BC Bullying Law – Unique Issues With Limitation Periods

A little appreciated fact are the broad timeframes at play when certain individuals can sue their abusers for either sexual or physical abuse.

For many years BC has had no limitation period for claims relating to sexual assault.  Whether the victim is a minor or an adult a lawsuit can be brought at any time against their sexual assailant. In cases without actual sexual assault but that amount to “misconduct of a sexual nature” there also is no limitation period if the victim was a minor at the time of the misconduct.

But what about cases of physical assault with no sexual nature?  Historically these were subject to the limits set out in BC’s Limitation Act.  However, in 2013 changes to the Act came into force which removed limitation periods for certain victims of non sexual abuse.

Section 3(1)(k) came into force and removed limitations for lawsuits based on

(k)a claim relating to assault or battery, whether or not the claimant’s right to bring the court proceeding was at any time governed by a limitation period, if the assault or battery occurred while the claimant

(i)was a minor, or

(ii)was living in an intimate and personal relationship with, or was in a relationship of financial, emotional, physical or other dependency with, a person who performed, contributed to, consented to or acquiesced in the assault or battery;

The broad section gives the right for children to sue their abusers at any time.  It also expands this right to those in financially, emotionally or physically dependent relationships with their abusers.

Assault and battery are legally simple concepts.  Battery simply refers to the unwanted application of intentional force.  Assault is the threat of the application of such force.  Anyone perpetrating these wrongs to vulnerable victims can be pursued at any time to be made accountable for their wrongdoing.  This expanded limitation period was discussed in a case published earlier this year by the BC Supreme Court.

In Khan v. School District No. 39 the Plaintiff sued for various historic allegations of harm.  In discussing those that were and were not statute barred Mr. Justice Majawa provided the following comments on the current state of the Limitation Act:

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British Columbians Learning Reality of “No Fault” One Crash at a Time

The BC Government told British Columbians they will save on car insurance.  They told you that you will receive ‘enhanced care’.

But day after day and crash after crash British Columbians are learning that the new ‘no fault’ model, a concept so unpopular that the government spent untold money to consultants to rebrand it as ‘enhanced care’, delivers anything but.

I am taking daily calls from BC crash victims after May 1, 2021.  They are learning the hard way that these fancy soundbites mean nothing.  Much like the man whose story was told in the below North Shore News article.

Instead the conversations go something like this

  • Can I claim my full wage loss? Nope
  • ICBC says I have to use up my other wage replacement benefits before they pay? Yup
  • Can I get all my out of pocket expenses for my injuries covered? Nope
  • My therapist is really good but charges more than ICBC covers. Too bad
  • Pain and suffering? Nope
  • What about the full cost for the inability to take care of my own home (diminished houseeking capacity)?Nope
  • Settlement for Future Care costs? Nope
  • But I can sue the at fault driver? Almost never
  • But they were fully at fault!  Doesn’t matter
  • The driver was texting at the time! The law doesn’t care
  • My vehicle has now dropped in value!  Can’t claim that either
  • I can take ICBC to court?  Nope.  A tribunal created by the BC Government.
  • I was a pedestrian and don’t even pay for ICBC insurance so this does not apply to me?  Nope, your rights are gone too.
  • I was a cyclist?  Too bad.

How is this fair?  Its not.

How is this ‘enhanced’ care?  Its not.

The only people who have more care after a crash are the at fault drivers.  The no fault scheme gives them greater benefits for wage loss and out of pocket expenses.  This is paid for by taking all of the above rights away from crash victims.

Calls will keep coming in.  The above conversation will be repeated.  British Columbia crash victims will continue to have to swallow the real news, not the marketing soundbites.  If you don’t like it you should contact your MLA and let them know this stinks.  It will not change your current rights but if politicians listen perhaps they will restore peoples rights so you, your friends and family members will not face the same bad news you’re facing if  victimized in a future crash.

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We Sue Covid Spreaders! ™

Imagine having Covid-19.  Being told you have Covid-19.  Being told to self isolate and taking basic steps to protect others.  But not doing so and harming others.

You may be called a Covidiot.

You may be sued.

If you pass Covid-19 on to others.  If they die.  If they get ill.  If they have long term health harm.  If they have short term health harm.  Even if they don’t but they are forced to self isolate and then suffer harm from that, financial or otherwise.  You might be on the hook for damages.

The law in British Columbia is pretty simple.  Negligence.  Take reasonable care not to harm others.  If you fail in this duty you can be sued for all provable damages.  The law is nimble.  It adapts to Covid-19.  It adapts to Covidiots.

Don’t be a Covidiot.

We Sue Covid Spreaders ™

We Sue Covidiots™

 

BC Court of Appeal – Class Action Waiver Unconscionable and Unenforceable

Important reasons for judgment were published this week by the BC Court of Appeal finding class action waivers in a standard form customer contract are unconscionable and unenforceable.

In the recent case (Pearce v. 4 Pillars Consulting Group, Inc.) the Plaintiffs sued the various Defendants to recover fees paid for services in relation to debt restructuring. The Defendant’s standard form contract had a clause precluding participation in a class proceeding.  In finding the clause unenforceable and clearing the way for the suit to continue the BC Court of Appeal provided the following reasons:

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BC Considering Revenge Porn Law Clearing Way For Better Victim Access to Justice

Currently if you are the victim of revenge porn there are various legal remedies in British Columbia.  While there are various different civil routes to seek redress it is a legal area with shortcomings.

Today the BC Government announced that they are exploring “possible legislation to address the non-consensual distribution of intimate images” including ways “to achieve results faster and get better access to justice.”  The government has invited stakeholder groups and members of the public to share their views until June 2021.

The full press release reads as follows:

Province of British Columbia
NEWS RELEASE
For Immediate Release
2021FIN0033-000850
May 6, 2021
Ministry of Finance
Gender Equity Office
Consultation underway to help victims of revenge porn
VICTORIA – The Government of British Columbia is undertaking consultations on possible legislation to address the non-consensual distribution of intimate images, also known as revenge porn or image abuse.

While the publication of intimate images without consent is an offence under Canada’s Criminal Code, potential provincial legislation could provide additional tools for people to protect themselves and seek recourse. Grace Lore, Parliamentary Secretary for Gender Equity, will lead the consultation on behalf of David Eby, Attorney General.

“Without consent, circulating or threatening to distribute an intimate image is a form of sexual violence with traumatic and lasting impacts,” Lore said. “The non-consensual sharing of images can be a form of intimate partner violence or be used to extort victims for additional images, sex or money. We believe a comprehensive B.C. approach can make a real difference for people to achieve results faster and get better access to justice.”

B.C. legislation could provide a new option to ensure people have an efficient way to have posted images taken down and destroyed. It could also create a new process for people to claim compensation from wrongdoers. The potential legislation could also address the threat of distributing images and prevent such harms from occurring in the first place. The scope of the legislation could also apply to altered images, known as deep fakes.

According to Cybertip.ca, reported incidents of non-consensual disclosure of intimate images increased 58% by the start of 2021, compared to the nine-month period prior to April 1, 2020. This included a 94% increase in youth reporting and a 44% increase in adults reporting.

Consultations with stakeholder groups are ongoing until June 2021. Members of the public can also submit their views by emailing submissions to: imageprivacy@gov.bc.ca

 

ICBC Blasted for Playing “Game of Chicken” With Injured Nurse

Reasons for judgement were published this week blasting ICBC for playing a “game of chicken” with an injury claimant in essence taking the claim to trial despite having no meaningful evidence or challenges to the plaintiff’s evidence.

In the recent case (Moon v. Yaranon) the Plaintiff was involved in a 2015 crash.  The Defendant admitted fault  The Plaintiff was a nurse and suffered chronic soft tissue injuries leading to partial disability.  ICBC had no evidence contradicting this.  Despite the lack of evidence ICBC took the case to trial where damages of over $822,000 were assessed for the long term injuries.  In admonishing ICBC and their ‘penny wise pound foolish’ strategy Mr. Justice Crerar issued the following reasons:

[3]             The defendant admits liability, and accepts that the plaintiff has suffered some injuries as a result of the accident. Causation is not disputed. The defendant does not advance a failure to mitigate argument, but asserts that the plaintiff’s conditions are readily manageable, even with the physical demands of a nursing career, and may resolve themselves in the future.

