Author: ERIK MAGRAKEN

Congratulations Clawbies2020 Winners and Thank you For the Hall of Fame!

Written by ERIK MAGRAKEN on December 31, 2020. Posted in Uncategorized.

The Canadian Law Blog Awards, which started as a quasi legal marketing blogging tool, have taken on a life of their own and have become a well recognized badge for many contributors in the Canadian legal field for their on line efforts in providing helpful content to the public.

With the awards handed out on New Years Eve the Clawbies pride themselves on being the latest awards of the year.

This morning the 2020 Clawbies were announced. Please check our the full list and follow all the worthwhile legal content providers highlighted there! A lot of great work by great lawyers and other legal professionals.

I was honoured to be ‘retired’ by the Clawbies losing eligibility for future awards by being inducted into their Hall of Fame. Thank you for this. It has been my pleasure to author thousands of articles here over the past decade plus and I have no intention of stopping still. I am looking forward to all the future Clawbie winners for the great content they create and the creative ways the legal profession will continue to use social media to connect with the public.

Vehicle Lessor Awarded Damages for Accelerated Depreciation By BC Civil Resolution Tribunal

Written by ERIK MAGRAKEN on December 24, 2020. Posted in BC Civil Resolution Tribunal.

I’ve written many times about the law of ‘accelerated depreciation’ claims in BC. 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. ICBC routinely chooses to ignore this reality when dealing with crash victims and raises invalid arguments trying to deny such claims. The damages for such claims can be pursued against the at fault motorist (through their liability insurance policy).

As was demonstrated in reasons published this week by BC’s Civil Resolution Tribunal there is no reason why such claims have to be limited to vehicle owner/operators but others with title interest in the vehicle can pursue such a claim. In what I believe is one of the first times this issue was addressed the Tribunal found that a vehicle lessor can also obtain damages for accelerated depreciation.

In this week’s case (Dual Mechanical Ltd. v. Vicencio) the applicants (a vehicle lessor and lessee) vehicle was involved in a crash caused by the respondent. The vehicle suffered an accelerated depreciation due to the damages from the crash. The applicants brought a claim arguing one or the other of them should be entitled to the damages. The CRT found that the vehicle lessor, given that title remained with them under the terms of the lease, was the appropriate party to be awarded these damages. In reaching this decision Tribunal Member Lynn Scrivener provided the following reasons:

BC Covid Limitation Period Suspensions Come to an End in March

Written by ERIK MAGRAKEN on December 22, 2020. Posted in Uncategorized.

Today it was announced that suspended limitation periods for starting a civil or family action or appeal in BC courts will end on March 25, 2021.

Order in Council # 655 was just released and reads as follows:

Executive Council Chambers, Victoria

On the recommendation of the undersigned, the Lieutenant Governor, by and with the advice and consent of the Executive Council, orders that (a) sections 2 and 3 of Appendix 2 of B.C. Reg 199/2020 are repealed, and (b) effective March 25, 2021, item 27 of Schedule 2 of the COVID-19 Related Measures Act, S.B.C. 2020, c. 8, is repealed

The Law Society of BC has just published this notice to the profession:

An early holiday gift! The government has provided advance notice that although the public health state of emergency continues, the suspension of limitation periods for starting a civil or family action or appeal in BC courts will end on March 25, 2021. For clarity, March 25, 2021 is the final end date for the suspension of limitation periods. There is no transition or grace period (90 days or 45 days) after March 25, 2021. March 25, 2021 is the one year anniversary from the date the first ministerial order suspending limitation periods (Ministerial Order M086) was made on March 26, 2020. BC has graciously been afforded the longest suspension of limitation periods of any province in Canada.

While you still have time – don’t wait; file your Notices of Claim and Notices of Appeal now.

See the order and find out more information from the government here. We will provide you with further details in January 2021. Please note that this order does not apply to the other ministerial orders and regulations made under the COVID-19 Related Measures Act.

Application for ICBC Wage Loss Benefits Dismissed For 7 Days of Disability

Written by ERIK MAGRAKEN on December 21, 2020. Posted in BC Civil Resolution Tribunal, ICBC No-Fault (Part 7) Benefits, ICBC Wage Loss.

The BC Civil Resolution Tribunal published reasons for judgment earlier this month dismissing an application for ICBC wage replacement benefits following 5 days of disability from a vehicle collision.

In the recent case (Cruz v. ICBC) the self represented applicant was injured in a December, 2019 collision. His injuries caused him to miss 7 days of work. He applied for ICBC to cover his wage loss under their no-fault benefits but they refused arguing he was not disabled enough days to qualify for benefits. The CRT agreed and dismissed the applicant’s claim. In doing so Tribunal Member Kristen Gardner provided the following reasons:

CRT Dismisses Applicant Request for ICBC To Pay Lump Sum Part 7 Benefits

Written by ERIK MAGRAKEN on December 21, 2020. Posted in BC Civil Resolution Tribunal, ICBC No-Fault (Part 7) Benefits.

Reasons for judgement were published earlier this month dismissing an applicants claim at the BC Civil Resolution Tribunal asking for ICBC to pay physiotherapy treatment expenses as a lump sum.

