BC INJURY LAW – Page 2 – The MacIsaac Group of Law Firms

BC Court of Appeal Lays Down The Law of Sports Negligence Claims in BC

Written by ERIK MAGRAKEN on January 6, 2024. Posted in Uncategorized.

Today the BC Court of Appeal published reasons for judgement clarifying the law in sports negligence lawsuits in BC. In short liability can flow if a player is dangerous or reckless in their actions, even if executing an otherwise permitted technique.

In the recent case (Cox v. Miller) the Plaintiff suffered a grade 3 dislocation of the right acromioclavicular joint as a result of a slide tackle in a recreational soccer game. The game was under FIFA rules in which slide tackles were allowed. At trial the Defendant was found liable with the court finding he 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. Noting that while slide tackles were legal this particular slide tackle was dangerous, reckless and beyond what players consented to at this recreational level of play.

The Defendant appealed arguing the court imposed too tough of a standard of care. The BC Court of Appeal disagreed and dismissed the appeal. In doing so the Court provided the following summary of negligence principles applied in the sports law setting in British Columbia:

[40] While the referee was in charge of the match, the judge was in charge of the litigation. She was, in effect, the final referee. On her factual findings, the appellant’s conduct amounted to serious foul play that would have justified the issuance of a red card disqualifying the appellant from further participation in the game. In short, the tackle was not, as the appellant suggests, permitted by the rules of the game, nor was it found by the judge merely to be careless. It was found to be dangerous.

[41] Respectfully, it appears to me that the appellant has advanced a straw-man argument, divorced from the judge’s factual findings. Put bluntly, the issue he seeks to have resolved in this case—whether mere carelessness in the execution of a permissible defensive play made attracts liability in negligence—does not arise on the factual findings made by the judge.

[42] Second, I know of no authority for the broad proposition the appellant would have us endorse—that a play permitted by the rules of the game, no matter how dangerously executed and regardless of the context in which the game is being played (here, a game played in a recreational league involving participants with a wide range of skill and experience), can never give rise to liability in negligence.

[43] The appellant cites no direct authority for the proposition that a permissible play, executed dangerously, can never amount to negligence.

[44] In my view, the appellant can derive no comfort on this point from the remarks of Lambert J.A. in Herok, which merely affirm the proposition that careless acts falling outside the risks assumed by players by participating in the game are capable of grounding liability in negligence. The case certainly does not support the broad proposition advanced by the appellant. Further, I am unpersuaded by the appellant’s attempt to read into the governing authorities of this Court, including Herok, Unruh and Zapf, in support for his position.

[45] By analogy, open ice body checking is permitted in hockey. However, liability in negligence may flow if the body check is executed in a manner that exposes an opponent to an unreasonable risk of harm—a risk the opponent could not reasonably be expected to assume by participating in the game, having regard to contextual factors including the speed and level at which the game is played. A hockey player is no more immune from liability because body checking is permitted than is a driver who executes a lawful left turn in a manner heedless of the safety of others.

[46] Third, acceptance of the appellant’s proposition would give the rules of play a near determinative role in the analysis. Again, I know of no authority that would elevate whether the play in issue was permitted by the rules of the game to such a lofty status. While the rules of the game are a factor to be considered along with other circumstances, the rules are by no means conclusive: Unruh at paras. 23–25, 29, 32–33; Finnie v. Ropponen, 1987 Carswell 659, [1987] B.C.J. No. 448 (S.C.) at paras. 12, 14; Condon v. Basi, [1985] 2 All E.R. 453 (C.A.), 1 W.L.R. 866—where, as here, a dangerously executed slide tackle grounded a negligence finding.

[47] The appellant also argues that the judge erred in law by conflating the meaning of “recklessness” as used in the FIFA rules of play with recklessness in law. I see no merit in this position. Nothing in the judge’s reasons supports the appellant’s position on this point. Further, as I will explain below, the judge found the appellant to have deliberately attempted a slide tackle that he knew, or ought to have known, created an unjustified risk of harm. Against these findings, she made no error in characterizing the appellant’s conduct as reckless.

