Let’s Talk Criminal Drivers And BC Victims Right To Sue

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 at trial 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).

 

ICBC Unfair Fault Finding Can Cost You Over $8,000!

If you are involved in a BC Crash ICBC, the Provincial monopoly insurer, will internally decide if you are at fault or not.

If they get it wrong and blame you for a crash you should not be responsible for it can cost you a lot.

Leaving aside things like paying for collision damages, deductibles and potentially expansive optional coverage which can amount to many thousands of dollars something as simple as basic ICBC coverage can skyrocket by the thousands after a single crash that ICBC blames you for.

ICBC uses a complicated formula to determine how much basic insurance rates cost based on various factors including driving experience and at fault claims history.  If ICBC finds you at fault for a crash premiums can increase by many dollars for many years.  For some drivers the ultimate bill, as demonstrated in the below charts, comes to over $8,000 in increased basic premiums.

If ICBC unfairly blames you for a crash understand these costs before you accept their decision.

If you are interested in challenging ICBC for a wrongful fault determination contact us and we can discuss your options.

 

Table 1: Premiums for 5-year driver

Year Premium

(no CCP)

Premium

(1 CCP)

Premium

(2 CCP)

1 $881.07 $881.07 $881.07
2 $879.96 $1,644.29 $1,644.29
3 $764.40 $1,512.50 $1,512.50
4 $709.85 $1,195.83 $1,195.83
5 $667.93 $1,105.76 $1,105.76
6 $645.50 $1,036.26 $1,036.26
7 $632.17 $991.04 $1,623.49
8 $623.68 $977.08 $1,587.18
9 $613.58 $963.57 $1,339.98
10 $605.00 $949.17 $1,310.59
11 $601.76 $936.04 $1,287.18
12 $598.74 $598.74 $954.61
  $7,342.57 $11,910.28 $14,597.66

 

For a new driver with a CCP on their claim payment record in the first year, increased insurance premiums over the first ten-year period result in an additional $8,266.96. If premiums for a CCP increase after the first year it is reduced to $6,894.63.

 

Table 2: Premiums for a new driver with and without a CCP

Year Premium

(no CCP)

Premium

(1 CCP)

1 $1,246.64 $3,603.46
2 $1,151.12 $2,697.53
3 $1,068.78 $2,055.08
4 $1,002.53 $1,831.95
5 $942.21 $1,635.94
6 $881.07 $1,312.82
7 $817.88 $1,215.44
8 $764.40 $1,133.30
9 $709.85 $1,049.55
10 $667.93 $984.31
  $9,252.43 $17,519.39
     
     

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.

Find MLA by community here

MLA contact information here

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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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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