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Wrongful Death Law Reform in BC Closer to Reality

Written by admin on . Posted in Tort Reform, Uncategorized. 61 Comments on Wrongful Death Law Reform in BC Closer to Reality


As previously discussed BC’s Family Compensation Act(the statute dealing with lawsuits for damages for wrongful death in BC) is out of date, inadequate and in need of reform.  I’ve had the unfortunate experience of fielding too many phone calls over the years explaining that the wrongful death of many people was seen as worthless in the eyes of the law.  Members of the Trial Lawyers Association of BC along with other organizations such as the BC Coalition of People With Disabilities have been working for years to persuade the government that reform is needed in this area of law.  It seems all of this effort is slowly but surely paying off.
West Vancouver MLA Ralph Sultan has introduced a Bill which seeks to amend BC’s outdated Family Compensation Act.   Mr. Sultan stated as follows when introducing the Bill “The Family Compensation Act Amendment Act would permit the court to award damages up to specified limits for grief, and loss of guidance, care, and companionship to spouses of deceased persons as well as parents and children…This amendment is a carbon copy of the statute currently on the books in Alberta granting the potential for the court to grant awards, within limits, for those who have suffered the tragedy of wrongful death. The Family Compensation Act Amendment Act is consistent with the families-first agenda of this government.“
The Bill is titled “The Family Compensation Act Amendment Act” and can be found here.  It is designed to provide greater accountability for those who take the life of another in BC and will bring better compensation rights for families who lose a loved one through the wrongful act of another.  Specifically it seeks to amend section 3 of the FCA by adding the following provision:


(10) If an action brought under this Act, the court, without reference to any other damages that may be awarded and without evidence of damage, shall award damages for grief and loss of the guidance, care and companionship of the deceased person of

(a) subject to subsection (3), $75,000 to the spouse ofthe deceased person,

(b) $75,000 to the parent or parents of the deceased person to be divided equally if the action is brought for the benefit of both parents, and

(c) $45,000 to each child of the deceased person.

(11) The courts shall not award damages under subsection 10 (a) to the spouse if the spouse was living separate and apart from the deceased person at the time of death.




I should point out that this new Bill is not law yet and likely won’t go beyond first reading before the Legislature’s Spring session closes on June 2, 2011.  The proposed amendment is a step in the right direction but can certainly go further in bringing meaningful compensation to those who lose a loved one through others actions.  I suggest all who support this much needed reform take a brief moment to contact Ralph Sultan and thank him for tabling this welcome legislation  along with making suggestions to improve these amendments before they become law.

Government Introduces Bill Giving ICBC Direct Access to Your Medical Records

Written by admin on . Posted in ICBC Privacy Issues, Tort Reform, Uncategorized. 55 Comments on Government Introduces Bill Giving ICBC Direct Access to Your Medical Records


Today Bill 13 (The Miscellaneous Statutes Amendment Act No. 2) received First Reading. I’ve had a chance to review some of these newly proposed laws and came across a potentially troubling section seeking to give ICBC significant powers to access the medical records of British Columbians.
Specifically, the Government is proposing to amend section 25 of the Motor Vehicle Act as follows:






Information-sharing agreement for Medicare Protection Act purposes

25.02 (1) The Insurance Corporation of British Columbia may enter into an information-sharing agreement with the Medical Services Commission under the Medicare Protection Act for the purposes of collecting, using and disclosing personal information necessary for the administration of

(a) section 25 (1.3) of this Act, and

(b) the Medicare Protection Act, as it relates to the enrollment and renewal of enrollment of beneficiaries under that Act.

(2) If the Insurance Corporation of British Columbia enters into an information-sharing agreement under subsection (1), the Insurance Corporation of British Columbia may, in accordance with the agreement, collect and use personal information from, and disclose personal information to, the Medical Services Commission.







This new power is being given to ICBC to help introduce a new Care Card which is designed to cut down on fraud.  While fraud protection is laudable its important not to exceed this goal by unnecessary erosion of the privacy rights of British Columbians.  A review of the proposed change does not seem to put any concrete limits on ICBC’s power to access medical records or the use these can be put to once obtained.
If you have concerns about this new proposed power I suggest you contact your local MLA or BC’s current Minister of Public Safety and Solicitor General (Shirley Bond) and voice these before this bill passes into law.