[48] Finally, the appellant submits that the factual findings of the judge support only a finding of carelessness. Again, I do not agree. The tackle came from behind the respondent, who did not see the challenge coming and had no opportunity to brace himself for impact. The appellant slid into the respondent with both of his legs off the ground, striking the respondent slightly below his knees. The trial judge found there was no possibility that the appellant would reach the ball in executing the tackle. In these circumstances, the judge’s factual findings, when viewed in the context of the evidence as a whole, support her ultimate conclusion that the appellant’s actions were reckless and dangerous.

…

[53] To summarize, I would reject the appellant’s proposition that a defending player in a soccer game is immune from liability for negligence if there is a possibility they will contact the ball in executing a slide tackle, no matter how remote that possibility is, or how dangerous execution of the tackle will be to an opposing player. That is not and could not be the law.

[54] Whether this ground of appeal is properly characterized as an extricable error in law or a question of mixed fact and law—the appellant was not clear on this point—makes no difference to the end result. I see no extricable error in law, nor have I been persuaded that the judge’s analysis reflects palpable and overriding error.

ICBC Not Entitled To Unlimited Information in Processing Claims

Written by ERIK MAGRAKEN on December 15, 2023. Posted in Uncategorized.

ICBC has a lot of power when processing claims. But it is not unlimited. This week reasons for judgement were published by the Civil Resolution Tribunal reigning in some of the power ICBC thought they had.

In the recent case (Nawa v. ICBC) the Applicant was involved in two collisions. A benefits dispute arose with ICBC with the Applicant claiming, among other things, that ICBC wrongfully suspended the payment of his income replacement benefits.

ICBC argued they were entitled to do so because he did not comply with section 11 of the Insurance (Vehicle) Act. This section requires an insured to give ICBC “the content required by the corporation” and further to “comply with any other method of making and proving claims that is established by the corporation.“.

ICBC argued that the insured failed to provide them all the financial information they wanted including his tax records from up to two years prior to his crash.

The CRT found ICBC was wrong to suspend the benefits and noted that while the legislation is broad and gives ICBC the power to request a lot of information they can’t get everything just because they want it. They are restrained to information that is “necessary and material” for the insured to make or prove their claim.

In ordering ICBC to reinstate the benefit and finding their powers for information do have limits Tribunal Member Alison Wake provided the following reasons:

CRT Publishes Draft Intimate Image Protection Order Rules

Written by ERIK MAGRAKEN on December 13, 2023. Posted in Intimate Images Protection Act.

In March 2023 the BC Government passed the Intimate Images Protective Act. The regulations under the Act and the way the Civil Resolution Tribunal (“CRT”) will deal with these claims are yet to be finalized but things now appear to be getting closer.

Today the CRT announced draft rules for these claims and requested public feedback. The below has been published on the CRT’s website:

The Intimate Images Protection Act (IIPA), passed in March 2023, gives the Civil Resolution Tribunal (CRT) jurisdiction to resolve claims about non-consensual sharing of intimate images.

Under IIPA, the CRT can issue protection orders that require an intimate image be deleted, de-indexed, and/or removed from a website or social media platform. If a person or internet platform doesn’t comply with a protection order, the CRT can order an administrative penalty. Administrative penalties are payable to government. The CRT can also award damages of up to $5,000.

The launch date for the CRT accepting these claims will be determined by the BC government. That date has not yet been announced.

To prepare for this change, we’ve created a new set of CRT rules. These rules are called the Intimate Image Protection Order Rules. They will apply to claims for protection orders and administrative penalties.

The newly drafted rules are ready to share with you. We’d like your feedback on them.

A full copy of the DRAFT RULES can be found here.

ICBC Loses “Minor Injury” Fight In Case Involving Chronic Shoulder Injury

Written by ERIK MAGRAKEN on November 8, 2023. Posted in BC Civil Resolution Tribunal, ICBC Minor Injury Caps.

Reasons for judgement were recently published by BC’s Civil Resolution Tribunal shaping the case law as to what is, and what is not, a “minor injury” for crashes that happened during the ‘minor injury’ era.

In the recent case (Ampabeng v. Madden) the parties were involved in a collision. The respondent suffered chronic soft tissue injuries and a shoulder injury. He worked a heavy physical job and the injuries caused him to shift to more administrative duties as his injuries largely disabled him from heavy physical labour. The injuries were also not expected to get better. Despite their serious nature ICBC still argued they were ‘minor’. (to little surprise as the label ‘minor’ was political trickery with the law drafted to catch many serious injuries including chronic pain and even some brain injuries).

The CRT found that these injuries were not minor and met the definitions of ‘serious impairment’ in the workplace. In allowing the respondent to take the case back to BC Supreme Court to have his damages fairly and fully assessed the CRT provided the following reasons:

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

Written by ERIK MAGRAKEN on October 19, 2023. Posted in Uncategorized.

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
down.

[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.

Crash Victims Lose. ICBC Wins. A Story Of ICBC “Enhanced Care” And Sick Bank Benefits

Written by ERIK MAGRAKEN on September 6, 2023. Posted in BC Civil Resolution Tribunal.

The government replaced British Columbians right to sue careless drivers with what they call ICBC ‘enhanced care’. Sounds good right? Nice soundbite but of course the devil’s in the details and the truth is there is nothing ‘enhanced’ about the reality BC crash victims face. This week the latest case was published by the Civil Resolution Tribunal telling British Columbians the harsh truth about how ICBC income replacement benefits work.

In this week’s case (Nishimura v. ICBC) the Applicant was injured in a vehicle collision. She was employed as a heatlh care worker and the injuries rendered her disabled for a period of time. She asked ICBC to pay her wage loss but the corporation told her to drain her banked sick time benefits instead.

The Applicant used up the benefits. She then asked ICBC to reimburse them as she may need them for future disability and would be entitled to a payout of 40% of their value when she retired from her job. ICBC said too bad, the law makes her bear the burden.

The Applicant applied to the CRT for relief but the Tribunal, other than basically acknowledging the harsh law is not fair, said nothing can be done. The reasons speak for themselves. The law is rigged. Crash victims lose. ICBC wins.

I acknowledge Ms. Nishimura’s submission that the legislated accident benefits scheme is “not fair” to accident victims. Although she argues that no matter what has been legislated, she should be made whole by receiving reimbursement for her sick bank time, I am bound by the legislation. I note the legislation does not require ICBC to make Ms. Nishimura “whole”, but instead sets out ICBC’s obligations under its insurance policy. In this case, the legislation does not require ICBC to pay income replacement benefits when Ms. Nishimura had access to “other compensation” for the same loss. As noted, I am bound by the legislation, and therefore Ms. Nishimura’s claim is dismissed.

Medical Cannabis and ICBC “Enhanced Care” Benefits

Written by ERIK MAGRAKEN on August 17, 2023. Posted in Uncategorized.

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

Written by ERIK MAGRAKEN on July 13, 2023. Posted in Uncategorized.

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 👍 👍 👍

Written by ERIK MAGRAKEN on July 7, 2023. Posted in Uncategorized.

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.

Chronic Myofascial Pain Found to be “Minor Injury” for BC Crash Victim

Written by ERIK MAGRAKEN on May 19, 2023. Posted in BC Civil Resolution Tribunal, ICBC Minor Injury Caps.

For two years BC crash victims were subject to the “minor injury” scheme. Basically a law labelling that most injuries are minor. Many British Columbians were surprised to find out that most injuries are labelled minor under this law despite common understanding of the word meaning otherwise. That’s legal drafting and defining in action. Legislative trickery. Words don’t always mean what you think they do, they mean what the government defined them to.

The constitutionality of the Civil Resolution Tribunal, the body given power to decide if injuries are ‘minor’, was in flux for years. With more legal clarity now determinations are being made. This week one of the first minor injury determinations was handed down with the Tribunal finding that an applicant’s chronic myofascial pain was caught by the broad BC Government definition of ‘minor injury’.

In the recent case (Silver v. All-West Heritage Glass Ltd.) the applicant was injured in a 2020 crash that the Defendant was at fault for. The crash caused chronic injury to the Plaintiff’s shoulder that continued to trouble her years later and interfere with some day to day activities. Despite the chronic nature of the injury the Tribunal provided the following reasons finding they fit the definition of minor: