IN THE SUPREME COURT OF BRITISH COLUMBIA

Transcription

1 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Between: And Arvanitis v. Slater Vecchio, 2016 BCSC 1612 Vicky Arvanitis Date: Docket: S Registry: Vancouver Plaintiff Slater Vecchio and Slater Vecchio LLP Defendants Before: The Honourable Mr. Justice J. Sigurdson Reasons for Judgment Plaintiff Vicky Arvanitis: Counsel for the Defendants: Place and Dates of Trial: Place and Date of Judgment: Appearing in person on her own behalf Paul M.J. Arvisais Vancouver, B.C. February 1-5, 9-12, March 7 and 14, 2016 Vancouver, B.C. August 30, 2016

2 Arvanitis v. Slater Vecchio Page 2 Table of Contents INTRODUCTION... 3 Positions of the Parties... 4 The Plaintiff... 4 The Defendants... 5 THE ISSUES... 5 PART 7 OF THE INSURANCE (MOTOR VEHICLE) ACT REGULATION NEGLIGENCE IN CONNECTION WITH PART 7 ACCIDENT BENEFITS... 9 THE EVIDENCE... 9 The First Accident... 9 The Second Accident The Defendant s Efforts to Secure Rehabilitation Benefits The Plaintiff s Use of Rehabilitation Benefits POSITIONS OF THE PARTIES ANALYSIS Standard of Care Breach of the Standard of Care Causation THE SETTLEMENT AND THE RELEASE OF ICBC THE FEE DISPUTE CONCLUSION... 36

3 Arvanitis v. Slater Vecchio Page 3 INTRODUCTION [1] This is an action for solicitor s negligence. The plaintiff, Vicky Arvanitis, was injured in a motor vehicle accident in 2001 when the car she was driving was struck from behind. She was a passenger injured in a second motor vehicle accident on August 10, A person driving an American-insured rental car went through a red light in North Vancouver and struck the vehicle driven by the plaintiff s sister. [2] Shortly after the 2004 accident, the plaintiff retained the defendant law firm, Slater Vecchio, to pursue her personal injury claims for the two accidents. The defendants took over the 2001 accident file from the plaintiff s previous lawyer and agreed to represent the plaintiff on a contingency basis. Her sister also retained Slater Vecchio in connection with the second accident. [3] The defendants settled the plaintiff s claims against the Insurance Corporation of British Columbia ( ICBC ) for the first and second accident. Slater Vecchio ceased acting for the plaintiff in She then retained the law firm Murphy Battista, who later settled the claim against the American insurer for the second accident. [4] This case does not concern the reasonableness of those settlements for damages. At issue is whether the lawyers discharged their obligation to use reasonable care and diligence to secure from ICBC rehabilitation or treatment benefits, known as Part 7 benefits, for the plaintiff. The heart of the plaintiff s complaint is that the defendants failed in their obligation to secure these benefits. The defendants admit that obligation was part of their retainer in acting for Ms. Arvanitis, but say they fulfilled it. [5] When the plaintiff settled her tort claim in the first accident, she also released her sister, the driver, from liability for the second accident and signed a release of all claims against ICBC including Part 7 benefits for both accidents. The second issue is whether she was advised and aware of the effect of the settlement and release. [6] A third issue concerns the plaintiff s complaint about the fees charged by the defendant law firm which were paid to them when the tort claim in the second

4 Arvanitis v. Slater Vecchio Page 4 accident was settled by Murphy Battista. This issue essentially concerns whether the defendants were authorized to receive the fees as payment from the ultimate settlement, rather than hold them pending a taxation of or agreement on their bill. [7] Ms. Arvanitis advances her claim against the defendants essentially in negligence. She also pleaded breach of fiduciary duty. Her amended notice of civil claim indicates she seeks general damages, punitive damages, exemplary damages, aggravated damages and special damages. Positions of the Parties [8] The case involves matters almost a decade ago. The plaintiff acted in person and presented her case. The evidence that the plaintiff introduced was in many aspects imprecise. There are serious conflicts in the evidence about the discussions between the plaintiff and the law firm about securing rehabilitation benefits, and regarding their discussions over the terms of the release that the plaintiff executed. The Plaintiff [9] The plaintiff says that during the course of her retainer of the defendant law firm, they made no effort to secure treatment for her despite ongoing requests to various people in the law firm. She also says that when she settled her personal injury claim in the first accident and released her claim for Part 7 benefits in both accidents she was misled by the defendant law firm over the effect of the release on her further claim for rehabilitation benefits and did not appreciate she was giving up those rights from both accidents. [10] The plaintiff says that had she received the treatment to which she was entitled by way of Part 7 benefits, she would have recovered from her injuries or at least had a realistic possibility of recovery, something she says has not occurred as she says she now suffers from chronic pain. [11] Ms. Arvanitis also claims she did not authorize payment of Slater Vecchio s fees and claims the fees should be reviewed by the registrar.

