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Cyclist At Fault for “Abrupt” Lane Change Leading To Rear End Crash of Two Vehicles

ICBC likes to say if you rear end someone you are at fault.  But the law is more nuanced than that.  Reasons for judgement published this week shed light on this reality.

In today’s case, (Virk v. Helm-Northover) the Plaintiff was a passenger in a vehicle involved in a crash.  She was faultless.  Who was to blame was the issue.  In short a cyclist was travelling in a protected bike lane.  Behind him were two vehicles.  Moments after initially signaling the cyclist made an “abrupt” left hand turn.  The lead motorist, not paying enough attention to what was unfolding before her, assumed she could pass the cyclist before he turned but then slammed on her brakes in response.  The rear motorist, failing to pay attention at the crucial moment, struck the lead motorist who suddenly stopped.  Fingers were pointed in all directions.

In finding all three were to blame, with a split of 50% to the rear motorist, 30% to the cyclist and 20% to the lead driver Mr. Justice Thompson provided the following reasons:

[26] I find that Mr. Fisher was not signalling and did not shoulder check in the
second or two before he made his lane change. I think it highly likely that if he had
shoulder checked or signalled before his lane change, the plaintiff would have
noticed these movements. And, if he had shoulder checked at that time, he would
have seen the Helm-Northover and Virk vehicles travelling in the centre lane at or
near the speed limit, and the strong likelihood is that he would not have moved into
their path.

[27] While I have found that Mr. Fisher was not signalling in the second or two
before he changed lanes, I accept that he conducted a shoulder check and was
signalling for an extended time beginning when he was at the Carnarvon
intersection. I accept this part of Mr. Fisher’s evidence because it corresponds with
admissions made by Ms. Helm-Northover in her discovery evidence. I find that
Ms. Helm-Northover first saw his signal from a good distance away from when he

made his lane change, and she wanted to catch up and pass the cyclist.
Consequently, she maintained her speed. She assumed that the cyclist would wait
for her to pass before moving into the centre lane. I find that if she had slowed her
car while checking the accuracy of her assumption about the cyclist’s intentions, she
would not have had to stop at all, never mind make a full-on emergency stop.

[28] Finally, I conclude that it is more likely than not that if Ms. Helm-Northover
had slowed her vehicle, instead of carrying on at speed and then performing an
emergency stop, the collision would not have happened. Regardless of Mr. Virk’s
temporarily diverted attention, given his estimate of a few seconds distance between
his car and the lead car, which I accept, he would have had sufficient time to brake
without striking a vehicle in front of him that was slowing or gradually stopping.

[29] Based on these findings, Mr. Fisher’s departure from the standard of care of
the reasonable cyclist was to make an unsafe lane change which was rooted in his
failure to conduct a timely shoulder check. It was a marked departure from the
standard of care to change lanes into the path of the vehicles to the centre lane
when they were so close as to require an emergency stop to avoid running him

[30] I also conclude that Ms. Helm-Northover was negligent. This is not an “agony
of the moment” case: the cyclist’s lane change ought to have been anticipated, and
her error was not in how she reacted once she appreciated the hazard. In fact, her
emergency stop likely avoided catastrophic consequences for Mr. Fisher. However,
earlier in the sequence of events, Ms. Helm-Northover concluded that the cyclist
planned to move into the centre lane, yet she carried on driving at about the speed
limit in an effort to catch and pass him. She assumed the cyclist would wait for her to
pass by. Having appreciated the real possibility of this slower-moving vehicle moving
into her lane, she failed to react with reasonable care for this potential hazard. She
should have slowed her car and not put herself in a position where the only way to
avoid a potentially catastrophic collision with the cyclist was full emergency braking.
This emergency action was necessitated by circumstances that could be anticipated

or expected. Moreover, she should have been aware that there was a vehicle behind
her, a situation that exacerbated the risk of deciding to catch up and pass the cyclist.
It is one thing to make a sudden mid-block stop when one knows that there are no
following vehicles, but it is another to make a sudden stop when one is unaware of
what is happening behind. Of course, having made the decision to carry on at speed
to attempt to pass by the cyclist before he made his lane change, Ms. Helm

Northover narrowed her options to one when the cyclist changed lanes in front of
her: i.e. an emergency stop, regardless of any traffic behind her.

[31] Mr. Virk’s negligence is obvious. He was a few seconds behind the lead
vehicle, and if he had been paying proper attention, I find the cyclist would have
been visible to him at some point in the many blocks of travel leading up to the site
of the accident. If he had seen Mr. Fisher and appreciated the apparent fact that the
two motor vehicles were closing on the bicycle, I doubt that Mr. Virk would have
chosen to pay attention to the radio instead of the traffic ahead of him. Regardless, it
was a serious and substantial departure from the standard of care to take his eyes
off the road ahead when he was following another car, and to have failed in his
obligation to bring his car to a stop before it collided with the vehicle ahead.

Medical Cannabis and ICBC “Enhanced Care” Benefits

So you are in a crash and your doctor prescribes you medical cannabis for your injuries.  Can you get ICBC to foot the bill under their ‘enhanced care’ insurance monopoly?

The short answer is it depends but like any other recognized medicine medical cannabis can be covered.  Cannabis is federally legal.  And some of its medical properties are recognized.  So in the right circumstances ICBC can be on the hook for the costs.

This week our lawfirm obtained ICBC’s medical cannabis policy through a Freedom of Information Request.

In short ICBC acknowledges that they will approve medical cannabis in prescribed circumstances.

For pharmaceutical cannabis products with a Drug Identification Number ICBC sets out their standards.  For non pharmaceutical products such as dried cannabis, oil, cream or edibles ICBC imposes certain further obligations.

Here are the full materials we obtained via FOI request

Something Doesn’t Add Up Under David Eby’s ICBC

Some recent back patting was released recently boasting about what a great employer ICBC is.

The NDP have been in power for several years.  And David Eby, the current Premier, was the architect of bringing in no fault insurance during this time.  (They don’t call it no-fault which makes you realize your rights were stripped, they call it ‘enhanced care’ to make you think its awesome!).

The numbers show some interesting math.  Under the NDP’s reign the number of employees ICBC has ballooned by 35%.  And number of employees making over $100K per year has doubled.

During the same time, by stripping the rights of British Columbians, ICBC has been paying crash victims less and paying themselves more.  Its nice to have a monopoly!

Something is not adding up.  Why does it take more staff, with more pay, to run a monopoly which pays crash victims less (plenty of these stories to go around, no need to take my word on it).  Isn’t the point of insurance to make sure people are protected when things go terribly wrong?  Not to grow a corporation’s footprint and power.

Any answers?


👍 👍 👍 Thumbs Up Emoji Creates Binding Contract According to Canadian Court 👍 👍 👍

Can a thumbs up emoji create a binding contract?  According to a judgement published last month by the Court of King’s Bench in Saskatchewan Canada it most certainly can.

The case (South West Terminal Ltd. v Achter) involved a disputed contract to purchase grain.  The parties had a conversation about the sale of grain at a certain price.  They had previous contractual relations.  After the conversation the Plaintiff sent the Defendant the contract and texted “please confirm flax contract.” to which the defendant responded with a thumbs up emoji.

After failing to deliver the grain the lawsuit was launched.  The Defendant argued there was no contract and the thumbs up emoji simply was confirmation of receiving the contract, not accepting it.  The court found that given the parties history the thumbs up was in fact an acceptance of the contract.   In reaching this decision the Court provided the following reasons:

[60]                                 The issue that remains is: is a 👍 emoji good enough to meet the requirements of the SGA in the unique circumstances of this case?

[61]                                 I find that the flax contract was “in writing” and was “signed” by both parties for the purposes of the SGA. There is no dispute that Kent electronically signed on behalf of SWT. The new twist is: did Chris’s 👍 emoji constitute a “signature”?