What's All This Then? ICBC's Transformation 2014 Program

Written by admin on . Posted in Tort Reform, Uncategorized. 61 Comments on What's All This Then? ICBC's Transformation 2014 Program

Recently I’ve heard a lot of talk about an ICBC program called Transformation 2014.   I’ve been keeping my eye out for information on this project and last week it hit the mainstream media with CBC News breaking a story about it.
ICBC took issue that CBC had some facts wrong in their reporting with the following tweet:

In any event, shortly after this ICBC released an explanatory announcement on their website and further a 13 page document titled “Our Journey: building the new ICBC” to better explain what ICBC’s Transformation 2014 is all about.
This weekend I had a chance to review this document.  In short there is not much detail about how this transformation is going to take place or specifics of changes that will be made.  I posted the following question and thoughts on my twitter stream:

If anyone is aware of further details or has specifics regarding ICBC’s 2014 Transformation plan please don’t hesitate to contact me.

The BC Political Landscape and Tort Reform

Written by admin on . Posted in Tort Reform, Uncategorized.


This blog is not politically oriented, however, one issue I like to keep my eye on is so-called tort ‘reform’.  As previously discussed, tort reform generally refers to limiting the rights of those injured through the carelessness of others to the benefit of insurance company profits.   Ontario is currently undergoing such a proposed ‘reform’.
With the significant recent changes in BC’s political landscape I’ve been curious about our political parties views on tort reform.  When Mike de Jong was running for the BC Liberal leadership he was kind enough to respond to my question addressing some positive changes that can be made to BC’s wrongful death laws.
More recently Dave Eby has thrown his hat into the political ring taking on Christy Clark.  I asked him about his views on tort reform and he advised that he does not believe in limiting the rights of injury victims through tort ‘reform’ with the following exchange:

Dave’s response was welcome and I was impressed with his accessibility.  I have asked Christy Clark about her views on the topic but she has not yet replied.   If she is from the same school of thought as Mike de Jong I am cautiously optimistic that she is not a tort ‘reformer’ but would of course be happy to have a clear reply on the topic.
If anyone has any insights with respect to the BC Liberals and NDP’s views on so-called reform feel free to share your insight with me.

Mike de Jong Addresses Wrongful Death Law Reform in BC

Written by admin on . Posted in Tort Reform, Uncategorized. 60 Comments on Mike de Jong Addresses Wrongful Death Law Reform in BC

As I’ve previously discussed, if a person dies through the carelessness of others in British Columbia claims for damages by surviving family members must be brought under the BC Family Compensation Act. This outdated law has been the subject of much criticism due to its restrictions for survivors claims. You can find an in-depth analysis on this topic here.
Recently BC Liberal leadership candidate Mike de Jong gave the following invitation:

I took this opportunity to ask Mike the following two questions:

Mike was kind enough to answer my first question on this recent video he uploaded to YouTube:

My question is addressed 1:13 into the clip.  For the sake of convenience here is Mike’s answer transcribed:
“That’s a good question because I think our laws in BC have fallen a little out of step with what’s happened in other jurisdictions and my belief is that if an accident occurs and someone loses a loved one they should be entitled to the same type of compensation as is available to the families elsewhere in Canada and that is not presently the case in British Columbia and I think it’s time we updated our laws in that respect.  It’s really about fairness for BC families.  Thanks for the question”
Maybe Mike will tackle my second question on his next episode of Open Mike Mailbag.  Given Mike’s views on wrongful death laws I’m optimistic he is not a tort ‘reformer‘  (for those unfamiliar with the phrase, tort reform generally refers to limiting the rights of those injured through the carelessness of others to the beneift of insurance company profits)  but a clear stance is always appreciated.  Thanks Mike.

A Suggested Change at ICBC To Benefit British Columbians

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits, Tort Reform, Uncategorized. 71 Comments on A Suggested Change at ICBC To Benefit British Columbians


Whether you are a plaintiff lawyer, a defence lawyer, an adjuster or someone insured with ICBC I think we can all agree that there is one ICBC practice that could change to better serve British Columbians.  I’m talking about the practice of assigning the same adjuster to deal with Tort and No-Fault Benefit claims.
As I’ve previously discussed, ICBC usually fulfills two roles in the context of injury claims.  The first is that they insure people for “no-fault” benefits.  If you are insured, whether or not you are at fault for a collision ICBC provides some basic coverage for medical/rehabilitation expenses and a modest wage loss benefit in the event of total disability.  If you are seeking coverage ICBC assigns an adjuster to process your claim no-fault benefits.
At the same time ICBC usually provides coverage to the at fault party for any claims made against them.  When a faultless party is injured and wishes to be compensated for the full extent of their damages they make a tort claim.  ICBC assigns an adjuster to process these tort claims.  The difficulty, however, is that ICBC typically assigns the same adjuster to deal with the faultless parties claims for no-fault benefits and to process the tort claim made against the at fault party.
As a business decision ICBC’s policy makes sense.  Why assign two people to look after various claims being advanced as a result of a single event?  It is more cost effective to get one adjuster to learn about the crash, the parties involved, the various injuries and the claims being advanced.  As a practical matter, however, one person cannot fulfill both these roles in a completely impartial way.
In reality adjusters processing a no-fault benefits claim have a very different duty compared to an adjuster processing a tort claim.  In a no-fault benefits claim the adjuster owes a duty to the injured party to provide them with their insurance benefits.  If therapies are required these should be covered.  If disability occurs wage loss benefits should be provided.
In tort claims, however, the adjuster owes a duty to the at fault party.  If claims are being advanced the at fault party will want those settled for as little as possible as the funds are paid from their coverage.  It is difficult to imagine how one adjuster can fulfill these competing duties fairly and impartially.  The conflicting duties create an inherent conflict of interest.  (You can click here to read an article providing a real world example of how this conflict can play out to harm the interests of a person injured through no fault of their own).
After reading this you may be asking yourself whether ICBC’s practice is lawful.  Unfortunately, the answer is yes.  This practice has been brought before the Courts and is tolerated.
However, just because a practice is accepted does not make it right.  Since the Courts are not able to correct this practice the ability to change is in the hands of ICBC.
The solution is simple.  ICBC can assign separate adjusters to deal with tort and no-fault claims.  Once done ICBC can set up internal ‘walls’ to prevent the adjusters from accessing each others files.  This would add more fairness to the application process for no-fault benefits.  This would also help ensure that information shared by a party with their insurer to receive medical treatment is not automatically disclosed to the agent of the person responsible for causing the injuries.  This is a proposed change, I hope, we could all agree on.
As always, feedback is welcome on this forum and I’d appreciate views from others about this topic, particularly views from people who feel these proposed changes would not be beneficial.

Change is Coming to BC Limitation Law

Written by admin on . Posted in Civil Procedure, Tort Reform, Uncategorized. 74 Comments on Change is Coming to BC Limitation Law

The Government of BC intends on overhauling the BC Limitation Act. As Ian Mulgrew of the Vancouver Sun points out, this proposed law reform is something that matters to everyone, not just personal injury lawyers and claimants.

The Government has released a White Paper discussing the proposed changes at length. The proposed New Limitation Act can be found at Appendix A of the White Paper. On review it is clear that the proposed changes are not concrete and the Government is seeking feedback before bringing the law into force.

Members of the public can contact the Government with any concerns or suggestions no later than November 15, 2010, at:

Civil Policy and Legislation Office

Justice Services Branch

Ministry of Attorney General

PO Box 9222 Stn Prov Govt

Victoria, British Columbia V8W 9J1

Fax: 250 387-4525

E-Mail: CPLO_Limitation@gov.bc.ca

One of the goals of the reformed act is to “simplify” the law. On review there is nothing simple about the proposed new law and it seems every bit as complex as the current Limitation Act. There are some proposed changes that are noteworthy including:

Replacing varying basic limitation periods with a standard 2 year period

Reducing the Ultimate Limitation Period from 30 years to 10 or 15 years

Redefining “Discoverability” of a potential lawsuit

Abolishing the special ultimate limitation period for medical malpractice claims

Continuing to waive limitation periods for civil lawsuits for damages as a result of sexual assault

There are other proposed changes as well and I suggest that anyone interested in this topic review the proposed new law in full.  If you have concerns about how these reforms may affect your rights or have suggestions for improved changes please be sure to contact the Government prior to the November 15 deadline.

Ontario Proposes Artificial Caps for "Minor Injuries"

Written by admin on . Posted in Tort Reform, Uncategorized.