5 Arvanitis v. Slater Vecchio Page 5 The Defendants [12] The defendant lawyers say that they obtained rehabilitation benefits for the plaintiff: physiotherapy was approved by ICBC. However, the plaintiff, they say, only went to physiotherapy on one occasion. [13] The defendants say that in settlement negotiations ICBC introduced a term that the Part 7 claims against ICBC and all claims against the ICBC insureds would be released for both accidents; if so settled, the result would be that Ms. Arvanitis could still pursue her tort claim in the second accident, but only against the American insured. The defendants say that they explained the proposed release of ICBC and of the no-fault benefits and that the plaintiff understood that in the settlement she was giving up her claim for rehabilitation benefits. [14] The defendants also argue that there was nothing inappropriate about the defendants legal fees, they were paid by her new counsel from the settlement of the tort claim in the second accident when she had independent counsel and there is no basis to have the fees reviewed. THE ISSUES [15] The plaintiff, Ms. Arvanitis, and counsel for the defendants agreed during submissions that there are three issues for me to decide: 1. Whether the defendants breached their duty with respect to the plaintiff s claim for no-fault rehabilitation benefits from ICBC causing her damage; 2. Whether the plaintiff was aware and was properly advised by the defendants that she was giving up her claim to those Part 7 benefits when on March 13, 2007 she settled all but her tort claim against the American insured driver relating to the second accident; and 3. Whether the plaintiff is entitled to recover or challenge the fees charged by the defendant law firm with respect to their services.

6 Arvanitis v. Slater Vecchio Page 6 Part 7 of the Insurance (Motor Vehicle) Act Regulation [16] The benefits to which the plaintiff claims to have been entitled as a result of the two accidents are those payable pursuant to Part 7 of the Insurance (Motor Vehicle) Act Regulation, B.C. Reg. 447/83 ( the Regulation ). I observe that the title of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 was changed to Insurance (Vehicle) Act by the Insurance (Motor Vehicle) Amendment Act, 2003, S.B.C. 2003, c. 94, s. 1, effective June 1, 2007 (B.C. Reg. 166/2006), and the title of the Regulation also changed. At the relevant time however, it was titled the Insurance (Motor Vehicle) Act Regulation. [17] Let me briefly describe the accident benefits provided for in Part 7 of the Regulation. Part 7 benefits are commonly referred to as no fault benefits. These benefits are available to any insured in respect of death or injury caused by an accident that arises out of the use or operation of a vehicle (s. 79). For the purposes of that section, an insured is defined to include not only a person named in an owner s certificate but also an occupant of a vehicle that is licensed in the province (s. 78). As such the defendants do not dispute that the plaintiff (as a driver in the first accident and as a passenger in the second) was a person to whom such benefits were available in respect of both the 2001 and the 2004 accidents. [18] The benefits that may be provided are: disability benefits for employed persons (s. 80), medical disability benefits for homemakers (s. 84), and medical and rehabilitation benefits (s. 88). Insofar as disability benefits for employment are concerned, s. 80(1) of the Regulation provides benefits where an insured is totally disabled: 80 (1) Where, within 20 days after an accident for which benefits are provided under this Part, an injury sustained in the accident totally disables an insured who is an employed person from engaging in employment or an occupation for which the insured is reasonably suited by education, training or experience, the corporation shall, subject to section 85, pay to the insured for the duration of the total disability or 104 weeks, whichever is shorter, the lesser of the amounts determined under paragraphs (a) and (b):...

7 Arvanitis v. Slater Vecchio Page 7 [19] This section provides that the plaintiff would need to establish that she was totally disabled from engaging in employment or an occupation within 20 days of the 2001 or 2004 accidents. The defendants say that the plaintiff was not even remotely suffering from a condition approaching that severity in the first 20 days after the accidents and I find that is correct. [20] The second category of disability benefits is where an insured who is a homemaker is substantially and continually disabled within 20 days after an accident. Section 84 of the Regulation provides: 84 (1) Subject to section 85 and subsection (2) of this section, where, within 20 days after an accident for which benefits are provided under this Part, an injury sustained in the accident substantially and continuously disables an insured who is a homemaker from regularly performing most of the insured s household tasks, the corporation shall compensate the insured for the period of the disability or 104 consecutive weeks, whichever is shorter, for reasonable expenses incurred by the insured to hire a person to perform the household tasks on the insured s behalf, subject to a maximum amount per week as set out in section 2 of Schedule 3. (2) No compensation is payable under this section in respect of household tasks performed by a member of the insured s family. [21] The defendants say that in order to qualify for this homemaking benefit she would have to establish in the case of the second accident she was substantially and continuously disabled between August 10, 2004 and August 30, Again, they submit that the plaintiff did not suffer from a disability of that severity and I find that is correct. [22] The defendants argue that the only category of benefits to which the plaintiff had any real claim was medical and rehabilitation benefits, provided for in s. 88 of the Regulation. The Regulation provides for medical and rehabilitation benefits of both a mandatory and discretionary nature. Section 88(2) provides for discretionary benefits which ICBC can choose to pay if, in the opinion of its medical adviser, they are likely to promote rehabilitation of the insured. "Rehabilitation" is defined in the Regulation as "the restoration, in the shortest practical time, of an injured person to the highest level of gainful employment or self-sufficiency that, allowing for the

