Author: ERIK MAGRAKEN

Thank you CBC News For Helping Spread Brain Health Awareness in Combat Sports

One of my responsibilities is volunteer work with the charitable organization Fighting Foundation.

Fighting Foundation is helping bring education, resources, research and other services to the combat sports community.  One of the projects we’ve been advocating for in recent months is brain health awareness for combat sports gyms and practitioners.  There is encouraging data that better educated fighters sustain less long term brain harm.

We teamed up with the Association of Ringside Physicians (the best combat sports doctors from around the world) and together created posters sharing key messaging about CTE and concussions for fight gyms.  We are looking to bring this information to gyms around the world.

Thank you CBC news for highlighting this work on numerous of your platforms this week.  Below are some of the clips for those interested along with links to our brain health knowledge posters for gyms.

Link to interview with Gloria Macarenko

Link to CBC News article.

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Only 6% of polled combat sports coaches had adequate brain health knowledge.

Let’s get that to 100%.

This link will take you to high resolution PDF files of the posters co-created by Fighting Foundation and the Association of Ringside Physicians. (The CTE poster has two options to choose from, one with all the information on one page and one where it is spread over two pages).

Please print them.

Post them in your gym.

Take a pic and share on social media with the hashtags #BrainHealthMatters #FightingFoundation and tag your gym as well!

Let’s get these into as many gyms as possible!

 

 

BC Child Protection Agency Ordered To Pay Over $150,000 Damages For Human Rights Violation

The below guest post authored by MacIsaac & Company’s Human Rights lawyer Kayla Bergsson

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In a recent decision, the BC Human Rights Tribunal held that an Indigenous mother was discriminated against in her interactions with a child protection agency that retained custody of her children and strictly restricted her access to them for nearly three years. The mother was awarded $150,000 as compensation for injury to her dignity, feelings, and self-respect. This is the second highest award under this category in the tribunal’s history.

Governments in what’s now called Canada have interfered with the relationships between Indigenous caregivers and their children for generations. First, governments, police, and churches forcibly removed children from their homes and families and brought them to residential schools. Then there were the Sixties and Millennium Scoops. Indigenous children in care continue being overrepresented and underserved.

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ICBC “No Fault” Paying British Columbians Less, and ICBC More!

Remember when ICBC, Dave Eby and the NDP government launched a multi million dollar marketing campaign promising British Columbians they are bringing ‘enhanced care’ to ICBC and how much more crash victims will be getting?

Well, turns out that was none of it was true.

Crash victims are getting less under no-fault.  A lot less.  Data is out showing ICBC is paying crash victims 30% less than prior to ‘enhanced care’ despite there being more crash victims than ever!

But ICBC getting more.  They are paying themselves more than actual crash victims!  Paying yourself more to give crash victims less.  Quite the monopoly.

Data was published this week by the Insurance Bureau of Canada shedding a light on the truth of what no fault is.  I republish it below.  It speaks for itself:

VANCOUVER, BCNov. 3, 2022 /CNW/ – New data from the first year of the Insurance Corporation of British Columbia (ICBC) “Enhanced Care” no-fault regime shows that the Crown insurer’s operating expenses exceeded what it provided in injury claims by $173 million in 2021/22.

According to its 2021/22 year-end financials, the switch to a pure no-fault system has allowed ICBC to reduce what it provides to accident victims by 30%. This, despite the fact that collisions were up significantly over that same time period.

In 2020/21, the year before no-fault came into effect, ICBC paid out $2.11 billion in injury claims to help individuals recover. In 2021/22, under the first year of no-fault, claims paid fell to $1.48 billion. In contrast, last year ICBC spent $1.62 billion in operating costs. 

“The purpose of auto insurance is to ensure that people get the benefits they need to recover from injuries sustained in an accident,” said Aaron Sutherland, Vice-President, Pacific and Western, Insurance Bureau of Canada (IBC). “ICBC’s dramatic reduction in claims costs calls that key tenet of insurance into question. Rather than focusing on improving its own internal operations to find efficiencies and savings for drivers, it’s appears that ICBC is balancing its books by reducing what it provides to those injured in collisions.”

Over the past year, there has been a constant stream of media coverage detailing the plight of those injured in auto accidents in BC. It’s clear that those who are seriously injured deserve legal recourse if they are not receiving the benefits they need to recover. It also strengthens the argument that drivers deserve a choice and the ability to shop around to find the auto insurance policy that is best for them.

“This reduction in care and recovery benefits illustrates the painful truth about ICBC’s no-fault model, and those injured are suffering the consequences,” said Sutherland. “Now, more than ever, drivers need a choice to ensure they are receiving the best insurance at the best price possible.”

Over the coming weeks, IBC will continue to highlight the uncomfortable truth about ICBC and its new no-fault model. ICBC’s own data clearly shows that the monopoly insurer has focused on reducing the amount it pays in benefits to help drivers recover, while ignoring its own internal problems and passing undue costs on to British Columbians. 

Court Sets Mileage Special Damage Rate at $0.60 per Kilometer in ICBC Claim

Inflation is real.  Reasons for judgment were published this week by the BC Supreme Court, Vancouver Registry, helpfully setting mileage at $0.60 per kilometer in an ICBC claim.

In the recent case (Trafford v. Byron, 2022 BCSC 1896) the plaintiff was involved in a tort claim preceding the current no-fault era.  Madam Justice Wilkinson provided the following helpful reasons for the current fair calculation of mileage as a special damage in such claims.

[121] The plaintiff asks the court to take judicial notice that the cost of operating a
vehicle has increased since the $0.50 rate was recognized in Grewal-Cheema v.
Tassone, 2010 BCSC 1182 at para. 60. The rate of $0.50 has been applied in a
number of decisions of this Court as recent as 2018 as referred to me by the plaintiff.
The plaintiff’s treatments were in 2021 and 2022. I agree with the plaintiff that it is a
notorious fact that automobile fuel costs and the price of vehicles generally have
increased since 2018. In particular, in 2021 and 2022 fuel costs have significantly
increased such that $0.50 does not reflect reality. Without more evidence, I will set
the rate at $0.60 per kilometre. This award will be $200.30.

Precedent – Previous Crash Damage Not a Barrier To ICBC “Accelerated Depreciation” Claim

BC’s monopoly auto insurer, ICBC, loves to deny accelerated depreciation claims (“AD”).

In short when a vehicle is damaged in a crash it often suffers a loss of market value, even after all reasonable repairs are done.  This is called AD.  ICBC routinely chooses to ignore this reality when dealing with crash victims and raises invalid arguments trying to deny such claims.  One of their favourite talking points is saying if a vehicle had a previous crash it could not possibly suffer a further AD.  This week the BC Civil Resolution Tribunal released reasons for judgement soundly rejecting this argument.

In the recent case (Yeung v. Izadi, 2022 BCCRT 1060) the Plaintiff owned a Tesla which was involved in a crash caused by the Defendant (and insured by ICBC).  The crash resulted in over $20,000 in repairs.  After repair the Plaintiff obtained appraisal evidence that the vehicle now had thousands of dollars in diminished AD value.  ICBC refused to pay arguing that the vehicle, which was involved in 2 previous collisions themselves resulting in thousands of dollars of repairs, could not possibly sustain further AD.

The Plaintiff sued and succeeded in having damages for AD awarded.  In doing so BC’s Civil Resolution Tribunal found there is no reason why an already depreciated asset from damage cannot be further depreciated by further damage.  In awarding damages for the claim Tribunal Member Nav Shukla provided the following sensible reasons:

It is undisputed that the Tesla’s repairs before the accident did not involve structural damage.  Both experts agreed that the accident caused structural damage and that structural repairs impact a vehicle’s depreciation.  However, although Keith Jones said that structural damage was a factor to consider in determining accelerated depreciation, they did not explain why the change in the Tesla being previously free of structural repairs and now having had structural repairs did not result in some accelerated depreciation.  As noted above, Mr. Scarrow specifically discussed the structural damage in their report and noted that the repairs eliminated the Tesla’s previous state of being free of structural repairs.

On balance I find Mr. Scarrow’s report better explained the importance of the factors they relied on to determine the Tesla’s pre and post accident values and so I give their report more weight.  Based on Mr. Scarrow’s evidence I find the Applicant has proven that the Accident has caused accelerated depreciation to the Tesla.

Now the postscript – BC’s new No Fault system has taken away the rights of crash victims to claim for accelerated depreciation.  But crash victims with ongoing claims that pre-date the No Fault laws (or ‘enhanced care’ as ICBC’s multi million dollar marketing campaign calls it) can still benefit from this precedent.

Booze Companies Should Slap Warning Labels On Their Product ASAP

Alcohol is classified as a Group 1 carcinogen.  Like tobacco it is known to cause cancer in humans.  But the industry is silent about this.

This week the Canadian Centre on Substance Use and Addiction published updated guidelines on the safe consumption of alcohol. The short version is less is better.

These guidelines point to data of alcohol causing several types of cancer along with heart disease.

Tobacco companies were forced to put warning labels on their products.  The alcohol industry, on the other hand, is quiet as could be on the subject.

If government intervention won’t force them to do something perhaps civil litigation could.

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ICBC Backs Down on Potential Limitation Period Showdown With Crash Victims

BC’s vehicle insurance landscape is currently in a mess.  There is a Civil Resolution Tribunal that may be unconstitutional.  Some crash victims still have the right to sue the at fault motorist that injured them.  Some are caught in a period of time where they can still sue but deceptively labelled ‘minor injuries’ have capped damages.  The constitutionality of that law is being questioned in ongoing litigation.  Some crash victims have no right to sue at all.  The constitutionality of that law is being questioned.  Clear as mud?

Things are, in a word, complex.

One complexity now has a bit more clarity. This is not east to explain succinctly but let me give it a shot.

Crash victims after April 2019 – May 2021 have the right to sue.  They can get pain and suffering.  If their injuries are deemed ‘minor’ their pain and suffering is capped at about $5,500.   If the victim sues in BC Supreme Court and the at fault motorist (almost always insured by ICBC) claims the injuries are minor they can seek an application that the claim be diverted to the Civil Resolution Tribunal.

Because of the pandemic there has basically been a one year extension of the time limit to sue in BC Supreme Court.  The BC Civil Resolution Tribunal gave no such courtesy.  So in short a crash victim can sue in time in BC Supreme Court, ICBC can hypothetically seek to dismiss the lawsuit and ask that it be ordered to be restarted at the CRT.  If a court grants such an order the victim only has a few weeks to start the proceeding there.  But what if the claim is beyond two years at the time this happens (the typical limitation period)?  Can they refile in the CRT or are they out of time?  The BC Government, in all their efforts to stack the deck of the auto insurance system in ICBC’s favour, did not bother clarifying this.  It is unclear what the ultimate outcome would be (though there are strong arguments as to why the re-filing should be allowed, I’ll save those for another day).

ICBC has decided to back down and not raise this issue.  A letter was sent by counsel for ICBC to counsel for plaintiffs in some of the ongoing constitutional challenges where the Crown Corporation agreed to back down.  I’ll let the letter speak for itself.  Specifically ICBC’s Director Claims Programs & Strategy says that

The context of particular concern involves actions that were commenced within time in the BCSC but are brought
to the CRT outside of the applicable limitation period. You ask whether in that context, ICBC insured defendants will take the position that the Limitation Act applies to the commencement of the claim before the CRT. We confirm that to date ICBC has not, and going forward will not,
instruct counsel representing ICBC-insured defendants to rely on a Limitation Act defence in that context.

A small bit of clarity in a brutally complex legal landscape.

 

 

Study Finds “Conclusive Evidence” Repetitive Head Impacts Cause CTE

Correlation Does Not Equal Causation.

Sometimes things are related. But it does not mean one is caused by the other. Science moves slowly and cautiously and now a study has been published taking the important step saying repetitive head impacts in fact “cause” CTE.

A research paper, published in Frontiers of Neurology titled Applying the Bradford Hill Criteria for Causation to Repetitive Head Impacts and Chronic Traumatic Encephalopathy, makes this important assertion.

In the paper the authors applied the Bradford Hill criteria to the medical literature dealing with CTE and repetitive head impacts. These criteria “provide a framework to determine if one can justifiably move from an observed association to a verdict of causation“.

In applying this criteria the authors “found convincing evidence of a causal relationship between RHI and CTE, as well as an absence of evidence-based alternative explanations“.

The authors published the following conclusions which have widespread implications spanning areas such as public health policy, sports regulation and even litigation.

The evidence on the link between RHI and CTE is imperfect, and like all similar research, it will remain imperfect in perpetuity. After reviewing the medical literature on RHI and CTE through the Bradford Hill criteria, we have the highest confidence in the conclusion that RHI causes CTE. We encourage the medical, scientific and public health communities to now act under the premise of a causal relationship and take immediate action to prevent CTE, minimize risk, and develop therapeutics to slow or stop disease progression.

To accomplish this, we must make greater investments in research to better understand the mechanism of CTE and develop biomarkers to diagnose CTE in vivo and measure the effect of interventions. We need to accelerate research to advance our limited understanding of the role of genetic and non-genetic risk factors and risk modifiers in CTE outcomes, anatomic location, symptomatology, progression, and severity.

Additional research will inform prevention and therapeutic strategies for the hundreds of millions of individuals worldwide already exposed to RHI and at risk of developing CTE. However, while we call for more research, we also believe that the strength of the current evidence compels us to move past a scientific discussion focused solely on filling gaps in the evidence to focus on immediately implementing aggressive CTE mitigation programs, especially for children.

We support measures to minimize and eliminate RHI as the best action for preventing CTE. We encourage awareness efforts so parents, athletes, and policymakers can better understand the risks associated with RHI, change how games are played to reduce or eliminate RHI – especially for children – and make more informed decisions regarding participation in contact sports.

Finally, we encourage the medical, scientific, and public health community to reflect on the risks of RHI to children, a vulnerable population that cannot provide informed consent to participate in activities that may cause a preventable neurodegenerative disease. We can, and should, do what is possible to prevent children from developing CTE before they can possibly understand how CTE might impact their future.

Court Challenge Filed Against Arguably “Unconstitutional and Hence Illegal” ICBC No Fault Scheme

BC’s Attorney General has one heck of a track record when it comes to trying to strip the rights of British Columbians in favour of the provincial monopoly auto insurance corporation ICBC.  To date the Courts have not been particularly impressed with these “thinly veiled” attempts to take away the public’s rights to “improve the finances of ICBC”.

In 2019 the AG amended the rules of court without input from the profession to set a hard cap on how many expert witnesses a crash victim can use in trying to prove their case.  This was struck down as unconstitutional.

The government did not learn their lesson and tried to stack the BC Supreme Court system in ICBC’s favour by setting a 6% cap on disbursements plaintiffs can recover by way of a regulation under BC’s Evidence Act.  This was struck down as being contrary to administrative law principles and also being unconstitutional.

The Attorney General is also behind a scheme trying to take most cases away from federally appointed judges in the BC Supreme Court and using a provincial tribunal as a gatekeeper of who can go to court.  This has been declared unconstitutional by the chief justice of the BC Supreme Court with the BC Court of Appeal split on its constitutionality with the Supreme Court of Canada likely being the final arbiter of this law’s fate.

Now the BC Attorney General’s latest attempt to take away British Columbian’s rights is being challenged in new litigation.

Earlier this month Schober v. BC (AG) was filed in the BC Supreme Court.  The Plaintiff, Schoeber, was left paralyzed as a result of a vehicle collision.  His right to be properly compensated for his losses has been taken away by laws backed by BC’s Attorney General.  The law, in essence, took almost every crash victim’s right to sue negligent drivers away for collisions after May 1, 2021.  Schoeber, like an ever growing list of British Columbians, was caught by this time frame and is stuck with the payments ICBC agrees to give him and nothing else.  Schober argues having his right to full compensation being stripped coupled with having his rights to meaningfully challenge ICBC’s decisions in BC Supreme Court amounts to an “unconstitutional, and hence illegal” move by Legislative Assembly of British Columbia.

Schober advances two broad arguments.  He alleges these laws violate s. 15 of the Charter of Rights and Freedoms (a law that guarantees the protection of equality rights of Canadians including the right not to be discriminated against based on mental and physical disability) and further amount to an unconstitutional flex of the Province’s powers beyond what s. 96 of the Constitution Act allows (the law that sets the separation between the powers of Provinces vs the Federal Government).

The following short summary of the legal claims are plead:

(these laws) “are discriminatory: they reinforce, perpetuate and exacerbate the disadvantage of people disabled in vehicle accidents, by entrenching the economic impact of their disabilities and denying legal recognition to their pain and suffering. The discrimination brought about by the scheme is not demonstrably justified in a free and democratic society. It is a violation of s. 15 of the Canadian Charter of Rights and Freedoms (infra) that is not saved by s. 1.

Under the CRTA, the Supreme Court of British Columbia is substantially precluded from interfering with decisions made by the CRT under the auspices of its Review Power. The result is simple: under this scheme, it is the government that polices the government, when the rights of victims hang in the balance. And that self-policing comes about by way of unconstitutional ouster of the court: the CRT possesses a power exclusively within the purview of the superior court, and, by also precluding claims via the Claims Bar, in its totality the scheme encroaches upon the core jurisdiction of the superior court, in violation of s. 96 of the Constitution Act, 1867.”

The fate of these latest laws is not yet known.  Time will tell.

The full court filing can be found here Schober v BC(AG)

Latest ICBC Attempt To Stack Court System in Their Favour Declared Unconstitutional

This week the BC Supreme Court struck down regulations limiting the amount of disbursements a party can claim when prosecuting an ICBC claim as being both unconstitutional and contrary to administrative law principles.

By way of background, the current BC Government has taken many steps limiting the rights of BC crash victims in order to grow ICBC’s bottom line.  This culminated in full blown ‘no fault’ insurance taking away the rights of crash victims to sue those that injure them except in the most limited of circumstances.  There are many active claims, however, that pre-date the no-fault era and the Government has been trying their best to limit the rights of those victims in their disputes with ICBC.

In 2019 the BC Supreme Court found a rule limiting how many expert witnesses a plaintiff could rely on to be unconstitutional.  After this loss the BC Government took another kick at the can passing a regulation under the Evidence Act saying plaintiff’s could only recover disbursements totalling 6% the value of their claim in an ICBC fight.  This made crash victims face the unwelcome choice of either not bringing sufficient evidence to court or knowing that if they do they may not have the right to recover the costs of doing so.  Mr. Justice Smith presided over the challenge to this regulation in Le v. British Columbia (Attorney General) and this past week provided reasons striking it down both on administrative law and constitutional principles.  In doing so Justice Smith provided the following comments on the regulation:

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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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