[4]             The defendant advanced no expert evidence. The defendant called only one witness: Mr Lai, a physiotherapist who treated the plaintiff in December 2015 and January 2016, just after the accident. His evidence lasted all of 10 minutes; he remembered almost nothing from his brief treatment of the plaintiff, nearly five years previous. Nor did the defendant advance hidden video or evidence from neighbours or associates indicating exaggerated disability, as is typical in personal injury cases. Such evidence is especially important where the credibility of the plaintiff or her experts is not significantly challenged on cross-examination, as in the present case. Its absence makes the task of the court exceedingly difficult in a case such as the present, where the injuries are not discernible by medical imaging or other objective means. Evidence of the existence and extent of the injury is presented through the subjective assertions of the plaintiff, both directly, and via expert testimony largely based, in turn, on those same subjective assertions.

[5]             These observations are not directed at all toward Mr Ross, who was only brought in as counsel a few months before trial, after most deadlines had passed for such evidence, and who was acting on his client’s instructions. Unfortunately, this strategy of contesting a plaintiff’s claim, and forcing a plaintiff to proceed to trial, in an effective game of chicken, is not confined to this case: this judge alone has presided over at least one other recent trial with minimal evidence, minimal cross-examination, and minimal argument, presented by the provincial automobile insurer qua defendant. [1]

 

 

British Columbians Overlooking $190,450,000 in ICBC Vehicle Depreciation Claims

$190,450,000.

Let me repeat that number.  $190,450,000,

There are an estimated $190,450,000 worth of active potential vehicle accelerated depreciation claims on ICBC’s books.  The insurer historically has paid out almost o% of these claims and is hoping to pay only a small fraction of these remaining claims with over 99% of British Columbians failing to exercise their rights.

When a not at fault driver has their vehicle damaged in a crash it is often worth less money once it has been repaired.  This lost value is called ‘accelerated depreciation’ and has been recognized for many years by BC Courts as a recoverable damage in an ICBC settlement.  A general rule in life is “you don’t get what you don’t ask for” and ICBC statistics show most British Columbia crash victims are unaware they can claim these damages before settling their claim.

Under ICBC’s internal criteria they calculate there are 58,600 active claims that may have accelerated depreciation.  The average value of the accelerated depreciation claims ICBC has paid to date is $3,250.  If you do the math that is nearly $200,000,000 in liability.  But of these 58,600 potential claimants only 0.2% of the individuals are actually pursuing their damages.  This will leave BC’s monopoly auto insurer with a windfall of unpaid claims if the remaining 99.8% of British Columbians don’t pursue their rights.

ICBC’s internal criteria for when they think an accelerated depreciation claim exists is as follows:

  1. The vehicle owner claiming depreciation is not at fault for the crash.
  2. Vehicle is five model years or newer at time of loss.
  3. Vehicle damage must exceed $2,000.
  4. No previous vehicle damage claim greater than $2,000.
  5. Vehicle must be repairable (not a total loss).

The actual law of accelerated depreciation is far broader than ICBC’s own criteria.  That being said, if you are one of the 58,600 British Columbians with an active ICBC claim which arose before May 1, 2021 that meet the above criteria and want to know how to claim your accelerated depreciation contact me.   I welcome hearing from each and ever one of you!  These damages can be recovered and they can be recovered in cicrumcstancs far broader than ICBC tends to acknowledge in negotiations.  There are time limits for making these claims so don’t hesitate to contact me to learn your rights before the clock runs out.

Court Tells Bikers its an Abuse of Process Denying Civil Liability Following Criminal Conviction

If you’re charged with a crime and plead guilty, or are found guilty to the criminal standard of ‘beyond a reasonable doubt’, it is generally considered an abuse of process to deny fault when sued for the same underlying conduct based on the lesser civil standard of ‘balance of probabilities’.  Two members of a motorcycle club learned this lesson the hard way.

In the recent case (Thatcher v. Lowe) the Plaintiff sued several defendants for assault, battery, intentional infliction of mental suffering and false imprisonment following a 2016 confrontation.  Prior to this defendants were charged criminally and plead guilty.  The court summarized the following key facts from the guilty plea:

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Sucker Punch in Bar Leads to $226,000 Civil Judgment Against School Teacher

Getting in a bar fight is seldom a good idea.  Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, providing 226,000 reasons to think twice before doing so.