8 Arvanitis v. Slater Vecchio Page 8 permanent effects of his injuries, is, with medical and vocational assistance, reasonably achievable by him." [23] Section 88(2) reads as follows: 88 (2) Where, in the opinion of the corporation s medical adviser, provision of any one or more of the following is likely to promote the rehabilitation of an insured who is injured in an accident for which benefits are provided under this Part, the corporation may provide any one or more of the following: (a) funds to the insured once during the lifetime of the insured for the acquisition by the insured of one motor vehicle equipped as necessary and appropriate to its use or operation by the insured, the choice of make or model of vehicle to be in the sole discretion of the corporation; (b) funds to the insured once during the lifetime of the insured for alterations to the insured s residence that are necessary to make the residence accessible to and usable by the insured, the style and cost of the alterations to be in the sole discretion of the corporation and the alterations to be limited to necessary ramps, a necessary lift, necessary bathroom alterations and, where the insured is a homemaker or a person who lives alone, necessary kitchen alterations (c) reimbursement to the insured for the costs of attendant care, other than care provided by a member of the insured s family, where the insured has returned to and is residing in the community but is not capable of performing some or all of the tasks necessary to sustain an independent lifestyle, the amount of the reimbursement to be limited to the lesser of... [24] The defendants say that ICBC s medical advisor did not view any such benefits as likely to promote the plaintiff s rehabilitation. The defendants also point out that in any event, if the plaintiff was entitled to such benefits she could have claimed them as special damages in her tort claim against the American insured if she desired. [25] The defendants correctly say that what is really at issue here is the mandatory Part 7 benefits, which ICBC is obligated to pay, and refer to s. 88(1) and 88(7): 88 (1) Where an insured is injured in an accident for which benefits are provided under this Part, the corporation shall, subject to subsections (5) and

9 Arvanitis v. Slater Vecchio Page 9 (6), pay as benefits all reasonable expenses incurred by the insured as a result of the injury for necessary medical, surgical, dental, hospital, ambulance or professional nursing services, or for necessary physical therapy, chiropractic treatment, occupational therapy or speech therapy or for prosthesis or orthosis.... (7) The maximum amount payable by the corporation under this section for medical, surgical, dental, nursing or physical therapy services or for chiropractic treatment, occupational therapy or speech therapy listed in the payment schedules established by the Medical Services Commission under the Medicare Protection Act is the amount listed in the payment schedules for that service, treatment or therapy. [My emphasis.] [26] While the benefits set out in s. 88(1) are described as mandatory, they must meet the requirement that they are both necessary and reasonable. Accordingly, ICBC has a limited power to challenge a claim made under that section. A medical examination of an insured may be required under s. 99(1) of the Regulation or a medical certificate may be required pursuant to s. 98(1). Both may assist with determining whether a particular expense meets the necessary and reasonable requirement: Ranguin v. ICBC, 2011 BCCA 482 at para NEGLIGENCE IN CONNECTION WITH THE PART 7 ACCIDENT BENEFITS [27] On March 13, 2007, when the plaintiff settled the first accident, she was asked by ICBC, and agreed to execute a release of her claims against the ICBC insureds in connection with both accidents, including her claims under Part 7 against ICBC in connection with both accidents. As part of my discussion of the second issue, I will discuss whether there was informed consent on the plaintiff s part when she released ICBC for Part 7 benefits. The first issue relating to the Part 7 benefits is whether the defendants were negligent in securing them for her. I will first review the evidence in connection with the plaintiff s claim. The Evidence The First Accident [28] The plaintiff was born in When the first accident occurred, she was in her early 20 s. At that time she was working as a homecare provider and a

10 Arvanitis v. Slater Vecchio Page 10 hairdresser. As a homecare provider, although not a registered nurse, she often cared for patients with severe needs. [29] The first accident occurred on August 21, 2001, when Ms. Arvanitis was rear-ended while stopped at a red light. Her CDs had fallen on the floor and she was reaching over and picking them up when she was hit from behind. She did not see the driver coming before the collision. She said after the accident her back got so bad that she had to lie down and relax on the bed of a client she was caring for. [30] On April 4, 2003, she retained the law firm of Ratcliff & Company to represent her. Her lawyer at Ratcliff was Renee Goult. ICBC refused to pay Part 7 benefits and took the position that it was a low velocity accident apparently denying that there was an injury suffered by the plaintiff in the accident. Her claim was started in Small Claims court. [31] The plaintiff says that at that time she was not aware of the terminology Part 7 benefits but was aware of the concept of accident benefits and that although a request was made, ICBC did not pay rehabilitation or accident benefits from the first accident. Prior to the first accident, the plaintiff had made a Worker s Compensation Board ( WCB ) claim in 1999 as a result of an injury she suffered while lifting laundry. She testified that the back problem from the first accident was not the same back problem for which she had made the earlier WCB claim. She testified that her earlier back problem had fully recovered prior to the first accident. [32] Ms. Arvanitis explained that she understood that it was ICBC s position in the first accident that it was unlikely for someone to be injured in the low velocity collision. She said that although she indicated she had a mid-back, not a prior lower back injury, ICBC nevertheless refused to pay any Part 7 benefits arising from her injury in the first accident.

