Settlement Remorse Not Enough To Have ICBC Contract Set Aside

In a recent decision of the BC Civil Resolution Tribunal and ICBC settlement was upheld despite the injuries proving worse than the Applicant had expected at the time of reaching a deal.

In the recent case (Vaidyanathan v. Kaye) the Applicant was injured in a crash caused by the Respondent.  The Applicant accepted an ICBC settlement for the minor injury cap of $5,500 (a cap that is being judicially challenged as being in violation of the Canadian Charter of Rights and Freedoms whose fate is yet to be decided).

Following settlement the Applicant was displeased with the deal finding the injuries were more compromising than anticipated.  He sued for damages.  In dismissing the claim as already settled the Tribunal provided the following reasons which serve as a good reminder that it is sensible to obtain legal advice before agreeing to an ICBC settlement to assist with making an informed decision:

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ICBC Reports Obscene Profit

$10 million?

$100 million?

$1 billion?

Even more. $1,538,000,000 to be precise.

According to ICBC’s Annual Report “ICBC’s corporate net income for the fiscal year, which ended March 31, 2021, was $1.538 billion, of
which $1.527 billion was attributed to ICBC and $11 million was attributed to non-controlling interest

Remember when the BC Government and ICBC said they were a dumpster fire?  Said your rights had to be taken away (they called taking your rights away “enhanced care”) in order to avoid financial calamity?  Turns out it was all a lie.

In the fiscal year ending March 31, 2021 (a month before the no fault system even came into force) ICBC did not lose millions as the government claimed they were going to.  They made over 1.5 billion.

And now they’ve stripped your rights.  As this grieving family learned.  And this British Columbian.  And countless others.

The government told you there was a crisis.  That your rights had to be stripped to avoid it.   Turns out that was not true.  But they got what they wanted.

If you are struck by a careless motorist now you don’t have any rights against them.  But ICBC has billions.

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When Can British Columbians Still Sue After A Vehicle Collision?

As readers of this site know the BC government stripped victims’ rights to sue careless and even reckless drivers for almost all crashes after May 1, 2021.

The law taking these rights away is short and to the point.  Section 115 of the Insurance (Vehicle) Act reads as follows:

Despite any other law or enactment but subject to this Part,

(a)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, and

(b)no action or proceeding may be commenced or maintained respecting bodily injury caused by a vehicle arising out of an accident.

The law carves out some exceptions and these are worth being familiar with if you are the victim of a collision.

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Under “Enhanced Care” ICBC Values A Child’s Life Less Than A Damaged Car

You read that right.  ICBC’s ‘enhanced care’ benefits value the loss of a child at the hands of a negligent driver less than what they value for vehicle damage.

I have been fielding questions about the harsh realties of ICBC’s no-fault system since it came into force on May 1, 2021.  Many British Columbians were deceived thinking they were getting better coverage for less money.  They were deceived because the BC Government spent millions of dollars on ad campaigns to do exactly that.

After being asked on Twitter why the drivers themselves can’t be sued and continuing to explain the actual new law to more baffled British Columbians one user pointed to grieving parents learning of one of the cruelest truths of ‘enhanced care’.  A child’s life being valued less than a damaged vehicle.

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Let’s Talk Criminal Drivers And BC Victims Right To Sue

There have been a lot of terrible stories in recent weeks of pedestrians, cyclists and other road users suffering tragic injuries and even death at the hands of reckless motorists.  I will not link to any individual stories as I don’t want to use personal tragedy as a talking point.  Accept with a quick google news search you can verify this as fact.

Many of these victims are learning the hard reality that their rights to sue for compensation for their profound losses have been taken away.

The BC government stripped victims’ rights to sue careless and even reckless drivers for almost all crashes after May 1, 2021.  I’ve been fielding more calls than I like explaining this to people.  The BC Government conveniently left themselves a talking point pretending that if the at fault motorists actions amount to criminal behaviour victims can still sue.  However, this is at best a half truth.  Let’s break this down –

The BC no-fault scheme takes away victims rights to sue at fault drivers.  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 (remember the government passed a law saying police don’t have to attend most crashes)
  • 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

Unless the government gets all of the above steps right you are out of luck.  It does not matter if you are maimed.  It does not matter if a loved one died.  It does not matter if the at fault driver actually was committing a prescribed crime at the time and you can prove it.  Unless the government decides to do everything right and actually gets it right you simply do not have the right to sue the at fault motorist.

