For two years BC crash victims were subject to the “minor injury” scheme. Basically a law labelling that most injuries are minor. Many British Columbians were surprised to find out that most injuries are labelled minor under this law despite common understanding of the word meaning otherwise. That’s legal drafting and defining in action. Legislative trickery. Words don’t always mean what you think they do, they mean what the government defined them to.
The constitutionality of the Civil Resolution Tribunal, the body given power to decide if injuries are ‘minor’, was in flux for years. With more legal clarity now determinations are being made. This week one of the first minor injury determinations was handed down with the Tribunal finding that an applicant’s chronic myofascial pain was caught by the broad BC Government definition of ‘minor injury’.
In the recent case (Silver v. All-West Heritage Glass Ltd.) the applicant was injured in a 2020 crash that the Defendant was at fault for. The crash caused chronic injury to the Plaintiff’s shoulder that continued to trouble her years later and interfere with some day to day activities. Despite the chronic nature of the injury the Tribunal provided the following reasons finding they fit the definition of minor:
It is not always clear when an injury is permanent. Some health care practitioners may express optimism when prognosticating an injury’s fate while others may be quicker to conclude things are as good as they will get. Interesting reasons for judgement were recently published by BC’s Civil Resolution Tribunal noting that if an applicant fails in a claim for a permanent impairment decision because the prognosis is premature nothing precludes them from bringing the same claim in the future.
In the recent case (Bate v. ICBC) the self represented litigant applied for permanent impairment damages but the claim was dismissed with the Tribunal noting that on a balance of probabilities they failed to prove their injuries were indeed permanent. The Tribunal went on to note though that the failed application was not a barrier to a further application dealing with the same injury in the future. Specifically the Tribunal noted as follows:
As noted, Mr. Bate, in order to successfully claim for permanent impairment compensation, must show that it is more likely than not that his injuries are “permanent” as defined by section 10(1) of the PIR. I find he has not done so. So, I dismiss his claim for permanent impairment compensation at this time. Nothing in this decision prevents Mr. Bate from reapplying for permanent impairment compensation if and when his injuries become permanent.
ICBC and the government of BC have had no shortage of tricks up their sleeve to handicap the system against crash victims so the crown corporation monopoly insurer can collect more and pay out less. Many of the measures been unconstitutional or otherwise legally void and this week the BC Court of Appeal declared that the latest expert witness limits are not valid.
In 2021 the BC Government took another kick at the can and introduced a retroactive disbursement limit for individuals seeking compensation for injuries caused by the carelessness of other motorists. Basically giving litigants a choice of either not calling the necessary expert evidence to prove their claims or to prove their claims and not be able to recover the cost of doing so. In 2022 that attempt was also declared unconstitutional. The government still was not satisfied and took the issue up to BC’s Court of Appeal. This week the appellate court agreed the latest disbursement limit is void.
In reasons for judgment released this week (British Columbia (Attorney General) v. Le) BC’s highest court found the arbitrary 6% cap on recoverable disbursements was not justifiable and unreasonable. Hopefully the government finally gets the message.
Should an insurance company be judge, jury and executioner for who is at fault for a crash? This is the system British Columbians basically now have.
First a quick history lesson.
It used to be that if you had a crash in BC ICBC would decide who was at fault. Their decision, however, had no binding effect because motorists had rights. They could bring a claim against each other. Whatever the Court ruled in terms of fault would be binding. This would override any internal ICBC decision. A fair and objective system.
This right, however, has now disappeared along with almost all other rights crash victims had as part of ICBC’s move to no-fault insurance.
Instead of having a two year limitation period to sue another motorist the new system gives you far less time. Under the Accident Claims Regulation this is cut down to 90 days after “a detailed assessment of responsibility” is made by ICBC.
From there, if you exercise your rights, the system has its thumbs on the scales. Instead of a clean fresh assessment on a balance of probabilities, you have to prove ICBC got it wrong. Basically its a judicial review instead of a fresh hearing. And here ICBC has rigged the law in their favour with you needing to prove that ICBC acted “improperly or unreasonably” in their decision. So you don’t just prove the other party is probably at fault, you have to prove ICBC did a terrible job in reaching their internal assessment.
This is all set out in section 10 of BC’s Accident Claims Regulation which now gives British Columbia crash victims the following burden of proof in fighting the monopoly corporation:
Matters required to be proven and onus of proof
10In a claim concerning a determination by the Insurance Company of British Columbia of the extent to which the initiating party is responsible for an accident, the initiating party has the onus of proving both of the following matters:
(a)the Insurance Corporation of British Columbia acted improperly or unreasonably in assigning responsibility for the accident to the initiating party;
(b)the extent to which the initiating party is responsible for the accident is less than the extent of responsibility assigned by the Insurance Corporation of British Columbia.
To summarize, the average BC motorist must
buy your insurance from ICBC. There is no market choice.
If you are the victim of a crash you cannot sue the at fault motorist (except in the most limited of circumstances)
ICBC will decide if you are at fault or not
If they are wrong it can cost you thousands
If they are wrong you have very little time to challenge their decision and the challenge will not be a fresh decision but rather a review where you must prove that the insurer acted “improperly or unreasonably”.
If an intimate image is ordered removed and anyone (hint big tech) continues to ‘distribute’ the image they are liable for a statutory tort and can be on the hook for damages. These include compensatory damages and potentially aggravated and even punitive damages.
I’ve obtained a copy of the Attorney General’s letter. Below it is published in full. Big tech has now been warned. They will have no excuse not to be ready to have responsible policies in place to swiftly remove ordered images within their control
The short answer is this has never been judicially decided so no one can say for sure.
That said the BC No fault laws are written so broadly they may even stop you from suing a pilot for injuries when a plane smashes into your vehicle.
