ICBC application to file third-party proceedings against American doctor denied, court cites "lack of jurisdiction"

In a decision released yesterday  involving a somewhat bizarre set of facts, the court in Danielson v. Janze, 2017 BCSC 413, refused ICBC’s application file third party proceedings against an American doctor who allegedly performed a negligent operation on a plaintiff injured in a motor vehicle accident, thereby aggravating the plaintiff’s injuries.  The court dismissed the third party notices on the basis that the court did not have jurisdiction to consider the third party action against the proposed American defendants.  In giving reasons, Mr. Justice Williams wrote as follows:

[6]             By way of background, on October 28, 2009, the plaintiff, Ms. Deborah Danielson, a resident of New York, was a passenger in a motor vehicle driven by the defendant, Mr. George Janze, on a highway in British Columbia. That vehicle was involved in an accident. The plaintiff claims to have suffered a variety of injuries. Shortly after the accident, she was transported to a nearby hospital where treatment was administered. She was then removed by air ambulance to a hospital in Victoria for further treatment. She was subsequently discharged in order to return her home to the US.

[7]             On November 7, 2009, shortly after her arrival in the US, the plaintiff was admitted to Hackensack University Medical Center (HUMC) in New Jersey. There, she was assessed and treated by Dr. George Kaptain. Subsequently, she was treated by Dr. Kaptain at North Jersey Brain & Spine Centre, also known as Comprehensive Neurosurgical, P.A. (“NJBSC”). On November 10, 2009, November 11, 2009 and December 4, 2009, the plaintiff underwent surgical procedures performed by Dr. Kaptain, entailing, inter alia, the application of traction to her neck, the placement of surgical screws in her vertebrae, and a bone graft.

[9]             In 2016, in preparation for trial, the plaintiff was assessed by a neurosurgeon at the request of the defendants. The neurosurgeon’s opinion is that the surgical procedures performed by Dr. Kaptain were sub-optimal, that they have left the plaintiff with increased impairment as well as the need for further treatment, and that her circumstances would have been substantially better had the surgeries not been performed. In effect, it is alleged that Dr. Kaptain was negligent in providing medical care to the plaintiff.

[15]         The third party notice alleges that Dr. Kaptain and NJBSC were negligent in their medical treatment of the plaintiff and that the third parties either caused, or contributed to, the damages claimed by her.

[44]         In the case at bar, I find that the circumstances are analogous to Josephson. The third party action concerns allegedly negligent actions that took place in New Jersey, namely, medical treatment provided in that jurisdiction. While the initial accident occurred in British Columbia, the subject of the third party action clearly concerns matters that occurred wholly outside this jurisdiction. Therefore, I find that the presumption in s. 10(g) is not made out.

[65]         I find that the BCSC lacks territorial competence to consider the claim against Dr. Kaptain and NJBSC. None of the presumptive factors in s. 10 apply to this matter, and there is nothing in the common law test for jurisdiction simpliciter which assists the defendants. Given this finding, there is no need to adjourn the trial. Consequently, this application is dismissed, and the matter is to proceed as between the non-US parties as scheduled.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/04/2017BCSC0413.htm