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Author: ERIK MAGRAKEN

Intimate Image Claims Worth “Considerably More” Than $5,000

The first precedent has been handed down invoking BC’s new Intimate Images Protection Act.  In short the legislation makes it unlawful to share intimate images of another person without their consent.  Even if you initially obtained the images consensually.  The law is broad in its reach.

The law allows civil claims to be prosecuted in the Civil Resolution Tribunal, Provincial Court, or Supreme Court.  Choosing the CRT is faster, cheaper and easier.  But the CRT has a limit of $5,000 in damages in these types of claims.  In today’s case the CRT found that these cases, once liability is established, are worth ‘considerably more’ than their limit so awarding the $5,000 seems to be a default damage assessment in that venue.

In the recent case (BDS v. MW) the applicant shared semi nude images of a sexualized nature with the respondent.  The respondant shared these with another without the applicant’s consent.  The key facts and findings were as follows where the CRT provided some worthwhile comments on the definition of what constitutes an intimate image along with damage assessments:

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ICBC Ordered To Pay Over $400,000 After Denying Widow Death Benefits Following Fatal Crash

Reasons for decision were published last week by the Civil Resolution Tribunal ordering ICBC to pay over $400,000 in benefits and interest after finding they wrongly denied a widow spousal death benefits following a fatal collision.

In the recent case (Dion v. ICBC) the Applicant’s spouse died in a motorcycle collision in 2022.  The Applicant applied for the spousal death benefit but ICBC refused to pay arguing that they were living separately at the time of the crash and therefore no longer spouses as defined in the applicable regulation.

Vic Chair Eric Regehr found that ICBC was wrong in denying the benefit and found that the Applicant was still the Defendant’s spouse despite them living separately.  In doing so the Tribunal provided the following reasons noting living together is not a requirement under section 45(b) of the regulation:

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BC Supreme Court Judge “Unable to Presume That ICBC Will Conduct Itself Honourably Moving Forward”

Pointed reasons for judgment released this week by the BC Supreme Court showed just how poorly ICBC fulfilled their obligations to an individual they insured despite making promises to the court that they will be fair.  Madam Justice Murray noted she is “unable to presume that ICBC will conduct itself honourably moving forward“.

Here is the context. In the recent case (Taylor v. Peters) the Plaintiff suffered serious injuries in a 2017 crash.  She was not at fault.  Back then BC crash victims still enjoyed the right to sue for proper compensation.  At trial the plaintiff was awarded $407,000 in total damages.  ICBC, the insurer for the at fault driver, could deduct from the award any money the Plaintiff could receive from them directly as a Part 7 benefit.  ICBC asked the court to reduce the award by over $141,000 arguing they “will irrevocably, unequivocally, and unconditionally agree to pay the plaintiff, for the items awarded by the court in the Cost of Future Care section in the Reasons for Judgment“.  They filed an affidavit with the court making this promise.

Despite this promise ICBC time and again failed to pay the Plaintiff benefits the court found were needed as future care costs.  ICBC’s own lawyer admitted to the court “that ICBC has failed to handle Ms. Taylor’s claim appropriately but submits that starting now they will do so“.  The court had no time for this promise.  Instead the court found that ICBC’s past actions were the best predictions of their future behavior and refused to give the Defendant/ICBC the substantial deduction from the award.  In doing so Madam Justice Murray provided the following pointed comments:

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Help Needed After Tragic Brain Injury From BC Kickboxing Bout

 

This week CBC covered a sad story of a young PhD student studying at UBC who suffered a likely permanent brain injury from what was advertised as a ‘light’ and ‘controlled’ contact kickboxing bout which was hosted at Simon Fraser University.

Zhenhuan Lei is likely in a permanent vegetative state.  His mom, Ying Li, has been appointed his committee and commenced litigation.

Our firm is representing the family in this litigation and I will not comment publicly on the case.

That said I am happy the case has received media attention as Zhenhuan Lei’s medical needs are profound.

We have started a GoFundMe which already has been integral in providing assistance to the family and helped them cover part of the medical flight to bring Zhenhuan Lei back to China.  That flight alone cost $100,000 of which Ying Li had to pay $30,000.

If you can donate to the fundraiser your assistance is greatly appreciated.  If you can take a moment to share it that too is appreciated.

The GoFundMe can be found here.

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Update

Ying Li has released the below public statement. I reproduce it here in full so you can hear from her directly and know this is who you have helped with your contributions. (please note this statement is from a week ago and he has since been successfully flown back to China).

