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Civil Resolution Tribunal Misleading the Public About ICBC Claims?

From April 1, 2019 onward BC crash victims have had their rights drastically reduced.  One of the key rights stripped from British Columbians is the ability to go to Court.  If ICBC is treating you unreasonably and you turn to the Courts for resolution ICBC can steer you away from the judiciary and force you to go to the Civil Resolution Tribunal.

The CRT is supposedly a separate but equal route to justice.  Its meant to replace the Courts.  This judicial power shift is subject to a constitutional challenge but in the meantime the very least that should be expected of the CRT is fairness and objectivity when adjudicating disputes between British Columbians and ICBC.  They are not off to a good start.

This week the Trial Lawyers Association of BC sent a letter to BC’s Attorney General and the CRT highlighting numerous instances of the CRT misstating the law or otherwise not appearing neutral.  The full letter can be found here – TLABC Letter RE CRT

Below are some concerning examples:

Inaccurate Definition of Serious Impairment

When browsing information the CRT shares with the public about  “minor injuries” they note as follows about ‘serious impairment’

What’s the problem with this?  I’ve discussed the actual legal definition of impairment here.  While it is onerous and captures many circumstances few would consider minor, it does not go so far as to require a person to be “unable to work” for 12 months as the CRT suggests.

Instead of an absolute inability to work it has to result “in a substantial inability of the claimant to perform… the essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s employment, occupation or profession”.

It is possible for an individual to still work yet meet this test of impairment.

Misleading Definition of Diminished Earning Capacity

The CRT published the below worksheet for people to “calculate the amounts for your damages claim“.  In it the CRT erroneously summarizes the law of Diminished Earning Capacity.

Claims for future Diminished Earning Capacity recognize that lingering injuries can reduce an individual’s worth in the market and negatively impact their earnings.  The principles behind such awards have been well summarized by BC Courts for years.   The CRT, however, has inaccurately labelled the award as one for “Future Income Loss” which is wrong in law and then erroneously states that such awards are for when “You are unable to work in the future because of the accident“.  The actual law allows recovery in circumstances far broader than this.

Misleading Definition of Non-Pecuniary Damages

The above worksheet also improperly discusses non-pecuniary damages.  Instead of using the proper legal head of damage the term ‘pain and suffering‘ is used which is only one of several factors that can be looked at by the Courts when assessing non-pecuniary loss.  The actual legal factors looked at when valuing non-pecuniary loss are well understood and far broader in scope than simply ‘pain and suffering’.

Incorrect Advice Regarding Documents Used to Prove Damages

The CRT suggests that “decision letters about fault and accident benefits from your insurer” are “Helpful documents for calculating a damages claim”.

An insurer assessment of fault is irrelevant in assessing damages.  Relying on such a document does nothing to advance an injured party’s claim.   Such advice is erroneous and potentially harmful to a British Columbian looking to prove their losses.

The assertion that “decision letters” from insurers about accident benefits are helpful documents is equally problematic.  While the existence and extent of available benefits can be relevant in assessing damages for BC collision victims a “decision letter” from an insurer has little to no value in this assessment and can even prove harmful if the insurer is voicing an unreasonable position.

Suggestions that insurers are fair

The CRT tells the public that Insurers make an initial assessment of fault and they “base it on the evidence“.   This certainly is not always the case and it is unusual for an supposedly independent tribunal to suggest otherwise.  In a claim for damages an insurers assessment of fault has no relevance whatsoever.

The CRT frequently prompts applicants to continue negotiating with ICBC.  Instead of respecting the fact that an applicatnt to the CRT has a legitimate dispute in their claim they suggest continued negotiation could result in a “faster” and “easier” settlement.  They even go so far as to suggest that if settlement is not reached bad consequences can arise.  All of this creates an impression that representatives of the opposing party in the dispute are fair.

