Author: ERIK MAGRAKEN

Earlier this year the BC Government passed a law (whose legality is being challenged) arbitrarily capping disbursements at 6% in “vehicle injury proceedings”.  Artificially capping disbursements requires plaintiffs to use great caution in what disbursements they incur in advancing their claims.  This in turn often means limited record production.   Defence frequently are now displeased wishing for more records to scrutinize and are met with resistance due to this rule.

With this context in mind the BC Supreme Court recently reminded litigants that there is no obligation for plaintiff’s to obtain records on defence counsel’s wish list.  If the records are relevant, obtained and in the possession or control of the plaintiff they must be listed and disclosed accordingly.  However, if they are true third party records, such as hospital charts, plaintiffs have no obligation to obtain these and defence must bring proper application with notice to the record holders for production (and most importantly be prepared to shoulder the disbursements themselves).

In the recent case (Choy v. Stimpson) the Defendants wished for clinical records documenting an injury the plaintiff sustained which could be relevant to the lawsuit in question.  They asked the plaintiff to disclose these records even though the plaintiff did not have them in his possession.  In dismissing the application and reminding counsel that the Plaintiff has no obligation to obtain records the defence wishes for the Court provided the following reasons:

A video is making the rounds of an RCMP member ordering a journalist to be “silent”,  “quiet” and not to “engage” with the police at all while filming ongoing tensions between authorities and logging protests.

As with other cases of police unhappy being filmed while out in public real caution needs to be exercised to ensure they are not infringing on the Charter rights of Canadians lawfully gathering news and recording matters of public interest.

Section 2 of the Charter guarantees various “fundamental freedoms” including “freedom of the press and other media of communication…freedom of peaceful assembly and freedom of association“.

The Supreme Court of Canada has made it clear that “the freedom to disseminate information would be of little value if the freedom under s. 2(b) did not also encompass the right to gather news and other information without undue governmental interference.“.

It is true that members of the public cannot go so far as obstructing police in doing their jobs while exercising these freedoms but numerous cases exist of false allegations of obstruction in order to shut down individuals from exercising their rights.  The following judicial comments from R v. Zarafonitis, 2013 ONCJ 570 are of value on the interweaving of these rights and obligations: 

In a recent decision of the BC Civil Resolution Tribunal and ICBC settlement was upheld despite the injuries proving worse than the Applicant had expected at the time of reaching a deal.

In the recent case (Vaidyanathan v. Kaye) the Applicant was injured in a crash caused by the Respondent.  The Applicant accepted an ICBC settlement for the minor injury cap of $5,500 (a cap that is being judicially challenged as being in violation of the Canadian Charter of Rights and Freedoms whose fate is yet to be decided).

Following settlement the Applicant was displeased with the deal finding the injuries were more compromising than anticipated.  He sued for damages.  In dismissing the claim as already settled the Tribunal provided the following reasons which serve as a good reminder that it is sensible to obtain legal advice before agreeing to an ICBC settlement to assist with making an informed decision:

$10 million?

$100 million?

$1 billion?

Even more. $1,538,000,000 to be precise.

According to ICBC’s Annual Report “ICBC’s corporate net income for the fiscal year, which ended March 31, 2021, was $1.538 billion, of
which $1.527 billion was attributed to ICBC and $11 million was attributed to non-controlling interest”

Remember when the BC Government and ICBC said they were a dumpster fire?  Said your rights had to be taken away (they called taking your rights away “enhanced care”) in order to avoid financial calamity?  Turns out it was all a lie.

In the fiscal year ending March 31, 2021 (a month before the no fault system even came into force) ICBC did not lose millions as the government claimed they were going to.  They made over 1.5 billion.

And now they’ve stripped your rights.  As this grieving family learned.  And this British Columbian.  And countless others.

The government told you there was a crisis.  That your rights had to be stripped to avoid it.   Turns out that was not true.  But they got what they wanted.

If you are struck by a careless motorist now you don’t have any rights against them.  But ICBC has billions.

We are hiring!

MacIsaac & Company is proud to announce our “80% Associate Counsel Career!”.

One of the most generous pay structures in the legal industry!

