Author: ERIK MAGRAKEN

BC Bullying Law – Unique Issues With Limitation Periods

A little appreciated fact are the broad timeframes at play when certain individuals can sue their abusers for either sexual or physical abuse.

For many years BC has had no limitation period for claims relating to sexual assault.  Whether the victim is a minor or an adult a lawsuit can be brought at any time against their sexual assailant. In cases without actual sexual assault but that amount to “misconduct of a sexual nature” there also is no limitation period if the victim was a minor at the time of the misconduct.

But what about cases of physical assault with no sexual nature?  Historically these were subject to the limits set out in BC’s Limitation Act.  However, in 2013 changes to the Act came into force which removed limitation periods for certain victims of non sexual abuse.

Section 3(1)(k) came into force and removed limitations for lawsuits based on

(k)a claim relating to assault or battery, whether or not the claimant’s right to bring the court proceeding was at any time governed by a limitation period, if the assault or battery occurred while the claimant

(i)was a minor, or

(ii)was living in an intimate and personal relationship with, or was in a relationship of financial, emotional, physical or other dependency with, a person who performed, contributed to, consented to or acquiesced in the assault or battery;

The broad section gives the right for children to sue their abusers at any time.  It also expands this right to those in financially, emotionally or physically dependent relationships with their abusers.

Assault and battery are legally simple concepts.  Battery simply refers to the unwanted application of intentional force.  Assault is the threat of the application of such force.  Anyone perpetrating these wrongs to vulnerable victims can be pursued at any time to be made accountable for their wrongdoing.  This expanded limitation period was discussed in a case published earlier this year by the BC Supreme Court.

In Khan v. School District No. 39 the Plaintiff sued for various historic allegations of harm.  In discussing those that were and were not statute barred Mr. Justice Majawa provided the following comments on the current state of the Limitation Act:

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British Columbians Learning Reality of “No Fault” One Crash at a Time

The BC Government told British Columbians they will save on car insurance.  They told you that you will receive ‘enhanced care’.

But day after day and crash after crash British Columbians are learning that the new ‘no fault’ model, a concept so unpopular that the government spent untold money to consultants to rebrand it as ‘enhanced care’, delivers anything but.

I am taking daily calls from BC crash victims after May 1, 2021.  They are learning the hard way that these fancy soundbites mean nothing.  Much like the man whose story was told in the below North Shore News article.

Instead the conversations go something like this

  • Can I claim my full wage loss? Nope
  • ICBC says I have to use up my other wage replacement benefits before they pay? Yup
  • Can I get all my out of pocket expenses for my injuries covered? Nope
  • My therapist is really good but charges more than ICBC covers. Too bad
  • Pain and suffering? Nope
  • What about the full cost for the inability to take care of my own home (diminished houseeking capacity)?Nope
  • Settlement for Future Care costs? Nope
  • But I can sue the at fault driver? Almost never
  • But they were fully at fault!  Doesn’t matter
  • The driver was texting at the time! The law doesn’t care
  • My vehicle has now dropped in value!  Can’t claim that either
  • I can take ICBC to court?  Nope.  A tribunal created by the BC Government.
  • I was a pedestrian and don’t even pay for ICBC insurance so this does not apply to me?  Nope, your rights are gone too.
  • I was a cyclist?  Too bad.

How is this fair?  Its not.

How is this ‘enhanced’ care?  Its not.

The only people who have more care after a crash are the at fault drivers.  The no fault scheme gives them greater benefits for wage loss and out of pocket expenses.  This is paid for by taking all of the above rights away from crash victims.

Calls will keep coming in.  The above conversation will be repeated.  British Columbia crash victims will continue to have to swallow the real news, not the marketing soundbites.  If you don’t like it you should contact your MLA and let them know this stinks.  It will not change your current rights but if politicians listen perhaps they will restore peoples rights so you, your friends and family members will not face the same bad news you’re facing if  victimized in a future crash.

Find MLA by community here

MLA contact information here

We Sue Covid Spreaders! ™

Imagine having Covid-19.  Being told you have Covid-19.  Being told to self isolate and taking basic steps to protect others.  But not doing so and harming others.

You may be called a Covidiot.

You may be sued.

If you pass Covid-19 on to others.  If they die.  If they get ill.  If they have long term health harm.  If they have short term health harm.  Even if they don’t but they are forced to self isolate and then suffer harm from that, financial or otherwise.  You might be on the hook for damages.

The law in British Columbia is pretty simple.  Negligence.  Take reasonable care not to harm others.  If you fail in this duty you can be sued for all provable damages.  The law is nimble.  It adapts to Covid-19.  It adapts to Covidiots.

Don’t be a Covidiot.

We Sue Covid Spreaders ™

We Sue Covidiots™

 

BC Court of Appeal – Class Action Waiver Unconscionable and Unenforceable

Important reasons for judgment were published this week by the BC Court of Appeal finding class action waivers in a standard form customer contract are unconscionable and unenforceable.

In the recent case (Pearce v. 4 Pillars Consulting Group, Inc.) the Plaintiffs sued the various Defendants to recover fees paid for services in relation to debt restructuring. The Defendant’s standard form contract had a clause precluding participation in a class proceeding.  In finding the clause unenforceable and clearing the way for the suit to continue the BC Court of Appeal provided the following reasons:

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BC Considering Revenge Porn Law Clearing Way For Better Victim Access to Justice

Currently if you are the victim of revenge porn there are various legal remedies in British Columbia.  While there are various different civil routes to seek redress it is a legal area with shortcomings.

Today the BC Government announced that they are exploring “possible legislation to address the non-consensual distribution of intimate images” including ways “to achieve results faster and get better access to justice.”  The government has invited stakeholder groups and members of the public to share their views until June 2021.

The full press release reads as follows:

Province of British Columbia
NEWS RELEASE
For Immediate Release
2021FIN0033-000850
May 6, 2021
Ministry of Finance
Gender Equity Office
Consultation underway to help victims of revenge porn
VICTORIA – The Government of British Columbia is undertaking consultations on possible legislation to address the non-consensual distribution of intimate images, also known as revenge porn or image abuse.

While the publication of intimate images without consent is an offence under Canada’s Criminal Code, potential provincial legislation could provide additional tools for people to protect themselves and seek recourse. Grace Lore, Parliamentary Secretary for Gender Equity, will lead the consultation on behalf of David Eby, Attorney General.

“Without consent, circulating or threatening to distribute an intimate image is a form of sexual violence with traumatic and lasting impacts,” Lore said. “The non-consensual sharing of images can be a form of intimate partner violence or be used to extort victims for additional images, sex or money. We believe a comprehensive B.C. approach can make a real difference for people to achieve results faster and get better access to justice.”

B.C. legislation could provide a new option to ensure people have an efficient way to have posted images taken down and destroyed. It could also create a new process for people to claim compensation from wrongdoers. The potential legislation could also address the threat of distributing images and prevent such harms from occurring in the first place. The scope of the legislation could also apply to altered images, known as deep fakes.

According to Cybertip.ca, reported incidents of non-consensual disclosure of intimate images increased 58% by the start of 2021, compared to the nine-month period prior to April 1, 2020. This included a 94% increase in youth reporting and a 44% increase in adults reporting.

Consultations with stakeholder groups are ongoing until June 2021. Members of the public can also submit their views by emailing submissions to: imageprivacy@gov.bc.ca

 

ICBC Blasted for Playing “Game of Chicken” With Injured Nurse

Reasons for judgement were published this week blasting ICBC for playing a “game of chicken” with an injury claimant in essence taking the claim to trial despite having no meaningful evidence or challenges to the plaintiff’s evidence.

In the recent case (Moon v. Yaranon) the Plaintiff was involved in a 2015 crash.  The Defendant admitted fault  The Plaintiff was a nurse and suffered chronic soft tissue injuries leading to partial disability.  ICBC had no evidence contradicting this.  Despite the lack of evidence ICBC took the case to trial where damages of over $822,000 were assessed for the long term injuries.  In admonishing ICBC and their ‘penny wise pound foolish’ strategy Mr. Justice Crerar issued the following reasons:

[3]             The defendant admits liability, and accepts that the plaintiff has suffered some injuries as a result of the accident. Causation is not disputed. The defendant does not advance a failure to mitigate argument, but asserts that the plaintiff’s conditions are readily manageable, even with the physical demands of a nursing career, and may resolve themselves in the future.

[4]             The defendant advanced no expert evidence. The defendant called only one witness: Mr Lai, a physiotherapist who treated the plaintiff in December 2015 and January 2016, just after the accident. His evidence lasted all of 10 minutes; he remembered almost nothing from his brief treatment of the plaintiff, nearly five years previous. Nor did the defendant advance hidden video or evidence from neighbours or associates indicating exaggerated disability, as is typical in personal injury cases. Such evidence is especially important where the credibility of the plaintiff or her experts is not significantly challenged on cross-examination, as in the present case. Its absence makes the task of the court exceedingly difficult in a case such as the present, where the injuries are not discernible by medical imaging or other objective means. Evidence of the existence and extent of the injury is presented through the subjective assertions of the plaintiff, both directly, and via expert testimony largely based, in turn, on those same subjective assertions.

[5]             These observations are not directed at all toward Mr Ross, who was only brought in as counsel a few months before trial, after most deadlines had passed for such evidence, and who was acting on his client’s instructions. Unfortunately, this strategy of contesting a plaintiff’s claim, and forcing a plaintiff to proceed to trial, in an effective game of chicken, is not confined to this case: this judge alone has presided over at least one other recent trial with minimal evidence, minimal cross-examination, and minimal argument, presented by the provincial automobile insurer qua defendant. [1]

 

 

RCMP “Voluntary” Wage Loss Payments Deducted from Member’s Tort Award

Reasons for judgment were published this week by the BC Court of Appeal addressing the common law principles of subrogation and double recovery in a BC tort claim.

In the recent case (Provost v. Dueck) the Plaintiff RCMP officer was involved in a crash and sued for damages.  At trial he was awarded various damages including $27,500 for past income loss for the months his injuries disabled him from work.  During this time of disability, however, the RCMP continued to pay his full wages.  Payments for other various benefits were made as well.  These payments “were not made pursuant to a collective agreement or any other contractual arrangement. Rather, they were made pursuant to the longstanding “practice or policy” of the RCMP to continue to pay the full wage benefits of injured officers during their convalescence“.

The BC Court of Appeal held that in these circumstances the RCMP enjoyed no true rights of subrogation and that the awards should not have been made in tort as they would constitute double recovery.  In ordering a deduction of these damages from the Plaintiff’s award the BC Court of Appeal provided the following reasons:

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British Columbians Overlooking $190,450,000 in ICBC Vehicle Depreciation Claims

$190,450,000.

Let me repeat that number.  $190,450,000,

There are an estimated $190,450,000 worth of active potential vehicle accelerated depreciation claims on ICBC’s books.  The insurer historically has paid out almost o% of these claims and is hoping to pay only a small fraction of these remaining claims with over 99% of British Columbians failing to exercise their rights.

When a not at fault driver has their vehicle damaged in a crash it is often worth less money once it has been repaired.  This lost value is called ‘accelerated depreciation’ and has been recognized for many years by BC Courts as a recoverable damage in an ICBC settlement.  A general rule in life is “you don’t get what you don’t ask for” and ICBC statistics show most British Columbia crash victims are unaware they can claim these damages before settling their claim.

Under ICBC’s internal criteria they calculate there are 58,600 active claims that may have accelerated depreciation.  The average value of the accelerated depreciation claims ICBC has paid to date is $3,250.  If you do the math that is nearly $200,000,000 in liability.  But of these 58,600 potential claimants only 0.2% of the individuals are actually pursuing their damages.  This will leave BC’s monopoly auto insurer with a windfall of unpaid claims if the remaining 99.8% of British Columbians don’t pursue their rights.

ICBC’s internal criteria for when they think an accelerated depreciation claim exists is as follows:

  1. The vehicle owner claiming depreciation is not at fault for the crash.
  2. Vehicle is five model years or newer at time of loss.
  3. Vehicle damage must exceed $2,000.
  4. No previous vehicle damage claim greater than $2,000.
  5. Vehicle must be repairable (not a total loss).

The actual law of accelerated depreciation is far broader than ICBC’s own criteria.  That being said, if you are one of the 58,600 British Columbians with an active ICBC claim which arose before May 1, 2021 that meet the above criteria and want to know how to claim your accelerated depreciation contact me.   I welcome hearing from each and ever one of you!  These damages can be recovered and they can be recovered in cicrumcstancs far broader than ICBC tends to acknowledge in negotiations.  There are time limits for making these claims so don’t hesitate to contact me to learn your rights before the clock runs out.

ICBC Hit With Special Costs Award For “Reprehensible” Lawsuit Tactics

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, finding ICBC is liable to pay special costs for ‘reprehensible’ conduct in litigation.

In the recent case (Zhang v. 328633 BC Ltd) the Plaintiff was injured while riding as a passenger in a bus.  A truck driver made an unsafe lane change in front of the bus.  This caused the bus driver to brake forcefully throwing the plaintiff from her seat leading to multiple injuries.  The truck driver did not remain at the scene of the incident and was unknown.  The Plaintiff sued both the bus driver and ICBC as a statutory defendant in place of the unidentified truck driver, a legal remedy available under s. 24 of the Insurance (Vehicle) Act.  ICBC had video evidence from the bus as to what actually occurred but failed to produce this for years.  They also denied that a s. 24 claim existed until deep into the trial.

The bus driver was not paying adequate attention at the time and the court found both the bus driver and truck driver shared liability.

As a result of ICBC’s late production of crucial evidence and unreasonable denial as to the merits of the s. 24 claim the presiding judge found ICBC should pay special costs.  In reaching this conclusion Mr. Justice Branch provided the following reasons:

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Court Tells Bikers its an Abuse of Process Denying Civil Liability Following Criminal Conviction

If you’re charged with a crime and plead guilty, or are found guilty to the criminal standard of ‘beyond a reasonable doubt’, it is generally considered an abuse of process to deny fault when sued for the same underlying conduct based on the lesser civil standard of ‘balance of probabilities’.  Two members of a motorcycle club learned this lesson the hard way.

In the recent case (Thatcher v. Lowe) the Plaintiff sued several defendants for assault, battery, intentional infliction of mental suffering and false imprisonment following a 2016 confrontation.  Prior to this defendants were charged criminally and plead guilty.  The court summarized the following key facts from the guilty plea:

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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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