It is unclear why the CRT is summarizing legal rights inaccurately and in a way that would favour ICBC.   The lack of true impartiality is one of the arguments being raised in the constitutional challenge against the CRT’s mandatory jurisdiction.  Misleading information such as the above strengthens that assertion.

from Blog – ICBC Personal Injury Claims Lawyer Erik Magraken | Victoria & Vancouver Island BC http://bit.ly/2GxfwyO via IFTTT

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BC Court of Appeal – Forseeability Is No Defense To Low Impact Collisions

Last year a BC Supreme Court level judgement dismissed a personal injury claim in part due to the logic that it is not foreseeable that someone will suffer injury in a low velocity impact collision in a parking lot. Today the BC Court of Appeal overturned this judgement finding the trial judge was wrong in their application of the foreseeability principle and that physical injury is foreseeable from collisions, even minor ones.

In addressing this point the BC Court of Appeal reasoned as follows:

[90]         The trial judge also concluded that the appellant had not established “the foreseeability that an injury would occur, from the facts in accidents 2, 3, and 5, in a person of ordinary fortitude”. He acknowledged that Mustapha was addressing mental injury, but held that the reasoning had application to claims of physical injury as well:

[52]      … Mustapha finds, in part, that there is a threshold test for establishing compensability at law, which precedes a so-called thin-skull analysis. Before a court will embark upon a thin-skull analysis, a plaintiff must first establish the foreseeability that an injury would occur, or could occur, in a person of ordinary fortitude…

[91]         A few paragraphs prior to this statement, the judge had found that the appellant was “highly susceptible to the ‘catastrophizing’ that her own doctor diagnosed in her”, that very small events could trouble her out of all proportion to what one could reasonably expect of anyone, and that she had suffered from physical and emotional problems for many years before accident #1 “having to do with her chronic obesity, nutritional problems, prolonged difficulties in the workplace, and other circumstances”. He then continued to find it “wholly improbable” that the appellant suffered, or could suffer damages from “the three parking lot episodes”.

[92]         I take from all of this that the judge found that if the appellant had suffered any injury, she had an extreme reaction, which a person of ordinary fortitude would not suffer.

[93]         It is my view that the judge erred in applying this principle from Mustapha in the circumstances of this case. While I agree with the respondents that the same duty of care and foreseeability analysis applies to claims in negligence for both mental and physical injury, Mustapha is concerned with mental injury; more particularly, what mental injury is sufficient to constitute damage (as discussed above), and what mental injury is foreseeable to establish legal causation.

[94]         It is also my view that the injuries asserted by the appellant were of a substantially different nature than the injury asserted in Mustapha. Mr. Mustapha had to show that it was reasonably foreseeable that a person of ordinary fortitude would suffer mental injury from seeing flies in the bottle of water. He failed to do so because his reactions were considered to be highly unusual and very individual. Here, the appellant had to show that it was reasonably foreseeable that a person of ordinary fortitude would suffer soft tissue injuries in one or more minor motor vehicle accidents, leading to chronic pain and other psychological problems. These are not the kinds of injuries that are too remote to allow recovery for negligence in a motor vehicle accident. The injuries may have been more serious than expected, less serious than asserted, or they may not have been established at all. But in my opinion, it cannot be said that they were not reasonably foreseeable.

from Blog – ICBC Personal Injury Claims Lawyer Erik Magraken | Victoria & Vancouver Island BC http://bit.ly/2ZAfLS6 via IFTTT

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Court Challenge Launched Against BC Injury Claims Expert Witness Cap

Earlier this year the BC Government introduced changes to the BC Supreme Court Civil Rules capping the number of expert witnesses parties in motor vehicle and other injury claims can rely on. The rule change was brought unilaterally without consultation of the Rules Committee.

The government softened up their initial restriction but even the amended cap on expert witnesses leaves no judicial discretion to allow parties to present evidence exceeding the cap in necessary cases of complexity. A court challenge has now been filed arguing these unilateral rule changes are not constitutional and encroach upon the exclusive and core powers of the superior court. The Petition agues as follows:

“The Rule is an unprecedented and profound interference with the court’s control of its process, that will greatly prejudice litigants in cases of even modest factual complexity. The Rule was not invited by the Rules Committee, and instead was imposed by the government without notice to the bar, substantially for the benefit of the Crown Corporation auto insurer, the Insurance Corporation of British Columbia (“ICBC”).

