Queen of the North Sinking 

The coastal ferry system on the British Columbia coast is a vital lifeline for west coast communities and a delightful experience for visitors.  One long route is the trip between Prince Rupert and the northern end of Vancouver Island. 

One ferry took its last trip on this route on an overnight voyage.  It was the car ferry Queen of the North.  It sank in Wright Sound after sailing one third of the way.  It had been travelling south through a narrow passage between the mainland and Pitt Island.  The narrow passage was 100 kilometers long and for most of the way was between 500 meters and 1 kilometer wide.  The narrow passage meant that the bridge crew had to pay close attention to navigation for hours on end to keep the vessel away from the shore. 

Once the ship reached Wright Sound there was relief.  There was open water 4 kilometers wide for the ship to follow on its course.  However, there was one important navigation point to follow.  The centre of the main channel of open water veered slightly to the left.  It was necessary to turn the ship slightly to the left. 

The ship entered Wright Sound at 17 knots, nearly full speed.  It continued at that speed without turning for 14 minutes until it hit Gil Island.  The impact was so severe that water rushed quickly into the hull.  The ship sank in 1 hour and 19 minutes. 

After the collision the passengers were called on deck.  The impact affected the frame of at least one cabin door.  The door would not open after repeated pulling on the handle.  Finally with both feet on the wall and pulling, the terrified passenger got the door open.  The ship began to list to one side.  One passenger on deck prepared to climb up the side of the ship in the event that the ship began to roll. 

It was 12:30 in the morning as the passengers and crew assembled on deck in a fine mist.  It was 7 degrees.    Many were not dressed for the cold.  The passengers got into rafts and a lifeboat.  They floated on the water in the darkness as the Queen of the North rose on end, and then, with trapped air exploding its windows outward, sank beneath the water.  A small fleet of power boats arrived from the nearest village of Hartley Bay.  The villagers brought the passengers and crew to their village. 

Two passengers were never found and were presumed dead.  A great number of the passengers experienced psychological injury with lasting symptoms of fear of water.  Many showed symptoms of Post-Traumatic Stress Disorder.  They were easily angered.  There were broken relationships and an attempted suicide.

I had been at work on some class action cases with James Hanson, a lawyer in Surrey.  The plight of the passengers on the Queen of the North looked like something that could be dealt with by way of a class action.  It would spare the passengers the cost of each of them hiring lawyers to claim against BC Ferries.  We represented a passenger and her husband who were moving to Vancouver Island.  All their possessions were on board the ship. 

The case involved both Canadian and international law.  A treaty that Canada had signed called the Athens Convention governed liability and limited the damages that could be paid. 

Our case was certified as a class action.  At judgment Mr. Justice Joyce found that to receive compensation, the psychological injury suffered by the passengers had to rise to the level of a recognizable psychological illness. 

This was a disappointment.  Many of the passengers had several symptoms of PTSD.  But to receive an actual diagnosis of PTSD, it was necessary to have all four of the symptoms listed in the Diagnostic and Statistical Manual of Mental Disorders.  James Hanson and I had flown many of the passengers to Vancouver for treatment and had paid for their expenses and psychiatric assessment. 

The judge reviewed the cases of a number of the passengers to provide the lawyers with guidance for assessing the rest.  He awarded damages. Some passengers got nothing.  The other amounts ranged from $500, to $7,500.  One got $12,000.

A continuing question throughout the case was about what the crew were doing on the bridge during the 14 minutes that the ship sailed straight towards Gil Island.  Fourth officer Karl Lilgert was in command.  He was assisted by Quartermaster Karen Briker.  Both were married but it was known, and they admitted, that they had been having an affair.  Rumours swirled that they had used the open water after leaving the long narrow passageway for a romantic activity. 

The ship was on autopilot.  They were certainly not paying attention to where the ship was going.  Both said that the affair had ended.  However, there were suspicious circumstances.  The departure of another crew member had left Karl Lilgert and Karen Briker alone on the bridge.  Karl Lilgert and Karen Briker were seen together after the sinking. No solid evidence ever came to light to substantiate the rumours. 

I cross examined Karl Lilgert in the class action case.  It was interesting to hear what he said about the position of the ship and the events on board.  I cannot reveal his evidence.

In a separate legal proceeding, Karl Lilgert was charged and convicted with criminal negligence causing death.  He was sentenced to four years in prison.  At the sentencing hearing Madam Justice Stromberg-Stein stated that Mr. Lilgert testified and lied.  She said:

“Whatever occupied Mr. Lilgert’s attention on the bridge that night, it was not the navigation of the vessel.  I do not need to speculate what Mr. Lilgert was doing on the bridge that night.  I know what he was not doing.  He was not doing his job.  He was not navigating a passenger ferry with 101 persons aboard who had entrusted their lives and safety to him.”

