ICBC Law

Although this blog is focused almost exclusively on British Columbia legal issues relating to personal injury claims, I do like to keep my eye on other Canadian jurisdictions to stay appraised of significant legal developments.  One topic I particularly focus on is so called ‘tort-reform‘ which is generally code for efforts to change the law by limiting the right of compensation to those harmed through the carelessness of others.

As I recently posted, while Nova Scotia has recently taken steps to remove their long-standing artificial caps on pain and suffering awards for so called ‘minor injuries‘, Ontario seems to be moving in the opposite direction.

Today I came across this article from the Canadian Underwriter website which states that “Ontario’s insurance regulator, the Financial Services Commission of Ontario (FSCO), has posted its new Minor Injury Guideline (MIG), a key pillar of the province’s proposed new auto insurance reform package.”

Under the proposal people with ‘minor’ injuries are entitled to benefits “subject to a $3,500 limit“. The proposed definition of a “minor injury” according to the article is:

“a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation [a partial but not complete dislocation of the joint], and any clinically associated sequelae [symptoms following on these injuries].”

A whiplash-associated disorder is further described as a whiplash injury that “does not exhibit objective, demonstrable, definable and clinically relevant neurological signs and does not exhibit a fracture in or dislocation of the spine.”

Rarely is it wise public policy to limit the rights of those injured / affected by the actions of others as has now been demonstrated with the wisdom of hindsight with the public disdain at the $75 million oil liability cap which is drawing well deserved critisim south of the border.

Efforts to limit the rights of people to seek lawful compensation usually have one predictable result, and that is to deprive the most deserving people in the affected class of fair and meaningful restoration.  Hopefully this minor injury guideline will be reformed before it comes into force.

(Please Note:  I’ve been advised by a colleague that the case discussed in this post is under appeal and I will update this post once the BCCA’s decision is released)

As readers of this blog know, on April 1, 2009 the BC Health Care Costs Recovery Act came into force which required Plaintiffs to, in certain circumstances, advance claims on behalf of the government to recover MSP health care costs in their personal injury claims.

Today Mr. Justice Sewell released two sets of judgements addressing whether the Act applies to cases filed in Court before April 1, 2009.

In today’s cases (Fong v. Deglan and Gosselin v. Shepherd) the respective Plaintiff’s were injured in non ICBC insured cases.  Their injuries occurred before April 1, 2009 and their lawsuits were also filed before this date.  Prior to the trial the Plaintiffs applied to amend their pleadings to advance the BC Governments claim under the HCCRA.

Lawyers for the Attorney General of BC intervened and argued that these amendments should be allowed.  The Defendants opposed these applications arguing that the HCCRA does not apply to lawsuits filed before April 1, 2009.  Mr. Justice Sewell agreed with the Defendants and dismissed the applications and in so doing made the following findings:

[37]        My review of the Act leads me to conclude that it is not clearly and unambiguously intended to apply to actions commenced before the Act came into force.  The presumption against retrospectivity set out in the cases referred to above together with the internal indications in the Act itself lead me to conclude that s. 2 of the Act has no application to actions commenced prior to the Act coming into force.

[38]        I therefore conclude that the amendment sought discloses no reasonable cause of action and dismiss the application for the amendment on that ground.

[39]        I would also dismiss the application to amend on the grounds that it is not just and convenient to permit such a claim to be advanced.  It is clear that Ms. Gosselin will obtain no benefit from advancing the claim and has no legal obligation to do so.  In these circumstances I consider the amendment to be useless and unfair to the defendants.

[40]        In Langret Investments S.A. v. McDonnell (1996), 21 B.C.L.R. (3d) 145 (C.A.) the court held at p. 153:

• Rule 24(1) of the Rules of Court in British Columbia allows a party to amend an originating process or pleading. Amendments are allowed unless prejudice can be demonstrated by the opposite party or the amendment will be useless. The rationale for allowing amendments is to enable the real issues to be determined. The practice followed in civil matters when amendments are sought fulfils the fundamental objective of the civil rules which is to ensure the just, speedy and inexpensive determination of every proceeding on the merits. See McLachlin and Taylor, British Columbia Practice (2nd Ed.) pp. 24-1 to 24-2-10, and the (7 decision of this Court in Chavez v. Sundance Cruises Corp. (1993), 15 C.P.C. (3d) 305, 309-10.

