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Author: ERIK MAGRAKEN

Latest ICBC Attempt To Stack Court System in Their Favour Declared Unconstitutional

This week the BC Supreme Court struck down regulations limiting the amount of disbursements a party can claim when prosecuting an ICBC claim as being both unconstitutional and contrary to administrative law principles.

By way of background, the current BC Government has taken many steps limiting the rights of BC crash victims in order to grow ICBC’s bottom line.  This culminated in full blown ‘no fault’ insurance taking away the rights of crash victims to sue those that injure them except in the most limited of circumstances.  There are many active claims, however, that pre-date the no-fault era and the Government has been trying their best to limit the rights of those victims in their disputes with ICBC.

In 2019 the BC Supreme Court found a rule limiting how many expert witnesses a plaintiff could rely on to be unconstitutional.  After this loss the BC Government took another kick at the can passing a regulation under the Evidence Act saying plaintiff’s could only recover disbursements totalling 6% the value of their claim in an ICBC fight.  This made crash victims face the unwelcome choice of either not bringing sufficient evidence to court or knowing that if they do they may not have the right to recover the costs of doing so.  Mr. Justice Smith presided over the challenge to this regulation in Le v. British Columbia (Attorney General) and this past week provided reasons striking it down both on administrative law and constitutional principles.  In doing so Justice Smith provided the following comments on the regulation:

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MacIsaac & Company Investigating BC Employers With Gender Pay Gap

The gender pay gap is real.  In British Columbia particularly so.  Statistics Canada found that women make 18.6% less than men on average for equal work.  CBC reports this is the widest gender pay gap in the country.

MacIsaac & Company is investigating BC employers with particularly egregious gender pay gaps.

If you are a woman employed in British Columbia and have reason to believe you are being paid meaningfully less than male counterparts for identical work we would love to hear from you.

You can contact us here, in confidence and free of charge or obligation, tell us your story and have your legal options canvassed.

BC Victims ICBC Rights At the Mercy of the Police. Who Are Told Not To Attend Most Crashes.

A story is making the rounds that holds some sobering lessons for British Columbia crash victims.

If you get run over by a careless driver and the police don’t pursue criminal charges your rights are gone.  That’s right gone.  Your right to sue, your right to pain and suffering, your right to proper damages are gone.

This week a driver ran over four people.  The police provided a media statement seemingly minimizing the wrongdoing of the driver referring to them as ‘impatient’.  It is unknown if charges are being pursued.  But if they are not the victims of the crash will receive some harsh news.  Their rights to be fully compensated for their injuries will be gone as well.

How can this be?  Here’s the ugly truth –

The BC no-fault scheme takes away victim rights to sue at fault drivers for all crashes after May 1, 2021.  Section 116(2)(f) of the Insurance (Vehicle) Act then carves out an exception for criminal drivers.  So if you can prove that the driver that injured you was committing a crime at the time you can sue them right?  Nope.  It takes more than just that and its out of your hands.  Not only do they need to be committing a crime (from a very narrow ‘prescribed’ list) they need to be convicted of that crime.  This means that

  • after a crash the police need to attend
  • After gathering evidence the police must conclude that a prescribed criminal charge is warranted (the police have many options to charge motorists with provincial offences instead of criminal charges.  In fact the majority of the time when police conclude charges are warranted this is exactly what they do even for drunk and otherwise impaired drivers!)
  • Crown counsel must then conclude that sufficient evidence exists to approve the prescribed Criminal charge
  • No plea bargain to a lesser offence (such as a provincial offence which is how many of these cases end up being dealt with) can be reached
  • Lastly a conviction must be secured at trial for the prescribed offence

If there is a weak link anywhere in this long legal chain the victims rights are gone.

And get this – in 2019 the BC Government passed a regulation saying police don’t even have to bother to show up following most crashes.  No wonder they don’t take crashes seriously.  This is saving ICBC millions.  At the expense of innocent victims.

BC Court of Appeal Discusses Dual Role of Treating Physician as Expert and Lay Witness

Informative reasons for judgement were published last week by the BC Court of Appeal discussing the scope of what is permissible when a treating physician is called both as an expert witness and a lay witness (witness of fact).

In the recent case (Ford v. Lin) the Plaintiff was injured in a vehicle collision and sued for damages.  Following trial the Plaintiff appealed arguing treating physicians were unduly restricted by the trial judge when testifying.  The BC Court of Appeal found that no error occurred.  In doing so the Court provided helpful discussion on two points.  First the scope of permissible examination in chief from a party’s own expert under the current BC Supreme Court Rules.  Second the scope of permissible lay evidence that can be called from the same expert.