Fresh Evidence in the Court of Appeal

My case involved a client who was employed to produce computer software for use in designing roofs.  The specific application was for the large flat roofs of warehouses and industrial plants.  The problem to be solved was that rainwater would collect on the flat roofs.  The weight of the water caused the roofs to sag, creating bigger pools of water.  The increased weight over the long term adversely affected the integrity of the roof.  The software in question allowed the design of multiple, lightweight, low-level pyramids all over the roof.  It was a complicated design process that only a computer could do.  With the addition of the pyramids, the water would flow off the roof.

When my client was dismissed from his employment, he had a claim for wrongful dismissal.  That was complicated when his employer’s companies went bankrupt and his employer went personally bankrupt.  All of the assets of his business were transferred to a trustee in bankruptcy.  My client negotiated with the trustee to purchase the roof design software.  My client now had his own business.  Unfortunately, the previous employer had kept a copy of the software.  He started operating the same business through a company owned by his wife. 

I commenced a legal claim on behalf of my client against the company operating the roof design business.  That company immediately went to court and obtained an injunction against my client to stop him from contacting clients in his business using the roofing software.  It claimed that it was the rightful owner of the software and my client had no rights to it.  I then went to court and showed the bankruptcy, the transfer to the trustee and the purchase from the trustee.  The court removed the injunction and imposed an injunction in favour of my client against the company of the bankrupt’s wife.  It could not use the software. 

Unfortunately, that was not the end of the matter.  There were 21 court appearances as the parties battled it out to control the use of the software.  The defendant moved the software to the United States and continued business there.  The matter was at the Court of Appeal at one point.  The company of the bankrupt’s wife applied for leave to appeal the injunction.  An appeal is not automatic from an order pronounced leading up to trial.  Those orders are called interlocutory orders.  It was necessary to ask permission to appeal an interlocutory order.  The company of the bankrupt’s wife applied to introduce new evidence at the application for leave to appeal.  New evidence is also called fresh evidence. 

The application was heard by Mr. Justice Hinds.  He listened to the application and then asked both lawyers to go away and to research a particular point.  It was three months until we reappeared before Mr. Justice Hinds. 

Following a decision of the Supreme Court of Canada, applications for the introduction of fresh evidence on the hearing of an appeal had been adjourned to the date set for the hearing of the appeal. That gave the panel hearing the appeal, rather than a chambers judge in advance, the task of deciding whether or not the fresh evidence should be admitted. 

The question asked by Mr. Justice Hinds was whether a Court of Appeal justice, sitting in chambers before the date of the appeal, could consider fresh evidence when determining whether to grant or refuse an application for leave to appeal an interlocutory order made by a judge of the Supreme Court.  There was little authority on the point.

After listening to both counsel on the point, Mr. Justice Hinds decided that he could consider the fresh evidence.  This was not a decision to admit the fresh evidence, only to consider it.  After considering the fresh evidence and all of the circumstances, the judge declined to grant leave to appeal. 

There are 16 references to the case in subsequent court proceedings. Gudaitis v. Abacus

Psychological Injury in Aviation Accidents   

My client and her husband were on their way to Cancun, Mexico on an Air Transat flight from Vancouver.  They had purchased a package vacation which included hotel, transfers and the flight to the holiday destination.  They were looking forward to an active vacation including visiting ruins and going parasailing.  They had been to the same resort before.  They decided to return. 

The couple was seated in the last row of the Air Transat aircraft.  Behind them was a corridor.  At the other end of the corridor the flight attendants stored the food carts that are wheeled though the cabin. 

Unfortunately, one of the flight attendants had forgotten to attach one of the food carts prior to landing.  The landing was a hard and fast one.  When the plane touched down the brakes were applied heavily.  The food cart hurtled forward, rolled down the corridor gathering speed and struck the back of my client’s seat.  This produced a whiplash injury that was severe.  There was permanent physical injury.  Medical evidence presented at trial showed that my client suffered injury to the paraspinal muscles of her cervical spine and upper back.  This injury caused irritation of the lower nerves of the brachial plexus. 

The injury ruined the vacation for both of them.  My client wore a neck brace.  She took medication.  She lay in her room or by the pool.  She was in pain.  The doctor told her not to go to the beach.  She could only do short walks. 

In addition to the physical injury there was psychological injury.  My client was diagnosed with major depression, chronic pain disorder and PTSD.