[41]        In my view the proposed amendments to the statement of claim are useless in that they provide no personal benefit to the plaintiff since any amount recovered by the plaintiff as a result of the amendments would be held in trust and ultimately paid to the government.

[42]        Ms. Gosselin feels that she has a moral obligation to pursue a claim to recover the health care services costs.  However I do not consider it to be appropriate for the Court to impose moral obligations on defendants.  The legislature has set out the circumstances in which the government is entitled to recover the cost of health care services.  I do not consider it to be just to the defendants to put them uniquely in the position of being exposed to a claim that others in the same situation will not be required to answer.

[43]        The application to amend is therefore dismissed.

Clarity is always welcome when a new law comes into force.  I will continue to post about further cases interpreting and shaping this legislation.  You can click here to read my archived posts discussing the HCCRA.

The Olympics are now over. British Columbians (and all Canadians for that matter) have much to be proud of. The Olympic Games have been a great success and created a sense of national unity and pride that have been unparellelled. As a Canadian I am proud of these games and the historic success of our athletes. Canadians will not soon forget where they were when Sidney Crosby scored his spectacular overtime goal to claim Olympic Gold.

With the dust settling, however, one story that has not gone away was the cloud that the Olympics started under with the unfortunate and tragic death of Georgia Luge Competitor Nodar Kumaritashvili.

When this news broke I shared my immediate thoughts on the tragedy.

Since authoring my article I’ve been approached by a handful of people to further share my views. I’ve been asked to comment on some of the specific shortcomings of British Columbia law that I alluded to in my initial article. After having this discussion several times I thought I would share some of my thoughts by way of this follow up post.

If a person dies through the carelessness of others in British Columbia the BC Family Compensation Act governs claims for compensation brought by survivors. This outdated law has been the subject of much criticism due to its restrictions for survivors rights. I could not have commented on the shortcomings of BC Wrongful Death law better than the TLABC (Trial Lawyers Association of British Columbia) who have just released their comprehensive views of the need for overhaul of BC Wrongful Death laws.  You can find these here and I strongly urge anyone interested in reform in this area to review TLABC’s submissions in full

Another shortcoming under BC Law is the quick notice limitation period contained in the BC Local Government Act.

Local Governments, are defined under the act as:

If you are injured and can bring a claim against a Local Government you will lose your right to make your claim unless you comply with s. 286 of the local government act which provides as follows:

Immunity Unless Notice Given To Municipality After Damage

(1) A municipality is in no case liable for damages unless notice in writing, setting out the time, place, and manner in which the damage has been sustaibed, is delivered to the municipality within 2 months from the date on which the damage was sustained.

(2)        In case of the death of a person injured, the failure to give notice required by this section is not a bar to the maintenance of the action.

(3)        Failure to give the notice or its insufficiency is not a bar to the maintenance of an action if the court before whom it is tried, or, in case of appeal, the Court of Appeal, believes

(a)        there was reasonable excuse, and

(b)        the defendant has not been prejudiced in its defence by the failure or insufficiency.

Assuming that Local Governments had some responsibility for the design/set up / access to the now world famous Whistler Sliding Centre this limitation period would be triggered for anyone advancing an injury claim against the Local Governments. While this legislation does have an exclusion for claims involving “death” this limitation period has operated to strip the rights of many seriously injured people following alleged negligence of Local Governments.

When people are forced to deal with the consequences of a tragedy it is very harsh to take away their right to seek lawful compensation if they fail to turn their mind to litigation within two months.

The above examples are some of the first which came to mind when asked to comment on the shortcomings of British Columbia Personal Injury Law. While I am generally very proud of the tort system we have in this Province it is important to point out areas where there is room and need for improvement.