Thank you everyone for all of your support. It is very much appreciated.
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My son has been studying and living in Canada for five years. He is a cheerful, handsome, and kind young man who loves life. He diligently studies and works, often conducting experiments until late at night. He once told me that life only affords a few chances.

Suddenly, one morning, a news struck my family. In China, I received a call from a Canadian hospital informing me that my son was in a severe coma and needed surgery to avoid losing his life. Even with the surgery, there was no guarantee of saving him. They sought my decision on whether to proceed with the operation. Tearfully, I consented, desperately hoping for his survival. The surgery was successful, thanks to the exceptional skills of Canadian doctors, the meticulous care of the nurses, and his resilient vitality. He faced numerous dangers, overcame many obstacles, and reached his current state.

Ten days after the incident, with the assistance of the Chinese embassy and the Canadian immigration office, I arrived in Canada. It has been four months, and I feel as if I have experienced a death and am physically and mentally exhausted. I can’t comprehend how a well-behaved child, who participated in an entertainment competition, had his life changed so drastically. A promising life of a future scientist, an ambitious young man, has now turned into lying in a hospital bed every day and staring at the ceiling. I don’t know what he’s thinking, whether he harbors resentment, regrets, or frustration about participating in that life-altering competition.

After calming down, I must face all the problems that arose from this incident. My son grew up in a single-parent household, and he is my only child. All my efforts have been devoted to him, and raising him to this point has not been easy. Just as he was about to complete his Ph.D., hopes were shattered. Now, I have to embark on another journey, caring for him in the latter part of his life. Medical expenses, rehabilitation costs, family doctor fees, nursing expenses, transportation back to China, and more are looming in front of me. However, I don’t know how long I can accompany him. What will happen to him in the future, and who will take care of him? Unfortunately, amidst this misfortune, I am fortunate to have encountered a good lawyer named Erik Magraken, who has sincerely and significantly assisted me. I am deeply thankful for his help and the generous contributions from many kind-hearted people. My heart is full of gratitude.

Now, my concern is the treatment cost if he returns to China. Hiring someone costs 300 yuan per day, totaling 9,000 yuan per month. I don’t have that much money, so I can only take care of him myself. My own health is not good, and I don’t know how long I can care for him. I worry about what will happen if I’m not around, who will take care of him, and I am filled with daily anxiety and despair.

At this point, I just want to return to China as soon as possible for hyperbaric oxygen therapy. Perhaps it can help him regain some abilities. That is the most important thing, even if it’s just a slight improvement, such as being able to eat on his own. Watching him every day, I feel very sad. I am also reaching my limit. I want to go to the emergency room, but I am reluctant to spend money. I need to save money for his plane ticket to return to China for treatment, including hyperbaric oxygen therapy, skull repair surgery, stem cells, and more. Any treatment that might help him, such as acupuncture, massage, and traditional Chinese medicine, has shown benefits for him. So now, not only do I worry about his illness, but I also worry about money. Even if the plane fare is resolved, I still have to worry about the cost of treatment in China. It’s mentally and physically exhausting.

 

We Are Hiring!

MacIsaac & Company is looking for an associate lawyer to join our established litigation practice in Victoria, BC.  Our Victoria office is located on the waterfront at Fisherman’s Wharf in historic James Bay, close to downtown.  We offer a casual, team-oriented and collaborative working environment.

The practice is hands-on by nature and requires some time in the office.  A hybrid work model could be considered.

Three or more years of qualified litigation experience in BC is essential.  Our firm has a large existing caseload and a strong network with lawyers throughout BC and Alberta.  The position involves overseeing direct conduct of a mature caseload of active litigation files, and a willingness to further expand the practice is always encouraged and supported by the firm.

While we are seeking to fill a full-time permanent position, practitioners who are interested in working as an associate counsel on an annual contract basis are invited to apply.

              Compensation:

$100,000 – $175,000 yearly, depending on experience

Apply confidentially using the online form at the bottom of the page here, or send your resume in confidence to: Victoria@macisaacandcompany.com

Intimate Images Protection Act Brought Into Force This Week

The final steps for BC’s innovative Intimate Images Protection Act (“IIPA”) are now complete and the law is set to fully come into force.

On December 18, 2023 Order in Council 725 was published noting that the IIPA will come into force on January 29, 2024.

 

In short this now means that anybody who has had their intimate images distributed without their consent in British Columbia, even if they have previously given consent and later revoked it, now have a new set of legal remedies.

They can apply to various ‘decision makers’ including the online Civil Resolution Tribunal for a takedown order.  They can further sue for non-pecuniary, aggravated and even punitive damages to those who distribute the images without their consent.  Distributors can include search engines like Google and other powerful social media sites such as Facebook, Instagram and X. Those that do so can face serios administrative penalties of up to $100,000 for a failure to comply with a take-down order or de-indexing order under the Act.

