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.

Posts Tagged ‘access to justice’

Courts Must Not Shy Away From Waiving Court Hearing Fees for Those "In Need"

February 18th, 2013

Last year Mr. Justice McEwan blasted BC’s Attorney General stating that ‘some things cannot be for sale’ and struck down Provincially imposed Court ‘hearing fees’.  This decision has now been overturned by the Court of Appeal who have upheld BC’s Court hearing fees but held that in order to survive constitutional challenge the Judicial right to waive these fees much be applied to all ‘in need‘.

In last week’s decision (Vilardell v. Dunham) the Court of Appeal provided the following feedback in upholding BC’s Court hearing fees:

 [4]             In my opinion, were it not for the power of the courts to give relief from the hearing fees, they would be an unconstitutional impediment to justice.  The power is found in an enlarged interpretation of the indigency provision…

[31]         I am reluctant to take the course suggested by the respondents.  Cost recovery has been a legitimate government objective for centuries and our Constitution assigns administration of the superior courts to the province.  It is a drastic step to strike down an otherwise valid enactment for want of a saving provision that falls short of the mark.  A more surgical response is to remedy the deficiency by reading in the under-inclusive indigency provision in the Rules to include people who are “in need”: see Schachter v. Canada, [1992] 2 S.C.R. 679 at 718.  “In need” recognizes the fact that some litigants, while not destitute or impoverished, are still in need of relief or assistance in order to have their case heard before a superior court…

[35]         To the extent that the hearing fees have the potential to interfere with the core judicial function of running a trial, which I think they do, the courts should respond to the interference.  Judges must not shy away from dealing with such incursions.  The remedy I propose in this case is a measured response to the problem. ..

[41]         Granting an automatic exemption to recipients of employment or disability insurance suggests a more generous approach than was previously taken.  The enlarged scope of the exemption in Rule 20-5, then, should be read as saying “impoverished or in need”.  The phrase is intended to cover those who could not meet their everyday expenses if they were required to pay the fees.  Courts will continue to use their discretion to determine whether a litigant is impoverished or in need to the point that but for the hearing fees, they would be able to pursue their claim, thus qualifying for an exemption.

 


"Some Things Cannot Be For Sale" – BC Supreme Court Benchslaps Attorney General

May 22nd, 2012

(UPDATE  February 15, 2013The decision discussed below was overturned by the BC Court of Appeal in reasons for judgement released today)

I recently highlighted on-going friction between the BC Government and our Judiciary.  In the latest chapter of this story, reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, striking down Court “hearing fees” and providing strong criticism to the Government with respect to their constitutional duty to properly maintain Superior Courts.

Included in Mr. Justice McEwan’s robust reasons for judgement (Vilardell v. Dunham) was the following constitutional lesson to Government:

(1)  Access to the s. 96 courts is a fundamental premise of the constitutional arrangement of Canada which cannot be materially hindered by anyone (BCGEU), including either Parliament or the legislatures, just as public and political discourse may not be abrogated by law (Alberta Reference).

(2)  The mandate of the Province under s. 92(14) is to maintain, that is, to provide adequately for, the courts.  It does not include the power to legislate in a manner that impairs the court’s ability to fulfill its proper role in a democracy.  This responsibility is of precisely the same importance as the responsibility of governments to maintain the functions of legislatures and the executive branches of government.  As a constitutional responsibility, the maintenance of the superior courts does not compete with the government’s discretionary expenditures.

(3)  Hearing fees are a barrier to access imposed by one branch of government over another.  For the reasons I have set out, this creates a constitutionally untenable appearance of hierarchy.  The court cannot fulfil its democratic function as an independent and impartial arbiter between government and the individual, or between individuals, if the government limits those who may come before the court by means of financial or procedural deterrents.  In this respect, the AGBC’s position that so long as the government does not interfere with he cases the court is permitted to hear judicial independence is respected, is an inappropriately constricted view of the court’s constitutional place.  So is the notion that it may tell the public, whose interests may occasionally be adverse to those of government, that for them the courts are a “valued but last resort”.  Courts must be available to the public on precisely the same basis as they are available to government: as a place they are free to attend when they seek a authoritative determination of a right or legal position according to law.  Going to law is not a form of failure or an act of deemed unreasonableness: it is better understood as an affirmative act of faith in the authority of the law.

(4)  The AGBC’s anxious concern for trial efficiency is misplaced.  Courts of inherent jurisdiciton are equipped with all the tools they need to manage trials and to deter time wasting, and they use them.  It is an incursion upon judicial independence for the government to purport to influence the courts by manipulating fees…

[426]…The office of the Attorney General also fulfils an essential role in the protection of the public interest, which includes concern for the rights of disadvantaged and the vulnerable.

[427] The Attorney General has a further role to play in explaining the function of the courts to government.  The preservation of the core values of our Constitution including inclusiveness, equality and citizen participation are entrusted to the Attorney General as much as they are to the Courts…It is therefore a matter of serious concern that the Attorney General has come to this Court with a submission that appears so dismissive of these fundamental aspects of our system of government…

[429]  …The position taken by the AGBC in this case has shown not merely an error in its approach to an aspect of financing the courts, but a significant misunderstanding by the government of its responsibilities under, and the limitations on, its constitutional mandate under s. 92(14) of the Constitution Act, 1867.

[431]  The Court is an essential forum of that common life, and cannot perform its necessary function if it, like so much else, is subject to the values of the marketplace the government has used to justify the fees.  Some things cannot be for sale.


Chief Justice Bauman Warns BC's Judicial System is "threatened, if not in peril" Due to Underfunding

November 23rd, 2011

In a speech given at a Canadian Bar Association BC Branch conference earlier this week Robert Bauman, the Chief Justice of the BC Supreme Court warned that government underfunding has caused a “gradual, insidious process of incremental damage” which has threatened BC’s Court system.

You can click here for a link to the full text of the speech.


Your Rights and the BC Election – BC Liberals vs. the NDP

May 7th, 2009

As an injury claims lawyer there are several political-legal issues that I like to keep my eye on. Issues such as legal aid funding, tort reform efforts (code for limiting the rights of victims injured through the careless actions of others) and access to justice are all of interest to me.

With a  Provincial Election just around the corner where do BC’s 2 main political parties stand on these important issues?

Thanks to the efforts of the Trial Lawyers Association of British Columbia (the “TLABC”), we now have some much needed insight.

The Trial Lawyers Association of BC posed the following 14 questions to the NDP, and the BC Liberal Party:

1.  If Elected, will you oppose the BCJRTF proposal for active case management?

2.  If Elected, will you oppose the BCJRTF proposal for curtailing discovery rights?

3.  If elected, will you oppose efforts to introduce no-fault automobile insurance in BC?

4.  If elected, will you support a change in legislation to allow damages for mental anguish and other intangible losses suffered by family members of people who are killed by the careless, reckless or illegal acts of others?

5.  If elected, will you oppose any effort to further restrict the ability of injured patients to recover damages in court for medical malpractice?

6.  If elected, will you support legislation that requires the court to consider an award of punitive damages where conduct of the defendant is found to be outrageous or unusually reckless?

7.  If elected, will you work to protect and enhance the tort system as a means of deterring unsafe conduct  and holding wrongdoers accountable for the injuries they cause?

8.  If elected, will you support a return to the previous law, which permitted accident victims to recover their gross earnings?

9.  If elected will you support a return to rights being debated in the legislature rather than being changed through regulations and therefor altered by ICBC and the provincial cabinet without open debate?

10.  If elected, will you support a return to payment of interest on non-economic damages?

11.  If elected,  will you support renewal of the legal aid system by providing legal aid to those who need it, and ensuring that those who represent them are adequately compensated for this work?

12.  If elected, will you support reinstating a legal aid system which funds family law legal services at least to pre 2000 levels, such that eligibility requirements are sufficient to meet the needs of the diverse communities of BC, and the funding is sufficient for counsel to attend to these cases in a manner that meets their practice standards while also permitting access to justice for those marginalized in society?

13.  If elected, will you support the revisions to the proposed family rules to address these concerns?

14.  If elected, will you support increasing the funding to provincial correction services to improve the quality of programs within those facilities?

Here are the Parties answers:

BC LIBERALS

1.  The BC Liberal government, in conjunction with the judiciary and senior members of the bar, convened the British Columbia Justice Reform Task Force to identify a wide range of ideas and initiatives to make the justice system more responsive, accessible and cost-effective.  Experience in other jurisdictions, including the United Kingdom and Ontario, demonstrate that case management conferences reduce delays, increase predictability, reduce overall costs and lower court administration costs. The Task Force has learned from the experience of jurisdictions and has incorporated those lessons into the proposed changes. 

2.  The British Columbia Justice Reform Task Force has reviewed the experience of jurisdictions that have limited discovery and concluded there is no evidence that it has created unfairness, and studies have concluded that excessive document production and oral discovery are responsible for much of the delay and expense in civil litigation. The proposed rules strike a balance between the right of discovery and efficiency. Litigants must disclose all documents referred to in their pleadings, all documents they intend to refer to at trial and all documents that could be used to prove or disprove a material fact in the case. It is open to parties to apply to extend this scope of discovery in any case where a wider scope would be warranted.   

3.  A BC Liberal government has no intention of moving to a system of no-fault insurance in British Columbia, or of introducing caps, deductibles or thresholds      

4.  British Columbia’s Family Compensation Act governs the compensation for wrongful death cases involving family members. The BC Liberal government initiated a review of the entire Act, which is examining issues such as compensation for non-economic losses including pain and suffering and bereavement. Victims groups and other advocacy groups have offered valuable input during the consultation phase.   

5.  This issue relates to detailed aspects of the current system of personal injury compensation in British Columbia, which is a mixture of common law and statute law. We think it is important to engage law reform agencies, the legal profession and other affected groups in a careful consideration of these issues. Through its input, the Trial Lawyers Association of British Columbia can help preserve and protect the basic principles of the tort system.     

6.  See above     

7.  The BC Liberals support our civil law system as both a system of compensation and deterrence. We also believe that the court system must be more accessible, accountable and affordable so that justice is available for all British Columbians. That is why the BC Liberal government invested $12 million over three years to reform the civil, family and criminal justice systems.   

8.  This issue relates to detailed aspects of the current system of personal injury compensation in British Columbia, which is a mixture of common law and statute law. We think it is important to engage law reform agencies, the legal profession and other affected groups in a careful consideration of these issues. Through its input, the Trial Lawyers Association of British Columbia can help preserve and protect the basic principles of the tort system.    

9.  Changes to the Insurance (Motor Vehicle) Act must be debated in the legislature. Regulatory changes must be approved by Cabinet. The BC Liberals have no plans to alter this long-standing division of responsibilities.    

10.  This issue relates to detailed aspects of the current system of personal injury compensation in British Columbia, which is a mixture of common law and statute law. We think it is important to engage law reform agencies, the legal profession and other affected groups in a careful consideration of these issues. Through its input, the Trial Lawyers Association of British Columbia can help preserve and protect the basic principles of the tort system.    

It is our view that injured plaintiffs should not have their compensation reduced by the effect of delay in payment. Whether the appropriate tool to achieve this objective is by payment of interest, by including the “time value of money” in the calculation of awards for non-pecuniary damages, or by some other means is a question that requires further consideration.      

11.  The BC Liberal government funds one of the most generous legal aid programs in Canada. Legal aid now provides full coverage for family matters involving domestic violence or child protection hearings and expanded legal information and education services. Legal aid has traditionally provided legal representation, paying private lawyers to fight each other in court. That is not what people need to effectively resolve disputes. Access to justice for disadvantaged people requires a continuum of services, including provision of information, support and advice, getting help through alternative dispute resolution and, in some cases, full legal representation.  

The BC Liberal government has implemented a more regionally-based structure with less administration; built up support programs like a 24-hour province-wide legal aid call centre; and provided more economical alternatives to court, like mediation, to focus legal aid dollars where they are needed most – delivering essential services. The new legal aid model reduces administrative costs and puts more money into direct services.    

12.  The BC Liberal government recently increased legal aid funding by $4.6 million. The money will provide family legal services for low-income families in crisis. The BC Liberals will continue to design efficient and responsive programs that make the justice system simpler and more affordable.   

In 2008/09 the BC Liberal government spent $29.9 million on access to justice services beyond the funding we provide to the legal aid program and includes services in addition to mediation and dispute resolution. The BC Liberal government took steps to ensure that legal representation for family disputes is available to eligible clients in emergency situations, including clients in financial need where the Province is seeking custody of a child.    

13.  The new vision of family justice embodied in the proposed rule changes builds on extensive efforts over the last several years to move the family justice system away from an adversarial process. The goal is a process focused on values of family autonomy, co-operation and the best interests of the child.   

The BC Liberal government introduced a notice to mediate process in November 2007 to help facilitate out of court resolution. An expanded Justice Access Centre pilot project was opened in Nanaimo, which offers services and supports with family justice issues. The BC Liberals want to make family disputes easier to resolve and more affordable through new rules of procedure.   

14.  The BC Liberals support programs within the provincial corrections systems that are targeted at reducing recidivism. The BC Liberal government supports programs designed to help offenders confront and deal with issues underlying their behaviors such as substance abuse, violence prevention and respectful relationships. In partnership with Justice Canada, the BC Liberal government supported the enhancement of Aboriginal programming in correctional centres and communities. Programs assisting inmates to upgrade their education and develop life skills are also offered.

The NDP:  

1 – Yes, we will oppose the BCJRTF proposal for active case management.   

2 – Yes, we will oppose the BCJRTF proposal for curtailing discovery rights.   

3 – Yes, we will oppose efforts to introduce no-fault automobile insurance in BC.   

4 – We believe that this issue needs consultation and further study.   

5 – Yes, we will oppose any effort to further restrict the ability of injured patients to recover damages in court for medical malpractice.   

6 – Yes, we will support legislation that requires the court to consider an award of punitive damages where conduct of the defendant is found to be outrageous or unusually reckless.   

7 – Yes, we will work to protect and enhance the tort system as a means of deterring unsafe conduct and holding wrongdoers accountable for the injuries they cause.   

8 – We believe that this issue needs consultation and further study.   

9 – Yes, we will support a return to rights being debated in the legislature rather than being changed through regulations and therefore altered by ICBC and the provincial cabinet without debate.   

10 – We believe that this issue needs consultation and further study.   

11 and 12:   

We are very concerned about the current state of legal aid in BC, particularly with respect to family law. We will work towards reinstating resources for legal aid services, starting with additional funding of $10 million annually for 2010/11 and 2011/12. As resources permit we will do more to fix B.C.’s legal aid system to ensure access for those who need it.   

13 – Yes, we will support revisions to the proposed family rules to address these concerns.  

14 – Yes, we will support increasing the funding to provincial correction services to improve the quality of programs within those facilities. 


Working out the Kinks – More on Rule 37B and BC Injury Cases

April 16th, 2009

Very important reasons for judgment were released today (AE v. DWJ) by the BC Supreme Court giving more interpretation to Rule 37B.  (Click here to read my previous posts discussing this rule.)

Rule 37B is still relatively new and the courts have not come up with a consistent application of this rule.  Today’s case takes this rule in a potentially new direction that can make access to justice a little less costly and risky for Plaintiff’s advancing injury claims.

In today’s case the Plaintiff was awarded damages of $348,075 after taking into account contributory negligence.  After statutory deductions the judgment in the Plaintiff’s favor was less than the Defendant’s formal offer of settlement.

The Defendant’s lawyer applied to court for an order that “the defendant should receive his costs (After the date that they made their formal settlement offer)”.

In declining to make this order Mr. Justice Goepel stated that under Rule 37B “the court cannot award costs to the defendant (where the defendant beats their formal settlement offer at trial) but is limited to depriving a party of costs or awarding double costs“.  This is the first case I’m aware of interpreting Rule 37B in this fashion.

Below I reproduce the highlights of Mr. Goepel’s reasoning:

Judicial Discretion In Awarding Costs

[48] The discretion a Supreme Court judge has in awarding costs was summarized in Stiles v. British Columbia (Workers’ Compensation Board) (1989), 38 B.C.L.R. (2d) 307 at 310, 39 C.P.C. 2(d) 74 (C.A.):

The power of a Supreme Court judge to award costs stems from s. 3 of the Supreme Court Act which confirms that the judges of the Supreme Court have the inherent powers of a judge of superior court of record.  The power to award costs is governed by the laws in force in England before 1858 and by the enactments, including the Rules of Court, affecting costs made in British Columbia since 1858.  Generally, the decisions on costs, including both whether to award costs, and, if awarded, how to calculate them, are decisions governed by a wide measure of discretion.  See Oasis Hotel Ltd. v. Zurich Ins. Co., 28 B.C.L.R. 230, [1981] 5 W.W.R. 24, 21 C.P.C. 260, [1982] I.L.R. 1-1459, 124 D.L.R. (3d) 455 (C.A.).  The discretion must be exercised judicially, i.e. not arbitrarily or capriciously.  And, as I have said, it must be exercised consistently with the Rules of Court.  But it would be a sorry result if like cases were not decided in like ways with respect to costs.  So, by judicial comity, principles have developed which guide the exercise of the discretion of a judge with respect to costs.  Those principles should be consistently applied: if a judge declines to apply them, without a reason for doing so, he may be considered to have acted arbitrarily or capriciously and not judicially.

[49] In Cridge, Lowry J.A. noted the right of the Lieutenant Governor in Council to restrict the exercise of a Supreme Court judge’s discretion in awarding costs at para. 23:

While, subject to abiding by established principles, a Supreme Court judge has a broad discretion in awarding costs, it remains open to the Lieutenant Governor in Council in promulgating the Rules of Court to restrict the exercise of that discretion as may be appropriate where it is thought that to do so will achieve a desired objective.  The purpose of Rule 37 is to encourage the settlement of litigation through prescribed consequences in costs as in sub-rule (24).  Given that the sub-rule provides for the litigants’ entitlement to costs while affording no discretionary alternative, I consider it clear that there is no room for judicial discretion where sub-rule (24) applies.

[50] A trial judge cannot impose cost sanctions that are not authorized by the Rules.  An example of an ill fated attempt to do so is Kurtakis v. Canadian Northern Shield Insurance Co.(1995), 17 B.C.L.R. (3d) 197, 45 C.P.C. (3d) 294 (C.A.).  In Kurtakis, the trial judge awarded the plaintiff three times special costs.  The Court of Appeal reversed noting at para. 9 that there was “no statutory authority for such an order … and therefore no basis upon which such an order could be made.”

[51] Rule 37B has returned to judges a broad discretion in regards to costs orders arising from an offer to settle.  The discretion is however not unlimited and must be exercised within the parameters set out in the Rule.  Rule 37B(5) dictates the cost options open to a judge when an offer to settle has been made.  A judge can either deprive the party, in whole or in part, of costs to which the party would otherwise be entitled in respect of steps taken in the proceeding after the date of the delivery of the offer to settle or award double costs of some or all of the steps taken in the proceeding after the delivery of the offer to settle.  As noted in Baker, the section is permissive and a judge is not compelled to do either.

[52] What a judge cannot do, however, in my respectful opinion, as a result of an offer to settle, is to order costs to a defendant where the offer to settle was in an amount greater than the judgment.  While that cost option had existed since the time of the 1890 rules, either as an exercise of the court’s discretion or because it was mandated by the terms of the rule, it is not an option available under Rule 37B.  The drafters of Rule 37B(5) have removed that option and presumably determined that the potential deprivation of costs to which a plaintiff would otherwise be awarded is a sufficient incentive for plaintiffs to settle litigation.  As noted in Cridge, the Lieutenant Governor in Council has the right to limit the court’s discretion.  Accordingly, I hold that pursuant to Rule 37B(5) the court cannot award costs to the defendant but is limited to depriving a party of costs or awarding double costs

[53] The defendant does not seek double costs in this case.  It would be a rare case that a plaintiff who recovers damages would face the sanction of double costs. I would expect those sanctions would be limited to situations in which a plaintiff’s case is dismissed or when the plaintiff was awarded more than its offer to settle.

If this precedent holds then Plaintiffs will face fewer financial risks when proceeding to trial.  The costs consequences of going to trial and losing (not beating an ICBC formal offer of settlement) can be prohibitive and today’s case may lead the way to better access to justice in British Columbia for the victims of others negligence.