British Columbia remains the least ‘tort-reformed” Province in Canada and as a result we can be proud that in most instances BC offers fair adjudication of claims for those injured at the hands of others.  Many other Canadian jurisdictions offer fewer protections with compensation restrictions such as ‘no-fault‘ laws or ‘soft-tissue injury caps‘ on damages.

If a British Columbia resident is injured in another Province can they sue in BC to be compensated for their injuries?  Reasons for judgement were released today considering this issue.

In today’s case (Dembroski v. Rhainds) the Plaintiff was involved in a car crash in Alberta in 2007.  The Plaintiff was a British Columbia resident and was in Alberta for a short while to do some work as a farrier.    The Plaintiff was injured and unable to perform her work.  She returned to BC shortly after the car crash.  She had the majority of her treatments in BC.

The Plaintiff eventually sued the alleged at fault motorist for compensation in British Columbia.  The Defendant brought a motion to dismiss the claim arguing that BC Courts lack jurisdiction to preside overthis case.

Mr. Justice Truscott agreed with the defendants and dismissed the lawsuit.  In doing so he made the following points regarding BC Courts’ jurisdiction to preside over a lawsuit arising from an out of Province motor vehicle accident:

11] The court’s jurisdiction is governed by the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (CJPTA), which gives the court territorial jurisdiction in particular circumstances.

[12] From the facts here, the only circumstance set out in the legislation that might give the court jurisdiction is the provision in s. 3(e) that “there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.”…

[19] Defence counsel cites a number of court decisions in British Columbia that have denied jurisdiction on what are alleged to be similar circumstances, including: Canadian International Marketing Distributing Ltd. v. Nitsuko Ltd. (1990), 56 B.C.L.R. (2d) 130 (C.A.); Aubichon (Guardian ad litem of) v. Kazakoff, [1998] B.C.J. No. 3058 (S.C.); Jordan v. Schatz, 2000 BCCA 409; Sequin-Chand v. McAllister, [1992] B.C.J. No. 237 (S.C.); Williams v. TST Porter (c.o.b. 6422217 Canada Inc.), 2008 BCSC 1315; and Roed v. Scheffler, 2009 BCSC 731.

[20] All of these cases concluded that where a British Columbia resident plaintiff is injured in a foreign jurisdiction and then returns to British Columbia for treatment of injuries, there exists no real and substantial connection with British Columbia to give the courts of British Columbia jurisdiction because the only connection to this province is the fact that the plaintiff is a resident here at the time of the claim.

[21] In Jordan v. Schatz, Mr. Justice Cumming, writing the decision for the Court, said at para. 23:

What constitutes a “real and substantial connection” has not been fully defined. However, it has been well established by this Court in Nitsuko, supra, and in Ell, supra, that there is no real and substantial connection to British Columbia based on the bare residency of the Plaintiff in the jurisdiction. There must be some other or further sufficient connecting factor or “contacts” to this province. Clear examples of connecting factors include the residency of the defendant in the jurisdiction or the fact that the tortious act was committed or damages suffered here.

…

36] I can see no exception that would be applicable in this case to allow me to depart from the decisions in those cases that have denied jurisdiction to the court when the plaintiff’s only connection to the jurisdiction is the fact she continues to suffer from her injuries while she resides here. To accept jurisdiction here would be to accept jurisdiction for a plaintiff who moves to the jurisdiction after an accident in another province and continues to suffer from injuries here. That cannot be.

[37] There is no real and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based. There may be a real and substantial connection between British Columbia and the plaintiff, but that does not satisfy the words of s. 3.

[38] The action is dismissed for want of jurisdiction. The defendants will have their costs.

In 2009 Mr. Justice Goepel of the BC Supreme Court held that the University of British Columbia did not have the legal authority to issue and collect parking fines over the years and awarded judgement in favour of a class action lawsuit seeking to have the money repaid by UBC.

UBC appealed this decision.  Before the BC Court of Appeal had a chance to review the matter the BC Government passed a retroactive law which in essence stated that UBC had the power to issue the fines.    (Click here for some background information on this).

With the retroactive law on the books the matter then proceeded to BC’s highest Court and they were asked to determine if this law was valid and if so what effect it would have on the class action.   In reasons for judgement released today the BC Court of Appeal held that this law was valid and as a result the trial judgement was set aside.

The highlights of the Court’s reasons were as follows (for the sake of easy reading and at the risk of oversimplification ’intra vires’ means something UBC had the power to do and ‘ultra vires’ means something that UBC did not have the power to do):

[26] Thus, on the general issue of interpretation, we conclude the Miscellaneous Statutes Amendment Act, 2009 applies to the circumstances before the court. This Act makes intra vires that which was conceded to be ultra vires at trial. Further because the foundation for the order declaring the class members entitled to restitution has been replaced, and because s. 16(2)(c) prohibits restitution of the fines or penalties referred to in the Supreme Court of British Columbia order, the declaration of entitlement to restitution cannot stand in light of the new legislation…

[32] We consider it is clear in Canada that the Legislature may enact legislation that has the effect of retroactively altering the law applicable to a dispute. While a Legislature may not interfere with the Court’s adjudicative role, it may amend the law which the court is required to apply in its adjudication. The difference between amending the law and interfering with the adjudicative function is fundamental to the proper roles of the legislature and courts in our parliamentary democracy.

[33] It follows we see no reason to “read down” the amending and transitional provisions to accommodate the concept of judicial independence…

39] The appeal is allowed and the order of the judge is set aside, to be replaced with a declaration answering common issue 1 in the negative, the Parking Regulations are intra vires the University. Given the answer to that question, there is no need to answer questions 2 and 3 (dealing with the rights in contract and proprietary rights of the University), or the other questions that depended upon a positive answer to question 1.

Tort reform generally refers to limiting the rights of those injured through the carelessness of others to the beneift of insurance company profits.  To this end Alberta and Nova Scotia enacted laws over the last several years artificially capping the compensation certain injured people can claim for non-pecuniniary damages (money for pain and suffering and loss of enjoyment of life).

These laws have been the subject of various court challenges and in 2009 the Alberta Court of Appeal found that Province’s Soft Tissue Injury Cap was constitutional and around the same time Nova Scotia’s Court of Appeal concluded that their ‘minor injury claims’ cap was also valid.

It’s against this background that I read a surprisingly refreshing headline today at The Lawyers Weekly.   The Nova Scotia government is considering abolishing their “minor injury cap” which limits non-pecuniary damages in that Province for certain injuries to $2,500.    One of the problems with the law is that many serious injuries such as broken bones and chronic soft tissue injuries could be considred ‘minor’ given the wording of the law.

The Lawyers Weekly reports that the Premier of Nova Scotia claims that the cap ‘is preventing people who have been seriously injured from pursuing compensation and will not survive in its present form‘.  I could not have summarized the unfairness of these laws better than the Premier himself did when he stated that “Insurance is a product designed to protect people.  If you exclude people from protection…then by definition you’re not delivering the product that has been paid for“.

Nova Scotia is apparently seeking public input on the best way to revise this 6 year old law.  The insurers who proffited under this law will likely rally against this change.  For this reason those interested in seeing this law overturned and having the rights of those injured throught he fault of others restored should make sure their voices are heard.  You can voice your support for this positive change by contacting the Government at the following address:

The Office of the Superintendent of Insurance
PO Box 2271
4th Floor
Provincial Finance Building
1723 Hollis Street
Halifax, NS B3J 3C8

You can click here to read the full story at The Lawyers Weekly.

Today I was interviewed by Charles Adler of Corus Radio on the topic of frivolous lawsuits.

The interview aired nationally.  You can click on the following link ( adler-and-erik-audio-clip ) to listen to my portion of the interview.

I’d like to credit CJOB 68 Winnipeg / Corus Radio Network for providing me with a copy of the clip.

Further to my previous posts on the Health Care Costs Recovery Act, I recently had the opportunity to scrutinize the Act’s application to Uninsured Motorist Claims under Section 20 of the BC Insurance (Vehicle) Act.  It was a a bit of a lengthy exercise so I thought I would share my findings for the benefit of anyone else researching this topic.

A representative of the Government familiar with the HCCRA told me that the BC Government’s initial position when the HCCRA came into force was that it applied to BC Car Crash cases where the Defendant is uninsured and in cases where the Defendant is in breach of their insurance.  In my recent experience suing Defendants who were in breach of their insurance the Government required notice about the claim but did not require recovery of health care costs.  (Please note I am not speaking on behalf of the BC Government here, I am simply highlighting my past experiences with this act, so if you are prosecuting such a claim please satisfy yourself whether or not the Act applies).

Where a Defendant is Uninsured at the time of the crash (as opposed to in breach of their insurance) the HCCRA appears to apply at first glance.

Section 24 of the Health Care Costs Recovery Act holds in part that:

(1) Subject to this section, this Act applies in relation to any personal injury suffered by a beneficiary, whether before or after this subsection comes into force….

(3) This Act does not apply in relation to health care services that are provided or are to be provided to a beneficiary in relation to

(a) personal injury or death arising out of a wrongdoer’s use or operation of a motor vehicle if the wrongdoer has, when the injury is caused, coverage under the plan, as those terms are defined in the Insurance (Vehicle) Act,

So on strict reading the HCCRA appears to apply to BC Car Crash Cases where a Defendant motorist is uninsured because in these circumstances the “wrongdoer” does not have “coverage under the plan“.  If a Plaintiff sues a Defendant in these circumstances the Government’s claim arguably should be advanced.  Practically speaking, however, Plaintiff’s rarely recover anything from Uninsured Defendants and instead take advantage of the Benefit available under section 20 of the Insurance (Vehicle) Act.

Specifically, Section 20 of the Insurance (Vehicle) Act permits people injured by Uninsured Motorists in BC to apply to ICBC for ‘payment of damages to which he or she claims to be entitled to’.

If you dig a little deeper ICBC appears to be under no obligation to pay HCCRA damages in a settlement or judgement in Section 20 Claims because of the Deductions set out in section 106 of the Insurance (Vehicle) Regulation which holds that “No amount shall be paid by (ICBC) under section 20…of the Act in respect of that part of a claim that is paid or payable as an insured claim“.

For the purpose of s. 106 of the Insurance (Vehicle) Regulation “insured claim” means “any benefit, compensation similar to benefits, right to indemnity or claim to indemnity accruing to a person entitled to benefits, compensation or indemnity...”

It is hard to imagine a successful argument holding that the right to Government Paid Health Care under MSP is not a ‘benefit‘ as used in the above definition of ‘insured claim‘.  So, in summary, while the Health Care Costs Recovery Act appears to be triggered in tort claims against Uninsured Motorists, ICBC appears to not have to pay any portion of such a claim when a Plaintiff applies for benefits to ICBC under s. 20 of the Insurance (Vehicle) Act because of the deduction they are entitled to under s. 106 of the Insurance (Vehicle) Regulation.  Clear as mud folks?

I’ve written about this topic before and below I reproduce my previous post on Injury Lawyers working both sides of the fence.  I’m doing this because  I have been approached by a number of people who recently found out that their lawyer also acts on ICBC’s behalf in other Injury Claims.  These individuals apparently were not told this when they first retained their lawyers and their displeasure in learning this after the fact is understandable.

Before reproducing my previous post, however, I’d like to share my usual advice when people are confronted with this situation.  If you hired a capable lawyer who is doing a good job for you try to work things out.  The reason being is that if you hire a second lawyer you will have to pay a second lawyer.  If the lawyer’s failure to disclose this potential conflict of interest is a deal breaker then so be it, however, if it isn’t and the lawyer is doing an otherwise decent job save yourself the extra legal fees that come with hiring a new lawyer.  While I certainly don’t condone this lack of candor (and in case you’re wondering, No I don’t act for ICBC) it is important to keep focused on the big picture which is whether your lawyer is doing a good job.

With that out of the way, here is my previous post on this issue:

You’ve been injured in an accident. You don’t feel comfortable with how things have progressed with ICBC in your settlement negotiations so you decide to hire a lawyer. You find a qualified ICBC claims lawyer and off you go. You assume, reasonably so, that the lawyer is acting for you and not ICBC, right? Not always…