In the recent case (Smith v. ICBC) the self represented applicant was injured in a October, 2019 collision. He required physiotherapy which ICBC paid for directly to the service provider. The Applicant asked the CRT to award him $12,000 as a lump sum for treatment expenses. The claim was dismissed with the CRT noting that while ICBC can pay a lump sum for treatment expenses doing so is entirely discretionary and continued payment of necessary treatments as they are incurred is acceptable. In dismissing the claim Tribunal Member Kristen Gardner provided the following reasons:

$60,000 Damages Awarded For Diminished Housekeeping Capacity

Written by ERIK MAGRAKEN on December 15, 2020. Posted in Uncategorized.

Reasons for judgement were published this month assessing damages for diminished housekeeping capacity at $60,000 following chronic collision related injuries.

In the recent case (Ploskon-Ciesla v. Brophy) the Plaintiff was involved in a 2017 collison that the Defendant admitted fault for. The collision caused a constellation of physical injuries which negatively impacted the Plaintiff recreationally,, vocationally and domestically. In assessing $60,000 in damages for diminished housekeeping capacity over and above non-pecuniary damages Mr. Justice Ball provided the following reasons:

Low Jury Award For Non Pecuniary Damages Set Aside Given Findings of Ongoing Deficit

Written by ERIK MAGRAKEN on November 26, 2020. Posted in ICBC Shoulder Injury Cases.

Reasons for judgment were published this week by the BC Court of Appeal overturning a low jury award for non-pecuniary damages where they also awarded damages for future medical care and diminished earning capacity.

In the recent case (Thomas v. Foskett) the Plaintiff suffered a shoulder injury in a collision and sued for damages. At trial, some 5 years later, a jury awarded the Plaintiff damages including non-pecuniary damages of $15,000, $16,308 for loss of future income earning capacity and $20,336 for costs of future care.

The Plaintiff appealed the non-pecuniary assessment arguing that the findings of needing future medical treatment and having a diminished earning capacity are inconsistent with such a low assessment of non-pecuniary damages. The Court of Appeal agreed, set aside the jury’s award and substituted an assessment of $60,000 for non-pecuniary loss. In reaching this result the court provided the following reasons:

Diminished Earning Capacity Damages Awarded Despite Plaintiff Increasing Earnings Each Year Since Collision

Written by ERIK MAGRAKEN on November 13, 2020. Posted in Uncategorized.

Just because a Plaintiff suffers no past loss of income does not preclude a court from awarding damages for diminished future earning capacity. Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, demonstrating this.

In today’s case (Grant v. Ditmarsia Holdings Ltd) the Plaintiff was injured in a 2015 collisions that the Defendants admitted fault for.

The crash caused chronic physical and psychological injuries. The Plaintiff was “a hardworking journeyman plumber” and despite his injuries, which had a poor prognosis for full recovery, continued to work and increased his earnings in the years following the crash. Despite this he expressed concern that in the long term his stoicicism could not continue indefinitely and the injuries would eventually negatively impact his earnings. The Court agreed. In assessing damages at $325,000 for future diminished earning capacity Madam Justice Wilkinson provided the following reasons:

Three Strikes and ICBC’s Out! – Insurer’s Denial of Accelerated Vehicle Depreciation Fails Again

Written by ERIK MAGRAKEN on November 2, 2020. Posted in Uncategorized.

For the third time in one month ICBC has been ordered by the Civil Resolution Tribunal to pay a vehicle owner damages for accelerated depreciation following a vehicle collision.

When a vehicle is damaged in a crash it often suffers a significant loss of market value, even after all reasonable repairs are done. ICBC chooses to ignore this reality when dealing with crash victims and raises invalid arguments trying to deny such claims. For the third time in one month the Civil Resolution Tribunal has held ICBC insured driver liable for paying such damages.

In the most recent case (Herriott v. Yuen) the Applicant’s Audi Quattro sustained over $10,000 in damages in a crash that the Respondent admitted fault for. After the vehicle was repaired both the Applicant’s dealership and an expert appraiser noted there was an accelerated depreciation in the vehicle’s remaining market value. ICBC denied this claim arguing the vehicle is worth no less than it would be even without such a significant crash. In rejecting ICBC’s position and ordering damages paid recognizing the accelerated depreciation CRT Vice Chair Andrea Ritchie provided the following reasons:

ICBC Ordered To Pay Damages for Accelerated Vehicle Depreciation Following Significant Crash

Written by ERIK MAGRAKEN on October 30, 2020. Posted in BC Civil Resolution Tribunal.

As discussed numerous times on this site BC law recognizes that if property is damaged by the wrong doing of another and if that property is then worth less even after all reasonable repairs have been made the ‘accelerated depreciation’ can be recovered against the at fault party.

ICBC often refuses to recognize accelerated depreciation claims following collisions and forces crash victims to litigate these claims. Reasons for judgement were published today by BC’s Civil Resolution Tribunal with such a fact pattern.

In today’s case (Peterson v. Texmo) the Applicant’s vehicle sustained over $10,000 in damages in a crash the Respondent was at fault for. The Applicant asked ICBC to compensate him for his vehicle’s accelerated depreciation which reached several thousand dollars but the insurer refused to recognize this loss raising several arguments which missed the mark such as suggesting that if the vehicle was not sold there is no loss and that the vehicle was imported from the US which if resold there may not have a similar market loss. In rejecting these arguments and finding that the applicant was entitled to damages for accelerated depreciation Tribunal Member David Jiang provided the following reasons: