Government Creates 60 Day Deadline for Crash Victims to Submit ICBC Receipts

In the latest ‘reform’ of the law for collision victims in BC the government has passed a new regulation shortening the time to submit receipts to ICBC from 2 years to a mere 60 days.
Today Order in Council 136 was approved.  Among the changes is the creation of section 88.01 of the Insurance (Vehicle) Regulation creating a far shorter deadline for the submission of receipts to ICBC.  The new section reads as follows:
Requirement for receipts
88.01 (1) If an accident occurs for which benefits are provided under section 88, the insured must provide to the corporation a receipt for the expenses incurred that will be compensated as benefits under that section no later than 60 days from the date that those expenses are incurred.
(2) The corporation is not liable to an insured who, without reasonable excuse, fails to comply with this section.
This requirement appears not to be retroactive with section 104.21 noting “Section 88.01 applies in respect of an accident that occurs on or after April 1, 2019.“.
If you don’t submit your receipts in this timeframe and cannot get them covered by your own insurance you may also be out of luck recovering the expenses in your claim against the at-fault motorist as the Government’s ‘reforms’ have severely stripped peoples rights to claim special damages if they are injured in a BC collision.

ICBC "Minor" Injury Caps Are Not Retroactive!

This post will be short and to the point.  I received a few calls this week from people telling me that, after discussions with adjusters, they had the impression that upcoming ‘minor injury’ caps may apply to them.  If you had a BC crash before April 1, 2019 the caps don’t apply to your claim.  Period.  The law is not retroactive.  If you wait until after April 1 to settle your pre-April 1 crash the caps will not apply to you.  If someone is suggesting otherwise it simply is not true.
If you were involved in a BC crash and wish to discuss this further don’t hesitate to call me, toll free, at 1800-663-6299 or reach me confidentially here.

BC Vehicle Collision Expert Witness Restrictions Relaxed

Earlier this year BC’s Attorney General announced changes to the BC Supreme Court Rules limiting how many expert witnesses litigants can use when prosecuting a personal injury lawsuit arising from a motor vehicle collision.  The rule change was brought in without notice and without support from the Rules committee.
The retroactive and without notice restriction was subject to much criticism and judicial challenges were swiftly brought.  The Government has backed down and before a judicial challenge was ruled on they amended the rule to delay its application only to trials set from 2020 onward.
The new Order in Council, approved and ordered today, reads as follows:
1 Rule 11-8 (11) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, is repealed and the following substituted:
Transition – exceptions for existing vehicle actions
(11) The following exceptions apply in relation to a vehicle action for which a notice of claim was filed before February 11, 2019:
(a) the limits set out in subrule (3) do not apply (i) to any report of an expert that was served in accordance with these Supreme Court Civil Rules before February 11, 2019, or (ii) to the vehicle action if the trial date set out in the notice of trial filed in relation to the vehicle action is on or before December 31, 2019;
(b) the limits set out in subrule (8) do not apply (i) to amounts that were necessarily or properly incurred for expert opinion evidence before February 11, 2019, or (ii) to the vehicle action in the circumstances referred to in paragraph (a) (ii).

ICBC Ordered to Pay $33,264 in Costs For Unreasonable Refusal to Settle Injury Claim

Although the recent ICBC and BC Government narrative attempts to paint injury claimants in an unreasonable light in reality ICBC often refuses reasonable settlement offers only to be ordered to pay far more at trial.  Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, demonstrating such a result.
In the recent case (Moreira v. Crichton) the Plaintiff was injured in a 2013 collision.  The Defendant admitted fault.  The crash resulted in chronic pain with a poor prognosis.  This in turn resulted in real disability and significant past and future medical costs and wage loss.  The Plaintiff made a formal settlement offer of $480,000.  ICBC refused to pay and the matter proceeded to trial where the Plaintiff’s claim was valued over $800,000.  ICBC was ordered to pay double costs for refusing the Plaintiff’s reasonable settlement efforts.
Today the Court assessed these costs at $33,264 and ordered that ICBC pay this over and above the value of the claim.  Unreasonable positions by litigants have consequences.  Here ICBC was ordered to pay a substantial penalty for refusing to treat the plaintiff fairly.  In reaching this assessment of costs Master McDiarmid provided the following reasons:

[1]             This is an assessment of costs following a trial before Mr. Justice Betton. The trial was heard in late January and early February 2018; Betton J.’s Reasons for Judgment were rendered on July 31, 2018 cited at Moreira v. Crichton, 2018 BCSC 1281. The total judgment was $804,914.48.