And if that’s not enough the government only allows victims in these very narrow circumstances the right to sue the at fault driver for “non-pecuniary damages and punitive, exemplary or other similar non-compensatory damages” instead of damages for all their actual losses.

Below is the very narrow list of ‘prescribed offences’ committed after December 18, 2018 that trigger a victim’s right to sue:

Schedule 10 – Prescribed Conditions

“motor vehicle related Criminal Code offence” means any of the following offences that an insured commits while operating or having care or control of a vehicle or by means of a vehicle:

(a)an offence under section 220 or 221 of the Criminal Code;

(b)an offence committed before December 18, 2018 under any of the following provisions of the Criminal Code:

(i)section 249;

(ii)section 252;

(iii)section 253 (1) (a);

(iii.1)section 254 (5);

(iv)section 255 (2);

(v)section 255 (3);

(vi)section 259 (4);

(c)an offence committed on or after December 18, 2018 under any of the following provisions of the Criminal Code:

(i)section 235;

(ii)section 236;

(iii)section 239 (1);

(iv)section 320.13 (1);

(v)section 320.13 (2);

(vi)section 320.13 (3);

(vii)section 320.14 (1) (a);

(viii)section 320.14 (1) (b);

(ix)section 320.14 (1) (c);

(x)section 320.14 (1) (d);

(xi)section 320.14 (2);

(xii)section 320.14 (3);

(xiii)section 320.15 (1);

(xix)section 320.15 (2);

(xx)section 320.15 (3);

(xxi)section 320.16 (1);

(xxii)section 320.16 (2);

(xxiii)section 320.16 (3);

(xxiv)section 320.18 (1).

 

ICBC Unfair Fault Finding Can Cost You Over $8,000!

If you are involved in a BC Crash ICBC, the Provincial monopoly insurer, will internally decide if you are at fault or not.

If they get it wrong and blame you for a crash you should not be responsible for it can cost you a lot.

Leaving aside things like paying for collision damages, deductibles and potentially expansive optional coverage which can amount to many thousands of dollars something as simple as basic ICBC coverage can skyrocket by the thousands after a single crash that ICBC blames you for.

ICBC uses a complicated formula to determine how much basic insurance rates cost based on various factors including driving experience and at fault claims history.  If ICBC finds you at fault for a crash premiums can increase by many dollars for many years.  For some drivers the ultimate bill, as demonstrated in the below charts, comes to over $8,000 in increased basic premiums.

If ICBC unfairly blames you for a crash understand these costs before you accept their decision.

If you are interested in challenging ICBC for a wrongful fault determination contact us and we can discuss your options.

 

Table 1: Premiums for 5-year driver

Year Premium

(no CCP)

Premium

(1 CCP)

Premium

(2 CCP)

1 $881.07 $881.07 $881.07
2 $879.96 $1,644.29 $1,644.29
3 $764.40 $1,512.50 $1,512.50
4 $709.85 $1,195.83 $1,195.83
5 $667.93 $1,105.76 $1,105.76
6 $645.50 $1,036.26 $1,036.26
7 $632.17 $991.04 $1,623.49
8 $623.68 $977.08 $1,587.18
9 $613.58 $963.57 $1,339.98
10 $605.00 $949.17 $1,310.59
11 $601.76 $936.04 $1,287.18
12 $598.74 $598.74 $954.61
  $7,342.57 $11,910.28 $14,597.66

 

For a new driver with a CCP on their claim payment record in the first year, increased insurance premiums over the first ten-year period result in an additional $8,266.96. If premiums for a CCP increase after the first year it is reduced to $6,894.63.

 

Table 2: Premiums for a new driver with and without a CCP

Year Premium

(no CCP)

Premium

(1 CCP)

1 $1,246.64 $3,603.46
2 $1,151.12 $2,697.53
3 $1,068.78 $2,055.08
4 $1,002.53 $1,831.95
5 $942.21 $1,635.94
6 $881.07 $1,312.82
7 $817.88 $1,215.44
8 $764.40 $1,133.30
9 $709.85 $1,049.55
10 $667.93 $984.31
  $9,252.43 $17,519.39
     
     

BC Bullying Law – Unique Issues With Limitation Periods

A little appreciated fact are the broad timeframes at play when certain individuals can sue their abusers for either sexual or physical abuse.

