Reasons for decision were published last week by the Civil Resolution Tribunal ordering ICBC to pay over $400,000 in benefits and interest after finding they wrongly denied a widow spousal death benefits following a fatal collision.
In the recent case (Dion v. ICBC) the Applicant’s spouse died in a motorcycle collision in 2022. The Applicant applied for the spousal death benefit but ICBC refused to pay arguing that they were living separately at the time of the crash and therefore no longer spouses as defined in the applicable regulation.
Vic Chair Eric Regehr found that ICBC was wrong in denying the benefit and found that the Applicant was still the Defendant’s spouse despite them living separately. In doing so the Tribunal provided the following reasons noting living together is not a requirement under section 45(b) of the regulation:
Reasons for judgement were recently published by BC’s Civil Resolution Tribunal shaping the case law as to what is, and what is not, a “minor injury” for crashes that happened during the ‘minor injury’ era.
In the recent case (Ampabeng v. Madden) the parties were involved in a collision. The respondent suffered chronic soft tissue injuries and a shoulder injury. He worked a heavy physical job and the injuries caused him to shift to more administrative duties as his injuries largely disabled him from heavy physical labour. The injuries were also not expected to get better. Despite their serious nature ICBC still argued they were ‘minor’. (to little surprise as the label ‘minor’ was political trickery with the law drafted to catch many serious injuries including chronic pain and even some brain injuries).
The CRT found that these injuries were not minor and met the definitions of ‘serious impairment’ in the workplace. In allowing the respondent to take the case back to BC Supreme Court to have his damages fairly and fully assessed the CRT provided the following reasons:
The government replaced British Columbians right to sue careless drivers with what they call ICBC ‘enhanced care’. Sounds good right? Nice soundbite but of course the devil’s in the details and the truth is there is nothing ‘enhanced’ about the reality BC crash victims face. This week the latest case was published by the Civil Resolution Tribunal telling British Columbians the harsh truth about how ICBC income replacement benefits work.
In this week’s case (Nishimura v. ICBC) the Applicant was injured in a vehicle collision. She was employed as a heatlh care worker and the injuries rendered her disabled for a period of time. She asked ICBC to pay her wage loss but the corporation told her to drain her banked sick time benefits instead.
The Applicant used up the benefits. She then asked ICBC to reimburse them as she may need them for future disability and would be entitled to a payout of 40% of their value when she retired from her job. ICBC said too bad, the law makes her bear the burden.
The Applicant applied to the CRT for relief but the Tribunal, other than basically acknowledging the harsh law is not fair, said nothing can be done. The reasons speak for themselves. The law is rigged. Crash victims lose. ICBC wins.
I acknowledge Ms. Nishimura’s submission that the legislated accident benefits scheme is “not fair” to accident victims. Although she argues that no matter what has been legislated, she should be made whole by receiving reimbursement for her sick bank time, I am bound by the legislation. I note the legislation does not require ICBC to make Ms. Nishimura “whole”, but instead sets out ICBC’s obligations under its insurance policy. In this case, the legislation does not require ICBC to pay income replacement benefits when Ms. Nishimura had access to “other compensation” for the same loss. As noted, I am bound by the legislation, and therefore Ms. Nishimura’s claim is dismissed.
For two years BC crash victims were subject to the “minor injury” scheme. Basically a law labelling that most injuries are minor. Many British Columbians were surprised to find out that most injuries are labelled minor under this law despite common understanding of the word meaning otherwise. That’s legal drafting and defining in action. Legislative trickery. Words don’t always mean what you think they do, they mean what the government defined them to.
The constitutionality of the Civil Resolution Tribunal, the body given power to decide if injuries are ‘minor’, was in flux for years. With more legal clarity now determinations are being made. This week one of the first minor injury determinations was handed down with the Tribunal finding that an applicant’s chronic myofascial pain was caught by the broad BC Government definition of ‘minor injury’.