We are flipping the owner/employee model on its head.  If you are interested in a career where you can practice what you want, from where you want, without billable targets and the ability to keep up to 80% of your billings check us out!

A model giving you the best of both worlds between solo practice and employment with one of BC’s longest established firms.

If you are thinking of branching out on your own give us a look first.  You’ll like what you see!

Details here – https://macisaacandcompany.com/associate-counsel/

As readers of this site know the BC government stripped victims’ rights to sue careless and even reckless drivers for almost all crashes after May 1, 2021.

The law taking these rights away is short and to the point.  Section 115 of the Insurance (Vehicle) Act reads as follows:

You read that right.  ICBC’s ‘enhanced care’ benefits value the loss of a child at the hands of a negligent driver less than what they value for vehicle damage.

I have been fielding questions about the harsh realties of ICBC’s no-fault system since it came into force on May 1, 2021.  Many British Columbians were deceived thinking they were getting better coverage for less money.  They were deceived because the BC Government spent millions of dollars on ad campaigns to do exactly that.

After being asked on Twitter why the drivers themselves can’t be sued and continuing to explain the actual new law to more baffled British Columbians one user pointed to grieving parents learning of one of the cruelest truths of ‘enhanced care’.  A child’s life being valued less than a damaged vehicle.

There have been a lot of terrible stories in recent weeks of pedestrians, cyclists and other road users suffering tragic injuries and even death at the hands of reckless motorists.  I will not link to any individual stories as I don’t want to use personal tragedy as a talking point.  Accept with a quick google news search you can verify this as fact.

Many of these victims are learning the hard reality that their rights to sue for compensation for their profound losses have been taken away.

The BC government stripped victims’ rights to sue careless and even reckless drivers for almost all crashes after May 1, 2021.  I’ve been fielding more calls than I like explaining this to people.  The BC Government conveniently left themselves a talking point pretending that if the at fault motorists actions amount to criminal behaviour victims can still sue.  However, this is at best a half truth.  Let’s break this down –

The BC no-fault scheme takes away victims rights to sue at fault drivers.  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 (remember the government passed a law saying police don’t have to attend most crashes)
• 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 for the prescribed offence

Unless the government gets all of the above steps right you are out of luck.  It does not matter if you are maimed.  It does not matter if a loved one died.  It does not matter if the at fault driver actually was committing a prescribed crime at the time and you can prove it.  Unless the government decides to do everything right and actually gets it right you simply do not have the right to sue the at fault motorist.

And if that’s not enough the government only allows victims in these very narrow circumstances the right to sue the at fault driver for “non-pecuniary damages and punitive, exemplary or other similar non-compensatory damages” instead of damages for all their actual losses.

Below is the very narrow list of ‘prescribed offences’ committed after December 18, 2018 that trigger a victim’s right to sue:

Schedule 10 – Prescribed Conditions

“motor vehicle related Criminal Code offence” means any of the following offences that an insured commits while operating or having care or control of a vehicle or by means of a vehicle:

(a)an offence under section 220 or 221 of the Criminal Code;

(b)an offence committed before December 18, 2018 under any of the following provisions of the Criminal Code:

(i)section 249;

(ii)section 252;

(iii)section 253 (1) (a);

(iii.1)section 254 (5);

(iv)section 255 (2);

(v)section 255 (3);

(vi)section 259 (4);

(c)an offence committed on or after December 18, 2018 under any of the following provisions of the Criminal Code:

(i)section 235;

(ii)section 236;

(iii)section 239 (1);

(iv)section 320.13 (1);

(v)section 320.13 (2);

(vi)section 320.13 (3);

(vii)section 320.14 (1) (a);

(viii)section 320.14 (1) (b);

(ix)section 320.14 (1) (c);

(x)section 320.14 (1) (d);

(xi)section 320.14 (2);

(xii)section 320.14 (3);

(xiii)section 320.15 (1);

(xix)section 320.15 (2);

(xx)section 320.15 (3);

(xxi)section 320.16 (1);

(xxii)section 320.16 (2);

(xxiii)section 320.16 (3);

(xxiv)section 320.18 (1).