I have previously discussed the harsh reality that when a person is injured through the intentional, criminal wrongdoing of others they often face a far tougher road to receiving fair compensation for their injuries through the legal system as compared to victims of negligently caused harm. The reason being that when people are injured through negligence defendants are often insured to pay for the damages. When people are injured through crime this usually is not the case leaving the victim not only with the legacy of their injuries but with a possible ‘dry judgement’ in the event they sue for damages.
Reasons for judgement were released recently by the BC Supreme Court, Port Alberni Registry, dealing with a criminal assault which made me consider this issue again. In the recent case (Thornber v. Campbell) the Plaintiff was the victim of a “brutal and unprovoked” assault by the Defendant as the Plaintiff “lay sleeping in his bed“. The assault caused “multiple facial, head and neck, and jaw contusions…oral/dental injuries including multiple dental fractures…PTSD…(and) recurrence of a previously-suffered Major Depressive Disorder“.
The Defendant was criminally convicted for the assault. The Plaintiff sued for damages and had his non-pecuniary damages assessed at $125,000. Notably the Defendant did not participate in the proceeding leading me to the suspect that this Plaintiff may have little more than a dry judgement following this assessment. If that is the case it is worth repeating my views about whether this issue should be reviewed by the legislature to create a meaningful compensation system for victims of crime who pursue ‘dry’ damages through the tort system. For the sake of convenience here were my previous thoughts: The law recognizes that those harmed through the fault of others are entitled to reasonable compensation. When it comes to negligently caused harm defendants are often insured and plaintiffs can collect their judgements. In cases where Defendants hold inadequate insurance examples can be found where legislatures have intervened to ensure victims can collect on their judgments. For example, in BC, Section 20 of the Insurance (Vehicle) Act provides a pool of $200,000 of available compensation from ICBC for damages caused by uninsured motorists. A further example is the requirement for BC motorists to purchase a minimum of one million dollars of under-insured motorist protection coverage. When plaintiffs suffer harm through intentional torts, however, there often is no insurance to protect the wrongdoer or compensate the victim. This is an unfair reality in Canadian law. Victims harmed through assault, battery, sexual molestation and other intentional acts are often faced with dry judgments. When they seek legal advice they are often turned away being told that litigation may not be worth the effort unless the Defendant has deep pockets There is no justification I can think of making it fair for a car crash victim to be able to collect their judgement from a pool of money created by the government when the victims of crime are left with dry judgments. The financial well being of a defendant has no bearing on a victim’s right to damages. If the government has seen fit to create a pool of funds for victims of motor vehicle collisions to collect from surely a similar system can be created to allow victims of intentional torts facing dry judgements. This is a rough idea. Thoughts and feedback are welcome from lawyers and non-lawyers alike.
Comments and feedback are welcome.
Earlier this month I called BC’s Justice Reform Initiative ‘political theatre’ if Bill 44 and 52 passed before the government received Geoffrey Cowper’s final report. My opinion, unfortunately, has fallen on deafened ears as these bills have now gone through Committee and passed Third Reading.
Fortunatly for the those British Columbians unhappy that their right to a fair trial is being taken away when faced with a traffic dispute, you can point to MLA Kathy Corrigan’s comments from the House floor when challenging the Constitutionality of this legislation, where she declares that “The scheme would not survive a Charter challenge as so many personal rights and freedoms are being removed under the legislation“. (Click here for the link and scroll down to 1930 for the MLA’s comments).
(UPDATE February 15, 2013 – The decision discussed below was overturned by the BC Court of Appeal in reasons for judgement released today) I recently highlighted on-going friction between the BC Government and our Judiciary. In the latest chapter of this story, reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, striking down Court “hearing fees” and providing strong criticism to the Government with respect to their constitutional duty to properly maintain Superior Courts.
