Today I was interviewed by Charles Adler of Corus Radio on the topic of frivolous lawsuits.
The interview aired nationally. You can click on the following link ( adler-and-erik-audio-clip ) to listen to my portion of the interview.
I’d like to credit CJOB 68 Winnipeg / Corus Radio Network for providing me with a copy of the clip.
As an injury claims lawyer there are several political-legal issues that I like to keep my eye on. Issues such as legal aid funding, tort reform efforts (code for limiting the rights of victims injured through the careless actions of others) and access to justice are all of interest to me.
With a Provincial Election just around the corner where do BC’s 2 main political parties stand on these important issues?
Thanks to the efforts of the Trial Lawyers Association of British Columbia (the “TLABC”), we now have some much needed insight.
The Trial Lawyers Association of BC posed the following 14 questions to the NDP, and the BC Liberal Party:
1. If Elected, will you oppose the BCJRTF proposal for active case management?
2. If Elected, will you oppose the BCJRTF proposal for curtailing discovery rights?
3. If elected, will you oppose efforts to introduce no-fault automobile insurance in BC?
4. If elected, will you support a change in legislation to allow damages for mental anguish and other intangible losses suffered by family members of people who are killed by the careless, reckless or illegal acts of others?
5. If elected, will you oppose any effort to further restrict the ability of injured patients to recover damages in court for medical malpractice?
6. If elected, will you support legislation that requires the court to consider an award of punitive damages where conduct of the defendant is found to be outrageous or unusually reckless?
7. If elected, will you work to protect and enhance the tort system as a means of deterring unsafe conduct and holding wrongdoers accountable for the injuries they cause?
8. If elected, will you support a return to the previous law, which permitted accident victims to recover their gross earnings?
9. If elected will you support a return to rights being debated in the legislature rather than being changed through regulations and therefor altered by ICBC and the provincial cabinet without open debate?
10. If elected, will you support a return to payment of interest on non-economic damages?
11. If elected, will you support renewal of the legal aid system by providing legal aid to those who need it, and ensuring that those who represent them are adequately compensated for this work?
12. If elected, will you support reinstating a legal aid system which funds family law legal services at least to pre 2000 levels, such that eligibility requirements are sufficient to meet the needs of the diverse communities of BC, and the funding is sufficient for counsel to attend to these cases in a manner that meets their practice standards while also permitting access to justice for those marginalized in society?
13. If elected, will you support the revisions to the proposed family rules to address these concerns?
14. If elected, will you support increasing the funding to provincial correction services to improve the quality of programs within those facilities?
Here are the Parties answers:
BC LIBERALS
1. The BC Liberal government, in conjunction with the judiciary and senior members of the bar, convened the British Columbia Justice Reform Task Force to identify a wide range of ideas and initiatives to make the justice system more responsive, accessible and cost-effective. Experience in other jurisdictions, including the United Kingdom and Ontario, demonstrate that case management conferences reduce delays, increase predictability, reduce overall costs and lower court administration costs. The Task Force has learned from the experience of jurisdictions and has incorporated those lessons into the proposed changes.
2. The British Columbia Justice Reform Task Force has reviewed the experience of jurisdictions that have limited discovery and concluded there is no evidence that it has created unfairness, and studies have concluded that excessive document production and oral discovery are responsible for much of the delay and expense in civil litigation. The proposed rules strike a balance between the right of discovery and efficiency. Litigants must disclose all documents referred to in their pleadings, all documents they intend to refer to at trial and all documents that could be used to prove or disprove a material fact in the case. It is open to parties to apply to extend this scope of discovery in any case where a wider scope would be warranted.
3. A BC Liberal government has no intention of moving to a system of no-fault insurance in British Columbia, or of introducing caps, deductibles or thresholds
4. British Columbia’s Family Compensation Act governs the compensation for wrongful death cases involving family members. The BC Liberal government initiated a review of the entire Act, which is examining issues such as compensation for non-economic losses including pain and suffering and bereavement. Victims groups and other advocacy groups have offered valuable input during the consultation phase.
5. This issue relates to detailed aspects of the current system of personal injury compensation in British Columbia, which is a mixture of common law and statute law. We think it is important to engage law reform agencies, the legal profession and other affected groups in a careful consideration of these issues. Through its input, the Trial Lawyers Association of British Columbia can help preserve and protect the basic principles of the tort system.
6. See above
7. The BC Liberals support our civil law system as both a system of compensation and deterrence. We also believe that the court system must be more accessible, accountable and affordable so that justice is available for all British Columbians. That is why the BC Liberal government invested $12 million over three years to reform the civil, family and criminal justice systems.
8. This issue relates to detailed aspects of the current system of personal injury compensation in British Columbia, which is a mixture of common law and statute law. We think it is important to engage law reform agencies, the legal profession and other affected groups in a careful consideration of these issues. Through its input, the Trial Lawyers Association of British Columbia can help preserve and protect the basic principles of the tort system.
9. Changes to the Insurance (Motor Vehicle) Act must be debated in the legislature. Regulatory changes must be approved by Cabinet. The BC Liberals have no plans to alter this long-standing division of responsibilities.
10. This issue relates to detailed aspects of the current system of personal injury compensation in British Columbia, which is a mixture of common law and statute law. We think it is important to engage law reform agencies, the legal profession and other affected groups in a careful consideration of these issues. Through its input, the Trial Lawyers Association of British Columbia can help preserve and protect the basic principles of the tort system.
