View the Reasons for Judgment.

What was the case about?

The plaintiff filed a Notice of Civil Claim (NOCC) alleging that RCMP officers prepared false reports portraying him as hostile, dangerous, and aggressive. He claimed these reports negatively impacted his reputation and posed a risk for any future interactions with police.

He felt wronged after contacting the RCMP to file a report, believing officers “turned against [him]” during the interaction. He alleged negligence, misfeasance, Charter breaches (ss. 7 and 15), defamation, a breach of the RCMP Act, and Criminal Code violations. After filing his NOCC, he tried to submit additional documents, but the Registry rejected them as pleadings.

Colton challenged the NOCC on two grounds under Rule 9-5(1), first by arguing that the NOCC failed to plead the material facts to support his claims or allege all the elements of the various proposed causes of action, and second by arguing that the claims were bound to fail.

The Court’s decision

The court accepted both arguments and, crucially, Colton also convinced the court not to grant the plaintiff leave to amend (at para. 67). Often, courts give people a second chance to fix their paperwork, but in this case, the judge ruled the claims themselves were fundamentally deficient and incurable — meaning no amount of rewriting could make them valid legal arguments.

Why This Matters

This result reinforces the high bar for suing public institutions and ensures deficient claims—without a solid legal or factual basis—don’t take up valuable court time.

Congratulations, Colton, on an excellent result for our client!

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The Harris & Brun team took on some of BC’s best ‘lawyers turned athletes for the weekend’ as they hit the slopes in some friendly competition.

Some highlights:

• Jennifer Brun, K.C. placed 2nd in the 41-50 year-old women’s ski category and 4th overall (out of 65) in the women’s ski at 21s 29ms
• Greg Christofferson placed 7th in the men’s 51-60 year-old category at 26s 17ms
• Ryan Monty placed 5th in the men’s 31-40 year-old snowboard category and 7th overall (out of 19) in the men’s snowboard at 29s 30ms
• Christine Castro placed 2nd in the 41-50 year-old women’s snowboard and 3rd overall (out of 11) in the women’s snowboard with a time of 30s 79ms
• Onkar Sohi clocked a time of 32s 51ms
• Connie Sombrea came in with a personal best of 37s 13ms, shaving a significant amount of time off her result from last year!

Ollie participated in his first-ever ski race and commented it was “amazing”! Thus, confirming that the HLBC succession plan for future VBA Ski Race domination is in place and operational. More importantly, great fun was had by all.

A big thank you to the VBA for hosting the event, and to everyone who came out to represent HBLC. Special thank yous to Christine for being our captain and keeping us all organized and to Connie for arranging the celebratory dinner.

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The Tribunal found that the plaintiff had missed several weeks of work following a motor vehicle accident but she successfully completed a graduated return to work and there was no evidence of ongoing workplace restrictions or accommodations thereafter.

The plaintiff had been diagnosed with multiple conditions, including chronic cervical and left shoulder soft tissue injuries, concussion with post-concussive symptoms, tinnitus, and alleged cognitive, psychological, and sleep disturbances. The Tribunal considered numerous IME reports (e.g., psychiatrist, neurologist, neuropsychologist, and physiatrist). Importantly, the Tribunal member assessed each diagnosed condition individually, asking whether it caused functional incapacity – an approach that provides a useful roadmap for assessing MI submissions.

With respect to the concussion, the Tribunal rejected arguments based on post-accident schooling and employment difficulties, finding no evidence of actual restrictions, declined duties, or impact on activities of daily living (ADL).

Regarding psychological conditions, the Tribunal was critical of the psychiatric opinion describing the plaintiff’s impairments as “extreme,” noting that it lacked objective evidence demonstrating actual functional impairment (para. 39). By contrast, the neuropsychologist documented significant improvement, including a successful return to work and the ability to perform ADLs, even if mood issues occasionally affected her functioning (paras. 40-41).

On the physical injury claims, the Tribunal found the physiatrist’s opinion particularly problematic. The opinion suggested that the plaintiff was “substantially unable to perform her essential tasks of normal life,” but failed to explain how the identified limitations translated into real-world functional impairment or affected her actual job duties. The Tribunal criticized the lack of objective detail and expressed concern that the expert was effectively usurping the Tribunal’s role as trier of fact (paras. 48-49). An occupational therapy discharge report confirming the plaintiff could perform ADLs, albeit more slowly and with discomfort, was also found insufficient to meet the statutory threshold for serious impairment (paras. 50-51).

Ultimately, the Tribunal found that none of the plaintiff’s injuries met the threshold for serious impairment and concluded that all injuries were minor. As a result, Oliver was successful on the MI determination, and the plaintiff was ordered to pay costs. The decision underscores the need for plaintiffs to exercise care when challenging minor injury determinations, particularly given the potential cost consequences of pursuing extensive expert evidence without corresponding proof of functional incapacity.

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The case was picked up on MSN.com. View the full article here: B.C. Judge orders cricket association to drop rule against new league.

Acting for the franchise owners of Last Man Stands Canada (a new international amateur league operating in the Lower Mainland), Jai and Kirsti sought relief under the Societies Act arguing that a rule imposed by the the BC Mainland Cricket Association (a society incorporated under the BC Societies Act) was ultra vires the Act, as well as the Society’s own by-laws and constitution. The rule, Rule 10, prohibited players from playing for any club other than a club registered with the Society and penalized offending members by suspending them from league games. It is worth noting that one of the purposes of the BC MCA is to grow the sport in BC, and that Last Man Stands was set up to provide additional opportunities to play for cricket enthusiasts who don’t have the time or skill to play the longer version weekend games organized by the BC MCA.

One of the arguments put forward by our team was that the BC MCA’s position preventing people from playing in both leagues amounted to stifling growth, player participation, and skill development, contrary to its own purposes. The Judge noted courts will exercise caution in intervening with societies; however, the Societies Act allows courts to issue a judgment if a society acts contrary to its purposes.

At para. 20, the Court held that Rule 10 violated the Societies Act and provided the following rationale:

[38]         On its face, Rule 10 restricts rather than extends the playing of cricket in mainland British Columbia. In my view, this is a defect or error in the conduct of the Society’s affairs (s. 105), as it is contrary to the Society’s purposes. Moreover, the recent enforcement of Rule 10 against players who have registered or played in the Last Man Stands league resulted in conduct contrary to the Society’s purposes: s. 105(1)(b). I am also of the view that restriction of play of the game of cricket on the basis set out in Rule 10 is an “activity” being carried out by the Society: s. 104(1)(b).

[39]         Whether Rule 10 is a defect or error, or restricting the playing of cricket is an “activity” amounts to the same thing: the society is conducting its affairs contrary to its purposes, and ss. 104 and 105 of the Act permit the Court to intervene.

The Court intervened, amended the rule, and directed the Society to stop restricting players’ rights to play. It also awarded costs to our client. Congratulations, Jai and Kirsti, on a job well done!

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Ryan was trial counsel and, in cross examination, elicited key evidence from the plaintiff about her own culpability in her second accident. Namely, she saw a vehicle behind her not slowing down, but was too close to the vehicle in front of her to pull over enough to avoid being hit. The trial judge found she was following too closely behind the vehicle in front of her in the circumstances. The Court of Appeal upheld the trial judge’s decision finding that the duty to not follow too closely (s. 162(1) of the Insurance (Vehicle) Act) is for the protection of all motorists, not just the motorist ahead of the driver to whom it applies, and that the application of this duty to the plaintiff was reasonable in the circumstances.

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The case provides an instructive example of how courts should approach calculating future loss of capacity awards and was picked up for comment in Canadian Lawyer Magazine.

Read the full article: BC Court of Appeal sees error in finding injured man likely to be police if not for accident.

The plaintiff was injured in a car accident where liability was admitted, and the trial judge awarded $300,000 for future loss of earning capacity in a damages-only trial. At the time of the accident, the plaintiff was a construction worker with aspirations to become a police officer.

On appeal, our team took the position that the judge erred in assessing past and future earning capacity and finding a real and substantial possibility (evaluated at 20 percent) that the respondent would have worked as a police officer had he not been injured in the accident.

At para 27 of its decision, the Court of Appeal reiterated the applicable legal principle that: “a future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation”: Grewal v Naumann, 2017 BCCA 158 at paras 46–48. The court noted that the trial judge had stated in his reasons for judgment, “there was no evidence whether…any policing jobs would have been realistically available to him” but then went on to award him damages for the loss of a 20% possibility of becoming a police officer.

The appeal court found the trial judge’s findings could not be reconciled with his award and affected his assessment of future loss of earning capacity. In the result, the appeal court calculated the present value of the respondent’s losses based on the employment he held at the time of the accident and reduced the award for future loss of earning capacity to $164,500 from $300,000. The appeal court also dismissed the respondent’s cross-appeal regarding alleged errors in the trial judge’s assessment of all types of damages, except special damages.

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Jennifer was retained by the respondent, Ms. White, to defend an appeal brought by Mr. Barbieri, who had been removed as executor of his mother’s estate as a result of the chambers judge’s decision in Barbieri Estate v. White, 2024 BCSC 1357.

The chambers judge found:

1. The appellant had clearly favoured certain beneficiaries over others, namely himself and Steven Barbieri over Ms. White. As such, his conduct cannot be said to be in the best interests of all the beneficiaries: para. 72.
2. The appellant’s actions had imperiled estate assets, as he appeared to be guided by his interpretation of the deceased’s wishes plus his animus towards Ms. White. There was therefore “at least a moderate risk to the remaining assets” if he remained as executor: paras. 73–75.
3. There had been no independent third-party accounting done to satisfy the court that there were sufficient assets in the estate to make all three beneficiaries whole. The accounting had been done by the appellant’s staff and was “obviously biased”. Based on at least one appraisal obtained by Ms. White, there was a possibility the appellant had already received more than one-third of the value of the estate: para. 76.

The appellant argued that the chambers judge erred in:

1. Finding that the appellant’s transfer of the Old Yale Property to his company was a purchase, not an in specie distribution, when the latter had been admitted by the respondent and was not disputed;
2. If the appellant succeeds on ground one, finding that it was necessary to remove the appellant as executor, as the appellant submits there was no necessity if his transfer of the Old Yale Property to his company was an in specie distribution; and
3. Appointing an administrator pending litigation when the statutory requirements were not met.

Jennifer successfully argued that there had been no admission of an in specie distribution by the respondent in the lower court, and that the judge was procedurally fair in addressing the question of whether the transfers executed by the appellant were purchases or in specie distributions. Justice Griffin for the unanimous court said, at para. 67:

[67]      Ms. White did not concede that the characterization of the transfer of the Old Yale Property as a distribution of the estate was not in issue. The appellant had notice by way of the notice of application that Ms. White described it as a sale. Ms. White did not state that she ever withdrew from that position. She cited legal authorities dealing with a trustee improperly purchasing trust property. She did not unequivocally make a concession that it was not a self-dealing purchase; rather, she continued to insist that it was a self-dealing purchase. I therefore cannot conclude that the judge was procedurally unfair in addressing the question of whether the transfer was a purchase or an in specie distribution.

The appellant having failed on the first argument, the court did not need to pronounce on the second. Respecting the proper scope of the appointment of the administrator, as Jennifer suggested should be the case at the hearing, that matter has been remitted to the trial court to address.

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The appeal arose from an assessment of damages following a motor vehicle accident. The respondents had admitted liability but at trial, the judge reduced several heads of damage, including special damages, by 70% based on a finding that the appellant had failed to mitigate her losses by not taking advantage of available pharmaceutical treatments.

The appellant argued that the trial judge failed to apply the correct test for mitigation, misapprehended evidence, and improperly assessed witness credibility.

The appeal was dismissed, except as it related to the 70% reduction applied to special damages, a point conceded by the respondents as those damages would have been necessary even if the appellant had properly mitigated her losses. The key arguments in support of the 70% reduction in other damages for failure to mitigate were accepted.

The key findings were:

• The trial judge applied the correct test for mitigation and his conclusion that the pharmaceutical treatments would have improved the appellant’s condition was supported by the evidence as a whole. 
• The appellant had not demonstrated the trial judge erred when assessing the amount of reduction to the contested parts of the damages award.
• The trial judge did not misapprehend the evidence of the expert witnesses; he was entitled to prefer one doctor’s evidence over others.
• The trial judge did not make a palpable and overriding error when assessing the appellant’s credibility.

In the result, the 70% reduction in the contested heads of damage was upheld.

View the full decision: Padgham v. Ram, 2025 BCCA 100.

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In this case, involving a 6-week jury trial and verdict regarding the extent of personal injuries and quantum of loss, Robert Brun, K.C. and Ryan Monty successfully represented the defendants in defeating an application by the plaintiff for a mistrial and preserved the jury’s verdict.

The plaintiff was injured in a motor vehicle accident and took issue with the jury awards claiming:

1. There was a conflict in ordering $0 for past loss of income and awarding any damages for loss of future income earning capacity, cost of future care, and special damages.
2. There was an inconsistency in awarding $0 for past loss income and the full amount of special damages.
3. The jury verdicts on past loss of income and loss of future earning capacity were unsupported by any evidence and were inordinately low.

The case involved jury instruction and interpretation of conflicting testimony provided by the experts on earnings projections called by the parties. The jury was found to have been properly instructed on how to approach the expert testimony and the trial judge walked through how the jury findings were not in conflict. Moreover, the trial judge held that juries are not obliged to accept the arguments of counsel or numbers (quantum) proposed by counsel nor is it for a trial court to justify precisely how a jury arrives at an award.

In this case, the plaintiff argued there was no evidence to support the jury verdicts and that in the case of the award for future earning capacity, in particular, the award was also too low. The court reviewed a variety of scenarios that the jury could have followed to arrive at its verdict based on the evidence that was before them. The key takeaway is that trial courts have very limited jurisdiction to refuse to enter judgment in accordance with a jury’s verdict.

Further, the court underscored that it is not within the scope of a trial judge’s jurisdiction to order a mistrial on the basis of a party’s argument that a jury award is too high or inordinately too low. That is the role of the Court of Appeal.

The application was ultimately dismissed with costs to the defendants.

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We know from personal experience that Jennifer is a thoughtful and dynamic leader. We are happy to see that she is being recognized for these qualities further afield. From her persuasive advocacy skills representing our clients to consistently contributing her time and expertise to the professional development of her colleagues and the evolution of our legal institutions, Jennifer is the epitome of a dedicated, modern leader. Congratulations Jennifer on recognition that is well-deserved.

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