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Month: May 2023

Chronic Myofascial Pain Found to be “Minor Injury” for BC Crash Victim

Written by ERIK MAGRAKEN on . Posted in BC Civil Resolution Tribunal, ICBC Minor Injury Caps.

For two years BC crash victims were subject to the “minor injury” scheme.  Basically a law labelling that most injuries are minor.  Many British Columbians were surprised to find out that most injuries are labelled minor under this law despite common understanding of the word meaning otherwise.  That’s legal drafting and defining in action.  Legislative trickery.  Words don’t always mean what you think they do, they mean what the government defined them to.

The constitutionality of the Civil Resolution Tribunal, the body given power to decide if injuries are ‘minor’, was in flux for years.  With more legal clarity now determinations are being made.  This week one of the first minor injury determinations was handed down with the Tribunal finding that an applicant’s chronic myofascial pain was caught by the broad BC Government definition of ‘minor injury’.

In the recent case (Silver v. All-West Heritage Glass Ltd.) the applicant was injured in a 2020 crash that the Defendant was at fault for.  The crash caused chronic injury to the Plaintiff’s shoulder that continued to trouble her years later and interfere with some day to day activities.  Despite the chronic nature of the injury the Tribunal provided the following reasons finding they fit the definition of minor:

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CRT Green Lights Multiple Efforts For Permanet Impairment Applications

Written by ERIK MAGRAKEN on . Posted in ICBC permanent impairment regulation.

I’ve written previously about BC’s new ‘permanent impairment’ regulation.  A crude meat chart giving nominal payments to permanently inured BC crash victims in the no-fault era.  I hate using this crude language but if you look at the profoundlyhttps://bc-injury-law.com/category/icbc-permanent-impairment-regulation/ low numbers I imagine you will agree.

It is not always clear when an injury is permanent.  Some health care practitioners may express optimism when prognosticating an injury’s fate while others may be quicker to conclude things are as good as they will get.  Interesting reasons for judgement were recently published by BC’s Civil Resolution Tribunal noting that if an applicant fails in a claim for a permanent impairment decision because the prognosis is premature nothing precludes them from bringing the same claim in the future.

In the recent case (Bate v. ICBC) the self represented litigant applied for permanent impairment damages but the claim was dismissed with the Tribunal noting that on a balance of probabilities they failed to prove their injuries were indeed permanent.  The Tribunal went on to note though that the failed application was not a barrier to a further application dealing with the same injury in the future.  Specifically the Tribunal noted as follows:

 As noted, Mr. Bate, in order to successfully claim for permanent impairment compensation, must show that it is more likely than not that his injuries are “permanent” as defined by section 10(1) of the PIR. I find he has not done so. So, I dismiss his claim for permanent impairment compensation at this time. Nothing in this decision prevents Mr. Bate from reapplying for permanent impairment compensation if and when his injuries become permanent.

BC Court of Appeal Confirms ICBC Disbursement Cap is Not “Reasonable” and Not Valid

Written by ERIK MAGRAKEN on . Posted in Uncategorized.

ICBC and the government of BC have had no shortage of tricks up their sleeve to handicap the system against crash victims so the crown corporation monopoly insurer can collect more and pay out less.  Many of the measures been unconstitutional or otherwise legally void and this week the BC Court of Appeal declared that the latest expert witness limits are not valid.

In 2019  BC’s Attorney General surprised the legal community with changes to the BC Supreme Court Rules limiting the number of expert reports in motor vehicle injury prosecutions.  These changes were swiftly declared unconstitutional.

In 2021 the BC Government took another kick at the can and introduced a retroactive disbursement limit for individuals seeking compensation for injuries caused by the carelessness of other motorists.  Basically giving litigants a choice of either not calling the necessary expert evidence to prove their claims or to prove their claims and not be able to recover the cost of doing so.   In 2022 that attempt was also declared unconstitutional.  The government still was not satisfied and took the issue up to BC’s Court of Appeal.  This week the appellate court agreed the latest disbursement limit is void.

In reasons for judgment released this week (British Columbia (Attorney General) v. Le) BC’s highest court found the arbitrary 6% cap on recoverable disbursements was not justifiable and unreasonable.   Hopefully the government finally gets the message.

How BC Rigged Fault Assessments For Crashes in the “No-Fault” Era

Written by ERIK MAGRAKEN on . Posted in ICBC Liability (fault) Cases.

Should an insurance company be judge, jury and executioner for who is at fault for a crash?   This is the system British Columbians basically now have.

First a quick history lesson.

It used to be that if you had a crash in BC ICBC would decide who was at fault.  Their decision, however, had no binding effect because motorists had rights.  They could bring a claim against each other.  Whatever the Court ruled in terms of fault would be binding.  This would override any internal ICBC decision.  A fair and objective system.

This right, however, has now disappeared along with almost all other rights crash victims had as part of ICBC’s move to no-fault insurance.

Despite BC having a ‘no fault’ system fault still matters greatly.  A wrongful assessment of fault can cost a driver over $8,000.  Despite these steep financial consequences ICBC has basically rigged the system that their decision rules with limited exceptions.

Instead of having a two year limitation period to sue another motorist the new system gives you far less time.   Under the Accident Claims Regulation this is cut down to 90 days after “a detailed assessment of responsibility” is made by ICBC.

From there, if you exercise your rights, the system has its thumbs on the scales.  Instead of a clean fresh assessment on a balance of probabilities, you have to prove ICBC got it wrong. Basically its a judicial review instead of a fresh hearing.  And here ICBC has rigged the law in their favour with you needing to prove that ICBC acted “improperly or unreasonably” in their decision.  So you don’t just prove the other party is probably at fault, you have to prove ICBC did a terrible job in reaching their internal assessment.

This is all set out in section 10 of BC’s Accident Claims Regulation which now gives British Columbia crash victims the following burden of proof in fighting the monopoly corporation:

Matters required to be proven and onus of proof

10  In a claim concerning a determination by the Insurance Company of British Columbia of the extent to which the initiating party is responsible for an accident, the initiating party has the onus of proving both of the following matters:

(a)the Insurance Corporation of British Columbia acted improperly or unreasonably in assigning responsibility for the accident to the initiating party;

(b)the extent to which the initiating party is responsible for the accident is less than the extent of responsibility assigned by the Insurance Corporation of British Columbia.

To summarize, the average BC motorist must

  1. buy your insurance from ICBC.  There is no market choice.
  2. If you are the victim of a crash you cannot sue the at fault motorist (except in the most limited of circumstances)
  3. ICBC will decide if you are at fault or not
  4. If they are wrong it can cost you thousands
  5. If they are wrong you have very little time to challenge their decision and the challenge will not be a fresh decision but rather a review where you must prove that the insurer acted “improperly or unreasonably”.

Intimate Images Protection Update – Big Tech Warned To Be Ready For Big Changes or Face Big Damages

Written by ERIK MAGRAKEN on . Posted in BC Civil Resolution Tribunal, Intimate Image Protection Claims, Intimate Images Protection Act.

I’ve written previously about BC’s new ‘Intimate Images Protection Act’.  In short this new law allows people to get quick binding orders for the removal of nude or sexualized content they don’t want on the internet.  Even if they previously consented to sharing the content they can RETROACTIVELY revoke consent.  Big change.

This week BC’s Attorney General wrote a letter to major tech and social medial companies telling them to be ready.

In the letter it is suggested the Act will go live in a matter of months as soon as regulations are finalized.  From there we can assist anyone who wants to have unwanted intimate content removed from the internet.   In fact once the law is live it is retroactive to when it was first introduced so people can send demand letters for the removal of content under the legislation right now.  If demand letters are not complied with damages could follow.

If an intimate image is ordered removed and anyone (hint big tech) continues to ‘distribute’ the image they are liable for a statutory tort and can be on the hook for damages.  These include compensatory damages and potentially aggravated and even punitive damages.

I’ve obtained a copy of the Attorney General’s letter.  Below it is published in full.  Big tech has now been warned.  They will have no excuse not to be ready to have responsible policies in place to swiftly remove ordered images within their control

Is ICBC No Fault So Broad That You Can’t Sue When a Plane Falls Out of the Sky?

Written by ERIK MAGRAKEN on . Posted in Uncategorized.

Imagine you are driving on a BC highway.  Out of nowhere a plane comes out of the sky and smashes into your vehicle causing injury.

This is not academic.  This unfortunately just occured in Langley, BC, as reported by CityNews.

Now an interesting question was posed to me by BC lawyer Kyla Lee.  Can motorists sue in these circumstances or are their rights stripped by ICBC no fault?

The short answer is this has never been judicially decided so no one can say for sure.

That said the BC No fault laws are written so broadly they may even stop you from suing a pilot for injuries when a plane smashes into your vehicle.

Here’s the breakdown.

Section 115 of BC’s Insurance Vehicle Act states that for almost all BC crashes on a highway after May 1, 2021

“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.”

An “accident” means an accident in which there is bodily injury caused by a vehicle.

A “vehicle” means a motor vehicle or trailer. “Motor Vehicle” has the same meaning as under s. 1 of the Motor Vehicle Act, which “means a vehicle, not run on rails, that is designed to be self-propelled or propelled by electric power obtained from overhead trolley wires, but does not include mobile equipment, a motor assisted cycle or a regulated motorized personal mobility device”. This definition appears to include a plane.

“bodily injury caused by a vehicle” means bodily injury caused by a vehicle or the use or operation of a vehicle;

Section 116 then carves out a list of exceptions none of which apply to suing a pilot for how they operated a plane unless there is a specific criminal code conviction.  There are some exceptions about suing people other than the operator in certain circumstances like negligent manufacturing or repair.  But the right to sue an operator of a plane if they are negligent and hit a vehicle on a BC highway may be caught by ICBC’s heavy handed no fault laws.

Section 114 goes on to carve out other scenarios where no-fault benefits are not in play (and presumably individuals retain the right to sue).  A standard vehicle on a BC highway being struck by a plane falling out of the sky does not appear to be in the list.

Ultimately this question needs judicial clarification for certainty but if correct this and countless other fact patterns are piling on to the ever growing list of reasons of why no fault is a catastrophe for BC crash victims.