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!

Update December 16, 2022 – This week CBC On The Coast with Gloria Macarenko did a follow up story on this initiative.  You can listen to the clip here.  And thank you ONE Championship world heavyweight title holder Arjan Bhullar for the kind words and helping spread brain health knowledge in combat sports!

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One of my responsibilities is volunteer work with the charitable organization Fighting Foundation.

Fighting Foundation is helping bring education, resources, research and other services to the combat sports community.  One of the projects we’ve been advocating for in recent months is brain health awareness for combat sports gyms and practitioners.  There is encouraging data that better educated fighters sustain less long term brain harm.

We teamed up with the Association of Ringside Physicians (the best combat sports doctors from around the world) and together created posters sharing key messaging about CTE and concussions for fight gyms.  We are looking to bring this information to gyms around the world.

Thank you CBC news for highlighting this work on numerous of your platforms this week.  Below are some of the clips for those interested along with links to our brain health knowledge posters for gyms.

Link to interview with Gloria Macarenko

Link to CBC News article.

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Only 6% of polled combat sports coaches had adequate brain health knowledge.

Let’s get that to 100%.

This link will take you to high resolution PDF files of the posters co-created by Fighting Foundation and the Association of Ringside Physicians. (The CTE poster has two options to choose from, one with all the information on one page and one where it is spread over two pages).

Please print them.

Post them in your gym.

Take a pic and share on social media with the hashtags #BrainHealthMatters #FightingFoundation and tag your gym as well!

Let’s get these into as many gyms as possible!

The below guest post authored by MacIsaac & Company’s Human Rights lawyer Kayla Bergsson

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In a recent decision, the BC Human Rights Tribunal held that an Indigenous mother was discriminated against in her interactions with a child protection agency that retained custody of her children and strictly restricted her access to them for nearly three years. The mother was awarded $150,000 as compensation for injury to her dignity, feelings, and self-respect. This is the second highest award under this category in the tribunal’s history.

Governments in what’s now called Canada have interfered with the relationships between Indigenous caregivers and their children for generations. First, governments, police, and churches forcibly removed children from their homes and families and brought them to residential schools. Then there were the Sixties and Millennium Scoops. Indigenous children in care continue being overrepresented and underserved.

Remember when ICBC, Dave Eby and the NDP government launched a multi million dollar marketing campaign promising British Columbians they are bringing ‘enhanced care’ to ICBC and how much more crash victims will be getting?

Well, turns out that was none of it was true.

Crash victims are getting less under no-fault.  A lot less.  Data is out showing ICBC is paying crash victims 30% less than prior to ‘enhanced care’ despite there being more crash victims than ever!

But ICBC getting more.  They are paying themselves more than actual crash victims!  Paying yourself more to give crash victims less.  Quite the monopoly.

Data was published this week by the Insurance Bureau of Canada shedding a light on the truth of what no fault is.  I republish it below.  It speaks for itself:

VANCOUVER, BC, Nov. 3, 2022 /CNW/ – New data from the first year of the Insurance Corporation of British Columbia (ICBC) “Enhanced Care” no-fault regime shows that the Crown insurer’s operating expenses exceeded what it provided in injury claims by $173 million in 2021/22.

According to its 2021/22 year-end financials, the switch to a pure no-fault system has allowed ICBC to reduce what it provides to accident victims by 30%. This, despite the fact that collisions were up significantly over that same time period.

In 2020/21, the year before no-fault came into effect, ICBC paid out $2.11 billion in injury claims to help individuals recover. In 2021/22, under the first year of no-fault, claims paid fell to $1.48 billion. In contrast, last year ICBC spent $1.62 billion in operating costs. 

“The purpose of auto insurance is to ensure that people get the benefits they need to recover from injuries sustained in an accident,” said Aaron Sutherland, Vice-President, Pacific and Western, Insurance Bureau of Canada (IBC). “ICBC’s dramatic reduction in claims costs calls that key tenet of insurance into question. Rather than focusing on improving its own internal operations to find efficiencies and savings for drivers, it’s appears that ICBC is balancing its books by reducing what it provides to those injured in collisions.”

Over the past year, there has been a constant stream of media coverage detailing the plight of those injured in auto accidents in BC. It’s clear that those who are seriously injured deserve legal recourse if they are not receiving the benefits they need to recover. It also strengthens the argument that drivers deserve a choice and the ability to shop around to find the auto insurance policy that is best for them.

“This reduction in care and recovery benefits illustrates the painful truth about ICBC’s no-fault model, and those injured are suffering the consequences,” said Sutherland. “Now, more than ever, drivers need a choice to ensure they are receiving the best insurance at the best price possible.”

Over the coming weeks, IBC will continue to highlight the uncomfortable truth about ICBC and its new no-fault model. ICBC’s own data clearly shows that the monopoly insurer has focused on reducing the amount it pays in benefits to help drivers recover, while ignoring its own internal problems and passing undue costs on to British Columbians. 

Inflation is real.  Reasons for judgment were published this week by the BC Supreme Court, Vancouver Registry, helpfully setting mileage at $0.60 per kilometer in an ICBC claim.

In the recent case (Trafford v. Byron, 2022 BCSC 1896) the plaintiff was involved in a tort claim preceding the current no-fault era.  Madam Justice Wilkinson provided the following helpful reasons for the current fair calculation of mileage as a special damage in such claims.

[121] The plaintiff asks the court to take judicial notice that the cost of operating a
vehicle has increased since the $0.50 rate was recognized in Grewal-Cheema v.
Tassone, 2010 BCSC 1182 at para. 60. The rate of $0.50 has been applied in a
number of decisions of this Court as recent as 2018 as referred to me by the plaintiff.
The plaintiff’s treatments were in 2021 and 2022. I agree with the plaintiff that it is a
notorious fact that automobile fuel costs and the price of vehicles generally have
increased since 2018. In particular, in 2021 and 2022 fuel costs have significantly
increased such that $0.50 does not reflect reality. Without more evidence, I will set
the rate at $0.60 per kilometre. This award will be $200.30.

BC’s monopoly auto insurer, ICBC, loves to deny accelerated depreciation claims (“AD”).

In short when a vehicle is damaged in a crash it often suffers a loss of market value, even after all reasonable repairs are done.  This is called AD.  ICBC routinely chooses to ignore this reality when dealing with crash victims and raises invalid arguments trying to deny such claims.  One of their favourite talking points is saying if a vehicle had a previous crash it could not possibly suffer a further AD.  This week the BC Civil Resolution Tribunal released reasons for judgement soundly rejecting this argument.

In the recent case (Yeung v. Izadi, 2022 BCCRT 1060) the Plaintiff owned a Tesla which was involved in a crash caused by the Defendant (and insured by ICBC).  The crash resulted in over $20,000 in repairs.  After repair the Plaintiff obtained appraisal evidence that the vehicle now had thousands of dollars in diminished AD value.  ICBC refused to pay arguing that the vehicle, which was involved in 2 previous collisions themselves resulting in thousands of dollars of repairs, could not possibly sustain further AD.

The Plaintiff sued and succeeded in having damages for AD awarded.  In doing so BC’s Civil Resolution Tribunal found there is no reason why an already depreciated asset from damage cannot be further depreciated by further damage.  In awarding damages for the claim Tribunal Member Nav Shukla provided the following sensible reasons:

It is undisputed that the Tesla’s repairs before the accident did not involve structural damage.  Both experts agreed that the accident caused structural damage and that structural repairs impact a vehicle’s depreciation.  However, although Keith Jones said that structural damage was a factor to consider in determining accelerated depreciation, they did not explain why the change in the Tesla being previously free of structural repairs and now having had structural repairs did not result in some accelerated depreciation.  As noted above, Mr. Scarrow specifically discussed the structural damage in their report and noted that the repairs eliminated the Tesla’s previous state of being free of structural repairs.

On balance I find Mr. Scarrow’s report better explained the importance of the factors they relied on to determine the Tesla’s pre and post accident values and so I give their report more weight.  Based on Mr. Scarrow’s evidence I find the Applicant has proven that the Accident has caused accelerated depreciation to the Tesla.

Now the postscript – BC’s new No Fault system has taken away the rights of crash victims to claim for accelerated depreciation.  But crash victims with ongoing claims that pre-date the No Fault laws (or ‘enhanced care’ as ICBC’s multi million dollar marketing campaign calls it) can still benefit from this precedent.

Alcohol is classified as a Group 1 carcinogen.  Like tobacco it is known to cause cancer in humans.  But the industry is silent about this.

This week the Canadian Centre on Substance Use and Addiction published updated guidelines on the safe consumption of alcohol. The short version is less is better.

These guidelines point to data of alcohol causing several types of cancer along with heart disease.

Tobacco companies were forced to put warning labels on their products.  The alcohol industry, on the other hand, is quiet as could be on the subject.

If government intervention won’t force them to do something perhaps civil litigation could.

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.