Thursday, December 18, 2014

What happens when you are hit and injured by a drunk driver?

Unfortunately the holiday season brings with it an increased risk from drunk drivers; and when a dunk driver cause an accident resulting in personal injuries, special consideration apply.

ICBC has the right to void the insurance of anyone who has caused an accident while driving impaired. This means that the innocent victims of the impaired driver must recover compensation from a driver without insurance. Fortunately, ICBC will be required to cover damages up to a maximum of $1,000,000 depending on the severity of the injuries and losses.

However, special rules apply which can result I arbitrary deductions from that amount. Additional insurance funds might also be available if the innocent victim is covered by Excess Underinsured Motorist protection. The amount available can also be reduced if more than one person is injured.

Due to the number of special considerations that apply in drunk driving accidents, it is highly advisable to obtain legal advice from an experienced ICBC accident lawyer at the earliest opportunity.

Monday, October 27, 2014

ICBC Pedestrian Hit and Run Claims

Hit and Run cases are particularly disgusting when a pedestrian is hit in a crosswalk while the driver of the vehicle takes off hoping to avoid responsibility.

More often than not, the pedestrian will be seriously injured. Fortunately, even though the driver of the vehicle may never be identified, the law in British Columbia allows people injured by hit and run drivers to sue ICBC for compensation. However, there are certain deadlines for filing such claims. Most importantly, there is an obligation to make reasonable efforts to identify the driver and vehicle, often by placing signs at the scene of the accident, and/or placing newspaper advertisements. Failure to take those steps could result in the court dismissing the personal injury claim. A full police investigation of the accident may or may not always be sufficient to meet this standard.

If you or a loved-one has been struck by a hit and run driver, an experienced ICBC personal injury lawyer should be contacted as soon as possible. At Gantzert Law, we are happy to provide a free consultation to discuss such matters.

Friday, October 3, 2014

Judge refuses to enter "inconsistent" jury verdict

In a decision released on October 1, 2014, BC Supreme Court Justice G.P. Weatherill refused to enter a jury verdict in an ICBC case because the jury's verdict was internally inconsistent.

The jury found that the Plaintiff was entitled to special damages and wage loss, which could only arise if she was injured, but awarded nothing for pain and suffering.  Even if the jury found that the injuries were minor and transitory, the Judge felt that awarding no compensation was inconsistent with a finding that the injuries were sufficient to result in a wage loss.

Because of the provisions of the Rules of Court, the Judge was not free to substitute his own assessment of damages.

The decision can be found at:

Thursday, October 2, 2014

Supreme Court of Canada declares BC Government's court hearing fees unconstitutional.

The Supreme Court of Canada today declared the BC government's court hearing fee schedule as unconstitutional. Under the government's system, he hearing fees escalated from no fee for the first three days of trial, to five hundred dollars for days four to ten, to eight hundred dollars for each day over ten. Those fees were found by a 6-1 majority to be unconstitutional as they had the potential to deny access to justice.

Rule 20‑5(1) of the Supreme Court Civil Rules provided for an exemption from hearing fees if the court finds that a person is “impoverished”.  The exemption in place at the time of the trial provided that a judge could waive all fees for a person who is “indigent”. However, the Supreme Court found this exemption did not go far enough in protecting access to justice.  Chief Justice McLachlin wrote:

" A hearing fee scheme that does not exempt impoverished people clearly oversteps the constitutional minimum ― as tacitly recognized by the exemption in the B.C. scheme at issue here. But providing exemptions only to the truly impoverished may set the access bar too high.  A fee that is so high that it requires litigants who are not impoverished to sacrifice reasonable expenses in order to bring a claim may, absent adequate exemptions, be unconstitutional because it subjects litigants to undue hardship, thereby effectively preventing access to the courts."

Interestingly, the Court did not say that the fees offended the Charter of Rights.  Rather, they offended the inherent jurisdiction of the Court to manage it's affairs and had the potential of restricting superior courts (such at the BC Supreme Court) from being able to exercise their inherent jurisdiction.  It seems clear that the Supreme Court of Canada was carefully avoiding extending Charter Rights to individuals with respect to "financial access" to justice.

The Court indicated that the government could legally impose a fee structure, so long as it allowed for exemptions on a broader scale and allowed for judicial discretion to waive the fees.

Tuesday, September 23, 2014

ICBC Advertising Campaign

I have been seeing and hearing the new ICBC advertising campaign a lot over the last few weeks.  The campaign strikes me as interesting in a number of ways.

First, the ICBC commercials leave the general impression that lawyers are not telling injured persons the truth when advising them of the rights in relation to ICBC claims.  This is troubling, of course, because lawyers are neither ethically nor legally allowed to lie to potential clients.  One of the issues that ICBC seems to emphasize is that people can settle when they are ready, and not on ICBC timeline.  The implication is that lawyers are telling people that they will be forced to settle when they are not ready.

I don't know any lawyer who would tell their client that they will be forced to settle their ICBC claim against their will if they don't hire a lawyer.  Personally, I do tell injured persons that they have only two years less one day to settle with ICBC or they have to file a lawsuit to protect their rights.  Now, filing a lawsuit for a personal injury case in not necessarily an easy matter, so in that sense, if you don't want to settle with ICBC within the first two years, you will likely need a lawyer.

Another trick (and I use the word purposely) that has been used in the past is to simply send a "settlement" cheque to an injured person with a letter indicating that the claim will be closed when they cash the cheque.  This happens without any agreement by the injured person that they are ready to settle. Clearly this is inappropriate.

Second, the ICBC commercial states that often, medical benefits can be obtained without having to sign any documents.  If that is true, then that is certainly a new development since most adjusters require a signed statement and a signed CL22 Application for Benefits.  That forms satisfies the following legal requirement contained in the governing legislation and regulations: "within 90 days from the date of the accident furnish the corporation with a proof of claim in a form authorized by the corporation".

So while ICBC may immediately approve some basic treatments such as physiotherapy and massage, at some point they will be looking for those signed documents.  Additionally, ICBC almost universally asks claimants to provide an authorization to access a claimant's medical records.

One important thing to keep in mind is that nowhere in the commercials does it say that ICBC will reach a "fair" settlement with you.  Keep in mind that when trying to reach a settlement, the adjuster is working for the insurance company representing the person who caused the accident.  Of course, in BC that is the same insurance company that insurers all of us, so it is easy to forget that ICBC is not legally required to treat the innocently injured person fairly when it comes time to determine compensation.

The adjuster's job is to close your file for the least amount of money possible.  That does not make them bad people.  It's just their job.

If you have concerns about that, discuss your case with a lawyer experienced in ICBC cases.

Accident caused by snow spray from passing vehicle

With winter approaching, it seems appropriate to review an interesting recent case involving blinding snow. What do you do if you are blinded by snow thrown onto your windshield by a passing motorist? In today's case, an accident ensued and the driver asked the court to find the passing motorist responsible.

The BC Supreme Court decided on September 19, 2014 that an accident caused by a passing motorist throwing a curtain of snow onto the window shield of another car was the fault of the passing driver. The judge found that the overtaking truck passed at high speed even though it was evident that the road was blanketed with snow. It should have come as no surprise to the passing driver that his actions would blanket the other car in a spray of snow.

Mr. Justice Ball stated: "There is, in my view, a very heavy onus on the driver of an overtaking vehicle to make sure that passing can be done in safety; particularly in poor road and weather conditions. The driver of the SUV in this case did not respect the circumstances that the standard of care dictated."

These types of cases demonstrate that no matter what the circumstances, it is always advisable to discuss an accident case with a lawyer to determine your rights.

Wednesday, July 23, 2014

Contingency Fees in Personal Injury Claims

Almost all personal injury claims involving a lawyer in BC are taken on a contingency basis. A "contingency" fee literally means that the lawyer's fee is contingent on the lawyer obtaining monetary compensation for the client. In all cases the fees are based on a percentage of the compensation that is obtained.

First, it is important to understand that all lawyers have only one thing to sell you: their time. They use that time to implement their expertise in resolving your claim. Normally, lawyers charge by the hour and they require up-front retainers to guarantee their fees.  This can be very expensive for most people and would prevent them from pursuing a claim for personal injuries against large insurance companies, such as ICBC.

A contingency fee is really just a different way for lawyers to sell their time. Rather than charging by the hour, the lawyer takes a percentage of the compensation obtained for the client.  Sometimes this can result in a fee which would be more per hour than their regular rate.  Sometimes this can result in the lawyer receiving considerably less per hour than their hourly rate.  This can often depend on how the contingency fee is structured.

Contingency fees amongst law firms vary, with some firms offering flat percentage, while others offer an incremental scale.  There are potential advantages and disadvantages to both systems.

Flat Percentage Fee

If a firm offers a flat percentage fee, they will receive only a fixed percentage of the compensation obtained, no matter how much work they are required to do.  For example, if a firm were to charge a flat percentage of 20% no matter the stage of litigation, the lawyer's effective hourly rate might be reasonable if the matter settles before any court filings are necessary.
However, what if the client should really proceed to trial in order to get a fair result.  In that case, the fixed percentage fee results in the lawyer being required to do a tremendous amount of work, but his/her fee rate remains at 20%.  The effective hourly rate in such a case would be considerably lower.

The question becomes: How likely is the lawyer going to be motivated to take a case to trial when his effective hourly rate decreases the more work he has to do?

Incremental Percentage Fee

Many forms offer an incremental percentage fee, with typical arrangements allowing for small increases in the percentage rate at the following stages of litigation: filing the lawsuit, conducting the examination for discovery, and conducting a trial.

This system recognizes that conducting a trial takes essentially all of the lawyers time during that period, and that there should be compensation in keeping with that commitment.

The question in this case becomes: How likely is the lawyer going to be motivated to take a case to trial when his effective hourly rate reasonable no matter how much work he/she has to do?


Why is this important?  Because there are many times when a case should be taken close to or through a trial in order to obtain fair compensation.  It is therefore important to know that your lawyer will be motivated to take a case to trial if necessary.

While a flat percentage fee may seem attractive, incremental percentage fees can be more effective in a situation where litigation, including a trial is necessary.