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ICBC Backs Down on Potential Limitation Period Showdown With Crash Victims

BC’s vehicle insurance landscape is currently in a mess.  There is a Civil Resolution Tribunal that may be unconstitutional.  Some crash victims still have the right to sue the at fault motorist that injured them.  Some are caught in a period of time where they can still sue but deceptively labelled ‘minor injuries’ have capped damages.  The constitutionality of that law is being questioned in ongoing litigation.  Some crash victims have no right to sue at all.  The constitutionality of that law is being questioned.  Clear as mud?

Things are, in a word, complex.

One complexity now has a bit more clarity. This is not east to explain succinctly but let me give it a shot.

Crash victims after April 2019 – May 2021 have the right to sue.  They can get pain and suffering.  If their injuries are deemed ‘minor’ their pain and suffering is capped at about $5,500.   If the victim sues in BC Supreme Court and the at fault motorist (almost always insured by ICBC) claims the injuries are minor they can seek an application that the claim be diverted to the Civil Resolution Tribunal.

Because of the pandemic there has basically been a one year extension of the time limit to sue in BC Supreme Court.  The BC Civil Resolution Tribunal gave no such courtesy.  So in short a crash victim can sue in time in BC Supreme Court, ICBC can hypothetically seek to dismiss the lawsuit and ask that it be ordered to be restarted at the CRT.  If a court grants such an order the victim only has a few weeks to start the proceeding there.  But what if the claim is beyond two years at the time this happens (the typical limitation period)?  Can they refile in the CRT or are they out of time?  The BC Government, in all their efforts to stack the deck of the auto insurance system in ICBC’s favour, did not bother clarifying this.  It is unclear what the ultimate outcome would be (though there are strong arguments as to why the re-filing should be allowed, I’ll save those for another day).

ICBC has decided to back down and not raise this issue.  A letter was sent by counsel for ICBC to counsel for plaintiffs in some of the ongoing constitutional challenges where the Crown Corporation agreed to back down.  I’ll let the letter speak for itself.  Specifically ICBC’s Director Claims Programs & Strategy says that

The context of particular concern involves actions that were commenced within time in the BCSC but are brought
to the CRT outside of the applicable limitation period. You ask whether in that context, ICBC insured defendants will take the position that the Limitation Act applies to the commencement of the claim before the CRT. We confirm that to date ICBC has not, and going forward will not,
instruct counsel representing ICBC-insured defendants to rely on a Limitation Act defence in that context.

A small bit of clarity in a brutally complex legal landscape.



Study Finds “Conclusive Evidence” Repetitive Head Impacts Cause CTE

Correlation Does Not Equal Causation.

Sometimes things are related. But it does not mean one is caused by the other. Science moves slowly and cautiously and now a study has been published taking the important step saying repetitive head impacts in fact “cause” CTE.

A research paper, published in Frontiers of Neurology titled Applying the Bradford Hill Criteria for Causation to Repetitive Head Impacts and Chronic Traumatic Encephalopathy, makes this important assertion.

In the paper the authors applied the Bradford Hill criteria to the medical literature dealing with CTE and repetitive head impacts. These criteria “provide a framework to determine if one can justifiably move from an observed association to a verdict of causation“.

In applying this criteria the authors “found convincing evidence of a causal relationship between RHI and CTE, as well as an absence of evidence-based alternative explanations“.

The authors published the following conclusions which have widespread implications spanning areas such as public health policy, sports regulation and even litigation.

The evidence on the link between RHI and CTE is imperfect, and like all similar research, it will remain imperfect in perpetuity. After reviewing the medical literature on RHI and CTE through the Bradford Hill criteria, we have the highest confidence in the conclusion that RHI causes CTE. We encourage the medical, scientific and public health communities to now act under the premise of a causal relationship and take immediate action to prevent CTE, minimize risk, and develop therapeutics to slow or stop disease progression.

To accomplish this, we must make greater investments in research to better understand the mechanism of CTE and develop biomarkers to diagnose CTE in vivo and measure the effect of interventions. We need to accelerate research to advance our limited understanding of the role of genetic and non-genetic risk factors and risk modifiers in CTE outcomes, anatomic location, symptomatology, progression, and severity.

Additional research will inform prevention and therapeutic strategies for the hundreds of millions of individuals worldwide already exposed to RHI and at risk of developing CTE. However, while we call for more research, we also believe that the strength of the current evidence compels us to move past a scientific discussion focused solely on filling gaps in the evidence to focus on immediately implementing aggressive CTE mitigation programs, especially for children.

We support measures to minimize and eliminate RHI as the best action for preventing CTE. We encourage awareness efforts so parents, athletes, and policymakers can better understand the risks associated with RHI, change how games are played to reduce or eliminate RHI – especially for children – and make more informed decisions regarding participation in contact sports.

Finally, we encourage the medical, scientific, and public health community to reflect on the risks of RHI to children, a vulnerable population that cannot provide informed consent to participate in activities that may cause a preventable neurodegenerative disease. We can, and should, do what is possible to prevent children from developing CTE before they can possibly understand how CTE might impact their future.

Court Challenge Filed Against Arguably “Unconstitutional and Hence Illegal” ICBC No Fault Scheme

BC’s Attorney General has one heck of a track record when it comes to trying to strip the rights of British Columbians in favour of the provincial monopoly auto insurance corporation ICBC.  To date the Courts have not been particularly impressed with these “thinly veiled” attempts to take away the public’s rights to “improve the finances of ICBC”.

In 2019 the AG amended the rules of court without input from the profession to set a hard cap on how many expert witnesses a crash victim can use in trying to prove their case.  This was struck down as unconstitutional.

The government did not learn their lesson and tried to stack the BC Supreme Court system in ICBC’s favour by setting a 6% cap on disbursements plaintiffs can recover by way of a regulation under BC’s Evidence Act.  This was struck down as being contrary to administrative law principles and also being unconstitutional.

The Attorney General is also behind a scheme trying to take most cases away from federally appointed judges in the BC Supreme Court and using a provincial tribunal as a gatekeeper of who can go to court.  This has been declared unconstitutional by the chief justice of the BC Supreme Court with the BC Court of Appeal split on its constitutionality with the Supreme Court of Canada likely being the final arbiter of this law’s fate.

Now the BC Attorney General’s latest attempt to take away British Columbian’s rights is being challenged in new litigation.

Earlier this month Schober v. BC (AG) was filed in the BC Supreme Court.  The Plaintiff, Schoeber, was left paralyzed as a result of a vehicle collision.  His right to be properly compensated for his losses has been taken away by laws backed by BC’s Attorney General.  The law, in essence, took almost every crash victim’s right to sue negligent drivers away for collisions after May 1, 2021.  Schoeber, like an ever growing list of British Columbians, was caught by this time frame and is stuck with the payments ICBC agrees to give him and nothing else.  Schober argues having his right to full compensation being stripped coupled with having his rights to meaningfully challenge ICBC’s decisions in BC Supreme Court amounts to an “unconstitutional, and hence illegal” move by Legislative Assembly of British Columbia.

Schober advances two broad arguments.  He alleges these laws violate s. 15 of the Charter of Rights and Freedoms (a law that guarantees the protection of equality rights of Canadians including the right not to be discriminated against based on mental and physical disability) and further amount to an unconstitutional flex of the Province’s powers beyond what s. 96 of the Constitution Act allows (the law that sets the separation between the powers of Provinces vs the Federal Government).

The following short summary of the legal claims are plead:

(these laws) “are discriminatory: they reinforce, perpetuate and exacerbate the disadvantage of people disabled in vehicle accidents, by entrenching the economic impact of their disabilities and denying legal recognition to their pain and suffering. The discrimination brought about by the scheme is not demonstrably justified in a free and democratic society. It is a violation of s. 15 of the Canadian Charter of Rights and Freedoms (infra) that is not saved by s. 1.

Under the CRTA, the Supreme Court of British Columbia is substantially precluded from interfering with decisions made by the CRT under the auspices of its Review Power. The result is simple: under this scheme, it is the government that polices the government, when the rights of victims hang in the balance. And that self-policing comes about by way of unconstitutional ouster of the court: the CRT possesses a power exclusively within the purview of the superior court, and, by also precluding claims via the Claims Bar, in its totality the scheme encroaches upon the core jurisdiction of the superior court, in violation of s. 96 of the Constitution Act, 1867.”

The fate of these latest laws is not yet known.  Time will tell.

The full court filing can be found here Schober v BC(AG)

Latest ICBC Attempt To Stack Court System in Their Favour Declared Unconstitutional

This week the BC Supreme Court struck down regulations limiting the amount of disbursements a party can claim when prosecuting an ICBC claim as being both unconstitutional and contrary to administrative law principles.

By way of background, the current BC Government has taken many steps limiting the rights of BC crash victims in order to grow ICBC’s bottom line.  This culminated in full blown ‘no fault’ insurance taking away the rights of crash victims to sue those that injure them except in the most limited of circumstances.  There are many active claims, however, that pre-date the no-fault era and the Government has been trying their best to limit the rights of those victims in their disputes with ICBC.

In 2019 the BC Supreme Court found a rule limiting how many expert witnesses a plaintiff could rely on to be unconstitutional.  After this loss the BC Government took another kick at the can passing a regulation under the Evidence Act saying plaintiff’s could only recover disbursements totalling 6% the value of their claim in an ICBC fight.  This made crash victims face the unwelcome choice of either not bringing sufficient evidence to court or knowing that if they do they may not have the right to recover the costs of doing so.  Mr. Justice Smith presided over the challenge to this regulation in Le v. British Columbia (Attorney General) and this past week provided reasons striking it down both on administrative law and constitutional principles.  In doing so Justice Smith provided the following comments on the regulation:

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MacIsaac & Company Investigating BC Employers With Gender Pay Gap

The gender pay gap is real.  In British Columbia particularly so.  Statistics Canada found that women make 18.6% less than men on average for equal work.  CBC reports this is the widest gender pay gap in the country.

MacIsaac & Company is investigating BC employers with particularly egregious gender pay gaps.

If you are a woman employed in British Columbia and have reason to believe you are being paid meaningfully less than male counterparts for identical work we would love to hear from you.

You can contact us here, in confidence and free of charge or obligation, tell us your story and have your legal options canvassed.

BC Victims ICBC Rights At the Mercy of the Police. Who Are Told Not To Attend Most Crashes.

A story is making the rounds that holds some sobering lessons for British Columbia crash victims.

If you get run over by a careless driver and the police don’t pursue criminal charges your rights are gone.  That’s right gone.  Your right to sue, your right to pain and suffering, your right to proper damages are gone.

This week a driver ran over four people.  The police provided a media statement seemingly minimizing the wrongdoing of the driver referring to them as ‘impatient’.  It is unknown if charges are being pursued.  But if they are not the victims of the crash will receive some harsh news.  Their rights to be fully compensated for their injuries will be gone as well.

How can this be?  Here’s the ugly truth –

The BC no-fault scheme takes away victim rights to sue at fault drivers for all crashes after May 1, 2021.  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
  • 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

If there is a weak link anywhere in this long legal chain the victims rights are gone.

And get this – in 2019 the BC Government passed a regulation saying police don’t even have to bother to show up following most crashes.  No wonder they don’t take crashes seriously.  This is saving ICBC millions.  At the expense of innocent victims.

BC Court of Appeal Discusses Dual Role of Treating Physician as Expert and Lay Witness

Informative reasons for judgement were published last week by the BC Court of Appeal discussing the scope of what is permissible when a treating physician is called both as an expert witness and a lay witness (witness of fact).

In the recent case (Ford v. Lin) the Plaintiff was injured in a vehicle collision and sued for damages.  Following trial the Plaintiff appealed arguing treating physicians were unduly restricted by the trial judge when testifying.  The BC Court of Appeal found that no error occurred.  In doing so the Court provided helpful discussion on two points.  First the scope of permissible examination in chief from a party’s own expert under the current BC Supreme Court Rules.  Second the scope of permissible lay evidence that can be called from the same expert.

On the first point the Court noted as follows:

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Proposed Class Action Lawsuit Filed Against Gymnastics Canada For Alleged Athlete Abuse

A lawsuit was filed today in the BC Supreme Court, Vancouver Registry, seeking to be certified as a class proceeding (commonly referred to as a class action) hoping to represent many gymnasts for suffering alleged physical, emotional and other harm in their sport.

In the lawsuit the Plaintiff, a former BC gymnast, alleges that in years of gymnastics she was exposed to physical abuse including

(a) routine over conditioning, including forced over stretching;
(b) routine hyper extension of the knees by coaches forcibly sitting on athletes’
(c) forcing athletes to perform skills while injured;
(d) forcing athletes to perform skills beyond their capabilities;
(e) directing and requiring athletes to maintain an unhealthy weight;
(f) inappropriate physical contact, including …having athletes run into 
arms and straddle his waist; and,

g) inappropriate physical contact, including …hiking athletes’ suits
higher on an athlete’s legs, hips and buttocks revealing their inner thighs
and buttocks.

Allegations of psychological abuse including:

(a) public berating, yelling and humiliation;
(b) verbal abuse and bullying, including statements such as “are you stupid?”;
(c) body shaming, including public weekly weigh-ins which were often
accompanied by verbally abusive and humiliating statements such as “what
have you been eating?” or “too many cookies this week?”;
(d) controlling and manipulative behaviour which included ignoring athletes
during training and competitions;
(e) depriving athletes of necessary instruction, spotting, assistance and
(f) prohibiting parents from attending or observing practice; and,
(g) explicitly instructing athletes to not tell their parents what happened at

The lawsuit says the Plaintiff suffered harm from these practices, that many other gymnasts did as well from similar practices and the that the sports organizing bodies (Gymnastics Canada and various provincial sporting organisations) turned a blind eye to systemic problems in the sport and should be liable for the harm.

None of the allegations have been proven in court.  The Defendants have still have time to formally respond to the allegations.

The lawsuit claims that the sport organizing bodies should be liable under the legal principles of Systemic Negligence, Breach of Fiduciary Duty and Vicarious Liability.

Presently only one plaintiff is formally involved in the filed lawsuit but hopes to certify a very broad class covering

All gymnasts resident in Canada who claim that they were physically, sexually,
and/or psychologically abused while participating in Gymnastics Canada,
Provincial Member Organization, or Member Club programs, activities, or
events between 1978 and the present

In recent months many allegations were made from current and former athletes in a variety of organized sports in Canada including not just gymnastics but also boxing, synchronized swimming, rugby, rowing and others.

This lawsuit likely will not be the last flowing form similar allegations across many sports.  There will be challenging times, both in and out of court, for provincial and national sport organizing bodies in Canada flowing from these ever growing lists of allegations.

Boxing Canada Called Out For Ignoring Concussions

(Article originally published at my sister site CombatSportsLaw)

This week an open letter endorsed by 121 current and former athletes, coaches and officials of Boxing Canada called out the National Sport Organization and monopoly of amateur boxing in the country for various practices. The letter was republished with permission by Global Athlete and is the latest of a series of complaints critical of amateur sport organizations in Canada.

Among the serious complaints levelled were allegations that the organization forced athletes to put up or shut up when it came to poor practices regarding brain health. The letter notes as follows:

the High-Performance Director has forced athletes to train or compete in unsafe environments. Athletes have been forced to spar with clear signs of concussions or against teammates with significant weight class disparities, both of which were extremely unsafe. Athletes were forced to put up with the status quo if they wished to remain in the sport.

As a lawyer with nearly 20 years litigation experience in Canada let me give sports organizers, boxing or otherwise, food for thought – Sports organizers need to take these complaints seriously.

Taking athlete brain health (and health generally) is imperative. Coaches exist to get results but results can’t be prioritized ahead of athlete well being.

Concussion protocols exist for a reason. Ignoring these can expose a coach to civil litigation. Negligence law in Canada is robust and flexible. A coach ignoring a concussion and exposing an athlete to more brain damage contrary to established concussion protocols can be labile for any new injury. In fact the coach may even become liable for the entire injury (the initial concussion and its aggravation) under the principles of ‘indivisible injury’. You need not take my word on it, there are many examples of these legal principles alive and well in our courts.

If you are relying on waivers in many parts of Canada youth cannot waive the right to sue. Often waivers are not worth the paper they are written on.

If Sports Organizations (PSO’s and NSO’s) are turning a blind eye to systemic wrongdoing the accountability may go right up the food chain under the principles of vicarious liability.

Athlete health matters. Seeking the glory of results should never come at the price of athlete health and safety. If practices like those alleged in the open letter to Boxing Canada don’t change for the sake of doing the right thing then they should change out of a sense of self preservation.

Soccer Coach Sued For Allegations of Injury After Not Following Concussion Protocols

Interesting reasons for judgement were recently published by the Supreme Court of Nova Scotia allowing a lawsuit to continue against a youth soccer coach based on allegations that she made a concussion worse by allowing an athlete to continue playing contrary to concussion protocols.

In the recent case (Rutt v. Meade) the Plaintiff was injured in a vehicle collision and sued for damages.  The alleged injuries included a concussion.

A few weeks after the crash the Plaintiff  played in a national soccer tournament for her club.

The Defendants in the car crash lawsuit brought a third party action against the soccer club and the coach arguing it was negligent to allow the Plaintiff to play soccer while she was still dealing with concussive injuries from the crash and that participation in sport was contrary to the established concussion protocols and this added to her prolonged injury.   The coach and club asked to be let out of the lawsuit arguing they could not be responsible for the concussion which was caused by the car crash.

In denying the application and allowing the third party claim to continue the Court noted that depending on how the facts play out a coach could be found legally liable in such circumstances.  In allowing the claim to proceed  Justice Gail L. Gatchalian provided the following reasons:

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