As discussed earlier this month the legislation is so broad it even covers deep fakes (like the ones Taylor Swift was targeted with this week).

I discussed this earlier this week on Chek News.  You can click here to read our archived posts and learn more.

If you need legal help with an IIPA claim you can contact us confidentially here.

Targeting “Deep Fakes” Using BC’s Intimate Images Protection Act

The BC Government passed the Intimate Images’ Protection Act into law last year.  In short this legislation gives victims of unwanted sexual and nude images posted online powerful tools to have the content removed and the ability to seek damages against those who fail to respect their wishes.  The law will be live as soon as the government passes the regulations and finalizes the updated Civil Resolution Tribunal rules for these claims.

As deepfake technology rapidly spreads many celebrities and others have found themselves victims of fake sexual or nude images online.  The good news is BC’s Intimate Images Protection Act is broad enough to give a remedy in these circumstances.

The legislation covers “visual simultaneous representation of an individual” if the imagery depicts the person engaging in a sexual act, if they are nude or even nearly nude.   The legislation also applies “whether or not the image has been altered in any way”.

Adding the above together the legislation clearly covers deepfakes.

If you are the victim of unwanted deepfake pornography you can take action now.  The law is retroactive to the day it passed first reading last year.  You can demand that not only the people who created the images remove them from the internet but you can also target bigtech such as Google, Facebook and other “internet intermediaries” to respect your wishes.

When it comes to unwanted sexual or nude content online, even fake images that identify you, the BC Intimate Images Protection Act makes one thing clear, its your body, your choice, even online.

Taxi Driver Negligent For Failing To Secure Seatbelt on Wheelchair Seated Passenger

Reasons for judgement were published last month addressing a key liability question – is a driver of a taxi negligent for not securing a seatbelt on an adult passenger who is in a wheelchair?  The answer was yes.

In the recent case (Stillwell v. Richmond Cabs Ltd.) the Plaintiff was injured while being transported in a taxi.   The Defendant driver helped load the Plaintiff in his taxi and “did not affix the wheelchair seatbelt that would have secured Ms. Stillwell’s body in place.“.  The court found that due to her physical limitations the Plaintiff  “would not have been able to secure the wheelchair seatbelt by herself due to its positioning in the Taxi.

The driver was mildly exceeding the speed limit and following a vehicle before him a bit closely.  Raccoons ran onto the road.  The vehicles stopped suddenly.  No collision occurred.  But the Plaintiff was thrown from her wheelchair suffering serious injuries.

The Defendant denied liability.  However the Court found the driver was negligent both for failing to affix the seatbelt on his passenger and for following the front vehicle too closely which contributed to the sudden breaking.

In finding the defendant negligent the court provided the following reasons:

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BC Court of Appeal Lays Down The Law of Sports Negligence Claims in BC

Today the BC Court of Appeal published reasons for judgement clarifying the law in sports negligence lawsuits in BC.  In short liability can flow if a player is dangerous or reckless in their actions, even if executing an otherwise permitted technique.

In the recent case (Cox v. Miller) the Plaintiff suffered a grade 3 dislocation of the right acromioclavicular joint as a result of a slide tackle in a recreational soccer game.  The game was under FIFA rules in which slide tackles were allowed.  At trial the Defendant was found liable with the court finding he approached the Plaintiff from a blind spot, had both his feet leave the ground and violently slide tackled the Plaintiff while having no chance of actually contacting the ball.  The court found doing so was negligent.  Noting that while slide tackles were legal this particular slide tackle was dangerous, reckless and beyond what players consented to at this recreational level of play.

The Defendant appealed arguing the court imposed too tough of a standard of care.  The BC Court of Appeal disagreed and dismissed the appeal.  In doing so the Court provided the following summary of negligence principles applied in the sports law setting in British Columbia:

[40]         While the referee was in charge of the match, the judge was in charge of the litigation. She was, in effect, the final referee. On her factual findings, the appellant’s conduct amounted to serious foul play that would have justified the issuance of a red card disqualifying the appellant from further participation in the game. In short, the tackle was not, as the appellant suggests, permitted by the rules of the game, nor was it found by the judge merely to be careless. It was found to be dangerous.

[41]         Respectfully, it appears to me that the appellant has advanced a straw-man argument, divorced from the judge’s factual findings. Put bluntly, the issue he seeks to have resolved in this case—whether mere carelessness in the execution of a permissible defensive play made attracts liability in negligence—does not arise on the factual findings made by the judge.

