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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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Your Body, Your Choice. Even Online ™

I am proud to introduce MacIsaac & Company’s Intimate Image Protection Claims practice.

Last week the BC Government introduced Bill 12.  You can read here for background but in short this Bill will be provide British Columbians with powerful tools to take back control of their intimate images.

We are here to help.  MacIsaac & Company’s Intimate Image Protection Claims services will include drafting demand letters for removal of images, obtaining binding Tribunal Orders for the removal of unwanted images and litigation for damages against those who violate your consent.

While Bill 12 is not yet law it will be retroactive once passed and there are meaningful steps you can take right now to help regain control of your intimate images.

Click here for more information or to arrange your confidential free consultation.

Your Body, Your Choice.  Even Online ™


Let’s Talk About ICBC’s Shameful “Enhanced Care” Meat Chart

So the public is slowly learning that ICBC ‘enhanced care‘ really means victims were stripped of their rights to sue bad drivers, to be properly covered for their wage loss, treatment expenses, pain and suffering and more.

When ICBC rolled out ‘enhanced care’ one of the soundbites they boasted about were lump sum payments that victims of  ‘catastrophic’ injuries and those with ‘permanent impairment’ will receive.

Under the tort system victims has the right to non-pecuniary damages.  Basically payment for pain and suffering.  The amount varying based on severity of injury.  There was no hard chart but readers of this site will have a good sense of the damages courts would award from the thousands of case summaries here.  Chronic pain, physical and psychiatric injuries would routinely have awards over six figures.  Truly catastrophic injuries would bring non-pecuniary damages near the ‘rough upper limit’ of Canadian negligence law over $400,000.

Let’s look at some sobering numbers of what these real damages have been replaced with.

Under the “permanent impairment regulation” if you suffer an injury with a ‘permanent impairment’ you are entitled to a lump sum.  But the sums are grotesquely low.  Here’s how it works.

A figure of $167,465 is the starting point.  Then, depending on your specific injury, (and remember, for many of these we are talking about not just the injury but those that have not recovered and are not expected to in the future) a fraction of this is awarded.

Let’s do some math under this meat chart.  Here’s the ‘enhanced care’ for the following permanent injuries

Fracture sternum = 1% = $1,675

Fractured forearm with ‘non specifid abnormal healing’ = 1% = $1,675

Scaphoid fracture with avascular necrosis = 2% = $3,349

Pelvic fracture with non-specified abnormal healing = 1% = $1,675

Distal above knee AMPUTATION = 35% = $58,612

Fracture femur (biggest bone in the body!) with non-specified abnormal healing = 1% = $1,675

Thigh muscular atrophy of 2 cm or more = 2% = $3,349

Knee fracture with non specified abnormal healing = 1% = $1,675

Avulsion fracture affecting the knee or leg = 2% = $3,349

Post traumatic patellofemoral pain syndrome = 1% = $1,675

AMPUTATION of the ankle = 25% = $41,866

Compression fracture of the low spine with loss of height under 25% = 2% = $3,349

Post traumatic alteration of brain tissue with laceration or intracerebral hematoma = 2% = $3,349

Folks, I could go on.  There are hundreds of other examples in this ICBC meat chart.  The numbers are woeful.  Bottom line for British Columbians – you better hope you never get seriously impaired by the careless driving of another in this Province.  If you do ICBC will add insult to your injury by way of their meat chart.

Tesla Crash Illustrates One of Few Potential Exceptions to ICBC “No-fault” Laws

This week it was reported that a Tesla “suddenly accelerates’ into BC Ferries ramp, breaks in two.

Despite the charged headline the body of the article makes it clear that the cause of the crash is unknown with police investigating whether “either a mechanical issue, or a matter concerning the driver, which may have caused the sudden acceleration.”.

For the sake of a teachable moment under current BC law let’s assume the former.

BC is now a no-fault jurisdiction.  This means that crash victims cannot sue those responsible for the crash.  Hit by a texting driver?  Too bad.  Hit by a distracted driver?  Too bad.  Someone ran a red light and smashed into your vehicle?  Too bad?  Pedestrian hit by a speeding driver that lost control?  Too bad.

The law has carved few exceptions to this harsh reality.  One of the rare exceptions is if a vehicle manufacturer or mechanic negligently created a mechanical defect.  If something like that can be proven then crash victims have limited rights to sue to recover non pecuniary damages.

The limited list of exceptions in part reads as follows:

(a)a vehicle manufacturer, respecting its business activities and role as a manufacturer;

(b)a person who is in the business of selling vehicles, respecting the person’s business activities and role as a seller;

(c)a maker or supplier of vehicle parts, respecting its business activities and role as a maker or supplier;

(d)a garage service operator, respecting its business activities and role as a garage service operator;

(e)a licensee within the meaning of the Liquor Control and Licensing Act whose licence authorizes a patron to consume liquor in the service area under the licence, respecting the licensee’s role as a licensee in the sale or service of liquor to a patron;

(f)a person whose use or operation of a vehicle

(i)caused bodily injury, and

(ii)results in the person’s conviction of a prescribed Criminal Code offence;

(g)a person in a prescribed class of persons.

See the theme?  So long as ICBC is not on the hook for the payout they are ok with you having the right to sue.

Icy Property and the Standard of Care

The BC Lower Mainland and South Island just had one of our biggest snowfalls on record.

I’ll keep this short.

Here’s how an ambulance chaser sees a nice winter City walk.

One of these property owners met the standard of care.  One would pretend they did.  One did not even bother trying.

Be nice, clear your ice!