For many years BC has had no limitation period for claims relating to sexual assault.  Whether the victim is a minor or an adult a lawsuit can be brought at any time against their sexual assailant. In cases without actual sexual assault but that amount to “misconduct of a sexual nature” there also is no limitation period if the victim was a minor at the time of the misconduct.

But what about cases of physical assault with no sexual nature?  Historically these were subject to the limits set out in BC’s Limitation Act.  However, in 2013 changes to the Act came into force which removed limitation periods for certain victims of non sexual abuse.

Section 3(1)(k) came into force and removed limitations for lawsuits based on

(k)a claim relating to assault or battery, whether or not the claimant’s right to bring the court proceeding was at any time governed by a limitation period, if the assault or battery occurred while the claimant

(i)was a minor, or

(ii)was living in an intimate and personal relationship with, or was in a relationship of financial, emotional, physical or other dependency with, a person who performed, contributed to, consented to or acquiesced in the assault or battery;

The broad section gives the right for children to sue their abusers at any time.  It also expands this right to those in financially, emotionally or physically dependent relationships with their abusers.

Assault and battery are legally simple concepts.  Battery simply refers to the unwanted application of intentional force.  Assault is the threat of the application of such force.  Anyone perpetrating these wrongs to vulnerable victims can be pursued at any time to be made accountable for their wrongdoing.  This expanded limitation period was discussed in a case published earlier this year by the BC Supreme Court.

In Khan v. School District No. 39 the Plaintiff sued for various historic allegations of harm.  In discussing those that were and were not statute barred Mr. Justice Majawa provided the following comments on the current state of the Limitation Act:

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British Columbians Learning Reality of “No Fault” One Crash at a Time

The BC Government told British Columbians they will save on car insurance.  They told you that you will receive ‘enhanced care’.

But day after day and crash after crash British Columbians are learning that the new ‘no fault’ model, a concept so unpopular that the government spent untold money to consultants to rebrand it as ‘enhanced care’, delivers anything but.

I am taking daily calls from BC crash victims after May 1, 2021.  They are learning the hard way that these fancy soundbites mean nothing.  Much like the man whose story was told in the below North Shore News article.

Instead the conversations go something like this

  • Can I claim my full wage loss? Nope
  • ICBC says I have to use up my other wage replacement benefits before they pay? Yup
  • Can I get all my out of pocket expenses for my injuries covered? Nope
  • My therapist is really good but charges more than ICBC covers. Too bad
  • Pain and suffering? Nope
  • What about the full cost for the inability to take care of my own home (diminished houseeking capacity)?Nope
  • Settlement for Future Care costs? Nope
  • But I can sue the at fault driver? Almost never
  • But they were fully at fault!  Doesn’t matter
  • The driver was texting at the time! The law doesn’t care
  • My vehicle has now dropped in value!  Can’t claim that either
  • I can take ICBC to court?  Nope.  A tribunal created by the BC Government.
  • I was a pedestrian and don’t even pay for ICBC insurance so this does not apply to me?  Nope, your rights are gone too.
  • I was a cyclist?  Too bad.

How is this fair?  Its not.

How is this ‘enhanced’ care?  Its not.

The only people who have more care after a crash are the at fault drivers.  The no fault scheme gives them greater benefits for wage loss and out of pocket expenses.  This is paid for by taking all of the above rights away from crash victims.

Calls will keep coming in.  The above conversation will be repeated.  British Columbia crash victims will continue to have to swallow the real news, not the marketing soundbites.  If you don’t like it you should contact your MLA and let them know this stinks.  It will not change your current rights but if politicians listen perhaps they will restore peoples rights so you, your friends and family members will not face the same bad news you’re facing if  victimized in a future crash.

Find MLA by community here

MLA contact information here

We Sue Covid Spreaders! ™

Imagine having Covid-19.  Being told you have Covid-19.  Being told to self isolate and taking basic steps to protect others.  But not doing so and harming others.

You may be called a Covidiot.

You may be sued.

If you pass Covid-19 on to others.  If they die.  If they get ill.  If they have long term health harm.  If they have short term health harm.  Even if they don’t but they are forced to self isolate and then suffer harm from that, financial or otherwise.  You might be on the hook for damages.

The law in British Columbia is pretty simple.  Negligence.  Take reasonable care not to harm others.  If you fail in this duty you can be sued for all provable damages.  The law is nimble.  It adapts to Covid-19.  It adapts to Covidiots.

Don’t be a Covidiot.

We Sue Covid Spreaders ™

We Sue Covidiots™

 

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

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