Lau v. Insurance Corporation of British Columbia

2026 BCSC 574 Lau v. Insurance Corporation of British Columbia IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Lau v. Insurance Corporation of British Columbia, 2026 BCSC 574 Date: 20260401 Docket: S1910044 Registry: Vancouver Between: Seng Dick Lau Plaintiff And Insurance Corporation of British Columbia, Pacific Law Group, Mary-Helen Wright Law Corporation, Mary-Helen Wright, Watson Goepel LLP, Andrew N. Epstein Personal Law Corporation, and Andrew Epstein Defendants Before: The Honourable Justice Caldwell Reasons for Judgment Counsel for the Plaintiff: J. Fiorante, K.C. (October 7-10 & 21, 2024) J.L. Thornback (October 11 & 15, 2024) N.J. Kovak L.E. Jones Counsel for the Defendant, Insurance Corporation of British Columbia: D.W. Pilley J.A. Morris Counsel for the Defendants, Pacific Law Group, Mary-Helen Wright Law Corporation, and Mary-Helen Wright: S.G. Cordell D.L.D. Rondeau Counsel for the Defendants, Watson Goepel LLP, Andrew N. Epstein Personal Law Corporation, and Andrew Epstein: J.G. Dives, K.C. P.N. Williams D.M.H. Peck (October 10-11, 2025) Counsel for the Attendees, Sam Jaworski and Michael Slater: M.M. Skorah, K.C. (October 22-25 & 28, 2024) S. Rempel (October 22-25 & 28, 2024) Counsel for the Attendee, Ryan Cole: A.C.R. Parsons (October 25 & 28, 2024) Place and Dates of Trial/Hearing: Vancouver, B.C. October 7-11, 2024 October 15-18, 2024 October 21-25, 2024 October 28-30, 2024 November 1, 2024 December 11, 2024 April 28 & 30, 2025 May 1-2 & 5, 2025 Place and Date of Judgment: Vancouver, B.C. April 1, 2026 Table of Contents Background Facts. 4 History of the Cole Claim.. 5 Position of the Parties. 22 Lau. 22 ICBC.. 23 Wright 23 Epstein. 24 Identification of Duties Owed.. 24 Did the Defendants breach the Standard of Care they owed to Lau?. 28 Wright 30 ICBC.. 31 Epstein. 32 Claims Against Counsel. 36 Causation.. 38 Loss of Opportunity. 38 Loss of Chance. 42 Valuation of Loss of Chance. 44 Limitation Defence. 46 Calculation of Damages. 52 [1] The plaintiff, Seng Dick Lau ("Lau") sues two lawyers, Mary-Helen Wright ("Wright") and Andrew N. Epstein ("Epstein") - along with their various corporations - for professional negligence, breach of duty of care, breach of contract, breach of duty of good faith/fair dealing and breach of fiduciary duty. He also sues the Insurance Corporation of British Columbia ("ICBC") for negligence, breach of duty of care, breach of contract and breach of duty of good faith and fair dealing. [2] The trial in this matter extended over 23 days, split between October and November 2024, and April and May 2025. Counsel finished their closing submissions on May 5, 2025. Over the course of the trial, extensive evidence was presented from both sides, including expert evidence. Much of that expert evidence was ultimately ruled inadmissible. Lau testified as did Wright and Epstein. The result was an extensive amount of material, some of which bore little on the issues in question. Background Facts [3] On January 15, 2015, Lau was driving his SUV in Vancouver, British Columbia. He had a valid driver's licence and carried $2,000,000 of third-party liability insurance through ICBC. It was dark and raining. He failed to stop at a red light at the intersection of Clark Dr. and Adanac St. and his vehicle struck Dennis George Cole ("Cole") who was riding across the intersection on an upright, electric motor assisted bicycle (the "Collision"). Cole suffered catastrophic injuries including a traumatic brain injury and permanent blindness. He underwent emergency surgery to remove a portion of his skull. A significant portion of his brain was destroyed or removed. He remained in an induced coma for several weeks. [4] Cole was 62 years old at the time of the Collision and was employed as the Director of Finance and Administration for the Continuing Legal Education Society of British Columbia. He was earning a significant income - approximately $200,000 per annum - at the time of the Collision. History of the Cole Claim [5] On April 17, 2015, Cole, by way of his wife and guardian ad litem Kerry Marie Cole, commenced an action against Lau for damages suffered as a result of the Collision (the "Cole Claim"). He was represented by Michael Slater, K.C., ("Slater") of the firm of Slater Vecchio LLP. [6] Shortly thereafter, on May 5, 2015, ICBC appointed Wright, a senior defence lawyer, to assume conduct of the defence of the Cole Claim pursuant to the insurance contract that Lau had with ICBC. That contract stipulated that ICBC would have exclusive conduct of the defence of any action brought against Lau which implicated his ICBC insurance. [7] In late May or early June, Wright received a medical report from Slater's office written by a Dr. Christopher Honey, a neurosurgeon (the "Honey Report"). The Honey Report, dated May 28, 2015, outlined Cole's injuries, current medical condition and prognosis. It had been generated, at least in part, for the purposes of a committeeship application regarding Cole. [8] By June 5, 2015, Wright had written to ICBC advising that: Given the severity of the plaintiff's injuries and expected lengthy rehabilitation, his claim is likely to exceed the policy limits. [9] Wright testified at trial that she meant that the actual claim put forward by Cole - the "ask" - would likely exceed policy limits, not that the eventual award, if any, would do so. [10] In a letter dated June 16, 2015, Wright reported to ICBC: Although Dr. Honey notes the plaintiff has made substantial gains over the last 5 months and will most likely continue to improve over the next year, he will not recover sufficiently to be able to look after his own affairs and will remain permanently cognitively impaired to a severe degree. It is possible, however, that the plaintiff could recover beyond Dr. Honey's expectations. At this time, the plaintiff's prognosis remains bleak and he is completely dependent on nursing care. [11] On July 6, 2015, Wright wrote two letters to Lau. [12] The first of these letters advised Lau that Wright had been appointed by ICBC to defend the Cole Claim and outlined her role in representing both ICBC and Lau, Lau's role and responsibilities in the litigation and raised the issues of policy limits and possible additional insurance coverage. That letter included the following: Your insurance policy with ICBC gives ICBC the exclusive conduct and control of the defence of this action. That includes the right to appoint and instruct a lawyer, admit or deny liability on your behalf, and take any actions ICBC considers appropriate to deal with the lawsuit. I will take instructions from ICBC in this matter we must act in each of your best interests and must not favour the interests of one over the other or allow anything to interfere with our loyalty to each of you. [13] Wright's second letter to Lau, written the same day, advises Lau that the Cole Claim could well exceed ICBC policy limits: Based on our review of the available medical and income loss information, we consider there to be a risk that the claims advanced by the plaintiff may exceed your Policy Limits, and, therefore, we write to alert you to this situation. If this action proceeds to trial (rather than being settled at mediation or otherwise) and the Court awards the plaintiff an amount that is higher than the total value of our Policy Limits, ICBC will pay the Policy Limits to partially satisfy the judgment amount. The plaintiff could then instruct his lawyer to take various steps to collect the amount not covered by the Policy Limits from you personally, by taking legal steps to collect the balance. This could include efforts to seize assets you may own now or in the future, or any income you may be entitled to, until the whole of the balance is paid. [14] The second letter refers to the Honey Report, which had already been served on ICBC by Slater. After advising Lau about his personal exposure if a trial award were to exceed the limits of the policy, Wright recommends that Lau hire independent counsel to further advise him regarding that issue: That lawyer can inform you about your risk of personal exposure and your rights and obligations in this situation in respect to the plaintiff. That lawyer can also advise you of ICBC's duties with respect to settlement of claims against you. Because we are retained to act for you and ICBC jointly in the defence of this claim, we cannot advise either you or ICBC on any question of that type that arises between you and ICBC. Our role is restricted to defending you in this action. We are not able to advise you or ICBC separately about points where your interests are not the same. Indeed, nothing you say to us can be kept confidential from ICBC or vice-versa. [15] The Honey Report contains the following description of Cole's injuries and prognosis: During [the Collision], [Mr. Cole's] skull was broken and a fragment pushed into the left side of his brain. The resultant brain injury produced potentially lethal brain swelling that required immediate neurosurgery. During that surgery, a large portion of the left side of his skull was removed (and discarded ) and the bleeding stopped. He then spent several weeks in the ICU in a deep coma. Additional complications due to his brain injury included lung and bladder infections which were managed medically. His reduced level of consciousness required a tracheostomy (tube into the throat) to help him breath and a gastrostomy (tube into the stomach) for feeding. When the brain swelling resolved after a few weeks, I took him back to the operation room to refashion an artificial skull. Four months later, he is still recovering on the neurosurgery ward. The skull fracture caused a direct brain injury to the left frontal and temporal lobes of Mr. Cole's brain the left frontal lobe [of Mr. Cole's brain] is mostly missing and replaced by fluid The left frontal lobe is responsible for a variety of cognitive functions and many of these have been adversely affected in Mr. Cole. He has lost the ability to speak (motor aphasia) because of injury to this area. He is still able to understand simple speech The left frontal lobe is responsible for abstract thought, planning and cognition. Mr. Cole has certainly lost these abilities The left frontal lobe also controls movement on the right side of the body and Mr. Cole is paralyzed on that side The brain swelling at the time of the initial injury also caused a more diffuse brain injury to the entire brain. This pressure resulted in blindness due to pressure on his optic nerves. This diffuse brain injury will make it harder for the other parts of his brain to compensate for his left frontal lobe injury. Prognosis Most patients will improve over the first year after a brain injury and will continue to improve to a lesser extent over the next year. Their ability to improve asymptotically approaches zero after that but their ability to adapt to their injury continues for many years. Mr. Cole has improved dramatically over the last four months and will likely continue to improve over the next two years. It is my opinion that he will not recover sufficiently to be able to look after his own affairs. It is my opinion that he will be permanently cognitively impaired to a severe degree. I would strongly urge you to re-evaluate him at the one-year and two-year post injury mark to confirm that my predictions were correct. There is a small possibility that he could recover beyond my expectations. [16] I was not made aware of Wright or ICBC taking serious issue with the description of the injuries or medical opinion expressed in the Honey Report, either in this proceeding or during the Cole Claim. The report was referred to and quoted from without dispute by Wright in her contemporaneous report to ICBC. She undertook no substantive investigations regarding Cole's injuries and condition such that she would be in a position to challenge the Honey report and its conclusions. Nevertheless, Wright and ICBC, throughout the Cole Claim, expressed suspicion of materials they received from Slater, including the Honey Report. Despite this, I find that Wright, and therefore ICBC, was aware from a very early stage in the Cole Claim that Cole's injuries were devastating, life altering and lifelong. [17] In August 2015, Lau retained Epstein to provide him with legal advice and services regarding the possible shortfall in insurance coverage. Their communications indicate that much of the discussions that took place between Lau and Epstein involved Lau's financial circumstances, as opposed to specific advice regarding the Cole Claim. Lau elicited advice from Epstein regarding alleged loans his mother had made to him at various times. [18] The details of these "loans", including their status as loans as opposed to gifts, the amount they totalled (potentially about $245,000 but possibly significantly more or less), how much had been repaid and what the repayment arrangement was (the payment/repayment pattern having changed immediately following the Collision), were never precisely established in evidence. [19] It was established that, once the Cole Claim had commenced, Lau wanted to procure his mother some security in the "loans" and therefore inquired with various lawyers about having the amount he allegedly owed her secured against his property by way of a mortgage. The lawyers he inquired with about this, including Epstein, advised that doing so would likely be looked at as "fraudulent preference" and Lau was therefore dissuaded. I find that Lau's priority was protecting his and his mother's financial position. [20] There was little, if any, evidence of Epstein advising Lau about the extent of or the limitations of Epstein's ability to influence Wright's advice to ICBC, ICBC's instructions to Wright based on that advice or Wright's actions taken based on those instructions. [21] Between July and November 2015, Cole progressed somewhat but not without significant complications and regressions. During that time, he was released from hospital to the G.F. Strong Rehabilitation Centre in Vancouver, British Columbia but was readmitted to hospital on at least two occasions due to medical setbacks. These were times of great concern and difficulty for the Cole family. [22] Document disclosure between the parties continued during this period, as did demands from Wright to Slater for further, and ongoing, disclosure. [23] In the fall of 2015, Cole was transferred to the Halvar Jonson Centre for Brain Injury in Ponoka, Alberta, as that facility offered services which were not available at G.F. Strong Rehabilitation Centre. [24] On November 17, 2015, Slater forwarded a formal settlement offer to Wright (the "November 17 Offer"). Wright provided this offer to Epstein's office, and, in turn, Epstein's office provided it to Lau very shortly thereafter. The offer contained the following proposed terms of settlement: · a payment of the policy limit of $2,000,000 plus costs and disbursements; · statutory declarations from Lau verifying that he had no further insurance which would respond to the Cole claim and that his total net assets did not exceed $350,000; and · court approval of the settlement, as Cole was a person under disability. [25] It was specified that the offer was open for 30 days, starting from November 17, 2015, after which period it was to be withdrawn. [26] Wright wrote to ICBC, providing her legal advice to them regarding the November 17 Offer: I would be inclined to respond to [Plaintiff's Counsel] at this time stating that we need the outstanding requests before we are able to provide a reasonably reliable quantum opinion to our client and ask for the prompt delivery of the requests that were reiterated in our letter of November 16, 2015 so that our client will be in a position to respond to the offer we received today. [27] There is no evidence that Wright advised ICBC that such a delay could operate to the prejudice of Lau. [28] Wright did not write to Lau or Epstein to advise them that she was providing such legal advice to ICBC - advice which was potentially contrary to Lau's interests. When providing the offer to Epstein's office, Wright merely advised him that she was awaiting further document disclosure and asked whether Lau was in a position to provide the required statutory declaration. No response to that question was ever provided by Epstein or his office. [29] There is no evidence that Wright ever advised Lau regarding the settlement offer or how acceptance or rejection of that offer could affect his interests. [30] Wright did respond to Slater regarding the November 17 Offer, presumably upon receipt of instructions from ICBC. Her reply referred to her letter to Slater of November 16, 2015, in which she had requested nine items of further disclosure. Her communication to Slater stated that she was seeking that additional disclosure in order to be in a position to advise her "client" as to the settlement offer. [31] Some significant items, but not all, of the nine items of disclosure that were requested by Wright in her November 16 letter to Slater were provided by Slater's office to Wright in early December 2015, during the currency of the offer. [32] Wright testified at trial that it was her professional opinion that the offer was extended prematurely, given Cole's injuries, short fused (meaning it was open for too short a period of time) and ignored the significant possibility (if not hope from Wright and ICBC's standpoint) that Cole would die or become so totally disabled as to require full government funded institutionalization. In the case of Cole's death or institutionalization, damages could have, in Wright's opinion, easily fallen within policy limits and, therefore, ICBC's liability could have shrunk to, Wright theorized, less than half of the $2,000,000 policy limit. [33] This position seems inconsistent with the opinions in the Honey Report and the interpretation which Wright seems to have placed on that report in advising ICBC and Lau in June and July 2015. [34] Wright did not provide her opinion that the November 17 Offer was premature to Lau or Epstein at the time, nor inform either of them of the risks to Lau associated with ICBC and Wright acting in accordance with her advice to await further disclosure before taking action regarding settlement. [35] While I accept that only about 10 months had passed from the date of the Collision to the date of the extension of the November 17 Offer, I do not see it as premature or an unduly short-fused offer. [36] Early settlement offers and discussion may well pose risks to all parties, but they are an option which shares the risk among the parties. Everyone is operating on partial information, "best guesses" and potential outcomes based on those guesses. [37] The informational shortage present in early settlement offers is to be weighed against the benefits of early resolution and the ability of the parties to gain closure and move forward. With delay, and as more information comes to light, the picture may well become clearer, but the likely consequences to one party or another increase as well, as does the mounting stress and pain of continued legal proceedings. Delaying and obtaining further information comes at a cost. In this case, delay came with a significant risk, the cost of which was ultimately born by Lau. [38] Waiting and delaying served ICBC's interests and was discussed by Wright with representatives of ICBC in terms of tactics and instructions. [39] Wright did not in any way explain, either to ICBC or Lau, how that tactical decision would impact Lau's interests, including the potential that the ultimate quantum of damages could exceed policy limits. [40] Lau was not consulted or advised regarding this approach, the instructions from ICBC or the risk to him from the proposed course of action. [41] Wright, in the 10 months between the Collision and the date of the extension of the November 17 Offer, had not yet assessed or determined the issue of liability. Neither she nor ICBC had undertaken any meaningful investigation into the issue. She therefore had no information beyond what Slater had provided her with which to make tactical decisions and risk assessments for ICBC or Lau. [42] For ICBC, the possible financial downside of delaying any investigation, not pursing a settlement and waiting to see if Cole deteriorated, was capped. The very worst scenario, from their perspective, would be Cole's condition remaining static or his prognosis improving (i.e. him regaining more cognitive function). In this "worst case" they would likely have to pay the $2,000,000 policy limit out to Cole but their liability, due to the policy limit, would be capped at this amount. ICBC already believed it was likely that they would have to pay out the policy limits. The financial upside to ICBC of the delay strategy was the possibility that, if Cole deteriorated to the point he would have to be institutionalized or died, they may have to pay less than the policy limit. As ICBC knew it was very likely that they would have to pay out the policy limit of $2 million given Cole's injuries, delay essentially only carried the possibilities of either no change or a benefit to their interests. In other words, there was no downside to delaying for ICBC. [43] However, the "wait and see" approach was not in any way advantageous to Lau's position and, in fact, was actively dangerous. Lau's personal financial liability for damages that exceeded policy limits was limitless. The beneficial scenario for ICBC (i.e. Cole's death or institutionalization leading to a damage award below policy limits) would not be more beneficial to Lau than a settlement at policy limits.[1] However, if Cole's condition remained static over the period of delay or he regained some cognitive function, Lau would be exposed to limitless financial devastation in the form of damages over policy limits for which he would be personally liable. Further, "wait and see" engendered the possibility that Cole would no longer be open to the possibility of settlement at or around policy limits, as indeed happened. [44] Therefore, the strategy Wright presented to ICBC as preferrable to pursing a settlement in 2015 only had possible upsides for ICBC and bore only possible downsides for Lau. In addition, Wright did not pursue, or advise ICBC to pursue, any investigations that would provide her, ICBC and Lau a more informed position from which to make these tactical decisions. [45] Up to, and for a considerable time after, November 2015, Wright did not seek to have investigators identify or interview witnesses. The preferred position of Wright and ICBC was to simply request, await and rely on the police investigation and report, over which they had no control in terms of timing and approach. Wright did not even follow up with or have ICBC investigators, to which she had access, contact or interview the people whom Slater had identified as witnesses in the November 17 Offer. [46] This election, to take no direct investigative steps, was presumably taken on instructions solely from ICBC, as neither Wright, nor anyone from her office, interviewed Lau until early 2017, in preparation for his examination for discovery. She certainly did not provide Lau with legal advice indicating that such investigations might well be in his interest as the information they could provide would better inform him as to the best path to pursue. [47] There is no evidence that Epstein provided Lau with such advice either - and certainly no evidence that he demanded or even suggested to Wright or ICBC that such steps be taken. [48] Whether tactical or not, the decision by ICBC and Wright to not pursue independent investigation contributed to the continuing and significant delay in ascertaining the factual matrix regarding the Collision and allowing a true and proper assessment of liability. Without such information, ICBC and Wright remained in an informational vacuum of their own making. Absent such information, it was impossible for them to meaningfully consider, let alone undertake or participate in settlement discussions. [49] Notwithstanding the "wait and see" approach of Wright and ICBC, as held in November 2015, some six months earlier, and following receipt of the Honey Report, ICBC had already noted internally that the claim, and likely their exposure, was at policy limits and had therefore "posted" policy limits as a reserve on the file (although this does not mean that the distribution of these monies had been approved by ICBC's internal committee at this point). [50] On receipt of the November 17 Offer from Wright's office, Epstein's office advised Lau that Epstein was away from the office and country until December 7, 2015, and another member of the firm was identified as an interim contact person. [51] Discussions between Lau and Epstein occurred following Epstein's return. They involved general consideration of Lau's financial position, the possible value of his assets and particularly the status of the monies he alleged to be owing to his mother. Various mechanisms for addressing the debt to his mother were discussed but were, then or later, rejected as potentially attracting claims of fraudulent preference. General discussion occurred regarding possible valuation of assets and debts with an eye to determining if Lau could make the net worth statutory declaration required by the November 17 Offer, but no strategy or approach was landed on despite the potential for significant consequences to Lau personally if the chance to settle at policy limits was missed. [52] Epstein e-mailed Lau a form of Personal Financial Statement on or about December 9, 2015, suggesting that: it would be a good idea to prepare a personal financial statement (PFS) to help measure with some precision, what your 'total net assets' actually are, since you may be obligated to swear that it is true [53] Lau was not given any legal advice by Epstein (or Wright) as to the importance of establishing his financial position and net worth or advised that a failure to do so could well be financially devastating to him if it prevented a possible settlement. The comment that he "may be obligated to swear that it is true" ignores or significantly downplays the fact that a sworn declaration was an actual term and condition of the November 17 Offer. [54] In the same December 9, 2015 e-mail, Epstein also told Lau that he would speak to Wright "within the next few days" but the evidence shows that no such discussion happened until January 2016, well after the November 17 Offer had expired. When Lau wrote Epstein on January 21, 2016, asking about Epstein's conversation with Wright, Epstein replied: I was waiting to get the summary of your financial situation as that was a precondition to negotiating a settlement with Mr. Cole's counsel. We need to know the level of your personal finances so that we can see if we can sell them on accepting just the funds available through ICBC. [55] None of this had been explained to Lau during the currency of the November 17 Offer and at no point in the December 9, 2015 e-mail did Epstein indicate that talking to Wright was conditional on receiving a financial summary from Lau. [56] Later that day, Lau replied to Epstein: I apologize, I didn't know you were still waiting for my financial summary as you had not responded to my earlier emails regarding clarification, so I had only provided you with a rough estimate assuming that was enough. [57] The evidence does not establish that any determination was ever made as to Lau's actual net asset position during the currency of the offer. No formal valuations were undertaken, although estimates were exchanged between Lau and Epstein in e-mails. The most favourable estimates, from Lau's point of view, may have resulted in a figure which was under the $350,000 limit but it seems more likely that his net worth was at, or above, $350,000 as of November and December 2015. [58] No discussion or negotiation occurred between Epstein and Slater regarding the statutory declaration. Epstein made no inquires regarding the $350,000 figure, how it was to be established, how values were to be determined or whether there was any flexibility as to the amount. [59] In an e-mail on December 28, 2017, well after the Cole Claim trial had concluded, the jury decision had been reached and this current litigation may have been in contemplation, Epstein wrote that: As for the net worth at the time of the offer, we never precisely calculated his value [60] Epstein acknowledged in his evidence at trial that there was room for "lawyering" or, in other words, room for him to make further efforts regarding these issues and the form and content of the statutory declaration. No such lawyering, negotiation or even discussion ever occurred between Epstein and Wright or Slater. [61] Based on the evidence at trial, it seems no statutory declaration was ever prepared, provided or even proposed by Lau, Epstein or Wright regarding the November 17 Offer and its terms. [62] No evidence was led showing that Lau, directly or through Epstein, ever even suggested to ICBC or to Wright that the offer should or could be accepted as written or proposed a possible counteroffer to them. [63] No evidence was presented indicating that any efforts were made by ICBC to authorize the payment of policy limits if the other conditions of the November 17 offer were able to be met or to facilitate further negotiations.[2] There was no evidence that Wright advised ICBC that such a step could well serve the interests of both ICBC and Lau by increasing the chances of settlement and providing a chip to Wright in negotiations with Slater. [64] Neither Wright's office nor Epstein's sought an extension of the 30-day deadline nor any other form of accommodation regarding the terms of the November 17 Offer. [65] The 30-day deadline passed without further response to Slater from either Wright or Epstein. [66] Nothing further happened in terms of proposing or pursuing settlement until early 2017. The only caveat to this is that, in March of 2015, Cole approached ICBC regarding an advance from the policy limits. ICBC, via Wright, requested, in exchange for the advance, that Cole agree to cap his claim at policy limits. Cole refused, indicating that, by March 2015, Slater and Cole had already adjusted their position such that policy limits would no longer be sufficient to resolve this case. [67] The evidence established that this dearth of resolution discussions in 2016 resulted largely from Wright and ICBC's lack of information regarding both liability and Cole's physical condition. This deficit itself was a result of Wright's advice to ICBC to "wait and see". Wright and ICBC both submitted at trial in this proceeding that this delay was appropriate because, for brain injuries, assessments taken 1-2 years post-injury will provide a more accurate picture of the impact of the injury. This approach was also, no doubt, more cost effective for ICBC. [68] The Cole Claim proceeded towards trial over the course of the next 20 months or so. [69] In that time, information, as it did become available, appears to have, for the most part, supported and strengthened Cole's position for very significant compensation. [70] Wright, on instructions from ICBC (which, as ICBC submitted, were based on advice from Wright), continued to demand and await further information from Slater and to wait to see how matters developed as time passed. Delay continued to be the course advised by Wright and chosen by ICBC. Investigation into liability and damages was left to Slater and the Vancouver Police Department. [71] Slater was far more pro-active in carrying out investigations. Slater continued to actively build Cole's case. Slater, on behalf of Cole, made no further offers to settle in the intervening months. [72] Sometimes, information obtained by Slater was held for days, weeks or more before being shared with ICBC, Wright and, presumably, Epstein. When information was shared, the position of Wright and ICBC seems to have been that the information was not reliable and should not be trusted or relied upon. This had certainly been the position regarding the Honey Report, Slater's identification of witnesses and the summary of those witnesses' alleged statements. Nevertheless, Wright and ICBC took no actions to verify or discredit the information provided to them by Slater. I find, as stated above, that despite their stated skepticism of the information received from Slater, ICBC and Wright were well aware during the entirety of the proceeding that Cole's injuries were devastating. [73] Expert reports, where they had been obtained by Slater, were disclosed at or near the required 84-day pre-trial deadline as required by Supreme Court Civil Rules, R. 11-6(3). [74] As is oftentimes the case, the fight, whose outcome was almost certainly mutually destructive at least as regards Cole and Lau, took priority over the seeking of a timely solution to a tragic situation which would have deep and long-standing consequences for these two individuals. [75] Over the course of the Cole Claim, Epstein, for the most part, limited his involvement to that of a watching brief. His communication with Wright was limited at best and could in no way be characterized as persuasive, forceful or even persistent. [76] Epstein testified at trial that it was his opinion that his role had no real power as ICBC had control of the litigation. He testified that he was of the view that ICBC had exclusive conduct of the defence to the claim and its potential settlement and that Wright took her instructions exclusively from ICBC. They, and they alone, he submitted, could determine the tactics, the course of the defence of the action and the position taken regarding settlement and resolution. [77] His communications and involvement in the Cole Claim, and his evidence in this trial, echo that view. [78] There is little, if any, evidence of his having demanded that Wright keep him informed of the course and status of the litigation. Before mid 2017, there is absolutely no evidence that Epstein prodded or pressured Wright or ICBC regarding the financial risk to Lau or Wright's duty to consider and protect Lau's interests as seriously as ICBC's interests. [79] Epstein also testified that he undertook little activity on the file specifically to minimize legal fees to Lau. This, he reasoned, would allow Lau access to more funds to contribute to settlement if the opportunity or need arose. [80] By early to mid 2017, at the very latest, and probably significantly earlier, it became obvious that the Honey Report was largely accurate in its basic diagnosis and prognosis. It had become obvious that the award of damages at an eventual trial would, almost certainly, significantly exceed policy limits. The only question was the quantum of that excess. [81] Also, by that time, what investigation had been done had established that Lau would be found liable for the Collision and damages. It had further established that even the claim of contributory negligence by Cole was unlikely to succeed. [82] More than two years after the Collision, following production of the Vancouver Police Department file, Wright hired a reconstruction engineer to assess the Collision. Based on his oral report to Wright, she opined that it would not assist ICBC or Lau at trial to order a written report. It was in no way favourable to Lau on the issue of liability for the Collision. [83] In April 2017, by which time the strength of the Cole Claim was undeniable, Wright, on instructions from ICBC, proposed a policy limits settlement to Slater. That offer was rejected. The adjuster on the Cole file, who had a long-standing relationship with the Slater Vecchio firm, attempted to use that relationship to further explore resolution. That attempt was also unsuccessful. [84] In early July 2017, about two months before the scheduled trial, Wright finally provided her formal opinion of quantum of the likely damages award to ICBC: · Low end: over $2,500,000 · Likely range: $3,625,000 to $4,625,000 · High end: $8,490,645 [85] All of those figures were well above the policy limit and would expose Lau to significant or devastating financial liability. [86] Mediation took place in early July 2017, by which time Cole was seeking over $13,000,000 plus costs and disbursements. ICBC offered remaining policy limits (policy limits minus the small advance ICBC had already paid to Cole) plus costs and disbursements. Lau offered to contribute a further $100,000. The Cole family considered the offer an insult and it was rejected. Cole made clear during these discussions that, for settlement, he would require Lau to offer all of his existing assets, or at least his house, in addition to the remaining policy limits plus costs and disbursements. [87] In August 2017, after considerable consultation with Epstein, Lau raised his offer of personal contribution to $150,000 and then to $200,000. The evidence suggests that neither Lau nor Epstein expected such an increase to trigger settlement. It did not. [88] By August 2017, Epstein had finally become more active in his role and was actively suggesting to Wright, and by implication ICBC, that ICBC should increase its offer of settlement and pay additional monies over and above policy limits. On August 22, 2017, he wrote to Lau regarding ICBC's position: Hi Seng - I have tried to pressure ICBC to putting in more money, but they have so far declined. In the big picture, it helps us because they are still only posting the money that they always should have posted, but now they are suffering for waiting so long. [89] During that same period of time, Lau and Epstein, per their testimony at trial, also actively discussed the possibility of pursuing a claim against Wright regarding her conduct of the defence, her neglect of her duties to Lau and the consequent financial position in which Lau found himself. They also discussed pursing a claim against ICBC for bad faith. This was clearly expressed in an e-mail of August 31, 2017, wherein Epstein wrote: ICBC seems to want us to tell them why they should be paying more - they know. But I am reluctant to say anything specific in the event that it forces Mary- Helen to have to step down as counsel (due to allegations against her messing up and a conflict between you and ICBC) that only drags the case out and doesn't really help you. [90] The matter went to trial in late September 2017. The resulting jury award totalled $4,073,850.51 (the "Cole Award"). Liability was found 100% as against Lau. Tax gross up and management fees were settled at a further $250,000. [91] ICBC paid the remaining policy funds up to a total of $2,000,000 plus the costs and disbursements. This left Lau personally liable for the amount of the award that exceeded that $2,000,000: approximately $2,073,000 plus the tax gross up and management fee amounts. [92] In 2019, Cole began enforcement and collection proceedings against Lau and Lau began bankruptcy proceedings which remain ongoing and outstanding pending the outcome of this action. [93] On September 9, 2019, Lau commenced this action (the "Lau Action"). Position of the Parties [94] While presented in several pages of pleadings and over 300 pages of written argument, the essential positions of the parties can be summarized in fairly short order. Lau [95] Lau claims that ICBC, Wright and Epstein each owed him duties in both contract and tort as well as unspecified fiduciary duties. He alleges that ICBC owed him a duty of good faith. [96] Lau submits that the site of the breaches of these various duties are the efforts taken, or not taken, by ICBC, Wright and Epstein, to defend the Cole Claim and, more importantly, to resolve that claim within policy limits in order to avoid a judgment in excess of policy limits. Lau says that the breaches of these duties are shown in the following actions of each defendant: - ICBC, in the course of favouring its own financial interests over those of Lau, failed to direct resources towards proper and timely investigation, unreasonably delaying consideration as to likely outcomes regarding liability and quantum of damage. They refused to reasonably consider and pursue settlement at policy limits and knowingly or recklessly put Lau and his financial position at risk and directly in harms way. These actions, he says, constitute a breach of ICBC's duty of good faith to him. - Wright consistently acted to protect the interests of ICBC, whom she seemingly considered her main or only client, at the expense of Lau and his interests, thereby operating with a clear conflict of interest. She favoured ICBC and advised them to choose delay over reasonable and timely investigation and pursuit of settlement within policy limits, to the benefit of ICBC and the prejudice of Lau. She recommended against, or did not question instructions against, pursuing reasonable and timely inquiries into issues of liability and quantum of damage. These actions favoured ICBC at the expense of exposing Lau to financial ruin and constitute a breach of Wright's professional duties to him as the insured. - Epstein failed to take even the most basic actions to protect Lau's position in the litigation. He failed to demand or even suggest that ICBC accept or at least pursue the November 17 Offer. He failed to advise Lau as to the importance of the offer and the necessity of actively pursuing the proposed conditions of settlement or actively proposing counteroffers or modifications. Such failures were breaches of Epstein's retainer agreement with Lau and also constituted professional negligence as they breached the standard required of a reasonably competent lawyer. [97] Such breaches by all defendants, Lau says, resulted in his suffering significant financial damage and loss, including, but not limited to, the amount of the Cole Award for which he is personally liable, the cost of his bankruptcy proceedings and the emotional and psychological damage he suffered from having to go through such experiences. ICBC [98] ICBC denies breaching any contractual duties to Lau and denies owing any duties to him in tort. It says that if they did breach any duties to him, then such breaches were not the cause of his losses. They say that they hired Wright as a senior and experienced insurance defence lawyer, that they relied entirely on her advice to them on all matters, including the issues of investigation and the pursuit of possible settlement, and, accordingly, they cannot be held liable. Finally, they say that Lau's claim against them is barred by the provisions of the Limitation Act, S.B.C. 2012, c. 13, as the claim was brought at least several days after the expiry of the statutory mandated two-year limitation period beginning from the date of discovery. Wright [99] Wright denies a contractual relationship with Lau, saying that she was solely retained by ICBC. She denies the existence or breach of fiduciary duties and denies that she was in any way negligent or in conflict in her provision of professional legal services to Lau in the Cole Claim. She says that, as provided in the original contract of insurance and made known to Lau, ICBC was her source of instructions. She was retained by them and instructed by them, and she took those instructions as to how the defence was to be conducted. This included instructions from ICBC regarding how to deal with investigation and offers of potential settlement at policy limits. She says that she carried out those instructions appropriately and professionally. She further says that, if she did breach her obligations to Lau, none of those breaches caused the losses suffered by Lau. Finally, she also pleads a defence pursuant to the Limitation Act. Epstein [100] Epstein denies that he was in any way negligent in the performance of his legal services to Lau and says that he was not in breach of the contractual obligations contained in his retainer agreement. He points to his extremely limited authority over the defence of the claim given that ICBC had exclusive control over the conduct of the litigation and the instructions to Wright. He says that, in the alternative, even if he breached such duties, such breaches were not the cause of any damage or loss to Lau. He also pleads that Lau's claim against him is barred by the Limitation Act. [101] All defendants plead failure to mitigate and/or contributory negligence on the part of Lau and some plead apportionment in the event of a finding of liability against some or all of the defendants. I have acceded to the request by the parties that, should it be necessary, I will hear submissions and rule on apportionment after the delivery of this ruling determining whether the defendants are liable for Lau's losses. Identification of Duties Owed [102] I will first address Lau's assertion that the defendants owed him a fiduciary duty. [103] Claims for breaches of fiduciary duty, which are commonly pled in cases of solicitors' negligence, were addressed by Madam Justice Southin in Girardet v. Crease & Co., [1987] B.C.J. No. 240, 1987 CanLII 160 (S.C.), wherein she correctly, in my opinion, identifies the overuse of allegations of breach of "fiduciary duty" in solicitor's negligence cases. Madam Justice Southin notes that "fiduciary" means pertaining to a trust relationship. While a lawyer can commit breaches of their duty as a trustee and therefore breach fiduciary duty by, for example, stealing a client's money, a failure to live up to the standard of care required of a solicitor is not this kind of breach. This is an important distinction to make because a fiduciary breach implies a level of dishonesty and fraud which is not omnipresent in cases of solicitor's negligence. [104] The claim herein is based in whether the defendant lawyers breached contractual terms, met or failed to meet the standard of reasonably competent lawyers in the performance of their professional duties to Lau and whether the actions of ICBC constituted bad faith or lack of good faith. None of these amount to fiduciary duties. [105] Despite this assessment, I have also considered and agree with the comments of Chief Justice Esson in Fredrikson v. Insurance Corporation of British Columbia, (1990), 69 D.L.R. (4th) 399, 1990 CanLII 3814 (B.C.S.C.), at pp. 60-61, wherein he identifies that, although not subject to a fiduciary duty, the vulnerability of insureds in the particular context of insurance contracts gives rise to a corollary duty of utmost good faith on the part of the insurer, meaning an obligation to exercise its power having regard to the interests of the insured.[3] [106] Similar sentiment was expressed by Mr. Justice Finch (as he then was) in Shea v. Manitoba Public Insurance Corp. (1991), 55 B.C.L.R. (2d) 15, 1991 CanLII 616 (S.C.), within which he echoes that the relationship between an insurer and insured is a middle ground between a fiduciary relationship and a purely commercial one; that is, the insurer does not have a fiduciary duty but must consider the interests of the insured and treat them equally to their own. This does not entail a duty to act solely for the benefit of the insured or a duty of undivided loyalty; rather there is a duty of good faith and fair dealing which the insurer owes to its insured. In Shea, Mr. Justice Finch summarizes the implications of said duty, stating, among other things, that the insureds position of vulnerability in insurance contracts entails that insurers have the following duties: a) of good faith and fair dealing; b) to give at least as much consideration to the insureds' interests as they do to their own interests; and c) to disclose with reasonable promptitude to the insureds all material information touching upon the insureds' position in the litigation, and in settlement negotiations. [107] Insureds, Mr. Justice Finch notes in Shea, are in a particular position of vulnerability regarding settlements given the insurer's exclusive discretionary power to negotiate and agree to a settlement. As such the insured will have a justified expectation that the insurer: - will not act contrary to the interests of the insured, or, at least, will fully advise the insured of its intention to do so; - will advise the insured of all conflicts between the interests of the insured and the insurer; - where a conflict is at issue, will instruct counsel to treat the interests of the insurer and insured equally (or else hire separate counsel); and - will conduct preparation and settlement negotiations in a timely way such that the interests of the insured can be protected. [108] Further, the insurer's duty entails the obligation to attempt to minimize, as much as legally possible, the amount of any award against the insured. [109] 702535 Ontario Inc. v. Non-Marine Underwriters, Lloyd's of London (2000), 184 D.L.R. (4th) 687, 2000 CanLII 5684 (Ont. C.A.), as cited in Asselstine v. Manufacturers Life Insurance Co., 2005 BCCA 292, at para. 23, sums up the duties of the insurer: [27] The relationship between an insurer and an insured is contractual in nature. The contract is one of utmost good faith. In addition to the express provisions in the policy and the statutorily mandated conditions, there is an implied obligation in every insurance contract that the insurer will deal with claims from its insured in good faith: Whiten v. Pilot Insurance Co. (1999), 4 O.R. (3d) 641, 170 D.L.R. (4th) 280 (O.C.A.). The duty of good faith requires an insurer to act both promptly and fairly when investigating, assessing and attempting to resolve claims made by its insureds. [Emphasis added.] [110] See also Whiten v. Pilot Insurance Co., 2002 SCC 18, at para. 129. [111] In the present case, such a relationship clearly existed between ICBC, as the insurer, and Lau, as the insured. That relationship imposed on ICBC, and Wright, as ICBC's chosen and instructed counsel and agent, the duties referred to in the above paragraphs. Further, that relationship placed Lau, to the knowledge of ICBC and Wright, in a position of vulnerability. While this does not create a fiduciary duty, I find that, as held in the above noted cases, it does create a duty of utmost good faith owed by ICBC to Lau, both directly and through their appointed counsel, Wright. [112] Epstein's duties to Lau did not arise from an insurer-insured relationship as those of Wright and ICBC did. Instead, they arose as a result of Epstein's contractual retainer with Lau, and the implied term of that contract that he perform his duties to the standard of a reasonably competent lawyer who holds himself out to, and contracts to, provide legal advice specifically directed at the issue of insurance coverage. [113] It is immaterial whether Epstein's duty of care to Lau was a direct term of the contract between Lau and Epstein; his duties remain the same: to practice to the standard of a reasonably diligent and competent solicitor: Fong v. Lew, 2015 BCSC 436 at paras. 16 and 19. Therefore, to show a lawyer has breached their standard of care, any alleged error must be shown to be one that a reasonably diligent and competent solicitor would not have made: Fong at para. 19. Madam Justice Adair in Fong, at para. 19, quotes from Tiffin Holdings Ltd. v. Millican (1964), 49 D.L.R. (2d) 216, 1964 CanLII 637 (Alta. S.C.), at pp. 218-219, aff'd [1967] S.C.R. 183, 1967 CanLII 102 (S.C.C.) for the standard of a reasonably diligent and competent lawyer: (1) To be skilful and careful. (2) To advise his client on all matters relevant to his retainer, so far as may be reasonably necessary. (3) To protect the interests of his client. (4) To carry out his instructions by all proper means. (5) To consult with his client on all questions of doubt which do not fall within the express or implied discretion left to him. (6) To keep his client informed to such an extent as may be reasonably necessary, according to the same criteria. [114] As Madam Justice Adair notes, this list has frequently been cited with approval by courts in British Columbia: Zink v. Adrian, 2005 BCCA 93 at para. 23; Newton v. Marzban, 2008 BCSC 328 at para. 605; Duckett v. McKinnon, 2012 BCSC 2147 at para. 37; Linten Developments Ltd. v. Kirschner Mountain Estates Ltd., 2022 BCSC 1470 at para. 207; and Shortreed Joint Venture Ltd. v. Guvi, 2025 BCSC 1003 at para. 167. Did the Defendants breach the Standard of Care they owed to Lau? [115] Having determined the extent and nature of duties owed to Lau by ICBC, Wright and Epstein, I now must consider whether the defendants breached those duties. [116] Wright and Epstein repeatedly affirmed that the standard their conduct in the Cole Claim should be measured against was that of a reasonably competent solicitor. The caselaw supports this (see above). However, both Wright and Epstein were then often at pains to argue that the standards set by, for example, the Law Society of British Columbia's Code of Professional Conduct for British Columbia (the "Code") for a competent lawyer, were not, in fact, applicable to the determination of how a reasonably competent lawyer would behave in this case, but are somehow too high a standard. This argument seems to be that a reasonably competent lawyer can safely, and in proper service to his or her client, perform at a level well below that mandated by the Law Society of British Columbia. [117] This argument would seem to suggest that a lawyer, in achieving the standard of a reasonably competent solicitor, need not: - know general legal principles, procedures and substantive law in the area in which he or she practices; - investigate facts and identify issues related to the client's objectives; - undertake legal research, analysis, negotiation, advocacy and problem solving; - communicate at all relevant stages of a matter in a timely and effective manner; - provide competent, timely, conscientious, diligent and efficient service to the client; or - be honest and candid and inform the client of all information known to the lawyer that may affect the interests of the client. See the Code, ss. 3.1-1, 3.1-2 and 3.2-2. [118] I recognize that the Code is a creature of the Law Society of British Columbia and is not legislation regarding a lawyer's duty to his or her client or that lawyer's performance in seeking to meet that obligation. Nonetheless, such competencies as those noted above are so basic to the obligations of even the most inexperienced lawyer, that they seem to me to be utterly self-evident. Expert evidence is not required to establish that such basic legal service to clients is required of the reasonably competent solicitor. To suggest otherwise would almost certainly cast public confidence in the legal profession into an abyss from which it could never escape. I therefore reject Wright and Epstein's argument that a competent lawyer is a different standard in the law than as defined in the Code. Wright [119] Wright was retained by ICBC to represent the legal interests of two parties - ICBC and Lau. In her July 2015 correspondence to Lau, she identified and confirmed her obligations to both clients as well as the limits entailed by such a retainer. [120] The same basic standard of the reasonably competent solicitor is the starting point regarding Wright's duties to Lau. Those duties must be viewed in the context of the duty of utmost good faith which her other client, ICBC, owed to Lau. She had an obligation, as part of both her duty to ICBC and to Lau, to advise ICBC regarding their duty to Lau and to ensure that Lau's interests were protected to at least the same extent as those of ICBC. She failed to meet the standard of a reasonably competent solicitor in the performance of her responsibilities to Lau. Instances of this failure include: - failing to advise either Lau or ICBC as to the requirement and potential benefit of adequate investigation into liability and possible damage award quantum in a timely manner; - failing to even interview Lau on the issue of liability in a timely manner; - failing, or refusing, to recommend to ICBC or Lau that the people identified as witnesses in the November 17 Offer be interviewed; - advising ICBC to await further information from Slater rather than pursuing, in any fashion, settlement, an approach which was contrary to the interests of Lau; and - failing to advise Lau of the possible financial prejudice to him of such a strategy of delay. [121] Wright's testimony at trial did not satisfactorily explain any of these failures. The fact remains that she undertook no investigative steps to ascertain liability or quantum of damages while very likely aware that damages at a trial would likely exceed policy limits. The "wait and see" approach that she recommended to ICBC only had a potential upside for ICBC and, in fact, led to significant downsides for all involved. Regardless of whether a reasonably competent lawyer would have recommended this approach, she did not carry it out to a standard that one would expect of a reasonably competent lawyer who was aware that she was obligated to serve the insurer and the insured's interests equally. Epstein's intermediary presence did not relieve her of her obligations as Lau's lawyer to advise Lau, via Epstein or directly, of the risks of her (and consequently ICBC's) strategy. ICBC [122] ICBC, as the insurer and instructor of counsel, had duties to Lau, duties which Chief Justice Esson, in Fredrickson, described as being of utmost good faith and which Mr. Justice Finch, in Shea, described as special duties, over and above the universal duty of honesty - duties which arose from Lau's position of vulnerability. Those duties included the duty to act in good faith and with fair dealing, the duty to consider Lau's interests at least as dearly as their own, and to instruct Wright to treat the interests of Lau equally to the interests of ICBC. [123] ICBC, despite access to resources purpose built for it, did nothing to investigate liability or damages related to the Collision. Instead, they choose to treat the materials provided by Slater with suspicion while doing nothing to independently verify the information. They preferred to instead wait for the Vancouver Police Department to complete its investigation - an investigation over which they had no control as to the direction or timing. [124] Waiting a year or more before seeking expert opinions on liability and damages on the basis that, by that time, more information will be available and the resulting report will be more detailed and accurate, is a breach of the insurer's duties in this case. Such a practice - avoiding or delaying the cost of meaningful investigation - puts the financial interests of the insurer ahead of the interests of the insured. This is particularly so where, as here, there is the significant possibility, and indeed almost certainty, that a damage award would exceed policy limits and expose the insured to financial harm. [125] In this case, while ICBC and Wright seek to justify their strategy of inaction by pointing to speculation about the possibility of Lau's liability being found to be less than total, the limited information they had hardly supported that position beyond mere speculation. Had they seriously considered liability a significant issue, one would expect that they would be the first to actively and immediately pursue their own investigation into the issue to the benefit of and in the interests of both the insurer and the insured. [126] Waiting over two years for a police report while ignoring the well-established duty to conduct timely investigations constitutes little more than self-induced wilful blindness. Such failure rendered ICBC completely ill-equipped to undertake their duty of assessment of the case or to instruct Wright to embark on any meaningful negotiation or discussion regarding possible settlement in a timely fashion and while such settlement may have been a possibility. [127] ICBC points to the fact that their approach was based on the advice of Wright. This does not absolve them, especially given ICBC is not a private citizen, naïve to these proceedings and just following the advice of a lawyer. ICBC deals with these kinds of situations frequently. It would be incredible to conclude that, in the absence of Wright suggesting they should take investigative steps, ICBC was blind to the importance and benefits of pursing a timely investigation, especially for Lau. [128] I find that ICBC breached its duty of good faith to Lau: Both at the level of basic good faith and certainly at the level of utmost good faith. Epstein [129] Wright properly advised Lau, in her July 2015 correspondence, that he should retain independent counsel to provide him with legal advice regarding his probable exposure to a judgment in excess of his policy limits. Lau followed this advice by hiring Epstein in the late summer of 2015. [130] Epstein was called to the British Columbia Bar in 1994. At the time of the Cole Claim he was a partner in a well recognized Vancouver law firm and billed his services at $400 per hour. His junior billed at $200 per hour. He testified that, by August 2015, he had considerable experience in conducting insurance litigation, including in acting for people facing the same kind of shortfall in their coverage that Lau was. He testified that he was familiar with leading cases in this area of law, including the Shea case, the duties of an insurer regarding their insured, and the duties of timely investigation. He understood that his duty was to protect Lau, as much as possible, from exposure to a judgment over policy limits. [131] He testified that: - He received and reviewed various materials, including the Honey Report, from Wright in early August 2015, before meeting with Lau. - He met with Lau on December 9, 2015, for the purposes of discussing the recently received November 17 Offer. - He recognized that the November 17 Offer was "a potential path out of the shortfall issue". - He noted that the November 17 Offer included the names of purported witnesses, and he expected that ICBC would have taken investigatory steps regarding these witnesses. He gave no evidence that he had done anything to ascertain whether this had, or was going to, happen. - He recognized that there was no specified mechanism or requirement for determining the value of Lau's assets and debts for the purposes of the net worth statutory declaration required by the November 17 Offer and that there was, therefore, "room for lawyering". - He thought that he spoke to Wright following the November 17 Offer but stated that this conversation probably did not occur until mid-January 2016. He thinks that he would have told Wright that ICBC needed to "put up" the $2,000,000 policy limit. He testified that he thought that they had talked about the $350,000 cap on Lau's net worth and that Wright would seek an extension of the offer. None of this was confirmed in any fashion, and he had no clear recollection that any of this had actually occurred. - He only saw the significant correspondence involving, and between, Wright, Slater, and ICBC, when it was presented to him on the stand. - He did not recall suggesting or exerting pressure on ICBC or Wright to pursue settlement during 2016. - His total bill for the legal services he rendered to Lau in 2015 was $1,800. [132] On December 9, 2015, and specifically in reference to the then extant November 17 Offer, Epstein sent Lau a blank Canadian Western Bank Personal Financial Statement form. He suggested that "it would be a good idea" for Lau to prepare such a document in order to "measure with some precision" his total net assets because he "may be obligated to swear that it is true". He indicated in the same e-mail that "there is no magic in the form itself, it simply helps to keep you organized". He also told Lau that he would speak to Wright "within the next few days". [133] A determination of Lau's net worth, and a statutory declaration as to that value, was one of the conditions of the November 17 Offer, not merely a "good idea". [134] The November 17 Offer to settle, if able to be realized, would have likely been one of the most important events in Lau's entire life. It was far and away the best chance for Lau to avoid financial devastation. Epstein recognized the potential settlement as a way to mitigate a shortfall of coverage, which was the very goal of his retainer. [135] Epstein knew for a fact that the proposed settlement laid out by the November 17 Offer required statutory declarations: A document which has to be sworn or affirmed to be true and accurate. [136] Epstein recognised that the November 17 Offer left room for "lawyering", particularly in regard to the calculation of values and net worth, but admitted that he did not undertake any such "lawyering", or even attempt to do so other than maybe discussing these matters with Wright in January 2016, long after the closure of the offer. [137] On December 10, 2015, Lau wrote to Epstein asking for advice regarding what values he should use in the financial statement form regarding land value and mortgages/loans. He received no response. [138] On December 16, 2016, one day before the expiry of the offer, Lau again wrote to Epstein, this time in desperate tones: Hi Andrew. I was just wondering if you've had a chance to speak with Mary Helen Wright yet, as the settlement offer is expiring soon. Thanks. [139] Again, Lau received no response. [140] On January 21, 2016, well after the offer had expired, Lau wrote to Epstein in even more desperate tones: Hi Andrew. I haven't heard back from you since we last spoke on the phone. I was wondering if you had any updates for me, or where we are at regarding conversations with Mary Helen Wright. To be perfectly honest, I've been summoned to court on February 16th, and I'm terrified. I could desperately use some good news on any front at this point. [141] This time at least, he received a response from Epstein, wherein Epstein placed the responsibility for the delay on Lau: I was waiting to get the summary of your financial situation as that was a precondition to negotiating a settlement with Mr. Cole's counsel. We need to know the level of your personal finances so that we can see if we can sell them on accepting just the funds available through ICBC. [142] Lau's response indicates his confusion: Hi Andrew, I apologize, I didn't know you were still waiting for my financial summary as you had not responded to my earlier emails regarding clarification, so I had only provided you with a rough estimate assuming that was enough. I thought the counsel was already willing to accept just the funds available through ICBC, and that it was ICBC/Mary Helen Wright who you had to convince? .. Again, I apologize for not giving you the specifics sooner, I'm completely frazzled these days and I assumed you were just giving me something to do to keep my mind occupied. [143] Epstein had not spoken to Wright, as he said he would in his December 9, 2015 correspondence. He did not speak to her until at least January 16, 2016. It appears that he had not spoken to Lau, or responded to Lau's questions, since December 9, 2015. During that delay, the November 17 Offer expired. [144] By any reasonable measure, Epstein's provision of legal services to Lau during this period of the outstanding offer to settle did not meet the standard of a reasonably competent solicitor. He breached the terms and requirements of his retainer and his performance fell well short of the standard required of a reasonably competent solicitor. Claims Against Counsel [145] Justice Thomas, in his recent decision of Proudfoot v. Bryant, 2025 BCSC 1437, summarised the burden that a plaintiff must meet in order to be successful in a breach of contract or tort claim against a lawyer. To be successful in a breach of contract claim, the plaintiff is entitled to damages once they have established a breach of the contract. If the plaintiff cannot show any damage flowing from the breach, they will be awarded only nominal damages: Proudfoot at para. 7. For a tort claim, the plaintiff must prove (1) that the defendant breached the standard of care owed to the plaintiff; (2) that they (the plaintiff) suffered damages; and (3) that the breach of the standard of care caused the damages (or "causation"): Proudfoot at para. 8. In tort, a plaintiff is only entitled to damages when loss flowing from the breach has been proven. [146] For solicitor's negligence claims in tort, to establish causation, courts must determine whether the solicitor has been negligent in respect of the litigation and, if so, if that negligence caused the client to incur a loss: Proudfoot at para. 9; Nichols v. Warner, Scarborough, Herman & Harvey, 2009 BCCA 277 at para. 26. In many cases this requires a kind of trial within a trial to determine, had the lawyer not been negligent, whether the client would have succeeded in their action and been awarded damages. If it is established, on a balance of probabilities, that absent the solicitor's negligence, the plaintiff would have gained a benefit or avoided a loss, causation has been established. Once causation has been established, the court must assess the quantum of the loss or of the damages the plaintiff would have received, absent the negligence, subject to appropriate contingencies. This is often referred to as a loss of opportunity assessment as it is intended to quantify the damages the plaintiff would have received if they had the opportunity to prosecute the action: Proudfoot at para. 10. [147] However, if it is not possible to determine causation on a balance of probabilities, the court may instead apply the loss of chance doctrine. The loss of chance doctrine is applicable where the plaintiff cannot prove, on a balance of probabilities, that, but for the negligence of the lawyer, they would have avoided the loss, but can prove that, but for the negligence of the lawyer, the plaintiff would have had a chance to avoid the loss. Under the doctrine of loss of chance, the plaintiff is only entitled to recover the percentage of the total loss that corresponds to the percentage of their loss of chance: Proudfoot at para. 13; Manley v. Chilliwack General Hospital Society, 2000 BCSC 649 at paras. 15-18; Thind v. Smith-Gander, 2022 BCSC 1167 at paras.114-119; Folland v. Reardon, 74 O.R. (3d) 688, 2005 CanLII 1403 (Ont. C.A.); Jarbeau v. McLean, 2017 ONCA 115 at paras. 18-33. [148] The loss of chance doctrine, as it applies to solicitor's negligence claims, is summarised in Jarbeau: [26] In Folland this court discussed the elements of a cause of action for breach of contract based on solicitor's negligence. I extract the following principles from that decision, using the language used by Doherty J.A., at paras. 72-76: 1. In most cases of solicitor's negligence, liability rests on both a tort and contractual basis. 4. A plaintiff can recover damages for lost chance in an action for breach of contract if four criteria are met: a. The plaintiff must establish on the balance of probabilities that but for the defendant's wrongful conduct, the plaintiff had a chance to obtain a benefit or avoid a loss. b. The plaintiff must show that the chance lost was sufficiently real and significant to rise above mere speculation. c. The plaintiff must demonstrate that the outcome, that is, whether the plaintiff would have avoided the loss or made the gain, depended on someone or something other than the plaintiff himself or herself. d. The plaintiff must show that the lost chance had some practical value. [27] Where a plaintiff in a tort action arising out of solicitor's negligence can establish on the balance of probabilities that but for the negligence he or she would have avoided the loss, he or she should be fully compensated for that loss. [28] Where a plaintiff can only establish that but for the solicitor's negligence he or she lost a chance to avoid a loss, a claim for breach of contract may permit recovery for the value of that chance. [149] The case at bar involves, at least, a missed chance allegation related to the possibility of settlement at policy limits. The question to be addressed is whether Lau may have avoided his losses but for the negligence of Epstein and Wright. If he can only establish that the lawyer's negligence caused him to lose a chance to avoid his losses, a claim for breach of contract or a tort claim may permit recovery for the value of that chance. Causation Loss of Opportunity [150] I have made the finding that ICBC, Wright and Epstein all breached their duties to Lau. The question that then must be asked is, but for those breaches, would Lau have avoided the loss, namely the personal financial liability resulting from the jury award?[4] [151] The answer to that question is no. I find that Lau has not proven that, but for the breaches of the defendants individually or collectively, he would have avoided the loss. [152] I find that Lau's best chance to have avoided the loss was the window surrounding the November 17 Offer. Following that offer, Slater did not extend any further offers to settle, likely because, as time went on, Cole's ongoing status only further confirmed that damages at a trial were likely to be well above policy limits. By the time Wright and Epstein were extending offers to settle in 2017, Slater, on behalf of Cole, took the offers as the undervaluing of damages that they were. [153] Although I find the November 17 Offer window was the best chance for Lau to avoid the loss, as stated above, I am unable to find, on a balance of probabilities, that the breaches of Wright, ICBC and Epstein related to this offer caused Lau's loss. The variables involved in the settlement offer make it impossible to find that it is more likely than not that, but for the breaches of Wright, Epstein and ICBC, a settlement would have been reached at or within policy limits. [154] I find that the November 17 Offer, as it was presented, could not have been accepted by Lau without a counteroffer or further negotiation. Even if it could have been accepted by Lau, it was subject to the approval of the Supreme Court, which it was unlikely to get without much further information, including details of Lau's financial position. [155] The November 17 Offer required ICBC to make available the full policy amount plus costs and disbursements. That decision was solely in the hands of ICBC, subject to its duty of utmost good faith and the requirement that it consider Lau's interests to at least the extent that it considered its own interests. While certainly both Wright and Epstein could prevail upon ICBC to make the funds available and emphasise the benefits of doing so, the decision was not ultimately in their hands. ICBC did not present any evidence regarding whether they would have made the amount available had a request been made by Wright or Epstein. [156] Further, the offer was conditional on Lau making a statutory declaration regarding his additional insurance coverage and net worth. It appears Lau could have made the declaration with regards to additional insurance coverage; however, the net worth declaration was probably not available. [157] Undoubtedly neither Epstein nor Wright met the standard of a competent lawyer in advising Lau on the importance, urgency and procedure with regards to the net worth declaration. [158] However, at neither the time of the offer, nor at this proceeding, was Lau especially forthcoming about his financial position. He presented no evidence at this trial establishing that he could have made a declaration in November/December 2015 that his net worth was not more than $350,000 if he had received adequate advice from Epstein or Wright. A determination of Lau's net worth has never been made at that or any other time. ICBC presented at least some evidence, during the Lau Action trial, to show that Lau's net worth was likely well above $350,000 at the time of the November 17 Offer. [159] I conclude that it is more likely than not that Lau's net worth was more than $350,000 at the time of the offer. [160] Therefore, Lau could not have accepted the November 17 Offer as presented. [161] Additionally, the November 17 Offer was subject to approval by the Supreme Court. That condition remained solely in the hands of the Supreme Court and its duty to assess a proposed settlement involving a person under disability, and to either approve or refuse approval of such a proposal. [162] The oversight of the court is required for settlements involving persons with disabilities for the protection of said persons. Per Rule 20-2(17) of the Supreme Court Civil Rules: (17) Unless an enactment otherwise provides, if a claim is made by or on behalf of a person under disability, no settlement, compromise, payment or acceptance of money paid into court, whenever entered into or made, so far as it relates to that person's claim, is binding without the approval of the court. [163] Settlements must be shown to be fair and in the best interest of the person with a legal disability: Deo v. Vancouver School District No. 39, 2018 BCCA 464 at paras. 7-9. The process is not, and must never be considered, a rubber stamping of a settlement. It cannot be, or be perceived to be, aimed at relieving certain parties of hardship at the expense of the under-compensation of the person under disability. The inquiry is, and must be, rigorous, thorough and focused on the person under disability: Endean v. Canadian Red Cross Society, (1998), 48 B.C.L.R. (3d) 90, 1999 CarswellBC 2125 (C.A.) at paras. 15-16. [164] In the case at bar, the approval by the court of the settlement proposed in the November 17 Offer was by no means a certainty and would be highly dependant on the evidence regarding Lau's net worth presented at an approval hearing. I think it more likely than not, given the catastrophic injuries of Cole, the damages that those injuries would result in at trial and what a reprieve a settlement at policy limits would be for Lau, that this settlement would not have been approved. [165] Therefore, Lau has not proven, on a balance of probabilities, that, but for the breaches of Epstein, Wright and ICBC, he would have avoided the loss given the plethora of variables that could have prevented the November 17 Offer from crystalizing - variables that were not solely dependant on the actions of Wright, ICBC or Epstein. Any assertion that Lau could have counteroffered to the November 17 Offer and avoided the loss through a settlement achieved as part of a counteroffer or negotiation, had he been properly served by the defendants, is too speculative to incur a finding, on a balance of probabilities, that Lau would have avoided the loss. I do not find that there was a loss of opportunity. Loss of Chance [166] While I find that the breaches of Wright, Epstein and ICBC did not cause a loss of opportunity, I do find that their breaches caused Lau to lose a chance to avoid or to reduce his loss. While there is a lack of certainty regarding whether the efforts would have been successful at mitigating Lau's loss relative to his current situation, it is clear that there were missed opportunities by ICBC, Wright and Epstein to negotiate and attempt to come to a settlement that could potentially, or at least possibly, have been finalized and approved during the window when Cole was open to one. [167] In this case, unfortunately, neither Wright nor Epstein jumped into action to perform their duties as required by contract or to the standard expected of a reasonably competent solicitor. [168] All three defendants' actions, or conspicuous lack of action, during the window of the November 17 Offer, contributed to Lau losing a chance to avoid his loss. [169] Wright did not suggest to ICBC that they at least begin the process to ensure that policy limit monies were available, if a settlement were to become a realistic possibility. She, in fact, advised waiting for additional information, told Slater that she could not advise her client on a settlement until she received such additional information from his office and repeated that position to Epstein. Such a position may have served ICBC's interests, but it was in conflict with the interests of Lau and certainly prejudiced his interests regarding the possibility of achieving a settlement. [170] ICBC, although familiar with the issues that arise in such cases, provided instructions to Wright that aligned with her advice, despite the fact that Wright had not advised them of how her proposed course of action would impact the interests of Lau. They did not take the step of having the policy limit sum approved for the purpose of a possible settlement and undertook no investigation into the issues of damages and liability until years after the Collision, leaving them in an information deficit of their own making and in no position to instruct Wright to pursue a settlement. The fact that these actions were taken on the advice of Wright does not absolve them of their role, particularly given their especial familiarity with these kinds of actions. [171] Epstein took little if any action to adequately inform Lau about the terms, importance of and urgency surrounding the November 17 Offer - perhaps the one and only window Lau would have to avoid financial ruin. He failed to respond to Lau's questions. He failed to communicate with Wright as he had indicated he would. He failed to "lawyer" the proposal by contacting Slater or Wright about its terms or a possible extension of the offer. [172] Ultimately, we can never know what would have happened had the defendants in this action properly carried out their duties in the Cole Claim. I accept that the November 17 Offer was not capable of acceptance in its initial form. However, given sufficient negotiation and flexibility from both parties, I find there was a possibility, beyond mere speculation, that, had the lawyers and ICBC promptly acted in the interests of Lau, a settlement agreeable to both sides might possibly have been reached and that that settlement would have involved less financial damage to Lau than the award at trial. [173] Therefore, I am satisfied that the failures of Wright, ICBC and Epstein resulted in Lau losing a chance to avoid or reduce his loss. In this way, I am satisfied that the causation required to award damages for negligence causing loss of chance, as outlined in Folland, Nichols and Thind, has been established. [174] Further, I make a finding that Lau did not contribute to this loss via contributory negligence or failure to mitigate. His actions show that he relied on the advice of his lawyers and trusted them to take the lead in navigating the litigation. He, as a lay person, cannot be faulted for doing so. In particular, his e-mails to Epstein during and around the currency of the offer show reasonably diligent seeking of guidance from his independent counsel. Valuation of Loss of Chance [175] The Ontario Court of Appeal, in Berry v. Pulley, 2015 ONCA 449, established a two-step framework for the determination of a loss of chance claim. First, the court must determine if the four criteria set out in Folland for establishing a lost chance are met. If they are, the court must then proceed to the second step: Calculating damages. To do so, the court shall multiply the probability of securing the benefit (or avoiding the loss) by the value of the lost benefit (or the loss sustained): Berry at para. 72. Beyond this, there is no standard formula for determining the probability of securing a benefit or avoiding a loss as it, necessarily, must be evaluated on the facts of each case. [176] In calculating the value of the lost chance in this case, I consider the timing and terms of the proposal, the circumstances known or reasonably established at the time and the evidence regarding Lau's financial situation at the time. [177] Cole's son, Ryan Cole, provided evidence in the Lau Action trial. Ryan Cole gave evidence regarding his mindset and concerns during the litigation of the Cole Claim. These were informed by Cole family discussions that he was a party to. These discussions were related to the court and I take them as tendered, not for their truth of the statements described, but as narrative evidence of Ryan Cole's experience and as evidence of how Ryan Cole's mindset was formed. Ryan Cole's evidence allows me to draw inferences regarding the concerns of the Cole family during the litigation of the Cole Claim. [178] Ryan Cole related that his concerns during the litigation of the Cole Claim, as informed by discussions he had with his family, included that the family had lost its main source of income; the litigation process and the passage of time; making arrangements for Cole's return home and the need for renovations and modifications to the family home. [179] In the circumstances existing in late 2015, I would be shocked and amazed to discover that such overall concerns were not common visitors and sources of conversation in the Cole family's life and discussions. [180] Ryan Cole also gave some evidence regarding possible flexibility in the $350,000 figure regarding Lau's net worth and the 30-day deadline. I give that evidence little weight. Cole's litigation guardian did not testify. The litigation guardian is solely responsible for instructions to Slater and I cannot take Ryan Cole's evidence as evidence of the attitude of the litigation guardian. [181] Therefore, Ryan Cole's evidence does not provide me any evidence that bears on my calculation of loss of chance. [182] I am satisfied on a balance of probabilities that there was a chance of settlement which goes beyond mere speculation. I estimate that chance at 15% given at least some possibility of some flexibility in terms and the contingencies related to the requirement for court approval. [183] In finding that Lau lost a 15% chance of avoiding the loss I consider the following key factors: - Based on the evidence, it is very unlikely that Lau could have sworn to a net worth of less than $350,000 in November and December of 2015. There was no evidence, from the litigation guardian or otherwise, indicating that there was flexibility in that figure. - Later in the litigation, when his exposure was more certain, Lau was only willing to contribute $100,000 of his personal money to try and entice settlement. While that amount did ultimately increase to $200,000, it only did so when Lau and Epstein were satisfied that such an offer would not be accepted. - Based on the Honey Report, there was significant evidence, at the very beginning of the litigation, that Cole's injuries were severe, devastating, life altering and permanent. Absent considerable, and at that point unexpected, change, his damages could very well be expected to significantly exceed $2,000,000. - Given the severity of Cole's injuries, as referenced above, court approval of a settlement to cap recovery, in the face of Lau's probable net worth, was by no means a certainty. - The November 17 Offer, unprompted by entreaties from Lau and ICBC's side, is highly suggestive of a wish by Cole to resolve the litigation. - The terms of the November 17 Offer were highly favourable to Lau given the context that the Honey Report had already established to a high degree of likelihood, in my estimation, that damages awarded at a trial would well exceed the policy limits. I make a finding that Cole and Slater would have been aware of this likelihood when extending the offer. I take this as further evidence of a desire by Cole to have the litigation resolved as the terms, I find, were intended to be attractive to Lau. - The court approval term included in the November 17 Offer was required by statute, not a term requested by Cole. [184] I will address calculation of damages after addressing the limitation defence put forth by all three defendants. Limitation Defence [185] The defendants in this action all raise a limitation defence, claiming that the plaintiff's action is barred by the 2-year limitation period prescribed by the Limitation Act. Section 6 of the Limitation Act establishes the basic limitation period for causes of action: 6(1) Subject to this Act, a court proceeding in respect of a claim must not be commenced more than 2 years after the day on which the claim is discovered. [186] Section 8 of the Limitation Act outlines the day on which that limitation period will begin to run: 8 Except for those special situations referred to in sections 9 to 11, a claim is discovered by a person on the first day on which the person knew or reasonably ought to have known all of the following: (a) that injury, loss or damage had occurred; (b) that the injury, loss or damage was caused by or contributed to by an act or omission; (c) that the act or omission was that of the person against whom the claim is or may be made; (d) that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage. [187] Wright and ICBC plead that Lau's claim against them is barred as Lau filed the original notice of civil claim on September 9, 2019 and the date of discoverability for the claim against them is properly placed sometime before or at August 31, 2017, therefore the limitation period is exceeded by at least nine days. In response, Lau submits that the date of discoverability is, in fact, the date of final trial judgment, October 16, 2017, when the jury awarded the Cole Award. [188] Something mentioned by neither the plaintiff nor the defendants in this case is that, for the claims against ICBC and Wright, ss. 17(2) of the Limitation Act is applicable: 17 (2) A claim of a principal, if the principal's agent had a duty to communicate to the principal knowledge of the matters referred to in section 8 (a) to (d), is discovered on the earlier of the following: (a) the day on which the claim is discovered by the principal's agent; (b) the day on which the claim is discovered by the principal. [189] Therefore, for the period of time that Lau was represented by Epstein, Epstein's knowledge as to the potential claim against ICBC and Wright will be imputed to Lau: HOOPP Realty Inc. v. Emery Jamieson LLP, 2020 ABCA 159 at paras. 69-87. A failure of a solicitor to abide by his duty to communicate the existence of a claim to a client will not result in the postponement of the limitation period but may create a separate cause of action against that solicitor by said client. [190] Where a Limitation Act issue is raised, the onus is on the plaintiff to demonstrate that the claim is not statute barred and that the plaintiff acted reasonably in discovering the facts that gave rise to the claim: Brookstreet Hotel Corp. v. Economical Mutual Insurance, 2018 ONSC 80 at para. 41. Lau asserts that the discoverability date of this cause of action is the date of the final judgment of damages owing to Cole. In support of this assertion, Lau says that the defendant's cited law supports this discoverability date, as do two additional cases: Fredrickson v. Insurance Corp. of British Columbia (1985), 64 B.C.L.R. 301, 1985 CanLII 510 (S.C.) [Fredrickson v. Ins. Corp. of B.C.] and Dundas v. Zurich Canada, 2012 ONCA 181. [191] Both cases offered by Lau are considerably dated. Fredrickson v. Ins. Corp. of B.C. was decided under the former BC Limitation Act, which was superseded by the current act in 2012. Dundas is an Ontario Court of Appeal case that has never been cited in British Columbia. [192] Lau says that Dundas and Fredrickson v. Ins. Corp. of B.C. establish that a cause of action will only be discoverable at the point of a final trial judgment. Lau also cites Weldon v. Teck Metals Ltd., 2013 BCCA 358, at para. 29, for the proposition that British Columbia requires a cause of action to accrue before the limitation period will begin to run. Paragraph 29 of Weldon reads: [29] Moreover, I am unable to agree with the respondents' contention that their "payment event" (the contingency, on their theory) is of any relevance insofar as the completion of their cause of action is concerned. As Newbury J.A. stated in 410727 B.C. Ltd. v. Dayhu Investments Ltd., 2004 BCCA 379, leave to appeal refused, [2004] S.C.C.A. No. 422: [22] [T]he courts have made it clear that the Limitation Act as it was enacted in 1974 and continues today, did not purport to change the common law approach to determining when a cause of action arises or may be sued upon. The scheme was predicated on the common law principle that a cause of action in negligence accrues when three elements come into existence - a legal duty owed by the defendant to the plaintiff, a breach of that duty, and resulting loss or damage: see Armstrong v. West Vancouver, supra, at para. 9, and Bera v. Marr, supra, at 14, per Esson J.A.) Thus in cases of solicitor's negligence, for example, the client's cause of action accrues, and the applicable limitation begins running, from the date of the client's "deprivation", whether or not "quantum of loss" can be determined at that time: see the discussion in Burke v. Heaton (2003) 2003 MBCA 104 (CanLII), 228 D.L.R. (4th) 257 (Man. C.A.), at paras. 22-30, and in Central Trust Co. v. Rafuse 1986 CanLII 29 (SCC), [1986] 2 S.C.R. 147, at 219-20. [Emphasis added.] [193] Both the above quotation and the law quoted by Wright and ICBC contradict the assertion of Lau. The quantum or "amount" of damages is not a prerequisite to the discovery of a cause of action: 410727 B.C. Ltd. v. Dayhu Investments Ltd., 2004 BCCA 379 at para. 22; Weldon at para. 29; Grant Thornton LLP v. New Brunswick, 2021 SCC 31 at para. 46; Dass v. Kay, 2021 ONCA 565 at para. 46. The calculation of a discovery date is a facts-based analysis: Mundell v. White, 2022 ONSC 5994 at para. 75. [194] In Rooney v. Galloway, 2024 BCCA 8, the Court addressed the degree of knowledge required for the triggering or commencement of the limitation period by reference to the recent decision of the Supreme Court of Canada in Grant Thornton LLP v. New Brunswick, 2021 SCC 31: [194] In Grant Thornton LLP v. New Brunswick, 2021 SCC 31 [Grant Thornton], the issue was "the standard to be applied in determining whether a plaintiff has the requisite degree of knowledge to discover a claim under s. 5(2) [of the Limitation of Actions Act, S.N.B. 2009, c. L-8.5 [NB Act]]" (para. 3). [195] The discoverability factors under s. 5(2) of the NB Act correspond to the discoverability criteria in s. 8 of the Limitation Act, with the exception of the "appropriate means" provision in s. 8(d). [196] The Court in Grant Thornton said that s. 5 of the NB Act operates against the backdrop of the common law discoverability rule, and that "[u]nder that rule, 'a cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered or ought to been discovered by the plaintiff by the exercise of reasonable diligence'" (para. 29 and the authorities referred to therein). This rule is an "interpretive tool for construing limitation statutes" (para. 30). The Court in Grant Thornton held that ss. 5(1)(a) and 5(2) of the NB Act codified, rather than displaced the common law rule (paras. 32, 34) and that s. 5 of the NB Act was modelled on similar limitation provisions in Ontario, Saskatchewan and Alberta, all of which have been found to codify the common law rule (para. 35). [197] We observe that s. 3(1)(a)(iii) of Alberta's Limitations Act, R.S.A. 2000, c. L-12, s. 5(1)(a)(iv) of Ontario's Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, and s. 6(1)(d) of Saskatchewan's The Limitations Act, S.S. 2004, c. L-16.1 respectively all represent a variation of the "appropriate means" provision. On this basis, s. 8(d) is not a distinguishing feature of BC's Limitation Act, and the principles regarding discoverability as explained in Grant Thornton apply. [198] On the requisite degree of knowledge required under s. 5 of the NB Act, the Court in Grant Thornton held: · "[A] claim is discovered when the plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant's part can be drawn. It follows from this standard that a plaintiff does not need knowledge of all the constituent elements of a claim to discover that claim" (para. 3). · The "material facts are generally set out in the limitation statute This list is cumulative, not disjunctive. For instance, knowledge of a loss, without more, is insufficient to trigger the limitation period" (para. 43). · Both direct and circumstantial evidence can be used to assess the plaintiff's state of knowledge; a plaintiff "will have constructive knowledge when the evidence shows that the plaintiff ought to have discovered the material facts by exercising reasonable diligence. Suspicion may trigger that exercise" (para. 44). · The plaintiff must "be able to draw a plausible inference of liability on the part of the defendant from the material facts that are actually or constructively known"; this asks "whether a plaintiff 'had all of the material facts necessary to determine that [they] had prima facie grounds for inferring [liability on the part of the defendant]' (Brown v. Wahl, 2015 ONCA 778, 128 O.R. (3d) 583 at para. 7 [)]"; "[a] plausible inference is one which gives rise to a "permissible fact inference" (para. 45). · Plausible inference means knowledge that is "more than mere suspicion or speculation" but less than "certainty of liability", "perfect knowledge", or "perfect certainty" (para. 46). This standard is less than the "knowledge of facts that confer a legally enforceable right to a judicial remedy, including knowledge of the constituent elements of a claim" (para. 47). · "The standard cannot be so high as to make it possible for a plaintiff to acquire the requisite knowledge only through discovery or experts By the same token, the standard is not as low as the standard needed to ward off an application to strike a claim. What is required is actual or constructive knowledge of the material facts from which a plausible inference can be made that the defendant acted negligently" (para. 48; emphasis added). [199] An element of the discoverability inquiry is that of "due" or "reasonable diligence". The requirement of due diligence pre-dates the Limitation Act (Crerar et al. at 152, citing Ryan v. Moore, 2005 SCC 38, at para. 2). Where the discoverability rule is engaged, the claimant must have exercised reasonable diligence in discovering the material facts upon which to found that action (Sakwi Creek, at para. 37; G. Mew, D. Rolph and D. Zacks, The Law of Limitations, 4th ed. (Toronto: LexisNexis Canada Inc., 2023) at § 3.02[2]). [195] In the present case, both Lau and Epstein testified that, by August 2017, they were actively discussing issues of negligence and conflict of interest as regards Wright and bad faith as regards ICBC. Such discussions were confirmed in e-mail communications between them dated August 22, 2017: Hi Seng - I have tried to pressure ICBC to putting in more money, but they have so far declined. In the big picture, it helps us because they are still only posting the money that they always should have posted, but now they are suffering for waiting so long. [196] And August 31, 2017: ICBC seems to want us to tell them why they should be paying more - they know. But I am reluctant to say anything specific in the event that it forces Mary- Helen to have to step down as counsel (due to allegations against her messing up and a conflict between you and ICBC) that only drags the case out and doesn't really help you. [197] These discussions disclose that, by the end of August 2017, Lau, likely directly, but certainly imputed through his counsel's knowledge, had more than a suspicion that there was a cause of action, and, in fact, had discovered the underlying material facts that imparted a plausible inference of liability. The e-mails show an awareness of the breach that would eventually ground Lau's claims against Wright and ICBC: A prioritization of ICBC's interests over those of his own. [198] The loss suffered by Lau as a result of Wright's actions is the loss of the chance to pursue a settlement that could have potentially resulted in the avoidance of, or reduction in, his loss. Epstein, and therefore Lau, was well aware by August 2017 that there had been a missed opportunity to do so, given the refusal of Cole to settle for policy limits in April 2017. [199] As Lau argued throughout this proceeding, by November 2015, and based largely if not only on the Honey Report, it was patently obvious to all concerned that Cole had suffered damages well in excess of policy limits. [200] However, Lau's argument on limitation requires, in order to make his discoverability date plausible, an acceptance that, in August of 2017, and in possession of vastly more information regarding Cole's injuries, his prognosis, costs of care and the issues of liability and contributory negligence, it was reasonable for him to think that there was a possibility that damages awarded at trial may come below policy limits. This possibility was so unlikely that I find that Lau's damages in his cause of action against Wright and ICBC, although not the exact quantum of them, were apparent to Lau by, at the latest, August 31, 2017. [201] The cause of action against ICBC was discoverable and discovered on the same timeline as that against Wright, as their negligence is bound up in the negligence of Wright. [202] Therefore, Lau's claims against Wright and ICBC are statute barred as they were filed at least nine days after the expiry of the 2-year limitation period. [203] There was no evidence presented regarding a discoverability date for the claim against Epstein. Therefore, I decline to make a finding that the claim against Epstein is statute barred. Calculation of Damages [204] I calculate the loss as follows: Jury award after adjustments and deductions (at October 16, 2017): $3,928,391.36 Tax gross-up, committeeship and management fees (at August 6, 2019): $250,000.00 Total: $4,178,391.36 Paid by ICBC: ($2,000,000.00) Balance: $2,178,391.36 Multiplied by 15%: $326,758.70 [205] In addition to this amount, I find that 15% of Lau's expenses related to the bankruptcy are recoverable and are to be added when they become ascertained. In this regard, I am advised that the bankruptcy is still in process and accordingly these amounts are not yet known. [206] I decline to award Lau damages for Mental Distress. [207] I find that the actions of Wright, ICBC and Epstein all contributed to these losses. Each would have been jointly and severally liable to Lau, per ss. 4(2) of the Negligence Act, R.S.B.C. 1996, c. 333, however the claims against Wright and ICBC are barred by operation of the Limitation Act. Accordingly, I find only Epstein liable for this amount. [208] Lau is entitled to pre-judgment interest on this amount. Wright and ICBC are entitled to their costs as against Lau. Lau is entitled to his costs as against Epstein. "Caldwell J." [1] With the caveat that such a scenario would not require him to fulfill settlement terms such as statutory declarations. [2] For background, in order for ICBC to be ready to pay out a sum of money to meet a settlement offer, that sum must be approved by an internal committee. [3] Chief Justice Esson explains how this partially flows from the duties of good faith imposed on an insured at the point of the formation of the insurance contract, given the insurer's relative vulnerability at this point, beholden, as they are, to the honesty of the insured in the construction of the contract. [4] Lau's other damages claimed, namely the costs of bankruptcy and emotional damages, I will address separately.