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Author: ERIK MAGRAKEN

How BC Rigged Fault Assessments For Crashes in the “No-Fault” Era

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.

Despite BC having a ‘no fault’ system fault still matters greatly.  A wrongful assessment of fault can cost a driver over $8,000.  Despite these steep financial consequences ICBC has basically rigged the system that their decision rules with limited exceptions.

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

10  In 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

  1. buy your insurance from ICBC.  There is no market choice.
  2. If you are the victim of a crash you cannot sue the at fault motorist (except in the most limited of circumstances)
  3. ICBC will decide if you are at fault or not
  4. If they are wrong it can cost you thousands
  5. 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”.

Intimate Images Protection Update – Big Tech Warned To Be Ready For Big Changes or Face Big Damages

I’ve written previously about BC’s new ‘Intimate Images Protection Act’.  In short this new law allows people to get quick binding orders for the removal of nude or sexualized content they don’t want on the internet.  Even if they previously consented to sharing the content they can RETROACTIVELY revoke consent.  Big change.

This week BC’s Attorney General wrote a letter to major tech and social medial companies telling them to be ready.

In the letter it is suggested the Act will go live in a matter of months as soon as regulations are finalized.  From there we can assist anyone who wants to have unwanted intimate content removed from the internet.   In fact once the law is live it is retroactive to when it was first introduced so people can send demand letters for the removal of content under the legislation right now.  If demand letters are not complied with damages could follow.

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

Is ICBC No Fault So Broad That You Can’t Sue When a Plane Falls Out of the Sky?

Imagine you are driving on a BC highway.  Out of nowhere a plane comes out of the sky and smashes into your vehicle causing injury.

This is not academic.  This unfortunately just occured in Langley, BC, as reported by CityNews.

Now an interesting question was posed to me by BC lawyer Kyla Lee.  Can motorists sue in these circumstances or are their rights stripped by ICBC no fault?

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.

Exploring Pre-Existing Injury on Discovery – Forever Not Always OK

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:

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Federal Court Greenlights Use of AI to Write Legal Decisions

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:

[24] 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.

[28] 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.

Why OnlyFans and Other Models Should Know About BC’s Intimate Images Protection Act

This week BC passed the Intimate Images Protection Act.

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.

If your intimate images are being shared without or beyond your consent get familiar with this law.  If you want to learn more you can contact us for a free consultation. 

 

Intimate Images Protection Act Now Law

The British Columba Intimate Images Protection Act, which was first introduced earlier this month, has now passed into law.  It passed third reading and received Royal Assent on March 30, 2023.

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.

Your Body.  Your Choice.  Even Online.

 

Jiu Jitsu Club Ordered to Pay Paralyzed Student $46 Million in Damages For Negligence

I’ve spent a lot of time on this site discussing the standard of care of combat sports coaches and the possibility of negligence lawsuits.  This week headlines broke illustrating such concerns are not merely academic.  A California based brazilian jiu jitsu club was ordered to pay substantial damages to an injured student following jury findings of negligently caused paralysis.

The Times of San Diego report that this week a California jury ordered Del Mar Jiu Jitsu club to pay just over $46,000,000 in total damages to a student who suffered partial quadriplegia at the hands of an instructor.

The Times reports that the Plaintiff “was paired with instructor Francisco Iturralde, a second-degree black belt, who placed Greener in a position that put his entire body weight upon Greener and crushed his cervical vertebrae, paralyzing him. Attorneys say Greener was hospitalized for several months and suffered multiple strokes, among a series of other ailments….The jury deliberated for two days before returning its verdict on Tuesday, which awarded Greener $637,959 for loss of past and future earnings, $1,337,153.23 for past medical expenses, $8,500,000 for future medical expenses, $11,000,000 for past pain and suffering, and $25,000,000 for future pain and suffering.

The idea that a combat sports coach can be negligent is not novel.  Yes combat sports have a level of danger to them.  But coaches still have a legal duty to take reasonable steps to teach their students safely.  In doing so they must meet the applicable standard of care.  This will include being knowledgeable about the known harms that can arise from poor coaching, having reasonable systems in place to minizine these risks and following these systems.

Seperate from this tragic case of paralysis, coaches should be aware of CTE and Concussions and have reasonable policies in place to mitigate these risks if they are in the combat sports business.

The High Cost of Negligent Sport – Rec Soccer Player Ordered To Pay over $100K in Damages

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, ordering a Defendant to pay over $100,000 in damages following a negligent slide tackle in a recreational soccer game.

In the case (Miller v. Cox) the plaintiff suffered a grade 3 dislocation of the right acromioclavicular joint as a result of the tackle.  Several witnesses testified and the court found all of them credible except the Defendant who the court found gave “self-serving and wholly unbelievable” testimony.

The Court found the Defendant 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.  In finding liability the Court provided the following summary of the legal principles in play and following findings of fact:

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Your Body, Your Choice. Even Online ™

I am proud to introduce MacIsaac & Company’s Intimate Image Protection Claims practice.

Last week the BC Government introduced Bill 12.  You can read here for background but in short this Bill will be provide British Columbians with powerful tools to take back control of their intimate images.

We are here to help.  MacIsaac & Company’s Intimate Image Protection Claims services will include drafting demand letters for removal of images, obtaining binding Tribunal Orders for the removal of unwanted images and litigation for damages against those who violate your consent.

While Bill 12 is not yet law it will be retroactive once passed and there are meaningful steps you can take right now to help regain control of your intimate images.

Click here for more information or to arrange your confidential free consultation.

Your Body, Your Choice.  Even Online ™