Court Comments on “Disproportionate Burden” Of ICBC 6% Disbursement Regulation

Earlier this year a regulation came into force artificially limiting the recoverable disbursements in many motor vehicle actions to 6% of the damages.  The government made little effort in disguising that this rule was brought in to save a single litigant money, namely ICBC.

In one of the first judicial comments on the regulation the Court noted that this rule places a disproportionate burden on plaintiff’s in proving their claims.

In today’s case (Zhang v. Scrott) the Plaintiff was injured in a 2018 collision (predating the retroactive regulation) and sued for damages.  In advancing his claim the Plaintiff noted his disbursements may exceed the 6% cap.  The Defendant applied for a defence medical exam.  The Plaintiff argued this should be denied because if granted the plaintiff may need responsive evidence which would then result in further disbursements beyond the recoverable cap.

The Court, while granting the application, noted with a more fulsome record a litigant may succeed in arguing that the cap “upsets the balance of fairness and equality. In an appropriate case,  it might be argued that the limit on recoverable disbursements weighs against an additional IME by the defence.”

In granting the application but noting the regulation’s disproportionate burden Master Elwood provided the following reasons:

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Pandemic Did Not “Frustrate” Employment Contract Entitling Employee to Wrongful Dismissal Damages

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, which could help shed some light on a situation many are facing following this pandemic.  Whether the pandemic amounted to a frustration in a specific employment relationship.

In the recent case (Verigen v. Ensemble Travel Ltd) the Plaintiff worked for the Defendant in a travel industry related job.  When Covid hit the Defendant terminated her position.  They acknowledged they had no cause for doing so but argued the pandemic amounted to a ‘frustration’ of the employment contract.  In disagreeing that the contract was frustrated and finding the Plaintiff was entitled to damages in the amount of five months notice Mr. Justice Milman provided the following reasons:

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Alberta Recognizes Tort for Non Consensual Sexual Image Sharing

In what I believe is the first case in Alberta recognizing the tort of “Public Disclosure of Private Facts” a Court adopted this tort and awarded significant damages following the non-consensual publication of private sexual images.

In the recent case (ES v. Shillingham) the parties were involved in an intimate relationship.  Of the course of the relationship the Plaintiff shared sexual images with the Defendant “as a private gift to him.” and on the understanding that “he would not distribute these images in any way.“.  Despite this he chose to share these images on the internet over the years.

In recognizing a new tort and assessing damages to address this wrongdoing Justice Avril Inglis provided the following reasons:

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Plaintiff Has No Obligation To Acquire and Disclose Clinical Records Defence Want

Earlier this year the BC Government passed a law (whose legality is being challenged) arbitrarily capping disbursements at 6% in “vehicle injury proceedings”.  Artificially capping disbursements requires plaintiffs to use great caution in what disbursements they incur in advancing their claims.  This in turn often means limited record production.   Defence frequently are now displeased wishing for more records to scrutinize and are met with resistance due to this rule.

With this context in mind the BC Supreme Court recently reminded litigants that there is no obligation for plaintiff’s to obtain records on defence counsel’s wish list.  If the records are relevant, obtained and in the possession or control of the plaintiff they must be listed and disclosed accordingly.  However, if they are true third party records, such as hospital charts, plaintiffs have no obligation to obtain these and defence must bring proper application with notice to the record holders for production (and most importantly be prepared to shoulder the disbursements themselves).

In the recent case (Choy v. Stimpson) the Defendants wished for clinical records documenting an injury the plaintiff sustained which could be relevant to the lawsuit in question.  They asked the plaintiff to disclose these records even though the plaintiff did not have them in his possession.  In dismissing the application and reminding counsel that the Plaintiff has no obligation to obtain records the defence wishes for the Court provided the following reasons:

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Let’s Talk Filming the Police, Allegations of “Obstruction” And Canada’s Charter of Rights and Freedoms

A video is making the rounds of an RCMP member ordering a journalist to be “silent”,  “quiet” and not to “engage” with the police at all while filming ongoing tensions between authorities and logging protests.