Here’s the breakdown.
Section 115 of BC’s Insurance Vehicle Act states that for almost all BC crashes on a highway after May 1, 2021
“a person has no right of action and must not commence or maintain proceedings respecting bodily injury caused by a vehicle arising out of an accident.”
An “accident” means an accident in which there is bodily injury caused by a vehicle.
A “vehicle” means a motor vehicle or trailer. “Motor Vehicle” has the same meaning as under s. 1 of the Motor Vehicle Act, which “means a vehicle, not run on rails, that is designed to be self-propelled or propelled by electric power obtained from overhead trolley wires, but does not include mobile equipment, a motor assisted cycle or a regulated motorized personal mobility device”. This definition appears to include a plane.
“bodily injury caused by a vehicle” means bodily injury caused by a vehicle or the use or operation of a vehicle;
Section 116 then carves out a list of exceptions none of which apply to suing a pilot for how they operated a plane unless there is a specific criminal code conviction. There are some exceptions about suing people other than the operator in certain circumstances like negligent manufacturing or repair. But the right to sue an operator of a plane if they are negligent and hit a vehicle on a BC highway may be caught by ICBC’s heavy handed no fault laws.
Section 114 goes on to carve out other scenarios where no-fault benefits are not in play (and presumably individuals retain the right to sue). A standard vehicle on a BC highway being struck by a plane falling out of the sky does not appear to be in the list.
Ultimately this question needs judicial clarification for certainty but if correct this and countless other fact patterns are piling on to the ever growing list of reasons of why no fault is a catastrophe for BC crash victims.
There is no shortage of caselaw addressing the obligations to produce historic clinical records when a plaintiff’s pre-existing health is at issue. When it comes to the scope of fair questions at discovery the case law is far more sparse. To this end helpful reasons for judgment were recently published by the BC Supreme Court discussing this issue.
In the recent case (Andrist v. Bryant) the Plaintiff was involved in a vehicle collision and sued for damages. The Defendant plead that the plaintiff had pre-existing injuries and there was some further evidence this was the case. Plaintiff’s counsel was ok with questions about the plaintiff’s health in the two years preceding the crash. The defendant wished to explore the issue without this limit and the disagreement eventually spilled over to a chambers application.
In addressing the fact that limits can be placed on questioning pre-existing health Mr. Justice Tindale noted that the correct balance in this case likely lies somewhere between the Plaintiff’s position of only 2 years and the Defendants position of a lifetime. The court provided the following reasons:
Is it ok for AI to be used to write a legal decision impacting someone else’s rights? According to a decision released this week by a Canadian Federal judge the answer is yes.
The case (Haghshenas v. Canada (Citizenship and Immigration)) involved a refused immigration application to Canada. The applicant argued the denial was written by AI and relying on AI was a breach of administrative law principles. In finding the use of AI as a tool to write the decision was fair Justice Brown provided the following reasons:
 As to artificial intelligence, the Applicant submits the Decision is based on artificial intelligence generated by Microsoft in the form of “Chinook” software. However, the evidence is that the Decision was made by a Visa Officer and not by software. I agree the Decision had input assembled by artificial intelligence, but it seems to me the Court on judicial review is to look at the record and the Decision and determine its reasonableness in accordance with Vavilov. Whether a decision is reasonable or unreasonable will determine if it is upheld or set aside, whether or not artificial intelligence was used. To hold otherwise would elevate process over substance.
 Regarding the use of the “Chinook” software, the Applicant suggests that there are questions about its reliability and efficacy. In this way, the Applicant suggests that a decision rendered using Chinook cannot be termed reasonable until it is elaborated to all stakeholders how machine learning has replaced human input and how it affects application outcomes. I have already dealt with this argument under procedural fairness, and found the use of artificial intelligence is irrelevant given that (a) an Officer made the Decision in question, and that (b) judicial review deals with the procedural fairness and or reasonableness of the Decision as required by Vavilov.
This law gives victims of wrongful intimate image distribution powerful new remedies and rights to control their intimate images online.
The law is broad in its application. It captures activity such as revenge porn and other wrongful sharing of intimate images. The broad language may also give power tools to models and others that have their intellectual property shared beyond their consent.
If you have images behind an online paywall you consent to people that subscribe to view your images. You don’t consent to people stealing the images and reposting them for others to see outside of that paywall.
The BC Intimate Images Protection Act is worded so broadly it may provide a meaningful remedy in these circumstances (and one that is faster and potentially more effective that cumbersome copyright prosecutions).
If you can prove there is an ‘intimate image’ of you online, and you can prove that you do not consent to that image being ‘distributed’ in the way that it is the law gives you remedies. These include the ability to get a quick BC Civil Resolution Tribunal order that the image be removed. By whoever is posting it. Failure to abide by the order can give rise to claims of damages for the continued distribution. These damages can include claims for compensatory loss (ie lost income), and even aggravated and punitive damages.
This law was presented to the public as an anti revenge porn law. But it does so much more than that.
If you have an intimate image ‘distributed’ by others you can tell them to stop. Even if you previously consented to the sharing or distribution of the image you can revoke your consent. Anyone who refuses to abide by these wishes can be ordered to stop distributing the images. The law also gives victims the right to seek compensatory, aggravated and punitive damages for the unwanted distribution of their intimate images. It applies not just to actual images but even deep fakes and other damaging nude or sexual images.
MacIsaac & Company is proud to expand our legal services to provide victims of unwanted intimate image distribution assistance in sending demand letters, obtaining judicial or tribunal takedown orders, and litigation for damages.
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.
This blog is authored by personal injury and ICBC Claims lawyer Erik Magraken. Use of the site and sending or receiving information through it does not establish a solicitor/client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.