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.