In the recent case (Silver v. All-West Heritage Glass Ltd.) the applicant was injured in a 2020 crash that the Defendant was at fault for. The crash caused chronic injury to the Plaintiff’s shoulder that continued to trouble her years later and interfere with some day to day activities. Despite the chronic nature of the injury the Tribunal provided the following reasons finding they fit the definition of minor:
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
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:
Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, setting aside a decision of the BC Civil Resolution Tribunal involving a dispute with ICBC addressing fault for a collision and ordering the matter be remitted for proper determination. In the process the BC Supreme Court had noted “the tribunal exercised its discretion arbitrarily and on the basis of predominantly irrelevant and/or non-existent facts“.
In today’s case (Devendra v. British Columbia Civil Resolution Tribunal) the Petitioner was involved in a crash prior to April 1, 2019 (the date the CRT obtained jurisdiction to hear most BC collision cases which was then declared unconstitutional last week). The CRT was accessed based on their jurisdiction not for vehicle collisions specifically but based on their small claims jurisdiction for claims under $5,000.
ICBC found the applicant fully at fault for the crash. The Applicant sued ICBC and the other motorist involved arguing “ICBC refused to properly investigate the incident” and asked that his deductible and increased premiums be returned. At the same time the other motorist sued the Applicant in the BC Supreme Court for alleged negligence causing injuries stemming from the same crash. ICBC “made clear in their written response to the tribunal that liability was not going to be an issue in the BCSC action“. Despite this the CRT decided they were not the appropriate forum to adjudicate the applicants dispute and the issue of fault was better to be decided in the BC Supreme Court. In finding the decision was patently unreasonable and failed to understand their role in a dispute of this nature Madam Justice Murray had the following critical findings:
Reasons for judgement were published recently by BC’s Civil Resolution Tribunal declining to refuse to determine a minor injury determination dispute despite the party having previous injuries from previous crashes with ongoing litigation in the BC Supreme Court.
In the recent case (Godwin v. Bui) the parties were involved in a May, 2019 collision. The Respondent was injured in the crash and proceedings were field in the CRT who wished to move ahead to decide both liability for the crash and whether the injuries at question were ‘minor’.
The Respondent noted it would be inappropriate to decide the issue as he was injured in two previous collisions that pre-date the CRT’s jurisdiction which were in active litigation in the BC Supreme Court. He argued that “the issues are so intertwined with the other actions that it would be impractical for the CRT to make any minor injury determination in this dispute“. The Applicant did not strongly oppose this with the CRT noting the Applicant “essentially agrees that all the matters should be heard together at the BCSC.“.
Despite this the CRT refused to decline to refuse their determination and noted they would go ahead with their decision. In reaching this conclusion Vice Chair Andrea Ritchie provided the following reasons:
I’ve written many times about the law of ‘accelerated depreciation’ claims in BC. In short when a vehicle is damaged in a crash it often suffers a loss of market value, even after all reasonable repairs are done. ICBC routinely chooses to ignore this reality when dealing with crash victims and raises invalid arguments trying to deny such claims. The damages for such claims can be pursued against the at fault motorist (through their liability insurance policy).
As was demonstrated in reasons published this week by BC’s Civil Resolution Tribunal there is no reason why such claims have to be limited to vehicle owner/operators but others with title interest in the vehicle can pursue such a claim. In what I believe is one of the first times this issue was addressed the Tribunal found that a vehicle lessor can also obtain damages for accelerated depreciation.
In this week’s case (Dual Mechanical Ltd. v. Vicencio) the applicants (a vehicle lessor and lessee) vehicle was involved in a crash caused by the respondent. The vehicle suffered an accelerated depreciation due to the damages from the crash. The applicants brought a claim arguing one or the other of them should be entitled to the damages. The CRT found that the vehicle lessor, given that title remained with them under the terms of the lease, was the appropriate party to be awarded these damages. In reaching this decision Tribunal Member Lynn Scrivener provided the following reasons:
The BC Civil Resolution Tribunal published reasons for judgment earlier this month dismissing an application for ICBC wage replacement benefits following 5 days of disability from a vehicle collision.
In the recent case (Cruz v. ICBC) the self represented applicant was injured in a December, 2019 collision. His injuries caused him to miss 7 days of work. He applied for ICBC to cover his wage loss under their no-fault benefits but they refused arguing he was not disabled enough days to qualify for benefits. The CRT agreed and dismissed the applicant’s claim. In doing so Tribunal Member Kristen Gardner provided the following reasons:
