallis Ltd.
,
[1974] 1 Lloyds rep. 165 at p. 170 to explain the overarching test regarding mitigation:

...I must apply the objective test,
in this sense, would a reasonable man in all the circumstances, receiving the
advice which the plaintiff did receive, have refused the operation? I think
this question must be considered as at the times when his decision was made and
on the basis of the advice he then received...

[195]    Another way of putting this is whether the
reasonable person would refuse the treatment when faced with the risk-benefit
equation before them at the time they are making the decision?  The Court in
Janiak
summarizes the relevant consideration at paragraph 31:

31.       In making his finding as
to the reasonableness or otherwise of a refusal of medical treatment, the trier
of fact will also, of course, take into consideration the degree of risk to the
plaintiff from the surgery ..., the gravity of the consequences of refusing it
..., and the potential benefits to be derived from it ...

[196]    However, the case
becomes less obvious when accident-induced injuries take away the capacity to make
the objectively rational decision. If the plaintiffs capacity is reduced
completely, that is a straightforward case  but less so when accident-induced
injuries have substantially inhibited, though not completely removed the
plaintiffs capacity to think through rationally the risks and benefits of
recommended treatment.

[25]

The judge then quoted further from
Janiak
to support the
proposition that where it is the accident itself that impairs a plaintiffs
ability to make a reasonable decision about treatment, it would appear unjust
to limit his recovery because he failed to mitigate the loss claimed.  The
judge then said:

[199]    Canadian law rejects the
wholly subjective analytical approach of U.S. law.
Janiak
however
leaves the door open to a modified subjective approach where the plaintiffs
decision-making capacity has been less than wholly incapacitated by
accident-induced injuries.  Where it is found on the evidence that the effect
of accident induced injuries has been to inhibit
substantially
the
plaintiffs capacity to make the objectively reasonable choice,
Janiak
,
in my view, leaves it open to the trier of fact to take that commensurately
into account in assessing the degree to which damages should be reduced.

[26]

I agree that if, by virtue of the injury sustained in an accident, a
plaintiff is unable to make a reasonable decision about treatment, the
plaintiff is in no different position with respect to mitigating the loss
suffered than would be the case if, for other reasons unrelated to the
accident, the plaintiffs capacity to make reasonable decisions about treatment
was lacking.  But I cannot accept that means the law prescribes a subjective
test, modified or otherwise.
Janiak
is clear; the test is objective.  I
consider that if a plaintiff had the capacity to make the decision about
treatment it is said ought to have been made, and the advice was sound, the
mitigation question in each instance must be what would be expected of a
reasonable person in the circumstances having regard for the plaintiffs
medical condition at the material time and the advice given concerning
treatment.  If, through no fault of his own, the plaintiff did not have the
capacity to make the decision, or the advice was not sound, the question would
not arise.

[27]

It is not simply a matter of a plaintiff having to follow the advice
given in order to mitigate the loss claimed, as the judge appears to suggest at
the outset of his legal analysis; rather, it is a matter of considering what a
reasonable recipient of such advice would be expected to do in the
circumstances having regard for the nature of the advice and any explanation of
the risks and benefits given.

[28]

That said, I see no basis to interfere with the judges finding that the
respondent could not reasonably have been expected to commence the recommended course
of treatment before the spring of 2007 following the deterioration in his
condition in the fall of 2006.  No question of any subjective consideration
arises.  It was for the judge to assess what was reasonable  what would be
expected of a reasonable person in the circumstances  and it is not plain that
he made any factual error in that regard such as would warrant the intervention
of an appellate court.

[29]

If, as appears to me, the judge found the respondent did not have the
capacity to make a rational decision with respect to commencing the recommended
treatment during the following six months, there is no basis to interfere with
his conclusion.  If, however, it could be said the respondent had the capacity
to make the necessary decision that a reasonable person would in the
circumstances have made to take the recommended medication, there would be no
justification for him not having done so.  But even if that were the case, it
would not, in my view, work any real difference in the mitigation percentages
the judge applied to his awards for non-pecuniary loss and past wage loss,
particularly when the treatment was said to carry no more than a 50% rate of
success.

Damages Assessment

[30]

The judge awarded the respondent $120,000 for his non-pecuniary loss, $108,500
(less some income he earned to be calculated by counsel) for past wage loss,
$275,000 for loss of earning capacity, special damages to be calculated, and
$2,000 for future counselling costs.

[31]

The defendants contend the awards are to some extent inordinately high
but, for the most part, their contention rests on one or both of the first two
grounds of their appeal succeeding.  They do contend the judge failed to take
into account the possibility that the respondents psoriasis would have
worsened and his psoriatic arthritis would have become symptomatic in any
event.  They also contend that the judge failed to consider the respondents
condition may be expected to improve with the treatment he commenced shortly
before the trial.  But, as noted, the judge specifically said he was taking the
treatment into account in his award for the respondents lost earning capacity
and there is no reason to consider he did not do the same in respect of his
award for non-pecuniary loss.  Further, there is nothing in the amount of the
awards to suggest the judge did not take into account what the respondents
life may have been had he not been injured in the accident in a way that
aggravated the disease he had to the extent it did.

[32]

On the view I take of the first two grounds of appeal, I see no basis on
which to interfere with the judges award of damages.

Disposition

[33]

I would dismiss the appeal.

The Honourable Mr. Justice Lowry

I agree:

The
Honourable Madam Justice Levine

I agree:

The
Honourable Mr. Justice Frankel