Although this blog is focused almost exclusively on British Columbia legal issues relating to personal injury claims, I do like to keep my eye on other Canadian jurisdictions to stay appraised of significant legal developments.  One topic I particularly focus on is so called ‘tort-reform‘ which is generally code for efforts to change the law by limiting the right of compensation to those harmed through the carelessness of others.
As I recently posted, while Nova Scotia has recently taken steps to remove their long-standing artificial caps on pain and suffering awards for so called ‘minor injuries‘, Ontario seems to be moving in the opposite direction.
Today I came across this article from the Canadian Underwriter website which states that “Ontario’s insurance regulator, the Financial Services Commission of Ontario (FSCO), has posted its new Minor Injury Guideline (MIG), a key pillar of the province’s proposed new auto insurance reform package.”
Under the proposal people with ‘minor’ injuries are entitled to benefits “subject to a $3,500 limit“. The proposed definition of a “minor injury” according to the article is:
“a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation [a partial but not complete dislocation of the joint], and any clinically associated sequelae [symptoms following on these injuries].”
A whiplash-associated disorder is further described as a whiplash injury that “does not exhibit objective, demonstrable, definable and clinically relevant neurological signs and does not exhibit a fracture in or dislocation of the spine.”
Rarely is it wise public policy to limit the rights of those injured / affected by the actions of others as has now been demonstrated with the wisdom of hindsight with the public disdain at the $75 million oil liability cap which is drawing well deserved critisim south of the border.
Efforts to limit the rights of people to seek lawful compensation usually have one predictable result, and that is to deprive the most deserving people in the affected class of fair and meaningful restoration.  Hopefully this minor injury guideline will be reformed before it comes into force.

Court Finds Health Care Costs Recovery Act Does Not Apply to Actions Commenced before April 1, 2009

Written by admin on . Posted in Civil Procedure, Tort Reform, Uncategorized. 51 Comments on Court Finds Health Care Costs Recovery Act Does Not Apply to Actions Commenced before April 1, 2009

(Please Note:  I’ve been advised by a colleague that the case discussed in this post is under appeal and I will update this post once the BCCA’s decision is released)

As readers of this blog know, on April 1, 2009 the BC Health Care Costs Recovery Act came into force which required Plaintiffs to, in certain circumstances, advance claims on behalf of the government to recover MSP health care costs in their personal injury claims.
Today Mr. Justice Sewell released two sets of judgements addressing whether the Act applies to cases filed in Court before April 1, 2009.
In today’s cases (Fong v. Deglan and Gosselin v. Shepherd) the respective Plaintiff’s were injured in non ICBC insured cases.  Their injuries occurred before April 1, 2009 and their lawsuits were also filed before this date.  Prior to the trial the Plaintiffs applied to amend their pleadings to advance the BC Governments claim under the HCCRA.
Lawyers for the Attorney General of BC intervened and argued that these amendments should be allowed.  The Defendants opposed these applications arguing that the HCCRA does not apply to lawsuits filed before April 1, 2009.  Mr. Justice Sewell agreed with the Defendants and dismissed the applications and in so doing made the following findings:

[37]        My review of the Act leads me to conclude that it is not clearly and unambiguously intended to apply to actions commenced before the Act came into force.  The presumption against retrospectivity set out in the cases referred to above together with the internal indications in the Act itself lead me to conclude that s. 2 of the Act has no application to actions commenced prior to the Act coming into force.

[38]        I therefore conclude that the amendment sought discloses no reasonable cause of action and dismiss the application for the amendment on that ground.

[39]        I would also dismiss the application to amend on the grounds that it is not just and convenient to permit such a claim to be advanced.  It is clear that Ms. Gosselin will obtain no benefit from advancing the claim and has no legal obligation to do so.  In these circumstances I consider the amendment to be useless and unfair to the defendants.

[40]        In Langret Investments S.A. v. McDonnell (1996), 21 B.C.L.R. (3d) 145 (C.A.) the court held at p. 153:

• Rule 24(1) of the Rules of Court in British Columbia allows a party to amend an originating process or pleading. Amendments are allowed unless prejudice can be demonstrated by the opposite party or the amendment will be useless. The rationale for allowing amendments is to enable the real issues to be determined. The practice followed in civil matters when amendments are sought fulfils the fundamental objective of the civil rules which is to ensure the just, speedy and inexpensive determination of every proceeding on the merits. See McLachlin and Taylor, British Columbia Practice (2nd Ed.) pp. 24-1 to 24-2-10, and the (7 decision of this Court in Chavez v. Sundance Cruises Corp. (1993), 15 C.P.C. (3d) 305, 309-10.

[41]        In my view the proposed amendments to the statement of claim are useless in that they provide no personal benefit to the plaintiff since any amount recovered by the plaintiff as a result of the amendments would be held in trust and ultimately paid to the government.

[42]        Ms. Gosselin feels that she has a moral obligation to pursue a claim to recover the health care services costs.  However I do not consider it to be appropriate for the Court to impose moral obligations on defendants.  The legislature has set out the circumstances in which the government is entitled to recover the cost of health care services.  I do not consider it to be just to the defendants to put them uniquely in the position of being exposed to a claim that others in the same situation will not be required to answer.

[43]        The application to amend is therefore dismissed.

Clarity is always welcome when a new law comes into force.  I will continue to post about further cases interpreting and shaping this legislation.  You can click here to read my archived posts discussing the HCCRA.

More on the Shortcomings of BC Wrongful Death Laws and the Tragedy of Georgia Luge Competitor Nodar Kumaritashvili

Written by admin on . Posted in Tort Reform, Uncategorized. 64 Comments on More on the Shortcomings of BC Wrongful Death Laws and the Tragedy of Georgia Luge Competitor Nodar Kumaritashvili

The Olympics are now over. British Columbians (and all Canadians for that matter) have much to be proud of. The Olympic Games have been a great success and created a sense of national unity and pride that have been unparellelled. As a Canadian I am proud of these games and the historic success of our athletes. Canadians will not soon forget where they were when Sidney Crosby scored his spectacular overtime goal to claim Olympic Gold.

With the dust settling, however, one story that has not gone away was the cloud that the Olympics started under with the unfortunate and tragic death of Georgia Luge Competitor Nodar Kumaritashvili.

When this news broke I shared my immediate thoughts on the tragedy.

Since authoring my article I’ve been approached by a handful of people to further share my views. I’ve been asked to comment on some of the specific shortcomings of British Columbia law that I alluded to in my initial article. After having this discussion several times I thought I would share some of my thoughts by way of this follow up post.

If a person dies through the carelessness of others in British Columbia the BC Family Compensation Act governs claims for compensation brought by survivors. This outdated law has been the subject of much criticism due to its restrictions for survivors rights. I could not have commented on the shortcomings of BC Wrongful Death law better than the TLABC (Trial Lawyers Association of British Columbia) who have just released their comprehensive views of the need for overhaul of BC Wrongful Death laws.  You can find these here and I strongly urge anyone interested in reform in this area to review TLABC’s submissions in full

Another shortcoming under BC Law is the quick notice limitation period contained in the BC Local Government Act.

Local Governments, are defined under the act as:

(a) the council of a municipality, and

(b) the board of a regional district;

If you are injured and can bring a claim against a Local Government you will lose your right to make your claim unless you comply with s. 286 of the local government act which provides as follows:
Immunity Unless Notice Given To Municipality After Damage
(1) A municipality is in no case liable for damages unless notice in writing, setting out the time, place, and manner in which the damage has been sustaibed, is delivered to the municipality within 2 months from the date on which the damage was sustained.

(2)        In case of the death of a person injured, the failure to give notice required by this section is not a bar to the maintenance of the action.

(3)        Failure to give the notice or its insufficiency is not a bar to the maintenance of an action if the court before whom it is tried, or, in case of appeal, the Court of Appeal, believes

(a)        there was reasonable excuse, and

(b)        the defendant has not been prejudiced in its defence by the failure or insufficiency.

Assuming that Local Governments had some responsibility for the design/set up / access to the now world famous Whistler Sliding Centre this limitation period would be triggered for anyone advancing an injury claim against the Local Governments. While this legislation does have an exclusion for claims involving “death” this limitation period has operated to strip the rights of many seriously injured people following alleged negligence of Local Governments.

When people are forced to deal with the consequences of a tragedy it is very harsh to take away their right to seek lawful compensation if they fail to turn their mind to litigation within two months.

The above examples are some of the first which came to mind when asked to comment on the shortcomings of British Columbia Personal Injury Law. While I am generally very proud of the tort system we have in this Province it is important to point out areas where there is room and need for improvement.