Author: ERIK MAGRAKEN

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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Sucker Punch in Bar Leads to $226,000 Civil Judgment Against School Teacher

Getting in a bar fight is seldom a good idea.  Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, providing 226,000 reasons to think twice before doing so.

In today’s case (Thompson v. Fraser) the Defendant, who was employed as a school teacher, got into an altercation with other patrons at the lounge bar of Vancouver’s Pan Pacific Hotel.  The Plaintiff, a security guard, was called to deal with the situation and proceeded to escort the Defendant out.  The Defendant then “sucker-punched the plaintiff in the face, badly and permanently damaging the bony structure around his left eye.“.  The court described it as “a thoroughly disgraceful incident.”

The Defendant was criminally charged and convicted of assault causing bodily harm.  The criminal consequences were “extremely lenient” with the imposition of a mere conditional discharge.   Mr. Justice Baird, presiding over the civil suit, opined  “part of the reason for this, I have no doubt, was the understanding that eventually he would have to answer for his misconduct in a civil lawsuit and, in all likelihood, pay the plaintiff a sizeable sum in damages.”

The assault caused serious injury requiring”metallic gear fused into his facial bones that causes him significant pain and discomfort when it is cold outside. There is a screw directly beneath his left eye that he can feel with his finger and causes a great deal of pain on incidental contact.“.

In assessing global damages at $266,000 including $10,000 for aggravated damages Mr. Justice Baird provided the following reasons:

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$92,000 Diminished Capacity Award Despite “80-90%” Recovery From Chronic Soft Tissue Injuries

Reasons for judgment were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for largely recovered but lingering soft tissue injuries and chronic pain following a collision.

In the recent case (Bhumrah v. McLeary) the Plaintiff was injured in a collision caused by the Defendant.  The Defendant accepted fault for the rear end crash.  The collisions resulted in soft tissue injuries.  Despite enjoying “80-90%” recovery the Plaintiff had lingering chronic pain and depression secondary to these injuries.  The injuries were “expected to continue, to some degree, into the future as well. “.

The Plaintiff was employed as commercial transport mechanic.  He missed considerable time from work but eventually was able to return.  Despite this there was evidence that the lingering injuries were not particularly compatible with work of this physicality.   In assessing damages for diminished earning capacity at $92,000 Madam Justice McDonald provided the following reasons:

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Cyclist at Fault For Attempting To Pass Bus Re-Entering Flow of Traffic on the Right

Reasons for judgement were published today by the BC Supreme Court, Courtenay Registry, dismissing a cyclist’s negligence action against a bus operator.

In today’s case (Coles v. British Columbia Transit Corporation) the Defendant was operating a bus and pulled over to let passengers on or off.  At the same time the Plaintiff was operating a bicycle in the Defendant’s lane of travel.  The Defendant put on her left signal indicating she was going to emerge back into the flow of traffic.  The Plaintiff mistakenly believed the signal indicated the bus operator was going to make a lane change and attempted to pass the bus on the right hand side.  This attempt failed and “he collided with the rear of the bus, came off his bicycle, landed on the ground, and broke his elbow.“.

The Plaintiff’s lawsuit was dismissed with the Court finding the bus driver did nothing negligent and fault rested with the cyclist.  In reaching this decision Mr. Justice Baird provided the following reasons:

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CRT Blasted For Arbitrary Decision Based on “Non-Existent” Facts

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, setting aside a decision of the BC Civil Resolution Tribunal involving a dispute with ICBC addressing fault for a collision and ordering the matter be remitted for proper determination.  In the process the BC Supreme Court had noted “the tribunal exercised its discretion arbitrarily and on the basis of predominantly irrelevant and/or non-existent facts“.

In today’s case (Devendra v. British Columbia Civil Resolution Tribunal) the Petitioner was involved in a crash prior to April 1, 2019 (the date the CRT obtained jurisdiction to hear most BC collision cases which was then declared unconstitutional last week).  The CRT was accessed based on their jurisdiction not for vehicle collisions specifically but based on their small claims jurisdiction for claims under $5,000.

ICBC found the applicant fully at fault for the crash.  The Applicant sued ICBC and the other motorist involved arguing “ICBC refused to properly investigate the incident” and asked that his deductible and increased premiums be returned.  At the same time the other motorist sued the Applicant in the BC Supreme Court for alleged negligence causing injuries stemming from the same crash.  ICBC “made clear in their written response to the tribunal that liability was not going to be an issue in the BCSC action“.  Despite this the CRT decided they were not the appropriate forum to adjudicate the applicants dispute and the issue of fault was better to be decided in the BC Supreme Court.  In finding the decision was patently unreasonable and failed to understand their role in a dispute of this nature Madam Justice Murray had the following critical findings:

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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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