In today’s case (Thompson v. Fraser) the Defendant, who was employed as a school teacher, got into an altercation with other patrons at the lounge bar of Vancouver’s Pan Pacific Hotel.  The Plaintiff, a security guard, was called to deal with the situation and proceeded to escort the Defendant out.  The Defendant then “sucker-punched the plaintiff in the face, badly and permanently damaging the bony structure around his left eye.“.  The court described it as “a thoroughly disgraceful incident.”

The Defendant was criminally charged and convicted of assault causing bodily harm.  The criminal consequences were “extremely lenient” with the imposition of a mere conditional discharge.   Mr. Justice Baird, presiding over the civil suit, opined  “part of the reason for this, I have no doubt, was the understanding that eventually he would have to answer for his misconduct in a civil lawsuit and, in all likelihood, pay the plaintiff a sizeable sum in damages.”

The assault caused serious injury requiring”metallic gear fused into his facial bones that causes him significant pain and discomfort when it is cold outside. There is a screw directly beneath his left eye that he can feel with his finger and causes a great deal of pain on incidental contact.“.

In assessing global damages at $266,000 including $10,000 for aggravated damages Mr. Justice Baird provided the following reasons:

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Breaking – BC Supreme Court Declares Civil Resolution Tribunal Law Over Collision Claims Unconstitutional

Today the BC Supreme Court issued reasons for judgement striking down various laws giving the Provincial Civil Resolution Tribunal jurisdiction over certain collision claims as unconstitutional.  This is the second time in recent months that the BC government’s efforts to strip people’s rights in favour of ICBC have been declared in violation of their constitutional powers.

Section 133 of the Civil Resolution Tribunal Act reads as follows:

Claims within jurisdiction of tribunal for accident claims

133   (1) Except as otherwise provided in section 113 [restricted authority of tribunal] or in this Division, the tribunal has jurisdiction in a dispute, in respect of an accident, over a claim concerning one or more of the following:

(a) the determination of entitlement to benefits paid or payable under the Insurance (Vehicle) Act;

(b) the determination of whether an injury is a minor injury for the purposes of the Insurance (Vehicle) Act;

(c) liability and damages, if the amount, including loss or damage to property related to the accident but excluding interest and any expenses referred to under section 49 [order for payment of expenses], is less than or equal to the tribunal limit amount.

(2) For the purposes of this Act, the tribunal

(a) has exclusive jurisdiction in respect of claims described in subsection (1) (a) or (b) of this section, and

(b) is to be considered to have specialized expertise in respect of claims described in subsection (1) (c) of this section.

(3) For certainty, a person may make a request for tribunal resolution in more than one tribunal proceeding relating to an accident.

In today’s case (Trial Lawyers Association of British Columbia v. British Columbia (Attorney General)) The Chief Justice of the BC Supreme Court noted as follows in striking down subsections 133(1)(b) and (c):

402] In my view, it is unnecessary to address this argument. As I have determined that s. 133(1)(a) and (b) of the CRTA, which purports to empower the CRT to decide certain MVA claims, is unconstitutional, s. 16.1 is left with no application or meaning in relation to accident claims, except for accident benefits under s. 133(1)(a).

[403] As such, s. 16.1 should be read down insofar as it applies to accident claims, except for accident benefits under s. 133(1)(a). As explained above, s. 16.1(1) also applies to the other areas of jurisdiction assigned to the CRT (strata, small claims, and societies and cooperatives). Therefore, rather than strike down the entire provision, I have determined it should be declared invalid and of no force or effect only insofar as it applies to MVA claims, other than accident benefits under s. 133(1)(a).

[404] In light of this finding, it is unnecessary for me to decide whether s. 16.1 offends s. 96 of the Constitution Act, 1867 in the manner the plaintiffs argue.

VIII. REMEDY

[405] Section 52(1) of the Constitution Act, 1982 provides that any law that is inconsistent with the constitution is of no force and effect to the extent of the inconsistency.

[406] It is clear from the comments of Chief Justice Lamer, at 742 in MacMillan Bloedel, set out above, that part of a legislative scheme can be challenged. Chief Justice Lamer also made this clear in Schacter v. Canada, [1992] 2 S.C.R. 679 at 695–696 where he wrote:
A court has flexibility in determining what course of action to take following a violation of the Charter which does not survive s. 1 scrutiny. Section 52 of the Constitution Act, 1982 mandates the striking down of any law that is inconsistent with the provisions of the Constitution, but only “to the extent of the inconsistency”. Depending upon the circumstances, a court may simply strike down, it may strike down and temporarily suspend the declaration of invalidity, or it may resort to the techniques of reading down or reading in. In addition, s. 24 of the Charter extends to any court of competent jurisdiction the power to grant an “appropriate and just” remedy to “[a]nyone whose [Charter] rights and freedoms … have been infringed or denied”. In choosing how to apply s. 52 or s. 24 a court will determine its course of action with reference to the nature of the violation and the context of the specific legislation under consideration. A. The Doctrine of Severance The flexibility of the language of s. 52 is not a new development in Canadian constitutional law. The courts have always struck down laws only to the extent of the inconsistency using of the doctrine of severance or “reading down”. Severance is used by the courts so as to interfere with the laws adopted by the legislature as little as possible. Generally speaking, when only a part of a statute or provision violates the Constitution, it is common sense that only the offending portion should be declared to be of no force or effect, and the rest should be spared.  Far from being an unusual technique, severance is an ordinary and everyday part of constitutional adjudication. For instance if a single section of a statute violates the Constitution, normally that section may be severed from the rest of the statute so that the whole statute need not be struck down. To refuse to sever the offending part, and therefore declare inoperative parts of a legislative enactment which do not themselves violate the Constitution, is surely the more difficult course to justify.

[407] I accept the submission of the motor vehicle defendants that generally, the court should not deal piece-meal with what the Legislature intended to be a “package” of legislative measures, especially when consideration must be given to any legislative response.

[408] The Attorney General contends that if there is a finding that one or both of ss. 133 and 16.1 of the CRTA, either in whole or in part offend s. 96 of the Constitution Act, 1867, the issue of remedy is not straightforward.

[409] The motor vehicle defendants submit that if the plaintiffs have met their burden, the appropriate remedy is to sever any offending provision from the rest of the amendments. They argue, and I agree, that I should not remove constitutionally valid areas of the CRT’s jurisdiction.

[410] The plaintiffs have conceded that subsection (a) of s. 133(1) of the CRTA is not, in isolation, unconstitutional. In my view, this subsection is severable. Likewise, the CRT’s jurisdiction to determine liability and damages for motor vehicle claims under $50,000 under subsection (c) is severable from its jurisdiction to determine whether an injury is a minor injury for the purposes of the Insurance (Vehicle) Act under subsection (b).

[411] As for the plaintiffs’ challenge to s. 16.1, the Attorney General contends that that aspect of the claim is based on a fundamentally different legal argument from the one made in relation to s. 133(1).

[412] Given these differences, the Attorney General says that the options for the court to find unconstitutionality could involve an array of different permutations of the various subsections, on different bases. The Attorney General argues that crafting an appropriate remedy in these circumstances will require consideration of complicated issues relating to severance, reading down, temporal application, and effect on existing decisions and processes of the CRT, as canvassed, at least in part as to severance and temporal application, in the written submissions of ICBC. The Attorney General submits that these questions are appropriately deferred for the time being, with opportunity for further submissions following release of the Court’s reasons for judgment on the main issues. In this way, the scope and basis for any finding of unconstitutionality made may inform the submissions.

[413] The Attorney General submits that at the present there is no disability on the part of the Supreme Court of British Columbia from hearing claims that arise from MVAs. In the result, the ability of both claimants and defendants in such cases to have their disputes resolved will not be impaired if the impugned sections of the legislation are struck down.

[414] I will therefore accede to the plaintiffs’ request, in part, and grant an order declaring that ss. 133(1) (b) and (c) of the CRTA are unconstitutional and of no force or effect. I also declare that s. 16.1 is unconstitutional and should be read down insofar as it applies to accident claims, except for determination of accident benefits under s. 133(1)(a). I decline to grant any order with respect to the Accident Regulations associated therewith.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

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