Included in Mr. Justice McEwan’s robust reasons for judgement (Vilardell v. Dunham) was the following constitutional lesson to Government: (1) Access to the s. 96 courts is a fundamental premise of the constitutional arrangement of Canada which cannot be materially hindered by anyone (BCGEU), including either Parliament or the legislatures, just as public and political discourse may not be abrogated by law (Alberta Reference). (2) The mandate of the Province under s. 92(14) is to maintain, that is, to provide adequately for, the courts. It does not include the power to legislate in a manner that impairs the court’s ability to fulfill its proper role in a democracy. This responsibility is of precisely the same importance as the responsibility of governments to maintain the functions of legislatures and the executive branches of government. As a constitutional responsibility, the maintenance of the superior courts does not compete with the government’s discretionary expenditures. (3) Hearing fees are a barrier to access imposed by one branch of government over another. For the reasons I have set out, this creates a constitutionally untenable appearance of hierarchy. The court cannot fulfil its democratic function as an independent and impartial arbiter between government and the individual, or between individuals, if the government limits those who may come before the court by means of financial or procedural deterrents. In this respect, the AGBC’s position that so long as the government does not interfere with he cases the court is permitted to hear judicial independence is respected, is an inappropriately constricted view of the court’s constitutional place. So is the notion that it may tell the public, whose interests may occasionally be adverse to those of government, that for them the courts are a “valued but last resort”. Courts must be available to the public on precisely the same basis as they are available to government: as a place they are free to attend when they seek a authoritative determination of a right or legal position according to law. Going to law is not a form of failure or an act of deemed unreasonableness: it is better understood as an affirmative act of faith in the authority of the law. (4) The AGBC’s anxious concern for trial efficiency is misplaced. Courts of inherent jurisdiciton are equipped with all the tools they need to manage trials and to deter time wasting, and they use them. It is an incursion upon judicial independence for the government to purport to influence the courts by manipulating fees… …The office of the Attorney General also fulfils an essential role in the protection of the public interest, which includes concern for the rights of disadvantaged and the vulnerable.  The Attorney General has a further role to play in explaining the function of the courts to government. The preservation of the core values of our Constitution including inclusiveness, equality and citizen participation are entrusted to the Attorney General as much as they are to the Courts…It is therefore a matter of serious concern that the Attorney General has come to this Court with a submission that appears so dismissive of these fundamental aspects of our system of government…  …The position taken by the AGBC in this case has shown not merely an error in its approach to an aspect of financing the courts, but a significant misunderstanding by the government of its responsibilities under, and the limitations on, its constitutional mandate under s. 92(14) of the Constitution Act, 1867.  The Court is an essential forum of that common life, and cannot perform its necessary function if it, like so much else, is subject to the values of the marketplace the government has used to justify the fees. Some things cannot be for sale.
Cynicism is an undesirable lens to view matters through but sometimes it is appropriate. Unfortunately, some of the recent Bills introduced this week in the BC Legislature make it very difficult to view BC’s Justice Reform Initiative in any other way.
You may recall earlier this year the Government made a bold presentation highlighting perceived shortcomings in BC’s Justice System. The Government announced that a Justice Review would be undertaken to “identify actions that government, the judiciary, the legal profession, police and others can take to give British Columbians more timely and effective justice services“
The Government appointed Mr. Cowper to head this review and he was tasked to “report to government as he develops recommendations around engagement of key institutions and stakeholders. Government will provide periodic updates in response to his recommendations and he will make his final report to government by July 2012.”
It is now early May. We are two months away from Mr. Cowper’s “final report“. Despite this, the Government has introduced two Bills which have passed second reading seeking to drastically overhaul BC’s civil justice and traffic court system. Specifically I’m referring to Bill 52 and 44. I discussed these here and here.
If the Review’s final recommendations are not in yet how can laws seeking massive overhaul to BC’s civil and regulatory justice system be introduced? If these Bills pass Third Reading in the Spring Session, it appears the Justice Review is mere political theatre. If not, and the Government actually takes Mr. Cowper’s findings into consideration before passing these laws, then I will admit to being too quick in playing the cynicism card.
Remember the political fallout several months back when ICBC proposed to increase insurance premiums based on a single driving violation? The Government called ICBC’s proposal “unfair” and “not appropriate”. Something must have changed since then because the Government has now introduced a Bill to give ICBC the power to levy “additional premiums” that ICBC considers appropriate based on driving point penalties.
In the whirlwind of new Government legislation recently introduced, Bill 52 received second reading this week. This legislation seeks to drastically overhaul BC’s motor vehicle offense ticketing dispute system by taking these matters away from our Courts and instead creating administrative tribunals to process disputes.
In addition to the above, the Bill seeks to amend Section 34 of the Insurance (Vehicle) Actas follows:
13 Section 34 (1.1) is amended
(a) by adding the following paragraphs:
(d.1) adopt or establish a driver assessment point system classifying drivers according to the number, nature and kind of contraventions of driving enactments under the Motor Vehicle Act;
(d.2) in respect of a driver assessment point system adopted or established in accordance with paragraph (d.1), adopting or establishing a method by which point penalties may be converted or compared to driver assessment points for the purposes of assessing and levying basic or additional premiums under the plan against drivers at the times and under the terms and conditions the corporation considers appropriate; , and
(b) by repealing paragraph (e) and substituting the following:
(e) according to any system of classifying drivers adopted under paragraph (c), a point penalty system adopted or established under paragraph (d) or a driver assessment point system adopted or established under paragraph (d.1), assess and levy basic or additional premiums under the plan against drivers at the times and under the terms and conditions the corporation considers appropriate.
In short, this law will give ICBC the power to increase premiums “under the terms and conditions (ICBC) considers appropriate“. This legislation leaves no checks and balances to ensure that what the Government recently called unfair does not become the law of the land.
While the Bill’s goal of freeing up police and judicial resources is worthwhile, the devil’s in the details. As a practical matter this is what the Bill will accomplish:
1. If a “driving enforcement officer” (ie – a police officer) doesn’t like your driving you receive a “driving notice” (ie – a ticket)
2. You lose your right to judicial challenge, instead you are now called a “disputant” and must place your challenge with a newly minted “Driving Notice Review Board“. Of note, you won’t have the right to cross-examine your accuser at your “resolution conference“.
3. If/when you lose your dispute before the Board you are issued a “monetary penalty“
4. If you cant afford to pay the penalty ICBC can refuse to issue you a licence
5. Last but not least ICBC will issue you “point penalties” and you will then pay higher insurance premiums based on whatever system ICBC develops.
As previously noted, BC’s Government and Judiciary are involved in a public row with the Government accusing the Courts of being inefficient and the Judiciary responding with complaints of underfunding. Additionally these two branches of Government are involved in litigation with the BC Court of Appeal recently upholding an order forcing the Government to produce otherwise confidential Cabinet submissions in a salary dispute with the BC Provincial Court. Enter Bill 44. This legislation, which just passed first reading, seeks to create “Civil Resolution Tribunals” which will run side by side with BC Courts. Their jurisdiction is anticipated to be ever-expanding by simple Order in Council with the ability of the Government to include anything that “could be dealt with by a Claim in Provincial Court under the Small Claims Act”.
Perhaps the most troubling aspect of this scheme is set out in Section 20 which holds that, except in very limited circumstances, parties must “represent themselves“. It does not take much imagination to understand that stripping people of the right to a lawyer provides a great advantage to institutional litigants.
The Government sets out that this legislation is designed to create “accessible, speedy, economical, informal, and flexible” dispute resolution. Although these goals are laudable, on scrutiny the Government does not appear to put its money where its mouth is with Section 9 specifically exempting claims against the Government from the jurisdiction of these tribunals. As Vaughn Palmer points out, this Bill is included in a “loaded up” legislative agenda making full scrutiny difficult with limited time. Legislation taking disputes away from the judiciary and further stripping people of the right to representation deserves public scrutiny. I imagine BC’s Provincial Court judges will have strong opinions on the matter as well. Whether these are voiced remains to be seen.
One myth I like to dispel is the idea that there are too many frivilous lawsuits in Court or that the system is not equipped to deal with such claims when they do arise. Special interest groups push stories of ‘lawsuit abuse’ arguing that change is necessary. The truth, however, is that frivolous lawsuits can and do get weeded out of Court. As previously discussed, BC Courts have very effective tools for eliminating bad lawsuits the most powerful of which is a “vexatious litigant” order.
In short a vexatious litigant order can strip a person of their right to sue without first getting judicial approval. Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, making such an order. The reasons are here and are worth reviewing in full to gain insight into the consequences of such an order and the circumstances when one could be made.
When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
This blog is authored by personal injury and ICBC Claims lawyer Erik Magraken. Use of the site and sending or receiving information through it does not establish a solicitor/client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.