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.

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.

Emergency crews say three people have been hospitalized after a plane clipped a vehicle on 216 Street and then crash-landed at the Langley Regional Airport.
https://t.co/ORXeMrWtrq

— CityNews Vancouver (@CityNewsVAN) May 2, 2023

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?

Serious question @erikmagraken – can the people in this crash sue, or is it barred as a motor vehicle accident lawsuit and must go through no fault? https://t.co/3YDkN5dPpt

— Kyla Lee (@IRPlawyer) May 3, 2023

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.

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.

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.

This week MacIsaac & Company helped a client obtain judgement of over $300,000 following a Vancouver Island road rage based collision.  Congratulations to all lawyer and staff who assisted in this great result.

The full case can be found here (Brown v. Ponton).

Thank you Vancouver Sun and CTV News for covering this case.

CTV News Link

Vancouver Sun Link

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!