The trial took eleven days.  Mr. Justice Funt’s decision awarded damages for psychological injury for the first time in Canadian history in a case that was governed by the Montreal Convention.  This convention provides for automatic compensation for the passenger when there is an accident on an international flight, but it limits the amount that will be paid for that injury.  From the inception of this international treaty and its predecessor, all payments had been for bodily injury only.  However, starting in the United States, injured passengers began to recover for a psychological injury when that injury was the result of a bodily injury.  Mr. Justice Funt found that this principle applied in this case.

In addition, Mr. Justice Funt awarded damages for the spoiled holiday, something that had never been awarded before under the Montreal Convention.  My client received a refund of the cost of the vacation for herself and her husband and an additional amount, not quantified, as solace for the pain and suffering experienced during the spoiled holiday. 

Cases governed by the Montreal Convention are examined around the world and cited in cases dealing with similar issues.  The decision of Mr. Justice Funt was cited by the United States Court of Appeals for the 6th Circuit in the Etihad case.  Wettlaufer v. Air Transat

Varying a Will

Varying a will

What can I do if I am left out of a will?

It may come as a surprise, or it may be anticipated, that a will-maker would leave nothing to a spouse or children.

The law in British Columbia allows a disinherited party to challenge a will on the basis of fairness. 

The legislation that provides the legal basis for a challenge has been in place since 1920.  At that time, the Wills Variation Act was passed after pressure from women’s organisations.  It was at a time when men held most of the property.  It was considered to be one of the links in the Government’s chain of social welfare legislation.  It was to prevent those left behind from becoming a charge on the state. 

Today the protections for disinherited spouses and children are contained in the Wills Estates and Succession Act.  Other relatives are not entitled to this protection.

There are two interests which are protected by the Act.  One is to provide adequate, just and equitable provision for the spouses and children of will-makers.  The other interest is to protect testamentary autonomy.  This means that the will-maker’s wishes are to be respected, except if it can be shown that a spouse and children did not receive an “adequate, just and equitable” share of the family wealth. 

The Act did not remove the right of the legal owner of property to dispose of it upon death.  Rather, it limited that right. 

In a legal challenge to a will on the grounds that it does not make adequate provision for the proper maintenance and support of the will-makers spouse or children, the court may order a provision that it thinks adequate, just and equitable out of the will-maker’s estate.

Sometimes a will-maker will give clear reasons in the will why a spouse or child is getting little or nothing.  This is taken into account by the court.  In a challenge to the will, the accuracy of the statements in the will about a person can be disputed with evidence to the contrary.

The Act specifically allows the court to refuse to make an order in favour of a person whose character and conduct disentitles the person to receive relief.   

 

The court has the ability to order lump sum payments, periodic payments, transfers of property and to create a trust in a person’s favour. 

The court considers two types of obligations.  The first can be described as legal obligations.  These are obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise.  The second are moral obligations.  These are society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.  Legal obligations are given greater weight than moral obligations.

Despite the provisions of the Act, sometimes a will-maker can take additional steps to ensure that a spouse or child receives nothing.  The Act deals with assets that are in the deceased’s estate.  This means all of the property that belonged to the person at the time of death.  If assets never form part of the estate, the will does not operate with respect to those assets. 

If the will-maker put the family house in a joint tenancy with someone else, that property goes directly to the other person and does not become part of the estate.  If the will-maker set out beneficiaries in RESP, RRIF or cash investment accounts, the money goes to the beneficiaries without passing into the estate.  This strategy avoids probate fees for those assets.  It can be part of the will-maker’s overall tax planning arrangements.

The court has the power to make provision out of the will-maker’s estate but not the power to grab assets which passed directly to other people at the time of death.

Persons with significant wealth can arrange to have so little in the estate at the time of death that court approval of the will, called probate, is not required.  An estate of less than $30,000 does not need to be probated.

Where circumstances arise that leave a person out of a will, an investigation is necessary to determine the assets that make up the estate and to examine the will for specific language which might give reasons. 

Negligence and Causation

crumple zone

When thinking about suing a party for negligence, the starting point is a perception that a person did the wrong thing or failed to do the right thing, and that caused harm.

The law goes further in its analysis of the circumstances.  There are five elements to be considered.  If any one of the five elements is missing, the plaintiff cannot succeed.

  1. The first thing that must be shown is that there is a duty of care to the person who was harmed. Every person has an obligation to avoid acts which could be reasonably foreseen to injure or harm other people.
  2. The second element that must be proved is that there was a breach of a standard of care. This means determining what a reasonable person would do in the circumstances.  It could be a reasonable driver of a car or a reasonable similarly trained professional.
  3. The third element to be shown is that the party sustained damages. There is a monetary payment to compensate the injured party.  The term used to describe this is damages. 
  4. The fourth element is fairly straightforward. It is called cause in fact.  The question asked is, did the defendant’s negligence cause the injury?  What happened here?  The facts are examined to answer this question.  The test that is applied is the “but for” test.  Would the injury have occurred without the defendant’s negligence?  If yes, there would be no liability.  On the other hand, if the circumstances were that, but for the defendant’s negligence, the injury would not have occurred, then there would be liability. 

The English case of Barnett v. Chelsea and Kensington Hospital illustrates this issue.  Mr. Barnett felt sick after drinking tea.  He was suffering from arsenic poisoning.  He went to the hospital.  The hospital should have treated him.  It did not.  He was told to go home.  He died. There was a finding that the doctor was negligent.  He should have examined him.  However the court found that Barnett’s chances of survival were slim even if he had been given the antidote.  There was not enough time for it to have worked.  He would have died anyways.  There was no liability.  Mr. Barnett’s death was not caused by the lack of treatment.

  1. The fifth and final element is remoteness. Even if there is factual causation, a question remains as to whether there was legal causation.   Should the law attribute the damage to the breach of the standard of care?  It is possible that there was a chain of consequences from the original breach that was sufficiently complicated that it was not foreseeable that the breach would have caused the particular damage.  Damage which is too remote is not recoverable. 

The Supreme Court of Canada clarified the law on this point in the case of Mustapha v. Culligan of Canada.  In this case the plaintiff was a regular customer of Culligan’s bottled water.  One day he saw dead flies in the container of water.  He was revolted by this and went on to develop a major depressive disorder.  He did not drink the water.  The Supreme Court found that Culligan had a duty of care to Mr. Mustapha, that there was a breach of a standard of care, that the plaintiff sustained damages and that the defendant’s breach of its duty of care in fact caused Mr. Mustapha’s psychiatric injury.  The question remained as to whether there was legal causation.  Was the harm too unrelated to the wrongful conduct to hold the defendant fairly liable?

The court looked at issues of probability and the fortitude of the plaintiff. The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.  Unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable.  Mr. Mustapha could not show that it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install.  His claim failed.

Each case must be analysed within the five point framework for determining liability.  The earlier this is done, the quicker a decision can be reached about whether a law suit is a suitable method of resolving the matter.

Subpoena to Debtor

British Columbia Practice book

The purpose of launching a claim in Supreme Court and proceeding to trial is to get a court order that the defendant must pay for the wrong alleged in the claim.

With a court order in hand there is more to do to get paid.  It is a step-by-step process.

A court order is a statement confirming an amount of money that a defendant has to pay.  It is also an order that he or she must pay that sum.  However, the court does not enforce its own orders.  That is up to the plaintiff.  If nothing is done the defendant can sit back without paying anything.

In the criminal law the state takes action to enforce each step.  In the civil law it is up to the parties themselves to be responsible for moving forward with each step.

The Subpoena to Debtor application is the enforcement process in the civil law.  It is an opportunity to find out what money and property the defendant has.  The defendant is obliged to answer questions and to produce documents.  If this process shows that there is money available, the registrar or judge can order the defendant to pay, either as a lump sum or monthly.

If the registrar or judge is not satisfied with the responses of the defendant, that person can sign an Examiner’s Report fixing a time and a place for the defendant to return to court before a Supreme Court justice.  At that hearing the justice can sentence the defendant to a jail term.  That can range from two to three weeks. 

This enforcement procedure provides an opportunity for the defendant to comply with the order to avoid going to jail. 

The procedure starts with the filing of a Subpoena to Debtor form in Supreme Court.  This form is then sent to the sheriff along with a personal information sheet and, if possible, a photograph, for the sheriff to serve the defendant. 

The Subpoena to Debtor form sets a date for the defendant to appear in court to be examined on oath with respect to income and property, debts owed, disposal of any property and the means by which the debtor can satisfy the order.

An Examiner’s Report can indicate that the defendant is in the wrong through failure to attend, refusal to be sworn or affirmed, refusal to produce a document or not giving answers that were to the satisfaction of the examiner.

At the appearance before a Supreme Court justice, it is advisable to have a sheriff in the courtroom.  If the defendant shows up and the justice orders the defendant to be committed to jail, the sheriff can place the defendant in handcuffs and lead him or her out of the courtroom. 

The justice signs an Order of Committal which sets out the number of days of imprisonment. If the defendant has not come to court, the court orders the sheriff to arrest the defendant, to bring him or her to the courthouse and then to take the defendant to a specified prison.