The Rule encroaches upon the exclusive and core powers of the superior court; it creates undue hardship for plaintiffs in obtaining access to justice; it is not authorized by the Court Rules Act; and it was created through a process that defies constitutional convention. It is invalid“

The challenge is expected to be heard in the upcoming months. I will continue to follow this issue and report on future developments.

from Blog – ICBC Personal Injury Claims Lawyer Erik Magraken | Victoria & Vancouver Island BC http://bit.ly/2PfWp09 via IFTTT

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We Are Hiring! Litigation Position at MacIsaac & Company!

Due to our rapidly growing personal injury practice MacIsaac & Company’s head office in Victoria, BC has an opening for an additional litigator.

We are looking for a lawyer with at least 5 years experience prosecuting injury claims.  The successful candidate will enjoy upper level market pay commensurate with experience and have the opportunity to handle a mature caseload from moderate to severe injury claims.

MacIsaac & Company has decades of experience representing plaintiff’s throughout BC and Alberta.

Applications can be sent in confidence to our office manager Pat Robbins via email at  patr@macisaacgroup.com

from Blog – ICBC Personal Injury Claims Lawyer Erik Magraken | Victoria & Vancouver Island BC http://bit.ly/2Ko3JI9 via IFTTT

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ICBC Criticized For Not Practicing What It Preaches

In recent months both ICBC and the Provincial Government have been vocal in criticizing the use of medico-legal reports in injury litigation resulting in rule changes restricting the rights of litigants in relying on such evidence. In reality ICBC has no reservations seeking out numerous expert reports when it suits their interests in litigation. This inconsistency resulted in critical comments today from the BC Supreme Court.

In today’s case (McNeill v. Saunders) the Plaintiff was injured in a collision and sued for damages. The plaintiff has consented to being examined by a neurologist chosen by the defendant. The Defendant went on to request a further medical exam with a psychiatrist despite the Plaintiff not relying on a psychologist or psychiatrist in their claim. The Court raised concerns about this request and provided the following critical comments about ICBC’s practices versus their public stance on the utility of experts:

[23]         I am concerned about the potential for overlap with the neurologist’s opinion and for the bolstering of that opinion by the psychiatrist. I also accept that a psychiatric assessment is invasive. I also consider proportionality. The fact that the plaintiff is not at this time retaining a psychiatrist or psychologist expert strongly suggests that these injuries are not her main concern. However, the pleadings and the discovery evidence tip the balance here.

[24]         I order that the plaintiff attend the IME as sought in paragraph 1 of the Notice of Application. It is a discretionary order. Rule 11-5(7)(b), where the court is appointing an expert, specifically sets out that the expert can be given appropriate directions. I use that as a guide to my discretion here.

[25]         I direct that the IME must be limited to considering the psychiatric issues in the plaintiff’s pleaded claims of irritability, poor mood and depression, together with any psychiatric component to the sleep disorder, and together with any other evidence respecting psychiatric matters taken at the examination for discovery.

[26]         I order that the IME be limited to considering the psychiatric issues in the plaintiff’s pleaded claims of irritability, poor mood and depression, and any psychiatric component to the sleep disorder claim.

[27]         I order that all notes and any other primary evidence taken at the IME must be promptly provided to the plaintiff, within seven days of completion of the IME.

[28]         I have concerns that this IME will not be of much assistance. It flies in the face of the insurer’s stated public opposition to too many expensive medical reports. It is odd that the defendant, through its insurers, focuses on what would appear to be a relatively minor component of the plaintiff’s claim. However, that is the defendant’s choice.

[29]         I am adjourning the application for costs. That is to be dealt with by the trial judge after the conclusion of the trial.

from Blog – ICBC Personal Injury Claims Lawyer Erik Magraken | Victoria & Vancouver Island BC http://bit.ly/2v461BX via IFTTT

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ICBC Criticized For Not Practicing What It Preaches

In recent months both ICBC and the Provincial Government have been vocal in criticizing the use of medico-legal reports in injury litigation resulting in rule changes restricting the rights of litigants in relying on such evidence. In reality ICBC has no reservations seeking out numerous expert reports when it suits their interests in litigation. This inconsistency resulted in critical comments today from the BC Supreme Court.

In today’s case (McNeill v. Saunders) the Plaintiff was injured in a collision and sued for damages. The plaintiff has consented to being examined by a neurologist chosen by the defendant. The Defendant went on to request a further medical exam with a psychiatrist despite the Plaintiff not relying on a psychologist or psychiatrist in their claim. The Court raised concerns about this request and provided the following critical comments about ICBC’s practices versus their public stance on the utility of experts:

[23]         I am concerned about the potential for overlap with the neurologist’s opinion and for the bolstering of that opinion by the psychiatrist. I also accept that a psychiatric assessment is invasive. I also consider proportionality. The fact that the plaintiff is not at this time retaining a psychiatrist or psychologist expert strongly suggests that these injuries are not her main concern. However, the pleadings and the discovery evidence tip the balance here.

[24]         I order that the plaintiff attend the IME as sought in paragraph 1 of the Notice of Application. It is a discretionary order. Rule 11-5(7)(b), where the court is appointing an expert, specifically sets out that the expert can be given appropriate directions. I use that as a guide to my discretion here.

[25]         I direct that the IME must be limited to considering the psychiatric issues in the plaintiff’s pleaded claims of irritability, poor mood and depression, together with any psychiatric component to the sleep disorder, and together with any other evidence respecting psychiatric matters taken at the examination for discovery.

[26]         I order that the IME be limited to considering the psychiatric issues in the plaintiff’s pleaded claims of irritability, poor mood and depression, and any psychiatric component to the sleep disorder claim.

[27]         I order that all notes and any other primary evidence taken at the IME must be promptly provided to the plaintiff, within seven days of completion of the IME.

[28]         I have concerns that this IME will not be of much assistance. It flies in the face of the insurer’s stated public opposition to too many expensive medical reports. It is odd that the defendant, through its insurers, focuses on what would appear to be a relatively minor component of the plaintiff’s claim. However, that is the defendant’s choice.

[29]         I am adjourning the application for costs. That is to be dealt with by the trial judge after the conclusion of the trial.

from Blog – ICBC Personal Injury Claims Lawyer Erik Magraken | Victoria & Vancouver Island BC http://bit.ly/2I79iZz via IFTTT

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$175,000 Non-Pecuniary Assessment for Chronic Psychological Injuries

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic psychological injuries sustained in a collision.

In the recent case (Anssari v. Alborzpour) the Plaintiff was injured in a 2014 collision.  She sustained various psychological injuries including severe depression, anxiety, and post-traumatic stress symptoms.  These continued to the time of trial and were likely to continue in the future.  In assessing non-pecuniary damages at $175,000 Madam Justice Fleming provided the following reasons:

[95]         In any event, the fact and opinion evidence overwhelmingly establishes that Mrs. Anssari developed severe depression, severe anxiety and symptoms of PTSD due to the accident. It is clear her psychological injuries have resulted in the ongoing and severe symptoms she, her children and most of the expert witnesses described in their evidence. I find therefore the accident caused the following:

–       very low mood and intense feelings of anxiety worsened or triggered by a number of circumstances such as driving, noise, and sirens;

–       nightmares for about one year after the accident;

–       very low energy and very poor motivation;

–       agitation, irritation and anger, as well as intense sadness and emotional numbness;

–       a profound sense of hopelessness and if not a wish to die, a questioning of her ongoing existence;

–       irrational anger toward Mr. Alborzpour for causing the accident that she wants to let go of but cannot;

–       overwhelming feelings of guilt over the impact of her condition on her family;

–       chronic insomnia that prevents her from falling asleep until near dawn and staying asleep for more than a series a short periods ending in the late morning;

–       significant physical pain in her neck shoulders and back, severe headaches and numbness along with other altered sensations in her right arm for approximately two years after the accident; and

–       some ongoing pain in her neck, shoulders and back, headaches and intermittent numbness in her right arm.

[96]         Mrs. Anssari’s severe psychological symptoms have persisted despite treatment including anti-depressant medications, psychological treatment in 2014 and 2017, medication and treatment for her physical symptoms, ongoing support from her family doctor, and some involvement with a treating psychiatrist since early 2018….

[108]     The evidence makes it clear that Mrs. Anssari’s psychological injuries have had a devastating impact on every aspect of her life. Before the accident she was a vibrant, happy, healthy person with a loving marriage and extremely close, positive relationships with both children. A full-time homemaker and a highly involved parent, Mrs. Anssari also enjoyed socializing with friends, going out and travelling with her husband and children, and being physically active. She dreamed of being a grandmother and caring for her grandchildren. Her future was bright.

[109]     Since the accident, her emotional suffering, intense anxiety, and severely disrupted sleep, along with an almost complete loss of motivation, next to no energy and a deep sense of hopelessness have essentially taken all of that away. For the first year she was also plagued by nightmares of the accident. She still experiences flashbacks. I have accepted her psychological injuries exacerbated her physical pain which, although much better, has not resolved.

[110]     For the most part Mrs. Anssari spends her days and nights on the living room couch, interacting very little with the world around her, including her family. Her inability to take part in or find any joy in Sahar’s wedding preparations and the wedding itself would have been unimaginable before the accident. The same is true of her response to Rosha. Rather than fulfilling her dream of being an involved grandmother and caring for her grandchildren, she engages very little with Rosha during their almost daily weekday visits which in turn causes her more suffering. Similarly, Mrs. Anssari remains unable to let go of the anger she has felt toward Mr. Alborzpour since the accident. In response, as Mrs. Anssari put it, he has lost patience with her. The evidence of Saeed and Sahar suggests the marriage is beyond repair, a terrible loss for Mrs. Anssari given its strength before the accident and how firmly rooted her identity has been in her role as a wife and mother.

[111]     The effect of Mrs. Anssari’s injuries on her day-to-day functioning is as profound as the impairment of her relationships. I have accepted that her psychological injuries prevent her from engaging in any meaningful housework or cooking. They also significantly interfere with her ability to drive safely, a blow to her independence. She even struggles to engage in basic self-care.

[112]     Unhappy with what has become of her, Mrs. Anssari is, as I have said, guilt ridden about the effect of her condition on her family. Fortunately she wants to get better and is willing to undergo further treatment, despite the ineffectiveness of medication and psychological interventions thus far. Although a complete recovery is not a realistic possibility, a new medication regime and, failing that, ECT may very well result in substantial improvement over time.

[113]      Similar cases are of some assistance in assessing an award for non-pecuniary damages. No other case however will ever involve the exact same circumstances and each plaintiff is unique: Hans v. Volvo Truck North America Inc., 2016 BCSC 1155, at para. 525. I have considered the cases relied upon by the parties. The most similar is Hans where $265,000 was awarded in non-pecuniary damages seven years after the accident. The plaintiff’s psychological injuries, significant PTSD and major depressive disorder, were however even more serious than Mrs. Anssari’s and there was little prospect his symptoms would improve. He suffered from suicidal ideation, had attempted suicide three times, and been hospitalized for extended periods. The trial judge accepted the plaintiff would remain at risk of death by suicide. Given his PTSD, the plaintiff was also found to be at increased risk of developing another psychiatric disorder.

[114]     In all of the circumstances and having considered the factors enumerated in Stapley, I conclude $175,000 is an appropriate award for Mrs. Anssari’s pain and suffering. The award includes compensation for the non-pecuniary loss associated with her intended role as a caregiver to her grandchildren and her future loss of housekeeping capacity, both of which are discussed below but also takes into account the chance that with the medication regime or failing that ECT, her psychological condition will improve substantially, balanced against the risk of further deterioration.

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BC Court of Appeal – OK for Judges To Use Male Earnings Statistics for Female Plaintiff

Reasons for judgement were published today by the BC Court of Appeal confirming it was not an error in law for a trial judge to rely on male labour market contingencies when assessing damages for an injured female plaintiff.

In today’s case (Gill v. Lai) the Plaintiff was injured in two collisions and proceeded to trial where she was compensated for various losses including future diminished earning capacity.   In assessing this loss the trial judge relied on statistical evidence for men.  ICBC appealed arguing it was legally wrong to do so for a female plaintiff.  The BC Court of Appeal rejected this argument finding that in the circumstances of this case there was no error in relying on male statistics in part because “income statistics may incorporate historic and inequitable gender-based pay differences“.

The Court provided the following reasons:

[52]         The respondent’s expert economist, Mr. Benning, used labour market statistics for males in British Columbia when making an allowance for the negative contingencies of part-time employment and non-participation in the workforce. The trial judge accepted this approach and rejected the submission statistics for females should be used. He did so for two reasons: factors specific to the respondent and a reluctance to use statistics that have the effect of perpetuating discrimination. He wrote:

[130]     In adopting the male labour market approach, I note:

a)    since a young age, the plaintiff has shown a particular adherence to the work force and, in particular, the pharmacy profession;

b)    the plaintiff values financial independence (she saved the funds for the down payment for the Cloverdale home while her future husband studied dentistry in Manitoba); and

c)    the plaintiff’s parents are in their mid-sixties and are still working.

[131]     I am also reticent to give weight to female labour market contingencies which may have embedded discrimination: see Justice Morellato’s discussion in Jamal v. Kemery-Higgins, 2017 BCSC 213 at paras. 96–99.

[53]         The appellants say there was no evidence of any such embedded discrimination. They say Mr. Benning confirmed statistically females are more likely than males to work on a part-time basis and, the appellants say, “there was no suggestion in the evidence such difference arose because of any issues relating to discrimination”.  The appellants argue the only evidence before the judge was female labour market contingencies accurately reflect the real and substantial possibilities for the respondent.

[54]         Judges can and do recognize income statistics may incorporate historic and inequitable gender-based pay differences and, as such, have increasingly taken a cautious approach to gender-based income statistics. In Crimeni v. Chandra, 2015 BCCA 131, this Court said:

[23]        Experts are frequently asked to estimate the income losses by using gender-specific historical income figures. Such figures may be useful where they can fairly be said to be the most accurate predictor of the lost stream of earnings. However, there is authority for the proposition that the use of female earning statistics may incorporate gender bias into the assessment of damages. There is also authority for taking judicial notice of convergence in gender incomes: Steinebach v. O’Brien, 2011 BCCA 302.

[24]        It is certainly not an error, in my view, for a trial judge to recognize that the use of historical data can reflect such bias and, to the extent, the circumstances giving rise to the bias may be expected to diminish, to view the evidence as conservative.

[25]        I can see no error in the judge’s consideration of the plaintiff’s pre‑injury earning potential.

[55]         In my view, the same can be said of labour market contingencies. It is not an error to recognize gender-based contingencies can incorporate bias. Having said that, we must bear in mind the quantification of damages necessitates an individual approach.

[56]         In the case at bar, the trial judge did not fail to deal with the parties before him. The respondent had borne children, made effective arrangements for childcare, participated on a full-time basis in the labour market, and was motivated to continue to participate full-time. It was certainly open to the trial judge to find she was unlikely to be affected by some of the contingencies reflected in female labour market statistics, and there was a reasonable basis upon which he could conclude the use of statistical evidence of contingencies affecting males in the labour market would result in a realistic prediction of the respondent’s future. I would dismiss this ground of appeal.

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Court Challenge Launched Against ICBC’s “Minor” Injury Laws

No April Fool’s joke.  If you are in a crash in BC from today forward your rights have been stripped.  Your ability to claim non-pecuniary damages for injuries labelled “minor” has been capped.

The word “minor” does not mean what you think.  It has been defined to include many serious injuries including brain injury, psychological conditions, psychiatric injuries, chronic pain among many others.  If ICBC tells you your injuries are “minor”, even if they are not, your right to go to Court has been taken away and you must first present your case before a Tribunal to get a permission slip to go to Court.

Today a court challenge has been filed arguing this scheme is not constitutional.  That it is discriminatory.  That it needs to be struck down.

Time will tell if these laws are valid.  The judiciary will have the final say.  If you are in a crash and are told your injuries are minor keep the court challenge in mind.  It may be wise not to settle (while keeping applicable limitation periods in mind) while the validity of the laws are judicially scrutinized.  At the very least it is a factor to consider when making an informed decision about whether to accept a ‘capped’ offer for so called ‘minor’ injuries.

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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.

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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.

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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).

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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.

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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.

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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.

  from Blog – ICBC Personal Injury Claims Lawyer Erik Magraken | Victoria & Vancouver Island BC https://ift.tt/2F2VL1p via IFTTT

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$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.

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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 meat chart 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 post meat-chart cases as they come before the courts.

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