On the first point the Court noted as follows:

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BC Court Of Appeal Splits on Civil Resolution Tribunal Constitutionality

Just over a year ago the BC Supreme Court struck down various laws giving the Provincial Civil Resolution Tribunal jurisdiction over certain collision claims as unconstitutional.

Today the BC Court of Appeal overturned the judgment but in doing so the highest court in the province was split.

The majority found that the law was in bounds and granted the Government’s appeal.  Madam Justice Bennett issued dissenting reasons finding that the Province was undermining the uniformity and unity of the Canadian judicial system.  Given the split there is a good chance all the legal dust over the fate of this questionable law will not settle until the Supreme Court of Canada weighs in.  Time will tell if the appeal is headed there.

The full reasons can be found here (TLABC v. British Columbia) with the Court publishing the following headnote summarizing the majority and dissenting opinions:

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Proposed Class Action Lawsuit Filed Against Gymnastics Canada For Alleged Athlete Abuse

A lawsuit was filed today in the BC Supreme Court, Vancouver Registry, seeking to be certified as a class proceeding (commonly referred to as a class action) hoping to represent many gymnasts for suffering alleged physical, emotional and other harm in their sport.

In the lawsuit the Plaintiff, a former BC gymnast, alleges that in years of gymnastics she was exposed to physical abuse including

(a) routine over conditioning, including forced over stretching;
(b) routine hyper extension of the knees by coaches forcibly sitting on athletes’
knees;
(c) forcing athletes to perform skills while injured;
(d) forcing athletes to perform skills beyond their capabilities;
(e) directing and requiring athletes to maintain an unhealthy weight;
(f) inappropriate physical contact, including …having athletes run into 
arms and straddle his waist; and,

g) inappropriate physical contact, including …hiking athletes’ suits
higher on an athlete’s legs, hips and buttocks revealing their inner thighs
and buttocks.

Allegations of psychological abuse including:

(a) public berating, yelling and humiliation;
(b) verbal abuse and bullying, including statements such as “are you stupid?”;
(c) body shaming, including public weekly weigh-ins which were often
accompanied by verbally abusive and humiliating statements such as “what
have you been eating?” or “too many cookies this week?”;
(d) controlling and manipulative behaviour which included ignoring athletes
during training and competitions;
(e) depriving athletes of necessary instruction, spotting, assistance and
coaching;
(f) prohibiting parents from attending or observing practice; and,
(g) explicitly instructing athletes to not tell their parents what happened at
practice.

The lawsuit says the Plaintiff suffered harm from these practices, that many other gymnasts did as well from similar practices and the that the sports organizing bodies (Gymnastics Canada and various provincial sporting organisations) turned a blind eye to systemic problems in the sport and should be liable for the harm.

None of the allegations have been proven in court.  The Defendants have still have time to formally respond to the allegations.

The lawsuit claims that the sport organizing bodies should be liable under the legal principles of Systemic Negligence, Breach of Fiduciary Duty and Vicarious Liability.

Presently only one plaintiff is formally involved in the filed lawsuit but hopes to certify a very broad class covering

All gymnasts resident in Canada who claim that they were physically, sexually,
and/or psychologically abused while participating in Gymnastics Canada,
Provincial Member Organization, or Member Club programs, activities, or
events between 1978 and the present

In recent months many allegations were made from current and former athletes in a variety of organized sports in Canada including not just gymnastics but also boxing, synchronized swimming, rugby, rowing and others.

This lawsuit likely will not be the last flowing form similar allegations across many sports.  There will be challenging times, both in and out of court, for provincial and national sport organizing bodies in Canada flowing from these ever growing lists of allegations.

Boxing Canada Called Out For Ignoring Concussions

(Article originally published at my sister site CombatSportsLaw)

This week an open letter endorsed by 121 current and former athletes, coaches and officials of Boxing Canada called out the National Sport Organization and monopoly of amateur boxing in the country for various practices. The letter was republished with permission by Global Athlete and is the latest of a series of complaints critical of amateur sport organizations in Canada.

Among the serious complaints levelled were allegations that the organization forced athletes to put up or shut up when it came to poor practices regarding brain health. The letter notes as follows:

the High-Performance Director has forced athletes to train or compete in unsafe environments. Athletes have been forced to spar with clear signs of concussions or against teammates with significant weight class disparities, both of which were extremely unsafe. Athletes were forced to put up with the status quo if they wished to remain in the sport.

As a lawyer with nearly 20 years litigation experience in Canada let me give sports organizers, boxing or otherwise, food for thought – Sports organizers need to take these complaints seriously.

Taking athlete brain health (and health generally) is imperative. Coaches exist to get results but results can’t be prioritized ahead of athlete well being.

Concussion protocols exist for a reason. Ignoring these can expose a coach to civil litigation. Negligence law in Canada is robust and flexible. A coach ignoring a concussion and exposing an athlete to more brain damage contrary to established concussion protocols can be labile for any new injury. In fact the coach may even become liable for the entire injury (the initial concussion and its aggravation) under the principles of ‘indivisible injury’. You need not take my word on it, there are many examples of these legal principles alive and well in our courts.

If you are relying on waivers in many parts of Canada youth cannot waive the right to sue. Often waivers are not worth the paper they are written on.

If Sports Organizations (PSO’s and NSO’s) are turning a blind eye to systemic wrongdoing the accountability may go right up the food chain under the principles of vicarious liability.

Athlete health matters. Seeking the glory of results should never come at the price of athlete health and safety. If practices like those alleged in the open letter to Boxing Canada don’t change for the sake of doing the right thing then they should change out of a sense of self preservation.

Soccer Coach Sued For Allegations of Injury After Not Following Concussion Protocols

Interesting reasons for judgement were recently published by the Supreme Court of Nova Scotia allowing a lawsuit to continue against a youth soccer coach based on allegations that she made a concussion worse by allowing an athlete to continue playing contrary to concussion protocols.

In the recent case (Rutt v. Meade) the Plaintiff was injured in a vehicle collision and sued for damages.  The alleged injuries included a concussion.

A few weeks after the crash the Plaintiff  played in a national soccer tournament for her club.

The Defendants in the car crash lawsuit brought a third party action against the soccer club and the coach arguing it was negligent to allow the Plaintiff to play soccer while she was still dealing with concussive injuries from the crash and that participation in sport was contrary to the established concussion protocols and this added to her prolonged injury.   The coach and club asked to be let out of the lawsuit arguing they could not be responsible for the concussion which was caused by the car crash.

In denying the application and allowing the third party claim to continue the Court noted that depending on how the facts play out a coach could be found legally liable in such circumstances.  In allowing the claim to proceed  Justice Gail L. Gatchalian provided the following reasons:

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Ontario Court Creates The “Tort of Family Violence”

Late last year a BC Supreme Court decision illustrated the fact that civil consequences for domestic violence can sometimes greatly outweigh even criminal consequences in a case where over $800,000 in damages were ordered to be paid.

This month the judiciary in Ontario blazed new legal ground by creating the tort of “family violence”.

In the recent case (Ahluwalia v. Ahluwalia)  the parties were involved in divorce proceedings following a violent marriage.  Over and above  the typical payments for spousal support the Court created the tort of ‘family violence’ and ordered $150,000 in damages to be paid for this wrong.  In creating this new tort the Court provided the following reasons:

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ICBC Policy of Ignoring Friends and Family Witnesses Rejected by Civil Resolution Tribunal

ICBC has a terrible habit of ignoring evidence from friends and family members of crash victims.  If you are involved in a crash ICBC may tell you that your passengers (and any other friends and family members) that witnessed the crash are not true witnesses because of their relationship to you.

This is dead wrong.  Today we received reasons for judgement from the BC Civil Resolution Tribunal confirming this policy is nonsense.

Today’s case dealt with fault following a crash.  The parties gave differing accounts of how the crash happened. Worse than that the Respondent motorist asked the claimant to lie when reporting how the crash happened to ICBC to keep the Respondent out of trouble.  Despite this and despite an independent witness confirming the crash happened as the Claimant reported ICBC refused to find the Respondent fully at fault finding the witness was friends with the respondent therefore his evidence was of no value.  In rejecting this position as legal nonsense the BC Civil Resolution Tribunal published the following useful reasons that British Columbians should keep handy if faced with ICBC’s wrong policy:

ICBC argues that no weight should be placed on AW’s evidence because of his friendship with (the claimant).  This submission apparently reflects a common ICBC practice to refuse to consider evidence from a party’s family or friends.  This does not reflect the law of evidence or the CRT’s practice which routinely weighs evidence from witnesses with relationships to a party

The CRT went on to find the witness was reliable, that the Respondent was not, and overturned ICBC’s decision and found the Respondent fully at fault for the crash.