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:
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.
Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, demonstrating that civil litigation can be an important tool to help achieve justice following physical assault where criminal repercussions alone fail to address harm caused.
In the recent case the Defendant battered the Plaintiff is a domestic incident. He was charged with criminal assault and plead guilty but was sentenced to an absolute discharge. The civil repercussions, however, were far heftier.
An employer offered an employee cash for sex. She declined. The employer subsequently fired her. The complainant initiated a Human Rights action where the Tribunal found improper sexual harrassment took place and ordered nearly $99,000 in total damages.
In the recent case (Ms. K v. Deep Creek Store and another, 2021 BCHRT 158) the Tribunal made the following broad findings of fact:
In this case Ms. K was 21 years old when Mr. Joung hired her to work for him at his convenience store. As Ms. K’s much older, male boss, Mr. Joung misused his power to sexually harass Ms. K. When Ms. K attempted to resist this sexual harassment, Mr. Joung made matters far worse by creating a hostile work environment, and then firing Ms. K. After Ms. K filed a human rights complaint related to this treatment, Mr. Joung set out to harass and intimidate her by trespassing at her home in the middle of the night.
The Tribunal found the following legal wrongs were proven:
Reasons for judgment were recently published by the BC Supreme Court, Vancouver Registry, ordering that an ICBC expert’s report was biased and not admissible at trial.
In the recent case (Didyuk v. Redlick) the Plaintiff was involved in three motor vehicle accidents and was claiming damages. In the course of the lawsuits ICBC used their power to send the plaintiff to an independent medical exam. This resulted in their expert authoring a report making numerous negative comments about the plaintiff’s credibility. In finding that expert was outright biased and not allowing the report into evidence Madam Justice Ahmad provided the following reasons:
MacIsaac & Company is pleased to announce the latest addition to our team of litigators!
Jessica is an experienced trial lawyer specializing in civil sexual assault claims. She has exclusively represented plaintiffs since the start of her career. She has appeared in all levels of court in BC. Jessica is an empathetic advocate who is inspired by the power and courage of her clients. She works with her clients to explore out of court resolutions when appropriate, but she is also a fierce and passionate litigator who truly enjoys going to court to advocate for her clients’ rights.
Jessica is the latest lawyer to join MacIsaac & Company’s “80% Associate Counsel Career” serving clients Province wide from Vancouver.
We are aggressively expanding under this unique program. Not limited to injury lawyers. We are looking for –
Family lawyers
Immigration lawyers
Employment lawyers
Criminal lawyers
Mediators/Arbitrators
Estate Litigators
And more. If you think you would be a good fit with our rapidly growing firm contact us today!
Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, ordering two defendants to pay over $650,000 in damages following an unprovoked attack.
In this week’s case (Andrews v. Shelemey) the Plaintiff alleged that the Defendants “came to his residence on August 3, 2015, as a result of a dispute concerning a transmission repair that Mr. Andrews had completed on Mr. Shelemey’s vehicle in late 2014 or early 2015. He says that without provocation, Mr. Shelemey and Mr. Leveque wrongfully and intentionally assaulted him resulting in serious injuries including a fractured sternum, soft tissue injuries to his back, rib fractures, a fractured lumbar vertebra, a broken tooth and various lacerations, bruises and contusions.”.
Despite the defendants denying fault the court found the unprovoked attack took place and held the Defendants jointly and severally liable to pay the damages. In reaching this decision Mr. Justice Mayer provided the following reasons:
Earlier this year we proudly launched our “80% Associate Counsel” career opportunity welcoming new talent to MacIsaac & Company under one of the more progressive arrangements in the legal industry.
We are pleased to welcome our first two associate counsel joining our firm under this arrangement. Edith Lau, who will help expand our firm’s practice into immigration law and wills & estates and Nigel Elliott, who will be our first associate based out of Vancouver and will help grow our firm’s human rights and estate litigation practices.
Earlier this month I had the pleasure of being interviewed by Canadian Lawyer Magazine about BC’s latest, one sided, and possibly unconstitutional limit on plaintiff disbursements in ICBC claims.
If you are visiting for the first time welcome! You can read my further thoughts on this topic with a link to reasons for judgement at my past article here.
Earlier this year a regulation came into force artificially limiting the recoverable disbursements in many motor vehicle actions to 6% of the damages. The government made little effort in disguising that this rule was brought in to save a single litigant money, namely ICBC.
In one of the first judicial comments on the regulation the Court noted that this rule places a disproportionate burden on plaintiff’s in proving their claims.
In today’s case (Zhang v. Scrott) the Plaintiff was injured in a 2018 collision (predating the retroactive regulation) and sued for damages. In advancing his claim the Plaintiff noted his disbursements may exceed the 6% cap. The Defendant applied for a defence medical exam. The Plaintiff argued this should be denied because if granted the plaintiff may need responsive evidence which would then result in further disbursements beyond the recoverable cap.
The Court, while granting the application, noted with a more fulsome record a litigant may succeed in arguing that the cap “upsets the balance of fairness and equality. In an appropriate case, it might be argued that the limit on recoverable disbursements weighs against an additional IME by the defence.”
In granting the application but noting the regulation’s disproportionate burden Master Elwood provided the following reasons:
