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Author: ERIK MAGRAKEN

BC Revenge Porn Bill Creates Concept of “Revocable Consent”

Written by ERIK MAGRAKEN on . Posted in Intimate Image Protection Claims, Intimate Images Protection Act, Removing Naked Images and Vidoes, Removing Nude Images and Videos.

This week BC introduced a bill which proposes to give victims of revenge porn more legal remedies.

Imagine you share intimate images with a partner who later abuses that trust and leaks them on the internet.  Or imagine someone obtains images without your consent at all and posts them on line.   Or threatens to.  The proposed BC law creates new remedies for these situations.

But it goes further.  Bill 12, titled the “Intimate Images Protection Act” goes on to create the concept of “revocable consent”.  Meaning that even if you consented to images being online in the first place (such as a live stream) you may still have a remedy to have them removed.

In the broadest of terms the Bill gives victims (including minors and even deceased individuals) the right to bring an application to a ‘decision maker’ to seek various remedies including the removal of the images and awards of damages.  The ‘decision makers’ are broadly defined to include BC Supreme Court judges, provincial court judges, and even tribunal members of BC’s online court the Civil Resolution Tribunal.

In a sweeping power the Bill allows applicants to seek take down orders without notice and even if they sue the wrong party the ‘decision maker’ can make a whole array of orders to whoever can take down the image including

(b) order the person who distributed the intimate image to

(i) delete or destroy all copies of the intimate image in the person’s possession or control, and

(ii) make every reasonable effort to make the intimate image unavailable to others, including by

(A) having the intimate image removed from any platform operated by an internet intermediary and from any other electronic form of application, software, database and communication method, and

(B) having the intimate image de-indexed from any search engine;

(c) order an internet intermediary or other person or organization to

(i) remove the intimate image from any platform operated by the internet intermediary and from any other electronic form of application, software, database or communication method,

(ii) delete or destroy the intimate image, and

(iii) de-index the intimate image from any search engine;

(d) order a person to provide any information the decision maker considers necessary to further the objectives of removal, deletion, destruction or de-indexing of the intimate image;

(e) make any other order the decision maker considers just and reasonable in the circumstances.

Those who want ‘intimate images’ removed have fairly easy remedies with the law proposing a reverse onus saddling respondents with”the burden of proving that the image is not an intimate image because the individual depicted in the image did not have a reasonable expectation of privacy in the image”.

The definition of ‘intimate images’ casts a wide net and covers the following:

a visual recording or visual simultaneous representation of an individual, whether or not the individual is identifiable and whether or not the image has been altered in any way, in which the individual is or is depicted as

(a) engaging in a sexual act,

(b) nude or nearly nude, or

(c) exposing the individual’s genital organs, anal region or breasts,

and in relation to which the individual had a reasonable expectation of privacy at,

(d) in the case of a recording, the time the recording was made and, if distributed, the time of the distribution, and

(e) in the case of a simultaneous representation, the time the simultaneous representation occurred;

Potential damages are broad and include non pecuniary damages, aggravated damages, punitive damages and even administrative penalties.

The law by default protects the identity of the victims.

It also requires internet intermediaries (think platforms like Facebook, Google, Instagram and TikTok) to comply with removal orders and leaves them open to damage claims if they have not “taken reasonable steps to address the unlawful distribution of intimate images in the use of its services.“.

On the topic of revocable consent the proposed law specifically says as follows:

(1) An individual who consented to the distribution of an intimate image depicting the individual may revoke consent to that distribution at any time.

(2) If an individual depicted in an intimate image

(a) consented to the distribution of the intimate image,

(b) later revokes that consent, and

(c) communicates that revocation to a person who distributed the intimate image,

the person who distributed the intimate image must make every reasonable effort to make the intimate image unavailable to others.

(3) The person who distributed the intimate image commits an unlawful act under section 3 if the person does not make the efforts described in subsection (2) within a period of time that is reasonable in the circumstances.

The Bill is worded very broadly and even can apply to images in which they cannot be identified and even cases where they consented to the  “image’s distribution by a person other than the individual“.  This wording is so broad it could potentially target content such as consensual adult pornography where a person has regret after the fact.

The Bill is not law yet.  It is always possible the language will be amended before it does pass into law.  The Bill also allows for significant regulations to be passed further clarifying it but as it presently reads it proposes a broad range of far sweeping remedies for victims of revenge porn and more.  This is legislation worth keeping an eye on.

 

 

ICBC “Impairment” Payments For Range of Motion Loss of Shoulder Joint Complex

Written by ERIK MAGRAKEN on . Posted in ICBC permanent impairment regulation.

In my ongoing efforts to highlight ICBC’s ‘permanent impairment regulations under no-fault insurance and the woeful reality of these payments today I’ll discuss the ‘meat chart’ numbers for permanent range of motion loss of the shoulder joint complex.

By way of quick background, under the “permanent impairment regulation” if you suffer an injury with a ‘permanent impairment’ you are entitled to a lump sum.  But the sums are grotesquely low.  Here’s how it works.

A figure of $167,465 is the starting point.  Then, depending on your specific injury, (and remember, for many of these we are talking about not just the injury but those that have not recovered and are not expected to in the future) a fraction of this is awarded.

Let’s apply these figures to permanent Range of motion loss of the shoulder joint complex:

Item Column 1
Range of motion loss of shoulder joint complex		 Column 2
Percentage
1 Flexion-extension, which is described as motion in the scapular plane combined range of motion of less than 61° 9%
combined range of motion of 61° to 120° 5%
combined range of motion of 121° to 180° 2%
combined range of motion of more than 180° 0%
2 Abduction-adduction, which is described as motion in the coronal plane combined range of motion of less than 61° 6%
combined range of motion of 61° to 120° 3%
combined range of motion of 121° to 180° 1%
combined range of motion of more than 180° 0%
3 Internal rotation — external rotation combined glenohumeral range of motion of less than 46° 6%
combined glenohumeral range of motion of 46° to 90° 3%
combined glenohumeral range of motion of 91° to 135° 1%
combined glenohumeral range of motion of more than 135° 0%

For Flexion-extension, which is described as motion in the scapular plane

combined range of motion of less than 61° 9% =  $15,072

combined range of motion of 61° to 120° 5% = $8,373

combined range of motion of 121° to 180° 2% =  $3,350

combined range of motion of more than 180° = 0% = $0.00

For  Abduction-adduction, which is described as motion in the coronal plane

combined range of motion of less than 61° 6% = $10,048

combined range of motion of 61° to 120° 3% = $5,024

combined range of motion of 121° to 180° 1% = $1,675

combined range of motion of more than 180° 0% = $0.00

For Internal rotation — external rotation

combined glenohumeral range of motion of less than 46° 6% = $10,048

combined glenohumeral range of motion of 46° to 90° 3% = $5,024

combined glenohumeral range of motion of 91° to 135° 1% = $1,675

combined glenohumeral range of motion of more than 135° 0% = $0.00

ICBC “Impairment” Payments For Shoulder and Arm Ligamentous and Other Soft Tissue Disruption

Written by ERIK MAGRAKEN on . Posted in ICBC permanent impairment regulation.

In my ongoing efforts to highlight ICBC’s ‘permanent impairment regulations under no-fault insurance and the woeful reality of these payments today I’ll discuss the ‘meat chart’ numbers for permanent Shoulder and Arm Ligamentous and Other Soft Tissue Disruption.

By way of quick background, under the “permanent impairment regulation” if you suffer an injury with a ‘permanent impairment’ you are entitled to a lump sum.  But the sums are grotesquely low.  Here’s how it works.

A figure of $167,465 is the starting point.  Then, depending on your specific injury, (and remember, for many of these we are talking about not just the injury but those that have not recovered and are not expected to in the future) a fraction of this is awarded.

Let’s apply these figures to permanent Shoulder and Arm Ligamentous and Other Soft Tissue Disruption:

Item Column 1
Shoulder or arm non-bony disruption		 Column 2
Percentage
1 Non-bony disruption subject to subsection (2), complete non-bony disruption or avulsion fracture affecting an upper limb 2%
subject to subsection (2), partial non-bony disruption or avulsion fracture affecting an upper limb 1%
2 Non-bony disruption rotator cuff tear, imaging positive, full thickness, with no known prior rotator cuff pathology 5%
rotator cuff tear, imaging positive, full thickness, with known prior rotator cuff pathology 2%
rotator cuff tear, partial thickness 2%
distal or proximal biceps tendon rupture, with no strength deficit in supination or elbow flexion 1%
distal or proximal biceps tendon rupture, with strength deficit in supination or elbow flexion 2%

For complete non bony disruption or avulsion fracture affecting an upper limb 2% = $3,350

For partial non-bony disruption or avulsion fracture affecting an upper limb 1% = $1,675

For rotator cuff tear, imaging positive, full thickness, with no known prior rotator cuff pathology 5% = $8,373

For rotator cuff tear, imaging positive, full thickness, with known prior rotator cuff pathology 2% = $3,350

For rotator cuff tear, partial thickness 2% = $3,350

For distal or proximal biceps tendon rupture, with no strength deficit in supination or elbow flexion 1% = $1,675

For distal or proximal biceps tendon rupture, with strength deficit in supination or elbow flexion 2% = $3,350

ICBC “Impairment” Payments for Permanent Shoulder and Arm Injuries With Non Bony Disruption

Written by ERIK MAGRAKEN on . Posted in ICBC permanent impairment regulation.

In my ongoing efforts to highlight ICBC’s ‘permanent impairment regulations under no-fault insurance and the woeful reality of these payments today I’ll discuss the ‘meat charts’ numbers for permanent shoulder and arm injuries with no bondy disruption.

By way of quick background, under the “permanent impairment regulation” if you suffer an injury with a ‘permanent impairment’ you are entitled to a lump sum.  But the sums are grotesquely low.  Here’s how it works.

A figure of $167,465 is the starting point.  Then, depending on your specific injury, (and remember, for many of these we are talking about not just the injury but those that have not recovered and are not expected to in the future) a fraction of this is awarded.

Let’s apply these figures to permanent shoulder and arm injuries with non bony disruption;

Item Column 1
Shoulder or arm non-bony disruption		 Column 2
Percentage
1 Non-bony disruption subject to subsection (2), complete non-bony disruption or avulsion fracture affecting an upper limb 2%
subject to subsection (2), partial non-bony disruption or avulsion fracture affecting an upper limb 1%
2 Non-bony disruption rotator cuff tear, imaging positive, full thickness, with no known prior rotator cuff pathology 5%
rotator cuff tear, imaging positive, full thickness, with known prior rotator cuff pathology 2%
rotator cuff tear, partial thickness 2%
distal or proximal biceps tendon rupture, with no strength deficit in supination or elbow flexion 1%
distal or proximal biceps tendon rupture, with strength deficit in supination or elbow flexion 2%

Here’s the math:

For complete non-bony disruption or avulsion fracture affecting an upper limb 2% = $3,350

For partial non-bony disruption or avulsion fracture affecting an upper limb 1% = $1,675

For rotator cuff tear, imaging positive, full thickness, with no known prior rotator cuff pathology 5% = $8,373

For rotator cuff tear, imaging positive, full thickness, with known prior rotator cuff pathology 2% = $3,350

For rotator cuff tear, partial thickness 2% = $3,350

For distal or proximal biceps tendon rupture, with no strength deficit in supination or elbow flexion 1% = $1,675

For distal or proximal biceps tendon rupture, with strength deficit in supination or elbow flexion 2% = $3,350

ICBC “Impairment” Payments For Shoulder, Sternum, Clavicle, Rib and Arm Fracture and Rib Removal Under No Fault

Written by ERIK MAGRAKEN on . Posted in ICBC permanent impairment regulation.

Earlier I discussed how ICBC’s ‘permanent impairment regulation’ works under no-fault insurance and how woeful some of the payments are.  This is my latest in an ongoing series of posts highlighting these numbers for the various injuries so British Columbians can better understand how poorly serious injuries are treated.  Today’s topic are Shoulder, Sternum, Clavicle, Rib and Arm Fracture and Rib Removal.