11 Arvanitis v. Slater Vecchio Page 11 The Second Accident [33] The second accident occurred on August 10, 2004, when the car driven by her sister was t-boned by a car that ran a red light. The second accident, the plaintiff said, occurred before she had time to put on her seatbelt. [34] The plaintiff was injured in this accident. She struck her head and suffered injuries to her right shoulder as well as other soft tissue injuries to her neck and back. She thought it was best if one law firm acted for her in both accidents and she retained Slater Vecchio on September 23, 2004 to act for her. Ms. Arvanitis said she made it clear to Anthony Vecchio, who was her first lawyer at Slater Vecchio, at the time of the initial retainer that she was keen on getting treatment to get better. [35] The defendant law firm was retained to secure an award or settlement for the plaintiff for damages she suffered in the first and in the second accident. She entered into written contingency agreements agreeing to pay Slater Vecchio 30 percent of amounts recovered by settlement or at trial. Her sister was also represented by the defendant law firm for injuries she suffered in the accident. The plaintiff does not recall any discussion with Mr. Vecchio at the outset of the retainer about whether there was a conflict of interest if they were also representing her sister, the driver in the second accident. The Defendant s Efforts to Secure Rehabilitation Benefits [36] Ms. Arvanitis testified that while Slater Vecchio represented her they misled her, did not help her and in her view did nothing to pursue Part 7 benefits for her. The plaintiff said that over the time the defendants acted for her from 2004 until they withdrew in 2008, she spoke to the lawyers, paralegals and others at Slater Vecchio more than 15 times. She said that she told them that she was suffering; she wanted to get medical care and resume work. She said that the response she got from the law firm and from people such as John Mavraki, a case manager at Slater Vecchio, and Jean Gardner, a paralegal, was to keep going to doctors, get referrals from doctors and to see specialists. She said there was no effort by anyone at the defendant firm to get her care. She said there was no talk on her part about tort

12 Arvanitis v. Slater Vecchio Page 12 claims or money a reference to damages in the tort action but she made it clear she said that she just wanted to get medical help for her injuries. [37] It was put to the plaintiff in cross-examination that it was not until March 2005 that she told Slater Vecchio that she wanted physiotherapy but the plaintiff denied that and said that they knew that from the first day of the retainer. She clarified that to say that she was not asking about Part 7 benefits as she was unaware of the terminology but said that she was asking her lawyers for rehabilitation benefits. Her evidence was that it was not until a new lawyer explained it in 2013 that she understood what Part 7 benefits were. [38] Although, it was unclear when in the chronology of events described by Ms. Arvanitis this occurred, Ms. Arvanitis said that her file was taken over by Patrick Gordon, a lawyer at the defendant law firm. It appears that Ms. Wang, another lawyer at Slater Vecchio who was handling the file was involved in a trial and Mr. Gordon became involved in acting for the plaintiff. The plaintiff s evidence was that she explained to him that she was in pain and asked him why she was not getting care. She said Mr. Gordon s response was to the effect that they were doing an excellent job for her and if she wanted another lawyer she could go elsewhere. [39] The plaintiff said that she had not yet developed chronic pain but would call and give her lawyers months to get back to her because she did not want to be a bother. She said her focus remained trying to get care. She testified that in in 2007 her back became arthritic. She said that she was told by the people at Slater Vecchio that her claim from the second accident was strong, that they were pursuing it and were getting her some help. She said that it was clear from the report of the occupational therapist, Mr. McNeil (who assessed the plaintiff in 2005 and also in 2014) that she needed assistance in She said her family doctor, Dr. Orlando, referred her to a pain clinic in 2007, a time she said she was in severe pain. [40] The plaintiff in preparation for this trial obtained ICBC s files and expressed the view that the ICBC claim files demonstrate there was no activity from her law firm on her behalf. The claim file as of November 7, 2005 makes reference to

13 Arvanitis v. Slater Vecchio Page 13 reserves, $30,000 for the first accident, noting therapy closed and $10,000 for the second accident, noting therapy open. She says the presence of these reserves suggests ICBC recognized a greater claim for rehabilitation benefits, but she says that she was, and is currently, unable to claim those monies as her lawyers, she says, not only did not pursue them but negotiated away her Part 7 rights. [41] Ms. Arvanitis was seen by Dr. Hawk, an ICBC doctor, in June She said that he gave her a referral for physiotherapy. She points to a note in her ICBC claim file dated July 14, 2005 that says there was a referral for extensive physiotherapy. [42] She argues that her lawyers lack of attention to her case is demonstrated by the fact that they did not start their Part 7 action against ICBC until one day short of the two-year limitation period, referring to a writ of summons filed August 9, [43] The defendant law firm maintained a phone log system that summarizes some of the telephone conversations between the plaintiff and defendants representatives. The evidence I find suggests that the log record is not complete, but it provides some evidence of the communications between the plaintiff and the solicitors about treatment or accident benefits. [44] These call records for example indicate that the plaintiff was having trouble with her shoulder and that the representatives at the defendant law firm told her early on to get a note from a specialist and if cortisone was recommended they would send the note to ICBC and see if they would pay. In March 2005, the plaintiff obtained an updated referral from a doctor for physiotherapy. There is a letter from ICBC to Mr. Vecchio on April 5, 2005, stating that rehabilitation benefits were approved, but the plaintiff testified that she was not made aware of that. The log indicates that on April 12, 2005 JG left a message (for the plaintiff) that ICBC approved physiotherapy. [45] When it was suggested to her that physiotherapy had been approved for her she said I had no knowledge it had been approved and that she did not know of the approval until 2008 when she saw the letter ICBC had sent to her lawyer. When

14 Arvanitis v. Slater Vecchio Page 14 asked if she knew by April and May 2005 that rehab was approved she said she could not agree. In terms of whether there was a message left by JG of the defendant firm for her she said that she never got that message. Her answer was that the call logs demonstrate the number of times that she asked for care and as such that it must be obvious she never received the message. She said she kept calling, she was crying and if the people at the law firm had told her about the approved physiotherapy she would have attended. [46] She also said she recalled going to physiotherapy and possibly being told at their office that the physiotherapy user fees were not covered, but she reiterated that she did not get the message from the lawyers about physiotherapy being approved. At one point, contrary to her other evidence, she said it was possible that she was notified in April 2005 that physiotherapy was approved for her, but she thought it was possibly her first lawyer Ms. Goult who got those benefits approved for her. The Plaintiff s Use of Rehabilitation Benefits [47] There is one recorded instance of the plaintiff attending physiotherapy with Nicholas Berg on May 17, There is an invoice showing $20 owing, which is the user fee that ICBC did not cover. Ms. Arvanitis thought that ICBC should cover the user fee. There was confusion in the plaintiff s evidence about where she thought the approved benefits were coming from as at one point she indicated she thought it was covered by medical. The plaintiff later stated that she knew ICBC had covered some physio treatments as she knew that they needed another referral. An entry in the law firm logs dated July 22, 2005 reads she says that her physio has been cut off-although she s only been there 2x a referral note was faxed the prior week. It appears that when the plaintiff attended physiotherapy in July 2005 she did not receive treatment. [48] The law firm call log entries on July 26, 2005 indicate an apparent concern that the shoulder difficulties the plaintiff was having, according to the defendants, may not relate to the motor vehicle accident, but a note indicated that they were

15 Arvanitis v. Slater Vecchio Page 15 waiting for adjuster approval of the physiotherapy treatments. Approval was apparently obtained the next day, as the call logs indicate that on July 27, 2005 physiotherapy had been extended one month and according to the logs a message (for the plaintiff) was left to that effect. [49] There is a dispute as to why Ms. Arvanitis did not attend physiotherapy when it was approved, both in the two original months that were approved and the subsequently approved month. The defendants suggest that although they sought and obtained approval from ICBC for physiotherapy, the plaintiff did not avail herself of the opportunity for a number of reasons. First, she found the treatment hurt her. Second, ICBC would not, as in her view it should, pay the user fees as well as the amount allowed to be charged by the physiotherapist. Third, she did not attend because she was not prepared to complete a direction to pay that would allow her to use the settlement proceeds to ultimately pay the user fees to the rehabilitation care provider. [50] While Ms. Arvanitis disputes that these were reasons that she did not have more care, she does recall telling Mr. McNeil (the occupational therapist) and Dr. Hawk that she had very little rehabilitation due to limited resources and thinks she told Mr. McNeil that she attended for two sessions of physiotherapy in March. Ms. Arvanitis also agreed that she told Dr. Hawk that physiotherapy seemed to aggravate her right shoulder. That was on June 15, 2005 shortly after her May 17 appointment with Mr. Berg, the physiotherapist. [51] The last log entry in 2005 was September 12, It indicated that the plaintiff wanted a follow-up assessment with Dr. Leith following an assessment report dated June 7, 2005, which was noted to be negative for the plaintiff. The entry noted the defendant law firm was claiming privilege over the report. The log entry also indicated that she was having a lot of shoulder problems; she could not go to physiotherapy and work at the same time; she got one month of physio last month and hardly went due to pain thereafter. It indicated that she will get another note from her doctor for more physio etc.

16 Arvanitis v. Slater Vecchio Page 16 [52] The plaintiff claims to have gotten referral after referral from her doctors but says she received no care. Similar to what is reflected in the log notes, she also said it was challenging to obtain referrals and attend physiotherapy; she was in a lot of pain and could not attend physiotherapy every day. She said that she was sick of taking pills and as she put it would have killed for a massage but the plaintiff contended that in all the time Slater Vecchio represented her, she only received three physiotherapy treatments. [53] During the trial, the plaintiff was asked to find the occasions she had paid to attend physiotherapy. The only receipt produced for physio attendance was for the May 17, 2005 visit. There were subsequent bills dated June 29 and September 14, but these appear to be invoices for the unpaid user fee and only relate to the one attendance in May. She recalls paying for three appointments on her own but receipts to this effect were not produced in evidence. [54] In terms of the extended month of covered physiotherapy the plaintiff agreed that she received the message that it was extended. When asked why she did not go to physiotherapy at all during the extended month of coverage, she indicated she believed she went but she could not be sure. Her evidence was that she could not be sure she did not pay for it on her own. Counsel for the defendants then asked why she would have to pay if it was approved and she responded the same reason I had to pay for all of my care while I was being represented by Slater Vecchio. She then agreed that her physiotherapy appointment in May 2005 with Nicholas Berg was covered. [55] Counsel for the defendants put it to her in cross-examination that she was uninterested in receiving benefits because she only attended once in three months of coverage. She strongly disagreed, and stated the only reason she could not attend was that things were not clear ; it was not being communicated to her what was happening. She said she was not receiving messages that she was approved despite being home all day.

17 Arvanitis v. Slater Vecchio Page 17 [56] The call logs indicate that in response to her financial concerns, the defendants offered the plaintiff the option of her signing a direction to pay where money would be sent to the service provider after her claim settled. The plaintiff was very resistant to this idea and indicated in cross-examination that she did not want to owe people money. Her evidence was that she expected ICBC to pay 100% of any massage therapy, physiotherapy and medication expenses. [57] The call logs in March 2006 indicate that the plaintiff wanted to know if ICBC would fund acupuncture and that the defendants had forwarded a letter to ICBC with a report from Dr. Orlando seeking funding of rehabilitation recommendations. [58] In July 2006, the logs indicate that Ms. Arvanitis said she was in constant pain and her condition is getting worse. She said she could not wait a year for settlement of her case. The log indicates she needs therapy right now and that acupressure helped her once but she could not afford it. In August 2006, the log shows the plaintiff was inquiring about the settlement of her first claim. As mentioned in her viva voce evidence, a discussion took place regarding signing a direction to pay, which Ms. Arvanitis was resistant to as she did not want to owe anyone else money. At the end of August 2006, she indicated she had not been reimbursed for medical expenses submitted four months prior. In December 2006, the logs show she told the staff at the defendants firm that no one had returned her call regarding her settlement offer. [59] The plaintiff indicated that after the release was signed on April 11, 2007, she used some of the settlement monies to get three massage treatments. POSITIONS OF THE PARTIES [60] The plaintiff says that the defendant solicitors throughout breached their duty to obtain Part 7 rehabilitation benefits for her. As a result of that failure the plaintiff says that she has suffered damages and that her physical recovery, which would have proceeded, in fact stalled because she did not get the treatment she needed. She argues that if her lawyers had pursued the care to which she was entitled she would not have declined into a chronic pain condition, which she says she currently

18 Arvanitis v. Slater Vecchio Page 18 is in. She says that she requested treatment but the defendant solicitors failed to take steps to obtain the medical benefits that she was entitled to and then in a settlement with ICBC had her unknowingly sign off her rights to Part 7 benefits in connection with both the first and second accident. She says that her lawyers were aware of her needs and that is apparent through the medical records, her attendance at a pain clinic, and the reports of Russell McNeil and Dr. Hawk who conducted an independent medical examination for ICBC. In the plaintiff s contention all of this was ignored by the defendants. [61] The defendant law firm says that there is no issue that Ms. Arvanitis was owed a duty of care by it or that she had medical problems at the time of trial, but the defendants say that she failed to demonstrate the required standard of care, that the standard was breached, and that the loss she claims she suffered was caused by the alleged breach of the standard of care and was foreseeable. [62] The defendants, although they acknowledge that as a client of Slater Vecchio the plaintiff was owed a duty by them to attempt to secure Part 7 benefits, say that the plaintiff produced no expert evidence as to the standard of care required of solicitors dealing with claims for rehabilitation benefits under Part 7 of the Insurance (Motor Vehicle) Regulation. The defendants say that this is not the type of case where the standard of care can be established without expert evidence. The steps a reasonable and prudent solicitor in pursuit of no-fault benefits would take are not such that a lay person or a judge who is not practised in the area could as readily determine as an expert. The defendants say that the plaintiff, although selfrepresented at trial, ought to have called expert evidence as to the steps to be taken to secure Part 7 benefits. [63] In any event the defendants say the steps that were taken by them to secure Part 7 benefits were reasonable in the circumstances. In brief the defendants say that ICBC was unlikely to approve a continued course of treatment if the initial approved treatment is not pursued which is what they say occurred here. The defendants say that at the plaintiff s request they had obtained two months of

19 Arvanitis v. Slater Vecchio Page 19 physiotherapy and then an additional month, but the plaintiff, on learning the cost of user fees, and upon experiencing pain during physiotherapy, did not pursue it further. The defendants suggested that she make use of an authorization to pay to fund the user fees pending settlement, but the plaintiff was unwilling to use that option. Furthermore the defendants say the plaintiff has failed to prove any breach of the standard of care caused damage to her. The defendants say there is no evidence that any loss was caused by the want of no-fault rehabilitation benefits between the defendants retainer in the fall of 2004 and the settlement of her claim against ICBC in March [64] The plaintiff on the other hand says that because the standard of care is clear and straightforward, expert evidence is not necessary, but to the extent that the required standard is either ambiguous or unclear, the conduct of the defendants fell below the required reasonable care standard and was clearly negligent. The plaintiff says the fact that the defendant solicitors only obtained, as she puts it, one therapy in four years, shows a clear breach of any reasonable standard of care. ANALYSIS [65] The parties agree that the defendants owed the plaintiff a duty of care. Accordingly, has the plaintiff demonstrated that her lawyers breached the standard of care required of them to pursue no-fault rehabilitation benefits from ICBC under Part 7 of the Insurance (Motor Vehicle) Regulation? Standard of Care [66] One of the difficulties facing the plaintiff in this action is establishing that the conduct of the defendants did not meet the standard of care of a reasonable solicitor in the circumstances. [67] The general standard of care applicable to a solicitor was described by the Supreme Court of Canada in Central Trust v. Rafuse, [1986] 2 S.C.R. 147 at para. 58 in this way:

20 Arvanitis v. Slater Vecchio Page 20 A solicitor is required to bring reasonable care, skill and knowledge to the performance of the professional service which he has undertaken: see Hett v. Pun Pong (1890), 18 S.C.R. 290 at p The requisite standard of care has been variously referred to as that of the reasonably competent solicitor, the ordinary competent solicitor and the ordinary prudent solicitor. [68] The defendants argue that the plaintiff should have called expert evidence to establish the appropriate standard of care in these specific circumstances, referring to the obiter comments of Southin J.A. in Zink v. Adrian, 2005 BCCA 93. Madam Justice Southin observed that in cases where negligence is alleged against a lawyer judges can only rarely make such a finding in the absence of expert evidence as to the standard of a competent solicitor conducting the business in question. If the matter is non-technical, or one which an ordinary person could be expected to have knowledge of, expert evidence will not be required: para. 44. [69] The plaintiff s response, as I noted above, is that whatever the appropriate standard of care is, the defendants conduct was so deficient that expert evidence of the standard of care in securing Part 7 benefits is not required. [70] The rationale for requiring expert evidence was described by Southin J.A. as follows: [44]... There is an underlying reason the expert witness can be crossexamined with a view to showing he knows not whereof he speaks. But the parties have no means of discrediting a judge's implicit assertion that he knows the proper way to conduct a certain kind of legal business. One must not overlook that the reason some judges are judges is that whilst they were practising the profession they were of a standard far above that of the ordinary reasonably competent member of the profession. [Emphasis added.] [71] No expert evidence was called in Zink nor was the failure to call expert evidence raised. The finding of the trial judge of solicitor s negligence was upheld. [72] In Henry v. British Columbia (Attorney General), 2015 BCSC 1848, Chief Justice Hinkson declined to follow the dicta of Southin J.A. and instead considered himself bound by the decision of the full Court in R & L Contracting Ltd. v. A and B, [1980] B.C.J. No. 196 (B.C.S.C.), aff d [1981] B.C.J. 663 (C.A.). R & L Contracting

21 Arvanitis v. Slater Vecchio Page 21 Ltd. was a claim for solicitor s negligence which was described by the trial decision in the reasons of Chief Justice McEachern at para. 1 as follows: In this case the Plaintiff sues its former solicitor for advising it to terminate a construction subcontract when, the Plaintiff says, there were no grounds for termination, or alternatively, for failing to advise the Plaintiff fully on alternative remedies or on the consequences of a course of action taken by the Plaintiff further to its lawyer's advice. The Plaintiff says such failures amount to a breach or breaches of the contract arising out of the retainer. [73] The Court there admitted expert evidence on the standard of care, while expressing trepidation about the fact that each of the expert witnesses could not confidently say what a reasonable solicitor would have done in the circumstances. He went on to say, at para. 64:... The experts mentioned that lawyers, unlike surgeons and some other disciplines, do not actually observe the interaction between a contractor and his lawyer. They added, however, that they are able, from acting against other lawyers in these matters, to determine generally what advice is given from the positions which are subsequently taken. [74] Chief Justice McEachern expressed concern about the variety of facts and circumstances faced by solicitors in the context of that dispute; such variable factual contexts inevitably weaken the value of such evidence: [65] Another infirmity which weakens the value of this kind of evidence is the fact that no two construction cases are ever the same, and in every construction contract dispute there are facts and circumstances, or combinations of facts and circumstances, which are not present in other cases. Because of this, I have reached the conclusion that the standard of care the law requires of a solicitor in a complicated case is really a matter to be determined by the Court in each particular case. I say this because advising upon a difficult construction contract in a variable factual context is quite different from advising on a routine matter such as Hauck v. Dixon; Enns v. Panjau; Winrob and Winrob v. Street and Woollen, or on any number of other legal or professional problems which, by their nature, permit witnesses to identify a minimum standard of care within a professional community. In this case the experts attempted to relate their evidence to a professional standard, but they were really telling me that A's advice was either good or bad advice. I have concluded, with great respect, that I must make that determination. [Emphasis added.]

22 Arvanitis v. Slater Vecchio Page 22 [75] The appellate decision in R & L Contracting Ltd., [1981] B.C.J. No. 663 (B.C.C.A.) referred to the above passage, and added: [35] A similar conclusion was reached in Midland Bank Trust Co. Ltd. et al v. Hett Stubbs and Kemp (a Firm) where Justice Oliver said at 582: I have heard the evidence of a number of practising solicitors. Counsel for the plaintiffs modestly contented himself with calling one, the counsel for the defendant called no less than three. I must say that I doubt the value, or even the admissibility, of this sort of evidence, which seems to be becoming customary in this type of case. The extent of the legal duty in any given situation must, I think, be a question of law for the court. Clearly, if there is some practice in a particular profession, some accepted standard of conduct which is laid down by a profession institute or sanction by common usage, evidence of that can and ought to be received. But the evidence which really amounts to no more than an expression of opinion by a particular practitioner of what he thinks he would have done had he been placed, hypothetically and without the benefit of hindsight, in the position of the defendants is of little assistance to the court, while evidence of the witness's views of what, as a matter of law, the solicitor's duty was in the particular circumstances of the case is, I should have thought, inadmissible, for that is the very question which it is the court's function to decide. [36] I agree with what both judges said as above, and I think there was no error in the judge ascertaining what Bray's duty was in the circumstances; and it was not improper for him to arrive at his own conclusion independently of opinion evidence in a case such as this. [76] In Platting v. Hart, 2002 BCSC 1549, a negligence action against a family lawyer, an expert report was prepared on the issue of what a reasonably competent family lawyer would have done in the circumstances. The expert was crossexamined at trial. However, Madam Justice Allan concluded: [90] Mr. Rose is an extremely able and well-respected member of the family bar in Vancouver and his analysis was helpful. However, in my opinion, a trial judge who has the benefit of hearing the witnesses, reviewing the documents and finding the relevant facts can determine whether or not a lawyer was negligent in failing to bring an interim maintenance application in all of the relevant circumstances without the benefit of an expert opinion. [77] A more recent decision of Mr. Justice Thompson, Jose v. Johnston, 2016 BCSC 202 which cites Henry, held:

23 Arvanitis v. Slater Vecchio Page 23 [61] There is no expert opinion evidence to support Ms. Jose s allegations that Mr. Johnston fell short of the required standard by failing to advise Ms. Jose that a British Columbia order would not be enforceable in California or by sending the letters to the known banks. This, however, does not end the analysis because expert opinion evidence on whether the standard of care has been breached is not invariably required in every solicitor s negligence case: Roberge v. Huberman, 1999 BCCA 196 at paras ; Henry v. British Columbia (Attorney General), 2015 BCSC 1848; Plattig v. Hart, 2002 BCSC 1549 at para. 90. [78] The cases that I have reviewed demonstrate that expert evidence is not invariably required in solicitor s negligence actions. [79] In my view, the plaintiff s claim does not fail because she has not adduced expert evidence to demonstrate what the standard of care of a reasonable and prudent solicitor in the pursuit of Part 7 benefits would be. In some situations there may be an accepted standard of conduct, normal practice or common usage that represents the standard of care for a reasonably competent lawyer pursuing a personal injury claim. However, in the case at bar, such an opinion would amount to evidence in hindsight of what the defendants ought to have done in the unique circumstances of this case. The question of whether the defendants breached a standard of reasonable care of a diligent and prudent solicitor is a question for me in all of the circumstances. Accordingly, the plaintiff s claim does not fail because she failed to call expert evidence on the standard of care. Breach of the Standard of Care [80] However, I do find that the plaintiff s claim that the defendants were negligent must fail. I conclude that the plaintiff has not established that the defendants failed to pursue Part 7 benefits for her with reasonable care and dispatch. The plaintiff, in my view, has not shown that the conduct of the defendants fell below the standard of a reasonably competent solicitor. [81] The plaintiff s recollection of events I find is imperfect. I find that her memory of her discussions with the defendant law firm is selective and not reliable. I accept largely based on the call logs that the plaintiff first asked the defendants to get physiotherapy for her in March 2005, and it was approved by ICBC in April 2005.

24 Arvanitis v. Slater Vecchio Page 24 The defendants received a letter confirming approval on April 11, I find that the plaintiff received the information on April 12, 2005 that physiotherapy had been approved after the defendants placed a call to her that day. [82] The evidence suggests that the plaintiff attended physiotherapy on April 19, 2005, but was concerned that the user fees were not covered by ICBC and as a result it appears that she may not have undergone physical therapy at that time. [83] She attended physiotherapy on May 17, 2005 with Mr. Berg and although the plaintiff believes she attended two or three times, the attendance with Mr. Berg on May 17, 2005 is the only instance mentioned in the MSP report. She agreed that if she paid out of pocket for physiotherapy they are not listed on her MSP report. [84] I find that when physiotherapy was approved the plaintiff, perhaps for quite legitimate reasons, was reluctant to attend. The evidence suggests that the plaintiff believed that physiotherapy aggravated her pain, and she told that to her doctors. I find that such a reaction to treatment caused her to be resistant to further physiotherapy. [85] The plaintiff had told her lawyers in September 2005 that her work schedule did not allow her to attend the recommended rehabilitation and the plaintiff told Dr. Hawk, the doctor appointed by ICBC to do an independent medical examination, that she did not attend physiotherapy due to the cost of user fees, a matter she repeated to the occupational therapist. [86] In July 2006, the plaintiff raised with her lawyers, the defendants, that she could not cover her portion of the medical costs for treatment until she started working and could not afford one acupressure massage treatment. In crossexamination her evidence was inconsistent as to whether it was the first time she mentioned she could not afford treatment to her lawyers. Her counsel at the defendant law firm recommended that if she did not wish to apply for social assistance she could complete a direction to pay and have the payment deferred until it was received from her settlement but she was unwilling to do so.