As with other cases of police unhappy being filmed while out in public real caution needs to be exercised to ensure they are not infringing on the Charter rights of Canadians lawfully gathering news and recording matters of public interest.

Section 2 of the Charter guarantees various “fundamental freedoms” including “freedom of the press and other media of communication…freedom of peaceful assembly and freedom of association“.

The Supreme Court of Canada has made it clear that “the freedom to disseminate information would be of little value if the freedom under s. 2(b) did not also encompass the right to gather news and other information without undue governmental interference.“.

It is true that members of the public cannot go so far as obstructing police in doing their jobs while exercising these freedoms but numerous cases exist of false allegations of obstruction in order to shut down individuals from exercising their rights.  The following judicial comments from R v. Zarafonitis, 2013 ONCJ 570 are of value on the interweaving of these rights and obligations: 

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Settlement Remorse Not Enough To Have ICBC Contract Set Aside

In a recent decision of the BC Civil Resolution Tribunal and ICBC settlement was upheld despite the injuries proving worse than the Applicant had expected at the time of reaching a deal.

In the recent case (Vaidyanathan v. Kaye) the Applicant was injured in a crash caused by the Respondent.  The Applicant accepted an ICBC settlement for the minor injury cap of $5,500 (a cap that is being judicially challenged as being in violation of the Canadian Charter of Rights and Freedoms whose fate is yet to be decided).

Following settlement the Applicant was displeased with the deal finding the injuries were more compromising than anticipated.  He sued for damages.  In dismissing the claim as already settled the Tribunal provided the following reasons which serve as a good reminder that it is sensible to obtain legal advice before agreeing to an ICBC settlement to assist with making an informed decision:

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ICBC Reports Obscene Profit

$10 million?

$100 million?

$1 billion?

Even more. $1,538,000,000 to be precise.

According to ICBC’s Annual Report “ICBC’s corporate net income for the fiscal year, which ended March 31, 2021, was $1.538 billion, of
which $1.527 billion was attributed to ICBC and $11 million was attributed to non-controlling interest

Remember when the BC Government and ICBC said they were a dumpster fire?  Said your rights had to be taken away (they called taking your rights away “enhanced care”) in order to avoid financial calamity?  Turns out it was all a lie.

In the fiscal year ending March 31, 2021 (a month before the no fault system even came into force) ICBC did not lose millions as the government claimed they were going to.  They made over 1.5 billion.

And now they’ve stripped your rights.  As this grieving family learned.  And this British Columbian.  And countless others.

The government told you there was a crisis.  That your rights had to be stripped to avoid it.   Turns out that was not true.  But they got what they wanted.

If you are struck by a careless motorist now you don’t have any rights against them.  But ICBC has billions.

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When Can British Columbians Still Sue After A Vehicle Collision?

As readers of this site know the BC government stripped victims’ rights to sue careless and even reckless drivers for almost all crashes after May 1, 2021.

The law taking these rights away is short and to the point.  Section 115 of the Insurance (Vehicle) Act reads as follows:

Despite any other law or enactment but subject to this Part,

(a)a person has no right of action and must not commence or maintain proceedings respecting bodily injury caused by a vehicle arising out of an accident, and

(b)no action or proceeding may be commenced or maintained respecting bodily injury caused by a vehicle arising out of an accident.

The law carves out some exceptions and these are worth being familiar with if you are the victim of a collision.

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Under “Enhanced Care” ICBC Values A Child’s Life Less Than A Damaged Car

You read that right.  ICBC’s ‘enhanced care’ benefits value the loss of a child at the hands of a negligent driver less than what they value for vehicle damage.

I have been fielding questions about the harsh realties of ICBC’s no-fault system since it came into force on May 1, 2021.  Many British Columbians were deceived thinking they were getting better coverage for less money.  They were deceived because the BC Government spent millions of dollars on ad campaigns to do exactly that.

After being asked on Twitter why the drivers themselves can’t be sued and continuing to explain the actual new law to more baffled British Columbians one user pointed to grieving parents learning of one of the cruelest truths of ‘enhanced care’.  A child’s life being valued less than a damaged vehicle.

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Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

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