ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Court Challenge Launched Against BC Injury Claims Expert Witness Cap

April 18th, 2019

Earlier this year the BC Government introduced changes to the BC Supreme Court Civil Rules capping the number of expert witnesses parties in motor vehicle and other injury claims can rely on. The rule change was brought unilaterally without consultation of the Rules Committee.

The government softened up their initial restriction but even the amended cap on expert witnesses leaves no judicial discretion to allow parties to present evidence exceeding the cap in necessary cases of complexity. A court challenge has now been filed arguing these unilateral rule changes are not constitutional and encroach upon the exclusive and core powers of the superior court. The Petition agues as follows:

The Rule is an unprecedented and profound interference with the court’s control of its process, that will greatly prejudice litigants in cases of even modest factual complexity. The Rule was not invited by the Rules Committee, and instead was imposed by the government without notice to the bar, substantially for the benefit of the Crown Corporation auto insurer, the Insurance Corporation of British Columbia (“ICBC”).

The Rule encroaches upon the exclusive and core powers of the superior court; it creates undue hardship for plaintiffs in obtaining access to justice; it is not authorized by the Court Rules Act; and it was created through a process that defies constitutional convention. It is invalid

The challenge is expected to be heard in the upcoming months. I will continue to follow this issue and report on future developments.


We Are Hiring! Litigation Position at MacIsaac & Company!

April 9th, 2019

Due to our rapidly growing personal injury practice MacIsaac & Company’s head office in Victoria, BC has an opening for an additional litigator.

We are looking for a lawyer with at least 5 years experience prosecuting injury claims.  The successful candidate will enjoy upper level market pay commensurate with experience and have the opportunity to handle a mature caseload from moderate to severe injury claims.

MacIsaac & Company has decades of experience representing plaintiffs throughout BC and Alberta.

Applications can be sent in confidence to our office manager Pat Robbins via email at  patr@macisaacgroup.com


ICBC Criticized For Not Practicing What It Preaches

April 9th, 2019

In recent months both ICBC and the Provincial Government have been vocal in criticizing the use of medico-legal reports in injury litigation resulting in rule changes restricting the rights of litigants in relying on such evidence. In reality ICBC has no reservations seeking out numerous expert reports when it suits their interests in litigation. This inconsistency resulted in critical comments today from the BC Supreme Court.

In today’s case (McNeill v. Saunders) the Plaintiff was injured in a collision and sued for damages. The plaintiff has consented to being examined by a neurologist chosen by the defendant. The Defendant went on to request a further medical exam with a psychiatrist despite the Plaintiff not relying on a psychologist or psychiatrist in their claim. The Court raised concerns about this request and provided the following critical comments about ICBC’s practices versus their public stance on the utility of experts:

[23]         I am concerned about the potential for overlap with the neurologist’s opinion and for the bolstering of that opinion by the psychiatrist. I also accept that a psychiatric assessment is invasive. I also consider proportionality. The fact that the plaintiff is not at this time retaining a psychiatrist or psychologist expert strongly suggests that these injuries are not her main concern. However, the pleadings and the discovery evidence tip the balance here.

[24]         I order that the plaintiff attend the IME as sought in paragraph 1 of the Notice of Application. It is a discretionary order. Rule 11-5(7)(b), where the court is appointing an expert, specifically sets out that the expert can be given appropriate directions. I use that as a guide to my discretion here.

[25]         I direct that the IME must be limited to considering the psychiatric issues in the plaintiff’s pleaded claims of irritability, poor mood and depression, together with any psychiatric component to the sleep disorder, and together with any other evidence respecting psychiatric matters taken at the examination for discovery.

[26]         I order that the IME be limited to considering the psychiatric issues in the plaintiff’s pleaded claims of irritability, poor mood and depression, and any psychiatric component to the sleep disorder claim.

[27]         I order that all notes and any other primary evidence taken at the IME must be promptly provided to the plaintiff, within seven days of completion of the IME.

[28]         I have concerns that this IME will not be of much assistance. It flies in the face of the insurer’s stated public opposition to too many expensive medical reports. It is odd that the defendant, through its insurers, focuses on what would appear to be a relatively minor component of the plaintiff’s claim. However, that is the defendant’s choice.

[29]         I am adjourning the application for costs. That is to be dealt with by the trial judge after the conclusion of the trial.


$175,000 Non-Pecuniary Assessment for Chronic Psychological Injuries

April 8th, 2019

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic psychological injuries sustained in a collision.

In the recent case (Anssari v. Alborzpour) the Plaintiff was injured in a 2014 collision.  She sustained various psychological injuries including severe depression, anxiety, and post-traumatic stress symptoms.  These continued to the time of trial and were likely to continue in the future.  In assessing non-pecuniary damages at $175,000 Madam Justice Fleming provided the following reasons:

[95]         In any event, the fact and opinion evidence overwhelmingly establishes that Mrs. Anssari developed severe depression, severe anxiety and symptoms of PTSD due to the accident. It is clear her psychological injuries have resulted in the ongoing and severe symptoms she, her children and most of the expert witnesses described in their evidence. I find therefore the accident caused the following:

–       very low mood and intense feelings of anxiety worsened or triggered by a number of circumstances such as driving, noise, and sirens;

–       nightmares for about one year after the accident;

–       very low energy and very poor motivation;

–       agitation, irritation and anger, as well as intense sadness and emotional numbness;

–       a profound sense of hopelessness and if not a wish to die, a questioning of her ongoing existence;

–       irrational anger toward Mr. Alborzpour for causing the accident that she wants to let go of but cannot;

–       overwhelming feelings of guilt over the impact of her condition on her family;

–       chronic insomnia that prevents her from falling asleep until near dawn and staying asleep for more than a series a short periods ending in the late morning;

–       significant physical pain in her neck shoulders and back, severe headaches and numbness along with other altered sensations in her right arm for approximately two years after the accident; and

–       some ongoing pain in her neck, shoulders and back, headaches and intermittent numbness in her right arm.

[96]         Mrs. Anssari’s severe psychological symptoms have persisted despite treatment including anti-depressant medications, psychological treatment in 2014 and 2017, medication and treatment for her physical symptoms, ongoing support from her family doctor, and some involvement with a treating psychiatrist since early 2018….

[108]     The evidence makes it clear that Mrs. Anssari’s psychological injuries have had a devastating impact on every aspect of her life. Before the accident she was a vibrant, happy, healthy person with a loving marriage and extremely close, positive relationships with both children. A full-time homemaker and a highly involved parent, Mrs. Anssari also enjoyed socializing with friends, going out and travelling with her husband and children, and being physically active. She dreamed of being a grandmother and caring for her grandchildren. Her future was bright.

[109]     Since the accident, her emotional suffering, intense anxiety, and severely disrupted sleep, along with an almost complete loss of motivation, next to no energy and a deep sense of hopelessness have essentially taken all of that away. For the first year she was also plagued by nightmares of the accident. She still experiences flashbacks. I have accepted her psychological injuries exacerbated her physical pain which, although much better, has not resolved.

[110]     For the most part Mrs. Anssari spends her days and nights on the living room couch, interacting very little with the world around her, including her family. Her inability to take part in or find any joy in Sahar’s wedding preparations and the wedding itself would have been unimaginable before the accident. The same is true of her response to Rosha. Rather than fulfilling her dream of being an involved grandmother and caring for her grandchildren, she engages very little with Rosha during their almost daily weekday visits which in turn causes her more suffering. Similarly, Mrs. Anssari remains unable to let go of the anger she has felt toward Mr. Alborzpour since the accident. In response, as Mrs. Anssari put it, he has lost patience with her. The evidence of Saeed and Sahar suggests the marriage is beyond repair, a terrible loss for Mrs. Anssari given its strength before the accident and how firmly rooted her identity has been in her role as a wife and mother.

[111]     The effect of Mrs. Anssari’s injuries on her day-to-day functioning is as profound as the impairment of her relationships. I have accepted that her psychological injuries prevent her from engaging in any meaningful housework or cooking. They also significantly interfere with her ability to drive safely, a blow to her independence. She even struggles to engage in basic self-care.

[112]     Unhappy with what has become of her, Mrs. Anssari is, as I have said, guilt ridden about the effect of her condition on her family. Fortunately she wants to get better and is willing to undergo further treatment, despite the ineffectiveness of medication and psychological interventions thus far. Although a complete recovery is not a realistic possibility, a new medication regime and, failing that, ECT may very well result in substantial improvement over time.

[113]      Similar cases are of some assistance in assessing an award for non-pecuniary damages. No other case however will ever involve the exact same circumstances and each plaintiff is unique: Hans v. Volvo Truck North America Inc., 2016 BCSC 1155, at para. 525. I have considered the cases relied upon by the parties. The most similar is Hans where $265,000 was awarded in non-pecuniary damages seven years after the accident. The plaintiff’s psychological injuries, significant PTSD and major depressive disorder, were however even more serious than Mrs. Anssari’s and there was little prospect his symptoms would improve. He suffered from suicidal ideation, had attempted suicide three times, and been hospitalized for extended periods. The trial judge accepted the plaintiff would remain at risk of death by suicide. Given his PTSD, the plaintiff was also found to be at increased risk of developing another psychiatric disorder.

[114]     In all of the circumstances and having considered the factors enumerated in Stapley, I conclude $175,000 is an appropriate award for Mrs. Anssari’s pain and suffering. The award includes compensation for the non-pecuniary loss associated with her intended role as a caregiver to her grandchildren and her future loss of housekeeping capacity, both of which are discussed below but also takes into account the chance that with the medication regime or failing that ECT, her psychological condition will improve substantially, balanced against the risk of further deterioration.


BC Court of Appeal – OK for Judges To Use Male Earnings Statistics for Female Plaintiff

April 3rd, 2019

Reasons for judgement were published today by the BC Court of Appeal confirming it was not an error in law for a trial judge to rely on male labour market contingencies when assessing damages for an injured female plaintiff.

In today’s case (Gill v. Lai) the Plaintiff was injured in two collisions and proceeded to trial where she was compensated for various losses including future diminished earning capacity.   In assessing this loss the trial judge relied on statistical evidence for men.  ICBC appealed arguing it was legally wrong to do so for a female plaintiff.  The BC Court of Appeal rejected this argument finding that in the circumstances of this case there was no error in relying on male statistics in part because “income statistics may incorporate historic and inequitable gender-based pay differences“.

The Court provided the following reasons:

[52]         The respondent’s expert economist, Mr. Benning, used labour market statistics for males in British Columbia when making an allowance for the negative contingencies of part-time employment and non-participation in the workforce. The trial judge accepted this approach and rejected the submission statistics for females should be used. He did so for two reasons: factors specific to the respondent and a reluctance to use statistics that have the effect of perpetuating discrimination. He wrote:

[130]     In adopting the male labour market approach, I note:

a)    since a young age, the plaintiff has shown a particular adherence to the work force and, in particular, the pharmacy profession;

b)    the plaintiff values financial independence (she saved the funds for the down payment for the Cloverdale home while her future husband studied dentistry in Manitoba); and

c)    the plaintiff’s parents are in their mid-sixties and are still working.

[131]     I am also reticent to give weight to female labour market contingencies which may have embedded discrimination: see Justice Morellato’s discussion in Jamal v. Kemery-Higgins, 2017 BCSC 213 at paras. 96–99.

[53]         The appellants say there was no evidence of any such embedded discrimination. They say Mr. Benning confirmed statistically females are more likely than males to work on a part-time basis and, the appellants say, “there was no suggestion in the evidence such difference arose because of any issues relating to discrimination”.  The appellants argue the only evidence before the judge was female labour market contingencies accurately reflect the real and substantial possibilities for the respondent.

[54]         Judges can and do recognize income statistics may incorporate historic and inequitable gender-based pay differences and, as such, have increasingly taken a cautious approach to gender-based income statistics. In Crimeni v. Chandra, 2015 BCCA 131, this Court said:

[23]        Experts are frequently asked to estimate the income losses by using gender-specific historical income figures. Such figures may be useful where they can fairly be said to be the most accurate predictor of the lost stream of earnings. However, there is authority for the proposition that the use of female earning statistics may incorporate gender bias into the assessment of damages. There is also authority for taking judicial notice of convergence in gender incomes: Steinebach v. O’Brien, 2011 BCCA 302.

[24]        It is certainly not an error, in my view, for a trial judge to recognize that the use of historical data can reflect such bias and, to the extent, the circumstances giving rise to the bias may be expected to diminish, to view the evidence as conservative.

[25]        I can see no error in the judge’s consideration of the plaintiff’s pre‑injury earning potential.

[55]         In my view, the same can be said of labour market contingencies. It is not an error to recognize gender-based contingencies can incorporate bias. Having said that, we must bear in mind the quantification of damages necessitates an individual approach.

[56]         In the case at bar, the trial judge did not fail to deal with the parties before him. The respondent had borne children, made effective arrangements for childcare, participated on a full-time basis in the labour market, and was motivated to continue to participate full-time. It was certainly open to the trial judge to find she was unlikely to be affected by some of the contingencies reflected in female labour market statistics, and there was a reasonable basis upon which he could conclude the use of statistical evidence of contingencies affecting males in the labour market would result in a realistic prediction of the respondent’s future. I would dismiss this ground of appeal.


Court Challenge Launched Against ICBC’s “Minor” Injury Laws

April 1st, 2019

Update – Below is a copy of the filed Notice of Civil Claim.  It is a compelling and concise pleading and I recommend that lawyers and non-lawyers alike review the arguments in full.  In short it argues that the scheme of capping ‘minor‘ injuries and forcing some claims away from the BC Supreme Court violates s. 15 of the Charter (which I previously discussed here) and also is an improper derogation from the Superior Court’s jurisdiction as contemplated by s. 96 of the Constitution Act.

ICBC “Minor Injury” Caps Charter Challenge

_______________________________

No April Fool’s joke.  If you are in a crash in BC from today forward your rights have been stripped.  Your ability to claim non-pecuniary damages for injuries labelled “minor” has been capped.

The word “minor” does not mean what you think.  It has been defined to include many serious injuries including brain injury, psychological conditions, psychiatric injuries, chronic pain among many others.  If ICBC tells you your injuries are “minor”, even if they are not, your right to go to Court has been taken away and you must first present your case before a Tribunal to get a permission slip to go to Court.

Today a court challenge has been filed arguing this scheme is not constitutional.  That it is discriminatory.  That it needs to be struck down.

Time will tell if these laws are valid.  The judiciary will have the final say.  If you are in a crash and are told your injuries are minor keep the court challenge in mind.  It may be wise not to settle (while keeping applicable limitation periods in mind) while the validity of the laws are judicially scrutinized.  At the very least it is a factor to consider when making an informed decision about whether to accept a ‘capped’ offer for so called ‘minor’ injuries.


Government Creates 60 Day Deadline for Crash Victims to Submit ICBC Receipts

March 29th, 2019

In the latest ‘reform’ of the law for collision victims in BC the government has passed a new regulation shortening the time to submit receipts to ICBC from 2 years to a mere 60 days.

Today Order in Council 136 was approved.  Among the changes is the creation of section 88.01 of the Insurance (Vehicle) Regulation creating a far shorter deadline for the submission of receipts to ICBC.  The new section reads as follows:

Requirement for receipts
88.01 (1) If an accident occurs for which benefits are provided under section 88, the insured must provide to the corporation a receipt for the expenses incurred that will be compensated as benefits under that section no later than 60 days from the date that those expenses are incurred.
(2) The corporation is not liable to an insured who, without reasonable excuse, fails to comply with this section.

This requirement appears not to be retroactive with section 104.21 noting “Section 88.01 applies in respect of an accident that occurs on or after April 1, 2019.“.

If you don’t submit your receipts in this timeframe and cannot get them covered by your own insurance you may also be out of luck recovering the expenses in your claim against the at-fault motorist as the Government’s ‘reforms’ have severely stripped peoples rights to claim special damages if they are injured in a BC collision.


ICBC “Minor” Injury Caps Are Not Retroactive!

March 29th, 2019

This post will be short and to the point.  I received a few calls this week from people telling me that, after discussions with adjusters, they had the impression that upcoming ‘minor injury’ caps may apply to them.  If you had a BC crash before April 1, 2019 the caps don’t apply to your claim.  Period.  The law is not retroactive.  If you wait until after April 1 to settle your pre-April 1 crash the caps will not apply to you.  If someone is suggesting otherwise it simply is not true.

If you were involved in a BC crash and wish to discuss this further don’t hesitate to call me, toll free, at 1800-663-6299 or reach me confidentially here.


BC Vehicle Collision Expert Witness Restrictions Relaxed

March 22nd, 2019

Earlier this year BC’s Attorney General announced changes to the BC Supreme Court Rules limiting how many expert witnesses litigants can use when prosecuting a personal injury lawsuit arising from a motor vehicle collision.  The rule change was brought in without notice and without support from the Rules committee.

The retroactive and without notice restriction was subject to much criticism and judicial challenges were swiftly brought.  The Government has backed down and before a judicial challenge was ruled on they amended the rule to delay its application only to trials set from 2020 onward.

The new Order in Council, approved and ordered today, reads as follows:

1 Rule 11-8 (11) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, is repealed and the following substituted:

Transition – exceptions for existing vehicle actions

(11) The following exceptions apply in relation to a vehicle action for which a notice of claim was filed before February 11, 2019:

(a) the limits set out in subrule (3) do not apply (i) to any report of an expert that was served in accordance with these Supreme Court Civil Rules before February 11, 2019, or (ii) to the vehicle action if the trial date set out in the notice of trial filed in relation to the vehicle action is on or before December 31, 2019;

(b) the limits set out in subrule (8) do not apply (i) to amounts that were necessarily or properly incurred for expert opinion evidence before February 11, 2019, or (ii) to the vehicle action in the circumstances referred to in paragraph (a) (ii).


ICBC Ordered to Pay $33,264 in Costs For Unreasonable Refusal to Settle Injury Claim

March 19th, 2019

Although the recent ICBC and BC Government narrative attempts to paint injury claimants in an unreasonable light in reality ICBC often refuses reasonable settlement offers only to be ordered to pay far more at trial.  Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, demonstrating such a result.

In the recent case (Moreira v. Crichton) the Plaintiff was injured in a 2013 collision.  The Defendant admitted fault.  The crash resulted in chronic pain with a poor prognosis.  This in turn resulted in real disability and significant past and future medical costs and wage loss.  The Plaintiff made a formal settlement offer of $480,000.  ICBC refused to pay and the matter proceeded to trial where the Plaintiff’s claim was valued over $800,000.  ICBC was ordered to pay double costs for refusing the Plaintiff’s reasonable settlement efforts.

Today the Court assessed these costs at $33,264 and ordered that ICBC pay this over and above the value of the claim.  Unreasonable positions by litigants have consequences.  Here ICBC was ordered to pay a substantial penalty for refusing to treat the plaintiff fairly.  In reaching this assessment of costs Master McDiarmid provided the following reasons:

[1]             This is an assessment of costs following a trial before Mr. Justice Betton. The trial was heard in late January and early February 2018; Betton J.’s Reasons for Judgment were rendered on July 31, 2018 cited at Moreira v. Crichton, 2018 BCSC 1281. The total judgment was $804,914.48.

[2]             The plaintiff had offered to settle for $480,000.00 by way of a formal offer to settle on May 23, 2017. In a subsequent hearing in front of Betton J. on December 18, 2018, he ordered that the plaintiff was entitled to costs, including double costs after May 23, 2017…

[94]         That totals 270 units at $110.00 per unit for a subtotal of $29,700.00, plus 7% PST of $2,079.00 and 5% GST of $1,485.00 for a total of tariff item costs, inclusive of taxes, of $33,264.00. The disbursements on a Bill of Costs should reflect my decision, together with the effect of my decision on applicable taxes on disbursements.

[95]         The disbursements on that Bill of Costs should reflect my decision, together with the effect of my decision on applicable taxes.

[96]         If required, plaintiff’s counsel may submit to me a revised Bill of Costs and certificate, in accordance with these reasons.