To jog your memory, under the “permanent impairment regulation” if you suffer an injury with a ‘permanent impairment’ you are entitled to a lump sum.  But the sums are grotesquely low.  Here’s how it works.

A figure of $167,465 is the starting point.  Then, depending on your specific injury, (and remember, for many of these we are talking about not just the injury but those that have not recovered and are not expected to in the future) a fraction of this is awarded.

Let’s apply these figures to Shoulder, Sternum, Clavicle, Rib and Arm Fracture and Rib Removal.

Item Column 1
Shoulder, rib or arm fracture or rib removal		 Column 2
Percentage
1 Fracture of sternum, clavicle, scapula or humerus with non-specified abnormal healing 1%
2 Subject to subsection (2), fracture of a rib 0.5% per rib to a maximum of 2%
3 Removal of a rib 2% per rib
4 Humeral fracture with angulation of more than 15° 5%
with angulation of 5° to 15° 2.5%
with shortening of more than 4 cm 5%
with shortening of more than 2 cm to 4 cm 3%
with shortening of 1 cm to 2 cm 1.5%
5 Chronic osteomyelitis of any upper limb bone with active drainage 3%

For Fracture of sternum, clavicle, scapula or humerus with non-specified abnormal healing 1% = $1,675

For fractured ribs 0.5%-2% = $837 – $3,350

For Removal of a rib 2% per rib = $3,350

For Humeral fracture the ranges of 1.5% – 5% = $2,507 – $8,373

For Chronic osteomyelitis of any upper limb bone with active drainage 3% = $5,024

ICBC’s “Meat Chart” Payments for Shoulder and Arm Amputations Under Monopoly No Fault Insurance

Written by ERIK MAGRAKEN on . Posted in ICBC permanent impairment regulation.

Earlier I discussed how ICBC’s ‘permanent impairment regulation’ works under no-fault insurance and how woeful some of the payments are.  I’ve decided to do a series of posts highlighting this pitiful numbers for the various injuries so British Columbians can better understand how poorly serious injuries are treated.  This will be the first in a series of posts.  Today I’ll discuss Shoulder and Arm Amputations.

To jog your memory, under the “permanent impairment regulation” if you suffer an injury with a ‘permanent impairment’ you are entitled to a lump sum.  But the sums are grotesquely low.  Here’s how it works.

A figure of $167,465 is the starting point.  Then, depending on your specific injury, (and remember, for many of these we are talking about not just the injury but those that have not recovered and are not expected to in the future) a fraction of this is awarded.

Let’s apply these figures to Shoulder and Arm amputations.

Item Column 1
Shoulder or arm amputation		 Column 2
Percentage
1 Forequarter amputation 60%
2 Shoulder disarticulation 56%
3 Above-elbow amputation proximal third of the humerus 54%
(a) middle third of the humerus
(b) distal third of the humerus, or
(c) both the middle third and distal third of the humerus		 52%

 

For forequarter amputation 60% = $100,479

For Shoulder disarticulation 56% = $93,780

For Above-elbow amputation (proximal third of the humerus) 54% = $90,431

For the remaining above-elbow amputations 52% = $87,081

Let’s Talk About ICBC’s Shameful “Enhanced Care” Meat Chart

Written by ERIK MAGRAKEN on . Posted in ICBC permanent impairment regulation, Uncategorized.

So the public is slowly learning that ICBC ‘enhanced care‘ really means victims were stripped of their rights to sue bad drivers, to be properly covered for their wage loss, treatment expenses, pain and suffering and more.

When ICBC rolled out ‘enhanced care’ one of the soundbites they boasted about were lump sum payments that victims of  ‘catastrophic’ injuries and those with ‘permanent impairment’ will receive.

Under the tort system victims has the right to non-pecuniary damages.  Basically payment for pain and suffering.  The amount varying based on severity of injury.  There was no hard chart but readers of this site will have a good sense of the damages courts would award from the thousands of case summaries here.  Chronic pain, physical and psychiatric injuries would routinely have awards over six figures.  Truly catastrophic injuries would bring non-pecuniary damages near the ‘rough upper limit’ of Canadian negligence law over $400,000.

Let’s look at some sobering numbers of what these real damages have been replaced with.

Under the “permanent impairment regulation” if you suffer an injury with a ‘permanent impairment’ you are entitled to a lump sum.  But the sums are grotesquely low.  Here’s how it works.

A figure of $167,465 is the starting point.  Then, depending on your specific injury, (and remember, for many of these we are talking about not just the injury but those that have not recovered and are not expected to in the future) a fraction of this is awarded.

Let’s do some math under this meat chart.  Here’s the ‘enhanced care’ for the following permanent injuries

Fracture sternum = 1% = $1,675

Fractured forearm with ‘non specifid abnormal healing’ = 1% = $1,675

Scaphoid fracture with avascular necrosis = 2% = $3,349

Pelvic fracture with non-specified abnormal healing = 1% = $1,675

Distal above knee AMPUTATION = 35% = $58,612

Fracture femur (biggest bone in the body!) with non-specified abnormal healing = 1% = $1,675

Thigh muscular atrophy of 2 cm or more = 2% = $3,349

Knee fracture with non specified abnormal healing = 1% = $1,675

Avulsion fracture affecting the knee or leg = 2% = $3,349

Post traumatic patellofemoral pain syndrome = 1% = $1,675

AMPUTATION of the ankle = 25% = $41,866

Compression fracture of the low spine with loss of height under 25% = 2% = $3,349

Post traumatic alteration of brain tissue with laceration or intracerebral hematoma = 2% = $3,349

Folks, I could go on.  There are hundreds of other examples in this ICBC meat chart.  The numbers are woeful.  Bottom line for British Columbians – you better hope you never get seriously impaired by the careless driving of another in this Province.  If you do ICBC will add insult to your injury by way of their meat chart.

Tesla Crash Illustrates One of Few Potential Exceptions to ICBC “No-fault” Laws

Written by ERIK MAGRAKEN on . Posted in Uncategorized.

This week it was reported that a Tesla “suddenly accelerates’ into BC Ferries ramp, breaks in two.

Despite the charged headline the body of the article makes it clear that the cause of the crash is unknown with police investigating whether “either a mechanical issue, or a matter concerning the driver, which may have caused the sudden acceleration.”.

For the sake of a teachable moment under current BC law let’s assume the former.

BC is now a no-fault jurisdiction.  This means that crash victims cannot sue those responsible for the crash.  Hit by a texting driver?  Too bad.  Hit by a distracted driver?  Too bad.  Someone ran a red light and smashed into your vehicle?  Too bad?  Pedestrian hit by a speeding driver that lost control?  Too bad.

The law has carved few exceptions to this harsh reality.  One of the rare exceptions is if a vehicle manufacturer or mechanic negligently created a mechanical defect.  If something like that can be proven then crash victims have limited rights to sue to recover non pecuniary damages.

The limited list of exceptions in part reads as follows:

(a)a vehicle manufacturer, respecting its business activities and role as a manufacturer;

(b)a person who is in the business of selling vehicles, respecting the person’s business activities and role as a seller;

(c)a maker or supplier of vehicle parts, respecting its business activities and role as a maker or supplier;

(d)a garage service operator, respecting its business activities and role as a garage service operator;

(e)a licensee within the meaning of the Liquor Control and Licensing Act whose licence authorizes a patron to consume liquor in the service area under the licence, respecting the licensee’s role as a licensee in the sale or service of liquor to a patron;

(f)a person whose use or operation of a vehicle

(i)caused bodily injury, and

(ii)results in the person’s conviction of a prescribed Criminal Code offence;

(g)a person in a prescribed class of persons.

See the theme?  So long as ICBC is not on the hook for the payout they are ok with you having the right to sue.

Icy Property and the Standard of Care

Written by ERIK MAGRAKEN on . Posted in Uncategorized.

The BC Lower Mainland and South Island just had one of our biggest snowfalls on record.

I’ll keep this short.

Here’s how an ambulance chaser sees a nice winter City walk.

One of these property owners met the standard of care.  One would pretend they did.  One did not even bother trying.

Be nice, clear your ice!