[42]         Second, I know of no authority for the broad proposition the appellant would have us endorse—that a play permitted by the rules of the game, no matter how dangerously executed and regardless of the context in which the game is being played (here, a game played in a recreational league involving participants with a wide range of skill and experience), can never give rise to liability in negligence.

[43]         The appellant cites no direct authority for the proposition that a permissible play, executed dangerously, can never amount to negligence.

[44]         In my view, the appellant can derive no comfort on this point from the remarks of Lambert J.A. in Herok, which merely affirm the proposition that careless acts falling outside the risks assumed by players by participating in the game are capable of grounding liability in negligence. The case certainly does not support the broad proposition advanced by the appellant. Further, I am unpersuaded by the appellant’s attempt to read into the governing authorities of this Court, including Herok, Unruh and Zapf, in support for his position.

[45]         By analogy, open ice body checking is permitted in hockey. However, liability in negligence may flow if the body check is executed in a manner that exposes an opponent to an unreasonable risk of harm—a risk the opponent could not reasonably be expected to assume by participating in the game, having regard to contextual factors including the speed and level at which the game is played. A hockey player is no more immune from liability because body checking is permitted than is a driver who executes a lawful left turn in a manner heedless of the safety of others.

[46]         Third, acceptance of the appellant’s proposition would give the rules of play a near determinative role in the analysis. Again, I know of no authority that would elevate whether the play in issue was permitted by the rules of the game to such a lofty status. While the rules of the game are a factor to be considered along with other circumstances, the rules are by no means conclusive: Unruh at paras. 23–25, 29, 32–33; Finnie v. Ropponen, 1987 Carswell 659, [1987] B.C.J. No. 448 (S.C.) at paras. 12, 14; Condon v. Basi, [1985] 2 All E.R. 453 (C.A.), 1 W.L.R. 866—where, as here, a dangerously executed slide tackle grounded a negligence finding.

[47]         The appellant also argues that the judge erred in law by conflating the meaning of “recklessness” as used in the FIFA rules of play with recklessness in law. I see no merit in this position. Nothing in the judge’s reasons supports the appellant’s position on this point. Further, as I will explain below, the judge found the appellant to have deliberately attempted a slide tackle that he knew, or ought to have known, created an unjustified risk of harm. Against these findings, she made no error in characterizing the appellant’s conduct as reckless.

[48]         Finally, the appellant submits that the factual findings of the judge support only a finding of carelessness. Again, I do not agree. The tackle came from behind the respondent, who did not see the challenge coming and had no opportunity to brace himself for impact. The appellant slid into the respondent with both of his legs off the ground, striking the respondent slightly below his knees. The trial judge found there was no possibility that the appellant would reach the ball in executing the tackle. In these circumstances, the judge’s factual findings, when viewed in the context of the evidence as a whole, support her ultimate conclusion that the appellant’s actions were reckless and dangerous.

[53]         To summarize, I would reject the appellant’s proposition that a defending player in a soccer game is immune from liability for negligence if there is a possibility they will contact the ball in executing a slide tackle, no matter how remote that possibility is, or how dangerous execution of the tackle will be to an opposing player. That is not and could not be the law.

[54]         Whether this ground of appeal is properly characterized as an extricable error in law or a question of mixed fact and law—the appellant was not clear on this point—makes no difference to the end result. I see no extricable error in law, nor have I been persuaded that the judge’s analysis reflects palpable and overriding error.

ICBC Not Entitled To Unlimited Information in Processing Claims

ICBC has a lot of power when processing claims.  But it is not unlimited.  This week reasons for judgement were published by the Civil Resolution Tribunal reigning in some of the power ICBC thought they had.

In the recent case (Nawa v. ICBC) the Applicant was involved in two collisions.  A benefits dispute arose with ICBC with the Applicant claiming, among other things, that ICBC wrongfully suspended the payment of his income replacement benefits.

ICBC argued they were entitled to do so because he did not comply with section 11 of the Insurance (Vehicle) Act.  This section requires an insured to give ICBC “the content required by the corporation” and further to “comply with any other method of making and proving claims that is established by the corporation.“.

ICBC argued that the insured failed to provide them all the financial information they wanted including his tax records from up to two years prior to his crash.

The CRT found ICBC was wrong to suspend the benefits and noted that while the legislation is broad and gives ICBC the power to request a lot of information they can’t get everything just because they want it.  They are restrained to information that is “necessary and material” for the insured to make or prove their claim.

In ordering ICBC to reinstate the benefit and finding their powers for information do have limits Tribunal Member Alison Wake provided the following reasons:

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