[62]                                 In my opinion the signature requirement was met by the 👍 emoji originating from Chris and his unique cell phone (agreed upon statement of facts para. 2; cross-examination of Chris T6.7-T6.10; T28.6-T28.20) which was used to receive the flax contract sent by Kent. There is no issue with the authenticity of the text message which is the underlying purpose of the written and signed requirement of s. 6 of the SGA. Again, based on the facts in this case – the texting of a contract and then the seeking and receipt of approval was consistent with the previous process between SWT and Achter to enter into grain contracts.

[63]                                 This court readily acknowledges that a 👍 emoji is a non-traditional means to “sign” a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a “signature” – to identify the signator (Chris using his unique cell phone number) and as I have found above – to convey Achter’s acceptance of the flax contract.

BC Court of Appeal Confirms ICBC Disbursement Cap is Not “Reasonable” and Not Valid

ICBC and the government of BC have had no shortage of tricks up their sleeve to handicap the system against crash victims so the crown corporation monopoly insurer can collect more and pay out less.  Many of the measures been unconstitutional or otherwise legally void and this week the BC Court of Appeal declared that the latest expert witness limits are not valid.

In 2019  BC’s Attorney General surprised the legal community with changes to the BC Supreme Court Rules limiting the number of expert reports in motor vehicle injury prosecutions.  These changes were swiftly declared unconstitutional.

In 2021 the BC Government took another kick at the can and introduced a retroactive disbursement limit for individuals seeking compensation for injuries caused by the carelessness of other motorists.  Basically giving litigants a choice of either not calling the necessary expert evidence to prove their claims or to prove their claims and not be able to recover the cost of doing so.   In 2022 that attempt was also declared unconstitutional.  The government still was not satisfied and took the issue up to BC’s Court of Appeal.  This week the appellate court agreed the latest disbursement limit is void.

In reasons for judgment released this week (British Columbia (Attorney General) v. Le) BC’s highest court found the arbitrary 6% cap on recoverable disbursements was not justifiable and unreasonable.   Hopefully the government finally gets the message.

Is ICBC No Fault So Broad That You Can’t Sue When a Plane Falls Out of the Sky?

Imagine you are driving on a BC highway.  Out of nowhere a plane comes out of the sky and smashes into your vehicle causing injury.

This is not academic.  This unfortunately just occured in Langley, BC, as reported by CityNews.

Now an interesting question was posed to me by BC lawyer Kyla Lee.  Can motorists sue in these circumstances or are their rights stripped by ICBC no fault?

The short answer is this has never been judicially decided so no one can say for sure.

That said the BC No fault laws are written so broadly they may even stop you from suing a pilot for injuries when a plane smashes into your vehicle.

Here’s the breakdown.

Section 115 of BC’s Insurance Vehicle Act states that for almost all BC crashes on a highway after May 1, 2021

a person has no right of action and must not commence or maintain proceedings respecting bodily injury caused by a vehicle arising out of an accident.

An “accident” means an accident in which there is bodily injury caused by a vehicle.

A “vehicle” means a motor vehicle or trailer. “Motor Vehicle” has the same meaning as under s. 1 of the Motor Vehicle Act, which “means a vehicle, not run on rails, that is designed to be self-propelled or propelled by electric power obtained from overhead trolley wires, but does not include mobile equipment, a motor assisted cycle or a regulated motorized personal mobility device”. This definition appears to include a plane.

“bodily injury caused by a vehicle” means bodily injury caused by a vehicle or the use or operation of a vehicle;

Section 116 then carves out a list of exceptions none of which apply to suing a pilot for how they operated a plane unless there is a specific criminal code conviction.  There are some exceptions about suing people other than the operator in certain circumstances like negligent manufacturing or repair.  But the right to sue an operator of a plane if they are negligent and hit a vehicle on a BC highway may be caught by ICBC’s heavy handed no fault laws.

Section 114 goes on to carve out other scenarios where no-fault benefits are not in play (and presumably individuals retain the right to sue).  A standard vehicle on a BC highway being struck by a plane falling out of the sky does not appear to be in the list.

Ultimately this question needs judicial clarification for certainty but if correct this and countless other fact patterns are piling on to the ever growing list of reasons of why no fault is a catastrophe for BC crash victims.

Federal Court Greenlights Use of AI to Write Legal Decisions

Is it ok for AI to be used to write a legal decision impacting someone else’s rights?  According to a decision released this week by a Canadian Federal judge the answer is yes.

The case (Haghshenas v. Canada (Citizenship and Immigration)) involved a refused immigration application to Canada.  The applicant argued the denial was written by AI and relying on AI was a breach of administrative law principles.  In finding the use of AI as a tool to write the decision was fair  Justice Brown provided the following reasons:

[24] As to artificial intelligence, the Applicant submits the Decision is based on artificial intelligence generated by Microsoft in the form of “Chinook” software. However, the evidence is that the Decision was made by a Visa Officer and not by software. I agree the Decision had input assembled by artificial intelligence, but it seems to me the Court on judicial review is to look at the record and the Decision and determine its reasonableness in accordance with Vavilov. Whether a decision is reasonable or unreasonable will determine if it is upheld or set aside, whether or not artificial intelligence was used. To hold otherwise would elevate process over substance.

[28] Regarding the use of the “Chinook” software, the Applicant suggests that there are questions about its reliability and efficacy. In this way, the Applicant suggests that a decision rendered using Chinook cannot be termed reasonable until it is elaborated to all stakeholders how machine learning has replaced human input and how it affects application outcomes. I have already dealt with this argument under procedural fairness, and found the use of artificial intelligence is irrelevant given that (a) an Officer made the Decision in question, and that (b) judicial review deals with the procedural fairness and or reasonableness of the Decision as required by Vavilov.

Jiu Jitsu Club Ordered to Pay Paralyzed Student $46 Million in Damages For Negligence

I’ve spent a lot of time on this site discussing the standard of care of combat sports coaches and the possibility of negligence lawsuits.  This week headlines broke illustrating such concerns are not merely academic.  A California based brazilian jiu jitsu club was ordered to pay substantial damages to an injured student following jury findings of negligently caused paralysis.

The Times of San Diego report that this week a California jury ordered Del Mar Jiu Jitsu club to pay just over $46,000,000 in total damages to a student who suffered partial quadriplegia at the hands of an instructor.

The Times reports that the Plaintiff “was paired with instructor Francisco Iturralde, a second-degree black belt, who placed Greener in a position that put his entire body weight upon Greener and crushed his cervical vertebrae, paralyzing him. Attorneys say Greener was hospitalized for several months and suffered multiple strokes, among a series of other ailments….The jury deliberated for two days before returning its verdict on Tuesday, which awarded Greener $637,959 for loss of past and future earnings, $1,337,153.23 for past medical expenses, $8,500,000 for future medical expenses, $11,000,000 for past pain and suffering, and $25,000,000 for future pain and suffering.

The idea that a combat sports coach can be negligent is not novel.  Yes combat sports have a level of danger to them.  But coaches still have a legal duty to take reasonable steps to teach their students safely.  In doing so they must meet the applicable standard of care.  This will include being knowledgeable about the known harms that can arise from poor coaching, having reasonable systems in place to minizine these risks and following these systems.

Seperate from this tragic case of paralysis, coaches should be aware of CTE and Concussions and have reasonable policies in place to mitigate these risks if they are in the combat sports business.

The High Cost of Negligent Sport – Rec Soccer Player Ordered To Pay over $100K in Damages

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, ordering a Defendant to pay over $100,000 in damages following a negligent slide tackle in a recreational soccer game.

In the case (Miller v. Cox) the plaintiff suffered a grade 3 dislocation of the right acromioclavicular joint as a result of the tackle.  Several witnesses testified and the court found all of them credible except the Defendant who the court found gave “self-serving and wholly unbelievable” testimony.

The Court found the Defendant approached the Plaintiff from a blind spot, had both his feet leave the ground and violently slide tackled the Plaintiff while having no chance of actually contacting the ball.  The court found doing so was negligent.  In finding liability the Court provided the following summary of the legal principles in play and following findings of fact:

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