It is our view that injured plaintiffs should not have their compensation reduced by the effect of delay in payment. Whether the appropriate tool to achieve this objective is by payment of interest, by including the “time value of money” in the calculation of awards for non-pecuniary damages, or by some other means is a question that requires further consideration.
11. The BC Liberal government funds one of the most generous legal aid programs in Canada. Legal aid now provides full coverage for family matters involving domestic violence or child protection hearings and expanded legal information and education services. Legal aid has traditionally provided legal representation, paying private lawyers to fight each other in court. That is not what people need to effectively resolve disputes. Access to justice for disadvantaged people requires a continuum of services, including provision of information, support and advice, getting help through alternative dispute resolution and, in some cases, full legal representation.
The BC Liberal government has implemented a more regionally-based structure with less administration; built up support programs like a 24-hour province-wide legal aid call centre; and provided more economical alternatives to court, like mediation, to focus legal aid dollars where they are needed most – delivering essential services. The new legal aid model reduces administrative costs and puts more money into direct services.
12. The BC Liberal government recently increased legal aid funding by $4.6 million. The money will provide family legal services for low-income families in crisis. The BC Liberals will continue to design efficient and responsive programs that make the justice system simpler and more affordable.
In 2008/09 the BC Liberal government spent $29.9 million on access to justice services beyond the funding we provide to the legal aid program and includes services in addition to mediation and dispute resolution. The BC Liberal government took steps to ensure that legal representation for family disputes is available to eligible clients in emergency situations, including clients in financial need where the Province is seeking custody of a child.
13. The new vision of family justice embodied in the proposed rule changes builds on extensive efforts over the last several years to move the family justice system away from an adversarial process. The goal is a process focused on values of family autonomy, co-operation and the best interests of the child.
The BC Liberal government introduced a notice to mediate process in November 2007 to help facilitate out of court resolution. An expanded Justice Access Centre pilot project was opened in Nanaimo, which offers services and supports with family justice issues. The BC Liberals want to make family disputes easier to resolve and more affordable through new rules of procedure.
14. The BC Liberals support programs within the provincial corrections systems that are targeted at reducing recidivism. The BC Liberal government supports programs designed to help offenders confront and deal with issues underlying their behaviors such as substance abuse, violence prevention and respectful relationships. In partnership with Justice Canada, the BC Liberal government supported the enhancement of Aboriginal programming in correctional centres and communities. Programs assisting inmates to upgrade their education and develop life skills are also offered.
The NDP:
1 – Yes, we will oppose the BCJRTF proposal for active case management.
2 – Yes, we will oppose the BCJRTF proposal for curtailing discovery rights.
3 – Yes, we will oppose efforts to introduce no-fault automobile insurance in BC.
4 – We believe that this issue needs consultation and further study.
5 – Yes, we will oppose any effort to further restrict the ability of injured patients to recover damages in court for medical malpractice.
6 – Yes, we will support legislation that requires the court to consider an award of punitive damages where conduct of the defendant is found to be outrageous or unusually reckless.
7 – Yes, we will work to protect and enhance the tort system as a means of deterring unsafe conduct and holding wrongdoers accountable for the injuries they cause.
8 – We believe that this issue needs consultation and further study.
9 – Yes, we will support a return to rights being debated in the legislature rather than being changed through regulations and therefore altered by ICBC and the provincial cabinet without debate.
10 – We believe that this issue needs consultation and further study.
11 and 12:
We are very concerned about the current state of legal aid in BC, particularly with respect to family law. We will work towards reinstating resources for legal aid services, starting with additional funding of $10 million annually for 2010/11 and 2011/12. As resources permit we will do more to fix B.C.’s legal aid system to ensure access for those who need it.
13 – Yes, we will support revisions to the proposed family rules to address these concerns.
14 – Yes, we will support increasing the funding to provincial correction services to improve the quality of programs within those facilities.
On February 8, 2008, Associate Chief Justice Neil Wittmann concluded that the Alberta Minor Injury Regulation (a regulation which imposed a $4,000 cap on auto-accident victims who sustained soft tissue injuries) is unconstitutional.
Justice Wittmann concluded that the cap on damages for soft tissue injuries”sacrifices the dignity of Minor Injury victims at the altar of reducing insurance premiums.”
In striking down the legislation Justice Wittmann held that the Minor Injury Regulation is discriminatory against victims who sustained soft tissue injuries and that this violated Section 15 of the Canadian Charter of Rights and Freedoms.
This is a great decision as it restores the rights of victims of Alberta auto accidents who sustained soft tissue injuries to seek fair compensation for their losses from the courts. The decison has been hailed a success by the Alberta Civil Trial Lawyers Association who have urged the government to accept the decision.
The government, however, has announced that they will indeed appeal the decision. Justice Wittmann’s reasoning appears sound and hopefully will withstand appeal. However, nothing in the judgement prevents Alberta’s legislature from introducting new legislation which would limit the compensation available for pain and suffering for auto accident victims.
Only time will tell whether Alberta’s legislature will institute revised legislation capping damages for ‘minor injuries’ in a way that is not inconsistent with Justice Wittman’s interpretation of Section 15 of the Charter or if the government will allow Alberta auto accident victims with soft tissue injuries to have unfettered access to the courts for fair compensation. In the meantime, however, many plaintiff’s may now have access to the courts to receive fair compensation for their soft tissue injuries.