[2]             The plaintiff had offered to settle for $480,000.00 by way of a formal offer to settle on May 23, 2017. In a subsequent hearing in front of Betton J. on December 18, 2018, he ordered that the plaintiff was entitled to costs, including double costs after May 23, 2017…

[94]         That totals 270 units at $110.00 per unit for a subtotal of $29,700.00, plus 7% PST of $2,079.00 and 5% GST of $1,485.00 for a total of tariff item costs, inclusive of taxes, of $33,264.00. The disbursements on a Bill of Costs should reflect my decision, together with the effect of my decision on applicable taxes on disbursements.

[95]         The disbursements on that Bill of Costs should reflect my decision, together with the effect of my decision on applicable taxes.

[96]         If required, plaintiff’s counsel may submit to me a revised Bill of Costs and certificate, in accordance with these reasons.

Court Entitled To Rely on Civil Jury Instructions For Present Value Calculations

When awarding damages for future losses BC Courts have an obligation to use appropriate present value multipliers in arriving at the lump sum awarded.  Normally this is achieved by relying on expert evidence in personal injury cases.  Given the BC Government’s recent restrictions on expert evidence Justices will likely have increasingly fewer such reports to assist them.
To this end an interesting footnote appeared at the end of a recent personal injury judgment.  In the recent case (MacGregor v. Bergen) the Plaintiff was injured in a 2013 collision.  The crash left the plaintiff with residual partial disability.  Damages were awarded for past and future losses.  The Court noted that no expert evidence was led by either party addressing preset value calculations but this was not a problem as the Court could simply rely on the multipliers provided in BC’s Civil Jury Instructions.  In explaining why this was appropriate Mr. Justice Branch provided the following thoughts in a footnote to his reasons for judgement:
Neither party provided expert testimony as to the appropriate present value multipliers. However, I find that I have an obligation to account for the present value of the future losses pursuant to s. 56 of the Law and Equity Act, R.S.B.C. 1996, c. 253. Multipliers are calculated using the designated 1.5% for the present value of future income loss and 2% for any other future losses. The amounts presented for female police officers and female university graduates were determined by inflating the 2015 data provided by Mr. Turnbull to 2018 dollars (resulting in figures of $99,300 versus $67,700), calculating the difference of $31,600, and then applying a present value multiplier of 26.23, assuming a retirement age of 65 (37 years hence). I find that I am entitled to make use of the multipliers provided at Appendix E of the Civil Jury Instructions for this purpose. I note that the court has relied on the Civil Jury Instructions for this purpose in other cases where expert evidence was not made available: Smith v. Fremlin, 2013 BCSC 800 at para. 38; Erickson v. Bowie, 2007 BCSC 1465 at para. 51, footnote 3; Hrnic v. Bero Investments Ltd., 2018 BCSC 1880 at para. 57; Barnes v. Richardson, 2008 BCSC 1349, aff’d 2010 BCCA 116; Duifhuis v. Bloom, 2013 BCSC 1180 at para. 62; Harris v. Ladner Centre Holdings Ltd., 2008 BCSC 1735 at para. 70.

Police Told They No Longer Need to Investigate Most Collisions in BC

When a collision occurs involving injury, death or a prescribed amount of property damage, attending police officers are required to complete a written report of the crash.   This can be a valuable resource for collision victims as it documents the parties involved, labels the probable offender for the crash, highlights contributing factors along with road conditions and also notes the names of known witnesses.  The ‘prescribed amount’ historically was $1,000 for motor vehicles, $600 for motorcycles $600 and $100 for bicycles.  This captured most collisions.
In a bit of a perplexing development the BC Government has changed this threshold to $10,000.  A press briefing released last week noted as follows:
“Having traffic back up because of a minor collision where nobody was hurt doesn’t help anyone – and worse, it can lead frustrated drivers to take steps that are unsafe,” said Mike Farnworth, Minister of Public Safety and Solicitor General. “Today’s increase in the damage threshold for these kinds of crashes is long overdue and will allow people and police officers to move damaged vehicles out of the way without delay.”
Currently, officers who attend a PDO must complete a written report before any vehicles can be removed from the road if damage exceeds $1,000 (for motorcycles, $600; for bicycles, $100). By increasing the reporting threshold to $10,000 per PDO, regardless of vehicle type, government expects that provincial highways will be able to be unblocked more efficiently.
The BC Government has recently labelled almost every injury sustained in a collision as “minor”.  They have now labelled all collisions causing under $10,000 in vehicle damage as “minor”.  Few people would consider a crash causing $9,000 in damages as anything but severe.  It makes little sense to crack down on speeding and distracted driving (activities which very well could cause collisions) but to ignore investigations when actual collisions occur.
This development takes an important tool away from collision victims who later need to advocate on their own behalf.  If you are a collision victim in BC it is now more important than ever to document matters that the police used to record following a crash.
 

$170,000 Non-Pecuniary Assessment for Hip Injury, PTSD, TOS and Chronic Pain

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a plaintiff who suffered a host of injuries in a vehicle collision.
In today’s case (Firman v. Asadi) the Plaintiff was involved in a 2013 collision.  The Defendant denied fault but was found liable at trial.  The collision resulted in multiple injuries including a torn labrum, thoracic outlet syndrome, PTSD and chronic pain.  Prognosis for full recovery was poor.  In assessing non-pecuniary damages at $170,000 Mr. Justice Verhoeven provided the following reasons:

[145]     Based upon the abundant medical evidence as well as the evidence of the plaintiff and other evidence of the lay witnesses, I find that the plaintiff’s injuries that she attributes to the MVA and as reported to the treatment providers and medical experts were caused by the MVA.

[146]     As noted, there is much overlap in the specific diagnoses found in the medical evidence.  In more general terms, the plaintiff’s injuries sustained in the MVA are: (1) left hip injury, including torn labrum, requiring surgery;  (2) TOS or thoracic outlet syndrome, requiring surgery, and with further surgery recommended; (3) whiplash injuries (myofascial pain syndrome, mechanical spine pain) and resultant chronic pain, particularly in her upper back, left shoulder, and arm; (4) left shoulder tendinopathy; (5) chronic headaches; (6) mood or psychological/psychiatric disorders, including depression, somatic symptom disorder, and anxiety.

[147]     The defendants dispute the diagnosis of PTSD, made by Dr. Schweighofer. Dr. Iso noted PTSD “symptoms”.  In the circumstances of this case, the question of whether the plaintiff fully meets the criteria for this diagnosis is of little practical consequence. Dr. Waraich noted that her symptoms meet the DSM-5 criteria for PTSD, with one exception. He states that, while a diagnosis of delayed onset PTSD could be made, in his view her PTSD symptoms are “better accounted for” by the diagnoses that he makes: depressive disorder, and somatic symptom disorder. However, he added:

…in my opinion, her future course and potential treatment of PTSD symptoms are relevant despite her not meeting full criteria for PTSD in my assessment.

[148]     The prognosis for substantial improvement is poor…

[218]     The evidence discloses that the plaintiff has suffered a very substantial non-pecuniary loss.  She is now only marginally able to continue with her former occupations, and passions in life, fitness training and barbering. Her physical and psychological injuries as outlined previously are substantial, and likely permanent to a large extent at least.  She has endured a great deal of pain and suffering, which will continue indefinitely. She has undergone two surgeries and a third surgery is likely, since it is recommended and the plaintiff says she plans to undergo it.

[219]     Her injuries and their consequences have quite dramatically affected her former lifestyle and her personality. She was previously very physically active. She participated in marathon runs and triathlons, operated a fitness business, and engaged in a number of sporting activities. She was independent and took pride in being able to support herself and her younger daughter, who continues to be a dependant. I referred earlier to the change in her personality noted by the witnesses. She is no longer outgoing, social, energetic and happy, as she was before.

[220]     Her homemaking capacity has been impacted. She testified that pre-accident she kept a tidy household. This is corroborated by Mr. MacDonald and her daughter. She no longer has the ability to maintain a tidy household. Now her house is messy.

[221]     On the other hand, she is far from completely debilitated, and there is a chance her condition will improve, with appropriate treatment.  Her pre-accident condition was not perfect, (in particular, she had symptomatic spinal degeneration, and headaches) and there was some risk that her conditions could have affected her detrimentally in future, as they had pre-accident.  They might have worsened.  …

[231]     Having regard to the case authorities I have referred to, I assess the plaintiff’s non-pecuniary damages in the amount of $170,000.

BC Attorney General – ICBC Does Not Have A "Meat Chart"

Last month ICBC withdrew many settlement offers on open claims and replaced them with lower unrealistic offers which were not tied to judicially established legal principles but rather internally designated criteria.  The media dubbed this strategy the “meat chart” which appears to be resulting in fewer settlements and more claims now clogging the courts.  BC’s Attorney General, the man in charge of ICBC, has now come out and taken offence to the meat chart label and has outright denied its existence.
In a lengthy exchange with MLA Michael Lee BC’s Attorney General asked the opposition member to not call ICBC’s strategy a ‘meat chart‘ and said ‘they do not have a meat chart‘.  Here is the full exchange as recorded in Hansard:

M. Lee: Well, I appreciate that we’ve had a great opportunity to have those discussions, in this House, between the Attorney General and myself. That’s partly because, I think, of the complexity of the roles. I will just conclude by saying that, specifically, the concern is over the multiple roles that the Attorney General carries. One is the responsibility to be the chief legal officer for this province, advising the Premier and the cabinet. The role that he played during the referendum, for example, comes to mind.

The second, of course, in no particular order, is the minister responsible for ICBC. As these changes are coming forward, does the Attorney General look at these changes through the lens of cost containment, as the minister responsible for ICBC, or through the lens of being the chief legal officer to this province, ensuring that individuals’ rights are protected?

There is, of course, great concern in terms of the need for expert reports, the manner in which this meat chart policy that ICBC now has…. There was a report that the Attorney General brought out in early January or December. That was the litigation review, which showed no systemic concern. At least, that was the headline. But clearly there was a change by ICBC coming forward, in terms of how they managed their litigation process.

These are the topics that, I think, are quite concerning, in terms of the pattern right now, of the way this has been approached, in the face of the concerns from members of the legal community. I look forward to discussing that further with the Attorney General in estimates and at other opportunities. I do thank the Attorney General today and the members of the ministry staff for that opportunity to have this discussion.

Hon. D. Eby: I can’t let go unchallenged the member’s suggestion that ICBC has a “meat chart.” They do not have a meat chart. That is incorrect; the member knows it’s incorrect. He shouldn’t repeat it.

That’s the end of my closing statement. I thank the member for his questions on the supplementary estimates, and I thank my staff for assistance.

ICBC has not been faring well in Court since their new strategy kicked in.  I can appreciate politicians looking to distance themselves from it but to outright deny that a new policy has kicked in when assessing the claims of injured British Columbians is a turn for the bizarre. I will continue to report on judicial outcomes of recent cases as they come before the courts.

BC Attorney General Admits Court Rule Changes Brought Without Judicial Approval

Earlier this month 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.  The rule changes were brought without notice to the profession, were retroactive and ultimately will lead to ICBC paying for countless expert reports already in existence that the new rule deems useless.
Today BC’s Attorney General candidly admitted that this rule change was brought unconventionally and without judicial approval.  Legal challenges are being readied against this rule which appears to have been brought for an improper purpose, namely not to fix a procedural problem but rather to save a single institutional litigant money.  In any event here are Attorney General Eby’s words confirming the judiciary did not approve this surprise rule change
 The rules committee did not recommend these changes and was not asked to approve these changes. These changes were a decision made by government.”
Changes to the BC Supreme Court Rules require statutory consultation with the Chief Justice of the Court.  It is unclear just how meaningful a consultation occurred but today’s press release makes it appear that the consultation may have been little more than window dressing.

$95,000 Non-Pecuniary Assessment For Labral Tear with Articular Cartilage Disruption

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic hip injury sustained in a collision.
In today’s case (McCann v. Anderson) the Plaintiff was involved in a 2014 vehicle collision that the Defendant accepted fault for.  The Plaintiff suffered a variety of soft tissue injuries which made full recovery.  More notably he also sustained a chronic hip injury which had a poor prognosis for full recovery.  In assessing non-pecuniary damages at $95,000 Madam Justice Shergill provided the following reasons:

[78]         At the time of the MVC, Mr. McCann was a physically active 54-year-old man who worked at a physically demanding job without restrictions. Though he had some problems in his low back prior to the MVC, there is no evidence that the low back pain would have continued or caused him to experience problems in the future. The impact of the October 2014 MVC was substantial, and caused him significant injuries which have continued to affect his employment and recreational activities.

[79]         Mr. McCann recovered from his soft tissue injuries to his neck, back, left shoulder and left hip within ten months of the MVC. In addition, he suffered from anxiety and depression which are partially attributable to the MVC but from which he fully recovered after approximately one year of symptoms.

[80]         The most significant injury is to Mr. McCann’s left hip. He has been diagnosed with an inter-articular labral tear with articular cartilage disruption. His left hip injury prevented him for returning to any form of work for approximately one-and-a-half years. During that time, Mr. McCann underwent a number of investigations and tried many different treatments to try to alleviate his pain. It was not until he underwent a PRP injection in July 2016 that Mr. McCann finally began to experience long-lasting relief from his symptoms.

[81]         Despite having returned to work at his full-time regular duties, he continues to remain symptomatic and experiences intermittent days off work (once every four to six weeks) due to his ongoing pain from the MVC.

[82]         Prior to the MVC, Mr. McCann participated in a number of sports and outdoor activities, and was generally in good health. Mr. McCann is no longer able to participate fully in all of his pre-MVC recreational and leisure pursuits. 

[83]         Mr. McCann’s condition plateaued by March 2018. Now, over four years later, he continues to experience ongoing pain. His prognosis for significant further clinical improvement in his left hip condition is poor….

88]         After considering all of the case authorities, and having regard to the evidence and the unique circumstances in this case, I assess Mr. McCann’s non-pecuniary damages at $95,000.  

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.

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