Author: ERIK MAGRAKEN

BC Court Of Appeal Splits on Civil Resolution Tribunal Constitutionality

Just over a year ago the BC Supreme Court struck down various laws giving the Provincial Civil Resolution Tribunal jurisdiction over certain collision claims as unconstitutional.

Today the BC Court of Appeal overturned the judgment but in doing so the highest court in the province was split.

The majority found that the law was in bounds and granted the Government’s appeal.  Madam Justice Bennett issued dissenting reasons finding that the Province was undermining the uniformity and unity of the Canadian judicial system.  Given the split there is a good chance all the legal dust over the fate of this questionable law will not settle until the Supreme Court of Canada weighs in.  Time will tell if the appeal is headed there.

The full reasons can be found here (TLABC v. British Columbia) with the Court publishing the following headnote summarizing the majority and dissenting opinions:

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Proposed Class Action Lawsuit Filed Against Gymnastics Canada For Alleged Athlete Abuse

A lawsuit was filed today in the BC Supreme Court, Vancouver Registry, seeking to be certified as a class proceeding (commonly referred to as a class action) hoping to represent many gymnasts for suffering alleged physical, emotional and other harm in their sport.

In the lawsuit the Plaintiff, a former BC gymnast, alleges that in years of gymnastics she was exposed to physical abuse including

(a) routine over conditioning, including forced over stretching;
(b) routine hyper extension of the knees by coaches forcibly sitting on athletes’
knees;
(c) forcing athletes to perform skills while injured;
(d) forcing athletes to perform skills beyond their capabilities;
(e) directing and requiring athletes to maintain an unhealthy weight;
(f) inappropriate physical contact, including …having athletes run into 
arms and straddle his waist; and,

g) inappropriate physical contact, including …hiking athletes’ suits
higher on an athlete’s legs, hips and buttocks revealing their inner thighs
and buttocks.

Allegations of psychological abuse including:

(a) public berating, yelling and humiliation;
(b) verbal abuse and bullying, including statements such as “are you stupid?”;
(c) body shaming, including public weekly weigh-ins which were often
accompanied by verbally abusive and humiliating statements such as “what
have you been eating?” or “too many cookies this week?”;
(d) controlling and manipulative behaviour which included ignoring athletes
during training and competitions;
(e) depriving athletes of necessary instruction, spotting, assistance and
coaching;
(f) prohibiting parents from attending or observing practice; and,
(g) explicitly instructing athletes to not tell their parents what happened at
practice.

The lawsuit says the Plaintiff suffered harm from these practices, that many other gymnasts did as well from similar practices and the that the sports organizing bodies (Gymnastics Canada and various provincial sporting organisations) turned a blind eye to systemic problems in the sport and should be liable for the harm.

None of the allegations have been proven in court.  The Defendants have still have time to formally respond to the allegations.

The lawsuit claims that the sport organizing bodies should be liable under the legal principles of Systemic Negligence, Breach of Fiduciary Duty and Vicarious Liability.

Presently only one plaintiff is formally involved in the filed lawsuit but hopes to certify a very broad class covering

All gymnasts resident in Canada who claim that they were physically, sexually,
and/or psychologically abused while participating in Gymnastics Canada,
Provincial Member Organization, or Member Club programs, activities, or
events between 1978 and the present

In recent months many allegations were made from current and former athletes in a variety of organized sports in Canada including not just gymnastics but also boxing, synchronized swimming, rugby, rowing and others.

This lawsuit likely will not be the last flowing form similar allegations across many sports.  There will be challenging times, both in and out of court, for provincial and national sport organizing bodies in Canada flowing from these ever growing lists of allegations.

Boxing Canada Called Out For Ignoring Concussions

(Article originally published at my sister site CombatSportsLaw)

This week an open letter endorsed by 121 current and former athletes, coaches and officials of Boxing Canada called out the National Sport Organization and monopoly of amateur boxing in the country for various practices. The letter was republished with permission by Global Athlete and is the latest of a series of complaints critical of amateur sport organizations in Canada.

Among the serious complaints levelled were allegations that the organization forced athletes to put up or shut up when it came to poor practices regarding brain health. The letter notes as follows:

the High-Performance Director has forced athletes to train or compete in unsafe environments. Athletes have been forced to spar with clear signs of concussions or against teammates with significant weight class disparities, both of which were extremely unsafe. Athletes were forced to put up with the status quo if they wished to remain in the sport.

As a lawyer with nearly 20 years litigation experience in Canada let me give sports organizers, boxing or otherwise, food for thought – Sports organizers need to take these complaints seriously.

Taking athlete brain health (and health generally) is imperative. Coaches exist to get results but results can’t be prioritized ahead of athlete well being.

Concussion protocols exist for a reason. Ignoring these can expose a coach to civil litigation. Negligence law in Canada is robust and flexible. A coach ignoring a concussion and exposing an athlete to more brain damage contrary to established concussion protocols can be labile for any new injury. In fact the coach may even become liable for the entire injury (the initial concussion and its aggravation) under the principles of ‘indivisible injury’. You need not take my word on it, there are many examples of these legal principles alive and well in our courts.

If you are relying on waivers in many parts of Canada youth cannot waive the right to sue. Often waivers are not worth the paper they are written on.

If Sports Organizations (PSO’s and NSO’s) are turning a blind eye to systemic wrongdoing the accountability may go right up the food chain under the principles of vicarious liability.

Athlete health matters. Seeking the glory of results should never come at the price of athlete health and safety. If practices like those alleged in the open letter to Boxing Canada don’t change for the sake of doing the right thing then they should change out of a sense of self preservation.

Soccer Coach Sued For Allegations of Injury After Not Following Concussion Protocols

Interesting reasons for judgement were recently published by the Supreme Court of Nova Scotia allowing a lawsuit to continue against a youth soccer coach based on allegations that she made a concussion worse by allowing an athlete to continue playing contrary to concussion protocols.

In the recent case (Rutt v. Meade) the Plaintiff was injured in a vehicle collision and sued for damages.  The alleged injuries included a concussion.

A few weeks after the crash the Plaintiff  played in a national soccer tournament for her club.

The Defendants in the car crash lawsuit brought a third party action against the soccer club and the coach arguing it was negligent to allow the Plaintiff to play soccer while she was still dealing with concussive injuries from the crash and that participation in sport was contrary to the established concussion protocols and this added to her prolonged injury.   The coach and club asked to be let out of the lawsuit arguing they could not be responsible for the concussion which was caused by the car crash.

In denying the application and allowing the third party claim to continue the Court noted that depending on how the facts play out a coach could be found legally liable in such circumstances.  In allowing the claim to proceed  Justice Gail L. Gatchalian provided the following reasons:

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Ontario Court Creates The “Tort of Family Violence”

Late last year a BC Supreme Court decision illustrated the fact that civil consequences for domestic violence can sometimes greatly outweigh even criminal consequences in a case where over $800,000 in damages were ordered to be paid.

This month the judiciary in Ontario blazed new legal ground by creating the tort of “family violence”.

In the recent case (Ahluwalia v. Ahluwalia)  the parties were involved in divorce proceedings following a violent marriage.  Over and above  the typical payments for spousal support the Court created the tort of ‘family violence’ and ordered $150,000 in damages to be paid for this wrong.  In creating this new tort the Court provided the following reasons:

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ICBC Policy of Ignoring Friends and Family Witnesses Rejected by Civil Resolution Tribunal

ICBC has a terrible habit of ignoring evidence from friends and family members of crash victims.  If you are involved in a crash ICBC may tell you that your passengers (and any other friends and family members) that witnessed the crash are not true witnesses because of their relationship to you.

This is dead wrong.  Today we received reasons for judgement from the BC Civil Resolution Tribunal confirming this policy is nonsense.

Today’s case dealt with fault following a crash.  The parties gave differing accounts of how the crash happened. Worse than that the Respondent motorist asked the claimant to lie when reporting how the crash happened to ICBC to keep the Respondent out of trouble.  Despite this and despite an independent witness confirming the crash happened as the Claimant reported ICBC refused to find the Respondent fully at fault finding the witness was friends with the respondent therefore his evidence was of no value.  In rejecting this position as legal nonsense the BC Civil Resolution Tribunal published the following useful reasons that British Columbians should keep handy if faced with ICBC’s wrong policy:

ICBC argues that no weight should be placed on AW’s evidence because of his friendship with (the claimant).  This submission apparently reflects a common ICBC practice to refuse to consider evidence from a party’s family or friends.  This does not reflect the law of evidence or the CRT’s practice which routinely weighs evidence from witnesses with relationships to a party

The CRT went on to find the witness was reliable, that the Respondent was not, and overturned ICBC’s decision and found the Respondent fully at fault for the crash.

 

Nearly $800,000 In Damages Assessed Following Domestic Violence Leading To Physical And Psychological Injuries

Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, demonstrating that civil litigation can be an important tool to help achieve justice following physical assault where criminal repercussions alone fail to address harm caused.

In the recent case (Schuetz v. Pyper) the Defendant battered the Plaintiff is a domestic incident.  He was charged with criminal assault and plead guilty but was sentenced to an absolute discharge.  The civil repercussions, however, were far heftier.

Both parties sued each other claiming battery.  The Defendant’s claims were dismissed and the Plaintiff’s accepted.  It was found that the domestic battery led to a host of physical and psychological injuries.  These were summarized by the Court as follows:

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$99,000 Award Ordered After BC Store Owner Offers Employee Cash For Sex

An employer offered an employee cash for sex.  She declined.  The employer subsequently fired her.  The complainant initiated a Human Rights action where the Tribunal found improper sexual harrassment took place and ordered nearly $99,000 in total damages.

In the recent case (Ms. K v. Deep Creek Store and another, 2021 BCHRT 158) the Tribunal made the following broad findings of fact:

In this case Ms. K was 21 years old when Mr. Joung hired her to work for him at his
convenience store. As Ms. K’s much older, male boss, Mr. Joung misused his power to sexually
harass Ms. K. When Ms. K attempted to resist this sexual harassment, Mr. Joung made matters
far worse by creating a hostile work environment, and then firing Ms. K. After Ms. K filed a
human rights complaint related to this treatment, Mr. Joung set out to harass and intimidate
her by trespassing at her home in the middle of the night.

The Tribunal found the following legal wrongs were proven:

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“Biased” ICBC Expert Report Excluded From Evidence

Reasons for judgment were recently published by the BC Supreme Court, Vancouver Registry, ordering that an ICBC expert’s report was biased and not admissible at trial.

In the recent case (Didyuk v. Redlick) the Plaintiff was involved in three motor vehicle accidents and was claiming damages.  In the course of the lawsuits ICBC used their power to send the plaintiff to an independent medical exam.  This resulted in their expert authoring a report making numerous negative comments about the plaintiff’s credibility.  In finding that expert was outright biased and not allowing the report into evidence Madam Justice Ahmad provided the following reasons:

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Welcome To Our Team Jessica!

MacIsaac & Company is pleased to announce the latest addition to our team of litigators!

Jessica is an experienced trial lawyer specializing in civil sexual assault claims. She has exclusively represented plaintiffs since the start of her career. She has appeared in all levels of court in BC.  Jessica is an empathetic advocate who is inspired by the power and courage of her clients. She works with her clients to explore out of court resolutions when appropriate, but she is also a fierce and passionate litigator who truly enjoys going to court to advocate for her clients’ rights.

Jessica is the latest lawyer to join MacIsaac & Company’s “80% Associate Counsel Career” serving clients Province wide from Vancouver.

We are aggressively expanding under this unique program. Not limited to injury lawyers. We are looking for –

Family lawyers

Immigration lawyers

Employment lawyers

Criminal lawyers

Mediators/Arbitrators

Estate Litigators

And more.   If you think you would be a good fit with our rapidly growing firm contact us today!

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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